SETTLEMENT AGREEMENT BETWEEN

THE UNITED STATES OF AMERICA

AND

THE CITY OF FORT MORGAN, COLORADO

UNDER THE AMERICANS WITH DISABILITIES ACT

DJ 204-13-299

 

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I. BACKGROUND

A. SCOPE OF THE INVESTIGATION

The United States initiated this matter as a compliance review of the City of Fort Morgan, Colorado, under title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12134, and the United States Department of Justice’s implementing regulation, 28 C.F.R. Part 35. 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 of Justice’s implementing regulation, 28 C.F.R. Part 42, Subpart G.

The review was conducted by the Disability Rights Section of the Department of Justice’s Civil Rights Division and included reviewing the City’s compliance with the following title II requirements:

• to conduct a self-evaluation of its services, policies, and practices by July 26, 1992, and make modifications necessary to comply with the Department of Justice’s title II regulation, 28 C.F.R. § 35.105;
• to notify applicants, participants, beneficiaries, and other interested people of their rights and the City’s obligations under title II and the Department of Justice’s regulation, 28 C.F.R. § 35.106;
• 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);
• to establish a grievance procedure for resolving complaints of violations of title II, 28 C.F.R. § 35.107(b);
• 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. §§ 35.149-.150, by:
  • 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;
  • physical changes to buildings (required to have been made by January 26, 1995), in accordance with the Department of Justice’s title II regulation, 28 C.F.R. §§ 35.150-.151, and the 1991 ADA Standards for Accessible Design (1991 ADA Standards), 28 C.F.R. Part 36, App. D (2011) or the Uniform Federal Accessibility Standards (UFAS), 41 C.F.R. § 101-19.6, App. A, and the 2010 ADA Standards for Accessible Design (2010 Standards), 28 C.F.R. § 35.104;
• 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 of Justice’s title II regulation and 2) the 1991 ADA Standards or UFAS, or the 2010 ADA Standards, as applicable, 28 C.F.R. § 35.151;
• to ensure that communications with people with disabilities, including applicants, participants, and members of the public, are as effective as communications with others, including furnishing auxiliary aids and services when necessary, 28 C.F.R. § 35.160;
• to provide direct access via TTY (text telephone) or computer-to-telephone emergency services, including 9‑1‑1 services, 28 C.F.R. § 35.162;
• to provide information for interested people with disabilities concerning the existence and location of the City’s accessible services, activities, and facilities, 28 C.F.R. § 35.163(a); and
• to provide signage at all inaccessible entrances to any facility, directing users to an accessible entrance or to information about accessible facilities, 28 C.F.R. § 35.163(b).

The United States reviewed compliance with the ADA’s new construction and alterations requirements at the following facilities constructed or altered after January 26, 1992: Animal Shelter, Optimist Park, Cemetery, City Complex, City Hall, Library and Museum, and Municipal Court and Police Department.

The program access review covered those of the City’s programs, services, and activities that operate in the following facilities: Airport, City Park, Fulton Heights Park, Gateway Park, Jaycee Park, and Old Fort Park.

At the following facilities that are designated as emergency shelters, the United States reviewed areas of the facilities used by members of the public during an emergency, including the parking, the route from the parking area to the area used as a shelter, the area used as a shelter, and toilet facilities serving that area: Fort Morgan High School and Fort Morgan Middle School.

The United States reviewed the City’s emergency management and disaster prevention policies and the City’s sidewalk maintenance policies to evaluate whether people with disabilities have an equal opportunity to utilize these programs.

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

B. 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 United States 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 of Justice’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.
3. The United States 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 United States fail to secure voluntary compliance pursuant to Subpart G or should the United States 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 Fort Morgan, Colorado.
5. In order to avoid the burdens and expenses of a further 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 paragraphs 8 through 39, except as provided in the section entitled “Implementation and Enforcement.”

II. ACTIONS TAKEN BY THE CITY OF FORT MORGAN

7. The City of Fort Morgan represents that it has taken actions to comply with the ADA and the Rehabilitation Act, including but not limited to the following:
   1. The City of Fort Morgan, through its building department and building inspector, has always been cognizant of its responsibility to comply with the ADA and the Rehabilitation Act. As a City, it adopted the International Building Code (IBC) Chapter 11, regarding accessibility. As upgrades are made to its buildings/programs the City strives to comply with the requirements. In addition, the City’s revised Zoning Code requires all sidewalks and off-street parking to be constructed in accordance with current ADA requirements.
   2. As a result of the compliance audit, the City recognized areas wherein improvements to its policies, structures, and programs could be made. At the conclusion of the audit, the City immediately begin implementing these necessary improvements.
   3. The City of Fort Morgan strives to do its part to inform its citizens of their ADA rights and our obligations.

