SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
and
THE CITY OF COUNCIL BLUFFS, IOWA
re:
MID-AMERICA CENTER
DJ# 204-28-76

I. Background

1. The parties to this Settlement Agreement (“Agreement”) are the United States of America and the City of Council Bluffs, Iowa (“City”).
2. This matter originated with a complaint filed under Title II of the Americans with Disabilities Act of 1990 as amended (“ADA”), 42 U.S.C. §§ 12131-4, and its implementing regulation, 28 C.F.R. pt. 35 (2014), with the United States Department of Justice (“United States”).  The complaint alleges that the City discriminated against qualified individuals with disabilities, including individuals who use wheelchairs, by denying them on the basis of disability an opportunity to participate in and benefit from the services, programs, and activities at the Mid-America Center (“Center”).
3. Title II protects qualified individuals with disabilities from discrimination on the basis of disability in the benefits of the services, programs, and activities of State and local governments.  42 U.S.C. § 12132; 28 C.F.R. § 35.130(a).
4. The Attorney General is authorized under 28 C.F.R. pt. 35, subpt. F, to investigate alleged violations of Title II of the ADA and the Title II regulation and to determine whether the City complied with the ADA and regulation.  The Attorney General is also authorized to issue findings, and, where appropriate, to negotiate informal resolution and voluntary compliance agreements.  28 C.F.R. §§ 35.172-173.  Furthermore, the Attorney General is authorized under 42 U.S.C. § 12133 to bring a civil action enforcing Title II of the ADA.
5. The City owns the Center.
6. The ADA applies to the City because it is a “public entity” within the meaning of the ADA, 42 U.S.C. § 12131, and 28 C.F.R. § 35.104.  As a public entity, the City is subject to Title II of the ADA, and its implementing regulation, 28 C.F.R. pt. 35.
7. Facilities constructed by a public entity must be designed and constructed to be readily accessible to and usable by individuals with disabilities if the construction commenced after January 26, 1992, 28 C.F.R. § 35.151(a), and if construction commenced after July 26, 1992, but prior to September 15, 2010, then the facilities must comply with  the 1991 ADA Standards for Accessible Design (“1991 ADA Standards”), 28 C.F.R. pt. 36, App. D; or the Uniform Federal Accessibility Standards (“UFAS”), 28 C.F.R. § 35.151(c)(1).  
8. In 2011, the Department of Justice (“Department”) amended the Title II regulation, including adopting the new ADA Standards for Accessible Design (“2010 ADA Standards”).  28 C.F.R. § 35.151(c).  The 2010 ADA Standards consist of the 2004 ADAAG and the requirements contained in 28 C.F.R. pt. 36, subpt. D.  28 C.F.R. § 36.104. 
9. Newly constructed facilities or elements that were constructed before March 15, 2012, and that do not comply with the 1991 ADA Standards or UFAS must be made accessible in accordance with the 2010 ADA Standards.  28 C.F.R. § 35.151(c)(5)(ii).
   
10. The 1991 ADA Standards specify the number of wheelchair seating spaces.  For arenas with seating capacity over 500, the number of wheelchair spaces required is six (6), plus one (1) additional space for each total seating capacity increase of 100.  28 C.F.R. § 36.308(b); 1991 ADA Standards § 4.1.3(19)(a).
    
11. The 1991 ADA Standards sets out several separate requirements for the placement of wheelchair spaces.  It requires that wheelchair seating locations “be an integrated part of the fixed seating plan.”  It also requires that wheelchair areas “be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public.”  This requires that wheelchair locations be dispersed around the facility.  It also requires “at least one companion fixed seat be provided next to each wheelchair seating area.”  1991 ADA Standards §§ 4.33.1, 4.33.3.
12. The 1991 ADA Standards require that one percent (1%) of all fixed seats shall be aisle seats with no armrests on the aisle side, or removable or folding armrests on the aisle side, and signage at each such seating location.  1991 ADA Standards § 4.1.3(19)(a).
13. The 1991 ADA Standards specify the types and numbers of assistive listening systems required in assembly areas.  The minimum number of assistive listening devices must be equal to four percent (4%) of the total number of seats, but never less than two devices.  1991 ADA Standards §§ 4.1.3(19)(b), 4.33.1, 4.33.7.
14. A public entity must reasonably modify its ticketing policies, practices or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.  28 C.F.R. § 35.138.

