SETTLEMENT AGREEMENT

BETWEEN

THE UNITED STATES OF AMERICA

AND

THE MANDALAY CORPORATION

WITH RESPECT TO THE MANDALAY BAY RESORT AND CASINO

UNDER THE AMERICANS WITH DISABILITIES ACT OF 1990

DJ#202-40-33

Fact Sheet | Department of Justice Press Releases

INTRODUCTION

1. This Agreement (the “Agreement”) is made and entered into by the United States of America (the “United States”) and Mandalay Corp. (the “Company”), a corporation formed under the laws of the State of Nevada (collectively, “the Parties”). Mandalay Corp. is an indirect wholly owned subsidiary of MGM Mirage, a Delaware corporation.
2. This Agreement resolves an investigation and compliance review conducted by the United States Department of Justice (the “Department”) of the Mandalay Bay Resort and Casino (the “Mandalay Bay”) under Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181-12189 (2000) (the “ADA”). The Mandalay Bay is a multi-use facility located at 3950 Las Vegas Boulevard South, Las Vegas, Nevada 89119. The Company owns and operates the Mandalay Bay.
3. The Mandalay Bay includes a casino and three hotels: the Mandalay Bay Hotel with 3215 guest rooms and suites, THEhotel with 1117 guest suites, and the Four Seasons Hotel (operated by Four Seasons in space owned by the Company pursuant to a management agreement) with 424 guest rooms and suites. The complex has two convention centers; an events center seating up to 12,000 individuals, depending on the configuration in use; more than 30 restaurants, bars and snack shops (some operated by tenants in space owned by the Company); two theaters; an aquarium; a swimming pool complex (including a sand beach and wave pool); two spas; a wedding chapel; and approximately 30 specialty shops (some operated by tenants in space owned by the Company).
4. This matter was commenced when the Department received a complaint filed by a person with a disability against an affiliated resort in Mississippi. The Department investigated that complaint and also initiated a compliance review of the Mandalay Bay, pursuant to the Attorney General’s authority under 42 U.S.C. § 12188(b)(1)(A)(I) (2000). The Department reviewed architectural plans and other information provided by the Company and conducted multiple site visits of the Mandalay Bay facilities.
5. The Company is a public accommodation because it is a private entity that owns, leases to, and operates places of public accommodation. 42 U.S.C. §§ 12181(6), (7) (2000) and 28 C.F.R. § 36.104 (2006). Accordingly, the Company is subject to the requirements of Title III of the ADA, 42 U.S.C. §§ 12181-12189 (2000), and its implementing regulations, which are found at 28 C.F.R. Part 36.
6. The Mandalay Bay was designed and constructed for first occupancy after January 26, 1993. The Mandalay Bay, including the Casino, the Mandalay Bay Hotel and the Four Seasons Hotel, opened in 1999, and THEhotel opened in 2003. The Department contends that all portions of the Mandalay Bay resort and casino complex constitute newly constructed facilities within the meaning of Title III of the ADA, 42 U.S.C. § 12183(a)(1) (2000) and 28 C.F.R. § 36.401(a) (2006). The Company does not concede that all portions of the Mandalay Bay resort and casino complex constitute newly constructed facilities covered by Title III of the ADA, but nevertheless has voluntarily agreed to enter into this Agreement. Newly constructed facilities must comply with the new construction requirements of 42 U.S.C. § 12183 (2000), which are implemented through the Department’s regulations found at 28 C.F.R. Subpart D, §§ 36.401 through 36.407, including the ADA Standards for Accessible Design (hereinafter “the Standards”), 28 C.F.R Part 36, App. A.
7. Title III requires that a public accommodation ensure that individuals with disabilities are provided an equal opportunity to participate in or benefit from its goods and services. 42 U.S.C. § 12182(a) (2000) and 28 C.F.R. § 36.201(a) (2006). Title III also requires a public accommodation to make reasonable modifications to its policies, practices and procedures when such modifications are necessary to afford such goods, services, facilities, privileges, advantages or accommodations to individuals with disabilities unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered. 42 U.S.C. § 12182(b)(2)(A)(ii) (2000) and 28 C.F.R. § 36.302 (2006). A public accommodation must also remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense. 42 U.S.C. § 12182(b)(2)(A)(iv) (2000) and 28 C.F.R. § 36.304 (2006). Further, a public accommodation must maintain in operable working condition those features that are required to be accessible. 28 C.F.R. § 36.211(a) (2006). Moreover, a public accommodation is required to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(iii) (2000) and 28 C.F.R. § 36.303 (2006).

