THE UNITED STATES OF AMERICA
THE CITY OF MEMPHIS, TENNESSEE
UNDER THE AMERICANS WITH DISABILITIES ACT
1. The parties to this Settlement Agreement (“Agreement”) are the United States of America and the City of Memphis, Tennessee (“Memphis”), a public entity that owns Liberty Bowl Memorial Stadium (“Liberty Bowl”) located at 335 S. Hollywood Street, Memphis, Tennessee.
2. This matter was initiated as a compliance review by the United States Department of Justice (“Department” or “United States”) of Memphis concerning the accessibility of Memphis’s facilities, services, programs, and activities under Title II of the Americans with Disabilities Act of 1990 (“ADA” and “Title II”), 42 U.S.C. § 12131-12134, and its implementing regulation, 28 C.F.R. pt. 35. This Agreement applies only to the Liberty Bowl as described in Paragraph 3 below.
3. The Liberty Bowl is situated at the Mid-South Fairgrounds in Memphis, Tennessee, and predominately hosts college football games and events, including the AutoZone Liberty Bowl, Southern Heritage Classic, and the University of Memphis Tigers’ home games. For purposes of this Agreement, the Liberty Bowl consists of the stadium, all elements within the stadium, and all site arrival points, including parking, passenger loading zones, bus stops, and tail-gating areas (e.g., Tiger Lane) adjacent to the stadium and used in conjunction with events held at the Stadium.
4. The United States and Memphis agree that it is in the parties’ best interests, and in the public interest, to resolve these allegations without litigation.
5. In consideration of, and consistent with, the terms of this Agreement, the Attorney General agrees to refrain from filing a civil lawsuit concerning the items identified in Paragraphs 12-15, 19-28, and Exhibit A relating to the Liberty Bowl, except as provided in the section entitled “Reporting, Implementation, and Enforcement.”
6. Memphis, an incorporated municipality located in Shelby County, Tennessee, is a “public entity” within the meaning of the ADA, 42 U.S.C. § 12131, and 28 C.F.R. § 35.104, and is therefore subject to Title II of the ADA and its implementing regulation.
7. Pursuant to Title II, no qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such public entity. 42 U.S.C. § 12132; 28 C.F.R. § 35.130.
8. Pursuant to Title II and its implementing regulation, and as applicable here, no qualified individual with a disability shall, because a public entity’s facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by any public entity. 42 U.S.C. § 12134; 28 C.F.R. § 35.149.
9. Pursuant to Title II and its implementing regulation, and as applicable here, a public entity is required to operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. 42 U.S.C. § 12134; 28 C.F.R. § 35.150.
10. Pursuant to Title II and its implementing regulation, and as applicable here, if an alteration was commenced after July 26, 1992, each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities. 42 U.S.C. § 12134; 28 C.F.R. § 35.151(b).
11. The Department is authorized under 28 C.F.R. Part 35, Subpart F, to determine Memphis’ compliance with Title II of the ADA and the Title II’s 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.
III. TERMS OF THE AGREEMENT
A. Alterations, Additions, and Modifications
12. Any alterations or additions, as described in 28 C.F.R. §§ 35.150 and .151, completed at the Liberty Bowl after the Effective Date of this Agreement (e.g., renovation of suites, press boxes, gates, toilet rooms, etc.), and modifications made pursuant to this Agreement, will comply in all respects with Title II of the ADA, 42 U.S.C. §§ 12131-12134, its implementing regulation, 28 C.F.R. pt. 35, and the 2010 ADA Standards for Accessible Design, consisting of the requirements contained in 28 C.F.R. § 35.151 and the 2004 ADA Accessibility Guidelines at 36 C.F.R. part 1191, Appendices B and D (collectively, “2010 Standards”).
13. By September 1, 2013, Memphis will modify the Liberty Bowl pursuant to Paragraphs 19 through 28 below. Within one (1) year of the Effective Date of this Agreement, Memphis will modify the Liberty Bowl to remedy the violations identified in Exhibit A. The modifications and remediation will comply with Paragraph 12 of this Agreement.
14. In the event that Memphis has already undertaken an alteration, addition, or other modification to any element identified in Exhibit A or otherwise in the Liberty Bowl after January 26, 1992 and prior to the Effective Date of this Agreement, Memphis will submit, within six (6) months, a written report to the Department pursuant to Paragraph 29 below summarizing the actions taken and providing evidence establishing each individual element’s compliance with the applicable architectural standard as permitted by 28 C.F.R. § 35.151(c) and its Appendix, copied below:
|Compliance Date for New Construction or Alterations||Applicable Standards|
|Before September 15, 2010||1991 Standards or UFAS|
|On or after September 15, 2010, and before March 15, 2012||1991 Standards, UFAS, or 2010 Standards|
|On or after March 15, 2012||2010 Standards|
15. Related to the Liberty Bowl, Memphis will ensure that no qualified individual with a disability will be excluded from participation in, or be denied the benefits of its services, programs, or activities, or be subjected to discrimination. 42 U.S.C. § 12134; 28 C.F.R. § 35.149.
