SETTLEMENT AGREEMENT
UNDER THE AMERICANS WITH DISABILITIES ACT
BETWEEN THE UNITED STATES OF AMERICA
AND NORTH DAKOTA STATE UNIVERSITY
D.J. No. 204-69-61

INTRODUCTION

1. The parties to this Settlement Agreement (“Agreement”) are the United States of America (“United States”) and North Dakota State University (“NDSU”).  This Agreement pertains to NDSU’s facility, the Sanford Health Athletic Complex (“SHAC”), located at 1300 17th Avenue North, Fargo, North Dakota, 58102. 
2. The United States Department of Justice (the “Department”) is responsible for enforcing title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134, and the relevant regulations implementing Title II, 28 C.F.R. Part 35.
3. This Agreement resolves an investigation of the SHAC conducted by the Department under Title II.
4. Title II of the ADA prohibits discrimination in “the services, programs, or activities of a public entity” on the basis of a disability.  42 U.S.C. § 12132; 28 C.F.R. § 35.101. 
5. NDSU 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 of the ADA, and its implementing regulations.  NDSU owns the SHAC and operates “services, programs, or activities” within the meaning of the ADA at the SHAC. 

BACKGROUND AND INVESTIGATION

6. NDSU opened the SHAC in November 2016.  This project was an extension and renovation of the former Bison Sports Arena, which was originally constructed in 1970.  The SHAC is home to the Scheels Center, a 5,685-seat arena for NDSU wrestling and men’s and women’s basketball, and the Nodak Mutual Basketball Performance Center, a training facility.  The Scheels Center offers courtside, main level, and upper level seating, as well as a clubroom seating area.  The SHAC also houses the NDSU athletic department offices, an equipment room, sports medicine facilities, strength and conditioning facilities, and the Bison Ticket Office. 
7. The United States commenced its investigation of the SHAC after it received a complaint alleging there was not adequate accessible seating in the Scheels Center assembly area of the SHAC.  The complaint also raised concerns about the accessible parking at the SHAC.
8. As part of the investigation, and with the cooperation of NDSU, the United States conducted two site visits of the SHAC, on May 5, 2017, and October 17, 2017.  The purpose of the site visits was to evaluate compliance with the 2010 ADA Standards for Accessible Design, 28 C.F.R. § 35.104 (“2010 Standards”). 
9. In the course of its investigation, the United States identified elements of the SHAC that did not comply with the 2010 Standards.
   

TERMS OF AGREEMENT

10. The parties have voluntarily agreed to the terms of this Agreement.  These terms are intended to redress the violations of the ADA that have been identified by the United States. 
11. By or before December 31, 2020, NDSU will remedy each of the following violations to comply with the 2010 Standards¹ : 
1. Parking
1. South SHAC Parking Lot
   1. Van Signs.  The van spaces are not identified with a van accessible sign.  Signs identifying van parking spaces shall contain the designation “van accessible.”  2010 Standards § 502.6.
   2. Parking Signs.  Each accessible parking space is not identified by a sign.  Parking spaces complying with § 502 shall be identified by signs complying with § 502.6.  2010 Standards § 216.5.
   3. Emergency Call Box.  The clear ground space at the emergency call box is not level and is on a slope of at least 3.9%.  Floor or ground surfaces of a clear floor or ground space shall have slopes not steeper than 1:48 (2%).  2010 Standards § 305.2.
2. 30-Minute Visitor Lot

   The 30-minute visitor lot does not have an accessible parking space.  The 30-minute visitor lot shall have at least one accessible parking space.  2010 Standards Table 208.2.

3. West Parking Lot

The West Parking Lot has two accessible parking spaces on the shortest accessible route to the track facility.  If the West Parking Lot is intended to serve the track facility and the SHAC, the two accessible spaces shall be dispersed, with one space on the shortest accessible route to the track facility entrance, and one space on the shortest accessible route to the SHAC entrance.  2010 Standards § 208.3.1. 