FINDINGS BY THE UNITED STATES

8. In the course of its investigation, the Department identified certain alleged violations of the Standards, which are listed in Attachment A to this Agreement. The Company disputes some of these alleged violations and contends that others have already been remedied during the course of the Department’s investigation. Some of the Department’s more significant findings include the following:
1. Guest rooms and suites. Although the three hotels generally have an adequate number of guest rooms/suites accessible to people with mobility impairments, those rooms and suites are not sufficiently dispersed among the various classes of sleeping accommodations so that persons with disabilities have a range of options equivalent to those available to other guests. Moreover, in many suites or rooms designated as accessible, telephones, shelves, controls and operating mechanisms are not located within required reach ranges or are otherwise inaccessible; some shower stalls have “curbs” and/or are not configured in compliance with the Standards; and amenities (e.g., counters, appliances, cabinets) sometimes are at an inaccessible height or without adequate knee clearance or maneuvering space. In some designated accessible rooms or suites at the Mandalay Bay Hotel, furniture is not accessible because drawer hardware does not comply with the Standards. Many of the doors in guest rooms not designated as accessible, including doors connecting guest rooms and doors into toilet rooms, do not have a 32-inch clear opening width, as defined in the Standards §§9.4, 4.13.5.
2. Vertical Access. The Mix Restaurant and Mix Lounge each have a second-level area that can be accessed only by stairs.
3. Telephones. In general, there is an insufficient number of accessible public phones, including phones mounted at the proper height, with volume control and hearing aid compatibility. There is a lack of directional signage to the nearest TTY, and no required shelf and outlet at certain banks of telephones. In addition, there is not an appropriate number of house phones that are hearing aid compatible.
4. Signage. In many instances, permanent room signage is not mounted on the latch side of the door with the centerline mounted at 60" above the finished floor, and does not have both Braille and raised letters.
5. Door opening force. Many doors, including those to common areas such as meeting rooms and public restrooms, as well as those to and within guest rooms, require more than 5 lbf. opening force.
6. Assistive listening devices. None of the assembly areas at the Mandalay Bay (including ballrooms, meeting rooms and theaters) has an adequate number of assistive listening devices.
7. Accessible seating. The Events Center, the House of Blues Theater and the Mandalay Bay Theater (also known as the “Mamma Mia” Theater) lack the required numbers of appropriately dispersed accessible seating locations with fixed companion seats. The House of Blues Theater and the Mandalay Bay Theater have no aisle seats with removable arm rests.
8. Public toilet rooms. Toilets, urinals, and paper towel dispensers are often mounted at a noncompliant height. Lavatories are often mounted at the incorrect height and/or have inadequate clearance or clear floor space. Some lavatories have exposed hot water and drain pipes that are not insulated or otherwise configured so as to protect against contact. Some toilet rooms with six or more stalls lack an “ambulatory” accessible stall of the proper dimensions, as specified in the Standards §4.22.4.
9. Restaurants, clubs, and bars. Certain restaurants and bars with fixed tables or booths lack the required percentage of accessible fixed tables or booths. In some instances there is both an accessible and inaccessible entrance but it is difficult to find the accessible entrance because of the lack of adequate directional signage.
10. Parking. Some parking areas lack the required number of accessible parking spaces. In many instances signage for designated accessible spaces does not comply with the Standards.
11. Locker rooms and dressing rooms. Some locker rooms and dressing rooms lack fixed accessible benches, accessible dressing areas, and other required features.
12. Counters. Many sales, service or registration counters are not lowered to an accessible height, as required by the Standards, at various stores, theaters, bars and service areas.
13. Handrails. At many locations, such as on ramps, handrails do not have the required 1 ½" of clearance between the handrail and the wall, creating a hazard because a user’s arm can become “trapped
9. The Department also identified other violations of Title III of the ADA and its implementing regulations, including those provisions enumerated in paragraph 7, above. For example, the Department found that the Company did not provide an opportunity for potential guests to reserve accessible rooms and suites on the Internet, even though guests can reserve other rooms and suites on the Internet. The Department also found that some counters that were otherwise accessible in sales establishments were rendered inaccessible by having merchandise displays or telephones on them and some ramps were blocked with items being stored.
10. The Company does not concede the accuracy of these findings, but nevertheless has voluntarily entered into this Agreement.

