SETTLEMENT AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
AND
MESA GENERAL CONTRACTORS, INC.
DJ # 202-14-255

The parties to this agreement (“Agreement”) are the United States of America and Mesa General Contractors, Inc. (“Mesa”). The parties hereby agree as follows:

  1. BACKGROUND AND JURISDICTION
    1. Mesa is the owner of the building and premises located at 32 Churchill Road, Newtown, Connecticut, and the landlord to the Market Place Kitchen & Bar, owned and operated by H&A Group 5, LLC, at the same location.
    2. The United States Attorney’s Office for the District of Connecticut, a component of the United States Department of Justice (“United States”), opened an investigation of the Market Place Kitchen & Bar facility pursuant to Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§12181-12189, and its implementing regulations, 28 C.F.R. pt. 36.  The United States initiated its investigation upon the receipt of a complaint from an individual regarding lack of accessibility at the Market Place Kitchen & Bar, including the parking facilities owned and operated by Mesa.    
    3. 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. 
    4. 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).
    5. The Market Place Kitchen & Bar 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).  Mesa is a place of public accommodation because it “owns, leases (or leases to), or operates a place of public accommodation.”  42 U.S.C. § 12182; 28 C.F.R. § 36.104.
    6. The buildings and premises at 32 Church Hill Road, Newtown, Connecticut, were designed and constructed after March 15, 2012 and are new construction within the meaning of 28 C.F.R. § 36.401.  Therefore, they must comply with the new construction standards of the Americans with Disabilities Act (“ADA”) and the 2010 ADA Standards for Accessible Design (“2010 Standards”) unless structurally impracticable.  The United States reviewed information provided by Mesa, and conducted a site visit of 32 Church Hill Road, Newtown, Connecticut, on April 25, 2019.  The United States used the ADA Standards for Accessible Design including the 2010 Standards, defined at 28 C.F.R. § 36.104, to identify ADA violations, which were shared with Mesa. 
  2. REMEDIAL ACTIONS TO BE TAKEN BY MESA
    1. Within six months of the execution of this Agreement, Mesa will make the following modifications to remedy violations of the ADA Standards at 32 Church Hill Road, Newtown, Connecticut:
      1. Number of Designated Accessible Parking Spaces.  Mesa shall ensure that there is a minimum of seven designated accessible parking spaces in the parking lot, including two van accessible parking spaces in accordance with the 2010 Standards §§ 208.2, 208.2.4, and 502.1.
      2. Signage for Designated Accessible Parking Spaces.  Mesa shall ensure that all designated accessible parking spaces are identified by signs including the International Symbol of Accessibility in accordance with the 2010 Standards §§ 216.5, 502.6, and 703.2.7.1. 
      3. Signage for Designated Van Accessible Parking Spaces.  Mesa shall ensure that signs identifying designated van accessible parking spaces contain the designation “van accessible” in accordance with the 2010 Standards §§ 216.5, 502.6, and 703.2.7.1.
      4. Height of Signage for Designated Accessible Parking Spaces and Van Accessible Parking Spaces.  Mesa shall ensure that all signs identifying designated accessible parking spaces are 60 inches minimum above the ground surface measured to the bottom of the sign in accordance with the 2010 Standards §§ 216.5 and 502.6.
      5. Shortest Accessible Route.  Mesa shall ensure that the designated accessible parking spaces serving the east and west buildings, respectively, are located on the shortest accessible routes to the tenant and building entrances in accordance with the 2010 Standards §§ 208.3.1 and 502.1.
      6. Accessible Route – West Building.  Mesa shall ensure that a means to prevent vehicles from obstructing the 36 inch minimum accessible route is provided in accordance with the 2010 Standards §§ 206.2.1, 208.2, 402.2, 403.5, and 502.7.
    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 Market Place 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 against Mesa for failure to comply with Title III of the ADA; 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 Mesa 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 Mesa, Mesa shall permit the United States and any person acting on its behalf unlimited access to its premises to review compliance with the ADA and this Agreement.
    4. If the United States believes that Mesa has violated this Agreement or any requirement thereof, it agrees to notify Martin Onorato, Esq., counsel for Mesa, in writing of the specific violation(s) alleged.  Mesa 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. Mesa shall provide certifications to the United States, every six months until full compliance with this Agreement is achieved, in the form of a narrative report and photos showing that the items within this Agreement that Mesa has agreed to correct have been so corrected.  Mesa shall include as an exhibit copies of any complaint, whether formal or informal, received during the reporting period alleging that the premises 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 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:

      7. Jessica H. Soufer, Assistant U.S. Attorney
      U.S. Attorney’s Office
      157 Church Street, 25th Floor
      New Haven, CT 06510
      email: jessica.soufer@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 Mesa 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 and Mesa 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 Mesa seeks to transfer, or assign all or part of its interest or lease the premises, as a condition of sale, assignment, or lease, Mesa shall obtain the written accession of the successor, assignee, or lessee, 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:

    JOHN H. DURHAM
    United States Attorney for the District of Connecticut

    By: /s/
    JESSICA H. SOUFER
    Assistant United States Attorney
    157 Church Street, 25th Floor
    New Haven, CT 06510

    Dated: 12/10/19

    FOR MESA GENERALCONTRACTORS, INC

    By: /s/
    ALAN WEINER
    President

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