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SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA,
THE ATLANTA COMMITTEE FOR THE OLYMPIC GAMES, INC.,
THE METROPOLITAN ATLANTA OLYMPIC GAMES AUTHORITY, AND
THE STONE MOUNTAIN MEMORIAL ASSOCIATION
UNDER THE AMERICANS WITH DISABILITIES ACT OF 1990
CONCERNING THE OLYMPIC TENNIS CENTER
1. This Agreement (the "Agreement") is made and entered into by the United States of America (the "United States"), the Atlanta Committee for the Olympic Games, Inc. ("ACOG"), the Metropolitan Atlanta Olympic Games Authority ("MAOGA"), and the Stone Mountain Memorial Association ("SMMA") (collectively, the United States, ACOG, MAOGA, and SMMA will be referred to hereinafter as the "Parties").
2. This Agreement resolves an investigation conducted by the United States Department of Justice of ACOG, MAOGA, and SMMA under Titles II and III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131-12189 (the "Act" or the "ADA"), concerning the Olympic Tennis Center (the "Tennis Center", including but not limited to the Olympic Tennis Stadium ("the Tennis Stadium") located in Stone Mountain Park, Georgia.
3. The resolution of this matter through this Agreement serves the Parties' interests in securing the rights of individuals with disabilities by designing and constructing an accessible Tennis Center.
4. The Parties agree as follows:
5. The term "Respondents" refers to ACOG, MAOGA, and SMMA and their parent companies, subsidiaries, departments, and/or agencies.
6. The term "the Department" refers to the United States Department of Justice, and, because the Department is the designated enforcement authority for the ADA under Titles II and III of the ADA, "the Department" is used interchangeably with "United States."
7. ACOG is a private corporation created to organize, conduct and stage the 1996 Centennial Olympic Games (the "Olympic Games"). Pursuant to a contractual agreement between ACOG and SMMA, ACOG will manage the construction of the Tennis Center and will occupy the Tennis Center during the Olympic Games. During construction of the Tennis Center and the hosting of the Olympic Games, ACOG will be an operator of the Tennis Center, and ACOG has contracted with and provided program specifications to the design team for construction of the Tennis Stadium, with SMMA having only a right of review. Within the meaning of this Agreement only, the Parties agree that, with respect to its role in regard to the design, construction, operation, and occupation of the Tennis Center, ACOG is an operator of a place of public accommodation within the meaning of 42 U.S.C. § 12182(a), and is a public accommodation within the meaning of 28 C.F.R. § 36.104, and is subject to Title III of the ADA.
8. MAOGA is a political subdivision created by the State of Georgia in 1989 for the purpose of "conducting and staging the Olympic summer games in conjunction with the local organizing committee, . . . and to that end, of acquiring, constructing, equipping, maintaining, and operating any facilities within the state necessary or useful in the conduct of the Olympic Games." Metropolitan Atlanta Olympic Games Authority Act, Ga. L. 1989 at 5078. As a result, MAOGA is a public entity within the meaning of 42 U.S.C. § 12131(1)(B) and 28 C.F.R. § 35.104 and is subject to Title II of the ADA.
9. In order to undertake its responsibility to maintain and operate facilities within the State of Georgia needed to conduct the Olympic Games, MAOGA has approval responsibility regarding expenditures of $250,000 or more for the construction and alteration of facilities. MAOGA has exercised its right of approval for the construction of the Tennis Stadium. As a result of its approval authority, the Department contends that MAOGA is responsible for the design and construction of the Tennis Center in accordance with 28 C.F.R. § 35.151. See Paragraph 52 herein.
10. SMMA is an instrumentality and public corporation of the State of Georgia, established for the purpose of "acquir[ing] Stone Mountain and such surrounding area as the association may deem necessary for the proper development, management, preservation, and protection of Stone Mountain. . ." and of "mak[ing] such contracts and agreements as . . . may be necessary or convenient in the management of the affairs of the association or in the operation of the project. . . ." Ga. Laws 12-3-194. Because SMMA is an instrumentality of a State government, SMMA is a public entity within the meaning of 42 U.S.C. § 12131(1)(B) and 28 C.F.R. § 35.104 and is subject to Title II of the ADA.
11. SMMA has fee simple title to the site of the Tennis Center and has, pursuant to an agreement with ACOG, participated cooperatively in the design, construction and development of the Tennis Center. Upon substantial completion of construction, ACOG delivered the permanent facilities of the Tennis Center, including the Tennis Stadium to SMMA and transferred title to these facilities to SMMA. SMMA has leased the Tennis Stadium and the rest of the Tennis Center to ACOG for the period of July 15, 1996, through the completion of all removal activities, but not later than September 15,1996.
