SETTLEMENT AGREEMENT
BETWEEN THE UNITED STATES OF AMERICA AND
THE STATE OF IDAHO
UNDER THE AMERICANS WITH DISABILITIES ACT

USAO No. 2011V00095    DJ 204-22-77

I. BACKGROUND

1. The parties to this Settlement Agreement (“Agreement”) are the United States, through the United States Attorney’s Office (“USAO”) for the District of Idaho on behalf of the United States Department of Justice (collectively, “The United States”), and the State of Idaho, through the Department of Administration and its attorney.
2. This matter arose out of a complaint concerning the accessibility of the Idaho State Capitol’s facilities, services, programs, and activities under Title II of the Americans with Disabilities Act of 1990 (“ADA” and “Title II”), 42 U.S.C. §§ 12131-12134, and its implementing regulations, 28 C.F.R. pt. 35.  This Agreement applies only to the Idaho State Capitol (“Capitol”) as described in Paragraph 3 below.
3. The Capitol functions as the seat of Idaho's state government, currently housing the executive and legislative branches and numerous state offices which occupy much of the approximately 190,000 square feet of usable space.  The Capitol and its surrounding grounds cover two blocks of the urban grid, providing grounds proportional to the building's roughly 328-foot north and south facades and its depth of approximately 170 feet established by the north/south axis.  The south facade offers the principal entrance at the culmination of a vehicular approach to the building that cuts centrally through the city as part of a grand procession leading to the Capitol.  The Idaho State Capitol was re-dedicated on January 9, 2010 after three years of restoration and renovation.
4. The United States and the State of Idaho agree that it is in the parties' best interests, and in the public interest, to resolve these allegations without litigation.
5. In consideration of, and consistent with the terms of this Agreement, the United States agrees to refrain from filing a civil lawsuit concerning the items identified in Exhibits A through E attached hereto relating to the Capitol, except as provided in the section entitled “Reporting, Implementation, and Enforcement.”  The United States also agrees to refrain from filing a civil lawsuit concerning items 1, 2, 3, 20, 38, 46, 70, 92, 102 and 109 referred to in paragraph 13 herein.

II. JURISDICTION

6. The Capitol is a “public entity” within the meaning of the ADA, 42 U.S.C. § 12131, and 28 C.F.R. § 35.104, and is therefore subject to Title II and its implementing regulations.
7. Pursuant to Title II, no qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such public entity.  42 U.S.C. § 12132; 28 C.F.R. § 35.130.
8. Pursuant to Title II and its implementing regulation, and as applicable here, no qualified individual with a disability shall be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by any public entity because a public entity's facilities are inaccessible to or unusable by individuals with disabilities.  42 U.S.C. § 12134; 28 C.F.R. § 35.149.
9. Pursuant to Title II and its implementing regulations, and as applicable here, a public entity is required to operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.  42 U.S.C. § 12134; 28 C.F.R. § 35.150.
10. Pursuant to Title II and its implementing regulations, and as applicable here, if an alteration was commenced after July 26, 1992, each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities.  42 U.S.C. § 12134; 28 C.F.R. § 35.151(b).
11. The United States Department of Justice is authorized under 28 C.F.R. Part 35, Subpart F, to determine the State of Idaho's compliance 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 enforcing Title II of the ADA.

III. TERMS OF THE AGREEMENT

Alterations, Additions, and Modifications

12. Any alterations or additions, as described in 28 C.F.R. §§ 35.150 and 35.151, completed at the Capitol after the effective date of this Agreement and modifications made pursuant to this Agreement, will comply in all respects with Title II of the ADA, 42 U.S.C.  §§ 12131-12134, its implementing regulations, 28 C.F.R. pt. 35, and the 2010 ADA Standards for Accessible Design, consisting of the requirements contained in 28 C.F.R. § 35.151 and the 2004 ADA Accessibility Guidelines at 36 C.F.R. part 1191, Appendices B and D (collectively, “2010 Standards”).
13. By the “end” date indicated on Exhibits A through E, items 4 through 111, the State of Idaho will modify the Capitol and/or remove barriers therein pursuant to this Agreement. The exhibits and the diagrams are provided herewith.¹ Exhibits A through E shall be known as the “To do” list. These exhibits are organized by completion date.  Thus, Exhibit A contains the items to be completed at the earliest date, December 2015, while Exhibit E contains the items to be completed by the latest date, December, 2017.  Items 1, 2, 3, 20, 38, 46, 70, 92, 102 and 109 from the parties’ working spreadsheets have been removed from the “to do” list.  All modifications and remedies shall be completed by the date signified in each above-referenced Exhibit, unless otherwise agreed upon by the parties in writing. The failure to complete work as described herein by the corresponding “end dates” without a written modification to this agreement shall be a breach of this agreement as described in paragraph 19 herein.
14. If the State of Idaho has already altered, added or modified any element identified in Exhibits A through E in the Capitol after January 26, 1992, and before the effective date of this Agreement, the State of Idaho will submit, within six months of the completion of all remediation described in Exhibits A through E, a written report to the USAO summarizing the actions taken and providing evidence establishing each individual element's compliance with the applicable architectural standard as permitted by 28 C.F.R. § 35.151(c) and its Appendix.
15. Related to the Capitol, the State of Idaho will ensure that no qualified individual with a disability will be subjected to discrimination or be excluded from participation in, or be denied the benefits of the Capitol's services, programs, or activities.  42 U.S.C. § 12134; 28 C.F.R. § 35.149.   

