SETTLEMENT AGREEMENT BETWEEN

 

THE UNITED STATES OF AMERICA

 

AND

 

THE TOWN OF HAYDEN, COLORADO

 

UNDER THE AMERICANS WITH DISABILITIES ACT

 

DJ 204-13-258

 

 

 

BACKGROUND

 

SCOPE OF THE INVESTIGATION

 

            This matter was initiated by a complaint filed under title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12134, with the United States Department of Justice (Department) against the Town of Hayden, Colorado (Town).  The complaint was received by the Civil Rights Division of the Department of Justice, under the authority of 28 C.F.R. Part 35, Subpart F.  The complainant alleges that the Town Hall is inaccessible to people with mobility impairments.  In addition, the complainant alleges that the sidewalks within the Town are inaccessible to people with mobility impairments.

 

            Because the Town receives financial assistance from the Department of Justice, the investigation was also conducted under the authority of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Department's implementing regulation, 28 C.F.R. Part 42, Subpart G.  The Department expanded the scope of the investigation to include the Town's compliance with the following title II requirements:

 

C           to conduct a self-evaluation of its services, policies, and practices by July 26, 1992, and make modifications necessary to comply with the Department's title II regulation, 28 C.F.R. § 35.105;

 

C           to notify applicants, participants, beneficiaries, and other interested persons of their rights and the Town's obligations under title II and the Department's regulation, 28 C.F.R. § 35.106;

 

C           to designate a responsible employee to coordinate its efforts to comply with and carry out the Town's ADA responsibilities, 28 C.F.R. § 35.107(a);

 

C           to establish a grievance procedure for resolving complaints of violations of title II, 28 C.F.R. § 35.107(b);

 

C           to operate each program, service, or activity so that, when viewed in its entirety, it is readily accessible to and usable by individuals with disabilities, 28 C.F.R. § 35.150, by:

 

 

C           to ensure that facilities for which construction or alteration was begun after January 26, 1992, are readily accessible to and usable by people with disabilities, in accordance with 1) the Department's title II regulation and 2) the Standards or UFAS, 28 C.F.R. § 35.151;

 

C           to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others, including furnishing auxiliary aids and services when necessary, 28 C.F.R. § 35.160;

 

C           to provide information for interested persons with disabilities concerning the existence and location of the Town's accessible services, activities, and facilities, 28 C.F.R. § 35.163(a); and

 

C           to provide signage at all inaccessible entrances to each of its facilities, directing users to an accessible entrance or to information about accessible facilities, 28 C.F.R. § 35.163(b).

 

            As part of its compliance review, the Department reviewed the following facility, which because alterations commenced after January 26, 1992   must comply with the ADA's alterations requirements: Town Hall at 178 West Jefferson Avenue.

 

            The Department reviewed the Town's policies and procedures regarding voting, emergency management and disaster prevention, and sidewalk maintenance to evaluate whether persons with disabilities have an equal opportunity to utilize these programs.

 

            Finally, the Department reviewed the Town's Police Department policies and procedures regarding providing effective communication to persons who are deaf or hard-of-hearing.

JURISDICTION

 

1.         The Department is authorized under 28 C.F.R. Part 35, Subpart F, to investigate the complaint in this matter to determine the compliance of the Town with title II of the ADA and the Department's implementing title II regulation, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements.  Furthermore, the Attorney General is authorized, under 42 U.S.C. section 12133, to bring a civil action enforcing title II of the ADA should the Department fail to secure voluntary compliance pursuant to Subpart F. 

 

2.         The Department is authorized under 28 C.F.R. Part 42, Subpart G, to investigate the complaint in this matter to determine the Town's  compliance with section 504 of the Rehabilitation Act of 1973, to issue findings, and, where appropriate to negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is authorized, under 29 U.S.C. § 794 and 28 C.F.R. sections 42.530, 42.108-110, to suspend or terminate financial assistance to the Town provided by the Department of Justice should the Department fail to secure voluntary compliance pursuant to Subpart G or bring a civil suit to enforce the rights of the United States under applicable federal, state, or local law.

 

3.         The ADA applies to the Town because it is a "public entity" as defined by title II.  42 U.S.C. § 12131(1).

 

4.         The parties to this Agreement are the United States of America and the Town of Hayden, Colorado.

 

5.         In order to avoid the burdens and expenses of an investigation and possible litigation, the parties enter into this Agreement.

