SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND OLYMPIA ENTERTAINMENT, INC. REGARDING JOE LOUIS ARENA

SETTLEMENT AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
AND
OLYMPIA ENTERTAINMENT, INC.
REGARDING
JOE LOUIS ARENA

DJ# 202-37-197

I. BACKGROUND AND JURISDICTION

1. This matter was initiated as a result of complaints filed under title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§12181-12189, with the United States Attorney’s Office for the Eastern District of Michigan, a component of the United States Department of Justice (“United States”), alleging that Joe Louis Arena, a sports and entertainment stadium venue located at 19 Steve Yzerman Drive, Detroit, MI 48226, was in violation of the ADA, because it contained physical barriers to accessibility.

2. The United States Department of Justice is authorized under 42 U.S.C. §12188(b)(1)(A) to investigate the allegations of the complaints in this matter to determine the compliance of Joe Louis Arena with title III of the ADA, as amended, 42 U.S.C. §§12181-12189, and its implementing regulations, 28 C.F.R. Part 36, including the ADA Standards for Accessible Design published in September 2010, (“the 2010 Standards”).  See also, 28 C.F.R. §36.502.  Furthermore, the Attorney General is authorized under 42 U.S.C. §12188(b)(1)(B) to bring a civil action in federal court if there is reasonable cause to believe that any person is engaged in a pattern or practice of discrimination in violation of the ADA or any person or group of people has been discriminated against in violation or the ADA.  See also, 28 C.F.R. §36.503.

3. The United States investigated the complaints it received and also initiated a compliance review of Joe Louis Arena, pursuant to the Attorney General’s authority under 42 U.S.C. §12188(b).  See also, 28 C.F.R. §36.502. 

4. The parties to this Settlement Agreement are the United States of America and Olympia Entertainment, Inc., (“Olympia”), as lessee and operator of Joe Louis Arena.

5. Title III of the ADA bans discrimination against persons with disabilities by owners or operators of places of public accommodation, 42 U.S.C. §12182(a), and establishes an ongoing requirement by such owners and operators to, among other things:  remove architectural barriers to access where such removable is “readily achievable,” id. at §12182(b)(2)(A)(iv), 28 C.F.R. §36.304; provide alternative methods to make goods and services available where it is deemed not readily achievable to remove barriers, 42 U.S.C. §12182(b)(2)(A)(v), 28 C.F.R. §36.305; make required alterations to facilities readily accessible to and usable by individuals with disabilities to the maximum extent feasible, 42 U.S.C. §12183(a)(2), 28 C.F.R. §36.402-404; provide appropriate and necessary auxiliary aids and services, 42 U.S.C. §12182(b)(2)(A)(iii), 28 C.F.R. §36.303; and reasonably modify policies and practices so as to ensure “full and equal enjoyment” of their goods and services by individuals with disabilities, 42 U.S.C. §12182(a) and (b)(2)(A)(ii), 28 C.F.R. §§36.201-202.

6. Joe Louis Arena is the home of the National Hockey League professional hockey team, the Detroit Red Wings.  It also hosts other live entertainment events such as music concerts and includes restaurants, bars, and beverage and merchandise concessions (“Entertainment Operations”).  Accordingly, the United States alleges that it is a “place of public accommodation” within the meaning of title III of the ADA, as a “stadium, or other place of exhibition entertainment.”  42 U.S.C. §12181(7)(C); 28 C.F.R. §36.104(3).  The United States also alleges that Olympia, as the lessee and operator of Joe Louis Arena, is a public accommodation within the meaning of the ADA. 42 U.S.C. § 12182; 28 C.F.R. §36.104.

7.  The United States alleges that Joe Louis Arena is an existing facility originally constructed prior to the effective date of the ADA, and so is subject to the “readily achievable” barrier removal provisions of the ADA at 42 U.S.C. §12182(b)(2)(iv)-(v) and 28 C.F.R. §36.304.  However, portions of the facility were altered after January 26, 1992, and the United States alleges that those portions of the facility should have been altered in such a manner that they are readily accessible to and usable by individuals with disabilities, to the maximum extent feasible.  42 U.S.C. §12183(a); 28 C.F.R. §§36.402-403.  In addition, the United States alleges that accessible seating should have been provided in each specialty seating area that provides spectators with distinct services or amenities that generally are not available to other spectators. 28 C.F.R. § 36.308.

