1. This Agreement (the "Agreement") is made and entered into by the United States of America (the "United States") and MGM Grand Hotel, Inc. (hereinafter "MGM Grand"), a Nevada Corporation.
2. This Agreement resolves an investigation and compliance review conducted by the United States of Department of Justice (the "Department") of the MGM Grand facility under title III of the Americans with Disabilities Act of 1990, 42 U.S.C.
§§ 12181-12189 (the "Act" or the "ADA").3. The resolution of this matter through this Agreement serves the Parties' interests in ensuring that MGM Grand makes its facilities, goods and services readily accessible to and usable by individuals with disabilities by maintaining its ongoing programs of identifying and removing existing architectural and communication barriers to access, where such removal is readily achievable, by designing and constructing the new and altered portions of the facility so as to be readily accessible to and usable by individuals with disabilities, and by ensuring that individuals with disabilities are provided an equal opportunity to participate in or benefit from the goods and services of MGM Grand as that provided to others.
4. The Parties to this Agreement are the United States and MGM Grand.
5. MGM Grand is a multi-use facility located at 3799 Las Vegas Boulevard South, Las Vegas, Nevada 89109.
6. MGM Grand is a public accommodation because it is a private entity that owns, leases, and operates a place of public accommodation. 42 U.S.C. §§ 12181(6), (7); 28 C.F.R. § 36.104.
7. MGM Grand is a place of public accommodation because it is a facility, operated by a private entity, whose operations affect commence that falls into one or more of the following categories of places of public accommodation: (1) an inn, hotel,
motel or other place of lodging; (2) restaurant, bar, or other establishment serving food or drink; (3) a motion picture house, Theater, concert hall, stadium, or other place of exhibition or entertainment; (4) an auditorium, convention center, lecture hall, or other place of public gathering; (5) clothing store or other sales or rental establishment; (6) an amusement park, or other place or recreation; and (7) a health spa, or other place of exercise or recreation. 42 U.S.C. §§ 12181(7); 28 C.F.R. § 36.104.8. MGM Grand is also a commercial facility because it is a facility intended for non-residential use by a private entity whose operations will affect commerce. 42 U.S.C. § 12181(2); 28 C.F.R. § 36.104.
9. MGM Grand's building permits and extensions were certified as complete in June, 1991. Thus, although MGM Grand was first occupied subsequent to January 23, 1993, its last application for a building permit or permit extension was certified as complete prior to January 26, 1992. Therefore, MGM Grand asserts that its facility as originally constructed is not a newly constructed facility within the meaning of title III of the ADA. 42 U.S.C. § 12134; 28 C.F.R. § 36.401(a).
10. For the purpose of this Agreement, Sections 302 and 303 of title III impose the following obligations on MGM Grand, which the Parties agree MGM Grand shall maintain a policy of complying with:
a. To ensure that no individual with a disability or person associated with an individual with a disability is discriminated against with respect to the provision of any of the goods, services, facilities, privileges, advantages, or accommodations available at the MGM Grand facility. 42 U.S.C. §§ 12181(a), 12182(b)(1)(E); 28 C.F.R. §§ 36.201(a), 36.205. Discrimination includes denying the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations available at a place of public accommodation to an individual with a disability or to any other individual because of that individual's known association with an individual with a disability. 42 U.S.C. §§ 12182(a), 12182(b)(1)(E); 28 C.F.R. §§ 36.201, 36.205. Discrimination also includes offering goods or services to individuals with disabilities that are separate from, unequal to, and different than those offered to individuals who do not have disabilities. 42 U.S.C. § 12182(b)(1)(A)(iii); 28 C.F.R. § 36.203(c).
b. To make reasonable modifications to existing policies, practices, and procedures when necessary to avoid discrimination on the basis of a disability. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(a).
c. To remove barriers to access 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); 28 C.F.R. § 36.304(a).
d. To design and construct new facilities so as to be readily accessible to and usable by individuals with disabilities, and to ensure that any alterations made to the existing facility and the paths of travel to those altered portions of the facility are, to the maximum extent feasible, readily accessible to and usable by individuals with disabilities. 42 U.S.C. § 12183(a)(2)(A)(iv); 28 C.F.R. §§ 36.402-406; 28 C.F.R. Pt. 36, App. A.
