SETTLEMENT AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA,
THE CITY OF KERRVILLE, TEXAS,
AND
PLAYHOUSE 2000
WITH RESPECT TO THE CAILLOUX THEATER AND CITY CENTER
FOR THE PERFORMING ARTS UNDER THE
AMERICANS WITH DISABILITIES ACT

DJ #204-76-187



BACKGROUND AND JURISDICTION

  1. This Agreement (the “Agreement”) is made and entered into by the United States of America (the “United States”), and the City of Kerrville, Texas (the “City”) and Playhouse 2000 (collectively, the “Theater”).
  2. This Agreement resolves an investigation conducted by the United States Department of Justice (the “United States”) of the Cailloux Theater and City Center under Titles II and III of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12165, 12181-12189 (2000) (the “ADA”) The Theater underwent significant alterations in 2003 The live performance theater is also used for municipal elections, and other functions by the Kerrville Independent School District, the City, and others The City owns the Theater, and the Theater is managed and operated by Playhouse 2000, a private, nonprofit corporation.
  3. The Theater has approximately 837 seats, including twelve designated accessible seats, and twelve box seats.
  4. This matter was commenced when the United States received a complaint filed by a person with a disability against the Theater The complaint alleged that the Theater’s wheelchair seating locations fail to provide people with disabilities a choice of admission prices, and that the Theater does not provide one companion fixed seat next to each wheelchair seating area The United States investigated that complaint and also initiated a compliance review of the Theater, pursuant to the Attorney General’s authority under 42 U.S.C. § 12188(b)(1)(A)(i) (2000) The United States reviewed architectural plans and other information provided by the City and conducted a site visit of the Theater and its facilities on July 23, 2008.
  5. The ADA applies to the City of Kerrville because it is a “public entity” as defined by title II of the ADA. 42 U.S.C. § 12131, 28 C.F.R. § 35.104
  6. The Attorney General is authorized under 28 C.F.R. Part 35, Subpart F, to determine compliance with title II of the ADA and the Attorney General’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 Attorney General fail to secure voluntary compliance pursuant to Subpart F.
  7. The Theater was altered after January 26, 1992, and thus should have been altered in such a manner that the facility is readily accessible to and usable by individuals with disabilities 28 C.F.R. §§ 35.151, 36.402. The alterations are required to comply with either the Standards for Accessible Design (“ADA Standards) or the Uniform Federal Accessibility Standards (“UFAS”), 41 C.F.R. § 101-19.6, App. A It was the City of Kerrville’s decision regarding which of the two design standards to follow for those alterations 28 C.F.R. § 35.151 (c) The City of Kerrville chose to follow the ADA Standards for the Theater.
  8. The ADA applies to Playhouse 2000 because it is a private entity that owns, leases, or operates a theater or other place of exhibition or entertainment, and its operations affect commerce It is a place of public accommodation covered by title III of the ADA. 42 U.S.C. § 12181(7) and 28 C.F.R. § 36.104 Accordingly, Playhouse 2000 is subject to the requirements of Title III of the ADA, 42 U.S.C §§ 12181-12189, and its implementing regulations, which are found at 28 C.F.R. Part 36
  9. Title III requires that Playhouse 2000 ensure that individuals with disabilities are provided an equal opportunity to participate in or benefit from its goods and services 42 U.S.C. § 12182(a) and 28 C.F.R. § 36.201(a) Title III also requires a public accommodation to make reasonable modifications to its policies, practices and procedures when such modifications are necessary to afford such goods, services, facilities, privileges, advantages or accommodations to individuals with disabilities unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered 42 U.S.C. § 12182(b)(2)(A)(ii) and 28 C.F.R. § 36.302 (2006) Further, a public accommodation must maintain in operable working condition those features that are required to be accessible 28 C.F.R. § 36.211(a).
  10. INVESTIGATION

  11. In the course of its investigation, the United States identified certain violations of the Standards Attached as Appendix A to this Agreement is the complete list of elements surveyed by the United States which fail to comply with the ADA and the regulation These noncompliant elements include, among others, no companion fixed seats for the wheelchair seating locations; wheelchair seating locations that do not provide people with physical disabilities a choice of admission prices; accessible routes that are too narrow; and improper signage.
  12. The United States also identified other violations of Title III of the ADA and its implementing regulations For example, the United States found that the Theater has no reservations policy for wheelchair seating locations and companion fixed seats.
  13. TERMS OF AGREEMENT