TERMS OF AGREEMENT

11. In order to avoid potential litigation, the parties agree to the terms of this Settlement Agreement. These terms are intended to redress the alleged violations of the ADA that have been identified by the United States.
12. The Company agrees to correct each alleged violation identified in Attachment A, to the extent that the alleged violation has not already been remedied, in accordance with the schedule set forth below and subject to conventional building industry tolerances per Standards §3.2.
    1. Within three months of the effective date of this Agreement, the Company shall:
       1. Ensure that reservations can be made for accessible rooms over the Internet reservation system.
       2. Remove items from the ramp that is part of the accessible route through the House of Blues Foundation Rooms and maintain the required clear width of the ramp.
    2. Within nine months of the effective date of this Agreement, the Company shall:
       1. Remedy each of the allegedly non-compliant circumstances described in the pertinent portions of Attachment A, with respect to the following rooms and/or spaces:

          (1) Public telephones, including both pay telephones and house telephones (Exception: the telephones at the Events Center shall be subject to the time frames set out in Paragraph 12(c) below);

          (2) Retail Shops;

          (3) Back of House;

          (4) Mandalay Bay Spa;

          (5) Shark Reef;

          (6) Casino;

          (7) Mandalay Beach;

          (8) Wedding Chapel;

          (9) The Mandalay Bay Convention Center;

          (10) THEcafe Restaurant;

          (11) THEcafe Toilet Rooms;

          (12) THEhotel Spa;

          (13) Four Seasons Registration Counter;

          (14) Executive Offices; and

          (15) Elevators serving the Mandalay Bay Hotel, THEhotel and the Four Seasons Hotel.