III. REMEDIAL ACTION

A. NOTIFICATION

8. Within two (2) months of the effective date of this Agreement, the City will adopt the attached Notice under the ADA, Attachment A (“Notice”); distribute it to all its 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 the Notice in conspicuous locations in its public buildings. It will refresh each posted Notice, and update the contact information contained on each Notice, as necessary, during the term of this Agreement. The Notice will be provided to any person upon request.
9. Within three (3) months of the effective date of this Agreement, and annually thereafter, the City will implement and send the United States its written procedures to inform interested people with disabilities of the existence and location of the City’s accessible programs, services, and activities.

C. GRIEVANCE PROCEDURE

10. Within three (3) months of the effective date of this Agreement, the City will adopt the attached ADA Grievance Procedure, Attachment B, distribute it to all of its agencies, and post copies of it in conspicuous locations in each of its public buildings. It will refresh each posted copy, and update the contact information contained on it, as necessary, for the term of the Agreement. Copies will also be provided to any person upon request.

D. GENERAL EFFECTIVE COMMUNICATION PROVISIONS

11. Within three (3) months of the effective date of this Agreement, the City will identify sources of qualified sign language and oral interpreters, qualified readers, real-time transcription services, and vendors able to put documents in Braille. Within this time the City will implement and report to the United States its written procedures, with time frames, for fulfilling requests for sign language or oral interpreters, qualified readers, real-time transcription services, and documents in alternate formats, including Braille, large print, cassette tapes, accessible electronic format (e.g., HTML).
12. The City will ensure that all appropriate employees are trained and practiced in using the Colorado Relay Service to make and receive calls, and report to the United States the details of the trainings and employees trained.

E. LAW ENFORCEMENT AND EFFECTIVE COMMUNICATION

13. Within three (3) months of the effective date of this Agreement, the City will implement the City of Fort Morgan Police Department’s Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing, Attachment C, and distribute to all police officers the Guide for Law Enforcement Officers When in Contact with People Who are Deaf or Hard of Hearing at Attachment D.
14. Within three (3) months of the effective date of this Agreement, the City will hire or contract with local qualified oral and sign language interpreters to be available twenty-four hours every day to its police department.
15. Within three (3) months of the effective date of this Agreement, the City will equip each police station and detention facility with a working TTY to enable people who are deaf, hard of hearing, or who have speech impairments to make telephone calls. Where telephone calls are time-limited, the City will adopt policies permitting a longer period of time due to the slower nature of TTY communications as compared to voice communications.

F. EMPLOYMENT

16. Within three (3) months of the effective date of this Agreement, the City will amend its employment policies to comply with the U.S. Equal Employment Opportunity Commission regulations implementing title I of the Americans with Disabilities Act of 1990, codified at 29 C.F.R. Part 1630. The policies will provide at a minimum that the City:
    • 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;
    • upon request will make reasonable accommodations for a qualified applicant or employee with a disability 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 known, the City may ask for information necessary to determine whether the person has a disability-related need for the accommodation;
    • will confidentially maintain employee medical records separate from personnel files; and
    • will in making employment decisions individually assess whether a qualified person with a disability meets selection criteria. To the extent the City’s selection criteria disqualify an individual because of disability then those criteria must be job-related and consistent with business necessity.

G. EMERGENCY MANAGEMENT PROCEDURES AND POLICIES

17. The City’s Emergency Operations Plan (EOP) must comply with the ADA. The City will use Chapter 7 of the Department of Justice’s ADA Best Practices Tool Kit for State and Local Government (ADA Tool Kit) to address ADA obligations of emergency management, including planning, preparedness, evacuation, shelters, medical and social services, lodging and housing programs, recovery, and rebuilding.
18. Within sixty (60) days of the effective date of this Agreement, the City will incorporate the provisions of Chapter 7 of the ADA Tool Kit into its EOP and provide a copy (including supporting documents) to the United States.
19. The City’s EOP will include the following:
    1. procedures to receive and use input from people with a variety of disabilities on its emergency management plan (preparation, notification, response, and clean-up);
    2. community evacuation plans to enable people who have mobility disabilities, are blind or have low vision, are deaf or hard of hearing, have cognitive disabilities, mental illness, or other disabilities to safely self-evacuate or be evacuated by others.
    3. if its emergency warning system uses sirens or other audible alerts, then procedures to effectively inform people who are deaf or hard of hearing of an impending disaster.
    4. that emergency shelters have a back-up generator and a way to keep medications refrigerated (such as a refrigerator or a cooler with ice). Access to back-up power and refrigeration at such shelters will be made available to people 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 people of the location of such shelters.
    5. procedures ensuring that people 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 will not segregate people who use service animals from others but may take into account the potential presence of people who, for safety or health reasons, should not be in contact with certain types of animals.
    6. plans for providing equivalent opportunities for accessible post-emergency temporary housing to people with disabilities. 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.