II. FACTS

A. Accessible Wheelchair and Companion Seating Locations

15. The Center was built after 1992, and opened in 2002, as a 30,000 square foot pillar free arena.

16. The Center is a multipurpose arena with up to 9,000 seats.  This arena seats approximately 9,000 for concerts, 7,000 for basketball and 6,793 for hockey.  This arena is also transformed to a theater-like environment with a floor–to-ceiling side-to-side curtain for capacities ranging from 3,000 to 6,000.

17. The City agrees that the Center must comply with the new construction requirements of Title II.

18. During the course of its investigation, the United States conducted a site inspection and survey of seating areas, club rooms, suites, and ticket policies.  This Agreement is not intended to cover any other ADA or accessibility issues at the Center.  The United States alleges that the City discriminated against individuals with disabilities on the basis of disability, by failing to:

    1. design and construct the Center to be readily accessible to and usable by individuals with disabilities; and
    2. reasonably modify ticketing policies, practices, or procedures to ensure that individuals with disabilities have an equal opportunity to purchase tickets for accessible seating.
19. The United States alleges that the City has failed to provide accessible wheelchair locations for events, including ice and barrier (dasher board) events, except at the topmost and rear tier of the general seating area (22 rows up), in violation of the 1991 ADA Standards.  The United States alleges that the City, in the placement of wheelchair locations, does not provide individuals with disabilities with a choice of admission prices and lines of sight comparable to those for members of the general public seated in club seating, in luxury suites, near the event floor, such as ice hockey seating, in violation of the ADA.  1991 ADA Standards
    §§ 4.1.3(19)(a), 4.33.1, 4.33.3. 

    B. Arm rests and Armrest Signage

20. The United States alleges that the City has failed, in the general seating sections, luxury boxes, and club seat sections, to provide one percent of all fixed seats with aisle seats with no armrests on the aisle side, or removable or folding armrests on the aisle side, and signs at movable armrest seating locations in the suites, in violation of the ADA.  1991 ADA Standards  § 4.1.3(19)(a).

    C. Suites

21. The United States alleges that the City fails to provide accessible wheelchair locations, accessible counters, and accessible tables at suites at the Center, in violation of the ADA.  1991 ADA Standards §§ 4.1.3(18), 4.1.3(19)(a), 4.33.3, 4.32, 4.32.1, 4.32.4.

    D. Assistive Listening Devices

22. The United States alleges that the City fails to provide the required number of assistive listening devices, which is equal to four percent (4%) of the total number of seats.  1991 ADA Standards § 4.1.3(19)(b), 4.33.1, 4.33.7.

    E.  Ticketing

23. The United States alleges that the City has not made tickets available to individuals who request wheelchair seating locations in the same way as they are made available to others not requesting wheelchair seating locations, that accessible ticketing is not available on-line through ticketing websites, and that there is not selection of preferred seating locations available when making ticketing inquiries online or telephone.  The United States alleges that the City has failed to reasonably modify its ticketing policies, practices and procedures when requested by persons who use wheelchairs to avoid discrimination on the basis of disability, in violation of Title II of the ADA.  28 C.F.R. § 35.138.

24. The parties agree that it is in the parties’ best interest, and in the public interest, to address the allegations as set forth in this Agreement.
25. In consideration of the terms of this Agreement, the Attorney General agrees to refrain from undertaking further action in this matter, except as provided in Section V, Enforcement and Implementation, paragraph 43 (Enforcement).

