SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE CAVALIERS OPERATING COMPANY, LLC

I. BACKGROUND

1. The United States Attorney’s Office for the Northern District of Ohio (“USAO”) initiated a compliance review under Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq. (“ADA”) regarding Quicken Loans Arena, located at One Center Court, Cleveland, Ohio (“Quicken Loans Arena”).  Under the authority granted by section 308(b) of the ADA, 42 U.S.C. § 12188, the USAO investigated Quicken Loans Arena’s policies and procedures, auxiliary aids and services, and seating in assembly areas, related to providing full and equal enjoyment to patrons with mobility impairments (e.g., use of a wheelchair), deaf patrons, and blind patrons (collectively, “Patrons with Disabilities”). 

II. PARTIES

2. The parties to this Agreement are the United States of America (“United States”) and the operator of Quicken Loans Arena, Cavaliers Operating Company, LLC (“Cavs”, and together with the United States, the “Parties”).

3. The Parties enter into this agreement (“Settlement Agreement”) in the spirit of cooperation, and in furtherance of their shared commitment to accessibility, equality, and independence for Patrons with Disabilities.

III. JURISDICTION

4. Patrons with Disabilities are individuals with a disability as defined in 42 U.S.C. § 12102(2) and 28 C.F.R. § 36.104.

5. Quicken Loans Arena is a place of public accommodation within the meaning of 42 U.S.C. § 12181 and 28 C.F.R. § 36.104 because its operations affect commerce, and because it is a place of exhibition or entertainment.  The Cavs are a public accommodation as defined in 42 U.S.C. § 12181 and 28 C.F.R. § 36.104 because they operate a place of public accommodation. 

IV. SPECIFIC RELIEF

6. The Cavs agree to undertake the following actions according to the deadlines stated below.  For actions that have no specific deadline, the Cavs shall commence them upon the effective date of this Agreement and shall continue for as long as the Cavs or its successor in interest operates Quicken Loans Arena, except where noted.  References to “Standards” in this Agreement refer to the 2010 ADA Standards for Accessible Design (“Standards”).

A. ACCESSIBLE SEATING

7. Within 30 days of the Effective Date of this Agreement, the Cavs shall provide at least one hundred and ten (110) wheelchair spaces in Quicken Loans Arena in compliance with the wheelchair space requirements set forth in table 221.2.1.1 of the Standards. (“Wheelchair Spaces”).   Notwithstanding the previous sentence, if Quicken Loans Arena is configured for an event in a manner that reduces its seating capacity from 19,819, the Cavs may decrease the number of Wheelchair Spaces available for that event by the following proportion: one Wheelchair Space for every 200 fixed seats less than 19,819.

8. Wheelchair Spaces shall be thirty six (36) inches wide (or as otherwise required by Section 802), located on a level floor surface, and shall adjoin accessible routes.  Wheelchair Spaces shall also be an integral part of the seating plan such that they are within the footprint of the seating area and not segregated in any way from the fixed seating. 

9. Wheelchair Spaces shall be an integral part of the seating plan in compliance with Standards § 221.2.2 and shall provide spectators in wheelchairs choices of seating in compliance with Standards § 221.2.3.  Wheelchair Spaces shall be dispersed vertically at varying spaces from the performance area or playing field, and in each balcony or mezzanine, per Standards § 221.2.3.2, and dispersed horizontally around the performance area or playing field, per Standards §§ 221.2.3.1 and 36.406(f)(2).

10. Wheelchair Spaces shall provide lines of sight in compliance with Standards § 802.2. 

11. The Cavs shall ensure that they provide at least one hundred and ten (110) seats adjacent to the Wheelchair Spaces in Quicken Loans Arena in compliance with Standards § 221.3 and § 802.3 (“Companion Seats” and together with Wheelchair Spaces, “Accessible Seating”).

12. Companion Seats shall be equivalent in size, quality, comfort, and amenities to the seating in the immediate area in compliance with Standards § 802.3.  Companion Seats shall be permitted to be movable.

13. If an event at Quicken Loans Arena requires the placement of equipment on a flat surface (“Equipment”), the Cavs shall require that the Equipment be placed on surfaces other than areas designated for Accessible Seating.  Notwithstanding the previous sentence, if it is not readily achievable to use a surface other than one previously designated for Accessible Seating, the Cavs shall provide an equal number of Wheelchair Spaces and Companion Seats that are displaced by the Equipment in an area of the Arena with equivalent sight lines and amenities, as required by law.