12. The Tennis Stadium is the Center Court and the Tennis Center is the Tennis Stadium, the fifteen other tennis courts, and the security building. Because SMMA owns the Tennis Stadium and those parts of the Tennis Center that will remain in the post-Olympic configuration, and has played a part in its design and construction, SMMA is subject to Title II's requirements for newly constructed and altered facilities including, but not limited to, those set forth at 28 C.F.R. § 35.151 and the Standards, 28 C.F.R. Part 36, Appendix A.
THE TENNIS VENUE
13. The Tennis Center is a sports facility presently under construction in Stone Mountain Park, Georgia. It is designed for use as the tennis venue for the Olympic Games (the "Olympic configuration"). The Tennis Center is designed to be modified, after the Olympic Games are completed. The modification is that ACOG, pursuant to its contractual agreement with SMMA, will remove where applicable temporary and portable facilities from the Tennis Center that were needed for the staging of the Olympic Games. This modification will result in a smaller facility with respect to seat count with regard to the Tennis Stadium and will result in the removal of other parts of the Tennis Center ("the post-Olympic configuration"). The Parties agree that ACOG's responsibility for changing the Tennis Center to its post-Olympic configuration, including any alterations that may be made during this process, (see Paragraph 26) will be limited solely to any modifications made or undertaken by ACOG.
14. As to ACOG, the Tennis Stadium and each of the other Tennis Center courts that have spectator seating is a "stadium, or other place of exhibition or entertainment," and is, therefore, a public accommodation within the meaning of Title III, 42 U.S.C. § 12181(7)(C), and a place of public accommodation within the meaning of 28 C.F.R. § 36.104. Because the Tennis Center is a non-residential facility whose operations affect commerce, it is also a commercial facility within the meaning of Title III, 42 U.S.C. § 12181(2), and 28 C.F.R. § 36.104.
15. As to SMMA, the Tennis Stadium and each of the other structures constructed on the facility is a building, structure, site, or complex, and is, therefore, a "facility" within the meaning of 28 C.F.R. § 35.104 and is covered by Title II.
16. The Tennis Stadium and Center, in both its Olympic and post-Olympic configurations, are being designed and constructed for first occupancy after January 26, 1993, and are, therefore, newly constructed facilities within the meaning of Title III of the ADA, 42 U.S.C. § 12183(a)(1) and 28 C.F.R. § 36.401.
17. Construction of the Tennis Stadium and the Tennis Center began after January 26, 1992, and the Tennis Stadium and the Tennis Center are, therefore, newly constructed facilities within the meaning of Title II of the ADA, 42 U.S.C. § 12134(c) and 28 C.F.R. § 35.151(a).
18. The physical modifications that will be undertaken to change the Tennis Center from its Olympic to its post-Olympic configuration constitute alterations as defined by Titles II and III of the ADA, 42 U.S.C. § 12183(a)(2) and 28 C.F.R. §§ 35.151 and 36.402. See 42 U.S.C. § 12132.
THE DEPARTMENT OF JUSTICE INVESTIGATION
19. The Department has informed the Respondents that this matter was initiated by complaints filed with the Department by people with disabilities from the Atlanta metropolitan area alleging that the Tennis Center was not being designed and constructed in compliance with the ADA. The complaints were investigated by the Disability Rights Section (formerly known as the Public Access Section and the Office on the Americans with Disabilities Act) and the Coordination and Review Section of the Civil Rights Division of the Department of Justice, under the authority granted by Sections 203 and 308(b) of the ADA, 42 U.S.C. §§ 12133 and 12188(b).
20. From 1993 through the present, the Department conducted an in-depth investigation (the Department's File No. DJ 202-19-14) into the design of the Tennis Center. The investigation included several meetings, many telephone conferences, and the review of a vast number of design documents which were at various stages in the development process.
21. The Parties acknowledge that the design and construction of the Tennis Center has lasted a period of years and has involved modifications and refinements during the design and construction process. Notwithstanding such ongoing changes, Respondents cooperated with the Department's investigation by providing extensive design documents, some of which Respondents assert were interim "progress" drawings which had not yet been finalized. As a result, Respondents contend that a number of the issues raised by the Department during the investigation as asserted violations, would not have been included in the final construction of the Stadium.
22. The Department asserts that the Respondents have violated the new construction and alterations provisions of Titles II and III of the ADA, respectively, by designing, or by contracting with others to design the Tennis Center so that, in both its Olympic and post-Olympic configurations, it would not in all respects comply with the new construction and alterations provisions of: (a) Titles II and III of the ADA; and (b) the Department's implementing regulations for Titles II and III, including the Standards for Accessible Design ("the Standards") incorporated into the regulations and found at 28 C.F.R. Part 36, Appendix A.
