SETTLEMENT AGREEMENT BETWEEN

THE UNITED STATES OF AMERICA

AND

THE CITY OF MEMPHIS, TENNESSEE

UNDER THE AMERICANS WITH DISABILITIES ACT

DJ 204-72-49

 

 

 

BACKGROUND

 

   SCOPE OF THE INVESTIGATION

 

            The United States Department of Justice (Department) initiated this matter as a compliance review of the City of Memphis, Tennessee (City) 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.  Because the City receives financial assistance from the Department of Justice, the review 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 review was conducted by the Disability Rights Section of the Department's Civil Rights Division and focused on the City'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 City'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 City'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:

 

        Cdelivery of services, programs, or activities in alternate ways, including, for example, redesign of equipment, reassignment of services, assignment of aides, home visits, or other methods of compliance or, if these methods are not effective in making the programs accessible,

 

        Cphysical changes to buildings (required to have been made by January 26, 1995), in accordance with the Department's title II regulation, 28 C.F.R. § 35.151, and the ADA Standards for Accessible Design (Standards), 28 C.F.R. pt. 36, App. A, or the Uniform Federal Accessibility Standards (UFAS), 41 C.F.R. § 101-19.6, App. A.

 

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 direct access via TTY (text telephone) or computer-to-telephone emergency services, including 9-1-1 services, for persons who use TTY's and computer modems, 28 C.F.R. § 35.162;

 

C           to provide information for interested persons with disabilities concerning the existence and location of the City'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 facilities,  which because construction or alterations commenced after January 26, 1992 must comply with the ADA's new construction or alterations requirements:

 

New Construction:  North Branch Library, Chester Anderson Fire Training Campus, Lichterman Nature Center, Bert Ferguson Community Center, Northeast Precinct, Cordova Branch Library, Memphis Central Library, Riverside / Martin Luther King Golf Course.

 

Alterations:  Cook Convention Center, The Pyramid, Court Square, Ed Rice (Frayser) Community Center, Ed Rice Pool, Ed Rice / Frayser Tennis Courts, Memphis Botanic Garden, Galloway Golf Course, Randolph Branch Library, The Pink Palace Mansion, Museum, and Planetarium, C. W. Davis Community Center and Park, Lewis Davis Park, Liberty Bowl, Orange Mound Police Field Office.

 

            The Department's program access review covered those of the City's programs, services, and activities that operate in the following facilities:

 

City Hall, Massey House - City Beautiful Program, Mallory - Neely House, Downtown Vehicle Inspection Station, Josephine K. Lewis Center for Senior Citizens, Mud Island, Fire Station No. 1, Overton Park, Memphis Zoo, Brooks Museum of Art, Fire Prevention Bureau, Fire Station # 19, Fire Station # 6, Fire Station # 15, Fire Station # 30, North Frasier Community Center, Frayser Recreational Association, Rodney Baber Park 1 East, Rodney Baber Park 1 West, John D. Holt Police Training Academy, Hollywood Community Center, Audubon Golf Course, Audubon Park, North Police Precinct, Raleigh Branch Library, Raleigh Tennis Center, Raleigh Frayser Senior Center, Fire Station #46, Fire Station #47, Fire Station #48, Fire Station #49, Fire Station 23, Fire Station 17, Alzheimer Day Care Center, Kennedy Park, Gaisman Community Center, Fire Station # 34, McFarland Community Center, Fox Meadows Golf Club, Cherokee Public Library, Youth Activities, Humane Shelter, Mid-South Coliseum, Charles E. Powell Community Center, Whitehaven Golf Course, Whitehaven Community Center, Goodwill Homes Senior Center, South Police Precinct, Pine Hill Golf Course, Skinner Handicapped Center, Memphis Senior Citizen Center.

 

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

 

JURISDICTION

 

1.         The ADA applies to the City because it 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 the City 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 Department is authorized under 28 C.F.R. Part 42, Subpart G, to determine the City'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. §§ 42.530 and 42.108-110, to suspend or terminate financial assistance to the City provided by the Department of Justice should the Department fail to secure voluntary compliance pursuant to Subpart G or to bring a civil suit to enforce the rights of the United States under applicable federal, state, or local law.