11. This matter was commenced when the Department received complaints about MGM Grand alleging violations of the Act. On the basis of those complaints, the Department initiated an investigation and compliance review, pursuant to the Attorney General's authority under 42 U.S.C. § 12188(b)(1)(A)(i) to investigate alleged violations of the ADA and to conduct periodic reviews of compliance of covered entities. As part of its investigation, the Department conducted an architectural survey of the facility. During the course of the investigation and compliance review, the Department received an additional complaint alleging a violation of the ADA by MGM Grand.
12. During the course of its investigation and compliance review, and as a result of its architectural survey of the MGM Grand facility, the Department determined that there were architectural barriers to access at the MGM Grand facility that should be removed. Specifically, the Department concluded that several features, elements and spaces of the MGM Grand facility were not readily accessible to or usable by individuals with disabilities, because those features, elements and spaces did not comply with the ADA Standards for Accessible Design (hereinafter "the Standards"), 28 C.F.R. Pt. 36, App. A. The various features, elements and spaces of the MGM Grand facility that have been identified as not being in compliance with the Standards are attached hereto as Exhibit 1.
13. In response to the investigation and compliance review and in order to cooperate fully with the Department's investigation and to ensure that its facilities, goods, and services are fully accessible to individuals with disabilities, MGM Grand hired an architectural consulting firm to conduct a thorough review of the MGM Grand facility.
14. In an effort to resolve their differences without the burden, expense and delay of litigation, the Department and MGM Grand have engaged in good faith negotiations. As a result of those negotiations, the Parties have agreed to the following:
15. Any alterations to the MGM Grand facility, including later tenant improvements, that affect or could affect the usability of a portion of the facility shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. 42 U.S.C. § 12183(a)(2); 28 C.F.R. §§ 36.402-406; 28 C.F.R. Pt. 36, App. A.
16. MGM Grand is currently undertaking alterations to certain areas of the MGM Grand facility. Those alterations are being made pursuant to 42 U.S.C. § 12183(a)(2); 28 C.F.R. §§ 36.402(a)-36.406 and the Standards. Pursuant to paragraph 21(a), the Department has the authority to verify that the alterations comply with the Standards. If the Department concludes, as a result of this compliance process, that MGM Grand has failed to comply with § 302(a)(2) of the Act, 42 U.S.C. § 12183(a)(2); 28 C.F.R. §§ 36.402(a)-36.406 and the Standards, the Parties shall negotiate in good faith to resolve any issue(s) raised, following the dispute resolution procedures of paragraph 21(b).
17. The Department recognizes that MGM Grand has made significant efforts to heighten employee awareness regarding the ADA, and to ensure compliance with the title III obligations set forth in paragraph 10 above.
18. The Parties further agree that MGM Grand shall have a continuing obligation to comply with the title III obligations set forth in paragraph 10 above.
19. Pursuant to 28 C.F.R. §§ 36.304(d), 36.402 and 36.406, MGM Grand shall comply with the Standards when it removes architectural and communication barriers to access, unless such compliance is determined not to be readily achievable by the Parties. Since March 1996, MGM Grand has voluntarily retained the services of an ADA consultant, Pentacore ADA Consulting, Inc. ("Pentacore"), to review its compliance with the Standards. In furtherance of this Agreement, Pentacore has reviewed the Department's findings (set forth in Exhibit 1) to determine which aspects of the MGM Grand facility identified in the Department's findings do not currently meet the requirements of the Standards and whether it would be readily achievable to remove certain barriers to access. Within 90 days of the effective date of this Agreement, MGM Grand shall provide a report to the United States that addresses all barrier removal issues identified from Exhibit 1. The report shall include a plan for meeting the barrier removal requirements of this Agreement where such removal is readily achievable and a timetable for such completion. Within 45 days of receipt, the Department shall review and approve the barrier removal plan contained in the report. If the Parties disagree regarding any aspect of MGM Grand's barrier removal plan, including whether it is readily achievable to remove certain barriers to access, the Parties shall negotiate in good faith to resolve any issue(s) raised, following the dispute resolution procedures of paragraph 21(b).