 

6.         In consideration of, and consistent with, the terms of this Agreement, the Attorney General agrees to refrain from filing a civil suit in this matter regarding all matters contained within this Agreement, except as provided in the section entitled "Implementation and Enforcement."

 

 

ACTIONS TAKEN BY THE TOWN OF HAYDEN

 

7.         The Town conducted a self-evaluation and developed a transition plan in 1992.  In order to ensure that the programs offered at Town facilities are readily accessible to and usable by individuals with mobility impairments, the Town quickly installed signage, accessible parking and provided access to the Town Hall.

 

REMEDIAL ACTION

 

GENERAL EFFECTIVE COMMUNICATION PROVISIONS

 

8.         Within three months of the effective date of this Agreement, the Town will identify sources of qualified sign language and oral interpreters, real-time transcription services, and vendors that can put documents in Braille, and will implement and report to the Department its written procedures, with time frames, for fulfilling requests from the public for sign language or oral interpreters, real-time transcription services, and documents in alternate formats (Braille, large print, cassette tapes, etc.).

 

9.         The Town will take steps to ensure that all appropriate employees are trained and practiced in using the State of Colorado Relay Service to make and receive calls.

 

LAW ENFORCEMENT AND EFFECTIVE COMMUNICATION

 

10.       Within three months of the effective date of this Agreement, the Town will adapt for its own use and implement the Town of Hayden Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing [Attachment A] and distribute to all Town officers the Guide for Law Enforcement Officers When in Contact with People Who are Deaf or Hard of Hearing [Attachment B].

 

11.       Within three months of the effective date of this Agreement, the Town will contract with one or more local qualified oral/sign language interpreter agencies to ensure that the interpreting services will be available on a priority basis, twenty-four hours per day, seven days a week, to its Police Department or make other appropriate arrangements (such as contracting directly with or hiring qualified interpreters).

 

12.       Within three months of the effective date of this Agreement, the Town will ensure that each Police Department station or substation is equipped with a working TTY to enable persons who are deaf, hard of hearing, or who have speech impairments to make outgoing telephone calls.  Where arrestees or inmate telephone calls are time-limited, the Town will adopt policies permitting inmates who use TTY's a longer period of time to make those calls, due to the slower nature of TTY communications compared with voice communications.

 

VOTING

 

13.       Within one year of the effective date of this Agreement, the Town will develop and implement a way for persons who are blind or have low vision to vote independently and privately, whether through ballots and instructions in alternate formats (in-person and absentee), Braille templates and audio instructions, the provision of accessible voting machines, or some other method.

 

14.       Within three months of the effective date of this Agreement, the Town will make all voter registration materials available in alternate formats, including Braille, large print, audio tape, and computer disk.

 

15.       Starting three months from the effective date of this Agreement, when the Town purchases or otherwise acquires new voting machines, one such newly-acquired machine per polling location will be the most accessible model for persons with disabilities (including those with mobility and visual impairments) that has been approved for Town use by the applicable governing authority (e.g., State Secretary of Elections or other such official).

 

16.       Starting three months from the effective date of this Agreement, when setting up its voting equipment, the Town will ensure that the equipment's accessibility to persons with disabilities is maximized, such as setting up table-top equipment on accessible tables and within the reach ranges required by the Standards.

 

17.       Within the month prior to the next election that utilizes the Town polling places, and at yearly anniversaries of the effective date of this Agreement until it expires, the Town will train poll workers on the rights of people with disabilities and the practical aspects of assuring those rights.  The training will cover, at minimum, the need to maintain the physical accessibility of polling locations; how to assist people with disabilities, as necessary; and how to operate any non-standard voting equipment or accessible features of standard equipment (particularly new, accessible equipment).

 

EMERGENCY MANAGEMENT PROCEDURES AND POLICIES

 

18.       Within three months of the effective date of this Agreement, the Town will implement and report to the Department its written procedures that ensure that it regularly solicits and incorporates input from persons with a variety of disabilities and those who serve them regarding all phases of its emergency management plan (preparation, notification, response, and clean up).