  14. In order to avoid potential litigation, the parties agree to the terms of this Settlement Agreement These terms are intended to redress the alleged violations of the ADA that have been identified by the United States.
  15. The Theater agrees to correct each alleged violation identified in Attachment A no later than 18 months after the effective date of this Agreement.
  16. The Theater will draft a reservations policy for wheelchair seating locations and companion fixed seats and implementing procedures and provide it to the United States for its approval within 30 days of the effective date of the Agreement Once the United States approves the Theater’s reservation policy, it will be posted in a prominent location at the ticket office and on the Theater’s website.
  17. Within 30 days of the effective date of this Agreement, and in exchange for an executed copy of the Release attached as Appendix B, the Theater shall pay to Ms. Helen M. Gray the sum of $2,500 in damages by certified check and sent by overnight delivery A copy of the check and the Release shall be sent to the United States at the address in paragraph 22 below.
  18. In consideration of the terms of this Agreement, the Attorney General agrees to refrain from undertaking further investigation and from filing a civil suit regarding all matters contained within this Agreement and its attachments, except as provided in Paragraph 18.
  19. IMPLEMENTATION AND ENFORCEMENT

  20. During the term of this Agreement, the Theater shall provide a report annually to the United States, on the anniversary of the effective date of this Agreement, regarding the Theater’s progress with respect to the completion of its responsibilities pursuant to Paragraphs 13-15 of this Agreement The Theater shall provide the United States with written documentation evidencing its completion of all corrective actions required by Appendix A in sufficient detail for the DOJ to independently confirm that all work has been done in conformance with the parties' agreement Such evidence may include, but is not limited to, color photographs, purchase orders, permits, and/or architectural drawings, if necessary. The report shall also identify and document any ADA-related policies and procedures that the Theater adopted.
  21. The United States may review compliance with this Agreement at any time and may enforce this Agreement or file a lawsuit under title III of the ADA if the United States believes that this Agreement or any requirement thereof has been violated If the United States believes that this Agreement or any portion of it has been violated, it will raise its concern(s) with the Theater and the parties will attempt to resolve the concern(s) in good faith If the parties are unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date the United States provides notice to the Theater, the United States may institute a civil action in federal district court directly to enforce title III of the ADA or to enforce the terms of this Settlement Agreement.
  22. Failure by the United States to enforce any provision or deadline of this Agreement shall not be construed as a waiver of its right to enforce other provisions or deadlines of this Agreement.
  23. This Agreement constitutes the entire agreement between the parties relating to Department of Justice No. 204-76-187 and no other statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written Agreement, including its attachments, shall be enforceable.
  24. This agreement shall be binding on the Theater, its agents and employees In the event the City or Playhouse 2000 seeks to transfer or assign all or part of its interest in any facility covered by this agreement, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale the City and/or Playhouse 2000 shall obtain the written accession of the successor or assign to any obligations remaining under this agreement for the remaining term of this agreement.
  25. All notices, demands, reports, or other communications to be provided pursuant to this Agreement shall be in writing and delivered by fax or overnight mail to the following persons and addresses (or such other persons and addresses as any party may designate in writing from time to time):
  26. For the City of Kerrville:

    For Playhouse 2000:

    For the United States:

    John L. Wodatch, Chief
    Renee Wohlenhaus, Deputy Chief
    Phyllis M. Cohen, Senior Trial Attorney
    Disability Rights Section
    U.S. Department of Justice
    1425 New York Avenue, NW
    Suite 4039
    Washington, DC 20005
    (202) 305-9775 (fax)

  27. If any provision of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided however, that if the severance of any such provision materially alters the rights or obligations of the parties, the United States, the City and Playhouse 2000 shall engage in good faith negotiations in order to adopt such mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed-upon relative rights and obligations.
  28. This Agreement is limited to the matters described herein and does not purport to remedy any other potential violations of the ADA or any other federal law This Agreement does not affect the Theater’s continuing responsibility to comply with all aspects of the ADA not covered by this Agreement.
  29. A signatory to this document in a representative capacity for a partnership, corporation, or other entity, represents that he or she is authorized to bind such partnership, corporation, or other entity to this Agreement
  30. The effective date of this Agreement is the date of the last signature below This Agreement shall remain in effect for three years from the effective date.

FOR THE UNITED STATES:

THOMAS E. PEREZ
Assistant Attorney General
Civil Rights Division

____________________________
JOHN L. WODATCH, Chief
PHILIP L. BREEN, Special Legal Counsel
RENEE WOHLENHAUS, Deputy Chief
PHYLLIS M. COHEN, Senior Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) 307-0663 (phone)
(202) 305-9775 (fax)

Date:10/26/2010

FOR THE CITY OF KERRVILLE, TEXAS:

______________________________
David Wampler, Mayor
City of Kerrville
800 Junction Highway
Kerrville TX 78028

Date:Sep 21, 2010

FOR PLAYHOUSE 2000:

Playhouse 2000
910 Main Street
Kerrville TX 78028

Date:Sep 21, 2010


CAILLOUX THEATER AND CITY CENTER FOR THE PERFORMING ARTS
ATTACHMENT A

Note: All citations are to the ADA Standards for Accessible Design (“ADA Standards”), 28 C.F.R. Part 36, Appendix A.

