SETTLEMENT AGREEMENT UNDER THE AMERICANS WITH DISABILITIES ACT
   BETWEEN THE UNITED STATES OF AMERICA AND INDIANAPOLIS MOTOR SPEEDWAY, LLC
UNDER THE AMERICANS WITH DISABILITES ACT OF 1990
DJ #204-26s-47

Background

1. The United States Department of Justice (“DOJ”) is the federal agency that is responsible for investigating and enforcing Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12188(b) and 28 C.F.R. § 36.502 and 36.503, including the requirements set forth in the ADA Standards for Accessible Design originally published on July 26, 1991, and republished as Appendix D to 28 C.F.R. part 36 (28 C.F.R. § 36.104) (“1991 Standards”) and the 2010 ADA Standards for Accessible Design, which consist of the 2004 ADAAG, Appendices B and D to 36 C.F.R. part 1191, and the requirements contained in subpart D of 28 C.F.R. part 36 (28 C.F.R. § 36.104) (“2010 Standards”). Following receipt of a complaint that an individual with a disability was discriminated against at the Indianapolis Motor Speedway (“Speedway”) in violation of Title III of the ADA, the United States of America (“United States”) initiated an investigation of the facility.  Following several site visits, the investigation was broadened to a compliance review that included the entire facility.  28 C.F.R. § 36.502(c).  Over the past several years, the United States has conducted multiple site visits to the facility, during which numerous ADA violations were identified.  The ownership of the Speedway facility has cooperated with the DOJ’s investigation and many of the identified violations have been addressed during the course of the investigation as discussed in Paragraphs 4 and 5 herein.  The parties agree that settlement resolving the investigation and compliance review is appropriate and serves the public interest.  As specified below, Indianapolis Motor Speedway, LLC  (“IMS”) agrees to remedy the violations of the 2010 Standards set out in Exhibits 1 and 3-10, as described therein, in order to remove the architectural barriers to access at its facility; to ensure that the altered elements of the facility and the paths of travel, where appropriate, serving the altered areas are readily accessible to and usable by individuals with disabilities to the maximum extent feasible; and to make modifications in its policies, practices, and procedures to afford its goods, services, facilities, privileges, advantages, and accommodations to individuals with disabilities; to pay compensatory damages to the complainant; and to pay civil penalties to the United States.  

The Parties

1. The parties to this Settlement Agreement (the “Agreement”) are the United States and IMS.  The Speedway is located at 4790 W. 16th Street, Indianapolis, Indiana.  It is owned by IMS, a private, family-owned, company, headquartered in Indianapolis, Indiana.  Jeffrey G. Belskus is the President and Chief Executive Officer of IMS.
2. The Speedway is a place of public accommodation within the meaning of Title III of the ADA, 42 U.S.C. § 12181(7) and its implementing regulation 28 C.F.R. § 36.104.  A public accommodation covered by Title III of the ADA is a private entity that owns, operates, leases (or leases to) a place of public accommodation.  28 C.F.R. § 36.104.  IMS owns the physical properties of the Speedway.  IMS manages and operates the Speedway.  IMS operates public accommodations within the meaning of the ADA.  As such, it has an obligation to comply with Title III’s provisions.  Because IMS owns, leases, or operates the Speedway, a place of public accommodation within the meaning of Title III of the ADA, it is subject to its requirements.  42 U.S.C. §§ 12181(7) and 12182(a); 28 C.F.R. § 36.104.
3. The United States initiated an investigation into IMS pursuant to the Department’s authority to investigate alleged violations of the ADA by entities covered by Title III of the ADA, 42 U.S.C. § 42 U.S.C. § 12188(b); 28 C.F.R. § 36.502.

The Indianapolis Motor Speedway

1. The Indianapolis Motor Speedway “Speedway” was built in the 1910s, and has undergone continuous upgrades (including new construction, alterations and additions for purposes of the ADA) since that time.  The speedway site is a 345-acre parcel of land, bounded by Georgetown Road to the West and W. 16th Street to the South.  The site contains a corporate headquarters, a museum, garages, a tower (known as The Pagoda), numerous suites, viewing stands with fixed seats, infield open seating, concession stands, exterior toilet rooms, and parking areas.  It is the largest spectator sporting facility in the world.  Numerous additions and structural modifications have been made to the facility since January 26, 1992.

