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HomeMy WebLinkAbout2006-156AOO(o LINDA ROSS, Plaintiff, V. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FORT PIERCE DIVISION CASE NO: 05 -14300 -Civ -MARTINEZ / LYNCH INDIAN RIVER COUNTY, FLORIDA d/b/a Gifford Aquatics Center, Defendant. STIPULATION FOR SETTLEMENT IT IS HEREBY stipulated and agreed by and between Plaintiff LINDA ROSS ("Plaintiff'); and Defendant INDIAN RIVER COUNTY, FLORIDA, d/b/a Gifford Aquatics Center ("Defendant"), as follows: WHEREAS, Plaintiff filed this action against Defendant for alleged violations of Title II of the Americans With Disabilities Act, 42 U.S.C. Section 12131-12134, et seq ("ADA") and the Rehabilitation Act, pursuant to which Plaintiff sought a permanent injunction and attorney's fees, expenses and costs; WHEREAS, subject to the terms set forth herein, Plaintiff and Defendant have agreed to finally resolve any and all claims and disputes by and between them; and NOW, THEREFORE, in consideration of the premises and the mutual covenants and undertakings contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, the parties hereto, intending to be legally bound hereby, agree to the following terms and conditions as full and complete settlement of this action: I. ALTERATIONS AND IMPROVEMENTS. The parties agree that Defendant shall cause the following alterations and improvements to be made to the property that is the subject of this action, which is commonly referred to as GIFFORD AQUATICS CENTER, located at 4895 43rd Avenue, Vero Beach, Florida 32967-6327: 1 A. Defendant shall provide an accessible, working, and usable aquatic chair with push rims; a seat height of 20 inches above the deck; a minimum seat width of 19 inches; movable footrests; and armrests located on both sides of the aquatic chair seat, with at least one armrest movable away from the side of the chair. Defendant shall institute a policy by which Plaintiff, and others similarly situated, will be assisted with rolling the chair in and out of the pool upon request. Defendant shall post signage in a conspicuous location indicating the availability of this aquatic chair, as well as instructions for its use and policy of providing assistance, and Defendant shall ensure the Plaintiff is able to enjoy the services and programs of Gifford Aquatics Center via the use of said working and usable aquatic chair. B. Defendant shall adjust the door closer on the womens' toilet / locker room doors to require no more than five (5) pounds of push or pull force to open, and ensure that wheelchair users and individuals with mobility impairments will not get trapped in the vestibule between the doors. II. JURISDICTION A. The parties agree that it is their intention for the District Court to retain jurisdiction to enforce this agreement. If for any reason the Court refuses to retain jurisdiction to enforce this agreement, the parties agree that jurisdiction to enforce this agreement will be in any Court of competent jurisdiction in Indian River County, Florida. i. The Plaintiff and Defendant make no representations or guarantees regarding the quality of any alterations, improvements, modifications, or changes of any kind whatsoever, as to whether the aforementioned comply with the State building construction standards, County Zoning Board regulations, or any other governing body whatsoever. 0 III. ENFORCEMENT CONSIDERATIONS. A. Readily Achievable. The parties hereto acknowledge that the alterations and modifications agreed to by the Plaintiff, and as set forth in this Stipulation for Settlement, consist of what the parties believe to be readily achievable pursuant to and for the purposes of Title II of the ADA. B. Time Frame. Defendant agrees to complete all alterations and modifications to the property by June 1, 2006. Plaintiffs representatives shall be provided reasonable access to the property to verify completion of the above referenced work. C. Non -Compliance. In the event the alterations and modifications required hereby are not timely completed in all respects, Plaintiff shall be entitled to seek an award for injunctive relief from the Court. The parties agree that if Defendant has timely commenced the modifications required hereby, and has proceeded with the completion thereof in good faith and with due diligence, but has been delayed in the completion thereof due to acts of God, force majeure, or events beyond the control of Defendant (such as inability to obtain building or zoning permits, failure of the county inspectors to make inspections, contractor defaults, work stoppages, etc.), the time periods for completion established hereby shall be extended appropriately, provided Defendant notifies Plaintiff in writing with backup documentation, prior to the expiration of the completion date. D. Notwithstanding the foregoing paragraph C, if any action or proceeding is commenced with regard to the subject matter of this Stipulation for Settlement, then the prevailing party in such action or proceeding shall be entitled to have its reasonable attorney's fees and costs incurred in said action 3 IVA V VI VII VIII. or proceeding promptly reimbursed by the non -prevailing party. ATTORNEY'S FEES AND COSTS. The Defendant shall pay the Plaintiff's counsel, Schwartz Zweben & Slingbaum, LLP., the sum of $325.00 (Three Hundred Twenty Five Dollars), within ten days of the Plaintiff's execution of this Agreement. FAILURE TO ENFORCE. Failure by any one of the parties to enforce this entire Stipulation for Settlement or any of its provisions with regard to any deadline or any other provision contained