SETTLEMENT AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
AND
BUDDY'S PIZZA, llc
DJ # # 202-30-45

The parties to this agreement (“Agreement”) are the United States of America, Buddy’s Pizza, LLC (“Buddy’s Pizza”), and Crumbaugh Properties, LLC (“Crumbaugh”). The parties hereby agree as follows:

1. BACKGROUND AND JURISDICTION
   1. James Michael Hedden, through Buddy’s Pizza, LLC, is the owner/operator of the Buddy’s Pizza Restaurant (the “Restaurant”), located at 212 West Broadway, Frankfort, KY.
   2. Crumbaugh Properties, LLC (“Crumbaugh”), with a principal office at 101 East Main Street, Frankfort, KY, owns the building out of which the Restaurant operates.
   3. The United States Attorney’s Office for the Eastern District of Kentucky, a component of the United States Department of Justice (“United States”), opened an investigation of the Restaurant facility pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§12181-12189, as amended. The United States initiated its investigation upon the receipt of a complaint from an individual regarding lack of accessibility at the Restaurant.
   4. The United States is authorized to investigate alleged violations of Title III of the ADA. Moreover, the United States is authorized, where appropriate, to use alternative means of dispute resolution, including settlement negotiations to resolve disputes. If resolution is not achieved, the United States may bring a civil action in federal court in any case where the Attorney General has reasonable cause to believe that a pattern or practice of discrimination exists or where the case raises an issue of general public importance. 42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 36.503, 36.506.
   5. Title III of the ADA mandates that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”  42 U.S.C. § 12182(a). Title III further specifies that “[b]oth the landlord who owns the building that houses a place of public accommodation and the tenant who owns or operates the place of accommodation are public accommodations” to the requirements of the ADA. 28 C.F.R. § 36.201(b). Allocation of responsibility between the Restaurant and Crumbaugh for complying with Title III’s obligations may be determined by lease or other contract. 28 C.F.R. § 36.201(b).
   6. The Restaurant is a place of public accommodation within the meaning of Title III because it is “a restaurant, bar, or other establishment serving food or drink.”  42 U.S.C. § 12181(7)(B). Buddy’s Pizza, as the owner and operator of the Restaurant, is a public accommodation subject to the requirements of Title III of the ADA. 28 C.F.R. § 36.104. Crumbaugh, as the landlord and owner of the building out of which the Restaurant operates, is also a public accommodation subject to Title III of the ADA’s requirements. 28 C.F.R. § 36.201(b)
   7. The Restaurant is an existing facility originally constructed prior to the effective date of the ADA. Title III of the ADA requires that public accommodations remove architectural barriers to access in existing facilities where it is readily achievable to do so. See 42 U.S.C. §§ 12182(b)(2)(A)(iv)-(v); 28 C.F.R. 36.304.
   8. The United States reviewed information provided by Buddy’s Pizza and Crumbaugh, conducted a site visit of the Restaurant, and reviewed architectural renderings of the proposed changes to the Restaurant. The United States used the ADA Standards for Accessible Design, including the 1991 Standards defined at 28 C.F.R. Part 36, Appendix D, and the 2010 Standards defined at 28 C.F.R. § 36.104, to identify ADA violations, which were shared with Buddy’s Pizza and Crumbaugh.
2. REMEDIAL ACTIONS TO BE TAKEN BY BUDDY’S PIZZA AND CRUMBAUGH
   1. The following modifications will be made to remove architectural barriers for individuals with disabilities at the Restaurant:
   1. Accessible Entrance and Route to Accessible Entrance
   1. Within nine months of the execution of this Agreement, Crumbaugh shall:
   1. consistent with the plans sent on December 4, 2019, and approved by the United States, including the changes to the handrails discussed by email on December 13, 2019, install an accessible entrance ramp fully compliant with § 405 of the 2010 Standards leading into an existing entryway (the “new accessible entrance”);
   2. ensure that, if the ramp is placed at an entrance other than the restaurant’s main entrance, that the accessible entrance remains open and unlocked during all restaurant operating hours;
   3. ensure that the new accessible entrance is identified by the International Symbol of Accessibility complying with the 2010 Standards § 703.7.2.1 in accordance with the 2010 Standards § 216.6;
   4. ensure that any non-accessible entrance has signage compliant with the 2010 Standards § 703.5 directing patrons to the new accessible entrance in accordance with the 2010 Standards § 216.6;
   2. New Accessible Toilet Room
   1. Within nine months of the execution of this Agreement,

   Crumbaugh shall complete construction of the toilet room in accordance with the revised architectural drawings and/or plans approved by the United States on September 18, 2019.

