SETTLEMENT AGREEMENT BETWEEN 
THE UNITED STATES OF AMERICA
AND
THE IOWA CITY COMMUNITY SCHOOL DISTRICT
UNDER
THE AMERICANS WITH DISABILITIES ACT

This settlement agreement (the “Agreement”) is entered into between the United States of America and the Iowa City Community School District (collectively, the “Parties”).

INTRODUCTION

1. The United States initiated an investigation of the Iowa City Community School District (the “ICCSD”), under Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131–12134, (“Title II”), and its implementing regulation, 28 C.F.R. Part 35, following receipt of a complaint filed with the U.S. Department of Justice on behalf of several families, alleging that newly constructed playgrounds at several elementary schools are inaccessible to children with disabilities.
2. In the course of its investigation, the United States reviewed compliance of newly constructed playgrounds, and playgrounds which were not newly constructed but where modifications or alterations were made or were in the process of being made, at the twelve ICCSD elementary schools set forth in Exhibit 1 (the “Playgrounds”) with the ADA’s applicable accessibility standards.  The investigation revealed barriers to access for people with disabilities at all of the Playgrounds.  Accordingly, the United States has concluded that qualified individuals with disabilities are, by reason of such disabilities, excluded from participation in or are denied the benefits of ICCDS’s programs, services, or activities, and are subjected to discrimination in violation of Title II of the ADA.  The agreed upon remedial actions below are intended to remedy those violations.
3. The parties agree that it is in their best interests, and the United States believes it is in the public interest, to resolve this matter without engaging in protracted litigation.  The parties have therefore voluntarily entered into this Agreement.
4. In consideration of, and consistent with, the terms of this Agreement, the Department of Justice agrees to close its investigation, except as provided in the section entitled “Enforcement and Miscellaneous Provisions.”
5. The ADA applies to the ICCSD because it is a “public entity” as defined by Title II.  42 U.S.C. § 12131(1).
6. The United States is authorized under 28 C.F.R. Part 35, Subpart F, to investigate complaints alleging noncompliance with Title II and its implementing regulation, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements.   Furthermore, the Attorney General is authorized, under 42 U.S.C. § 12133, to bring a civil action to enforce Title II of the ADA.
7. During the United States’ investigation, the 1991 ADA Standards for Accessible Design (1991 Standards), 28 C.F.R. Part 36, Appendix D and the 2010 ADA Standards for Accessible Design (2010 Standards), 28 C.F.R. § 35.104, which consist of the 2004 ADAAG, see appendices B and D to 36 C.F.R. part 1191, and the requirements in 28 C.F.R. § 35.151, were used to determine whether the Playgrounds contain barriers to access. 

ACTIONS TAKEN BY ICCSD

8. To date, the ICCSD reports that it has undertaken extensive remedial measures regarding the Playgrounds. See Exhibit 2 for detailed information.

