SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
NORTH CANAAN ELEMENTARY SCHOOL
NORTH CANAAN, CONNECTICUT
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ# 204-14-184

I. BACKGROUND

A. SCOPE OF INVESTIGATION

1. The United States initiated this matter because of a complaint filed by the Center for Children’s Advocacy, on behalf of a parent, alleging that the North Canaan Elementary School (the “School”) failed to ensure that its playgrounds were accessible for children with disabilities under Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131–12134, and the United States Department of Justice’s implementing regulation, 28 C.F.R. Part 35. The United States Attorney’s Office for the District of Connecticut conducted the review.
2. As more specifically identified in Exhibit 1, attached, the United States reviewed compliance of the School’s play areas, fields, and tennis courts with the ADA’s applicable accessibility standards.

B. JURISDICTION

3. The parties to this Agreement are the United States of America and North Canaan Elementary School.
4. The ADA applies to the School District because it is a “public entity” as defined by Title II. 42 U.S.C. § 12131(1).
5.  Pursuant to 28 C.F.R. § 35.190(e), the Department has exercised its discretion to retain this complaint for investigation under title II of the ADA
6. The United States is authorized under the Americans with Disabilities Act (“ADA”) to initiate compliance reviews in order to determine compliance with title II of the ADA and title II’s implementing regulation, to resolve matters by informal resolution, such as through the terms of this Agreement.  28 C.F.R. Part 35, Subpart F.  If informal resolution is not achieved, the United States is authorized to issue a noncompliance Letter of Findings, and if necessary, under 42 U.S.C. § 12133, to bring a civil action to enforce title II of the ADA.
7. Based on its review of the School’s facilities identified above, 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 the School’s programs, services, or activities  because of the inaccessible playground facilities at the School, and are subjected to discrimination in violation of Title II of the ADA. The agreed upon remedial actions in Section II below are intended to remedy those violations.
8. During the site survey, 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 North Canaan playground contained barriers to access Elements that comply with the 1991 Standards are safe harbored and do not need to be modified until altered. Elements identified as not complying with the requirements in the 2010 Standards, that are not safe harbored by the 1991 Standards, shall be modified to comply with the 2010 Standards.

II. REMEDIAL ACTION

C. GENERAL REMEDIES

9. Program Access in Existing Facilities: The School District will make its 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 School District’s programs, services, and activities.
10. New Construction or Alterations: The playground is for public use, and must comply with the ADA’s accessibility standards, as listed in Exhibit 1.  Any new construction, additions or alterations to the playground facilities by the School must be made so as to be readily accessible to and usable by individuals with disabilities, are set out in the ADA’s accessibility standards. 
11. Sidewalks and Curb Cuts: In addition to the modifications identified in Exhibit 1 of this Agreement, the School District will ensure that sidewalks, including curb ramps or other sloped areas serving the North Canaan Elementary playground facility, comply with the ADA’s accessibility standards.

D. SPECIFIC REMEDIES

12. Modifications to the School will be made as detailed in Exhibit 2, on or before August 31, 2019.

E. MISCELLANEOUS PROVISIONS

13. The School will provide the United States with copies of all architectural plans and instructions necessary to make the modifications detailed in Exhibit 1, for approval prior to implementing the plans. The School will not begin work (for modifications not already completed as of the date of this Agreement) until the United States has made any corrections or modifications and indicated that the School may proceed. The United States may make any corrections or modifications to those plans as necessary for ADA compliance.
14. Six months after the date of this Agreement and annually thereafter until it expires, the School will provide written reports to the United States summarizing its actions taken pursuant to this Agreement. Reports will include photographs showing the modified elements and relevant measurements, final architectural plans, and published notices. 
15. Throughout the term of this Agreement, consistent with 28 C.F.R. § 35.133(a), the School will maintain the accessibility of its programs, activities, services, facilities, and equipment, including routinely testing accessibility equipment and routinely auditing the accessibility of its programs, services and activities that use the playground facility. 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).
16. 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 “Implementation and Enforcement.”

III. IMPLEMENTATION AND ENFORCEMENT

17. The School may seek to modify this Agreement because of changed conditions making performance impossible by notifying the United States in writing, setting forth the modification and the facts to support it. Until the United States agrees to the modification in writing, no modification will take effect.  The United States will not unreasonably withhold its agreement.
18. The United States may review compliance with this Agreement at any time.  The School will cooperate with the United States. If the United States believes that the School has failed to comply with this Agreement, then the United States will notify the School in writing. If, after 30 days of providing the School with written notice of non-compliance, the United States determines that the School has failed to come in to compliance, the United States may institute a civil action in federal district court to enforce the terms of this Agreement and may take appropriate steps to enforce Title II.
19. It is a violation of this Agreement for the School to fail to comply in a timely manner with any of the requirements of this Agreement.
20. Failure by the United States to enforce any provision of this Agreement is not a waiver of the United States of America’s right to enforce any provisions of this Agreement.
21. This Agreement is a public document. The School will provide a copy of this Agreement to any person, upon request.
22. 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. This Agreement does not remedy any other potential violations of the ADA or the School District’s obligations under other federal laws, including Section 504 of the Rehabilitation Act and the Individuals with Disabilities Education Act. This Agreement does not relieve the School District of its continuing obligation to comply with all aspects of the ADA.
23. The person signing for the School District represents that he or she is authorized to bind the School to this Agreement.
24. The effective date of this Agreement is the date of the last signature below.
25. This agreement will remain in effect for three years.