   2. Within fourteen days of the completion of construction of the new accessible toilet room, Buddy’s Pizza shall place tactile signage identified by the International Symbol of Accessibility alongside the new accessible toilet room door on the latch side identifying the accessible toilet room in accordance with the 2010 Standards §§ 216.2, 703.4.2 and 703.7.2.1. Such signage shall:
   1. have raised characters complying with the 2010 Standards § 703.2 that are duplicated in Braille, complying with the 2010 Standards §§ 703.1, 703.2, 703.3, 703.4, and 703.5; and
   2. be placed 48 inches minimum above the finish floor, measured from the baseline of the lowest tactile character, and 60 inches maximum above the finish floor, measured from the baseline of the highest tactile character in accordance with the 2010 Standards § 703.4.1.
   3. Within 14 days of the completion of construction of the new accessible toilet room, Crumbaugh shall place directional signs identified by the International Symbol of Accessibility at the inaccessible toilet rooms indicating the location of the new accessible toilet room in accordance with the 2010 Standards §§ 216.8, 703.5 and 703.7.2.1.
   2. Alterations
   1. Any future alterations, as defined in 42 U.S.C. §12183 and 28 C.F.R. § 36.402(b), made to the Restaurant facility and not described in this Agreement shall comply in all respects with the ADA, its implementing regulations, and the 2010 Standards.
   2. If an alteration affects or could affect the usability of or access to an area of the facility that contains a primary function, that alteration shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered areas are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, unless the cost and scope of such alterations is disproportionate to the cost of the overall alteration. 42 U.S.C. §12183(a); 28 C.F.R. § 36.403. 
3. IMPLEMENTATION AND ENFORCEMENT OF AGREEMENT
1. In consideration of the terms of this Agreement, the United States agrees to refrain from filing a civil suit for failure to comply with Title III of the ADA at the Restaurant; provided, however, that the United States reserves the right to file a civil lawsuit to enforce this Agreement.
2. The United States does not assert that this Agreement or the modifications contemplated herein will bring the Restaurant into compliance with all aspects of the ADA, and nothing in this Agreement is intended to constitute an interpretation of the legal requirements of the ADA by the United States. Rather, the parties enter into this Agreement for the purpose of compromising disputed claims and avoiding the risk and expenses of litigation. This Agreement is a compromise and it shall not be used or introduced into evidence in any other case or proceeding other than between the parties to this Agreement.
3. The United States may review compliance with this Agreement at any time. Upon reasonable advance notice to Buddy’s Pizza, Buddy’s Pizza shall permit the United States and any person acting on its behalf unlimited access to the Restaurant to review compliance with the ADA and this Agreement, provided that such access does not interfere with the comfort, privacy or safety of the guests at the Restaurant, or unreasonably interfere with the management and operation of the Restaurant.
4. If the United States believes that Buddy’s Pizza or Crumbaugh has violated this Agreement or any requirement thereof, it agrees to notify Mr. Mike Hedden, Owner, Buddy’s Pizza, and Mr. Will Crumbaugh, Principal, Crumbaugh, in writing of the specific violation(s) alleged. Buddy’s Pizza shall have 30 days from its receipt of the notice to cure and/or respond in writing to the United States the alleged violation(s).
5. Upon completion of the modifications described in Section I.A. of this Agreement, Buddy’s Pizza or Crumbaugh shall provide certifications to the United States in the form of a narrative report and photos showing that the items within this Agreement that Buddy’s Pizza and Crumbaugh have agreed to correct have been so corrected. The certifications shall include as an exhibit copies of any complaint, whether formal or informal, received during the reporting period alleging that the Restaurant facility did not comply with the ADA or that individuals with disabilities at the facility were subject to discrimination on the basis of disability. The parties expressly agree that providing such certifications is essential to the enforcement of this Agreement, and that a failure to provide the certifications required by this paragraph constitutes a breach of this Agreement.
6. All notices, demands, reports, certifications, or other communication to be provided to the United States pursuant to this Agreement shall be in writing and delivered by U.S. mail or electronic mail to the following:

Carrie B. Pond, Assistant U.S. Attorney
U.S. Attorney’s Office
260 W. Vine Street, Suite 300
Lexington, KY 40507-1612
email: carrie.pond@usdoj.gov

7. This Agreement is a public document. A copy of this document or any information contained in it may be made available to any person.
8. 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.
9. 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, shall be enforceable. This Agreement is limited to the facts set forth herein and it does not purport to remedy any other potential violations of the ADA, including violations of the alterations or new construction provisions of the ADA, or any other Federal law. This Agreement does not affect the continuing responsibility of Buddy’s Pizza, the Restaurant, and Crumbaugh to comply with all aspects of the ADA.     
10. If any provision of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the United States, Crumbaugh, and Buddy’s Pizza shall engage in good faith negotiations in order to adopt such mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed-upon relative rights and obligations.
11. A signor of this document in a representative capacity for an entity represents that he or she is authorized to bind such entity to this Agreement.
12. In the event Buddy’s Pizza or Crumbaugh seek to transfer or assign all or part of their interest or assign a lease, as a condition of sale, lease or assignment, regarding the Restaurant, Buddy’s Pizza or Crumbaugh shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of the Agreement.
13. The Effective Date of this Agreement is the date of the last signature below. This Agreement shall remain in effect for three years from the Effective Date.

FOR THE UNITED STATES:

ROBERT M. DUNCAN, JR.
United States Attorney for the
Eastern District of Kentucky

By: /s/
CARRIE B. POND    
Assistant United States Attorney
260 W. Vine Street, Suite 300
Lexington, KY 40507-1612

Dated: 4/19/20

FOR BUDDY’S PIZZA, LLC

By:/s/
J. MICHAEL HEDDEN
Member

FOR CRUMBAUGH PROPERTIES, LLC

By:/s/
Will Crumbaugh
Principal