8. The United States reviewed architectural plans and other information provided by Olympia, and conducted a site inspection of Joe Louis Arena on August 14-15, 2012.  The site inspection covered all areas of the Joe Louis Arena facility, including parking lots, entrances, corridors, restrooms, drinking fountains, locker rooms, dressing rooms, suites, concession areas, press areas, eating counters, ticketing and reception areas, first aid area, food courts, bars and restaurants, and the seating areas in the Arena.  The results of the site inspection were shared with Olympia.

9. In the course of its investigation, the United States alleges that it found a number of architectural barriers to access in and around Joe Louis Arena.  The United States informed Olympia of its contention that the failure to remove barriers violates title III of the ADA as these barriers discriminate against individuals with a disability “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations” of Joe Louis Arena.  42 U.S.C. §12182(a); 28 C.F.R. §36.201(a).  Olympia has disputed and denied violation of and liability for alleged violations of title III of the ADA

10. The 1991 Standards have been used to determine barriers to access at the Joe Louis Arena.  Elements that are identified as allegedly noncompliant with the requirements of the 1991 Standards shall be modified to comply with the 2010 ADA Standards for Accessible Design (“2010 Standards”) as specifically provided for in this Settlement Agreement.  See 28 C.F.R. §§ 36.104, 36.406(a)(5).

11. Olympia has cooperated with the United States throughout its investigation.

12. Olympia has represented that due to the age and condition of Joe Louis Arena, it intends to cease its Entertainment Operations at Joe Louis Arena on or about the end of the 2016/2017 National Hockey League Season inclusive of playoff games (“NHL Season”) upon the construction of a new facility for uses similar to its current Entertainment Operations (the “Events Center”).  

13. At this time, it is anticipated that the construction of the Events Center will commence sometime between the Fall of 2014 and the Spring of 2015, with operations and events estimated to commence sometime between the Fall of 2017 and the Spring of 2018. 

14. The Events Center is to be owned by the Detroit Downtown Development Authority (the “Authority”).  Olympia Development of Michigan, LLC, a company affiliated with Olympia, which is not a party to this Settlement Agreement, has entered into a concession agreement with the Authority pursuant to which Olympia (or an entity affiliated with Olympia) will operate and manage the Events Center once it is fully and completely constructed and approved for occupancy. 

15. Olympia represents that it is committed to ensuring that the Events Center fully complies with the ADA and all applicable lawful regulations and agrees to be bound under this Agreement with regard to the Events Center as provided in paragraphs 14, 15, and 42(a)-(e).  Olympia further commits that it will enter into an agreement with Olympia Development of Michigan, LLC requiring Olympia Development of Michigan, LLC to be bound to Olympia for the purpose of complying with terms of paragraphs 42 (a)-(e) of this Settlement Agreement.  Any failure by Olympia to secure such an agreement will not affect Olympia’s obligations under this Settlement Agreement.

16. Based upon these representations, Olympia and the United States as the parties to this Settlement Agreement seek to afford immediate benefits to individuals with disabilities, while also addressing the contingencies to which such representations give rise, namely, (i) the construction of the Events Center to replace the use of Joe Louis Arena, and (ii) the inability to execute the planned relocation in accordance with Olympia’s anticipated schedule. 

17. Accordingly, pending relocation, Olympia will implement certain changes to Joe Louis Arena as described in this Settlement Agreement that will, among other things, benefit individuals with disabilities attending events at Joe Louis Arena during and for the time periods of October 1, 2014-September 30, 2015; October 1, 2015-September 30, 2016; and October 1, 2016-September 30, 2017 (each of the foregoing time periods shall be referred to as an “Entertainment Season”), or any part of such Entertainment Season in the event that Olympia relocates its Entertainment Operations during the term of the Entertainment Season.

