SETTLEMENT AGREEMENT

UNDER THE AMERICANS WITH DISABILITIES ACT

BETWEEN

THE UNITED STATES OF AMERICA,

COLLEGE SQUARE MALL PARTNERS, LLC,

COLLEGE SQUARE MALL DEVELOPMENT,

LLC, GK DEVELOPMENT, INC.

(FORMERLY COLLEGE SQUARE MALL ASSOCIATES)

FOR COMPLAINT 202-27-10



I.   Background

  1. This matter was initiated by a complaint filed with the United States Department of Justice (the “Department”) and investigated by the United States Attorney’s Office in the Northern District of Iowa, against the College Square Mall, Cedar Falls, Iowa (“College Square Mall” or the “Mall”), located at 6301 University Avenue, Cedar Falls, Iowa. The complaint was received by the Department on September 28, 1999, and was filed by Katherine Seager. The complaint was investigated under the authority granted by section 308(b) of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12188. The complaint alleged that subsequent to the effective date of the ADA, January 26, 1992, that the Mall was in violation of the ADA because of failure to remove architectural barriers to access.
  2. (a) The parties to this Settlement Agreement (the “Agreement”) are the United States of America, which includes but is not limited to the Department (hereinafter “the United States”); College Square Mall Associates, LLC (hereinafter “CSMA”), which was the owner of College Square Mall as of September 28, 1999, to and including December 16, 2004; and College Square Mall Partners, LLC (hereinafter “Partners”) and College Square Mall Development, LLC, (hereinafter “Development”) whose sole manager is GK Development, Inc. (“GK”).

    (b) On or about December 16, 2004, CSMA conveyed all of its right, title and interest in the Mall to Partners and Development.

    (c) The United States at no time was a party to negotiations between CSMA and Partners and Development and does not consent to the terms of any agreement between the parties.
  3. In order to resolve their differences without the burden, expense and delay of litigation, the parties have engaged in good faith negotiations and agreed to resolve this matter as indicated below.

II.    Facts

  1. The Mall is located in Cedar Falls, Iowa. The main Mall building was built in 1969 and a subsequent addition of Scheels Athletic Store was completed in 1999. The perimeter of the Mall consists of seven separate single tenant buildings and two multiple tenant buildings. The majority of the perimeter Mall buildings were built from 1969 through 2005.
  2. The Department’s review of the Mall including the perimeter buildings consisted of a site visit on July 10, 2001, through July 12, 2001. The areas surveyed consisted of: parking, exterior and interior accessible routes, public toilet rooms, and wheelchair and companion seats.
  3. Based upon the Department’s review of the Mall, 205 Findings of alleged non-compliance with the Americans with Disabilities Act Standards for Accessible Design (the “Standards”) were found by the Department and set forth in a letter dated May 23, 2002, addressed to the Mall (such letter is attached to this Agreement as Exhibit 1, hereinafter the “Department’s May 2002 letter” or “Exhibit 1”). The Findings of alleged non-compliance were failures to remove architectural barriers to access, pursuant to ADA Section 302, 42 U.S.C. § 12182(b)(2)(A)(iv).

III.   Jurisdiction

  1. The ADA applies to College Square Mall because it is a place of public accommodation within the meaning of the ADA. College Square Mall qualifies as a place of public accommodation within the meaning of the ADA because it is a facility, operated by a private entity, whose operations affect commerce which fall within a number of the listed categories including, but not limited to, a shopping center.  28 C.F.R. § 36.104.
  2. (a)  Prior to the sale of the Mall to Partners and Development, CSMA was required to ensure that newly constructed facilities at the Mall were designed and constructed so that the areas were readily accessible to and usable by individuals with disabilities. 42 U. S.C.§ 12183. CSMA was also required to ensure that altered facilities and parts of facilities at the Mall were readily accessible to and usable by individuals with disabilities, to the maximum extent feasible. Id.

