SETTLEMENT AGREEMENT BETWEEN

 

THE UNITED STATES OF AMERICA

 

AND

 

AMARILLO, TEXAS

 

UNDER THE AMERICANS WITH DISABILITIES ACT

 

DJ 204-73-176

 

 

 

BACKGROUND

 

                                                SCOPE OF THE INVESTIGATION

 

            The United States Department of Justice (Department) initiated this matter as a compliance review of Amarillo, Texas (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 City was selected for this compliance review because of its size and because there are a significant number of people with disabilities who reside in the City.  The City was not selected because of any complaint or any evidence that it discriminates against people with disabilities.

 

            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:

 

        C       delivery 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,

 

        C       physical 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:  Amarillo Tennis Center, Northwest Branch Library,  Fire Administration Building,  Fire Station No. 7, Bus Transfer Station, and the Civic Center.

 

            The Department's program access review covered those of the City's programs, services, and activities that operate in the following facilities:  Southwest Swimming Pool, Southeast Pool, East Branch Library, Animal Control Office, Southwest Ball Complex, Amarillo Zoo, Bones Hooks Pool, North Branch Library, North Lake Park, Thompson Pool, Thompson Park, Bivens Building, Old Jail, Police Department, South East Park, South East Park Complex, City Hall, WIC Building, Central Library, Municipal Courts, Facilities Administration Building, Martin Park, Ross Rogers Golf Course, and Comanche Trail Golf Course.

            The Department reviewed the City's policies and procedures regarding 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 Amarillo, Texas.

 

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 THE CITY

 

7.         The City has maintained ADA postings on City bulletin boards since the ADA's inception.  The City distributes the Notice Under the Americans With Disabilities Act (Attachment A) to all agency heads; publishes the Notice; posts the Notice on its Internet Home Page; and posts copies of it in conspicuous locations in its public buildings.

 

8.         The City has written procedures for providing information to interested persons with disabilities concerning the existence and location of the City's accessible programs, services, and activities.

 

9.         The City has designated an ADA Coordinator.

 

10.       The City completed a Title II Self-evaluation in January 1992.

 

11.       The City completed a Transition Plan in February 1992.

 

12.       The City has implemented an ADA Grievance Procedure which is distributed to all agency heads, and posted in conspicuous locations in each of its public buildings.  The Procedure is updated to regularly reflect the changes in contact information.  Copies are provided to any person upon request.

 

13.       The City will continue to deliver its training program on the requirements of the ADA and appropriate ways of serving people with disabilities to all City employees who have direct contact with members of the public.  The City will continue to consult with interested persons, including individuals with disabilities, in providing ADA training to employees.

 

14.       The City has taken steps to ensure effective communication with persons with disabilities, including providing qualified sign language and oral interpreters, computer-assisted real time captioning assistance, and assistive listening devices.  It maintains a Braille printer which can produce both text documents and tactile maps.  It will put documents in audio tape, Braille, large print, or an accessible computer format when needed to provide effective communication.

 

15.       The City maintains a number of text telephones (TTYs) in a number of its buildings.  The City switchboard and 9-1-1 operators are trained in the operation of TTY's.

 

16.       The City has taken steps to ensure that all appropriate employees are trained and practiced in using the Relay Texas Service to make and receive calls.

 

17.       The City has adopted a comprehensive 9-1-1 policy that:

 

$          provides each 9-1-1 call station is equipped with a TTY or computer equivalent.

 

      $          provides  procedures for answering 9-1-1 calls that include training all call takers to recognize a "silent" open line as a potential TTY call and to respond by TTY, and to ensure that TTY calls are answered as quickly as other calls received.

 

      $          monitors all incoming 9-1-1 TTY calls to ensure they are answered as quickly and accurately as other calls received.

 

      $          factors TTY call-taking procedures into 9-1-1 call takers' performance evaluations and includes written disciplinary procedures for call takers who fail to perform TTY call-taking consistent with the training and procedures.

 

18.       The City has adapted for its own use and implementation the Amarillo Police Department's Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing [Attachment C]. 

 

19.       The City has also adopted the following Law Enforcement policies that:

 

•           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].

 

      $          contracts with one or more local qualified oral/sign language interpreter agencies to ensure that the interpreting services are available on a priority basis, twenty-four hours per day, seven days a week, to its police department.

 

      $          provides each police station or substation and each detention facility 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.  Where inmate telephone calls are time-limited, the City has 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.

 

20.       The City has adopted employment policies that it:

 

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

 

      $          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.

 

      $          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.

 

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

 

      $          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.

 

21.       The City makes reasonable accommodations for job applicants with disabilities including sign language interpreters, audiotapes of job openings, and documents in Braille, and other accommodations upon request.

 

22.       The City has implemented policies and written procedures to ensure that persons who use service animals are not separated from their service animals when sheltering during an emergency, even if pets are normally prohibited in shelters.  The procedures do not unnecessarily segregate persons who use service animals from others.

