UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

WHEREAS, Plaintiff United States of America (the “Government”) commenced this action to assure compliance with provisions of the Americans with Disabilities Act of 1990 (“ADA”) against defendant Lincoln Center for the Performing Arts, Inc. (“Lincoln Center”), pursuant to 42 U.S.C. § 12188(b)(1)(B), with respect to Avery Fisher Hall, a theater or other place of exhibition or entertainment, located at Lincoln Center, New York, New York 10023; and

WHEREAS, Avery Fisher Hall was built in 1962 as one of the three principal venues at New York’s world-renowned Lincoln Center, and is owned and operated by Lincoln Center, a not-for-profit corporation under the laws of the State of New York; and

WHEREAS, the complaint alleges that Lincoln Center violated Title III of the ADA, 42 U.S.C. §§ 12181-89, and the Department of Justice’s implementing regulation, 28 C.F.R. Pt. 36, by, among other things, failing to remove architectural barriers to access where it was readily achievable to do so and failing to use readily achievable alternatives to barrier removal where barrier removal was not readily achievable; and

WHEREAS, the United States Attorney’s Office for the Southern District of New York conducted an investigation into a complaint alleging lack of certain accessible facilities at Avery Fisher Hall;

WHEREAS, Lincoln Center has cooperated fully with the Government’s investigation and shall continue to work cooperatively with the Government to ensure accessibility at Avery Fisher Hall pursuant to the terms of this Consent Decree and Lincoln Center’s obligations under the ADA and its implementing regulations;

WHEREAS, after the Government commenced its investigation and prior to the entry of this Consent Decree, Lincoln Center has made the following modifications to elements found to be inaccessible to bring them into compliance with the 2010 ADA Standards for Accessible Design, as defined in 28 C.F.R. §36.104 (the “Standards”):

1.     This Court has jurisdiction over this action pursuant to 42 U.S.C. §§12188(b)(1)(B) and 42 U.S.C. §§ 1331 and 1345.

2.     This Consent Decree applies to, and is binding upon, the Government and the Lincoln Center, and their agents and employees. In the event Lincoln Center seeks to transfer or assign all or part of its interest in any facility covered by this agreement, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of transfer, Lincoln Center shall obtain the written accession of the successor or assign to any obligations remaining under this agreement for the remaining term of this agreement, as defined by paragraph 24 (the “Term”) herein. The undersigned representative of Lincoln Center certifies that she is authorized by Lincoln Center to enter into and consent to the terms and conditions of the Consent Decree and to execute and legally bind Lincoln Center to it.

3.     Avery Fisher Hall is a place of public accommodation within the meaning of 42 U.S.C. §12181(7) because it is a “theater, . . . or other place of exhibition or entertainment” within the meaning of 42 U.S.C. § 12181(7)(C) and 28 C.F.R. § 36.104. Lincoln Center operates a place of public accommodation as defined in 42 U.S.C. § 12181 and 28 C.F.R. § 36.104, and is thus a public accommodation subject to the requirements of the ADA.

4.     This Consent Decree shall apply to the theater facilities at Avery Fisher Hall, Lincoln Center, New York, New York, and to the specific elements of the “Yellow” parking garage at Lincoln Center which are solely under Lincoln Center’s control and which are described in paragraph 16 below. Notwithstanding any term of this Consent Decree, specifically reserved and excluded from the scope and terms of this Consent Decree as to any entity or person, including the Government, is any claim arising under the ADA and the Department of Justice regulations implementing the ADA pertaining to the below stage, below- or above-stage dressing and wardrobe rooms, security and other offices, toilet facilities in these areas, or the routes to and connecting these areas, or to the elements of the parking garage at Lincoln Center not addressed herein.

5.     During the course of its investigation of Avery Fisher Hall, the Government identified barriers to access to and within Avery Fisher Hall, which are described more fully below. Lincoln Center shall remedy the barriers to access identified in this Consent Decree in the manner set forth below within twelve (12) months after the date of entry of this Consent Decree with respect to the items set forth in paragraphs 10(a)-(f), 12, 14, and 16(a), within eighteen (18) months after the date of entry of this Consent Decree with respect to the items set forth in paragraphs 7, 10(g) and 16(b). In addition, any renovations or alterations to Avery Fisher Hall, within the meaning of 28 C.F.R. §36.402, shall be made in accordance with the Standards, including without limitation the addition of new seating, restaurant, function room, toilet room, drinking fountain, public telephone, or bar, food or other retail concessions or facilities.