23. Notwithstanding the assertions made by the United States, the Respondents deny that they have violated the new construction or alterations provisions of Titles II and III of the ADA with respect to the Tennis Stadium. Further, the Respondents deny that they have violated the implementing regulations, including the Standards. Nothing in this Agreement shall constitute an admission of liability by Respondents.
24. Neither the making of this Agreement nor anything contained herein shall, in any way, be construed or considered to be an admission by any of the Respondents, or by any officials, contractors or agents of any of the Respondents, of violation of any federal, state or local statute, any State or municipal fire safety or building code, or of any other wrongdoing or liability whatsoever.
25. The Parties have agreed to the terms of this Agreement in order to resolve the Department's investigation, to avoid litigation, and to resolve their disagreements concerning the interpretation of the ADA, which was enacted in 1990 and became effective in 1992.
AGREEMENT WITH RESPECT TO THE NEW CONSTRUCTION
AND ALTERATIONS PROVISIONS OF TITLES II AND III
26. The Respondent(s) agrees to the following provisions:
a. To construct and alter the Tennis Center so that, in both its Olympic and post-Olympic configurations, each restroom that contains 6 or more stalls contains, in addition to the standard accessible toilet stall that is 60 inches wide, a toilet stall that is 36 inches wide and is equipped with grab bars and a self-closing, outward swinging door in accordance with Sections 4.1.3(11), 4.22.4, 4.26 and Figure 30(d) of the Standards and as set forth in the drawings attached as Exhibit 1.
b. To construct and alter the Tennis Center so that, in both its Olympic and post-Olympic configurations, each restroom contains a lavatory that has clear floor space that is not interfered with by the swing of a toilet stall door in accordance with Sections 4.1.3(11), 4.2.4, 4.19.3, 4.22.2, and 4.26 of the Standards and as set forth in the drawings attached as Exhibit 2.
c. To construct and alter the Tennis Center so that, in both its Olympic and post-Olympic configurations, each toilet room that contains urinals contains an accessible urinal with sufficient clear floor space that is not interfered with by the swing of a toilet stall door in accordance with Sections 4.1.3(11), 4.2.4, 4.18.3, 4.22.2, and 4.22.5 of the Standards and as set forth in the drawings attached as Exhibit 3.
d. To alter Toilet Room 140 at the Tennis Center by moving the east wall twelve inches out, in its post-Olympic configuration, so that sufficient turning space is provided in accordance with Sections 4.1.3(11), 4.2.3, and 4.22.3 of the Standards and as set forth in the drawings attached as Exhibit 4.
e. To construct and alter the Tennis Center so that, in both its Olympic and post-Olympic configurations, the toilet paper dispensers in each of the accessible toilet stalls are located not more than 36 inches from the back wall in accordance with Sections 4.1.3(11), 4.17.3, and 4.22.4 of the Standards and as set forth in the drawings attached as Exhibit 5.
f. To construct and alter the Tennis Center so that, in both its Olympic and post-Olympic configurations, all of the accessible lavatories provide clearance of at least 29 inches above the finish floor in accordance with Sections 4.1.3(11), 4.19.2, and 4.22.6 of the Standards and as set forth in the drawings attached as Exhibit 6.
g. To construct and alter the Tennis Center so that, in both its Olympic and post-Olympic configurations, each standard designated accessible toilet stall is equipped with grab bars configured and mounted in accordance with Sections 4.1.3(11), 4.16.4, 4.17.6, 4.22.4 and 4.26 of the Standards and as set forth in the drawings attached as Exhibit 7.
h. To construct and alter the Tennis Center so that, in both its Olympic and post-Olympic configurations, the permanent building signage designating the location of permanent toilet rooms will contain raised san serif or simple serif type between 5/8 inches and 2 inches in height in accordance with Sections 4.1.3(16)(a) and 4.30.4 of the Standards and as set forth in the drawings attached as Exhibit 8.
i. To construct and alter the Tennis Center so that, in both its Olympic and post-Olympic configurations, the permanent, building signage for permanent restrooms on the Plaza Level will be located on the latch side of the doors in accordance with Sections 4.1.2(7), 4.1.3(16)(a), and 4.30.6 of the Standards and as set forth in the drawings attached as Exhibit 9.
j. To construct and alter the Tennis Center so that, in both its Olympic and post-Olympic configurations, visual alarms are provided in all single user toilet rooms and in other general usage areas (except as noted in Exhibit 10b) where audible alarms are provided, as referenced by Sections 4.1.3(14), 4.28.1, and 4.28.3 of the Standards and, as set forth in Exhibit 10.
