SETTLEMENT AGREEMENT BETWEEN

THE UNITED STATES OF AMERICA

AND

TRAMCON, INC., D/B/A ST. THOMAS SKYRIDE AND PARADISE POINT

UNDER THE AMERICANS WITH DISABILITIES ACT

IN DEPARTMENT OF JUSTICE MATTER NUMBER 202-90-2

 

 

Background

  1. This matter was initiated by a complaint filed under title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12181-12189, and its implementing regulations, 28 C.F.R. pt. 36, with the United States Department of Justice against Tramcon, Inc., d/b/a St. Thomas Skyride and Paradise Point. The complaint was received by the Department of Justice, Disability Rights Section, and investigated by the United States Attorney's Office for the District of the Virgin Islands, pursuant to the authority granted by title III of the ADA, 42 U.S.C. §12188(b)(1)(A)(I).
  2. The parties to this Settlement Agreement ("Agreement") are the United States of America ("the United States") and Tramcon, Inc., d/b/a St. Thomas Skyride and Paradise Point ("Tramcon").
  3. The Attorney General is authorized to enforce title III of the ADA to ensure that newly constructed facilities are readily accessible to and usable by individuals with disabilities, and that altered facilities are readily accessible to and usable by individuals with disabilities to the maximum extent feasible. 42 U.S.C. § 12183; 28 C.F.R. §§ 36.401 and 36.402. The Attorney General is also authorized to enforce title III to ensure that architectural barriers to accessibility are removed when such removal is readily achievable. 42 U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R. § 36.304. The Attorney General may commence a civil action to enforce title III in any situation where the Attorney General believes a pattern or practice of discrimination exists or a matter of general public importance is raised. Id. at § 12188(b)(1)(B); 28 C.F.R. § 36.503.
  4. An investigation conducted by the United States found 97 violations of the ADA that limited access to Tramcon. The investigation revealed that certain aspects of Tramcon's premises that were constructed or altered after title III's effective dates violate the ADA's requirements for new construction and alterations. The investigation further revealed that certain aspects of Tramcon's premises not constructed or altered since title III's effective date contain architectural barriers to access, and that removal of these barriers is readily achievable.
  5. Tramcon renews its commitment to ensuring that individuals with disabilities receive the full and equal enjoyment of the goods and services of St. Thomas Skyride and Paradise Point, as required by 42 U.S.C. § 12182; 28 C.F.R. § 36.201(a). To demonstrate that commitment, Tramcon agrees to correct violations of the ADA Standards for new construction and alterations, and also to remove architectural barriers that exist at St. Thomas Skyride and Paradise Point. Tramcon agrees to take the steps outlined in this Agreement to ensure that individuals with disabilities, including individuals who use wheelchairs, have an opportunity equal to that of non-disabled individuals to enjoy the goods and services of St. Thomas Skyride and Paradise Point.
  6. Accordingly, to avoid the burdens and expenses of litigation, the United States and Tramcon enter into this Agreement to resolve Department of Justice Matter Number 202-90-2. In consideration of, and consistent with, the terms of this Agreement, the United States agrees to refrain from filing a civil suit in this matter against Tramcon regarding all matters contained within this Agreement, except as provided in the section entitled "Implementation and Enforcement."
  7. For clarity of this Agreement and the provisions thereof, the following are defined terms within this Agreement:
    1. Base Station" refers to the ticketing counter, shopping, and loading platform for the Tramway at the base of Flag Hill on Long Bay Road.
    2. "Paradise Point" is the two-level bar, restaurant, nature trail, gazebo, shopping center and associated activities next to the Summit Station.
    3. "Summit Station" is the loading platform where the Tramway unloads passengers who rode from the Base Station and picks up passengers returning to the Base Station.
    4. "Tramway" is the actual ride consisting of passenger compartments suspended from a cable used to transport guests from the Base Station to the Summit Station.
    5. "St. Thomas Skyride" is the Tramway, Base Station, Summit Station and Paradise Point.

    St. Thomas Skyride consists of the Tramway; Base Station where the ride begins and ends; Summit Station where the passengers get off the Tramway to shop, eat, enjoy the view, and browse at Paradise Point until they are ready to return to the Base station. These facilities are places of public accommodation covered by title III of the ADA. See 42 U.S.C. § 12181(7)(B) and ( C ); 28 C.F.R. §36.104. The Base Station and Summit Station were constructed after the effective date of title III's provisions for new construction. Therefore, they are required to comply strictly with the ADA Standards for Accessible Design (ADA Standards), 28 C.F.R. pt. 36, App. A. Paradise Point was constructed before the effective date of title III's provisions for new construction. It contains architectural barriers to access, and removal of these barriers is readily achievable.

