SETTLEMENT AGREEMENT BETWEEN

 

THE UNITED STATES OF AMERICA

 

AND

 

VAIL RECREATION DISTRICT, VAIL, COLORADO

 

UNDER THE AMERICANS WITH DISABILITIES ACT

 

DJ 204-13-277

 

 

 

BACKGROUND

 

SCOPE OF THE INVESTIGATION

 

            The United States Department of Justice (Department) initiated this matter as a compliance review of the Vail Recreation District in Vail, Colorado (VRD) under title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12134, and the Department's implementing regulation, 28 C.F.R. Part 35.

 

            The review was conducted by the Disability Rights Section of the Department's Civil Rights Division and focused on VRD'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 VRD's obligations under title II and the Department's regulation, 28 C.F.R. § 35.106;

 

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 VRD'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 construction or alterations commenced after January 26, 1992   must comply with the ADA's new construction or alterations requirements: John A. Dobson Ice Arena at 280 W. Meadow Drive.

 

            The Department's program access review covered those of VRD's programs, services, and activities that operate in the following facilities: Youth Services Office at Lionshead Transportation Center, Tennis Center at Ford Park, Upper Bench Athletic Fields at Ford Park, Pro Shop and Restaurant at Vail Golf Club, Starter Shack at Vail Golf Club, and Golden Peak Athletic Fields.

 

            The Department reviewed the Town of Vail'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 of Vail's Police Department policies and procedures regarding providing effective communication to persons who are deaf or hard-of-hearing.  Provisions regarding these policies and procedures are contained in a separate agreement with the Town of Vail.

 

JURISDICTION

 

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

 

2.         The Department is authorized under 28 C.F.R. Part 35, Subpart F, to determine the compliance of VRD with title II of the ADA and the Department's title II implementing 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. § 12133, to bring a civil action enforcing title II of the ADA should the Department fail to secure voluntary compliance pursuant to Subpart F.

 

3.         The parties to this Agreement are the United States of America and the Vail Recreation District in Vail, Colorado.

 

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

 

5.         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."

 

 

REMEDIAL ACTION

 

NOTIFICATION

 

6.         Within 12 months of the effective date of this Agreement, VRD will adopt the attached Notice (Attachment A); distribute it to all agency heads; publish the Notice in a local newspaper of general circulation serving the Town of Vail; post the Notice on its Internet Home Page; and post copies in conspicuous locations in its public buildings.  It will refresh the posted copies, and update the contact information contained on the Notice, as necessary, for the life of this Agreement.  Copies will also be provided to any person upon request.

 

7.         Within 12 months of the effective date of this Agreement, and on yearly anniversaries of this Agreement until it expires, VRD will implement and report to the Department its written procedures for providing information for interested persons with disabilities concerning the existence and location of VRD's accessible programs, services, and activities.

 

 

GENERAL EFFECTIVE COMMUNICATION PROVISIONS

 

8.         Within 12 months of the effective date of this Agreement, VRD 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.         VRD 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.

 

EMPLOYMENT

 

10.       Within three months of the effective date of this Agreement, VRD will amend its employment policies, as necessary, to comply with the regulations of the U.S. Equal Employment Opportunity Commission implementing title I of the Americans with Disabilities Act of 1990, codified at 29 C.F.R. Part 1630.  At minimum, those policies will provide that VRD:

 

C                       will not discriminate on the basis of disability in its hiring or employment practices.

 

C                       will not ask a job applicant about the existence, nature, or severity of a disability.  Applicants may be asked about their ability to perform specific job functions.  Medical examinations or inquiries may be made, but only after a conditional offer of employment is made and only if required of all applicants for the position.

 

C                       will make reasonable accommodations for the known physical or mental limitations of a qualified applicant or employee with a disability upon request unless the accommodation would cause an undue hardship on the operation of VRD's business.

