SETTLEMENT AGREEMENT

IN

U.S. DEPARTMENT OF JUSTICE ADA COMPLAINT NUMBER 202-39-32

THE UNITED STATES OF AMERICA

v.

TWIN CITIES AVANTI STORES LLC
dba OASIS MARKETS

I. INTRODUCTION

II. ADA COVERAGE

2.  Title III of the ADA, 42 U.S.C. §§ 12181-12189, and the Department’s Title III implementing regulation, 28 C.F.R. Part 36, prohibit discrimination on the basis of disability by public accommodations and require places of public accommodation and commercial facilities to be designed, constructed, and altered in compliance with the ADA Standards for Accessible Design (“Standards”), 28 C.F.R. Part 36, Appendix A. Title III of the ADA also requires the removal of architectural barriers by places of public accommodation in existing facilities where such removal is readily achievable. See 42 U.S.C. § 12182(b)(2)(A)(iv). The ADA also requires that alterations be made in such a manner that they are readily accessible to and usable by people with disabilities to the maximum extent feasible. See 42 U.S.C. § 12183(a).

3.  TCAS owns and operates 22 convenience stores and gas stations in Minnesota. Convenience stores and gas stations are considered “places of public accommodation” under Title III of the ADA, see 42 U.S.C. §12181(7)(A), and places of public accommodation are required to remove architectural barriers where such removal is readily achievable, see 42 U.S.C. § 12182(b)(2)(A)(iv).

III. INVESTIGATION OF COMPLAINT

4.  The Department and U.S. Attorney are authorized to enforce Title III of the ADA by seeking the removal by places of public accommodation of architectural barriers that are readily achievable. See 42 U.S.C. § 12188(a)(2). In addition, the Department and U.S. Attorney may commence a civil action to enforce Title III in any situation where they believe a pattern or practice of discrimination exists or a matter of general public importance is raised. See 42 U.S.C. § 12188(b)(1)(B).

5.  After the complaint in this matter was filed, the U.S. Attorney expanded its investigation to include not only the convenience store and gas station in Mankato, Minnesota, but all the convenience stores and gas stations owned by TCAS in Minnesota.

6.  In 2003, an ADA investigator from the U.S. Attorney’s Office randomly evaluated several convenience stores and gas stations owned by TCAS. The ADA investigator determined that there were in fact barriers to accessibility present in many of the convenience stores and gas stations and that it was readily achievable to remove such barriers. Thereafter, the U.S. Attorney commenced discussions with representatives of TCAS.

7.  In 2004, TCAS retained an ADA consultant to inspect all of its convenience stores and gas stations in Minnesota for compliance with the Standards. In 2005, the ADA consultant specified the necessary modifications to bring the convenience stores and gas stations into compliance with the Standards.

8.  The parties thereafter commenced negotiations and now enter into the following Settlement Agreement.

IV. AGREEMENT

9.   Agreement to Undertake Barrier Removal. Pursuant to this Agreement, TCAS agrees to undertake barrier removal to ensure that individuals with disabilities, including individuals who use wheelchairs, have an opportunity to enjoy its goods and services equal to that of individuals without disabilities. The parties agree that the modifications to be performed by TCAS pursuant to this Agreement are readily achievable, as defined in 42 U.S.C. § 12181(9) and 28 C.F.R. § 36.104, and that all such modifications will be made in accordance with the Standards.

10.   Properties Subject to this Agreement. Attached to this Agreement and incorporated herein is Exhibit A, which details the street address and city location of each convenience store and gas station owned and operated by TCAS that is subject to this Agreement. A four-digit number is also assigned to each store in Exhibit A.

11.   Barrier Removal To Be Completed by TCAS Within Twelve (12) Months of Effective Date of Agreement; Compliance Reports. Within twelve (12) months of the effective date of this Agreement, TCAS will perform and complete the modifications listed as Category 1 Work in Exhibit A in accordance with the Standards. Beginning sixty (60) days from the effective date of this Agreement and until all the Category 1 Work required by this Paragraph is completed, TCAS will submit quarterly status reports to the U.S. Attorney detailing the work performed during the previous quarter (or, in the case of the first status report, since the effective date of this Agreement). The Department and/or the U.S. Attorney will have the right to request, and TCAS will provide, within twenty (20) days after request therefore, any reasonable documentation of the work performed, including blueprints, photographs, signed statements, receipts, contracts, and other relevant evidence.