20. The investigation and compliance review initiated by the Department addresses the complaints of certain individuals. MGM Grand, the Department and those individuals have resolved the individual complaints to the satisfaction of the Parties. Compensation paid to those individuals is detailed in the Side Letter Agreement that accompanies this Settlement Agreement.
21. The United States may review compliance with this Agreement at any time:
(a) Verification of Compliance. The United States shall make every effort to conduct any inspections to determine compliance with this Agreement at times that are mutually agreeable to MGM Grand, so that MGM Grand can ensure that minimal disruption to its operations result from such inspections.
(b) Dispute Resolution. If the Department believes that this Agreement or any requirement(s) thereof has been violated, it will inform MGM Grand of this fact, and the Parties shall negotiate in good faith to resolve any issue(s) raised. If the Parties cannot agree on a course of action to resolve any issue(s) raised by the Department within 90 days of the Department's having notified MGM Grand of the issues in dispute, the Department may institute a civil action in federal district court in which the Department may seek to demonstrate that MGM Grand has failed to comply with any material provision of this Agreement or that MGM Grand has violated title III of the Act. As part of such a civil action, the Department may seek to obtain an order that MGM Grand shall correct such noncompliance and shall pay to the United States a civil penalty in an amount no less than $50,000.00, and shall pay an appropriate amount of compensatory damages to any individual(s) aggrieved by such noncompliance. The Parties recognize that MGM Grand must, for a variety of good faith reasons (most notably, issues of competition and market volatility), constantly modify its business and operational plans, and that such changes occur frequently, and often with little notice. Therefore, if, for any reason, MGM Grand is unable to meet a time limit that the Parties have agreed to pursuant to any paragraph of this Agreement or its attachments, or if planned modifications, alterations or improvements to the MGM Grand facility make scheduled barrier removal unnecessary because certain features of the facility have been eliminated or for other good cause shown, such failure to meet a time deadline shall not constitute non-compliance with this Agreement, provided that MGM Grand shall reasonably notify the Department pursuant to the procedures set forth in paragraph 28, below. Such notification shall include a revised plan for compliance with the requirements of this Agreement pursuant to paragraph 19. Any disagreement between the Parties regarding such a revised compliance plan shall be resolved pursuant to the procedures set forth in this paragraph.
(c) Reporting. MGM Grand shall provide to the United States an annual report, delivered to the Department no later than December 31st of each year that this settlement Agreement remains in effect, stating whether MGM Grand has complied with the terms of the Agreement during the preceding year.
22. The Parties agree that nothing contained in this Agreement, or its exhibits and attachments, shall constitute an admission by MGM Grand that it has, at any time or in any way, violated the Act. Except as set forth in Paragraphs 21 and 23, the United States shall not institute a civil action enforcing the ADA against MGM Grand based upon any of the findings set forth in Exhibit 1 or the complaints identified in Paragraph 10.
23. The Attorney General is authorized pursuant to section 308(b)(1)(B) of the Act, 42 U.S.C. § 12188(b)(1)(B), to bring a civil action enforcing the ADA in any situation where a pattern or practice of discrimination is believed to exist or a matter of general public importance is raised. In consideration of the terms of this Agreement set forth above, the Attorney General agrees to refrain from taking more formal enforcement action in this matter during the pendency of this Agreement, as to the matters set forth in Paragraphs 18 and 19, as long as MGM Grand complies with this Agreement. In addition, during the pendency of this Agreement, the Department agrees that neither it nor the Attorney General shall institute any compliance reviews of the MGM Grand facility pursuant to 42 U.S.C. § 12188(b)(1)(A)(i); 28 C.F.R. § 36.502, with respect to any matters covered by the terms of this Agreement.
