SETTLEMENT AGREEMENT
BETWEEN THE UNITED STATES OF AMERICA
AND THE PALM SPRINGS ART MUSEUM
U.S. DEPARTMENT OF JUSTICE COMPLAINT #202-12C-523
UNITED STATES ATTORNEY'S OFFICE MATTERS #2014V02399 and #2016V00356

A. BACKGROUND

1. The parties to this Settlement Agreement are the United States of America and the Palm Springs Art Museum ("Museum").
2. This Settlement Agreement ("Agreement") resolves two complaints received by the United States Department of Justice, and a United States Attorney's Office ("USAO") investigation and compliance review of the Museum under Title III of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12181–12189 ("ADA"). Based on the USAO's investigation and compliance review, the USAO finds that the Museum had failed to provide appropriate auxiliary aids and services to individuals with hearing disabilities.
3. The investigation commenced when the Department received a complaint dated February 3, 2014, from Museum visitor J.V., who is deaf, alleging the Museum did not have a script of an audio tour for a special exhibit available to provide her full and equal enjoyment of the tour.
4. Subsequently, the Department received a complaint dated January 7, 2015, from Museum visitor D.P., who is hard of hearing, alleging the Museum did not have a properly functioning assistive listening device to accommodate his hearing loss to allow him full and equal enjoyment of a film offered by the Museum.

B. JURISIDICTION

5. The Museum is a non-profit corporation that exhibits contemporary, Western, and Native American art, culture, architecture, and natural history. The Museum operates three facilities. The primary facility is located at 300 South Palm Canyon Drive, Palm Springs, California 92262. The Museum also has two additional locations: The Architecture + Design Center located in the Edwards Harris Pavilion at 300 South Palm Canyon Drive, Palm Springs, California 92262, as well as the Palm Springs Art Museum in Palm Desert located at 72-567 Highway 111, Palm Desert, California 92260. All three facilities are subject to the terms of this Agreement.
6. Each Museum facility is a place of public accommodation subject to the requirements of Title III of the ADA and its implementing regulations. 42 U.S.C. §§ 12181(7)(H) & 12182; 28 C.F.R. Part 36. The Museum is a public accommodation as it owns, operates, or leases the three Museum facilities.
7. Public accommodations, such as the Museum, are required to provide full and equal enjoyment of their goods, services, facilities, privileges, advantages, and accommodations in the most integrated setting appropriate to people with disabilities. 42 U.S.C. §§ 12182(a) & (b)(1)(B); 28 C.F.R. §§ 36.201 & 36.203(a). Specifically, a public accommodation must:
   1. Ensure that no individual is discriminated against on the basis of disability in the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. §§ 12182; 28 C.F.R. § 36.201(a).
   2. Make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to people with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(a).
   3. Ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303.
8. The Attorney General is authorized to conduct periodic compliance reviews of public accommodations under the ADA. 42 U.S.C. § 12188(b)(1)(A)(i); 28 C.F.R. § 36.502(c).
9. The Attorney General shall investigate alleged violations of Title III of the ADA and may commence a civil action if there is reasonable cause to believe that any person or group of persons has been discriminated against in violation of Title III of the ADA and such discrimination raises an issue of general public importance. 42 U.S.C. § 12188(b)(1)(B); 28 C.F.R. §§ 36.503 & 36.504. Ensuring that persons who are deaf or hard of hearing have access to museum exhibits is an issue of general public importance.
10. As a result of the concerns raised by the USAO, the Museum has engaged in efforts to offer deaf or hard-of-hearing individuals equal access to its exhibits, programs, and activities.

C. DETERMINATIONS BY THE UNITED STATES

11. The USAO determined that the Museum had failed to ensure that people who are deaf or hard of hearing had an equal opportunity to participate in and benefit from services, programs, and activities offered to others without disabilities. The USAO identified various aspects of the Museum that were not in compliance with the ADA and, specifically, with the provisions identified in Paragraph 7 above.
12. The USAO initially identified the following specific violations of the ADA:
    1. The Museum did not provide to Complainant J.V. any captioning, transcripts or other means of effectively communicating the experience and content of the Museum's exhibits and special exhibits. See 28 C.F.R. § 36.303(a), (b) and (c).
    2. The Museum did not have properly functioning assistive listening devices for Complainant D.P. to view a film shown at the Museum. See 28 C.F.R. § 36.303(a), (b) and (c); ADA Standards for Accessible Design at §§ 219 & 706 (Sept. 15, 2010).
13. The USAO further alleges that the Museum had failed to make its exhibits, public programs, and other offerings accessible to deaf or hard-of-hearing individuals in several ways, including but not limited to the following:
    1. Failing to provide, or furnishing defective or faulty assistive listening devices;
    2. Failing to provide captioning or transcripts for audiovisual exhibits;
    3. Failing to make qualified sign language interpreters or other appropriate auxiliary aids or services available for lectures; and
    4. Failing to take steps to ensure that effective communication is provided, including adequately training staff and volunteers on how to address questions regarding accessibility services for individuals with hearing disabilities.