  8. Tramcon and its officers, agents, and employees are hereby enjoined from:
    1. making any alterations to St. Thomas Skyride that do not comply with title III of the ADA and the ADA Standards; and
    2. failing to comply with the continuing obligation to remove architectural barriers where such removal is readily achievable.
  9. Tramcon agrees to make the modifications enumerated in paragraphs 10 through 19. The installation of the elevator in the Base Station in paragraph 10 subparagraph F shall be undertaken no later than March 31, 2012. All citations are to the Title III regulation, 28 C.F.R. pt. 36, and the ADA Standards for Accessible Design, 28 C.F.R. Pt. 36, App. A.
  10. The following modifications and additions shall be made in the Base Station:
    1. Install a ramp to provide an accessible route from the public sidewalk to the Base Station entrance in order to make the route from public sidewalk to the Base Station entrance accessible. Standards §§ 4.1.3(8), 4.1.2(1), 4.3.1. and 4.8.1.
    2. Provide at least two van accessible parking space in the lower parking lot. Standards §§ 4.1.2(5)(a) & (b) and 4.6.1. To do so, Tramcom may either re-stripe an existing accessible parking space so that it is a van accessible parking space with a minimum width of 96 inches and an access aisle with a minimum width of 96 inches for a total width of 192 inches, Standards §§ 4.1.2(5)(b) and 4.6.3, or provide a "universal" parking space with a minimum width of 132 inches and an access aisle with a minimum width of 60 inches for a total width of 192 inches. Standards §§ 4.1.2(5)(a) and (b) and § 4.6.3.
    3. Provide an accessible route from the lower level parking lot and accessible parking spaces to the Base Station entrance. Standards §§ 4.1.3(8), 4.1.2(1) and 4.3.1.
    4. Ensure that all accessible parking spaces and access aisles are level with a slope not exceeding 1:50 in all directions. Standards §§ 4.1.2(5)(a) and (b) and 4.6.3.
    5. Replace the existing entrance door to the Base Station with a 36-inch single door, Standards §§ 4.1.3(8), 4.1.3(7)(a) and 4.13.5, and modify the threshold so that the change in level does not exceed ½ inch with a 1:2 bevel. Standards §§ 4.1.3(8), 4.1.3(7)(a), 4.13.8 and 4.5.2.
    6. Install an elevator in the Base Station. Standards §§ 4.1.3(5) and 4.10.1.
    7. Provide a ramp up to the ticket counter so that the counter is a maximum of 36 inches above the finish floor, Standards §§ 4.8.1 4.1.8 and 7.2(1), and provide an accessible route from the public sidewalk, parking lot, and Base Station entrance to the ticket window. Standards §§ 4.1.2(1) and 4.3.1. §
    8. Modify the existing toilet room on the lower floor to make it fully accessible.

      Standards §§ 4.1.3(11) and 4.22.1, including correcting and complying with the following:

      The maneuvering space on the latch side of the door is 12 inches from the latch to the edge of the lavatory, and a minimum of 18 inches is required at the latch pull side of a door with a forward approach. Standards §§ 4.1.3.(11), 4.22.2, 4.13.6 and figure 25 (a).

      The toilet room door swings into the 30 inch wide by 48 inch deep minimum clear floor space required at the lavatory. Standards §§ 4.1.3(11) and 4.22.2.

      The toilet room is not large enough to provide an unobstructed turning space at least 60 inches in diameter or a t-shaped space complying with the Standards figure 3 (a) and (b).

      The clear floor space at the toilet is 33 inches wide and 58 inches deep. A minimum clear floor space of 48 inches wide by 66 inches deep is required for a forward approach. Standards §§ 4.1.3.(11), 4.22.2., 4.16.2 and figure 28.

      The toilet lacks a side and rear grab bar as required by Standards §§ 4.1.3(11), 4.22.4, 4.16.4, 4.26.1 and figure 29 (a) and (b).

      The height of the toilet seat, location of the flush control, and location of the toilet paper space dispenser must comply with Standards §§ 4.1.3(11), 4.22.4, 4.16.3, 4.16.5 and 4.16.6.