Allegations

1. The United States alleges that Dan Ward, an individual with a disability, attended a practice session during the Indianapolis 500 festivities at the Speedway when he was denied access to the pit area even though he had proper credentials to access that area.  According to Mr. Ward’s complaint, security officials working in the pit area told him that he could not enter the pit area because he was in a wheelchair.  Mr. Ward also alleged that the Speedway did not have sufficient accessible seating.  Mr. Ward is a person with a disability in that he has a spinal cord injury, which substantially limits his major life activity of walking.  IMS has denied the allegations made by Mr. Ward in his complaint.
2. As part of its investigation, representatives of the United States DOJ inspected the Speedway several times.  As a result of its investigation, including the inspections of the facilities, the DOJ identified over 360 features, elements, and spaces at the Speedway that did not comply with the Standards, and were thus architectural barriers to access or were not readily accessible to or usable by individuals with disabilities.  These violations identified included violations of the ADA’s barrier removal provisions and its new construction and alterations provisions.  See 28 C.F.R. §§ 36.304, 401, 402, and 403.  

Specific Relief

1. As such, the parties agree that IMS is subject to the ADA’s requirements for all newly constructed areas that were built after January 26, 1992, which must be readily accessible to and usable by individuals with disabilities pursuant to 28 C.F.R. § 36.401; all alterations built after January 26, 1992, and their paths of travel, which affect the usability of the facility, which must be accessible to the maximum extent feasible pursuant to 28 C.F.R. §§ 36.402 and 36.403; and all facilities existing prior to January 26, 1992, which must have removed architectural barriers where readily achievable pursuant to 28 C.F.R. § 36.304.
2. IMS agrees to make modifications to the facilities as discussed below.  The 1991 Standards were used to identify the violations at the facility and many of the specifications herein or in the exhibits reference those Standards.  IMS and the United States agree that the 2010 Standards will be used in connection with the relief agreed to in this Agreement.  See 28 C.F.R. § 36.406(a)(2); see also 2010 Standards. 
3. Modifications:  During the term of the continuing investigation and compliance review, IMS addressed many of the identified barriers to access, as indicated in Exhibit 1.  IMS hereby verifies that it has addressed the identified violations in Exhibit 1 and that the identified areas are in compliance with the Standards.   These modifications have been accepted by the United States based upon representations by IMS, subject to inspection as provided in Paragraph 6.2 of this Agreement.  In addition, IMS agrees that it shall undertake other accessibility projects in accordance with Exhibit 2 (Accessibility Projects Completion Schedule) and as discussed below.  The modifications listed in Paragraphs 5.6 - 5.11, 5.14 – 5.17, and 5.18 shall be undertaken pursuant to the schedule identified as Exhibit 2.  The parties agree that DOJ may approve reasonable extensions upon request by IMS for good cause.
4. Training:  No later than 120 days after the effective date of this Agreement, IMS shall develop and provide to the United States for approval a written policy that specifically permits individuals with disabilities who hold proper credentials for entry to the pit and/or garage areas to enter those areas in accordance with IMS’s established policies.   This policy shall be distributed to all IMS employees and contractors who have direct and regular contact with IMS patrons.  In addition, this policy shall be posted in the break areas used by such employees and contractors, and shall be published in orientation materials and employee and contractor handbooks that are distributed to them.

   Prior to the start of each racing season, IMS will provide training to all of its employees and contractors who have direct and regular contact with IMS patrons, including the Safety Patrol and Guest Services Department.  The education and training will include the accessibility requirements of the ADA and specifically include the requirement that individuals who use wheelchairs or other mobility aids and who hold proper credentials for entry into pit and/or garage areas be allowed to enter those areas in accordance with IMS’s established policies.  With regard to employees, contractors, and volunteers who work temporarily during a single event, IMS will provide at a minimum, IMS’s policies concerning accessibility requirements under the ADA.  The DOJ may elect to attend any of the training discussed herein.  IMS shall keep records of the training sessions, including the training dates, the names of the attendees, and the names of the instructors for five years after the effective date of this Agreement.  IMS shall make such training records available to the DOJ upon request. 