D. TERMS OF THE AGREEMENT

14. In order to avoid potential litigation, the parties agree to the terms of this Agreement. These terms are intended to redress only the violations of the ADA that have been identified in this Agreement.
15. In consideration of the terms of this Agreement and the Museum's promises contained in Section D of this Agreement, the United States agrees to close the investigations regarding the allegations contained in Complainant J.V.'s and Complainant D.P.'s complaints. The United States will not institute any civil action except as provided in paragraph 28 below.
16. In return, the Museum shall ensure that no individual is discriminated against on the basis of a hearing disability in the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. §§ 12182 & 12183; 28 C.F.R § 36.201(a).
17. The Museum shall provide full and equal enjoyment of its goods, services, facilities, privileges, advantages, and accommodations in the most integrated setting appropriate to individuals who are deaf or hard of hearing. 42 U.S.C. § 12182(b)(1)(B); 28 C.F.R. § 36.203.
18. The Museum shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with people with hearing disabilities, unless the Museum can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303.
19. The Museum shall respond to telephone calls from a telecommunications relay service in the same manner it responds to other telephone calls. 28 C.F.R. § 36.303(c)(4).
20. The Museum shall maintain in operable working condition those features of its facilities, including exhibits and equipment, required to be accessible by this Agreement or under the ADA. 28 C.F.R. § 36.211.

Specific Remedial Measures

21. Pursuant to this Agreement, the Museum will ensure that its audiovisual presentations, programs, and other exhibits are accessible, with the provision of appropriate auxiliary aids and services, as set forth in the Paragraphs 22-26.
22. Within four (4) months of the effective date of this Agreement, the Museum agrees to do the following:
    1. Audiovisual Presentations with Uncaptioned AudioTracks
       1. Provide transcripts for any audiovisual programs and computer interactives with uncaptioned audio tracks. The transcript of the audiovisual exhibits will, to the extent feasible, reflect the interaction experienced by visitors who are not deaf or hard of hearing. The availability of this service, as well as how to access it, will be advertised to visitors. See 28 C.F.R. § 36.303.
    2. Uncaptioned Audio-Only Programs
       1. Provide transcripts or wall text for those programs with audio-only tracks; advertise that this service is available; and provide information on how to access it. See 28 C.F.R. § 36.303.
    3. Audiovisual Programs with Uncaptioned Audio Tracks
       1. Provide captions or transcripts for all audiovisual presentations in permanent exhibitions.
       2. Provide captions or transcripts for all temporary audiovisual public programs that are scheduled by the Museum if the Museum has five or more business days to arrange for captions or transcripts.
       3. If captioned versions or transcripts of audiovisual presentations shown during public programs, touring exhibitions and special events are not available, the Museum will advertise that sign language interpreters, oral interpreters, assistive listening devices, or real-time captioning will be made available as soon as practicable and upon no more than five days' advance request. See 28 C.F.R. § 36.303.
       4. For public events that are organized less than two weeks before the event's commencement, the Museum will furnish appropriate auxiliary aids or services to ensure effective communication as required by 28 C.F.R. 36.303(c)(ii), and shall work with the event organizer to ensure that such appropriate auxiliary aids and services are provided.
    4. Assistive Listening Systems
       1. Furnish assistive listening devices free of charge to visitors who are hard of hearing. ADA Standards for Accessible Design at §§ 219 & 706 (Sept. 15, 2010).
       2. Provide in each theater and lecture hall in any Museum facility a minimum number of receivers equal to 4% of the total number of fixed seats. Of this number of receivers, 25% must be compatible with a hearing aid. ADA Standards for Accessible Design at § 219.3 (Sept. 15, 2010); see 28 C.F.R. Pt. 36, App. B, at § 219 (July 1, 2015).
    5. Signage
       1. Post a minimum of one sign in each Museum at the ticketing desk or booth advertising the availability of auxiliary aids and services. ADA Standards for Accessible Design at §§ 219.10 & 703.7.2.4 (Sept. 15, 2010).
       2. Indicate on the Museum's website that auxiliary aids and services are available and the method by which a visitor should request an aid or service.