k. To construct and alter the Tennis Center so that, in both its Olympic and post-Olympic configurations, each of the courts with stands contains wheelchair seating locations in a number equal to at least one percent of the total number of seats at that court, in accordance with Sections 4.1.3(19)(a), 4.33.2, 4.33.3, 4.33.4, and 4.33.5 of the Standards and as set forth in the attached Exhibit 11.
l. To construct those portions of the Tennis Center not specified in Paragraphs 26.a. through 26.k. and the attachments thereto, in accordance with the Standards and as set forth in the baseline drawings (as defined in Paragraph 31) unless otherwise indicated in Paragraphs 26.a. through 26.k. and the exhibits attached thereto.
27. The United States contends that the Standards' requirement that persons seated in wheelchairs be afforded lines of sight comparable to those afforded members of the general public includes a requirement to provide wheelchair users with a line of sight over standing spectators in assembly areas where spectators tend to stand during events. Respondents dispute that contention. Nevertheless, the Department recognizes that the customs, traditions, and rules of tennis prohibit spectators from standing during match play. As a result, the Parties agree that the wheelchair seating locations in the Tennis Stadium and the other courts with spectator seating in the Tennis Center provide persons seated in wheelchairs with comparable lines of sight as required in Sections 4.1.3(19)(a) and 4.33.3 of the Standards.
28. The United States consent to this Agreement: a) Does not constitute any acknowledgement by the Department that the design of the ramp handrails complies with Section 4.8.5 of the Standards. Specifically, the United States does not agree that these handrails are designed to fulfill the requirement that, if they are not continuous, they extend at least 12 inches beyond the top and bottom of the ramp segment. The Parties acknowledge that the disagreement concerning the ramps in question pertains solely to the direction of the handrails; and b) Does not constitute any acknowledgment that failing to provide visual alarms in the rooms or spaces exempted by Paragraph 26.j. and Exhibit 10 complies with Sections 4.1.3(4) and 4.28 of the Standards.
29. Neither the making of this Agreement nor anything contained herein shall in any way be construed or considered to be an admission by the Respondents that the ultimate design of the Tennis Center, as constructed consistent with this Agreement, does not satisfy in every regard the requirements applicable to said Center pursuant to Titles II and III of the ADA and the applicable regulations.
IMPLEMENTATION AND ENFORCEMENT OF THE AGREEMENT
30. The Department may review compliance with the Agreement at any time until the Agreement's expiration. If the Department believes that this Agreement or any provision of it has been violated, the Department shall promptly advise the Respondents in writing of the nature of that violation, and, within thirty days of receipt by Respondents of said written notice from the Department, the Parties shall meet and confer in a good faith attempt to resolve the issue. In the event the Parties are not able to resolve this issue to the reasonable satisfaction of the Department, the Department may seek enforcement of the Agreement or any provision thereof, in the United States District Court for the Northern District of Georgia, pursuant to Paragraph 35 of this Agreement.
31. During its investigation, the Department has reviewed drawings of the Tennis Stadium forwarded by ACOG in January 1995 and May 1996. Moreover, drawings for the Olympic configuration are incorporated as exhibits in the appropriate subparagraphs of Paragraph 26. The Parties agree that the level of accessibility provided by the design drawings submitted to the Department on May 7, 1996, and the Bulletins dated July 31, 1995, submitted to the Department as SD-A11.2, SD-A3.2.3, SD-A9.1, SD-A3.2.4, SD-A11.2, SD-A10.2, SD-A10.1, SD-A3.2.2, SD-A3.1.2, and SD-A10.1A, respectively ("the baseline drawings") as modified by the provisions and exhibits incorporated in Paragraph 26 constitute compliance with the Standards, except as referenced in Paragraph 28 of this Agreement. Respondent(s) agrees not to decrease accessibility in the event that different drawings are used in the actual construction of any room or area, except as addressed under Paragraph 32.
32. In the event that Respondent(s) plans to make any changes in the design of any aspect of the Tennis Center that (1) are covered by the baseline drawings as modified by Paragraphs 26 and 28 of this Agreement and (2) may materially reduce the level of accessibility for individuals with disabilities provided by the design of the Tennis Center (as reflected in the baseline drawings and the provisions of, exhibits to, and drawings incorporated in Paragraphs 26 and 28), Respondent(s) shall notify the Department of the changes being planned, the expected timing of the changes, and a very brief description of the reason for making the change. Respondents shall make every reasonable effort to notify the Department of the planned changes as promptly as possible. Included in the planned design changes that are covered by this section are changes that could reasonably be considered to materially reduce the level of accessibility required by the baseline drawings as modified by Paragraphs 26 and 28 of this Agreement and its underlying interpretations, even if Respondent(s) does not believe that the change would actually have that effect. Changes covered by this paragraph are those that occur or will occur after the commencement of the Agreement and during the effective dates of the Agreement with respect to ACOG only, and with respect to SMMA only, through six months after completion of the post-Olympic modifications. The basis for determining whether a change takes place or the effect of such a change are the baseline drawings as modified by the provisions of Paragraphs 26 and 28 and the design drawings referenced herein.