    (b)  Partners and Development are required to remove architectural barriers to access for individuals with disabilities where such removal is readily achievable by Title III of the Americans with Disabilities Act of 1990. 42 U.S.C. § 12182 (b)(2)(A)(iv). Partners and Development also are required to ensure that newly constructed facilities at the Mall are designed and constructed so that the areas are readily accessible to and usable by individuals with disabilities. 42 U. S.C.§ 12183. Partners and Development also are required to ensure that altered facilities and parts of facilities at the Mall are readily accessible to and usable by individuals with disabilities, to the maximum extent feasible. Id.
  3. (a) Prior to the sale of the Mall to Partners and Development, CSMA was a public accommodation within the meaning of the ADA because they owned, operated, or leased to a public accommodation, College Square Mall, as of September 28, 1999, to and including December 16, 2004, and thus were subject to the requirements of Title III of the ADA.

    (b) Partners and Development are a public accommodation within the meaning of the ADA because they own, operate, or lease to  places of public accommodation of College Square Mall (as of December 16, 2004) and thus are subject to the requirements of Title III of the ADA. 42 U.S.C. § 12182 (b)(2)(A)(iv).

IV.    Actions to be Taken by Partners and Development:

  1. Partners and Development shall complete the specific actions required by this Agreement according to the deadlines stated below in paragraphs 13 through 33:
  2. The Department required that Partners and Development submit written proof that, prior to the execution of this Agreement, Partners and Development completed remediation standards with respect to any of the items of alleged non‑compliance listed in Exhibit 1, and further required that such written proof include supporting documentation that sets forth when the item was remediated and what actions were taken to perform the remediation.
  3. CSMA has remediated and attained compliance with applicable requirements of the ADA with respect to some items identified in Exhibit 1 prior to the execution of this Agreement. CSMA has submitted (a) a Certification of Remediation (dated April 6, 2005) regarding remediation of certain items of alleged non-compliance (attached as Exhibit 2 to this Agreement), and (b) a Supplemental Certification of Remediation (dated January 11, 2006) regarding remediation of certain other items of alleged non-compliance (attached as Exhibit 3 to this Agreement).

A.   INADEQUATE ACCESSIBLE PARKING SPACES

All parking spaces listed below are to be brought into compliance with the ADA by no later than November 1, 2007.

  1. Carlos O’Kelly’s Restaurant.  With regard to the parking spaces, Partners and Development agree:

    To correct the sloped surface area of the designated “Van‑Accessible” parking space. The running slope of the space measures 1:40 (2.5%) at the head of the space (based on LCM’s measurement). Section 4.6.3, requires that the surface area of both an accessible parking space and an access aisle cannot exceed 1:50 (2%) in all directions. Finding 12. (As an alternative, Partners and Development may convert the subject parking space to regular (non‑accessible) use, and replace it by re‑designating the western‑most accessible space adjacent to Carlos O’Kelly’s as a van‑accessible space, provided that such western‑most space has a running slope of not more than 1:50 (2%) in all directions.) 

B.   EXTERIOR ROUTES

All Exterior Routes listed below are to be brought into compliance with the ADA by no later than November 1, 2007.

  1. This paragraph intentionally left blank.

C.   INTERIOR ROUTES MAIN MALL CORRIDOR

All Interior Routes serving the Main Mall Corridor listed below are to be brought into compliance with the ADA by no later than July 31, 2007.

  1. Straight Ramp with no intermediate landings-Younkers Entrance.  With regard to interior routes in the main mall corridor, Partners and Development agree:

    To correct the slope of the ramp. The slope of the ramp run between elevation +100'‑0" and elevation +100'‑9‑3/4" is 1:11.4 and is too steep. Section 4.8.2 and Figure 16 provide that the maximum slope of a ramp shall be 1:12 (8.33%). Finding 40(a).

D.   PUBLIC TOILET ROOMS - MAIN MALL

All Public Toilet Rooms - Main Mall listed below are to be brought into compliance with the ADA by no later than November 1, 2007.