14. The Cavs shall provide Wheelchair Spaces and Companion Seats in each specialty seating area that provides spectators with distinct services or amenities that generally are not available to other spectators in compliance with 28 C.F.R. § 36.308.  Notwithstanding the previous sentence, if it is not readily achievable for the Cavs to place Wheelchair Spaces and Companion Seats in each such specialty seating area, it shall provide those services or amenities to individuals with disabilities and their companions at other designated accessible locations at no additional cost.

15. The Cavs shall provide aisle seats in Quicken Loans Arena that comply with Standards § 802.4.  Specifically, where armrests are provided on the seating in the immediate area, folding or retractable armrests shall be provided on the aisle side of the seat.  Each designated aisle seat shall be identified by a sign or marker. 

B. ACCESSIBLE TICKETING

17. Per 28 C.F.R. § 36.302(f)(1)(ii), the Cavs shall modify its policies, practices, or procedures to ensure that individuals with disabilities have an equal opportunity to purchase tickets for Accessible Seating (a) during the same hours; (b) during the same stages of ticket sales, including, but not limited to, pre-sales, promotions, lotteries, wait-lists, and general sales; (c) through the same methods of distribution; (d) in the same types and numbers of ticketing sales outlets, including telephone service, in-person ticket sales at the facility, or third-party ticketing services, as other patrons; and (e) under the same terms and conditions as other tickets sold for the same event or series of events.

18. Per 28 C.F.R. § 36.302(f)(2), the Cavs shall, upon inquiry (a) inform individuals with disabilities, their companions, and third parties purchasing tickets for Accessible Seating on behalf of individuals with disabilities of the locations of all unsold or otherwise available Accessible Seating for any ticketed event or events at the facility; (b) identify and describe the features of available Accessible Seating in enough detail to reasonably permit an individual with a disability to assess independently whether a given accessible seating location meets his or her accessibility needs; and (c) provide materials, such as seating maps, plans, brochures, pricing charts, or other information, that identify Accessible Seating and information relevant thereto with the same text or visual representations as other seats, if such materials are provided to the general public.  The Cavs shall also require that Flash Seats Vertical Alliance, LLC d/b/a Veritix, or any other company with whom the Cavs have a contractual relationship to provide tickets for events at Quicken Loans Arena, provide the same information set forth in this paragraph to individuals inquiring about Accessible Seating.

19. Per 28 C.F.R. § 36.302(f)(3), the price of tickets for Accessible Seating for a single event or series of events shall not be set higher than the price for other tickets in the same seating section for the same event or series of events.  Tickets for Accessible Seating must be made available at all price levels for every event or series of events.  If tickets for Accessible Seating at a particular price level cannot be provided because barrier removal in Quicken Loans Arena is not readily achievable, then the percentage of tickets for Accessible Seating that should have been available at that price level but for the barriers (determined by the ratio of the total number of tickets at that price level to the total number of tickets in the assembly area) shall be offered for purchase, at that price level, in a nearby or similar accessible location.

20. Per 28 C.F.R. § 36.302(f)(4)(i), for each ticket for a Wheelchair Space purchased by an individual with a disability or a third-party purchasing such a ticket at his or her request, the Cavs shall make available for purchase three additional tickets in the same row that are contiguous with the Wheelchair Space, provided that at the time of purchase there are three such seats available. The Cavs are not required to provide more than three contiguous seats for each Wheelchair Space, and such seats may include Wheelchair Spaces.

21. Per 28 C.F.R. § 36.302(f)(4)(ii), if patrons are allowed to purchase at least four tickets, and there are fewer than three such additional contiguous seat tickets available for purchase, the Cavs shall offer the next highest number of such seat tickets available for purchase and shall make up the difference by offering tickets for sale for seats that are as close as possible to the Wheelchair Spaces.

22. Per 28 C.F.R. § 36.302(f)(4)(iii), if the Cavs (or a third party event promoter) limit sales of tickets to fewer than four seats per patron, then the Cavs are only obligated to offer as many seats to individuals with disabilities, including the ticket for the wheelchair space, as it would offer to individuals without disabilities.  If patrons are allowed to purchase more than four tickets, the Cavs shall allow patrons with disabilities to purchase up to the same number of tickets, including the ticket for the wheelchair space.