 

4.         The parties to this Agreement are the United States of America and the City of Memphis, Tennessee.

 

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 CITY

 

$          The City has conducted a Self-Evaluation and completed a Transition Plan as required by the ADA.  The Transition Plan was completed in June, 2002, at which time public comment was requested. 

 

$          The City has a designated ADA Coordinator.  Grievances are brought to the attention of the Coordinator who then works towards a resolution of the matter.

 

$          The City has procedures in place for receiving and acting upon the input of citizens with disabilities regarding the accessibility of its sidewalks.  The City's policy is to provide an accessible route within one year of when a request is made.  The City has spent over $15 million on capital improvements in order to make sidewalks accessible to people with disabilities.

 

$          The City is currently testing its official website, www.memphistn.gov, through a Section 508 and "Bobby Approved" verification system.

 

$          Assistive listening devices are provided for City Council meetings.

 

$          TTYs are built into the City's 9-1-1 call system.  Dispatchers at each 9-1-1 call station are able to respond to TTY calls.

 

$          Visual alarms have been installed in each public room and at intervals along each hallway in numerous City facilities, including City Hall.

 

$          Several libraries including Cherokee Branch has the capacity of rendering large prints on computers for people who are blind or have low vision.

 

$          Numerous parks including Lewis Davis, C. W. Davis, and Bethel LaBelle have accessible playground equipment.

 

 

REMEDIAL ACTION

 

NOTIFICATION

 

7.         Within two months of the effective date of this Agreement, the City 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 City; 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.

 

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

 

 

GENERAL EFFECTIVE COMMUNICATION PROVISIONS

 

9.         Within 9 months of the effective date of this Agreement, the City 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.).

 

10.       The City will take steps to ensure that all appropriate employees are trained and practiced in using the Tennessee Relay Service to make and receive calls.

 

 

               9-1-1 DISPATCH

 

11.       Within three months of the effective date of this Agreement, the City will develop procedures for answering 9-1-1 calls that include training all call takers to use a TTY to take 9-1-1 calls, to recognize a "silent" open line as a potential TTY call and respond by TTY, and to ensure that TTY calls are answered as quickly as other calls received.

 

12.       The City will monitor its incoming 9-1-1 TTY calls to ensure they are answered as quickly and accurately as other calls received.

 

13.       The City will incorporate correct TTY call-taking procedures into 9-1-1 call takers' performance evaluations and will amend its personnel policies to include written disciplinary procedures for call takers who fail to perform TTY call-taking consistent with the training and procedures.  The City will implement and report to the Department its evaluation and procedures within three months of the effective date of this Agreement.

 

 

              LAW ENFORCEMENT AND EFFECTIVE COMMUNICATION

 

14.       Within three months of the effective date of this Agreement, the City will adapt for its own use and implement the City of Memphis Police Department's Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing (Attachment C) and distribute to all police department officers the Guide for Law Enforcement Officers When in Contact with People Who are Deaf or Hard of Hearing (Attachment D).

 

15.       Within six months of the effective date of this Agreement, the City 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).

 

16.       The City represents that phones are not currently available to the public at police stations and substations.  Within three months of the event that phones are made available to the public at one or more police station or substation, the City will ensure that each such police 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.  If applicable, and where inmate telephone calls are time-limited, the City 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.

 

 

  EMPLOYMENT

 

17.       Within three months of the effective date of this Agreement, the City 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 the City:

 

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 the City's business.  If an applicant or an employee requests a reasonable accommodation and the individual's disability and need for the accommodation are not readily apparent or otherwise known, the City 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 the City's selection criteria have the effect of disqualifying an individual because of disability, those criteria will be job-related and consistent with business necessity.

 

 

EMERGENCY MANAGEMENT PROCEDURES AND POLICIES

 

18.       If the City contracts with another entity, such as the American Red Cross or another local government, to provide its emergency preparedness plans and emergency response services, the City will ensure that the other entity complies with the following provisions on its behalf.

 

19.       Within 9 months of the effective date of this Agreement, the City 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).

 

20.       Within 9 months of the effective date of this Agreement, the City 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 City 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 City plan should address accessible transportation needs for persons with disabilities.

 

21.       Within 9 months of the effective date of this Agreement, the City 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.

 

22.       Within 9 months of the effective date of this Agreement, the City 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).