5. Seating Advertisement and Tickets:  No later than 120 days after the effective date of this Agreement, IMS agrees to publicize the availability of wheelchair seating areas, companion seating, and designated aisle seating on its website, its annual official program, and at ticket booth structures and other locations where tickets are sold.  The above-referenced publicity shall include a statement that accessible seating and facilities are available at the Speedway.  In addition, IMS agrees to ensure that individuals with disabilities have an equal opportunity to purchase tickets for accessible seating at the facility to its events in compliance with 28 C.F.R. § 36.302(f).  No later than 120 days after the effective date of this Agreement, IMS shall provide to the United States for approval a written policy concerning its ticket sales.      
6. Infield Mounds.  IMS agrees to extend the accessible route past the infield mounds as identified in Exhibit 3 in compliance with the 2010 ADA Standards. 
7. Tower and Hulman Suites.   IMS agrees to build a second floor unisex accessible toilet room, as identified in Exhibit 4 and in compliance with the 2010 ADA Standards.  Such plans shall include signage, including the international symbol of accessibility and appropriate directional signage.  
8. North Vista Grandstand.  Except as otherwise provided in Paragraph 5.12, IMS agrees to alter the existing structure to provide an additional 159 wheelchair spaces and 159 companion seats (or such numbers as are required by the 2010 ADA Standards) at the top of the high seating of the grandstands along with the appropriate accessible elevators so as to provide an accessible path of travel to the areas as identified in Exhibit 5, in compliance with the 2010 ADA Standards. 
9. Northeast Vista Grandstand (Sections 11-50).           Except as otherwise provided in Paragraph 5.12, IMS agrees to alter the existing structure to provide an additional 190 wheelchair spaces and 190 companion seats (or such numbers as are required by the 2010 Standards) at the top of the high seating of the grandstands along with the appropriate accessible elevators so as to provide an accessible path to the seats as shown in Exhibit 6 in compliance with the 2010 ADA Standards. 
10. South Terrace.     Except as otherwise provided in Paragraph 5.12, IMS agrees to alter the existing structure to provide an additional 13 wheelchair spaces and 13 companion seats at the top of the high seating of the grandstands along with the appropriate accessible elevators so as to provide an accessible path to the seats as shown in Exhibit 7 in compliance with the 2010 ADA Standards. 
11. Pit Road Terrace.  Except as otherwise provided in Paragraph 5.12, IMS agrees to alter the existing structure to provide an additional 26 wheelchair spaces and 26 companion seats at the top of the high seating of the grandstands along with the appropriate accessible elevators so as to provide an accessible path to the seats as shown in Exhibit 8 in compliance with the 2010 ADA Standards. 
12. Reconfiguration of and Other Changes to Grandstands.  Notwithstanding Paragraphs 5.8 and 5.9, if IMS determines to make a material reconfiguration or changes to the grandstands and seating areas described in Paragraph 5.8. and 5.9 that could have the effect of changing or altering the availability of accessible seating in such areas, IMS agrees to provide substantially equivalent seating, in both number and location, in existing and/or new grandstands or other seating areas contained in its facilities.  In such event, the IMS shall propose the location and placement of such seating to DOJ for review within 120 days after execution of this Agreement.  Upon approval, the parties will establish a reasonable completion schedule to alter the specified grandstands and other seating areas to provide such seating.  Such modifications shall comply with the 2010 ADA Standards. 
13. Remaining Grandstands.No later than 90 days after the effective date of this Agreement, IMS agrees to begin submitting architectural reports and/or engineering/design plans to DOJ regarding the remaining grandstands, i.e., Accessible Grandstands, Paddock Grandstands, Pagoda, A Grandstand, B Grandstand, C Grandstand, E Grandstand, G Grandstand, H Grandstand, J Grandstand, Southwest Vista, South Vista, Southeast Vista, Northeast (Sections 1-10,) Northwest Vista, Tower Terrace (at Tower Suites), and Tower Terrace (at Media Center), in regards to compliance with the violations as described in Findings 172, 222-225, 273-279, 295-296, 338, 354, and 357 as identified on Exhibit 9.  All such architectural reports and/or engineering/design plans shall be submitted to DOJ within 365 days after the effective date of this Agreement.  The parties agree to develop a reasonable completion schedule for each remaining grandstand to undertake such modifications.  Such modifications shall comply with the 2010 ADA Standards.   
14. Pagoda Second Level Lounge.  IMS agrees to modify the height of the top of the bar counter regarding Finding 173 as identified in Exhibit 9.  Such modifications shall comply with 2010 ADA Standards. 
15. Second Floor Toilet Rooms Pit Row.  IMS agrees to bring into compliance the violations as described in Findings 63-75, Exhibit 9.  Such modifications shall include signage including the international symbol of accessibility and appropriate directional signage and shall comply with 2010 ADA Standards. 
16. Parking.  IMS will submit a site plan to DOJ to address accessible parking for the Speedway for approval.  This plan shall indicate the placement and number of all accessible wheelchair spaces and companion seats within the Speedway and the placement and number of van accessible and accessible parking spaces in relation to the gates and the accessible seating areas.  In addition, the plan shall identify the parking signage to be used in connection with the parking spaces.  Further, such modifications shall comply with 2010 ADA Standards.
17. Ramps.   IMS agrees to submit engineering/design plans to DOJ concerning the running slopes of the following ramps so as to bring them into compliance with the 2010 ADA Standards:   (1) Paddock, ramp location/section, Box 47-49, Second Run; (2) Northeast Vista, ramp location/section, Sections 23-26, Fourth Run; and (3) Northeast Vista, ramp location/section, Sections 39-42, Second Run.  Modifications to these ramps shall be completed by April 30, 2013. Should IMS determine to discontinue use of the grandstands involving one or more of these ramps, with use of the relevant grandstand discontinued by April 30, 2013, the IMS may request that the DOJ waive the requirement for compliance as to the specific ramp. 
18. Museum Parking.  In regards to the accessible parking in the Museum Parking lot as identified in Exhibit 10, IMS agrees to bring it into compliance with the 2010 ADA Standards.
19. Other Miscellaneous Areas.  No later than 120 days after the effective date of this Agreement, IMS agrees to submit architectural reports and/or engineering/design plans to DOJ with regards to Findings 95-98, 159, 276a, 288-294, 297-327, 355-356, and 358-362 as identified in Exhibit 9 in regard to compliance with the 2010 ADA Standards.  The parties agree to develop a reasonable completion schedule for each remaining violation.