23. Per 28 C.F.R. § 36.302(f)(4)(v), if a group includes one or more individuals who need to use Accessible Seating because of a mobility disability or because their disability requires the use of the accessible features that are provided in Accessible Seating, the group shall be placed in a seating area with Accessible Seating so that, if possible, the group can sit together.  If it is necessary to divide the group, it should be divided so that the individuals in the group who use wheelchairs are not isolated from their group.

24. Per 28 C.F.R. § 36.302(f)(5)(i), the Cavs may release unsold tickets for Accessible Seating for sale to individuals without disabilities for their own use for a single event or series of events only under the following circumstances: (a) when all non-Accessible Seating (excluding luxury boxes, club boxes, or suites) have been sold; (b) when all non-Accessible Seating in a designated seating area has been sold and the tickets for Accessible Seating are being released in the same designated area; or (c) when all non-Accessible Seating in a designated price category has been sold and the tickets for Accessible Seating are being released within the same designated price category.  Nothing in this paragraph requires the Cavs to release tickets for Accessible Seating to individuals without disabilities for their own use.

25. Per 28 C.F.R. § 36.302(f)(5)(iii), when series-of-events tickets are sold out and the Cavs release and sell Accessible Seating to individuals without disabilities for a series of events, the Cavs shall establish a process that prevents the automatic reassignment of the Accessible Seating to such ticket holders for future seasons so that individuals with disabilities who require the features of Accessible Seating and who become newly eligible to purchase tickets when these series-of-events tickets are available for purchase have an opportunity to do so.

26. Per 28 C.F.R. § 36.302(f)(6), individuals with disabilities who hold tickets for Accessible Seating shall be permitted to transfer tickets to third parties under the same terms and conditions and to the same extent as other spectators holding the same type of tickets, whether they are for a single event or series of events.

27. Per 28 C.F.R. § 36.302(f)(7)(i), the Cavs shall modify its policies, practices, or procedures to ensure that an individual with a disability may use a ticket acquired in the secondary ticket market under the same terms and conditions as other individuals who hold a ticket acquired in the secondary ticket market for the same event or series of events.

28. Per 28 C.F.R. § 36.302(f)(7)(ii), if an individual with a disability acquires a ticket to an inaccessible seat through the secondary market, the Cavs shall make reasonable modifications to its policies, practices, or procedures to allow the individual to exchange his ticket for one to an Accessible Seat in a comparable location if Accessible Seating is vacant at the time the individual presents the ticket to the Cavs.

29. Per 28 C.F.R. § 36.302(f)(8), the Cavs may not require proof of disability, including, for example, a doctor’s note, before selling tickets for Accessible Seating.  For the sale of single-event tickets, it is permissible to inquire whether the individual purchasing the tickets for Accessible Seating has a mobility disability or a disability that requires the use of the accessible features that are provided in Accessible Seating, or is purchasing the tickets for an individual who has a mobility disability or a disability that requires the use of the accessible features that are provided in the Accessible Seating.  For series-of-events tickets, it is permissible for the Cavs to ask the individual purchasing the tickets for accessible seating to attest in writing that the accessible seating is for a person who has a mobility disability or a disability that requires the use of the accessible features that are provided in the accessible seating.  The Cavs may also investigate the potential misuse of accessible seating where there is good cause to believe that such seating has been purchased fraudulently.

C. ACCESSIBILITY FOR DEAF AND HARD OF HEARING PATRONS

29. Within 30 days of the Effective Date of this Agreement, the Cavs shall provide effective real-time communication with individuals using auxiliary aids and services, including text telephones (TTYs).  The Cavs may use relay services in place of direct telephone communication for receiving or making telephone calls incident to its operations.  The Cavs shall respond to telephone calls from a telecommunications relay service established under title IV of the ADA in the same manner that it responds to other telephone calls. 

30. ​Within 30 days of the Effective Date of this Agreement, the Cavs shall provide contemporaneous equivalent visual messaging on the scoreboards and video monitors (“Captioning”) at Quicken Loans Arena which provide deaf patrons equal and meaningful access to all safety and emergency information provided over the public address system during all events at Quicken Loans Arena.  The Cavs shall provide deaf patrons equal and meaningful access to all aural information provided over the public address system during all events at Quicken Loans Arena (“Aural Information”) by October 1, 2013.  Notwithstanding the foregoing, if after due diligence into the technology, cost, and feasibility of providing Captioning for all Aural Information, the Cavs believe it would be an undue burden to do so, they shall inform the United States.  The Parties shall then work together to ensure that within 60 additional days, as much Aural Information as possible is captioned without being unduly burdensome. 