       2. Ensure that the number and distribution of hotel guest rooms and suites accessible to individuals who are deaf or hard of hearing comply with the Standards by providing: (a) visual alarms that are connected to the building emergency alarm system and that are visible in all areas of the room or suite; (b) notification devices for telephone calls and the door bell or knock (portable devices are acceptable); (c) telephones with volume control; and (d) outlets for use with a TTY. The number and dispersal of accessible guest rooms as set forth in Attachments B-1 [ B-2 ] through B-3 comply with the Standards.
    3. Within 18 months of the effective date of this Agreement, the Company shall remedy each of the allegedly non-compliant circumstances described in the pertinent portions of Attachment A, with respect to the following rooms and/or spaces:
       1. The Mandalay Bay Theatre, also known as the “Mama Mia Theatre.” The accessible seating plan shown in Attachment C-1 will comply with the Standards;
       2. Sales, service, ticketing and registration counters other than those subject to Paragraph 12(b) above;
       3. The Four Seasons Convention Center;
       4. Toilet rooms outside the Charlie Palmer Restaurant;
       5. Guest rooms in the Mandalay Bay Hotel presently designated as mobility accessible, including such modifications as may be necessary so that the number and dispersal of accessible guest rooms and suites comply with the Standards. The number and dispersal of accessible guest rooms as set forth in Attachment B-1 comply with the Standards. The Company shall ensure that the mobility accessible guest rooms have: (a) visual alarms that are connected to the building emergency alarm system and that are visible in all areas of the room or suite; (b) notification devices for telephone calls and the door bell or knock (portable devices are acceptable); (c) telephones with volume control; and (d) outlets for use with a TTY;
       6. Doors within and through 50% of the guest rooms not designated as accessible in the Mandalay Bay Hotel. The Company is making modifications to certain bathroom doors in these rooms that the Department accepts for purposes of this Agreement;
       7. Restaurants and bars identified in Attachment A (other than those subject to Paragraph 12(b) above or 12(d) below);
       8. The House of Blues Theater. The accessible seating plan shown in Attachment C-2 will comply with the Standards;
       9. The Events Center (Exception: fixed seating in the Events Center is subject to Paragraph 12(d)(ii) below);
       10. Public telephones at the Events Center, including both pay telephones and house telephones; and
       11. Parking.
    4. Within 24 months of the effective date of this Agreement, the Company shall remedy each of the allegedly non-compliant circumstances described in the pertinent portions of Attachment A with respect to:
       1. The Mix Restaurant and Mix Lounge in THEhotel; and
       2. The fixed seating in the Events Center, which shall comport with the revised layouts illustrated on Attachments C-3 to C-6 (or with such modifications thereof as may be necessary to deal with any revised seating configurations for special events, so long as the proportionate amount and dispersal of accessible seating is comparable to the most analogous layout among those set forth as Attachments C-3 to C-6).
    5. Within 42 months of the effective date of this Agreement, the Company shall remedy each of the allegedly non-compliant circumstances described in the pertinent portions of Attachment A with respect to:
       1. Guest rooms in THEhotel presently designated as mobility accessible, including such modifications as may be necessary so that the number and dispersal of accessible guest rooms and suites in THEhotel comply with the Standards. The number and dispersal of accessible guest rooms as set forth in Attachment B-3 comply with the Standards. The Company shall ensure that the mobility accessible guest rooms have: (a) visual alarms that are connected to the building emergency alarm system and that are visible in all areas of the room or suite; (b) notification devices for telephone calls and the door bell or knock (portable devices are acceptable); (c) telephones with volume control; and (d) outlets for use with a TTY.
    6. Within 48 months of the effective date of this Agreement, the Company shall remedy each of the allegedly non-compliant circumstances described in the pertinent portions of Attachment A with respect to:
       1. Guest rooms in the Four Seasons Hotel presently designated as mobility accessible, including such modifications as may be necessary so that the number and distribution of accessible guest rooms and suites in the Four Seasons Hotel comply with the Standards. The number and dispersal of accessible guest rooms as set forth in Attachment B-2 comply with the Standards. The Company shall ensure that the mobility accessible guest rooms have: (a) visual alarms that are connected to the building emergency alarm system and that are visible in all areas of the room or suite; (b) notification devices for telephone calls and the door bell or knock (portable devices are acceptable); (c) telephones with volume control; and (d) outlets for use with a TTY.
    7. Within 60 months of the effective date of this Agreement, the Company shall:
       1. Remedy the allegedly non-compliant circumstances described in Attachment A with respect to the doors within and through the remaining 50% of the guest rooms not designated as accessible in the Mandalay Bay Hotel. The Company is making modifications to certain bathroom doors in these rooms that the Department accepts for purposes of this Agreement; and
       2. Ensure that any alleged violation in Attachment A not specifically identified elsewhere in this paragraph (Para. 12) be remedied and make a good faith effort to ensure that all of its Mandalay Bay facilities that are not expressly addressed in Attachment A are accessible and usable by individuals with disabilities.
13. The Company will offer to upgrade guests with disabilities to an accessible room in a more expensive class of room, if available, at no additional charge if they request a class of room in Attachments B-1 [ B-2 ] to B-3 which has no accessible room, or has no accessible room with a roll-in shower if that type of room is requested. Guests may always upgrade to another available room at their own expense if the class of room they request has an accessible room or rooms, but the accessible rooms are temporarily sold out.
14. The Company may, in its discretion, choose to submit to the Department architectural plans for any structural alterations or new construction that it undertakes at the Mandalay Bay facilities during the term of the Agreement. The Department agrees to review and comment on any architectural plans submitted in a timely manner, but not later than 30 business days after receipt of such plans.
15. If the Company renovates any space described in Attachment A such that any alleged violation(s) identified in Attachment A no longer exist(s), then the Company shall be excused from remedying the alleged violation(s) because the violation(s) will be moot, but shall ensure that the renovated space fully complies with the ADA.
16. The Company shall not discriminate against individuals with disabilities on the basis of disability in the full and equal enjoyment of its goods, services, and facilities.
17. The Company shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford its goods, services, or facilities to individuals with disabilities who visit the Mandalay Bay, unless the modifications would fundamentally alter the nature of the goods, services, or facilities.
18. The Company shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities. For example, the Company shall ensure that access to elevator hall call buttons is not blocked by garbage cans, and that accessible stalls in toilet rooms are kept clear of storage items.
19. Within 30 days of the effective date of this Agreement, the Company shall pay to the United States the sum of $30,000 in civil penalties by certified check payable to the United States Treasury and sent by overnight delivery, to the Department, at the address in paragraph 29.b below.
20. Within 120 days of the effective date of this Agreement, as defined in Paragraph 34, the Company shall designate or hire an ADA Compliance Officer for the Mandalay Bay Casino and Resort and shall identify that individual to the United States. The Company will ensure that the ADA Compliance Officer, at the Company’s expense, undergoes appropriate training on the requirements of Title III of the ADA no later than 90 days after appointment. The ADA Compliance Officer shall be responsible, inter alia, for handling any disability-related complaints from the guests and patrons at the Mandalay Bay facilities.
21. Within 180 days of the effective date of this Agreement, the Company shall train all firstline supervisors and managers on Title III of the ADA as it applies to a casino resort, and on the resort’s obligations to ensure that all guests with disabilities are afforded an equal opportunity to participate in the services, facilities and activities offered at the Mandalay Bay. Thereafter, the Company shall ensure that all new first-line supervisors and managers receive comparable training within three months of hire.
22. Within 60 days of the effective date of this Agreement, the Company shall develop an ADA Complaint Resolution Policy to address ADA-related complaints by guests and patrons of the Mandalay Bay facilities, and shall provide a copy of the policy to the Department for review and input. This policy shall identify the ADA Compliance Officer and the process by which complaints will be investigated and resolved. The policy shall be implemented by the Company within 60 days of receiving the Department’s comments.
23. During the term of this Agreement, the Company shall provide a report annually to the Department, on the anniversary of the effective date of this Agreement, regarding the Company’s progress with respect to the completion of its responsibilities pursuant to Paragraphs 12-18 and 20-22 of this Agreement. The report shall identify and document (e.g., with copies of construction contracts, photographs, and/or design drawings) the modifications that the Company made, report on any additional assistive listening receivers it purchased and the number of requests for assistive listening devices it received if the number of such devices available is less than that set forth in the Standards, training of employees that occurred (by date and the content of the training), and any ADA-related policies that the Company adopted.