 

19.       Within three months of the effective date of this Agreement, the Town will implement and report to the Department its written procedures that ensure that its community evacuation plans enable those who have mobility impairments, vision impairments, hearing impairments, cognitive disabilities, mental illness, or other disabilities to safely self-evacuate or be evacuated by others.  Some communities are instituting voluntary, confidential registries of persons with disabilities who may need individualized evacuation assistance or notification.  If the Town adopts or maintains such a registry, its report to the Department will discuss its procedures for ensuring voluntariness, appropriate confidentiality controls, and how the registry will be kept updated, as well as its outreach plan to inform persons with disabilities of its availability.  Whether or not a registry is used, the Town plan should address accessible transportation needs for persons with disabilities.

 

20.       Within three months of the effective date of this Agreement, the Town will implement and report to the Department its written procedures that ensure that if its emergency warning systems use sirens or other audible alerts, it will also provide ways to inform persons with hearing impairments of an impending disaster.  The use of auto-dialed TTY messages to pre-registered individuals who are deaf or hard of hearing, text messaging, e-mails, open-captioning on local TV stations and other innovative uses of technology may be incorporated into such procedures, as well as lower-tech options such as dispatching qualified sign language interpreters to assist with emergency TV broadcasts.

 

21.       Within three months of the effective date of this Agreement, the Town will implement and report to the Department its written procedures that ensure that at least one emergency shelter has a back-up generator and a way to keep medications refrigerated (such as a refrigerator or a cooler with ice).  Such shelter(s) will be made available to persons whose disabilities require access to electricity and refrigeration, for example, for using life-sustaining medical devices, providing power to motorized wheelchairs, and preserving certain medications, such as insulin, that require refrigeration.  The written procedures will include a plan for notifying persons of the location of such shelter(s).

 

22.       Within three months of the effective date of this Agreement, the Town will implement and report to the Department its written procedures that ensure that persons who use service animals are not separated from their service animals when sheltering during an emergency, even if pets are normally prohibited in shelters.  The procedures will not unnecessarily segregate persons who use service animals from others but may take into account the potential presence of persons who, for safety or health reasons, should not be in contact with certain types of animals.

 

23.       Within three months of the effective date of this Agreement, the Town will implement and report to the Department its written procedures that ensure that it has identified temporary accessible housing (such as accessible hotel rooms within the community or in nearby communities) that could be used if people with disabilities cannot immediately return home after a disaster if, for instance, necessary accessible features such as ramps or electrical systems have been compromised.

 

SIDEWALKS

 

24.       Within three months of the effective date of this Agreement, the Town will implement and report to the Department its written process for soliciting and receiving input from persons with disabilities regarding the accessibility of its sidewalks, including, for example, requests to add curb cuts at particular locations.

 

25.       Within three months of the effective date of this Agreement, the Town will identify and report to the Department all streets, roads, and highways that have been constructed or altered since January 26, 1992.  Paving, repaving, or resurfacing a street, road, or highway is considered an alteration for the purposes of this Agreement.  Within three years of the effective date of this Agreement, the Town will provide curb ramps or other sloped areas complying with the Standards or UFAS at all intersections of the streets, roads, and highways identified under this paragraph having curbs or other barriers to entry from a street level pedestrian walkway.

 

26.       Beginning no later than one month after the effective date of this Agreement, the Town will provide curb ramps or other sloped areas complying with the Standards or UFAS at any intersection having curbs or other barriers to entry from a street level pedestrian walkway, whenever a new street, road, or highway is constructed or altered.

 

27.       Within three months of the effective date of this Agreement, the Town will identify all street level pedestrian walkways that have been constructed or altered since January 26, 1992.  Paving, repaving, or resurfacing a walkway is considered an alteration for the purposes of this Agreement.  Within three years of the effective date of this Agreement, the Town will provide curb ramps or other sloped areas complying with the Standards or UFAS at all places where a street level pedestrian walkway identified under this paragraph intersects with a street, road, or highway.

 

28.       Beginning no later than three months after the effective date of this Agreement, the Town will provide curb ramps or other sloped areas complying with the Standards or UFAS at all newly constructed or altered pedestrian walkways where they intersect a street, road, or highway.

 

PHYSICAL CHANGES TO FACILITIES

 

29.       The elements or features of the Town's facilities that do not comply with the Standards, including those listed in Attachment C, prevent persons with disabilities from fully and equally enjoying the Town's services, programs, or activities and constitute discrimination on the basis of disability within the meaning of 42 U.S.C. § 12132 and 28 C.F.R. §§ 35.149 and 35.150.