18. Should the planned relocation not occur in accordance with Olympia’s anticipated schedule as set forth in paragraph 13, Olympia is committed to making reasonable, prudent and feasible additional changes to Joe Louis Arena to bring the facility into compliance with the requirements of the ADA to the extent required by applicable law, beginning with the October 1, 2017-September 30, 2018 Entertainment Season, subject to additional good faith negotiations with the United States. 

19. The parties agree that the settlement and entry of this Settlement Agreement does not constitute an admission of liability by Olympia or Olympia Development of Michigan, LLC, as any fault and liability is specifically denied, but is intended solely to avoid the burdens and expenses of further investigation and possible litigation by the United States.  The United States and Olympia agree that entry into this Settlement Agreement, without engaging in litigation at this time, is in the public interest.

II. SPECIFIC ACTION TO BE TAKEN BY OLYMPIA:

20. In the time since Olympia was first notified of the United States’ investigation of Joe Louis Arena, Olympia significantly improved accessibility to the restrooms on the Concourse level by completing its previously-planned renovation of those restrooms.

21. In order to resolve this matter, Olympia agrees to take the following additional steps to remove barriers to access at Joe Louis Arena according to the deadlines stated below.  For actions that have no specific deadline, Olympia shall complete them as soon as practicable but no later than prior to the commencement of the October 1, 2014-September 30, 2015 Entertainment Season, and shall continue for as long as Olympia or its successor in interest operates Joe Louis Arena, except where noted.

A. Arena Assembly Seating:

22. By October 1, 2014, Olympia shall provide not less than forty- five (45) wheelchair accessible seats (“Wheelchair Seats”) in accordance with Exhibit 1 attached hereto.

23. At least one (1) companion seat (“Companion Seat”) shall be provided for each Wheelchair Seat.   Each Companion Seat shall be located to provide shoulder alignment with the adjacent Wheelchair Seat as shown on Exhibit 1.  The floor surface of the Companion Seat shall be at the same elevation as the floor surface of the Wheelchair Seat.  The Companion Seats shall be equivalent in size, quality, comfort, and amenities to the seating in the immediate area.  The Companion Seats shall be permitted to be movable.  See the 2010 Standards §§ 221.3, 802.3.1 and 802.3.2.

B. Ticket Policies and Pricing:

24. As more specifically described in paragraphs 25 through 29 of this Settlement Agreement, Olympia shall ensure that its ticketing and pricing policies, practices, and procedures for events at Joe Louis Arena afford individuals with disabilities the opportunity to participate in, and benefit from, Joe Louis Arena’s goods and services in a manner comparable to that afforded to other individuals. 28 C.F.R. §36.302(f).

25. Olympia shall ensure that individuals with disabilities have an equal opportunity to purchase tickets for a Wheelchair Seat and adjacent Companion Seat during the same hours, during the same stages of ticket sale, through the same methods of distribution, in the same types and numbers of ticketing sales outlets, and under the same terms and conditions as other tickets sold for the same event or series of events. 28 C.F.R. §36.302(f)(1)(ii).

26. Commencing within thirty (30) days from execution of this Settlement Agreement, Olympia shall ensure that tickets for all Wheelchair Seats and the adjacent Companion Seat will be available for purchase through Ticketmaster in a manner comparable to that afforded to the purchase of general seats. 28 C.F.R. §36.302(f)(1)(ii).

27. Olympia shall allocate and offer the prices of tickets for each Wheelchair Seats and for each adjacent Companion Seats in proportion to the number of general seats in each of price categories as identified in Exhibits 1 and 2, attached hereto.  See 28 C.F.R. §36.302(f)(3).  It is agreed that the price categories and related pricing are subject to change on an annual basis, but will always be proportional to the number of general seats.