IMPLEMENTATION AND ENFORCEMENT

24. The Department shall have the right, during the course of this Agreement and with reasonable prior notice to the Company of not less than 21 days, to conduct inspections of the Mandalay Bay facilities and to request documents or photographs in order to evaluate compliance with this Agreement. The Department shall make every effort to conduct its inspections at times that are agreeable to the Company, so that the Company can ensure that minimal disruption to its operations results from such inspections.
25. If the Department believes that the Company is not in compliance with this Agreement or any requirements contained herein, the Department agrees to notify the Company in writing of the alleged noncompliance and attempt to seek a resolution of the matter with the Company. If the parties are unable to reach a resolution within 30 days of the date of the Department’s written notification, and the alleged noncompliance concerns elements of the facility in existence as of the effective date of this Agreement as referenced on Attachment A, the United States may seek enforcement of the terms of this Agreement in the United States District Court for the District of Nevada. If the parties are unable to reach a resolution within 30 days of the date of the Department’s written notification, and the alleged noncompliance concerns new elements or facilities not in existence as of the effective date of this agreement, the United States may seek enforcement of the terms of this Agreement, and/or to enforce compliance with the ADA, in the United States District Court for the District of Nevada. In the event the court determines that the Company has failed to make a modification required pursuant to this Agreement, including Attachment A, on or before the deadline set forth in paragraph 12, such failure to comply shall be treated as a second violation of Title III of the ADA and the United States may seek, and the court may assess, civil penalties as provided in 42 U.S.C. § 12188(b)(2)(C). In the event that the United States files suit to enforce compliance with the ADA, as distinguished from compliance with the terms of this Agreement, nothing in this Agreement shall be construed as a waiver of any of the Company’s defenses to an action under the ADA.
26. In consideration of, and consistent with, all the terms of this Agreement, the Attorney General agrees to refrain from undertaking further investigation and from filing a civil suit regarding all matters contained within this Agreement and its attachments, except as provided in Paragraph 25.
27. The Department’s failure to enforce this entire Agreement or any provision hereof, with regard to any deadline or any other provision contained herein, shall not be construed as a waiver by the Department of any right to do so.
28. This Agreement shall be binding upon the Company, and its agents and employees. In the event the Company seeks to transfer or assign all or part of its interests in any facility covered by this Agreement, and the successor or assign intends on carrying on the same or similar use of the facility, then, as a condition of sale, the Company shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
29. All notices, demands, or other communications to be provided pursuant to this Agreement shall be in writing and delivered by fax 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):
    
    1. For the Company:
       
       Bill Hornbuckle
       President, Mandalay Corp.
       3950 Las Vegas Blvd. So.
       Las Vegas, NV 89119
       
       Will Martin, General Counsel
       Mandalay Corp.
       3950 Las Vegas Blvd. So.
       Las Vegas, NV 89119
       
       Phyllis A. James
       Senior Counsel, MGM Mirage
       3600 Las Vegas Blvd. So.
       Las Vegas, NV 89109
       
       C. Geoffrey Weirich
       Paul, Hastings, Janofsky & Walker LLP
       600 Peachtree Street, N.E., Suite 2400
       Atlanta, GA 30308
       404-815-2221 (ph)
       404-685-5221 (fax)
    2. For the Department:
       
       Amanda Maisels
       Trial Attorney
       U.S. Department of Justice
       Disability Rights Section
       1425 New York Avenue, N.W.
       Washington, D.C. 20005
       202-305-8454 (ph)
       202-305-9775 (fax)
       
30. This Agreement, including Attachments A, B-1 through B-3, and C-1 [ C2 ][ C3 ]through C-6, constitutes the entire Agreement between the Parties relating to Department of Justice Investigation No. 202-40-33 with respect to the Mandalay Bay, on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of any party that is not contained in this written Agreement shall be enforceable.
31. 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 Department and the Company 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 relative rights and obligations.
32. This Agreement is limited to the Mandalay Bay facility described in Paragraphs 2 and 3 above, and does not apply to any other facility or any other design or construction project of or related to the Company. It 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 the Company’s continuing responsibility to comply with all aspects of the ADA not covered by this Agreement.
33. A signatory to this document in a representative capacity for a corporation represents that he or she is authorized to bind such corporation to this Agreement.
34. The effective date of this Agreement is the date of the last signature below. The Agreement shall remain in effect for 72 months from the effective date, unless extended by written agreement of the parties.
    

Attachments referenced in Settlement

Attachment A | Attachment B-1 | Attachment B-2 | Attachment B-3 | Attachment C-1 | Attachment C-2 | Attachment C-3 to C-6

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May 24, 2007