6.     Barrier Description: Avery Fisher Hall has a maximum seating capacity of 2,738 people. The Standards require six wheelchair seating locations for assembly areas that can accommodate 500 seated individuals, and additional wheelchair seating locations as the theater capacity increases. See Standards tbl. 221.2.1.1. To the extent that it is readily achievable, these seats shall be dispersed and shall provide comparable lines of sight and be offered at comparable ticket prices. 28 C.F.R. §§ 36.308, 36.302(f)(3), 36.406(f)(2); Standards §§221.2.3, 802.2. The Standards also require that at least one companion seat be provided next to each wheelchair seat with shoulder alignment and equal size, quality, comfort, and amenities to nearby seating. See Standards §§ 221.3, 802.3. The Standards further provide that at least five percent of the aisle seats shall be designated aisle transfer seats. See Standards §§221.4, 802.4. Annexed hereto as Exhibit A, is a copy of Lincoln Center’s current Seating Plan for Accessibility (“Current Seating Plan”).

7.     Consent Decree Requirement: Within eighteen months of the date of entry of this Consent Decree, Lincoln Center agrees to alter the Current Seating Plan to provide for five additional wheelchair seating locations in the Orchestra Level of Avery Fisher Hall’s assembly area, each such seating location to be accompanied by a designated companion seat. Four of these additional wheelchair seating locations and designated companion seats shall be located in an area near Rows M-O of the center seating section as depicted in Exhibit B, and one additional wheelchair seating location and companion seat shall be located in an area near Row QQ of the side seating section as depicted in Exhibit C (Exhibits A, B and C, collectively, the “Revised Seating Plan”). The wheelchair seating locations depicted in the Current Seating Plan (i.e., Exhibit A) shall remain otherwise unaltered. Lincoln Center also agrees to add sixteen modified aisle transfer seats in the Orchestra Level. Lincoln Center agrees to designate sufficient staff members to assist individuals using the wheelchair seating locations depicted in Exhibit B who require help to traverse the slope of the aisles. Lincoln Center agrees that tickets for wheelchair and companion seating locations at Avery Fisher Hall shall be offered for sale in compliance with 28 C.F.R. §36.302(f).

8.     Lincoln Center further agrees that before commencing any physical alteration to the seating depicted in the Revised Seating Plan during the Term hereof, within the meaning of 28 C.F.R. § 36.402, Lincoln Center shall provide the Government with a Proposed Seating Plan for Accessibility (“Proposed Seating Plan”), which shall not contain fewer accessible seating locations than those designated in the Revised Seating Plan, and shall otherwise comply with the ADA Standards. Lincoln Center shall obtain the Government’s approval, which shall not be unreasonably withheld, before commencing any renovation pursuant to any Revised Seating Plan during the Term hereof, as defined by paragraph 24.

9.     Barrier Description: Water closets, urinals, lavatories and doors contain non-accessible elements that are not compliant with the 1991 ADA Standards for Accessible Design (“1991 Standards”). In addition, there are protruding objects and inaccessible signage, sinks and mirrors that are not compliant with the 1991 Standards.

10.     Consent Decree Requirement: With the exception of the requirement set forth in paragraph 10(g) below, within twelve months of the entry of this Consent Decree, Lincoln Center shall make the following alterations to the toilet rooms to comply with the Standards:

11.     Barrier Description: Doors, drinking fountains and public telephones contain non-accessible elements that are not compliant with the 1991 Standards. In addition, there are protruding objects and inaccessible signage that are not compliant with the 1991 Standards.

12.     Consent Decree Requirement: Within twelve months of the date of entry of this Consent Decree, Lincoln Center shall make the following alterations in compliance with the Standards:

13.     Barrier Description: Retail counters and table seating contain non-accessible elements that are not compliant with the 1991 ADA Standards for Accessible Design (“1991 Standards”).

14.     Consent Decree Requirement: Within twelve months of the date of entry of this Consent Decree, Lincoln Center shall make the following alterations in compliance with the Standards:

15.     Barrier Description: The Lincoln Center garage contains an inadequate number of van accessible parking spaces and noncompliant signage.