12.   Barrier Removal To Be Completed by TCAS Within Twenty-Four (24) Months of Effective Date of Agreement; Compliance Reports. Within twenty-four (24) months of the effective date of this Agreement, TCAS will perform and complete the modifications listed as Category 2 Work in Exhibit A in accordance with the Standards. Beginning sixty (60) days from the effective date of this Agreement and until all the Category 2 Work required by this Paragraph is completed, TCAS will submit quarterly status reports to the U.S. Attorney detailing the work performed during the previous quarter (or, in the case of the first status report, since the effective date of this Agreement). The Department and/or the U.S. Attorney will have the right to request, and TCAS will provide, within twenty (20) days after request therefor, any reasonable documentation of the work performed, including blueprints, photographs, signed statements, receipts, contracts, and other relevant evidence.

13.   Barrier Removal To Be Completed Within Forty-Eight (48) Months of the Effective Date of Agreement; Compliance Reports. Within forty-eight (48) months of the effective date of this Agreement, TCAS will perform and complete the modifications listed as Category 3 Work in Exhibit A in accordance with the Standards. Beginning sixty (60) days from the effective date of this Agreement and until all the Category 3 Work required by this Paragraph is completed, TCAS will submit quarterly status reports to the U.S. Attorney detailing the work performed during the previous quarter (or, in the case of the first status report, since the effective date of this Agreement). The Department and/or the U.S. Attorney will have the right to request, and TCAS will provide, within twenty (20) days after request therefor, any reasonable documentation of the work performed, including blueprints, photographs, signed statements, receipts, contracts, and other relevant evidence.

14.   Training of Store Managers. Within one hundred eighty (180) days of the effective date of this Agreement, TCAS will conduct training on Title III of the ADA for each manager of the stores listed in Exhibit A. The training will include the Refueling Assistance Procedures in Paragraph 15 of this Agreement. The U.S. Attorney will approve the agenda of the training conducted. TCAS will submit a report to the U.S. Attorney at the end of the 180-day period detailing the dates of the training and the names of the store managers trained. At the time each new store manager is hired, TCAS will incorporate into its regular manager training a segment on ADA accessibility and the Refueling Assistance Procedures in Paragraph 15 of this Agreement.

15.   Refueling Assistance Procedures. TCAS agrees that it will follow and will train its employees on the Department’s refueling procedures detailed in the Department’s June 2002 ADA Business Brief: Assistance at Gas Stations, attached and incorporated herein as Exhibit B. TCAS will issue policies to implement the refueling assistance procedures of Exhibit B within ninety (90) days of the effective date of this Agreement.

16.   Covenant Not To Sue; Exceptions. In consideration of the Agreement as set forth above, the United States agrees to refrain from undertaking further investigation or from filing a civil suit in this matter under section 308(b)(1)(B) of the ADA, 42 U.S.C. § 12188(b)(1)(B). However, the Department and/or the U.S. Attorney may review compliance with this Agreement at any time. If the United States believes that this Agreement or any provision thereof has been violated, it may institute a civil action in U.S. District Court for the District of Minnesota, following written notice to TCAS of the possible violation and a period of thirty (30) days in which TCAS has the opportunity to cure the first alleged violation. For any subsequent alleged violations of this Agreement, the United States may institute a civil action against TCAS without any waiting period for TCAS to cure the alleged violation.

17.   Public Document. This Agreement is a public document. A copy of this document or any information contained in it, may be made available to any person.

18.   Nonwaiver of Enforcement. Failure by the Department and/or the U.S. Attorney to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision herein will not be construed as a waiver of their right to enforce other deadlines and provisions of this Agreement.

19.   Entire Agreement. This Agreement constitutes 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 party that is not contained in this written Agreement will be enforceable under its provisions.

20.   Parameters of Agreement. This Agreement is limited to the facts set forth in the Introduction of this Agreement, and it does not purport to remedy any other potential violation of the ADA, or any other federal or state law. Except in accordance with Paragraph 16 of this Agreement, this Settlement Agreement does not affect TCAS’s continuing responsibility to comply with all aspects of the ADA.

21.   Binding Agreement; Duty to Notify. Each signer of this Agreement represents that he or she is authorized to bind the party he or she represents to the terms of this Agreement. This Agreement will be binding on TCAS and its successors in interest. TCAS has a duty to notify all such successors in interest of this Agreement and the duties and responsibilities it imposes on it.

22.  Effective Date; Termination. The effective date of this Agreement is the date of the last signature below. This agreement will remain in effect for forty-eight (48) months from the effective date of this Agreement or until the parties agree that full compliance with this Agreement by TCAS has been achieved.

SETTLEMENT AGREEMENT
IN
U.S. DEPARTMENT OF JUSTICE COMPLAINT NUMBER
204-39-32