The Manager's report back on whether the MBTA is in compliance with the amended Settlement Agreement in the District of Massachusetts case Daniels-Finegold et al. v. Massachusetts Bay Transportation Authority

Cambridge, MA 02139

Re: Response to Awaiting Report 19-46 Re: Request to Review Whether the Massachusetts Bay Transportation Authority Is in Compliance with the Amended Settlement Agreement in the District of Massachusetts Case, Daniels-Finegold et al. v. Massachusetts Bay Transportation Authority Dear Mr. DePasquale: We have prepared this legal opinion in response to Awaiting Report No. 19-46 (Council Order No.

0-9 of April 8, 2019), which requests that the City Solicitor's Office review the Amended Settlement Agreement in the District of Massachusetts case Daniels- Finegold et al. v. Massachusetts Bay Transportation Authority, C.A. No. 02CV11504 (D. Mass. 2006), and determine whether the Massachusetts Bay Transportation Authority (the "MBTA") is in compliance with its obligation to install an updated elevator in the Central Square Station.

In preparing this legal opinion, my office has communicated with MBTA representatives to obtain additional information about the status of construction at the Central Square Station. Enclosed please find a letter dated October 27, 2019 from Laura

Brelsford, the System-Wide Accessibility Coordinator for the MBTA, and Michelle

Kalowski, Chief Legal Counsel for the MBTA, which provides an explanation for the construction delay and estimates that construction will be completed in early 2020. In my opinion, the MBTA has represented that they have made efforts to comply with their * The Council Order also references dangerous stairwells in the Central Square Station. My office spoke with MBTA representatives and they indicated that the MBTA did not have any immediate plans to fix the stairs in the Central Square Station.

In addition, the MBTA representatives denied being aware of any complaints regarding the condition of the Central Square Station stairs and asked for clarification regarding which stairs were an issue. There are several entrances to the Central Square Station all of which have stairwells. In order to move forward with this matter, more information is needed regarding which stairs on which stairwells present a safety concern to passengers.

Telephone [phone removed] Facsimile [phone removed] TTY/TTD (61 7) 349-4242 obligations under the Amended Settlement Agreement to install an updated elevator in the Central Square Station.

Amended Settlement Agreement

On July 25, 2002, the plaintiffs brought a civil action in the United States District Court of Massachusetts for declaratory and injunctive relief against the MBTA, Daniels- Finegold et aL v. MBTA. C.A. No. 02CV11504. Specifically, the plaintiffs alleged that MBTA services were not readily accessible to and usable by individuals with mobility, hearing, and visual disabilities In violation of the Americans with Disabilities Act. On June 15, 2006, the Court accepted the parties' Settlement Agreement.

In the Settlement Agreement, the MBTA agreed to establish, operate, and maintain its services in a manner which made them readily accessible and usable to all persons, including individuals with disabilities. The case remained open with the Court retaining jurisdiction to ensure that the MBTA performed its obligations under the Settlement Agreement.

On December 4, 2018, the parties executed an Amended Settlement Agreement to reflect the progress that had been made since entering into the original Settlement Agreement. The Amended Settlement Agreement identified three (3) categories of obligations: substantially satisfied obligations, obligations requiring additional action, and obligations requiring modification. Under the Amended Settlement Agreement, one of the MBTA s ongoing obligations related to elevator usage.

Specifically, the MBTA agreed to maintain and operate elevators in a manner which made them readily accessible and usable by persons with disabilities during all passenger service hours. To accomplish this goal, the MBTA agreed to "design, fund, and implement an elevator management plan to provide continuous, uninterrupted elevator service during all passenger service hours, subject only to temporary and isolated elevator outages for repairs, maintenance, and inspections." Amended Settlement Agreement at §53.

Pursuant to the Amended Settlement Agreement, the MBTA would be considered out of compliance with its obligation to maintain continuous elevator service "if, during any one-month period, the number or duration of outages for any elevator in the MBTA passenger service system is more than insubstantial. Id. at §54. In addition, the MBTA agreed to replace certain elevators, including elevator #861 in the Central Square Station. Id. at §56.

The Amended Settlement Agreement did not provide a specific date or timeframe for completion of this elevator replacement. During elevator outages, the MBTA is required to establish a dedicated means of alternative transportation and to promptly publicize this information to passengers. Id. at §§§62, 66,and 74. In addition, the MBTA is required to provide alternative transportation services in a "timely manner." M at §72.

Specifically, with respect to the Central Square Station elevator replacement, the MBTA has established and publicized two (2) alternative transportation options: (1) a bus shuttle which transports passengers from Massachusetts Avenue to Kendall Square and (2) an outbound service elevator at the Harvard Square Station. II.

Status of Construction at the Central Square Station As detailed above, in accordance with the Amended Settlement Agreement, the MBTA is required to replace the elevator in the Central Square Station with a larger, more modem elevator. Based on earlier estimates, the MBTA anticipated that construction would be completed by spring 2019. According to MBTA representatives, construction has been delayed by several unforeseen issues. Specifically, during construction, workers observed a nearby stand pipe.

A state building inspector conducted an inspection of the stand pipe, which included administration ofapre-air test. The stand pipe failed the pre-air test, and the state building inspector determined that the stand pipe was a safety hazard. The state building inspector refused to allow construction on the elevator to proceed until the stand pipe issue was remedied. Repair of the stand pipe required the expenditure of significant time and resources.

In addition to the stand pipe, the MBTA discovered seventeen (17) existing conduits in the elevator shaft that needed to be relocated in order to continue with construction. Furthermore, the MBTA is only allowed to engage in construction and repair activities during off hours between 1:30am to 5:00am so as not to disrupt daily service. These limited work hours further contributed to the construction delays.