 

30.       The Town will comply with the cited provisions of the Standards when taking the actions required by this Agreement.

 

31.       Within three months of the effective date of this Agreement, the Town will install signage as necessary to comply with 28 C.F.R. § 35.163(b), after having surveyed all facilities that are the subject of this Agreement for the purpose of identifying those that have multiple entrances not all of which are accessible.

 

32.       Altered Facilities:  In order to ensure that the spaces and elements in the Town's facilities for which alterations commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the Town will take the actions listed in Attachment C.

 

MISCELLANEOUS PROVISIONS

 

33.       Except as otherwise specified in this Agreement, at yearly anniversaries of the effective date of this Agreement until it expires, the Town will submit written reports to the Department summarizing the actions the Town has taken pursuant to this Agreement.  Reports will include detailed photographs showing measurements, architectural plans, work orders, notices published in the newspaper, copies of adopted policies, and proof of efforts to secure funding/assistance for structural renovations or equipment.

 

34.       Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), the Town will maintain the accessibility of its programs, activities, services, facilities, and equipment, and will take whatever actions are necessary (such as routine testing of accessibility equipment and routine accessibility audits of its programs and facilities) to do so.  This provision does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.  28 C.F.R. § 35.133(b).

 

35.       Within six months of the effective date of this Agreement, the Town will develop or procure a two-hour training program on the requirements of the ADA and appropriate ways of serving persons with disabilities.  The Town will use the ADA technical assistance materials developed by the Department and will consult with interested persons, including individuals with disabilities, in developing or procuring the ADA training program.

 

36.       Within one year of the effective date of this Agreement, the Town will deliver its training program to all Town employees who have direct contact with members of the public.  At the end of that period, the Town will submit a copy of its training curriculum and materials to the Department, along with a list of employees trained and the name, title, and address of the trainer.

 

 

IMPLEMENTATION AND ENFORCEMENT

 

37.       If at any time the Town desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the Department in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification.  Until there is written Agreement by the Department to the proposed modification, the proposed modification will not take effect.  These actions must receive the prior written approval of the Department, which approval will not be unreasonably withheld or delayed.

 

38.       The Department may review compliance with this Agreement at any time.  If the Department believes that the Town has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department for a modification of the relevant terms, the Department will so notify the Town in writing and it will attempt to resolve the issue or issues in good faith.  If the Department is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to the Town, it may institute a civil action in federal district court to enforce the terms of this Agreement, or it may initiate appropriate steps to enforce title II and section 504 of the Rehabilitation Act.

 

39.       For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the Town to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the Department for an extension of the relevant time frame imposed by the Agreement.

 

40.       Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein will not be construed as a waiver of the Department's right to enforce other deadlines and provisions of this Agreement.

 

41.       This Agreement is a public document.  A copy of this document or any information contained in it will be made available to any person by the Town or the Department on request.

 

42.       This Agreement constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement (including its Attachments, which are hereby incorporated by reference), will be enforceable.  This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law.  This Agreement does not affect the Town's continuing responsibility to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.

 

43.       This Agreement will remain in effect for three years.

 

44.       The person signing for the Town of Hayden, Colorado, represents that he or she is authorized to bind the Town to this Agreement.

 

45.       The effective date of this Agreement is the date of the last signature below.

 

 

 

 

 

 For the Town of Hayden:

 

RUSSELL MARTIN,

Town Manager

 

 

By: ____________________________

P.O. Box 190

178 West Jefferson Avenue

Hayden, Colorado  81639

 

 

 

 

 

 

 

 

 

 

 

Date:  ___________________________ 

     For the United States:

 

     R. ALEXANDER ACOSTA,

     Assistant Attorney General for Civil Rights

 

 

By:_____________________________                    

JOHN L. WODATCH, Chief

JEANINE WORDEN, Deputy Chief

MARY LOU MOBLEY, Senior Counsel

NAOMI MILTON, Supervisory Attorney

BROOKS SINGER, Esq., Investigator

MICHELE ANTONIO MALLOZZI, Architect

U.S. Department of Justice

Civil Rights Division

950 Pennsylvania Avenue, N.W.

Disability Rights Section - NYA

Washington, DC 20530

 

 

Date:  ______________________________