B. Independent Licensed Architect
16. Memphis will retain an Independent Licensed Architect (“ILA”) knowledgeable about the architectural accessibility requirements of the ADA. This ILA, paid by Memphis without regard to outcome and pre-approved by the United States, must certify compliance with the applicable standard pursuant to 28 C.F.R. § 35.151(c) and the Appendix to 28 C.F.R. § 35.151(c) (copied in Paragraph 14 above) for (a) all of the modifications identified in Paragraphs 19 through 28 and the remediation of the violations identified in Exhibit A of this Agreement and (b) any other alteration, addition, or modification made by Memphis to the Liberty Bowl during the term of this Agreement.
17. In issuing certifications pursuant to this Agreement, the ILA will prepare reports with photographs identifying that the violation has been remediated and will use the certification form at Exhibit B. A separate report with pictures and a separate certification form will be used for the remediation of each violation identified in Exhibit A and any element that has been or will be altered pursuant to this Agreement. The ILA will be considered a neutral inspector for purposes of issuing certifications of compliance and will be available to the United States, with notice to Memphis, to discuss findings in the reports, photographs, and certifications. The United States may also, in its discretion and upon notice to Memphis, provide technical assistance to the ILA throughout the term of this agreement.
18. Memphis will submit ILA certifications along with its reporting requirements as set forth in this Agreement.
C. Wheelchair Spaces
19. Within one (1) year from the Effective Date of this Agreement, Memphis will provide wheelchair spaces and companion seats at the Liberty Bowl that comply with Title II, its implementing regulation, the 2010 Standards, and as set forth in Paragraphs 20 through 28 below.
i. Number of Wheelchair Spaces, Horizontal Dispersal, Vertical Dispersal, and Integral Part
20. Memphis will install two hundred and thirty-four (234) wheelchair spaces and two hundred and thirty-four (234) companion seats surrounding the entire perimeter of current Row 25 of the Liberty Bowl that comply with the 2010 Standards §§ 221 and 802 and Exhibit C (consisting of drawings entitled Liberty Bowl Memorial Stadium Accessibility Enhancements, Overall Plan, A-2).
21. Memphis will install an additional forty-eight (48) wheelchair spaces and forty-eight (48) companion seats complying with 2010 Standards §§221 and 802, Exhibit C, and as described here:
a. Twelve (12) wheelchair spaces and twelve (12) companion seats will be located in the South seating upper concourse on the Press Box side (Home Side) in Sections 102 and 103;
b. Twelve (12) wheelchair spaces and twelve (12) companion seats will be located in the South seating upper concourse on the Press Box side (Home Side) in Sections 105 and 106;
c. Twelve (12) wheelchair spaces and twelve (12) companion seats will be located in the North seating upper concourse on the Suites side (Visitor Side) in Sections 118 and 119;
d. Twelve (12) wheelchair spaces and twelve (12) companion seats will be located in the North seating upper concourse on the Suites side (Visitor Side) in Sections 121 and 122.
See Exhibit C.
22. Memphis will install additional wheelchair spaces and companion seating, as required by Paragraph 12 of this Agreement and the 2010 Standards, in renovated, added, or altered seating areas, such as the suites and press boxes.
ii. Wheelchair Spaces
23. Wheelchair spaces will comply with 2010 Standards § 802.1.
a. The floor or ground surface of wheelchair spaces will comply with 2010 Standards § 302, including the requirement that such floor or ground surface is stable, firm, and slip resistant. Changes in level are not permitted.
b. A single wheelchair space will be a minimum of 36 inches wide. Where two adjacent wheelchair spaces are provided, each wheelchair space will be a minimum of 33 inches wide.
c. If a wheelchair space can be entered from the front or rear, then the wheelchair space will be a minimum of 48 inches deep. If a wheelchair space can be entered only from the side, then the wheelchair space will be a minimum of 60 inches deep.
d. Wheelchair spaces must adjoin accessible routes. The accessible routes will not overlap wheelchair spaces.
e. Wheelchair spaces will not overlap circulation paths.
iii Lines of Sight
24. Lines of sight to the playing field and performance area for spectators in wheelchair spaces will comply with 2010 Standards § 802.2.2 for lines of sight over standing spectators.
iv. Companion Seats
25. Companion seats will comply with 2010 Standards § 802.3.
26. Companion seats will be located to provide shoulder alignment with adjacent wheelchair spaces. The shoulder alignment point of the wheelchair space will be measured 36 inches from the front of the wheelchair space. The floor surface of the companion seat will be at the same elevation as the floor surface of the wheelchair space.