  1. Multiple Occupant Men’s Toilet Room.  With regard to public toilet rooms in the main mall, Partners and Development agree:

    To correct the location of the toilet seat cover dispenser which is mounted over the toilet. Section 4.27.2 requires a clear floor space of 30" wide minimum by 48" deep minimum underneath the dispenser.
  2. Multiple Occupant Women’s Toilet Rooms - East and West Wing

    With regard to public toilet rooms in the main mall, Partners and Development agree:

    To correct the location of the toilet seat cover dispenser which is mounted over the toilet. Section 4.27.2 requires a clear floor space of 30" wide minimum by 48" deep minimum underneath the dispenser.
  3. Family Room Toilet Room. With regard to the public toilet rooms in the main mall, Partners and Development agree:

    To correct the location of the toilet seat cover dispenser which is mounted over the toilet. Section 4.27.2 requires a clear floor space of 30" wide minimum by 48" deep minimum underneath the dispenser.

E.   PUBLIC TOILET ROOMS - TENANTS

All tenant toilet rooms to be brought into compliance with the ADA by no later than November 1, 2007.

  1. Scheels Athletic Store - Multiple Occupant Men’s Toilet Room.  With regard to public toilet rooms, Partners and Development agree:

    To correct the toilet paper dispenser which is located above the side grab bar. Section 4.17.3, and figure 30(d) illustrate that the toilet paper dispenser is to be placed under the side grab bar and no more than 36 inches from the corner of the stall. Finding 76.
  2. Scheels Athletic Store - Multiple Occupant Women’s Toilet Room.  With regard to public toilet rooms, Partners and Development agree:

    To correct the toilet paper dispenser which is located above the side grab bar. Section 4.17.3, and figure 30(d) illustrate that the toilet paper dispenser is to be placed under the side grab bar and no more than 36 inches from the corner of the stall. Finding 79
  3. Younkers’ - Multiple Occupant Men’s Toilet Room.  With regard to public toilet rooms, Partners and Development agree:

    To correct  the designated accessible toilet stall configuration which resembles that of an alternate stall. The toilet stall measures 45 inches wide by 70 inches long. As designed, the stall width is too narrow. Section 4.17.3, and figure 30(b) illustrate that there are two acceptable alternate stall dimensions, either a fixed width of 36 inches by a minimum length of 69 inches or a minimum width of 48 inches by a minimum length of 54 inches must be provided. Finding 81.
  4. Younkers’ - Multiple Occupant Women’s Toilet Room.  With regard to public toilet rooms, Partners and Development agree:
    1. To provide an ambulatory stall. Section 4.22.4, requires that when six or more stalls are provided, in addition to a stall complying with Section 4.17.3, at least one ambulatory stall measuring 36 inches wide with an outward swinging, self‑closing door and parallel grab bars complying with Fig. 30(d) and Section 4.26, shall be provided. Finding 83.
    2. To correct the designated accessible toilet stall which measures 45 inches wide by 70 inches long. As designed, the stall width is too narrow. Section 4.17.3, and figure 30(b) illustrate that there are two acceptable alternate stall dimensions, either a fixed width of 36 inches by a minimum length of 69 inches or a minimum width of 48 inches by a minimum length of 54 inches must be provided. Finding 85.
  5. Hy-Vee Grocery Store.