Reports and Other Compliance Matters

1. Reports.  Ninety days after the effective date of this Agreement, and every 90 days thereafter for two years, IMS will submit a progress report to the United States Attorney that details the status of IMS’s compliance with each aspect of this Agreement.  This report also shall include a copy of any modified policies, practices, or procedures required as a result of changes to the architectural and other areas of the Speedway.
2. Inspections.  Throughout the term of this Settlement Agreement, DOJ representatives may, upon reasonable notice, inspect any area of the  Speedway covered by this Settlement Agreement for compliance with this Agreement.  IMS may, at its discretion, elect to have a corporate representative and/or legal counsel present at any such inspection.
3. Future Compliance.  IMS agrees that all further alterations, renovations and construction projects shall comply with Title III of the ADA, 42 U.S.C. §§ 12181-89, and the Title III regulations of the Department of Justice, 28 C.F.R. Pt. 36, including the ADA Standards.  This includes, but is not limited to, the vertical disbursement of accessible seating.  See 28 C.F.R. § 36.406(f).

   Notwithstanding the above, if IMS determines to permanently close certain grandstands, or portions thereof, prior to the completion of the required modifications under this Agreement, it may request that DOJ revise its seating requirements under the Agreement.  IMS agrees that any such revision of seating requirements will comply with the 2010 ADA Standards.