28. For each Wheelchair Seat ticket purchased by an individual with a disability, Olympia shall allow the purchase of one Companion Seat as provided in paragraph 23 of this Settlement Agreement.  To the extent the purchaser of the Wheelchair Seat wants additional seating for his or her companions,  Olympia must offer other seats as close as possible to the Wheelchair Seats but such additional seats are not required to be in the areas identified in Exhibit 1 as being established as Wheelchair Seats.  If the additional seats are in a different price category than the Wheelchair Seat, the venue is not required to modify the price and may charge the same price as it charges others for those seats.  However, for any event where Olympia limits ticket sales to fewer than four tickets, those limits shall also apply to tickets for Wheelchair and Companion Seats

29. For all events at Joe Louis Arena, if there are any unsold tickets for Wheelchair Seats and/or adjacent Companion Seats twenty-four (24) hours before commencement of the event, Olympia shall have the right to release such tickets to the general public.  28 C.F.R. §36.302(f)(5).  However, Olympia shall allocate any unsold Wheelchair or Companion Seats in accordance with paragraph 28 before such seats are released to the general public.

30. When all non-accessible series-of-event tickets are sold out and accessible seats have not been sold, Olympia may release and sell the remaining accessible seats to individuals without disabilities for a series of events.  However, Olympia shall establish a process that prevents the automatic reassignment of the accessible seating to such ticket holders without disabilities 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-event tickets are available for purchase, have an opportunity to do so.  28 C.F.R. §36.302(f)(5)(iii).

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

C. Architectural Barrier Removal (Non-seating)

32. Olympia shall address certain of Joe Louis Arena’s architectural barriers to access, including parking, signage, entrances, locker rooms, first aid rooms, rest rooms, restaurants, clubs, drinking fountains, and concessions and merchandise sales counters in accordance with Exhibit 3 attached hereto.

33. As soon as possible, but in no event later than October 1, 2014, Olympia shall have completed modifications to Joe Louis Arena to remove architectural barriers as specified in Exhibit 3 to ensure that individuals with disabilities have access to the services, conveniences, and amenities of Joe Louis Arena as specified in Exhibit 3. 

D. Assisted Listening Devices:

34. By October 1, 2014, Olympia shall provide no less than forty-nine (49) fully functional receivers for assisted listening systems (“Assisted Listening Devices”) available for patrons with a hearing disability.  See the 2010 Standards §219.3.  Olympia shall ensure that the Assisted Listening Devices remain in good working order and any defects or issues are resolved expeditiously.  By October 1, 2014, Olympia shall also ensure that it provides the appropriate signage at entrances and ticket windows at Joe Louis Arena, notifying patrons of the availability of the Assisted Listening Devices.  See the 2010 Standards §216.10.

E. ADA Coordination and Training:

35. Olympia shall designate one or more individuals to coordinate, among other things, efforts to assist persons with disabilities with respect to the accessibility of Joe Louis Arena’s services and facilities, including the purchase of tickets.  Olympia will have at least one representative knowledgeable in all aspects of accessibility available, either in person at Joe Louis Arena or by telephone on the day of every event at Joe Louis Arena, for the duration of the event.

36. Olympia shall train all present and future staff who work at Joe Louis Arena on any ADA issues relevant to their position at Joe Louis Arena, including but not limited to:  (1) location of accessible seating and restrooms; (2) location of accessible routes into and throughout Joe Louis Arena, where all routes are not accessible; (3) location and use of accessibility equipment (e.g., Assistive Listening Devices, TTY’s, etc.); (4) ticketing policies regarding accessible seating for individuals with disabilities; (5) maintenance of accessible routes; (6) the requirements of this Settlement Agreement and changes to policies and procedures arising from this Settlement Agreement; and (7) that Olympia expects its employees to comply with the Settlement Agreement and reserves the right to take personnel actions, reprimand, or terminate any employee who violates or causes a failure to comply with the requirements of this Settlement Agreement.  Olympia shall ensure that all present Olympia employees working at Joe Louis Arena are trained in ADA issues by October 1, 2014; that all future Olympia employees working at Joe Louis Arena are trained in these issues within fourteen (14) days of their first date of employment; and that Olympia employees are trained on an annual basis at a date and time selected by Olympia in their sole discretion.