 

23.       The City has implemented a policy to ensure that its emergency warning systems use sirens or other audible alerts, and it also provides ways to inform persons with hearing impairments of an impending disaster.  Additionally, the City participates in the Alert Commander and Tone Commander notification systems.

 

24.       The City provides back-up generators for dispatch to emergency shelters and refrigeration for medication as needed.  Shelters are available to persons whose disabilities require access to electricity and refrigeration.  The written procedures provide a plan for notifying persons with disabilities of the location of such shelters.

 

25.       The City has policies and procedures to receive and act upon the input of citizens with disabilities regarding the accessibility of sidewalks and curb cuts.  It has instituted an aggressive program to provide curb cuts at many areas where pedestrian walkways, such as sidewalks, intersect with streets, roads, or highways.  The City also provides direct funding to have access improvements made at citizens' homes, including providing curb cuts, ramps, and access to alleys.  The City provides access improvements to assist individuals to access public transit opportunities.

 

26.       The City provides curb ramps or other sloped areas complying with the ADA Standards at any intersection having curbs or other barriers to entry from a street level pedestrian walkway, whenever a new street, or road is constructed or altered.

 

27.       The City provides accessible, clearly marked, parking spaces at the Civic Center adjoining the building on the shortest accessible routes.

 

28.       The City's websites are designed to use minimal graphics and to present information clearly and concisely.

 

 

REMEDIAL ACTION

 

SIDEWALKS

 

29.       Within six months of the effective date of this Agreement, the City will identify and report to the Department all City 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 three years of the effective date of this Agreement, where it has not already done so, the City will provide curb ramps or other sloped areas complying with the Standards or UFAS at all intersections of the City's streets, roads, and highways identified under this paragraph having curbs or other barriers to entry from a street level pedestrian walkway.

 

30.       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 three years of the effective date of this Agreement, where it has not already done so, 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.

 

31.       Beginning no later than six months after the effective date of this Agreement, the City will 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.

                                                                             

EMERGENCY MANAGEMENT PROCEDURES AND POLICIES

 

32.       The City has an Emergency Operation Plan.  Under its emergency preparedness plans and emergency response services, the City relies upon the American Red Cross to provide certain emergency services, including emergency shelters.  The City will ensure that the City,  the American Red Cross, or other entity supplying such services, comply with the following provisions on its behalf.

 

33.       Within three 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).

 

34.       Within six 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.

 

35.       Within three months of the effective date of this Agreement, the City will send a written request to the Red Cross to designate and provide at least two emergency shelters with accessible toilet facilities for persons with disabilities within one year of the date of the request.  The City will send a courtesy copy of the request to the Department.

 

36.       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.

 

37.       Within three months of the effective date of this Agreement and until all emergency shelters have accessible parking, exterior routes, entrances, interior routes to the shelter area, and toilet rooms serving the shelter area, at the time of any emergency, the City will identify and widely publicize to the public and to persons with disabilities and the organizations that serve them the most accessible emergency shelters.

 

38.       To the extent that the City provides opportunities for post-emergency temporary housing to its residents, within 3 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.

           

WEB-BASED SERVICES AND PROGRAMS

 

39.       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).

 

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

 

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

 

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

 

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

 

4.    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

 

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

 

 

                             PROGRAMS FOR VICTIMS OF DOMESTIC VIOLENCE

 

                        [Reserved.]

 

 

PHYSICAL CHANGES TO FACILITIES

 

41.       The elements or features of the City's facilities that do not comply with the Standards, including those listed in Attachments I, J and K prevent some 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.  This Agreement does not constitute an admission of liability or discrimination by the City.

 

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

 

43.       Within three 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.

 

44.       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.

 

45.       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.

 

46.       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

 

                                                                 (not applicable)

 

MISCELLANEOUS PROVISIONS

 

47.       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.

 

48.       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).

 

IMPLEMENTATION AND ENFORCEMENT

 

49.       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.

 

50.       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.

 

51.       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.

 

52.       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.

 

53.       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.

 

54.       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.

 

55.       This Agreement will remain in effect for three years.

 

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

 

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

 

 

For the City of Amarillo:           By: ____________________________       ALAN TAYLOR       City Manager                   Date:  ___________________________

For the United States:        BRADLEY J. SCHLOZMAN      Acting Assistant Attorney General     By:_____________________________                         JOHN L. WODATCH, Chief      JEANINE M. WORDEN, Deputy Chief      MARY LOU MOBLEY, Senior Counsel      MELLIE H. NELSON, Supervisory Attorney      MARK J. MAZZ, Architect      U.S. Department of Justice      Civil Rights Division      950 Pennsylvania Avenue, N.W.      Disability Rights Section - NYA      Washington, DC 20530   Date:  ______________________________