Independent Licensed Architect

16. The State of Idaho will retain an Independent Licensed Architect (“ILA”) knowledgeable about the architectural accessibility requirements of the ADA.  (For example, CSHQA, the architectural firm currently working on remediation, or another similarly certified architectural firm.)  This ILA, paid by the State of Idaho without regard to outcome and pre-approved by the United States, must certify compliance with the applicable standard pursuant to 28 C.F.R. § 35.151(c) and the Appendix to 28 C.F.R. § 35.151(c) for: (a) all of the modifications identified in Exhibits A through E and the remediation of the violations identified therein; and (b) any other alteration, addition, or modification made by the State of Idaho to the Capitol during the term of this Agreement.
17. In issuing certifications pursuant to this Agreement, the ILA will prepare reports with photographs identifying the precise violation remediated and will use the certification form at Exhibit F.  A separate report with pictures and a separate certification form will be used for the remediation of each violation identified in Exhibits A through E and any element that has been or will be altered pursuant to this Agreement.  The ILA will be considered a neutral inspector for purposes of issuing certifications of compliance and will be available to the United States, with notice to the State of Idaho, to discuss findings in the reports, photographs, and certifications.  The United States may also, in its discretion and upon notice to the State of Idaho, provide technical assistance to the ILA throughout the term of the Agreement.
18. The State of Idaho shall implement and enforce a written policy with regard to ADA compliance at the Capitol.  The State shall take measures to ensure that employees that work at the Capitol comply with obligations in this Agreement.

IV. REPORTING, IMPLEMENTATION, AND ENFORCEMENT

19. If the United States believes that this Agreement or any requirement thereof has been violated, it agrees to notify the State of Idaho in writing of the specific violation(s) alleged.  The State of Idaho shall have 30 days from its receipt of the notice to cure and/or respond in writing to the United States regarding the alleged violation(s).  If, after further discussion with the State of Idaho, the United States believes that the State of Idaho has violated the Agreement, the United States may institute a civil action for relief in federal district court, and may seek civil remedies pursuant to 42 U.S.C. § 12188(b)(2)(C).
20. By January 1, 2016, the State of Idaho shall certify to the USAO, in writing, that it has completed all of its obligations as described in the “To do” list and under this Agreement up to that date.  The certification shall describe the steps that were taken to fulfill those obligations and shall be accompanied by photographs depicting the completed work.  On January 1, 2017 and again on January 1, 2018, the State of Idaho shall submit a similar certification regarding the completion of all modifications to the Capitol as scheduled in Exhibits A through E.  The parties expressly agree that providing such certification is essential to the enforcement of this Agreement, and that a failure to provide the certifications required by this paragraph constitutes a breach of this Agreement.  If the parties make any written modifications to the existing completion dates, certification of such modified obligations shall be made within 30 days of the modified completion dates.
21. Throughout the term of this Agreement, consistent with 28 C.F.R. § 35.133(a), the State of Idaho will maintain the accessibility of its programs, activities, services, facilities, and equipment, and will take whatever actions are necessary to do so. This may include routine testing of accessibility equipment and accessibility audits of its programs and facilities.  However, there may be isolated or temporary interruptions in service or access due to maintenance or repairs.  28 C.F.R. § 35.133(b).
22. If at any time the State of Idaho desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the United States through the USAO in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification.  The proposed modification will not take effect until there is written agreement by the USAO to the proposed modification.  Modifications must receive the prior written approval of the USAO, which approval will not be unreasonably withheld or delayed.
23. The United States may review compliance with this Agreement at any time.  If the United States believes that the State of Idaho has failed to comply in a timely manner with any requirement of this Agreement, the United States will notify the State of Idaho in writing and attempt to resolve the issue in good faith.  If the United States is unable to reach a satisfactory resolution of the issue within thirty days of the date it notifies the State of Idaho, it may institute a civil action in federal district court to enforce the terms of this Agreement or to enforce Title II.
24. For purposes of Paragraph 23, it is a violation of this Agreement for the State of Idaho to fail to comply in a timely manner with any requirements without obtaining advance written agreement with the USAO for an extension of the relevant time frame imposed by the Agreement.
25. Failure by the United States to enforce any provision of this Agreement will not be construed as a waiver of the United States' right to enforce other provisions of this Agreement.
26. This Agreement is a public document.  A copy of this Agreement will be made available to any person by the State of Idaho on request.
27. This Agreement constitutes the entire agreement between 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, that is not contained in this written Agreement, including its Exhibits and diagrams, will be enforceable.  This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law.  This Agreement does not affect the State of Idaho's continuing responsibility to comply with all aspects of the ADA.
28. All terms used in the Agreement will have the definition and meaning used in the Title II regulation, 28 C.F.R. pt. 35 and the 2010 Standards.  Similarly, to the extent the 1991 Standards may apply to a particular element subject to a safe harbor because the element was constructed, altered, added, or modified before March 15, 2012, the definitions and meanings in the 1991 Standards, as applicable, will apply.
29. Each of the parties to this Agreement will bear its own costs and expenses associated with, or arising from, its performance of obligations under this Agreement.
30. All items sent to the United States will be sent by electronic mail or by the U.S. Postal Service, Federal Express, UPS, or DHL and addressed as follows:  United States Attorney's Office, District of Idaho, 800 Park Boulevard, Suite 600, Boise, Idaho  83712.
31. This Agreement will remain in effect for three years from the date of the last signature to this agreement or until otherwise agreed by the parties in writing.
32. The person signing for the State of Idaho represents that he or she is authorized to bind the State of Idaho to this Agreement.
33. The person signing for the United States represents that he or she is authorized to bind the United States to this Agreement.   
34. The effective date of this Agreement is the date of the last signature below.
    Signed:

Signed:

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