REMEDIAL ACTIONS

9. Program Access in Existing Facilities:  The ICCSD will make its Playground programs, services, and activities, when viewed in their entirety, readily accessible to and usable by people with disabilities so they can participate equally in the ICCSD’s programs, services, and activities.
10. New Construction or Alterations:  The Playgrounds are for public use, and must comply with the 2010 ADA Standards for Accessible Design, 28 C.F.R. § 35.104 (defining the “2010 Standards” as the requirements set forth in appendices B and D to 36 C.F.R. Part 1191 and the requirements contained in 28 C.F.R. § 35.151).  Any new construction, additions or alterations to the Playgrounds facilities by the ICCSD must be made so as to be readily accessible to and usable by individuals with disabilities, as set out in the 2010 Standards. 
11. Elements in Exhibit 1:  Modifications to the ICCSD Playgrounds will be made as detailed in Exhibit 1, on or before January 1, 2023.  Elements identified as not complying with the accessibility requirements as applicable shall be modified to comply with the 2010 Standards.
12. Maintenance:  Throughout the term of this Agreement, consistent with 28 C.F.R. § 35.133(a), the ICCSD will maintain the accessibility of the Playgrounds’ programs, activities, services, facilities, and equipment, including routinely testing accessibility equipment and routinely auditing the accessibility of its programs, services and activities.  This provision, however, does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.  28 C.F.R. § 35.133(b).
13. Sidewalks and Curb Cuts:  As identified in Exhibit 1 of this Agreement, the ICCSD will ensure that sidewalks, including curb ramps or other sloped areas serving the surveyed ICCSD Playgrounds, comply with the ADA’s accessibility standards.
14. Architectural Plans and Instructions:    
    1. Both parties agree that some items remaining to be completed do not require architectural plans. For these items, which are specified on Exhibit 1, ICCSD shall provide before and after photographs of the modifications and Paragraph 14(B) shall not apply.
    2. For the items to be completed for which Paragraph 14(A) does not apply, ICCSD will provide the United States, for its approval, copies of all architectural plans and instructions necessary to make the modifications which remain to be completed as detailed in Exhibit 1.     All architectural plans and instructions necessary to make the modifications which remain to be completed as detailed in Exhibit 1 shall be provided to the United States 60-90 days prior to work beginning on the specific item or items. The United States may make any corrections or modifications to those plans as necessary for ADA compliance.  The ICCSD will not begin work (for modifications not already completed as of the effective date of this Agreement) until the United States has made any corrections or modifications to the ICCSD’s architectural plans and instructions as necessary for ADA compliance and indicated that the ICCSD may proceed. If the United States has not provided ICCSD with corrections or modifications to the architectural plans and instructions within 60 days of its receipt of the plans and instructions, the plans and instructions are deemed approved.

ENFORCEMENT AND MISCELLANEOUS PROVISIONS

15. Reporting:
    1. When all work required by this Agreement and Exhibit 1 is completed for a site, ICCSD will include photographs showing all modified elements and relevant measurements for that site in the next annual report that ICCSD submits.  Reports also will include final architectural plans for certain modifications not already completed as of the effective date of this Agreement. Final architectural plans will only be provided for items as specified in Paragraph 14 and Exhibit 1. 
    2. ICCSD will submit its first written report to the United States six months after the date of this Agreement and then annually thereafter until the Agreement expires.  For the four sites listed in Exhibit 1 where all work was fully completed prior to the effective date of this Agreement, ICCSD will include photographs showing modified elements and relevant measurements for all modifications at those four sites in its first report to the United States.
16. Delivery of Materials:  All communications including reporting materials sent to the United States pursuant to this Agreement shall be in writing and delivered by e-mail to cheryl.rost@usdoj.gov (or to any other e-mail address that the United States designates during the term of this Agreement) or by overnight delivery to the following person and address:  Chief, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 4 Constitution Square, 150 M Street, NE, Room 6.1612 Washington, DC 20530.  The cover letter shall include a subject line referencing the ICCSD and DJ No. 204-28-92.