    Partners and Development agree to ensure that altered facilities and parts of facilities in the space at the Mall formerly occupied by Wal-Mart, are readily accessible to and usable by individuals with disabilities, to the maximum extent feasible. Findings 114-125.
  6. Village Inn Restaurant - Unisex Toilet Room.  With regard to public toilet rooms, Partners and Development agree:
    1. To correct the toilet room entry door which swings inward, has a closer, has a latch, and requires a hinge side approach. The area perpendicular to the door opening measures 40 inches. Consequently, the maneuvering clearance at the door is restricted by the narrowness of the area perpendicular to the door. Section 4.13.6, and figure 25(b) illustrate that when a door is to be pushed opened and approached from the hinge side, then the maneuvering clearance perpendicular to the door opening must be a minimum of 48 inches if the door has both a closer and a latch. Finding 142.
    2. To correct the toilet seat cover dispenser which is located over the toilet. There is not a 30" x 48" clear floor space underneath the dispenser as required. See Standards 4.27.2. Finding 143(a).
    3. To correct the toilet room door which swings inward and requires a front approach. The distance between the latch side of the door opening and the lavatory measures 8 inches. Consequently, the maneuvering clearance at the door is restricted by the distance between the latch side of the door opening and the lavatory. Section 4.13.6, and figure 25(a) illustrate that when a door is to be pulled open and the approach is from the front then the maneuvering clearance parallel to the door opening must be a minimum of 18 inches. Finding 146.
  7. Applebee’s - Multiple Occupant Women’s Toilet Room. With regard to public toilet rooms, Partners and Development agree:
    1. To correct the end of the rear grab bar which is located 11 inches from the side wall instead of no more than 6 inches from the sidewall as required. Standards 4.17.6 and Figure 30(a). Finding 152(a).
    2. To correct the toilet seat cover dispenser which is located adjacent to the toilet. There is not a 30" x 48" clear floor space underneath the dispenser as required. See Standards 4.27.2. Finding 154(a).
  8. Applebee’s - Multiple Occupant Men’s Toilet Room. With regard to public toilet rooms, Partners and Development agree:
    1. To correct the toilet seat cover dispenser which is adjacent to the toilet. There is not a 30" x 48" clear floor space underneath the dispenser as required. See Standards 4.27.2. Finding 155(a).
    2. To correct the end of the rear grab bar which appears to be more than 6 inches from the side wall instead of no more than 6 inches from the side wall as required. See Standards 4.17.6 and Figure 20. (a). Finding 155(b).
  9. Texas Roadhouse Restaurant - Multiple Occupant Women’s Toilet Room. With regard to public toilet rooms, Partners and Development, affiliates of GK, agree:

    To correct the distance between the center of the toilet and the adjacent wall which measures 25 inches. Section 4.17.3, and figure 30(a-1) illustrate that the center of the toilet must be placed 18 inches from the adjacent partition or wall. Finding 159.
  10. Texas Roadhouse Restaurant - Multiple Occupant Men’s Toilet Room. With regard to public toilet rooms, Partners and Development agree:

    To correct the distance between the center of the toilet and the adjacent partition which measures 24 inches. Section 4.17.3, and figure 30(a-1) illustrate that the center of the toilet must be placed 18 inches from the adjacent partition or wall. Finding 160.

F.   DRESSING AND FITTING ROOMS

All Dressing and Fitting Rooms listed below are to be brought into compliance with the ADA by no later than November 1, 2007.