24. The Parties recognize that the Attorney General and the Department have an affirmative duty to address complaints received from the public regarding allegations that MGM Grand does not comply with title III. In furtherance of this Agreement, when the Attorney General or the Department receive such complaints, the Department shall notify MGM Grand of the nature of the complaints, and the Parties shall seek to resolve such complaints pursuant to the procedures set forth in paragraph 21 of this Agreement, with respect to any matters covered by the terms of this Agreement.
25. In the event that the Department seeks enforcement of this Agreement or any provision of it in Federal district court, the Parties agree and hereby stipulate that the United States District Court for the District of Nevada has personal and subject matter jurisdiction over this Agreement, the matters set forth in it, and the Parties to it.
26. A copy of this Agreement or any information contained herein may be made available pursuant to the Freedom of Information Act, 5 U.S.C. § 552.
27. This Agreement shall be binding upon MGM Grand and its successors in interest, and MGM Grand has a duty to notify all such successors in interest of these obligations and to include in all future documents transferring any right or interest in the facility any obligations to comply with this Agreement not retained by MGM Grand.
28. Any notice required or permitted herein shall be given as follows:
a. If by the Department to MGM Grand by certified mail, return receipt requested. to:
Thomas A. Peterman
Senior Vice President and General Counsel
MGM Grand Hotel, Inc.
3799 Las Vegas Boulevard South
Las Vegas, Nevada 89109with copies to:
Peter S. Pantaleo, Esq.
Verner, Liipfert, Bernhard, McPherson and Hand, Chartered
901 15th Street, N.W.
Washington, D.C. 20005-2301and
Francis M. Gregory, Esq.
Verner, Liipfert, Bernhard, McPherson and Hand, Chartered
3960 Howard Hughes Parkway, Suite 400
Las Vegas, Nevada 89109b. If by MGM Grand to the Department, by certified mail, return receipt requested to:
John L. Wodatch, Section Chief
Disability Right Section
Civil Rights Division
U.S. Department of Justice
P. O. Box 66738
Washington, D.C. 20035-6738with a copy to:
Roberta Kirkendall
Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P. O. Box 66738
Washington, D.C. 20035-6738
29. This Agreement, including the Exhibits attached hereto, and the Side Letter constitutes the entire Agreement among 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. In the event a court of competent jurisdiction concludes that any part of this Agreement is unenforceable, such portion shall be severed from this Agreement and all other portions shall remain enforceable.
30. This Agreement is limited to the matters set forth herein, and it does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect MGM Grand's continuing responsibility to comply with all aspects of the ADA not covered by this Agreement. This Agreement is limited to the MGM Grand facility described in paragraph 5 above, and does not apply to any other design or construction project of or related to MGM Grand.
31. A signatory to this document in a representative capacity for a partnership, corporation, or other such entity, represents that he or she is authorized to bind such partnership, corporation, or other entity to this Agreement.
32. This Agreement shall become effective as of the date of the last signature below, and shall terminate six (6) years thereafter.
FOR THE UNITED STATES:
BILL LANN LEE
Acting Assistant Attorney General
Civil Rights Division
______________________________
JOHN L. WODATCH, Chief
ALLISON J. NICHOL, Deputy Chief
ROBERTA STINAR KIRKENDALL,
Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P. O. Box 66738
Washington, D.C. 20035- 6738
(202) 307-0663
Date:_________
FOR MGM GRAND HOTEL,
CASINO AND THEME PARK:
THOMAS A. PETERMAN
Senior Vice President and General Counsel
MGM Grand Hotel, Inc.
________________________________
THOMAS A. PETERMAN
Senior Vice President and General Counsel
MGM Grand Hotel, Inc.
3799 Las Vegas Boulevard South
Las Vegas, Nevada 89109
(702) 891-7014
Date:________
February 7, 2001