17. Term:  This agreement will remain in effect for three years.
18. Early or Partial Termination:  This Agreement or a distinct, severable part of the Agreement will terminate earlier than three years if the United States determines that the ICCSD has demonstrated durable compliance with Title II of the ADA and this Agreement, or with that distinct, severable part, as applicable.  In determining whether the ICCSD has demonstrated durable compliance with a part of the Agreement, the Department may assess collectively all the requirements of the Agreement to determine whether the intended outcome of the part has been achieved.
19. Modifications:  Any modifications of this Agreement, such as extensions of the time limits for performance imposed by the Agreement, may be made only by the mutual written consent of the Parties. The parties’ consent to modify the agreement will not be unreasonably withheld.
20. Reviewing Compliance:  The United States may review compliance with this Agreement at any time.   The ICCSD will cooperate fully with the United States’ efforts to monitor compliance with this Agreement, including but not limited to, providing the United States with timely access to the Playgrounds, surveys, employees, contractors, relevant documents, and other reasonably requested information.  If the United States believes that the ICCSD has failed to comply in a timely manner with any requirement of this Agreement, or that any requirement has been violated, the United States will so notify the ICCSD in writing and will attempt to resolve the issue in good faith.   If the United States is unable to reach a satisfactory resolution of the issue within thirty (30) days of the date it notifies the ICCSD, the United States may file a civil action in federal district court to enforce the terms of this Agreement, and/or take any other action to enforce Title II of the ADA. Any Notice to ICCSD shall be sent to: Superintendent, 1725 N. Dodge St., Iowa City, IA  52245.
21. Settlement. Except for these proceedings, and matters between the partiesarising out of these proceedings, none of the agreements, state­ments, findings and actions taken by ICCSD shall be deemed an admis­sion by ICCSD of the cited allegations.  The agreements, statements, findings, and actions taken herein are made for the purpose of compromising and settling this matter economically and amicably.
22. Preservation of Documents:  Throughout the term of this Agreement, the ICCSD shall preserve documents, electronically stored information, or other information related to this agreement and necessary to determining the ICCSD’s compliance with this Agreement. 
23. Timely Compliance:  It is a violation of this Agreement for the ICCSD to fail to comply in a timely manner with any of the requirements of this Agreement.
24. Severability:  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.
25. Non-Waiver:  Failure by the United States to enforce any provisions or deadlines in this Agreement shall not be construed as a waiver of the right of the United States to enforce any deadlines or provisions of this Agreement.
26. Publicly Available:  This Agreement is a public document.  The ICCSD will provide a copy of this Agreement to any person, upon request.
27. Entire Agreement:  This Agreement (including its Exhibit) is 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 will be enforceable.  
28. Limitation:  This Agreement is limited to resolving claims under Title II of the ADA related to the facts specifically set forth in Paragraphs 1 through 2, above, concerning physical accessibility relating to the Playgrounds.  Nothing in this Agreement relates to other provisions of the ADA or affects the ICCSD’s obligations to comply with any other federal, state, or local statutory, administrative, regulatory, or common law obligation, including those relating to nondiscrimination against individuals with disabilities.
29. Signing Authority:  The person signing for the ICCSD represents that he or she is authorized to bind the ICCSD to this Agreement.
30. Counterparts:  This Agreement may be executed in any number of counterparts, each of which is an original, and all of which taken together constitute one single document.
31. Binding Nature of Agreement:  This Agreement shall be applicable to and binding upon the ICCSD, its officers, agents, employees, and assigns.
32. Effective Date:  The effective date of this Agreement is the date of the last signature below.