      The height and knee clearance of the lavatory, type of faucet, insulation and configuration of the hot water and drain pipes, and the height of the mirror (if provided) must comply with the Standards §§ 4.1.3(11), 4.22.6, 4.19.2, 4.19.4, 4.19.5 and 4.19.6.

  11. The following modifications shall be made at Paradise Point and the Summit Station:
    1. Install a ramp to provide an accessible route from the Summit Station to the wedding gazebo/artist's studio. Standards §§ 4.1.2(2), 4.3.1 and 4.8.1.
    2. Provide an accessible route from the Summit Station to Paradise Point. Standards §§ 4.1.2(2), 4.3.1 and 4.8.1. In addition, the following violations must be corrected:
      The concrete ramp, which is surrounded by risers and two sets of stairs, is extremely steep with a slope of 1:7.9, which exceeds the maximum allowed of 1:12. Standards §§ 4.1.2(1), 4.3.7, 4.8.2.
      The ramp lacks handrails on both sides, as required by Standards §§ 4.1.2(1), 4.3.7, 4.8.5, 4.26.1, and edge protection, as required by Standards §§ 4.1.2(1), 4.3.7 and 4.8.7.
      The handrails on both sides of the stairway with nine risers does not extend 12 inches beyond the top riser as required by Standards §§ 4.1.3(4), 4.9.4(2) and 4.26.1.
  12. Install two vertical lifts at Paradise Point no later than March 31, 2012. 28 C.F.R. § 36.401(d)(ii)(A) (Because the building contains more than five retail establishments and the retail establishments are located on the first and second stories, it is considered a shopping center, and a vertical lift serving each level of the summit building is required. Standards §§ 4.1.6(3)(g) and 4.11.1. 4.1.3(5) and 4.10.1.
  13. Ensure that the tenants at Paradise Point:
    1. Install accessible retail counters, a portion of which must be a minimum of 36 inches long and a maximum of 36 inches above the finished floor. Standards § 7.2(1).
    2. Modify or relocate all fixed displays to ensure that the accessible route between the displays is a minimum of 36 inches wide, or a minimum of 32 inches wide for a portion no longer than 24 inches. Standards §§ 4.1.3(1) and 4.3.3.
  14. At Paradise Point parking lot:
    1. Provide at least one van accessible parking space. Standards §§ 4.1.2(5)(a) & (b) and 4.6.1.
    2. Modify the parking lot gravel surface to make the required accessible parking space, the access aisle, and the accessible route leading to the building entrance stable, firm and slip resistant. Standards §§ 4.1.2(1), 4.1.2(4), 4.1.2(5)(a) and (b), 4.6.3, 4.3.6 and 4.5.1.
  15. Ensure that the Restaurant and Bar at Paradise Point are accessible by:
    1. Modifying the open-air bar in the building to provide access within the bar area not just on the exterior observation deck. Standards § 5.2.
    2. Modifying the performing area on the observation deck to provide an accessible route to the stage. Standards §§ 4.1.3(19)(a) and 4.33.5.
  16. Modify the women's toilet room by correcting all violations related to the Women's Toilet Room in Appendix A to this Agreement. Standards §§ 4.13.6, 4.1.3(7)(b), 4.1.3(11), 4.1.3(14), 4.1.3(16)(a), 4.2.4.1., 4.2.5, 4.2.6, 4.13.9., 4.16.1, 4.17.1., 4.17.6, 4.19.6, 4.22.4, 4.22.6., 4.22.7, 4.27.2, 4.27.3, 4.28.1., 4.30.1, 4.30.4, 4.30.5, 4.30.6; 28 C.F.R § 36.211.
  17. Modify the men's toilet room by correcting all violations related to the Men's Toilet Room in Appendix A to this Agreement. Standards §§ 4.13.6, 4.1.3(7)(b), 4.1.3(11), 4.1.3(14), 4.1.3(16)(a), 4.2.4.1., 4.2.5, 4.2.6, 4.13.9., 4.16.1, 4.17.1., 4.17.6, 4.18.1, 4.19.6, 4.22.4, 4.22.5, 4.22.6., 4.22.7, 4.27.2, 4.27.3, 4.28.1., 4.30.1, 4.30.4, 4.30.5, 4.30.6; 28 C.F.R. § 36.211.