F. Publicity

37. Commencing within ten (10) days from execution of this Settlement Agreement, and continuing as long as its Entertainment Operations take place in Joe Louis Arena, Olympia shall publicize the availability, pricing, and locations of the Wheelchair and Companion Seats, and Assistive Listening Devices in all event schedules, pamphlets, programs, advertisements and publications, including Olympia’s websites, that contain information concerning seating at Joe Louis Arena, and by posting signs at the ticket booths, ticket windows, and all public entrances stating the availability of  the Wheelchair Seats, Companion Seats, accessible bathrooms, and Assistive Listening Devices in Joe Louis Arena once they are provided.

38. For calendar years 2014 through 2017 (and 2018 only if Entertainment Operations are still continuing at Joe Louis Arena by such time), Olympia shall provide advertising at value of not less than $10,000 each year to advertise the availability of Wheelchair Seats and Companion Seats.  Such advertisement shall be expressly directed, through appropriate print publications, radio or television programs, or internet websites, to the mobility impaired community, and may be directed, in whole or in part, through outlets owned or controlled by Olympia (“in-kind advertising”).  To the extent any advertising is “in-kind,” Olympia’s compliance with this paragraph shall be measured by the fair market value of the advertising time used.  Olympia shall certify to the United States as to its expenditure of advertising funds and to the value of any in-kind advertising.

III. RELIEF FOR AGGRIEVED PERSONS:

39. Olympia shall provide (4) tickets for to any five (5) events at Joe Louis Arena that occur within three (3) years from the effective date of this Settlement Agreement at no cost to the following individual:  [Redacted].  Such tickets may include up to two Wheelchair Seats, with the balance of the seats being provided as companion seats in accordance with paragraphs 23 and 28 of this Settlement Agreement.

IV. ALTERATIONS AND NEW CONSTRUCTION

40. Excepting action taken by Olympia pursuant to paragraphs 32 through 33 of this Settlement Agreement, any renovations or alterations, as defined in 42 U.S.C. §12183, made to Joe Louis Arena and not described in this Settlement Agreement after the date of the Settlement Agreement, shall comply with the ADA, the implementing regulations, and the 2010 Standards, as such statute, regulation and Standards are in effect as of the date that physical renovations or alterations begin.

41. If Olympia’s Entertainment Operations are relocated to a new facility, or to a location other than the Event Center which is otherwise governed by this Settlement Agreement, such relocated site or new facility shall comply in all respects with the ADA, its implementing regulations, and the 2010 Standards, as such statute, regulation, and Standards are in effect as of the date that physical construction or renovation begin, or relocation occurs. 

42. Based on the representation made by Olympia that its Entertainment Operations are to be relocated to the Events Center for which construction is anticipated to commence sometime between the Fall of 2014 and the Spring of 2015, with operations and events anticipated to commence some between the Fall of 2017 and the Spring of 2018, and Olympia’s commitment to ensuring that the Events Center will fully comply with the ADA as per paragraph 15, Olympia will require that Olympia Development of Michigan, LLC or its designee shall:

    1. Retain an Independent Licensed Architect (“ILA”) knowledgeable about the architectural accessibility requirements of the ADA, who will be paid by Olympia or by Olympia’s designee without regard to outcome, and pre-approved by the United States, to review whether the architectural elements of the Events Center conform to the ADA and its implementing regulations, as well as the 2010 Standards.  The ILA will provide any necessary technical assistance throughout the term of this Settlement Agreement, but the United States retains the right to ultimately determine whether the Events Center will comply in all respects with the ADA for purposes of this Agreement.

    2. As soon as they are available, provide to the ILA all plans and specifications for the Events Center sufficient to determine whether that the Events Center will comply with the ADA (“ADA Plans”).  The ADA Plans shall include, at a minimum, the final schematic design, design development documents, and construction documents.  The ILA shall have thirty (30) days from the date the ILA receives the ADA Plans to render a written opinion to the United States as to whether the ADA Plans comply with the ADA.  The United States shall have fourteen (14) days after receiving the ILA’s opinion to object to the ADA Plan (“ADA Plan Objection Date”).  In the event the United States does not object to the ADA Plans in writing on or before the ADA Plan Objection Date, the ADA Plans will be deemed to have been approved by the United States.  In the event the United States determines that the ADA Plans do not substantially comply with the ADA, Olympia or is designee will correct the ADA Plans and submit the corrected ADA Plans to the ILA for review and approval (“Corrected ADA Plans”).  The time deadlines for the initial ADA Plans approval process shall apply to any Corrected ADA Plans.  Failure of the United States to timely object to any Corrected ADA Plans shall constitute acceptance of them.