    III. Corrective Actions

26. For the purposes of this Agreement, the Parties agree to use the 2010 ADA Standards to remediate the alleged inaccessibility at the Center.
27. Independent Licensed Architect
    1. The City will retain an Independent Licensed Architect ("ILA") knowledgeable about the architectural accessibility requirements of the ADA. This ILA, paid by the City 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 Paragraphs 28 through 33 as remediation of the alleged violations identified in Paragraphs 19 through 22, and (b) any other alteration, addition, or modification made by the City to the Center during the term of this Agreement.
    2. In issuing certifications pursuant to this Agreement, the ILA will prepare reports with photographs identifying that the alleged violation has been remediated and will use the certification form at Exhibit A. A separate report with pictures and a separate certification form will be used for the remediation of each alleged violation identified in Paragraphs 28-33 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 City, to discuss findings in the reports, photographs, and certifications. The United States may also, in its discretion and upon notice to the City, provide technical assistance to the ILA throughout the term of this agreement.
    3. The City and the ILA will submit ILA certifications to the United States along with its reporting requirements as set forth in this Agreement.
28. Wheelchair and Companion Seating Locations. Within one (1) year of the effective date of this Agreement, the City will make the wheelchair and companion seating locations available in all configurations. Specifically, the City will do the following:
    1. General Seating. Provide fifty-six (56) wheelchair seating spaces and an equal number of adjoining companion seats. See 2010 ADA Standard § 221.2.1.1.
    2. Companion Seats. Locate each companion seat in the same row and immediately adjacent, to the right or to the left, of each wheelchair location. Each companion seat will be equivalent in size, quality, comfort, and amenities to the seating in the immediate area, in compliance with 2010 ADA Standards, §§ 221.3, 802.3.
    3. Accessible Wheelchair Spaces
       1. Ice and Barrier (Dasher Board) Events. Provide a ramped accessible seating section on one side of the middle of the arena at the dasher board, to be made available for all ice and barrier (dasher board) events, providing individuals with disabilities seating choices and viewing angles that are substantially equivalent to or better than the choices of seating locations and viewing angles available to other spectators, in compliance with 28 C.F.R. § 35.151(g)(3), and 2010 ADA Standards, §§ 201, 202, 221, 802. The seating section may be part of the collapsible seating section, when other dashboard events seating is also temporary;
       2. Floor Events. Provide accessible floor seating in compliance with the 2010 ADA Standards;
       3. Existing Seating Sections. Modify existing fixed companion seats so as not to be fixed, to allow two or more side by side wheelchair locations in each section;
       4. Ensure that all wheelchair spaces provide individuals with disabilities seating choices and viewing angles that are substantially equivalent to or better than the choices of seating locations and viewing angles available to other spectators, in compliance with 28 C.F.R. § 35.151(g)(3), and 2010 ADA Standards, §§ 201, 221, 802;
       5. Player Seating Area. Provide a wheelchair seating location at each team or player seating area to comply with the 2010 ADA Standards, §§ 221.2.1.4, 206.7.9; and
       6. On Accessible Route. All wheelchair seating locations required pursuant to this Agreement will be on permanent accessible platforms, in sections that have permanent seating for others and temporary platforms where all other seating is on temporary platform, and all wheelchair seating locations will be served by an accessible route and be on a level surface.
    4. Clubs and Suites Seating
       1. Provide accessible seating locations in each club box and each individual suite. See 2010 ADA Standards §§ 221.2.1.2, 221.2.1.1; and
       2. Provide four (4) wheelchair spaces and an equal number of companion seats in the South Club; two (2) wheelchair spaces and an equal number of companion seats in the North Club; and a wheelchair space and companion seat in each of the twelve (12) suites.
    5. Ice and Barrier (Dasher Board) Events
       1. Provide the required number of wheelchair spaces and an equal number of adjoining companion seats required based on the arena's general seats for ice and barrier (dasher board) events. See 2010 ADA Standard § 221.2.1.1;
       2. Provide wheelchair and companion seating at the event floor, with locations equivalent to other viewers; and of the total accessible general seating required, provide two (2) wheelchair seating locations and two (2) companion seating at the dasher board.
    6. Basketball
       1. Provide the required number of wheelchair spaces and an equal number of adjoining companion seats required based on the arena's general seats for basketball. See 2010 ADA Standard § 221.2.1.1.;
       2. Provide wheelchair and companion seating at the event floor, equivalent to other viewers, and of the total accessible general seating required, provide two (2) wheelchair seating locations and two (2) companion floor seating for basketball games.
    7. Other Events
       1. Provide the required number of wheelchair spaces and an equal number of adjoining companion seats based on the arena's general seats for large events. See 2010 ADA Standard § 221.2.1.1.;
       2. Provide wheelchair and companion seating at the event floor, equivalent to other viewers; and
       3. Of the total accessible general seating required in subparagraph (i) above, provide eleven (11) wheelchair seating locations and eleven (11) companion seats on the floor.
29. Wheelchair and Companion Seating Locations on the Arena Floor and Adjoining Areas. Within one (1) year of the effective date of this Agreement, the City will do the following:
    1. Floor game seating configuration. Provide at least two (2) wheelchair seating spaces and two companion seats on the arena floor and two (2) in the temporary sections for all types of floor games (including basketball noted above). These seats will be located in the front row, court-side, and may be arranged as a single wheelchair location for both wheelchair seats (each with an adjacent companion seat).
    2. End stage seating configuration. Provide eleven (11) wheelchair seating locations and an equivalent number of companion seats for maximum floor event seating such as end stage configurations (including other events, as noted above).
    3. Other seating configurations. For all other Center seating configurations that permit seats on the arena floor, provide wheelchair and companion seats for sale within three (3) months of the effective date of the Agreement, in the front row and grouped so two individuals using a wheelchair may be seated together.
    4. Ice and barrier (dasher board) events. Provide at least two (2) wheelchair seating spaces and two (2) companion seats rink-side.
30. Designated Aisle Seats. Within one (1) year of the effective date of this Agreement, the City will do the following:
    1. Provide required number of designated aisle accessible seats among the general seating sections, located closest to accessible routes. 2010 ADA Standards §§ 221.4. Where designated aisle seats have armrests on the aisle side of seats, the armrests will be folding or retractable. Designated seats are 5% of all aisle seats.
    2. Provide five percent (5%) or at least the designated aisle seat(s) in each luxury box and club seat section that comply with 2010 ADA Standards §§ 221.4, 802.4;
    3. Identify each designated aisle seat by a sign or marker that complies with 2010 ADA Standards, §§ 221.4, 802.4; and
    4. Install and maintain appropriate signage at the ticket booths and on website to direct patrons to the designated aisle seats.
31. Counters and Bars in Suites. Within one (1) year of the effective date of this Agreement, the City will do the following:
    1. Modify and maintain counters and bars in all suites in compliance with the ADA;
    2. Alter or remove portions of bolted and fixed counters permanently in each suite to provide ready access to arena viewing wheelchair space; and
    3. At counter and bar surfaces intended for consumption of food or drink, provide at least five (5) percent or at minimum, one wheelchair accessible space, among all seating and standing spaces. At wheelchair accessible counter/bar spaces, provide a forward approach clear floor space with knee and toe clearance. See 2010 Standards, §§ 221.2.1.2, 802.1 with §§ 226.1, 902, 305, 306.
32. Signage at Suites. Within one (1) year of the effective date of this Agreement, the City will install and maintain signage on the wall adjacent to the latch side of the door to all suites. See 2010 Standards, §§ 216, 216.2, 703, 703.1-.5.
33. Assistive Listening Devices. Within one (1) year of the effective date of this Agreement, the City will:
    1. Maintain required assistive listening devices in working condition for individuals who request them on the day of the event, in compliance with 2010 ADA Standards §§ 291, Table 219.3, 706; and
    2. Provide and maintain signage informing patrons of the availability of the assistive listening system. Signs will include the International Symbol of Access for Hearing Loss. Display the signs at each ticket office or window informing patrons of the availability of assistive listening systems, in compliance with 2010 ADA Standards §§ 216.10, 703.5, 703.7.2.4.
34. Plan Approval. Within three (3) months of the effective date of this Agreement, the City through the ILA will submit architectural drawings of required items in paragraphs 28 through 33 to the United States for approval, prior to undertaking any work. The United States will have ninety (90) days from its receipt of complete drawings (and any additional requested information) to review those drawings and either approve, disapprove or make recommendations. The City and the ILA will provide all necessary information requested by the United States to determine whether the submitted plans comply with the terms of this Agreement.
35. Ticketing and Pricing Policies. Within thirty (30) days of the effective date of this Agreement, the City will revise and maintain its ticketing and pricing policies in compliance with 28 C.F.R. § 35.138(a)(2).
36. Designated ADA Coordinator and Training. Within thirty (30) days of the effective date of this Agreement, the City will designate one or more people who are fully trained in the ADA generally and with respect to the provisions of this Agreement in particular to coordinate efforts to assist persons with disabilities in accessing the Center, including the purchase of tickets. The City will have at least one fully trained representative available, either in person at the Center or by telephone, on the day of every event and for the duration of each event. The City will train Front of House staff with respect to the City's policies and procedures of the Center, accessible locations, tickets, and ticket prices. Front of House staff will be authorized to modify policies in a particular situation to resolve complaints by individuals with disabilities. For any question related to accessibility that the Front of House staff has not been trained or cannot handle, the ADA Coordinator will be available immediately by telephone to resolve the complaint.
37. Publicity. Within thirty (30) days of the effective date of this Agreement, the City will publicize the availability and locations of wheelchair seating, companion seating, designated aisle seating, and assistive devices on the Center’s Web sites that contain information concerning seating at the Center, as well as post signs at ticket booths, ticket windows, and all public entrances advertising the availability of these seats.