2. Accessible Route

   The route from a slope of up to 6.6%.  The accessible route’s running slope shall not be steeper than 1:20 (5%).  2010 Standards § 403.3.

3. Level Changes. 

There are level changes along the route to the south door accessible entrance where the curb ramp meets the roadway along the path.  The adjacent surfaces of transitions at curb ramps to walks, gutters, and streets shall be at the same level. 2010 Standards § 406.2. 

4. Assembly Area
1. Wheelchair Spaces.  The SHAC does not provide adequate wheelchair spaces.  For an assembly area of 5001 seats or more, 36 wheelchair spaces, plus one wheelchair space for each seat over 200 is required.  At the SHAC’s current capacity of 5,685, 40 wheelchair spaces shall be provided.  2010 Standards Table § 221.2.1.1.
2. Companion Seats.  The SHAC does not provide adequate companion seats.  At least one companion seat shall be provided for each of the required 40 wheelchair spaces.  2010 Standards § 221.3.
3. Designated Aisle Seats.  The SHAC does not provide adequate designated aisle seats on accessible routes.  At least 5 percent of the total number of aisle seats provided shall be closest to accessible routes.  2010 Standards § 221.4. 
4. Integration.  The wheelchair spaces in the SHAC are in a segregated location.  The wheelchair spaces shall be an integral part of the seating plan. 2010 Standards § 221.2.2. 
5. Lines of Sight and Dispersion. The wheelchair spaces in the SHAC have viewing angles and seating inferior to other spectators.  Wheelchair spaces shall provide lines of sight complying with § 802.2 and shall comply with § 221.2.3.  Wheelchair spaces shall provide spectators with choices of seating locations and viewing angles that are substantially equivalent to, or better than, the choices of seating locations and viewing angles available to all other spectators. Standards § 221.2.3. 
6. Horizontal Dispersion.  The wheelchair spaces in the SHAC are not horizontally dispersed.  The wheelchair spaces shall be dispersed horizontally.  2010 Standards § 221.2.3.1.   
7. Vertical Dispersion.  The wheelchair spaces in the SHAC are not vertically dispersed.  The wheelchair spaces shall be dispersed vertically at varying distances from the performance area. 2010 Standards § 221.2.3.2. 
8. Lines of Sight Over Heads.  The wheelchair spaces at the SHAC have obstructed views when spectators in front of the spaces stand.  Where standing spectators are provided lines of sight over the heads of spectators standing in the first row in front of their seats, spectators seated in wheelchair spaces shall be afforded lines of sight over the heads of standing spectators in the first row in front of the wheelchair spaces.  2010 Standards § 802.2.2.1. 
9. Club Room.  There are no wheelchair spaces in the clubroom.  The Club Room shall have two wheelchair spaces and two companion spaces.  2010 Standards § 221.2.1.2.   
5. Toilet Rooms
1. Door Pulls.  The wheelchair accessible compartment and the ambulatory accessible compartment do not have door pulls on both sides of the compartment door.  A door pull complying with Standards § 404.2.7 shall be placed on both sides of the door near the latch.  2010 Standards §§ 604.8.1.2, 604.8.2.2.
2. Circulation Path.  Paper towel dispensers project more than 4 inches into the circulation path.  The paper towel dispensers shall not horizontally protrude more than 4 inches into the circulation path.  2010 Standards § 307.2.
6. Signage
1. Directional Signage.  The white characters do not contrast with the yellow background on the SHAC’s directional signage.  Characters shall contrast with their background with either light characters on a dark background or dark characters on a light background. 2010 Standards § 703.5.1.
2. Exit Door Signage.  Tactile signage in raised characters and braille is not provided at the exit doors. Doors at exit passageways, exit discharge, and exit stairways shall be identified by tactile signs complying with §§ 703.1, 703.2, and 703.5.  2010 Standards § 216.4.1.
7. Drinking Fountains

Operable Parts.  Several of the drinking fountains required more than five pounds of pressure to activate the waterspout to four inches.  The force to activate operable parts shall be 5 pounds maximum.  2010 Standards § 309.4.