 

23.       Some of the of the City's emergency shelters may be owned or operated by other public entities subject to title II or by public accommodations subject to title III and, as such, are subject to the obligation to provide program access or remove barriers to accessibility under the ADA.  This Agreement does not limit such future enforcement action against the owners or operators of these facilities by any person or entity, including the Department.

 

24.       To the extent that the City provides opportunities for post-emergency temporary housing to its residents, within 9 months of the effective date of this Agreement, it will develop, implement, and report to the Department its plans for providing equivalent opportunities for accessible post-emergency temporary housing to persons with disabilities.  Within one year of the effective date of this Agreement, the City will ensure that information it makes available regarding temporary housing includes information on 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

 

25.       Within six months of the effective date of this Agreement, the City 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.  Filling a pothole is not considered an alteration for the purposes of this Agreement.  Within ten years of the effective date of this Agreement, the City 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.       The City will continue to 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 six months of the effective date of this Agreement, the City 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 ten years of the effective date of this Agreement, the City 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.       The City will continue to 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.

 

 

WEB-BASED SERVICES AND PROGRAMS

 

29.       Within 1 month of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, the City 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 City (Internet Personnel) the technical assistance document, "Accessibility of State and Local Government Websites to People with Disabilities," which is Attachment H to this Agreement (it is also available at www.ada.gov/websites2.htm).

 

30.       It is noted that the City already has made efforts to ensure that its website(s) is accessible to individuals with disabilities.  Within six months of the effective date of this Agreement, and throughout the life of the Agreement, the City will do or continue to 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 people with disabilities to test its pages for ease of use.

 

 

PHYSICAL CHANGES TO FACILITIES

 

31.       The elements or features of the City's facilities that do not comply with the Standards, including those listed in Attachments I, J, K, and L, prevent persons with disabilities from fully and equally enjoying the City'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.

 

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

 

33.       Within 12 months of the effective date of this Agreement, the City 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.

 

34.       Newly Constructed Facilities:  In order to ensure that the following spaces and elements in City facilities, for which construction was commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the City will take the actions listed in Attachment I.

 

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

 

36.       Program Access in City Existing Facilities:  In order to ensure that each of the City'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, the City will take the actions listed in Attachment K.

 

 

   PROGRAM MODIFICATIONS

 

37.       Access to City Programs Housed in Others' Facilities:  In order to ensure that the City's programs, services, and activities that are the subject of this Agreement and that are operated by the City at facilities owned or controlled by other entities, when viewed in its entirety, are readily accessible to and usable by persons with mobility impairments, the City will take the actions listed in Attachment L.

                       

 

                                    PROGRAMS FOR VICTIMS OF DOMESTIC ABUSE

 

38.       If the City owns or operates any Domestic Violence Programs, within nine months of the effective date of this Agreement, it will do the following:

 

A.        Whatever written information is provided regarding its Domestic Violence Programs will also be provided in alternate formats, including Braille, large print, audio recording, and electronic formats, upon request.

 

B.        Enter into contracts or make other arrangements with qualified sign language and oral interpreters to ensure their availability when required for effective communication with persons who are deaf or hard of hearing.  The type of aid that will be required for effective communication will depend on the individual's usual method of communication, and the nature, importance, and duration of the communication at issue.  In many circumstances, oral communication supplemented by gestures and visual aids, an exchange of written notes, use of a computer or typewriter, or use of an assistive listening device may be effective.  In other circumstances, qualified sign language or oral interpreters are needed to communicate effectively with persons who are deaf or hard of hearing.  The more lengthy, complex, and important the communication, the more likely it is that a qualified interpreter will be required for effective communication with a person whose primary means of communication is sign language or speech reading. 

 

C.        If the City's Domestic Violence Programs operate a hotline to take telephone calls of an emergency nature, the City shall ensure that it provides equivalent service for persons who use TTY's, including providing direct-connection service for TTY users with hotline operators, without requiring TTY users to call through a third party operator, such as through the state or local Telecommunication Relay Services.  The City will obtain the necessary equipment, establish the written procedures, and provide the training necessary to ensure effective communication by Hotline staff with direct-connection callers using TTY's, as well as the training necessary to respond to callers who use the Telecommunication Relay Services.