31. Within six months of the Effective Date of this Agreement, the Cavs shall have 233 fully functional receivers for assisted listening systems available for patrons with a hearing disability, as required by Standards § 219 (“Assisted Listening Devices”).  The Cavs shall ensure that the Assisted Listening Devices remain in good working order and any defects or issues are resolved expeditiously.  The Cavs shall also ensure that it provides the appropriate signage at Quicken Loans Arena at entrances and ticket windows notifying patrons of the availability of Assisted Listening Devices, in compliance with Standards § 216.10.

D. WEBSITE ACCESSIBILITY FOR BLIND PATRONS

32. Within six months of the Effective Date of this Agreement, the Cavs shall ensure that its websites (www.cavs.com and www.theqarena.com) (“Websites”) comply with the Worldwide Web Consortium’s Web Content Accessibility Guidelines version 2.0, Level AA success criteria.  The foregoing requirement shall not apply to any advertising provided by third parties that appears on the Websites, or links to third party websites that can be accessed from the Websites, including links to websites independently operated by the NBA and/or portions of cavs.com that are hosted by the NBA.  The Cavs shall also develop a written policy to routinely evaluate and remedy any accessibility problems encountered on the Websites.  Within 30 days of the Effective Date of this Agreement, the Cavs shall designate and advertise a contact e-mail address, and instructions for its use, on the Websites to allow people with disabilities to inform the Cavs of accessibility problems encountered on the Websites. 

E. SERVICE ANIMALS

33. Subject to the exceptions set forth in 28 C.F.R. § 36.302(c)(2)(i-ii), the Cavs shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.  The Cavs shall permit individuals with disabilities to be accompanied by their service animals in all areas of Quicken Loans Arena where members of the public, customers, patrons, or invitees are allowed to go.

34. Per 28 C.F.R. § 36.302(c)(2), the Cavs may ask an individual with a disability to remove a service animal from the premises if: (i) the animal is out of control and the animal’s handler does not take effective action to control it; or (ii) the animal is not housebroken.  If the Cavs properly exclude a service animal under this paragraph, they shall give the individual with a disability the opportunity to obtain goods, services, and accommodations without having the service animal on the premises.

35. Per 28 C.F.R. § 36.302(c)(6), the Cavs shall not ask about the nature or extent of a person’s disability, but may make two inquiries to determine whether an animal qualifies as a service animal. The Cavs may ask if the animal is required because of a disability and what work or task the animal has been trained to perform.  The Cavs shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal.

36. Per 28 C.F.R. § 36.302(c)(8), the Cavs shall not ask or require an individual with a disability to pay a surcharge or to comply with other requirements generally not applicable to people without service animals.  If the Cavs normally charge individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.

F. POLICIES AND PROCEDURES

37. Within 60 days of the Effective Date of this Agreement, the Cavs shall develop and post in a prominent location at each entrance to Quicken Loans Arena a written policy statement indicating that all persons with disabilities are welcome in the facility (“Policy Statement”).  This Policy Statement shall be provided in Braille and also comply with Standards §§ 216 and 703.             

38. Within 60 days of the Effective Date of the Agreement, the Cavs shall publish a policy on its website stating that it will take the steps necessary to ensure that a person with a disability shall not be denied an equal opportunity to participate in, or benefit from, the services, programs, or activities at Quicken Loans Arena because of the disability or because of the requirement for appropriate auxiliary aids and services needed, including those needed for effective communication.

G. TRAINING

39. The Cavs shall train all present and future staff who work at Quicken Loans Arena and who interact with customers purchasing tickets over the phone or in person (“Cavs Employees”) to ensure that all people with disabilities are treated in a nondiscriminatory manner and are afforded the same service and courtesy as that afforded any customer.  Specifically, all Cavs Employees shall be trained on the ADA issues relevant to their position at Quicken Loans Arena, including, but not limited to: (1) location of accessible seating; (2) location of accessible routes into and throughout Quicken Loans Arena, where not all routes are accessible; (3) location and use of accessibility equipment (e.g., TTY’s, captioning equipment); (4) accessible ticketing policies regarding seating for individuals with disabilities; (5) maintenance of accessible routes; (6) all requirements of this Agreement; and (7) that the Cavs expect its employees to comply with the Agreement and reserve the right to take personnel actions, reprimand, or terminate an employee who violates or causes a failure to comply with the requirements of this Agreement.  The Cavs shall ensure that all present Cavs Employees are trained in ADA issues no later than 60 days after the Effective Date of this Agreement, that future Cavs Employees are trained in these issues within 14 days of their first day of employment, and that Cavs Employees are trained on an annual basis going forward at a date and time selected by the Cavs in their sole discretion. 