    3. Olympia shall provide written notice to the United States and the ILA that construction will be commenced on the Events Center on or before thirty (30) days from the date such construction is to commence.  Thereafter, the ILA shall inspect the Events Center every two (2) months to determine whether the construction of the Events Center is in compliance with the ADA Plans and shall report the results of its inspections to the United States within fourteen (14) days following inspection.  In the event that the United States, after consultation with the ILA, determines that the construction is not in compliance with the ADA Plans, the United States shall provide written notice of the alleged deviation(s) to Olympia within seven (7) days and Olympia has the right to either to correct the alleged deviation or to contest the same in writing to the United States who shall decide compliance or lack of compliance on or before fourteen (14) days from the date of any objection submitted by Olympia.  The United States’ determination shall be final and shall solely be based upon the ADA Plans.  The foregoing process for determining compliance with the ADA Plans shall remain in effect until construction is finally completed including installation of furniture, fixtures and equipment.  In no event shall the ILA or the United States be permitted to require removal and/or alteration of any previously approved construction as any and all prior approvals shall be deemed conclusive as to the United States and Olympia for purposes of this Settlement Agreement.  To the extent, after construction commences, the construction plans change in a manner impacting the approved ADA Plans, Olympia shall submit the changed plans to the ILA to be reviewed and approved in the same manner as the Corrected ADA Plans above.  The construction shall thereafter comply to the extent the ADA Plans have been modified by reason of the change in construction plans.

    4. No less than 180 days prior to the date upon which the Events Center is open to the public, provide to the United States copies of, or a description of, all policies, practices, and procedures concerning individuals with disabilities that will be implemented and followed at the Events Center, including but not limited to ticketing policies and the provision of auxiliary aids and services (“ADA Operating Policies”).  Unless the United States determines in writing on or before ninety (90) days from receipt of the ADA Operating Policies that the same are not in compliance with the ADA, the ADA Operating Policies shall be deemed approved.  In the event, the United States issues a  corrective notice on or before ninety (90) days from receipt of the ADA Operating Policies, Olympia shall have the right to confirm implementation of the same and issue revisions (“Revised ADA Operating Policies”) or have the right to reasonably contest the claimed deficiency as provided by applicable law.

    5. Comply with all other reasonable requests from the United States for documents or information that would assist in determining whether the Events Center will comply in all respects with the ADA and this Settlement Agreement.

V. RESERVATION OF RIGHTS

43. If, for any reason, any time after the execution of this Settlement Agreement, it is reasonably foreseeable that Olympia’s planned Events Center or relocation shall fail to meet the schedule set forth in paragraph 13: (i) Olympia shall immediately provide written notice to the United States of such expected failure and any plans to cure; and (ii) subject to Olympia’s reservation of rights, claims and defenses as provided in paragraph 18 of this Settlement Agreement, the United States shall be free to seek further relief against Olympia, provided that such further relief shall not be implemented until the October 1, 2017-September 30, 2018 Entertainment Season.  Such further relief may include, but shall not be limited to, the removal of additional architectural barriers to access identified by the United States, to the extent such is readily achievable as required by applicable law, including modifying suites, and the installation of additional wheelchair seating locations and companion seating locations with comparable lines of sight. 

44. Should the United States find it necessary to seek further relief against Olympia pursuant to paragraph 43, Olympia shall agree to expedited resolution of this action such that any relief granted may be implemented, in whole or in part, for the October 1, 2017-September 30, 2018 Entertainment Season.

45. Nothing in paragraphs 43 through 44, shall relieve Olympia of any other obligations set forth in this Settlement Agreement.  Moreover, this Settlement Agreement in no way affects or relieves Olympia of its responsibility to comply with any other applicable federal, state, or local laws or regulations.