    IV. Reporting and Monitoring

38. Within three (3) months of the effective date of this Agreement, and every six (6) months thereafter, the City will submit written reports to the Department summarizing its actions pursuant to this Agreement. Reports will include detailed photographs showing measurements, architectural plans, ILA certifications, work orders, and notices published in the newspaper.
39. Within three (3) months of the effective date of this Agreement, and every six (6) months thereafter, the City will submit to the United States all training materials required under the terms of this Agreement, with a list of all trainees including names and dates training was completed for each employee pursuant to paragraph 36.
40. Within two (2) months of the effective date of this Agreement, the City will submit to the United States draft revised ticketing policies already reviewed by its ADA Coordinator. The United States will review such policies and may provide comments to the City.
41. Within three (3) months of the effective date of this Agreement, and every six (6) months thereafter, the City and the ILA will submit to the United States an Architectural Report, detailing its compliance with the obligations referenced below. The Architectural Report will include, but is not limited to:
    1. Final construction drawings of the as-built condition of all wheelchair seating areas required pursuant to the Agreement; and
    2. Detailed statements and photographs certifying that all modifications, additions, and alterations to the wheelchair seating areas required by this Agreement have been completed.
42. Upon reasonable notice to the City, the United States and any person acting on its behalf will be permitted full access to the Center to review compliance with this Agreement, including during games and events at the Center.

    V. Enforcement and Implementation

    43. Enforcement. The United States may review compliance with this Agreement at any time and may enforce this Agreement if the United States believes that it or any requirement herein has been violated. If the United States believes that this Agreement or any portion of it has been violated, it will raise its concerns with the City and the parties will attempt to resolve the concerns in good faith. In the event that the United States believes that the City has violated any provision of this Agreement, the United States will give written notice of such violation. If the United States is not satisfied with the City's resolution of the issues raised it may institute a civil action in federal district court to enforce the terms of this Agreement and Title II and may, in such action, seek any relief available under the law. Failure by the United States to enforce any provision or deadline of this Agreement will not be construed as a waiver of its right to enforce any provisions or deadlines of this Agreement.

    ***

43. Complaints. During the term of this Agreement, the City will notify the United States if any individual brings any lawsuit, complaint, charge, or grievance alleging that the City discriminated against them on the basis of disability or that an individual was discriminated against related to accessibility at the Center. Such notification must be provided in writing via overnight delivery within fifteen (15) days of when the City has received notice of the allegation and will include at a minimum, the nature of the allegation, the name of the individual bringing the allegation, and any documentation possessed by the City relevant to the allegation.
44. Notices. All notices, reports, or other such documents required by this Agreement will be sent to the Parties by fax and via overnight delivery to the following addresses or to such other person as the parties may designate in writing in the future:

    For notices to the United States:

    Rebecca B. Bond, Chief
    Robert J. Mather, Attorney
    DJ# 204-28-76
    Disability Rights Section
    Civil Rights Division
    U.S. Department of Justice
    1425 New York Avenue, N.W. Washington, DC 20005
    (202) 307-2236 (telephone)
    (202) 616-6862 (facsimile)

    For notices to the City:

    Richard Wade
    City Attorney
    City of Council Bluffs
    209 Pearl Street
    Council Bluffs, Iowa 51503
    (712) 328-4620(telephone)
    (712) 328-9255(facsimile)

45. Term of the Agreement. The Agreement will become effective as of the date of the last signature below, the effective date, and will remain in effect for eighteen (18) months from that date.
46. Entire Agreement. This Agreement, and any appendices attached, constitute the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by any of the parties or agents of any of the parties, that is not contained in this Agreement or attachments, will be enforceable regarding the matters raised herein.
47. Copies Available. A copy of this Agreement will be made available by the United States or the City to any person upon request.
48. Other Potential Violations. This Agreement does not purport to remedy other potential or alleged violations of the ADA by the City, if any.
49. Binding Effect. This Agreement will be binding on the City, its agents and employees. In the event the City seeks to transfer, sell or assign all or part of its interest in the Center, and the successor or assign intends on carrying on the same or similar use of the Center, as a condition of sale the City will, prior to finalizing the transfer, sale or assignment, obtain the written consent of the successor, buyer or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement. The City will send a copy of the written consent within 30 days of the finalization of the transfer, sale or assignment.
50. Signatory. A signatory to this document in a representative capacity for the City represents that he or she is authorized to bind that party to this Agreement.