  1. Victoria’s Secret - Dressing and fitting rooms. With regard to dressing and fitting rooms, Partners and Development agree:
    1. To correct the clear floor space of the room which measures 58 inches wide by 84 inches long. The narrow width of the room restricts the required clear floor space. Section 4.35.2, provides that a clear floor space allowing a person using a wheelchair to make a 180 degree turn shall be provided. Furthermore, Section 4.2.3, and figure 3(a) illustrate that the minimum diameter a person in a wheel chair needs to turn 180 degrees is 60 inches. Finding 161.
    2. To correct the movable bench which measures 29 inches wide by 52 inches long. The bench is not fixed and its width is too wide. Section 4.35.4, provides that a bench fixed to the wall along the longer dimension with a fixed measurement of 24 inches wide by 48 inches long shall be provided. Finding 162.
  1. Younkers - Juniors Section With regard to dressing and fitting rooms, Partners and Development agree:
    1. To provide a fixed bench. Section 4.35.4, provides that a bench fixed to the wall along the longer dimension with a fixed measurement of 24 inches wide by 48 inches long shall be provided. Finding 169.
    2. To correct the door hardware provided which is a door knob. Section 4.35.3, requires that dressing room doors comply with Section 4.13, of the Standards. Section 4.13.9, provides that the door hardware must be easy to grasp with one hand and does not require tight grasping, tight pinching, or twisting of the wrist to operate. Lever-operated mechanisms, push-type mechanisms, and U-shaped handles are acceptable designs. Finding 170.
  2. Younkers - Women’s Section With regard to dressing and fitting rooms, Partners and Development agree:
    1. To correct the overall configuration of the dressing room which does not comply with the Standards. The dressing room measures 60 inches wide by 72 inches long. Section 4.35.2, provides that a clear floor space allowing a person using a wheelchair to make a 180 degree turn shall be provided. Furthermore, Section 4.2.3, and figure 3(a) illustrate that the minimum diameter a person in a wheelchair needs to turn 180 degrees is 60 inches. Section 4.35.4, provides that a bench fixed to the wall along the longer dimension with a fixed measurement of 24 inches wide by 48 inches long shall be provided. Finding 171.
    2. To correct the door hardware provided which is a door knob. Section 4.35.3, requires that dressing room doors comply with Section 4.13, of the Standards. Section 4.13.9, provides that the door hardware must be easy to grasp with one hand and does not require tight grasping, tight pinching, or twisting of the wrist to operate. Lever-operated mechanisms, push-type mechanisms, and U-shaped handles are acceptable designs. Finding 172.
  3. Younkers - Men’s Section.  With regard to dressing and fitting rooms, Partners and Development agree:
    1. To correct the five‑sided shape of the dressing room which does not comply with the Standards. Section 4.35.2, provides that a clear floor space allowing a person using a wheelchair to make a 180 degree turn shall be provided. Furthermore Section 4.2.3, and figure 3(a) illustrate that the minimum diameter a person in a wheelchair needs to turn 180 degrees is 60 inches. Section 4.35.4, provides that a bench fixed to the wall along the longer dimension with a fixed measurement of 24 inches wide by 48 inches long shall be provided. Finding 173.
    2. To correct the dressing room door which has knob hardware instead of hardware that does not require tight grasping, pinching or twisting of the wrist to operate. See Standards 4.13.9. Finding 174(a).
  4. Younkers - Coordinate’s Section With regard to dressing and fitting rooms, Partners and Development agree:
    1. To provide a fixed bench. Section 4.35.4, provides that a bench fixed to the wall along the longer dimension with a fixed measurement of 24 inches wide by 48 inches long shall be provided. Finding 175.
    2. To correct the door hardware provided which is a door knob. Section 4.35.3, requires that dressing room doors comply with Section 4.13, of the Standards. Section 4.13.9, provides that the door hardware must be easy to grasp with one hand and does not require tight grasping, tight pinching, or twisting of the wrist to operate. Lever-operated mechanisms, push-type mechanisms, and U-shaped handles are acceptable designs. Finding 17

V.    Implementation and Enforcement of the Settlement Agreement

  1. The Department may review compliance with this Agreement at any time.
  2. Failure by the United States to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein shall not be construed as a waiver of its right to do so with regard to other deadlines and provisions of this Agreement. Further, if any term 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.
  3. CSMA shall pay to the United States a civil penalty in the amount of Forty Thousand Dollars ($40,000).
  4. (a)  In the event that Partners and Development fails to comply in a timely fashion with any requirement in paragraphs 13 through 33 of this Agreement, without obtaining sufficient advance written agreement with the Department as to a temporary modification of the relevant terms of the Agreement, the Department shall notify Partners and Development in writing of such failure to comply. Partners and Development shall have thirty days to respond to such notice and/or cure such non-compliance. If Partners and Development are unable by any means to obtain compliance for an obligation stated in paragraph 13 through 33 of this Agreement with respect to a tenant leased premises, Partners and Development shall provide to the Department documentation reasonably establishing such efforts. The Department and Partners and Development shall negotiate in good faith in an attempt to resolve any dispute relating thereto before the Department seeks relief as provided in paragraph 37(b).