8. Concession Stands

Toe Clearance.  The toe clearance is less than 17 inches deep for a forward approach to the service counter.  A portion of the counter surface that is 30 inches long minimum and 36 inches high maximum shall be provided.  Knee and toe space complying with Standards § 306 shall be provided under the counter.  A clear floor or ground space complying with Standards § 305 shall be positioned for a forward approach to the counter.  Where toe clearance is required as an element as part of a clear floor space, the toe clearance shall extend 17 inches minimum under the element.  2010 Standards §§ 904.4.2, 306.2.3.

9. Assistive Listening Devices

The Scheels Center hosts speakers and other events, but does not offer assistive listening devices.  For the Scheels Center seating capacity, it shall provide 92 assistive listening devices.  2010 Standards § 706.1, Table 219.3. 

10. Ramps

Of the four ramps to the floor of the Scheels Center, the ramp nearest the south entrance has a running slope of 8.6%.  Ramps shall have a running slope not greater than 1:12 (8.3%).  2010 Standards § 405.2. 

Implementation and Enforcement

12. Within 30 days of remedying all violations identified in this Agreement, NDSU shall provide the United States with final written documentation evidencing their correction in sufficient detail for the United States to independently confirm that all work has been done.  Such evidence shall include narratives, color photographs, purchase orders, permits, and/or architectural drawings, if necessary. 
13. The United States may review compliance with this Agreement at any time.  If the United States believes that this Agreement or any portion of it has been violated, it will raise its concern(s) with NDSU and the parties will attempt to resolve the concern(s) in good faith.  If, during the implementation of this Agreement, NDSU determines that, due to reasons beyond its control (e.g., substantial and unexpected circumstances), that NDSU cannot complete work by the dates set forth in this Agreement, NDSU may seek reasonable extension of time to complete the work from the United States.  If the parties are unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date the United States provides notice to NDSU, the United States may institute a civil action in federal district court to enforce the ADA or the terms of this Agreement. 
14. Failure by the United States to enforce any provision or deadline of this Agreement shall not be construed as a waiver of its right to enforce other provisions or deadlines of this Agreement. 
15. This Agreement constitutes the entire agreement between the parties relating to Department of Justice No. 204-69-61 and no other statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written Agreement, including its attachments, shall be enforceable. 
16. All notices, demands, reports, or other communications to be provided pursuant to this Agreement shall be in writing and delivered by electronic mail or overnight mail to the following persons and addresses (or such other persons and addresses as any party may designate in writing from time to time):  

    For the United States:
    Melissa Helen Burkland
    Assistant United States Attorney
    Quentin N. Burdick United States Courthouse
    655 First Avenue North – Suite 250
    Fargo, ND 58102-4932
    (701) 297-7427
    Melissa.Burkland@usdoj.gov

    For NDSU:
    Bruce A. Bollinger
    Vice President for Finance and Administration
    North Dakota State University
    Dept. #3000, P.O. Box 6050
    Fargo, ND 58106-6050
    Bruce.Bollinger@ndsu.edu

17. If any provision 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, provided however, that if the severance of any such provision materially alters the rights or obligations of the parties, the United States and NDSU shall engage in good faith negotiations in order to adopt such mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed-upon rights and obligations.
18. This Agreement is limited to the matters described herein and does not purport to remedy any other potential violations of the ADA or any other federal law.  This Agreement does not affect NDSU’s continuing responsibility to comply with all aspects of the ADA not covered by this Agreement.
19. A signatory of this document in a representative capacity for an entity represents that he or she is authorized to bind such entity to this Agreement.
20. The effective date of this Agreement is the date of the last signature below.
21. The term of this Agreement shall be three years from the effective date.