H. PHYSICAL CHANGES TO EMERGENCY SHELTERS

20. Some City emergency shelters may be owned or operated by other public entities subject to title II or by public accommodations subject to title III and therefore they must provide program access or remove barriers to accessibility under the ADA. This Agreement does not limit future enforcement action against the owners or operators of these emergency shelters.
21. Within one (1) month of the effective date of this Agreement, the City will request in writing that each of the owners and operators of the shelter facilities listed in Attachment G will remove the noted barriers to access for persons with disabilities. The request will specify that the remediation be completed within eighteen (18) months of the effective date of this Agreement. The City will simultaneously send a courtesy copy of the request to the United States.
22. Within eighteen (18) months of the effective date of this Agreement, the City will survey the shelters listed in Attachment G to determine whether the noted barriers have been removed. If not all barriers have been removed, the City will identify within twenty-four (24) months of the effective date of this Agreement an appropriate number of alternate accessible shelters using the survey instrument entitled ADA Checklist for Emergency Shelters, Attachment N.
23. Within three (3) months of the effective date of this Agreement and until all emergency shelters are accessible as confirmed by the City, the City will identify and widely publicize to the public and to people with disabilities the most accessible emergency shelters.

I. SIDEWALKS

24. Within three (3) months of the effective date of this Agreement, the City will implement and report to the United States its written process for requesting and receiving input from people with disabilities regarding the accessibility of its sidewalks, including requests to add curb cuts at particular locations.
25. Within three (3) months of the effective date of this Agreement, the City will identify and report to the United States 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 three (3) years of the effective date of this Agreement, the City will provide curb ramps or other sloped areas complying with the 2010 ADA Standards at all intersections of the streets, roads, and highways constructed or altered since January 26, 1992, having curbs or other barriers from a street level pedestrian walkway. Annually, the City will confirm to the United States that it has provided curb ramps or other sloped areas where required that are in compliance with the 2010 ADA Standards.
26. Beginning no later than three (3) months after the effective date of this Agreement, the City will provide curb ramps or other sloped areas complying with the 2010 ADA Standards 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. Annually, the City will confirm to the United States that it has provided curb ramps or other sloped areas where required that are in compliance with the 2010 ADA Standards.
27. Within three (3) months of the effective date of this Agreement, the City will identify and report to the United States 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 (3) years of the effective date of this Agreement, the City will provide curb ramps or other sloped areas complying with the 2010 ADA Standards at all places where a street level pedestrian walkway constructed or altered since January 26, 1991, intersects with a street, road, or highway. Annually, the City will confirm to the United States that it has provided curb ramps or other sloped areas where required that are in compliance with the 2010 ADA Standards.
28. Beginning no later than three (3) months after the effective date of this Agreement, the City will provide curb ramps or other sloped areas complying with the 2010 ADA Standards at all newly constructed or altered pedestrian walkways where they intersect a street, road, or highway. Annually, the City will confirm to the United States that it has provided curb ramps or other sloped areas where required that are in compliance with the 2010 ADA Standards.

J. WEB-BASED SERVICES AND PROGRAMS

29. Within one (1) month of the effective date of this Agreement, and annually thereafter, the City will distribute to its employees and contractors who design, develop, maintain, or otherwise have responsibility for its websites or third party websites used by the City, the technical assistance document, “Accessibility of State and Local Government Websites to People with Disabilities,” Attachment H, also available at www.ada.gov/websites2.htm.
30. Within three (3) months of the effective date of this Agreement, and throughout the term of the Agreement, the City will do the following:
    1. Post online a policy that its web pages will be accessible and create a process for making its web pages accessible;
    2. Make all new and modified web pages and content accessible;
    3. Make existing web content accessible;
    4. Post a telephone number or e-mail address on its home page for visitors to request accessible information; and
    5. At least annually, enlist people with disabilities to test its pages for ease of use.

