SETTLEMENT AGREEMENT 1. Parties. The parties to this Settlement Agreement ("Agreement") are the United States of America (the "United States") and Michael Gindling. Michael Gindling is the owner of property located at 734 N. Michigan Avenue, Greensburg, Indiana ("the Property") and owns and operates Dairy Point, Inc., ("Diary Point") doing business at the Property that is the subject of this Agreement. 2. Nature of Complaint. This matter was initiated by a complaint filed with the United States concerning Dairy Point and by virtue of the Attorney General's authority to initiate compliance reviews to investigate possible violations of the Americans With Disabilities Act ("ADA") . 42 U.S.C. § 12188 (b) ; 28 C.F.R. § 36.502. The complaint was investigated by the U.S. Attorney's Office, Southern District of Indiana, under the Authority granted by 42 U.S.C. § 12188 (b) . 3. Applicability of the ADA. The ADA applies Michael Gindling because he is the owner and operator of the Dairy Point, Inc., a place of public accommodation within the meaning of 42 U.S.C. § 12181 (7) . 4. Purpose of Agreement. The purpose of this Agreement is to resolve certain ADA violations at Dairy Point, set forth below, identified during the site inspection conducted by the U.S. Attorney's Office. Michael Gindling agrees to resolve these violations in a manner that is consistent with Title III of the ADA, 42 U.S.C. §§ 12181-89, and the Title III regulation of the Department of Justice, 28 C.F.R. Pt. 36, including the Standards for Accessible Design, Appendix A (the "Standards"). 5. Actions to be Taken. Michael Gindling agrees to take the following actions: (1) within 30 days of this Agreement, modify the parking lot of provide the required number, size, and designation of accessible parking spaces, including a van accessible space, in compliance with §§ 4.6 and A4.6 of the Standards. Specifically, Michael Gindling agrees to designate a space which shall be a van-accessible space (or, alternatively a universal parking space design may be utilized) , and to add appropriate signage, including a sign mounted high enough above the ground so that it cannot be obscured by a vehicle parked in the space; May-19-1999 15:17 317 226 5027 97% P.02 (2) within 30 days of this Agreement, install signage in compliance with § 4.30 of the Standards identifying for patrons the accessible entrance and bathroom facility; and (3) by February 1, 1999, install a uni-sex restroom in compliance with §§ 4.22 and A4.22 of the Standards, and as set forth in Figure 28 in § 4.16 of the Standards. As part of these modifications, Dairy Point shall: (i) ensure that the size, arrangement and number of toilet stalls complies with § 4.17.3 of the Standards; (ii) install grab bars in compliance with § 4.17.6 of the Standards; (iii) provide clear widths of all doorways in compliance with § 4.13 of the Standards; (iv) ensure that doors comply with § 4.13 of the Standards; (v) replace door hardware in compliance with § 4.13.9 of the Standards; (vi) insulate pipes under lavatories in compliance with § 4.19.4 of the Standards; (vii) lower bathroom mirrors so that the bottom edge of the reflecting surface is no higher than 40 inches above the finish floor, in compliance with § 4.19.6 of the Standards; and (viii) install flush controls and faucets in compliance with § 4.27.4 of the Standards; and (ix) install appropriate signage in compliance with § 4.30 of the Standards. In addition Michael Gindling agrees to provide an access path along the exterior of the building to the bathroom in compliance with § 4.3. 6. Future Alterations. Michael Gindling agrees that all future alterations undertaken at the Property shall comply with Title III of the ADA, 42 U.S.C. §§ 12181-89, and the Title III regulation of the Department of Justice, 28 C.F.R. Pt. 36, including the Standards. 7. Progress Report/Inspections. Within 45 days of this Agreement, Michael Gindling will submit a report to the United States Attorney's Office of the Southern District of Indiana detailing the actions taken to comply with paragraph 5(1) and (2) of this Agreement. This report shall include photographs of the alterations. By March 1, 1999, Michael Gindling will submit a report to the United States Attorney's Office of the Southern District of Indiana detailing the actions taken to comply with paragraph 5(3) of this Agreement. This report shall include photographs of the alterations. In addition, Michael Gindling shall permit representatives of the Department of Justice to 2 May-19-1999 15:18 317 226 5027 97% P.03 physically inspect the Property and interview Dairy Point employees, all of which may be done without notice to Michael Gindling. 8. Damages and Civil Penalties. Michael Gindling agrees to pay a civil penalty of $500 to the United States to vindicate the public interest. The foregoing civil penalty shall be paid by Michael Gindling within 30 days after the effective date of this Agreement by check in the amount of $500, payable to the United States Department of Justice. 9. Agreement not to Sue. Provided that Michael Gindling fully complies with all terms of this Agreement, the United States will not bring a civil action to enforce the ADA as it relates to any alleged violations specifically addressed in paragraph 5 of this Agreement. However, this shall not limit the United States' ability to enforce this Agreement as set forth in paragraph 10 of this Agreement. Nor does this Agreement prevent the United States from investigating and/or pursuing other potential ADA violations that may involve Michael Gindling. Nor does this Agreement otherwise relieve Michael Gindling from fully complying with the ADA. 10. Enforcement. If the United States believes that this Agreement or any requirement in this Agreement has been violated, it may institute a civil action against Michael Gindling in the Southern District of Indiana or any other appropriate court to enforce the terms of this Agreement and seek other relief. If the court finds that this Agreement has been violated, Michael Gindling agrees that such a finding shall establish a lack of good faith on his part, and further agrees to pay a stipulated penalty equal to the maximum monetary penalty provided by 42 U.S.C. § 12188 (b) (2) , in addition to any other penalties or relief that may be authorized or that the court may award. 11. Successors in Interest. In the event that Michael Gindling transfers, sells, assigns, or otherwise releases his interests in some or all of Dairy Point or the Property located at 734 N. Michigan Avenue, Greensburg, Indiana, this Agreement shall be binding on all subsequent successors, assigns, owners and/or operators of Dairy Point or the Property. Michael Gindling agrees to notify any successor as to the existence and terms of this Agreement prior to the transfer of any interest. 12. Non-Waiver. Failure by the United States to enforce any provision(s) of this Agreement shall not be construed as a waiver of its right to do so with regard to any other provision(s) of this Agreement. 13. Entire Agreement. This Agreement sets forth the complete agreement between the parties. In entering into this 3 May-19-1999 15:18 317 226 5027 97% P.04 Agreement, neither the United States nor Michael Gindling has relied on any representation or statement not set forth herein. 14. Authority to Bind. A signer of this document in a representative capacity for a partnership, limited partnership, corporation, or other entity, represents that he or she is authorized to bind such partnership, corporation, or other entity to this Agreement. 15. Effective Date. The effective date of this Agreement is the date of the last signature below. For the United States: /S/ Judith A. Stewart United States Attorney Date March 25, 1999 /S/ Tim A. Baker Assistant United States Attorney Date: 3/25/99 For Dairy Point, Inc.: /S/ Michael Gindling Date: 3-24-99 4 May-19-1999 15:19 317 226 5027 97% P.05