 

C                       if an applicant or employee requests a reasonable accommodation and the individual's disability and need for the accommodation are not readily apparent or otherwise known, VRD may ask the individual for information necessary to determine if the individual has a disability-related need for the accommodation.

 

C                       will maintain any employee's medical records separate from personnel files and keep them confidential.

 

C                       will make an individualized assessment of whether a qualified individual with a disability meets selection criteria for employment decisions.  To the extent VRD's selection criteria have the effect of disqualifying an individual because of disability, those criteria will be job-related and consistent with business necessity.

 

 

WEB-BASED SERVICES AND PROGRAMS

 

11.       Within 1 month of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, VRD will distribute to all persons employees and contractors who design, develop, maintain, or otherwise have responsibility for content and format of its website(s) or third party websites used by the VRD (Internet Personnel) the technical assistance document, "Accessibility of State and Local Government Websites to People with Disabilities," which is Attachment B to this Agreement (it is also available at www.ada.gov/websites2.htm).

 

12.       Within three months of the effective date of this Agreement, and throughout the life of the Agreement, VRD will do the following:

 

A.        Establish, implement, and post online a policy that its web pages will be accessible and create a process for implementation;

 

B.         Ensure that all new and modified web pages and content are accessible;

 

C.        Develop and implement a plan for making existing web content more accessible;

 

D.        Provide a way for online visitors to request accessible information or services by posting a telephone number or e-mail address on its home page; and

 

E.         Periodically (at least annually) enlist persons with disabilities to test its pages for ease of use.

 

PHYSICAL CHANGES TO FACILITIES

 

13.       The elements or features of VRD's facilities which are owned by the Town of Vail that do not comply with the Standards, including those listed in Attachments C and D, prevent persons with disabilities from fully and equally enjoying VRD'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.

 

14.       VRD will comply with the cited provisions of the Standards when taking the actions required by this Agreement.  Nothing herein will be construed as preventing VRD and the Town of Vail from entering into a separate agreement to jointly achieve the actions required by this Agreement.

 

15.       Within 12 months of the effective date of this Agreement, VRD 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.  Nothing herein will be construed as preventing VRD and the Town of Vail from entering into a separate agreement to jointly achieve the actions required by this Agreement.

 

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

 

17.       Program Access in VRD Existing Facilities:  In order to ensure that each of VRD's programs, services, and activities operating at a facility that is the subject of this Agreement, when viewed in its entirety, is readily accessible to and usable by persons with mobility impairments, VRD will take the actions listed in Attachment D.

 

 

MISCELLANEOUS PROVISIONS

 

18.       Except as otherwise specified in this Agreement, at yearly anniversaries of the effective date of this Agreement until it expires, VRD will submit written reports to the Department summarizing the actions VRD 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.

 

19.       Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), VRD 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).

 

20.       Within 12 months of the effective date of this Agreement, VRD will develop or procure a two-hour training program on the requirements of the ADA and appropriate ways of serving persons with disabilities.  VRD 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.

 

21.       Within one year of the effective date of this Agreement, VRD will deliver its training program to all VRD employees who have direct contact with members of the public.  At the end of that period, VRD 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

 

22.       If at any time VRD 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.

 

23.       The Department may review compliance with this Agreement at any time.  If the Department believes that VRD 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 VRD 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 VRD, 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.

 

24.       For purposes of the immediately preceding paragraph, it is a violation of this Agreement for VRD 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.

 

25.       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.

 

26.       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 VRD or the Department on request.

 

27.       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 VRD's continuing responsibility to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.

 

28.       This Agreement will remain in effect for four years.

 

29.       The person signing for the Vail Recreation District in Vail, Colorado, represents that he or she is authorized to bind VRD to this Agreement.

 

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

 

 

 

 

 

For the Vail Recreation District:

 

DENNIS STEIN,

Director for the Vail Recreation District

 

 

By: ____________________________

700 South Frontage Road East

Vail, Colorado  81657

 

 

 

 

 

 

 

 

 

 

 

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:  ______________________________