Monetary Relief for Complainant

1. Not later than 120 days after the effective date of this Agreement, IMS shall pay $35,000 to Mr. Ward pursuant to 28 C.F.R. § 36.504(a)(2).  Said payment shall be made by check or money order payable to Dan Ward and submitted to the United States Attorney’s Office, ATTN: Debra G. Richards, Southern District of Indiana, 10 West Market Street, Suite 2100, Indianapolis, 46204.  It is understood and agreed that the payment referenced above was agreed by the parties solely to avoid the burden and expense of litigation and to bring the DOJ’s investigation to a conclusion.

Payment to the United States

1. No later than 120 days after the effective date of this Agreement, IMS shall make a payment in the amount of thirty-five thousand dollars ($35,000) to the United States pursuant to 42 U.S.C. § 12188(b)(2)(c) and 28 C.F.R. § 36.504(a)(3)(I) to vindicate the public interest.  Said payment shall be made by check or money order payable to the United States Department of Justice and submitted to the United States Attorney’s Office, ATTN: Debra G. Richards, Southern District of Indiana, 10 West Market Street, Suite 2100, Indianapolis, 46204.

Settlement Agreement Binding on Parties and Successors in Interest

1. In the event that IMS transfers, sells, assigns, or otherwise releases its interest in some or all of the Property, this Agreement shall be binding on all subsequent successors, assigns, owners, and/or operators of the Property.  IMS shall have an affirmative duty to notify any successors in interest to any property, liabilities, or interests covered by this Settlement Agreement of the existence and terms of this Agreement.  Moreover, as a condition of the lease or sale of the Property, IMS shall obtain the written accession of the successor or assignee to any obligations remaining under this Settlement Agreement for its term.

Other Provisions

1. Exhibits 1-11 to this Settlement Agreement are incorporated by reference into this Settlement Agreement as though fully set forth in the Agreement.
2. If any nonmaterial term of this Settlement Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, unless it is determined that the provisions deemed unenforceable consist of material provisions which amounted to the original consideration for the adversely affected party in entering into this Settlement Agreement.
3. Failure by the United States to enforce any provision of this Agreement shall not be construed as a waiver of its right to do so with regard to any other provision of this Agreement.
4. Nothing contained in this Settlement Agreement is intended or shall be construed as an admission by or finding against IMS that IMS was in violation of the ADA or any other federal statutes or regulations, or as a waiver by the United States to any right to institute any proceeding or action against IMS for violations of any statutes, rules or regulations administered by the United States, or to prevent or limit the rights of the United States to obtain relief under the ADA, or any other federal statutes or regulations, or on account of any violation of this Settlement Agreement or any other provisions of the law.  Nothwithstanding the preceding sentence, subject to IMS’s full compliance with this Settlement Agreement, the United States will not file a subsequent complaint against IMS pursuant to Title III of the ADA for the same violations identified in Paragraph 5 of this Agreement, unless IMS makes alterations that do not comply with Title III of the ADA.  However, this Agreement does not prevent the United States from investigating and/or pursuing other potential ADA violations that may involve IMS and/or the Speedway.  Nor does this Agreement otherwise relieve IMS from fully complying with the ADA.  28 C.F.R. § 36.503.  This Settlement Agreement is a compromise of claims between the United States and IMS.  It is based on the unique nature of this particular facility and its provisions are not necessarily applicable to other entities or facilities.
5. The United States may review compliance with this Agreement at any time.  If the United States believes that IMS has failed to comply in a timely manner with any requirement of this Agreement, the United States will so notify IMS 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 30 days after providing notice to IMS, the United States may institute a civil action in federal district court to enforce the terms of this Agreement, to take other action to enforce Title III of the ADA. 

Signatories Bind Parties

1. The signors of this document in a representative capacity for a partnership, limited partnership, corporation, or other entity, represent that each is authorized to bind such partnership, corporation, company, or other entity to this Agreement.

Effective Date of Agreement

1. The effective date of this Settlement Agreement is the date of the last signature below.
2. This Agreement shall remain in full force and effect for a period of  one year after the completion of all remedies contemplated by this Agreement.