Exhibit 2: Exhibit to the Settlement Agreement between the United States and the Iowa City Community School District

The Iowa City Community School District is committed to providing safe, inclusive play spaces where students can exercise physical challenges, explore their creativity and mature through social engagement. Over the course of the last two years, ICCSD has focused its approach on the design, construction, installation and maintenance of school programs, initiating the following actions:

1. MMS, the ICCSD architecture and engineering partner, is in the process of conducting an accessibility assessment of the exterior accessible route from the building to the playground at all elementary schools ensuring the hard surfaces (asphalt and concrete) are compliant with the 2010 ADA Standards.
2. Weekly visual inspections of playground surfaces by Grounds staff that have become Certified Playground Safety Inspectors (CPSI) and/or NPPS Certified Outdoor Playground Safety Inspectors. Two annual visual and measured inspection by Grounds CPSI staff using various type of equipment, Rotational Penotrometer testing every other year by 3rd party engineering firm.
3. Implemented a work order process for tracking inspection and remediation of issues identified during playground surface inspections. The level and type of remediation depends on the identified issues and the result of the 3rd party Rotational Penotrometer testing. It can include all or some of the following: Removal of loose material, addition of new Engineered Wood Fiber, water, plate compaction, vibration rolling, tamping, and leveling.
4. At playgrounds where grass may have posed a barrier from the sidewalk to the point of entry, accessible routes for the play areas were extended by enlarging the playground perimeter and surfacing with either engineered wood fiber, poured in place rubber or artificial turf.
5. Where berms of natural surface and engineered wood fiber previously existed, the surface material was removed and graded to provide direct and continuous accessible routes to the points of entry and exit to each play component on the school playground.
6. Zero depth entries and curb cuts were installed at the perimeters of play areas and buried under the engineered wood fiber to widen the accessible point of entry, provide a smooth transition from one surface to another, and increase the number of accessible
7. Expanded the use of unitary playground surfaces like poured in place rubber and synthetic turf to serve as the primary accessible route through the play area.
8. In the process of extending sidewalks to serve as accessible routes to other outdoor school amenities such as sports fields, sitting areas and picnic areas.
9. Added accessible surfacing for the clear floor space adjacent to benches to serve wheelchair seating locations.
10. Installed accessible picnic tables.
11. Grounds and custodial staff have received more than 200 hours of training on the playground safety and accessibility standards, universal design, inclusion, installation of playground surfaces, maintenance techniques and field testing, including:
    1. Certified Playground Safety Inspector (CPSI) certification, the most comprehensive and up-to-date training on playground safety issues including hazard identification, equipment specifications, surfacing requirements and risk management methods offered by the National Recreation and Park Association. 2-day training program and certification exam. (Grounds Manager)
    2. Accessibility standards and surface considerations for playgrounds conducted by Jennifer Skulski, principal researcher for the U.S. Access Board longitudinal study on the accessibility of playground surfaces. 8-hour training and practice field inspection.
    3. Playground surface safety standards, installation, maintenance and field testing conducted by Rolf Huber, leading international expert on application of ASTM standards application and field testing for playground surfaces. 8-hour training and practice field inspection.
    4. Annual surface maintenance training for custodial and grounds staff. (23 Custodial, Custodial Manager, and 5 Grounds staff.)
    5. Annual inspection training for grounds staff. (4 Grounds staff.)
    6. Considerations for inclusive playground design presented by Tony Malcusak and Ingrid Kanics, national consultants.
12. Partnered with expert consultants on field testing, playground safety, ADA compliance and inclusive playground design.
13. Utilized Terracon, one of the leading national engineering services for environmental, facilities, geotechnical, and materials, to conduct ongoing independent third-party testing of school playground surfaces for compliance with ASTM F1292 - 17a Standard Specification for Impact Attenuation of Surfacing Materials Within the Use Zone of Playground Equipment and ASTM F1951-99 and -14 Standard Specification for Determination of Accessibility of Surface Systems Under and Around Playground Equipment.
14. All newly installed playground surfaces will be independently tested pursuant to a schedule set by the District for compliance with ASTM F1292 and ASTM F1951.
15. Expectation that any playground surface product claiming to pass ASTM F1951 in the laboratory and present a certificate will conform, when tested at the playground pursuant to a schedule set by the District, as follows:

    FIRMNESS: For field testing, surfaces passing ASTM F1951 straight propulsion for results less than or equal to 1.0 surface versus ramp work ratio shall have a firmness average, as tested with the rotational penetrometer preferably lower than 0.3 inches, but not to exceed 0.5 inches of penetration (based on Beneficial Designs research).

    STABILITY: Surfaces passing ASTM F1951 turning propulsion for results less than or equal to 1.0 surface versus ramp work ratio shall have a stability average preferably lower than 0.5 inches, but not to exceed 1.0 inch of penetration (based on Beneficial Designs research).

16. Worked with the local manufacturer of engineered wood fiber to improve quality and consistency of the product whereby the manufacturer has acquired sufficient documentation of laboratory compliance with ASTM F1292 and ASTM F1951, along with ASTM F2075-15 Standard Specification for Engineered Wood Fiber for Use as a Playground Safety Surface Under and Around Playground Equipment.
17. Continue to utilize the ICCSD Playground lifecycle created in 2014 to organize and schedule accessibility improvements to playground landscapes and equipment.
18. Fulfill the community vision for inclusive and universally designed playgrounds as recommended by Skulski, Malcusak, and Kanics and approved unanimously by the Board on October 22, 2019.
19. Implementation of a District-wide playground committee of community members, elementary and special education teachers, facilities and grounds managers, to provide guidance on the annual schedule of playground improvements, designs and programming.