K. NEW CONSTRUCTION, ALTERATIONS, AND PHYSICAL CHANGES TO FACILITIES

31. Any construction or alterations to City buildings and facilities by it or on its behalf will fully comply with the requirements of 28 C.F.R. § 35.151, including applicable architectural standards.
32. Any part of a City facility that does not comply with the 2010 ADA Standards (or the 1991 ADA Standards, as applicable), including those listed in Attachments I, J, K, and L, prevent people 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.
33. All architectural changes by the City or on its behalf made on or after March 15, 2012, must comply with the 2010 ADA Standards.
34. In the event that the City has already undertaken an alteration, addition, or other modification to any element identified in Attachments or otherwise in the City after January 26, 1992, and prior to the Effective Date of this Agreement, the City will submit, within six (6) months, a written report to the United States pursuant to paragraph 39 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 ADA Standards or UFAS
On or after September 15, 2010, and before March 15, 2012	1991 ADA Standards, UFAS, or 2010 ADA Standards
On or after March 15, 2012	2010 ADA Standards

35. Within three (3) months of the effective date of this Agreement, the City will install signs identifying the accessible entrance and that 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.
36. Newly Constructed Facilities: The City will take the actions listed in Attachments I and M to make the newly constructed parts of City facilities for which construction was commenced after January 26, 1992, readily accessible to and usable by people with disabilities.
37. Altered Facilities: The City will take the actions listed in Attachments J and M to make the altered parts of City facilities for which alterations commenced after January 26, 1992, readily accessible to and usable by people with disabilities.
38. Program Access in Existing Facilities: The City will take the actions listed in Attachments K and M to make 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, readily accessible to and usable by people with disabilities.
39. Facilities and Programs Not Surveyed by the United States: The City will review compliance with the requirements of title II of the ADA for those City facilities and programs that were not surveyed or reviewed by the United States. The the City will survey the City’s facilities for compliance with title II of the ADA that were not surveyed by the United States. Within twelve (12) months of the effective date of this Agreement, the City will submit to the United States a detailed report listing the access issues identified during the review together with the corrective actions and completion dates proposed to resolve such issues. The proposed completion dates may be no later than six (6) months prior to the termination of this Agreement. The survey conducted by the City, the access issues identified, and the corrective actions and completion dates proposed will be consistent with the requirements of title II of the ADA; the review of City facilities and programs conducted by the United States for purposes of this Agreement; and the access issues, corrective actions, and completion dates reflected in Attachments I, J, K, and M.

IV. MISCELLANEOUS PROVISIONS

40. Except as otherwise specified in this Agreement, six months after the effective date of this Agreement and annually thereafter until it expires, the City will submit written reports to the United States summarizing its actions pursuant to this Agreement. Reports will include reports with certifications from the Independent Licensed Architect, photographs showing measurements, architectural plans, notices published in the newspaper, copies of adopted policies, and proof of efforts to secure funding or assistance for structural renovations and equipment.
41. Throughout the term 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, including routinely testing accessibility equipment and routinely auditing the accessibility of its programs and facilities. This provision, however, does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs. 28 C.F.R. § 35.133(b).
42. Within six (6) months of the effective date of this Agreement, the City will submit for pre-approval by the United States a proposed day long training program on the requirements of the ADA and appropriate ways of serving people with disabilities. The submission will include a description of the training, the agenda, any handouts, and the name, title, and address of the trainer.
43. Within one (1) year of the effective date of this Agreement and annually thereafter, after approval of the training program by the United States, all City employees who have direct contact with members of the public will be trained for at least a half day on the requirements of the ADA and appropriate ways of serving people with disabilities. Within thirty (30) days after each training the City will submit the list of employees trained.

V. IMPLEMENTATION AND ENFORCEMENT

44. The City may seek to modify this Agreement because of changed conditions making performance impossible by notifying the United States in writing, setting forth the modification and the facts to support it. Until there is written Agreement by the United States to the modification, no modification will take effect. The United States’ agreement will not be unreasonably withheld.
45. The United States may review compliance with this Agreement at any time. The City will cooperate with the United States. If the United States believes that the City has failed to comply with this Agreement, then the United States will notify the City in writing and it will attempt to resolve the non-compliance. If the United States is unable to resolve the non-compliance within 30 days, then it may institute a civil action in federal district court to enforce the terms of this Agreement and may take appropriate steps to enforce title II and section 504 of the Rehabilitation Act.
46. It is a violation of this Agreement for the City to fail to comply in a timely manner with any of the requirements of this Agreement.
47. Failure by the United States to enforce any provision of this Agreement is not a waiver of the United States’ right to enforce other provisions of this Agreement.
48. This Agreement is a public document. Upon request, a copy of this Agreement will be made available to any person by the City or the United States.
49. This Agreement is 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 will be enforceable. This Agreement does not remedy any other potential violations of the ADA or other federal law. This Agreement does not relieve the City of its continuing obligation to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.
50. This Agreement will remain in effect for three (3) years.

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51. The person signing for the City represents that he or she is authorized to bind the City to this Agreement.
52. The effective date of this Agreement is the date of the last signature below.