27. Companion seats will be at least equivalent in size, quality, comfort, and amenities to the seating in the immediate area (e.g., companion seating near the chair-back seats will have chair-backs). Companion seats may be movable.
v. Routes and Circulation Paths to Wheelchair Spaces
28. Changes in level from accessible routes and circulation paths to wheelchair spaces will comply with 2010 Standards § 303, including the following:
a. Abrupt changes in level up to ¼ inch high are permitted;
b. Changes in level between ¼ inch high minimum and ½ inch high maximum will be beveled with a slope not steeper than 1:2.
c. A change in level of ½ inch may be ¼ inch vertical plus ¼ inch beveled. However, the combined change in level may not exceed ½ inch from accessible routes and circulation paths to wheelchair spaces.
IV. REPORTING, IMPLEMENTATION, AND ENFORCEMENT
29. Within six (6) months of the Effective Date of this agreement, and annually thereafter, Memphis will submit written reports to the Department summarizing its actions pursuant to this Agreement. Reports will include detailed photographs showing measurements, architectural plans, ILA certifications, work orders, notices published in the newspaper, etc.
30. Throughout the term of this Agreement, consistent with 28 C.F.R. § 35.133(a), Memphis will maintain the accessibility of its programs, activities, services, facilities, and equipment, and will take whatever actions are necessary to do so, such as routine testing of accessibility equipment and routine accessibility audits of its programs and facilities. However, there may be isolated or temporary interruptions in service or access due to maintenance or repairs. 28 C.F.R. § 35.133(b).
31. If at any time Memphis 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.
32. The Department may review compliance with this Agreement at any time. If the Department believes that Memphis has failed to comply in a timely manner with any requirement of this Agreement, the Department will notify Memphis in writing and it will attempt to resolve the issue in good faith. If the Department is unable to reach a satisfactory resolution of the issue within 30 days of the date it notifies Memphis, it may institute a civil action in federal district court to enforce the terms of this Agreement or to enforce Title II.
33. For purposes of Paragraph 32, it is a violation of this Agreement for Memphis to fail to comply in a timely manner with any of its requirements without obtaining advance written agreement with the Department for an extension of the relevant time frame imposed by the Agreement.
34. Failure by the Department to enforce any provision of this Agreement will not be construed as a waiver of the Department's right to enforce other provisions of this Agreement.
35. This Agreement is a public document. A copy of this Agreement will be made available to any person by Memphis on request.
36. 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 Exhibits, 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 Memphis’s continuing responsibility to comply with all aspects of the ADA.
37. All terms used in this agreement that are defined in the Title II regulation, 28 C.F.R. pt. 35 and the 2010 Standards will have the definition and meaning used in the Title II regulation and the 2010 Standards. Similarly, to the extent the 1991 Standards may apply to a particular element subject to a safe harbor because the element was constructed, altered, added, or modified before March 15, 2012, the definitions and meanings in the 1991 Standards, as applicable, will apply.
38. Each of the parties to this Agreement will bear its own costs and expenses associated with, or arising from, its performance of obligations under this Agreement.
39. All items sent to the United States will be sent by electronic mail or by common carrier Federal Express, UPS, or DHL and addressed as follows: Disability Rights Section, Attn: William Lynch, Trial Attorney, DJ# 204-72-49, U.S. Department of Justice, Disability Rights Section, 1425 New York Avenue, N.W., Fourth Floor, Washington, D.C. 20005.
40. This Agreement will remain in effect for three (3) years.
41. The person signing for Memphis represents that he or she is authorized to bind Memphis to this Agreement.
42. The effective date of this Agreement (“Effective Date”) is the date of the last signature below.
Executed this 24th day of
October January, 201 23.
For the United States of America:
For the United States of America:
Edward L. Stanton, III
United States Attorney
Thomas E. Perez
Assistant Attorney General
Eve L. Hill, Senior Counselor
to the Assistant Attorney General
Civil Rights Division
Gregory B. Friel, Acting Chief
Kathleen P. Wolfe,
Special Litigation Counsel
Dov Lutzker, Special Counsel
Kevin J. Kijewski, Deputy Chief
/s/ William F. Lynch, January 28, 2013
William F. Lynch, Trial Attorney
Mary J. Adams, Senior Architect
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) 305-2008 (Lynch)
(202) 305-9775 (Fax)
For the City of Memphis, Tennessee:
/s/ A.C. Wharton, Jr.
Mayor A. C. Wharton, Jr.
City of Memphis
125 N. Main Street, Room 700
Memphis, Tennessee 38103