 

D.        Survey facilities used as shelters or designated as potential shelters or for counseling, job training, education, clothing or household provisioning, or other aspects of Domestic Violence Programs to ensure that adequate arrangements are available for potential clients and family members with disabilities, including adults and children who have mobility impairments, who are blind or have low vision, and who are deaf or hard of hearing.  Within one year of the effective date of this Agreement, modify each such facility to remove the barriers or, alternatively, procure another, fully accessible facility to ensure that potential clients and family members with disabilities have integrated options when participating in a sheltering or other Domestic Violence program.  Nothing in this Agreement requires any modifications that would compromise the confidentiality of a shelter or counseling center.  Until there is a sufficient stock of accessible housing and other facilities within the sheltering program, the City will implement written procedures ensuring that it has identified temporary accessible housing (such as accessible hotel rooms within the community or in nearby communities) and other facilities that could be used if people with disabilities need sheltering or inservice access to a Domestic Violence Program.  The cost to potential clients of being housed or otherwise served in alternate accessible facilities shall not exceed any costs normally attributed to clients of the City's Domestic Violence Programs.

 

E.         Implement written procedures and modify, as appropriate, eligibility criteria, to ensure that no person with a disability is turned away from a shelter or otherwise denied the opportunity to benefit from the services of the City's Domestic Violence Programs on the basis of disability.

 

F.         Implement written procedures to ensure that persons with disabilities who use service animals are not denied or discouraged from participating in Domestic Violence Programs, are able to be housed and served in an integrated environment, and are not separated from their service animals while participating in the City's Domestic Violence Programs even if pets are normally not permitted in the facilities where such programs are conducted.  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.  If the City's Domestic Violence Programs require clients to make any payments for shelter or other services they provide, clients shall not be required to make additional payments because they or their family members use service animals.

 

G.        Implement written procedures to ensure that reasonable modifications are made to the City's Domestic Violence Programs when necessary for a client or family member with a disability to participate in such Programs, unless doing so would fundamentally alter the nature of the program.

 

H.        Implement written policies to ensure that despite any "drug-free" policy of the City's Domestic Violence Programs, persons with disabilities who use medication prescribed for their use are able to continue using such medication while participating in such Programs or being housed in a shelter.

 

39.       If the City contracts with another entity to provide or operate programs that provide shelter, counseling, or other assistance or supportive services to victims of domestic violence or abuse and their families (hereafter referred to as "Domestic Violence Programs"),  it will ensure that the other entity complies with the preceding provisions on its behalf.  If that entity will not comply with the following provisions, the City will nonetheless take all necessary steps to ensure that its program is accessible to persons with disabilities.

 

40.       Some of the of the City's shelters may be owned or operated by other public entities subject to title II or by public accommodations subject to title III and, as such, are subject to the obligation to provide program access or remove barriers to accessibility under the ADA.  This Agreement does not limit such future enforcement action against the owners or operators of these facilities by any person or entity, including the Department.

 

41.       This Agreement shall not be construed to require the City to divulge confidential information relating to the location or existence of any Domestic Violence Programs, beyond what is otherwise required by applicable law or what is necessary for the Department to effectively enforce this Agreement.

 

 

MISCELLANEOUS PROVISIONS

 

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

 

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

 

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

 

45.       Within 18 months of the effective date of this Agreement, the City will deliver its training program to all City employees who have direct contact with members of the public.  At the end of that period, the City 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

 

46.       If at any time the City 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.

 

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

 

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

 

49.       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.

 

50.       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 City or the Department on request.

 

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

 

52.       This Agreement will remain in effect for 4 years and 6 months, except that paragraphs 25-28 shall remain in effect for ten years and six months, or until six months after the actions in paragraphs 25 and 27 have been completed, whichever occurs first.

 

53.       The person signing for the City represents that he or she is authorized to bind the City to this Agreement.

 

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

 

 

 

 For the City:

 

 

 

 

 

By: ____________________________

WILLIE W. HERENTON, Mayor

 

 

 

 

 

 

 

 

 

 

 

 

Date:  ___________________________ 

     For the United States:

 

     BRADLEY J. SCHLOZMAN,

     Acting Assistant Attorney General for Civil Rights

 

 

By:_____________________________                    

     JOHN L. WODATCH, Chief

     JEANINE WORDEN, Deputy Chief

     MARY LOU MOBLEY, Senior Counsel

     JOSHUA MENDELSOHN, Supervisory Attorney

     MARK J. MAZZ, Architect

     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:  ______________________________