    (b)  The Department may review compliance with this Agreement at any  time and may enforce this Agreement if the United States believes that it or any requirement thereof has been violated. The United States may bring a civil action in federal district court to enforce this Agreement or title III, and may in such action seek any relief  available under law.
  5. Any remediation as required by paragraphs 13 through 33 of this Agreement that does not comply with the Standards will constitute a violation of this Agreement.
  6. All provisions of this Agreement shall be binding on Partners and Development and its successors in interest in ownership or operation of College Square Mall, and CSMA has a duty to so notify all such successors in interest and the United States acknowledges and agrees that, by agreeing to the Side Letter (dated December 2, 2004, between GK Development, Inc. and College Square Mall Associates, LLC), CSMA has fulfilled such duty.
  7. This Agreement is limited to the facts set forth in it. The Agreement does not purport to remedy any other potential violations of the ADA or any other federal law, nor is it intended to certify that no other such violations exist (other than the findings of alleged non-compliance set forth in Exhibit 1). Compliance with this Agreement does not necessarily render Partners or Development or College Square Mall to be in full compliance with the ADA. This Agreement is not intended to certify or signify such compliance, or a Department finding of compliance, and it cannot be used in any proceeding to signify such.  Notwithstanding the foregoing or any other term of this Agreement, compliance with the Agreement by CSMA and/or by Partners and Development shall constitute compliance with the ADA with respect to the Findings of alleged non‑compliance set forth in Exhibit 1.
  8. This Agreement does not affect the continuing responsibility of any public accommodation which owns, operates, leases or leases to a place of public accommodation at College Square Mall, to comply with all aspects of the ADA.
  9. This Agreement is a compromise of claims, and it is not intended to reflect any legal interpretations of any provisions of the ADA by the Department, and it cannot be used in any proceeding to demonstrate such legal interpretations (except in a proceeding to enforce this Agreement).
  10. This Agreement and any attachments hereto constitute 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, shall be enforceable.
  11. The parties will provide a copy of this Agreement in compliance with the Freedom of Information Act. This document may be posted on the Department’s web site.
  12. The “Effective Date” of this Agreement is the date of the last signature below.
  13. The parties agree, that where reduced-sized blueprints, drawings and plans are attached hereto as attachments, they are merely representative of full-sized blueprints, drawings, and plans, copies of which are to be maintained by each party in the event of a discrepancy between a full‑sized blueprint, drawing, or plan and a reduced-sized version of the same document, the full-sized version is to be considered authoritative.
  14. A signer of 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.
  15. Notices of any kind required or contemplated under this Agreement shall be made by mailing the same via U.S. Postal Service, first class certified mail, return receipt requested, and notice shall be deemed given on the date of receipt of the same. Notice to the Department shall be mailed to: 401 First Street SE, Suite 400, Cedar Rapids, IA 52401-1825. Notices to CSMA shall be mailed to Gerry V. Curciarello, College Square Mall Associates, LLC, c/o L&H Real Estate Group, 10 South Riverside Plaza, Suite 1830, Chicago, IL 60606, with a copy to Neil G. Wolf, Wildman, Harrold, Allen & Dixon LLP, 225 West Wacker Drive, Chicago, Illinois 60606-1229.  Notices to Partners or Development shall be mailed to Garo Kholamian, GK Development, Inc., 303 East Main Street, Suite 201, Barrington, IL  60010.
  16. Deadlines listed in this Agreement which fall on weekends or holidays will be extended to the next business day.
  17. The provisions of this agreement must be complied with not later than three years from the date of the last signature below.

Agreed and Consented to:

For the United States: For College Square Mall Associates, LLC:
By: Iowa Malls Financing Corp., its Manager

By._________________________________

By.__________________________________

Matt M. Dummermuth
United States Attorney
401 First Street SE, Suite 400
Cedar Rapids, IA 52401 1825
Phone: (319) 363-6333
Fax: (319) 363 1990



GERRY V. CURCIARELLO
L&H Real Estate Group
10 South Riverside Plaza
Suite 1830
Chicago, IL 60606 1229
Phone: (312) 780 1933
Fax: (312) 780-1973
gcurciarello@lhreg.com

                 June 29 2007                 
Date
___________________________________
Date

For College Square Mall Partners, LLC By: GK Development, Inc., its Manager

By.____________________________________

GARO KHOLAMIAN, its President GK Development, Inc. 303 East Main Street Suite 201 Barrington, IL 60010

___________________________________
Date

For College Square Mall Development, LLC: By: GK Development, Inc., its Manager

By._________________________________________

GARO KHOLAMIAN, its President GK Development, Inc.

__________________________________
Date

 






 

July 2, 2007