16.     Consent Decree Requirement:

17.     Lincoln Center shall not discriminate against individuals on the basis of disability in the full and equal enjoyment of the goods and services at Avery Fisher Hall. Lincoln Center shall provide individuals with disabilities an equal opportunity to benefit from the goods, services, benefits, advantages and privileges as is provided to those individuals without disabilities.

18.     Within sixty (60) days after the periods set forth for completion of the modifications set forth above – i.e., twelve (12) months after the date of entry of this Consent Decree with respect to the items set forth in paragraphs 10(a)-(f), 12, 14, and 16(a), and eighteen (18) months after the date of entry of this Consent Decree with respect to the items set forth in paragraphs 7, 10(g) and 16(b) – Lincoln Center shall submit to the Government a certification, under penalty of perjury, stating that it has complied with all obligations of this Consent Decree that are required to be satisfied or completed by that date, and shall state specifically that (a) Lincoln Center has maintained the Seating Plan pursuant to paragraph 7; and (b) Lincoln Center has completed the required modifications. Within thirty days after the date of completion of any alteration pursuant to a Proposed Seating Plan under paragraph 7, Lincoln Center shall submit to the Government a certification, under penalty of perjury, stating that it has complied with all obligations of this Consent Decree as to any Proposed Seating Plan under paragraph 7.

19.     Upon reasonable advance notice to Lincoln Center (through undersigned counsel), Lincoln Center shall permit the Government and any person acting on its behalf unrestricted access to Avery Fisher Hall to review compliance with the ADA and this Consent Decree. If the Government believes that Lincoln Center has violated this Consent Decree or is otherwise not in full compliance with the ADA, the United States will notify Lincoln Center in writing and seek to resolve the matter amicably before applying to the Court for relief.

20.     A violation of this Consent Decree shall be deemed a subsequent violation of the ADA under 42 U.S.C. § 12188(b)(3); 28 C.F.R. § 36.504(b).

21.     Nothing contained in this Consent Decree is intended or shall be construed as an admission by or finding against Lincoln Center that Lincoln Center was in violation of the ADA or any other federal statutes or regulations, or as a waiver by the Government of any right to institute any proceeding or action against Lincoln Center for violations of any statutes, rules or regulations administered by the Government, or to prevent or limit the rights of the Government to obtain relief under the ADA, or any other federal statutes or regulations, or on account of any violation of this Consent Decree or any other provision of law. Notwithstanding the preceding sentence, subject to Lincoln Center’s full compliance with the Consent Decree, the Government will not file a subsequent complaint against Lincoln Center pursuant to Title III of the ADA concerning Avery Fisher Hall for the same violations identified in the complaint herein, unless Lincoln Center makes alterations that do not comply with Title III of the ADA. This Consent Decree is a compromise of claims between the Government and Lincoln Center. It is based on the unique nature of this particular facility and its provisions are not necessarily applicable to any other entities or facilities.

22.     There shall be no modification of this Consent Decree without the written consent of the Government and Lincoln Center and the approval of the Court.

23.     This Consent Decree represents the entire agreement between the Government and Lincoln Center. No prior agreements, oral representations or statements shall be considered part of this Consent Decree.

24.     This Court shall retain jurisdiction of this action for a period of four (4) years from the date of entry of this Consent Decree, to enforce or modify the provisions of this Consent Decree, to resolve any dispute that arises under this Consent Decree, and to entertain any application and issue any orders (including, without limitation, orders directing the modification of policies, practices, and procedures, and orders requiring the removal of barriers to access) as may be necessary or appropriate for the effectuation of its terms. The parties shall discuss and attempt to negotiate a resolution of any dispute relating to the interpretation of this Consent Decree before bringing the matter to the Court’s attention for resolution.

25.     This Consent Decree may be executed in counterparts, each of which shall be an original and shall constitute one and the same instrument. Signatures by facsimile or electronic mail shall be accepted as original signatures.

26.     Exhibits A, B and C to this Consent Decree are incorporated by reference into this Consent Decree as though fully set forth in the Decree.

27.     Each party shall bear its own costs and attorney's fees in this action.