Additional Remedial Measures

23. The Museum shall designate an ADA Compliance Officer and ensure that the ADA Compliance Officer undergoes training on the Museum's obligations under the ADA and this Agreement. The ADA Compliance Officer shall be responsible for handling hearing disability-related complaints from the patrons of the Museum and for ensuring the Museum's compliance with the ADA and this Agreement.
24. Within thirty (30) days of the effective date of this Agreement, to the extent not already undertaken, the Museum shall develop an ADA Complaint Resolution Policy to address ADA-related complaints and shall provide a written copy of the policy to the USAO for review and approval. This policy shall identify the ADA Compliance Officer, the procedure for filing complaints and the process by which complaints will be investigated and resolved. The Museum shall implement the policy within thirty (30) days of approval by the USAO.
25. Within sixty (60) days of the effective date of this Agreement, the Museum shall train all supervisors and managers on the Museum's obligations under the ADA and this Agreement. The Museum shall ensure that all newly hired supervisors and managers receive this training within thirty (30) days of hire or promotion.
26. The Museum shall provide a written report annually to the USAO on its progress regarding the completion of its obligations under this Agreement, including under Section E. The report shall identify and document (e.g., with photographs and/or signed declarations) the revisions that have been made and any training of employees that has occurred (by date and the content of the training), and include copies of any ADA-related policies that the Museum has adopted. The report shall be provided to the USAO annually on the anniversary of the effective date of this Agreement, except that the last report shall be provided three months prior to the expiration of this Agreement.

E. IMPLEMENTATION AND ENFORCEMENT

27. The USAO shall have the right, during the course of this Agreement and with seven (7) days' notice to the Museum, to conduct inspections of the Museum, and to request documents or photographs in order to evaluate compliance with this Agreement. The USAO shall make every effort to conduct its inspections at times that are agreeable to Museum so as to cause minimal disruption to its operations.
28. If the USAO believes that the Museum is not in compliance with this Agreement or any requirements contained herein, the USAO will notify the Museum in writing of the alleged noncompliance and attempt to seek a resolution of the matter with the Museum. If the parties are unable to reach a resolution within thirty (30) days of the date of the USAO's written notification, the USAO may seek enforcement of the terms of this Agreement and/or the ADA in court. In the event a court determines that the Museum has failed to comply with any term of this Agreement, the USAO may seek, and the court may assess, civil penalties as provided in 42 U.S.C. § 12188(b)(2)(C).
29. The USAO's failure to enforce any provision of this Agreement shall not be construed as a waiver by the USAO of any right to enforce any provisions.
30. This Agreement shall be binding upon the Museum, and its agents and employees. In the event the Museum seeks to transfer or assign all or part of its interests in any exhibition or facility covered by this Agreement, and the successor or assignee intends to carry on the same or similar use of the facility, as a condition of sale, the Museum shall obtain the written accession of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.
31. All notices, demands, or other communications to be provided under this Agreement shall be in writing and delivered by email or overnight delivery to the following persons and addresses (or such other persons and addresses as any party may designate in writing from time to time):
    1. For the Palm Springs Art Museum:

       ADA Coordinator
       Palm Springs Art Museum
       P.O. Box 2310
       Palm Springs, CA 92263

    2. For the United States:

       Chief, Civil Rights Section
       United States Attorney's Office
       300 North Los Angeles Street, Room 7516
       Los Angeles, CA 90012

32. This Agreement constitutes the entire Agreement between the parties relating to Department of Justice Case No. 202-12C-523, and USAO Matter Nos. 2014V02399 and 2016V00356 and no other statement, promise or agreement, either written or oral, made by either party or agents of any party, that is not contained in this written Agreement, shall be enforceable.
33. 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 USAO and the Museum shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the agreed upon relative rights and obligations.
34. This Agreement does not affect the Museum's continuing responsibility to comply with all aspects of the ADA not covered by this Agreement.
35. A signatory to this document in a representative capacity for the Museum represents that he or she is authorized to bind the Museum to this Agreement.
36. The effective date of this Agreement is the date of the last signature below. The Agreement shall remain in effect for three years from the effective date, unless extended by written agreement of the parties.