VI. IMPLEMENTATION AND ENFORCEMENT OF AGREEMENT

46. The Attorney General of the United States is authorized, pursuant to 42 U.S.C. §12188(b)(1)(B), to bring a civil action under title III, 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 Settlement Agreement, the United States agrees to refrain from filing civil suit under title III in this matter regarding the specific issues discussed herein, except as provided in paragraph 48.

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

48. If the United States believes that this Settlement Agreement or any requirement thereof has been violated, it agrees to notify Olympia in writing of the specific violation(s) alleged.  Olympia shall have thirty (30) days from its receipt of the notice to cure and/or respond in writing to the United States regarding the alleged violation(s).  If, after further discussion with Olympia, the United States believes that Olympia has violated the Settlement Agreement, the United States may institute a civil action for relief in federal district court (subject to any and all defenses and claims of Olympia), and the United States is authorized to seek civil penalties for any violation of this Settlement Agreement, pursuant to 42 U.S.C. §12188(b)(2)(C).

49. By December 31, 2014, Olympia shall certify to the United States, in writing, that it has fulfilled to completion its obligations set forth in paragraph 22 through 36 inclusive, of this Settlement Agreement.  The certification shall describe the steps that were taken to fulfill those obligations and shall be accompanied by photographs depicting the completed barrier removal work.  The parties expressly agree that providing such certification is essential to the enforcement of this Settlement Agreement, and that a failure to provide the certification required by this paragraph constitutes a breach of this Settlement Agreement sufficient to warrant the penalties set out in paragraph 48.

50. All notices, demands, reports or other communication to be provided to the United States and Olympia pursuant to this Settlement Agreement shall be in writing and delivered by U.S. mail or electronic mail to the following:

To the United States:
Susan K. DeClercq, Assistant U.S. Attorney
U.S. Attorney’s Office
211 W. Fort Street, Ste. 2001
Detroit, MI  48226
Email:  susan.declercq@usdoj.gov

To Olympia:
Robert E. Carr, Senior Vice President Legal Affairs
Olympia Entertainment, Inc.
2211 Woodward Ave.
Detroit, Michigan 48226
Email:  robert.carr@olyent.co

51. This Settlement Agreement is a public document.  A copy of this document or any information contained in it may be made available to any person.

52. Failure by the Department of Justice to enforce this entire Settlement 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 Settlement Agreement.

53. This Settlement 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 Settlement Agreement, shall be enforceable.

54. This Settlement Agreement is limited to the facts set forth herein and it does not purport to remedy any other potential violations of the Americans with Disabilities Act or any other Federal law.  This Settlement Agreement does not affect the continuing responsibility of Olympia to comply with all aspects of the Americans with Disabilities Act, including readily achievable barrier removal.

55. If any provision of this Settlement Agreement is determined by any court to be unenforceable, the other terms of this Settlement 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 United States and Olympia shall engage in good faith negotiations in order to adopt such mutually agreeable amendments to this Settlement Agreement as may be necessary to restore the parties as closely as possible to the initially agreed-upon relative rights and obligations.

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

57. A signor of this document in a representative capacity for an entity represents that he or she is authorized to bind such entity to this Settlement Agreement. It is further agreed and represented that both Olympia and the United States have been duly authorized to enter into and to be bound by this Settlement Agreement.

58. This Settlement Agreement shall be binding on Olympia and its successors in interest in operation of the Joe Louis Arena, and Olympia has a duty to so notify all such successors in interest.  Olympia shall be fully discharged and released from any duties and obligations relating to Joe Louis Arena pursuant to this Settlement Agreement upon its conveyance/assignment of its interest in the Joe Louis Arena.

59. The effective date of this Settlement Agreement is the date of the last signature below.

60. This Settlement Agreement shall remain in effect until the latter of (i) the completion and approval by the United States of Olympia’s relocation, new construction, or renovation as set forth in paragraph 42 (a)-(e); or (ii) final resolution of the United States’ claim against the Olympia should the United States elect to proceed to seek further relief pursuant to paragraph 48.

End of Document