herein shall not be construed as a waiver by that party of any right to do so. DISCLOSURE. A. The signing and execution of this Stipulation for Settlement shall also constitute an agreement by the Defendant and the Plaintiff and any of their parents, subsidiaries, officers, assigns, representatives, and agents thereof that this is a public agreement. A copy of this document or any information contained in it may be made available to any person. B. The parties shall request the dismissal of this matter with prejudice, subject to the Court retaining jurisdiction for enforcement purposes. TIME IS OF THE ESSENCE. The parties further agree that time is of the essence in all respects regarding this Stipulation of Settlement. AUTHORITY AND POWER OF DEFENDANTS. The Defendant stipulates and represents that it has the power and authority to execute and deliver this Stipulation for Settlement and to perform its obligations hereunder. IX. CONTINUING OBLIGATION. It is the intention of the parties that, if the property is sold or transferred prior to the completion of all the obligations set forth herein, any purchaser or successor in interest shall be required to undertake all of the obligations as set forth herein. N X. AUTHORITY TO EXECUTE. Each party represents that each person executing this Stipulation for Settlement on its behalf has been authorized to sign on behalf of the respective party and to bind it to the terms of this 5 Stipulation of Settlement. XI. REFERENCES. Words and phrases used in this Agreement that have definitions provided in the ADAAG or 28 C.F.R. §36.104 shall be construed as defined in the ADAAG or 28 C.F.R. §36.104, as applicable. ADAAG shall mean the Americans with Disability Act Architectural Guidelines, 28 CFR Part 36, July 1, 1994 Edition. XII. COUNTERPARTS. The parties agree that this Stipulation for Settlement and any and all other documents in connection with the settlement of this matter may be executed in counterparts, each of which shall be deemed an original but all of which taken together shall constitute but one and the same instrument. Faxed copies shall be deemed the same as originals. XIII. ENTIRE AGREEMENT, This Stipulation for Settlement constitutes the entire agreement among the parties on the matters raised herein. No other statement, promise, or agreement, either written or oral, made by either party or agents of either party not contained in this written Stipulation for Settlement, shall be enforceable. If a court of competent jurisdiction concludes that any part of this Stipulation for Settlement is unenforceable, such portion shall be severed from this Stipulation for Settlement, and all other provisions shall remain enforceable. XIV. VOLUNTARY EXECUTION. The parties hereby represent and acknowledge that this Stipulation for Settlement is given and executed voluntarily, and is not based upon any representation by any of the parties to another party as to the merits, legal liability, or value of any claim of the parties or any matters related thereto. XV. ACKNOWLEDGEMENT. The parties acknowledge they have been afforded an opportunity to consider the terms and conditions of this Stipulation for Settlement, that they have read and understand the terms and conditions herein, and that they have retained counsel and have been 5 provided with the opportunity to consult with their respective counsel prior to their execution of the Stipulation for Settlement. Each party represents and warrants that it has had the opportunity to have this Agreement reviewed by counsel and be advised by counsel as to the rights and obligations of each party and to modify this Agreement as necessary. As a result, this Agreement shall not be construed or interpreted more strictly against one party than another on the grounds that this Agreement or any draft thereof was prepared by either party. XVI. WRITTEN NOTICE. Each notice ("Notice") provided for under this Stipulation for Settlement must comply with the requirements of this Section. Each Notice shall be in writing and sent by certified mail return receipt requested, addressed to the appropriate party (and marked to a particular individual's attention, if so indicated) as hereinafter provided. Each Notice shall be effective upon being so deposited, but the time period in which a response to any notice must be given or any action taken with respect thereto shall commence to run from the date of receipt of the Notice by the addressee thereof, as evidenced by the return receipt. Rejection or other refusal by the addressee to accept or the inability to deliver because of a changed address of which no Notice was given shall be deemed to be the receipt of the Notice sent. Any party shall have the right from time to time to change the address or individual's attention to which notices to it shall be sent by giving to the other party at least ten (10) days prior notice thereof. The parties' addresses for providing Notices hereunder shall be as follows: 0 n Gene R. Zweben, Esq. SCHWARTZ, ZWEBEN & SLINGBAUM, LLP 205 SW Winnachee Drive Stuart, Florida 34994 Defendant: Paul Berg, Esq. CLEM, VOCELLE, & BERG, LLP 3333 20th Street Vero Beach, Florida 32960 IN WITNESS WHEREOF, the parties have hereunto signed their names on the day and year written below. On Behalf of Plaintiff: Date: LINDA ROSS On Behalf of Defendant: BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY. FLORIDA By: Arthur R. Neu6etger, Chairm n BCC approved: May 16, 2006 ATTEST: Jeffrey K. Barton, Clerk By: Deputy Clerk Approved as to form and legal sufficiency: By: I✓ ' ` l PA' 1% 6� a Willi. Collins'II County Attorney 7