H. MISCELLANEOUS

40. Per 28 CFR § 36.303(c)(1), the Cavs shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. This includes an obligation to provide effective communication to companions who are individuals with disabilities.

41. Per 28 CFR § 36.303(a), the Cavs shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the Cavs can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden.

42. Per 28 CFR § 36.311(a), the Cavs shall permit individuals with mobility disabilities to use wheelchairs, or other power-driven mobility devices, and manually-powered mobility aids, such as walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility disabilities in any areas open to pedestrian use.

I. RELIEF FOR AGGRIEVED PERSONS

43. The Cavs shall provide four (4) tickets for Accessible Seating to any five (5) events at Quicken Loans Arena that occur within one year from the Effective Date of this Agreement to the following individuals: Susan Friedrich, Penny Sutherland, and Janet Smith (“Recipients”).  The Recipients shall give the Cavs at least 60 days notice before the date of each desired event.

V. IMPLEMENTATION AND ENFORCEMENT OF AGREEMENT

44. In consideration of the terms of this Agreement as set forth above, the sufficiency of which is acknowledged by the Parties, the United States waives any and all claims which it could have maintained on behalf of the Recipients with respect to any and all complaints made by the Recipients to the United States up to the Effective Date of this Agreement (as defined in Paragraph 54), except as set forth in Paragraph 47.  Nothing in this Agreement is intended to be or shall be construed as an admission of or finding against the Cavs of a violation of the ADA.

45. The United States may review compliance with this Agreement at any time.

46. Failure by the United States to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein shall not be construed as a waiver of its right to do so with regard to other deadlines and provisions of this Agreement.  Further, if any term 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.

47. In the event that the Cavs fail to comply in a timely fashion with any requirement of this Agreement without obtaining sufficient advance written agreement with the United States as to a temporary modification of the relevant terms of the Agreement, the Parties shall attempt to resolve the concerns in good faith.  Specifically, if either party becomes aware of a potential violation of the Agreement, it shall provide the other side written notice.  The Cavs shall have 30 days to cure and/or respond in writing to the alleged violation.  If, after further discussion with the Cavs, the United States believes that the Cavs have violated the Agreement and the ADA, and that such violation has not been sufficiently cured, the United States may bring an action to enforce the Agreement.

48. All provisions of this Agreement shall be binding on the Cavs and their successors in interest in ownership or operation of Quicken Loans Arena, and the Cavs have a duty to so notify all such successors in interest.

49. This Agreement is limited to the facts set forth in it.  The Agreement does not purport to remedy any potential violations of the Americans with Disabilities Act or any other federal law, nor is it intended to certify that no such violations exist.  Compliance with this Agreement does not necessarily render the Cavs or Quicken Loans Arena to be in compliance with the ADA.  This Agreement is not intended to certify or signify such compliance, or a finding of compliance by the United States, and it cannot be used in any proceeding to signify such.

50. This Agreement does not affect the continuing responsibility of the Cavs and Quicken Loans Arena to comply with all aspects of the ADA.

51. This Agreement is a compromise of claims, and it is not intended to reflect any legal interpretations of any provisions of the ADA by the United States, and it cannot be used in any proceeding to demonstrate such legal interpretations.

52. 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 either party or agents of either party, that is not contained in this written Agreement, shall be enforceable or admissible in any Court of law. 

53. This document, and all information contained in it, are public.  The Parties will provide a copy of this Agreement to any person upon request. 

54. The Effective Date of this Agreement is the date of the last signature below.  With respect to the Cavs’ obligations in this Agreement only, this Agreement shall remain in effect until three (3) years after the Effective Date.

55. A signer of this document in a representative capacity for a partnership, corporation, or other entity, represents that he or she is authorized to bind such partnership, corporation, or other entity to this Agreement.

56. Notices of any kind required or contemplated under this Agreement shall be made by mailing the same via U.S. Postal Service, first class certified mail, return receipt requested, and notice shall be deemed given on the date of receipt of the same.  Notice to the United States shall be mailed to: Adam Hollingsworth, Assistant United States Attorney, at the address below.  Notices to the Cavs shall be mailed to Jason Hillman, Company Counsel, at the address below.

57. Deadlines listed in this Agreement which fall on weekends or holidays will be extended to the next business day.