  1. There are no companion fixed seats next to each wheelchair seating location One companion fixed seat is required for each wheelchair seating location ADA Standards § 4.33.3.
  2. Wheelchair seating areas are not provided so as to provide people with physical disabilities a choice of admission prices There are no wheelchair seating areas in the box seats ADA Standards § 4.33.3.
  3. The floor at the box seats has a cross slope greater than 1: 50 (2 percent) ADA Standards § 4.33.4.
  4. There is no 36 inch wide accessible route to the upper level wheelchair seating areas ADA Standards § 4.33.3, Fig. 46
  5. The operating mechanism on the aisle seats with removable or folding armrests cannot be operated without tight grasping, pinching, or twisting of the wrist ADA Standards § 4.27.4.
  6. The aisle seats with removable or folding armrests are not identified by a sign or marker ADA Standards § 4.1.3(19)(a).
  7. There is no signage notifying patrons of the availability of aisle seats with no armrests on the aisle side, or removable or folding armrests, posted at the ticket office ADA Standards § 4.1.3(19)(a).
  8. The accessible route from the wheelchair seating areas to the performing areas is less than 36 inches wide Standards §§ 4.1.6(b), 4.3.3.
  9. At the Women’s Toilet Room, there is no sign with raised letters and Braille mounted 60 inches above the finished floor ADA Standards §§ 4.1.3(16)(a), 4.30.4.
  10. At the Men’s Toilet Room, there is no sign with raised letters and Braille mounted 60 inches above the finished floor ADA Standards §§ 4.1.3(16)(a), 4.30.4.
  11. In the Men’s Toilet Room, there is no mirror mounted with the bottom of its reflecting surface no higher than 40 inches above the finished floor ADA Standards §§ 4.19.6, 4.22.6, Fig. 31.
  12. In the Women’s Toilet Room, there is less than 29 inches knee clearance from the finished floor to the bottom of the lavatory apron, and less than 8 inches deep knee clearance under the lavatory ADA Standards §§ 4.19.2, 4.22.6, Fig. 31.
  13. In the Men’s Toilet Room, there is less than 29 inches knee clearance from the finished floor to the bottom of the lavatory apron,and less than 8 inches deep knee clearance under the lavatory ADA Standards §§ 4.19.2, 4.22.6, Fig. 31.
  14. In the Women’s Toilet Room, the accessible route from the lobby into the toilet room is less than 36 inches wide ADA Standards §§ 4.1.3(11), 4.3.3, 4.22.3.
  15. In the Men’s Toilet Room, the accessible route from the lobby into the toilet room is less than 36 inches wide ADA Standards §§ 4.1.3(11), 4.3.3, 4.22.3.
  16. In the Women’s Toilet Room, the sanitary napkin disposal receptacles in both wheelchair accessible stalls are placed outside accessible reach ranges ADA Standards §§ 4.22.7, 4.27.3.
  17. At the Unisex Toilet Room, the entry door requires more than 5 lbf to open ADA Standards § 4.13.11(2)(b).
  18. At the Unisex Toilet Room, the sweep period of the entry door from an open position of 70 degrees is less than three seconds ADA Standards § 4.13.10.
  19. In the Unisex Toilet Room the mirror is not mounted with the bottom of its reflecting surface no higher than 40 inches above the finished floor ADA Standards §§ 4.19.6, 4.22.6, Fig. 31.
  20. In the Unisex Toilet Room, the rear grab bar is less than 36 inches long ADA Standards § 4.16.4.

APPENDIX B

RELEASE

                In consideration of the payment of two thousand five hundred dollars ($2,500.00) in accordance with the terms of the Settlement Agreement entered into between the United States, the City of Kerrville, Texas, and Playhouse 2000, Ms. Helen M. Gray hereby releases the City of Kerrville, Texas, and Playhouse 2000, together with its subsidiaries, affiliates, parents, successors, officers, assigns, partners, shareholders, agents, employees, attorneys, or representatives from any and all liability for any and all claims for relief or causes of action of any nature that Ms. Helen M. Gray may have against the City of Kerrville, Texas, and Playhouse 2000, arising from the facts and circumstances alleged in Department of Justice File No. 202-76-187.

Dated _________, 2010

BY: _________________________________________