    COMPLETION, CERTIFICATION AND NOTICE

  18. Tramcon agrees that all remedial work (including all remedial work performed prior to execution of this Agreement) will be done in compliance with the ADA Standards. Any modifications performed by Tramcon that do not strictly comply with the ADA Standards must be redone within ninety (90) days of the United States' objections.
  19. No later than 180 days prior to the expiration of this Agreement, Tramcon shall certify to the United States, in writing, that it has fulfilled all of its obligations under this Settlement Agreement. The certification shall set out each of the obligations and shall describe the steps Tramcon has taken to fulfill these obligations. Tramcon shall provide the United States with written documentation evidencing its completion of all corrective actions in sufficient detail for the United States to confirm independently that all work has been done in conformance with the parties' agreement. Such evidence may include, but is not limited to, color photographs, purchase orders, permits, and/or architectural drawings, if necessary. Tramcon will allow representatives of the United States access to St. Thomas Skyride so that the United States may monitor compliance with the certification and this Agreement.
  20. In the event that Tramcon is required to obtain, in order to achieve compliance with this agreement, any building, mechanical, electrical, plumbing or other permit or approval, Tramcon shall seek such permit or approval in good faith and in a timely fashion. If any necessary permit or approval is not granted within the time anticipated by Tramcon for obtaining the permit or approval, or is denied, Tramcon shall promptly notify counsel for the United States. The parties shall thereafter attempt, in good faith, to determine how much additional time is required to secure the permit or approval and complete the work at issue, or, if the permit or approval has been denied, shall attempt to identify alternative methods of removing the barrier in question, or otherwise providing access to the goods or services affected by the barrier.

    ENFORCEMENT

  21. The United States may review compliance with this Agreement at any time and may enforce this Agreement if the United States be¬lieves that it or any requirement thereof has been violated. If the United States believes that this Agreement or any portion of it has been violated, it will raise its concern(s) with Tramcon and the parties will attempt to resolve the concern(s) in good faith. The United States will give Tramcon 30 days from the date it notifies Tramcon of any breach of this Agreement to cure that breach, prior to instituting any court action.
  22. 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 the United States' right to enforce other deadlines and provisions of this Agreement.
  23. If any term 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 Tramcon 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 initially agreed upon relative rights and obligations.

    ENTIRE AGREEMENT

  24. This Agreement constitutes the entire agreement between the parties, and no other statement, promise, or agreement, either written or oral, made by any of the parties or agents of any of the parties, that is not contained in this written Agreement, shall be enforceable regarding the matters raised herein.

    AUTHORITY TO BIND

  25. This Agreement shall be binding on Tramcon, including all its principals, agents, and successors in interest, and employees, as well as any person acting in concert with Tramcon, and Tramcon has a duty to so notify all such principals, agents, and successors. In the event Tramcon 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 sale Tramcon shall obtain the written accession of the successor or assign to any obligations remaining under this agreement for the remaining term of this Agreement.

    IMPLEMENTATION

  26. This Agreement resolves all issues raised in United States' Matter No. 202-90-2. It is limited to those issues and does not address Tramcon's other obligations under the ADA, including physical access at any other facility or facilities owned, leased, or operated, now or in the future, by Tramcon.
  27. The person signing this document for Tramcon represents that he is authorized to bind Tramcon to this Agreement.
  28. This Agreement will be provided to any person upon request.
  29. Any notice required to be given pursuant to this Settlement Agreement shall be sent by overnight delivery, to the parties at the following addresses:
    1. If from Tramcon to the United States, to:

      Joycelyn Hewlett
      Assistant U.S. Attorney
      District of the Virgin Islands
      Ron deLugo Federal Building
      5500 Veterans Drive, Suite 260
      St. Thomas, V.I. 00802-6424

    2. If from the United States to Tramcon, to:

      Dean Luke/Ruth Ann Magnuson, Esq.
      Tramcon, Inc.
      9617 Estate Thomas
      Skyride Mall, 2nd Floor
      St. Thomas, V.I. 00802

  30. The Effective Date of this Agreement is the date of the last signature below.
  31. This Agreement shall remain in full force and effect for a period of three years from its Effective Date.

Agreed and Consented to by:

FOR TRAMCON, INC.

 

 

By: ______________________________

Glenn Elskoe
President
Tramcon, Inc.
9617 Estate Thomas
St. Thomas, V.I. 00802

April 25, 2011

Date

 

FOR THE UNITED STATES OF AMERICA

RONALD W. SHARPE
United States Attorney


By: ______________________________

Jocelyn Hewlett
Assistant United States Attorney
Ron deLugo Federal Building
5500 Veterans Drive, Suite 260
St. Thomas, V.I. 00802-6424

April 27, 2011

Date

 

 

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May 12, 2011