33. In notifying the Department about any changes being planned, Respondent(s) may request an expedited review by the Department and the Department will make every reasonable effort, subject to its other work demands, to advise Respondent(s) as promptly as possible whether the Department views the changes as a breach of this Agreement that it would seek to prevent. As soon as the Department determines it will not object to a particular planned design change, it will notify Respondent(s) as promptly as possible of that determination. In the event the Department determines that such a change would amount to a breach of the Agreement, said change will be subject to Paragraph 35 of the Agreement.
34. Respondent(s) may, but are not required to, wait for the Department to decide whether it will object to a particular planned change before making the change; however, in the event that a change is made before the Department's determination and the Department subsequently objects, the Parties agree that this will be treated by the Department as an asserted breach of the Agreement, and the Parties will follow the procedures set forth in Paragraph 30 of the Agreement. In the event that Respondent(s) decides to go forth with construction of a planned change prior to receiving the Department's determination regarding that planned change, or in spite of the Department objecting to such change, such action by Respondent(s) shall not in any way impact or be used as a presumption to limit the remedies available to the Department to ensure that the Respondent(s) meets the requirements of the Agreement, including, inter alia, reconstruction. Nor shall Respondent(s) proceeding to make the change prior to receiving the Department's determination, or despite the Department objecting to the change, constitute evidence of any bad faith on the part of the Respondent(s). This paragraph does not apply to design modifications covered by Paragraph 35 of this Agreement. Respondent(s) remains committed to the design and construction of an accessible Tennis Stadium that meets the requirements of the ADA and the Standards and will make every reasonable effort to minimize changes that diminish the accessibility of the Tennis Stadium, or which require invocation of this paragraph.
35. The Department recognizes that hosting the Olympic Games will require some operational flexibility. In the event that the operation of the Olympic Games requires the Respondents to make modifications of either a part of the design of the facility or an operational policy or procedure, such modifications will not be deemed by the Department to violate the Agreement, provided the new design or policy: 1) continues to comply with all relevant provisions of the ADA and its implementing regulations, consistent with the interpretations thereof underlying the baseline drawings and Paragraph 26 and its exhibits; and 2) results in the provision of equal or greater accessibility to people with disabilities. The Department agrees that it will not consider the removal by ACOG of temporary facilities or items from the Tennis Center after the Olympic Games as a decrease in accessibility under this Paragraph so long as it includes the removal of all such temporary facilities.
36. In the event the Department seeks enforcement of this Agreement or any provision of it in the United States District Court, the Parties agree and hereby stipulate:
a. That the United States District Court for the Northern District of Georgia has personal and subject matter jurisdiction over this Agreement, the matters set forth in it, and the Parties to it;
b. That, as to Respondents' Agreement to undertake the actions expressly described in the baseline drawings and Paragraph 26 of this Agreement, the Department shall be entitled to enforcement of said terms of the Agreement and, in the event the Court concludes that Respondents, or any of them, have failed to fulfill their commitments in Paragraph 26 hereof to construct the Tennis Center in accordance with the baseline drawings as modified by the provisions and design drawings referenced in Paragraph 26 hereof, such breach shall be treated as if it had been a violation under Subsection 308(b)(2)(C)(ii) of the ADA, and said Respondents shall be liable, in the Court's discretion, to the United States for such equitable and/or monetary relief as is appropriate under Section 308(b)(2)(A) and (B) of the ADA, and, also in the Court's discretion, for a civil penalty under Subsection 308(b)(2)(C)(ii). In considering what amount of civil penalty, if any, is appropriate, the Court shall consider the Respondent(s)' good faith efforts or attempts to comply with the ADA, as articulated in Section 308(b)(5) of the ADA.
37. Failure by any one of the Parties to enforce this entire Agreement or any provision of it with regard to any deadline or any other provision contained herein shall not be construed as a waiver by that Party of any right to do so.
38. This Agreement is a public document. A copy of this document or any information contained herein may be made available to any person. The Respondents, at their option, shall either provide a copy of the Agreement upon request or refer any person who inquires about obtaining a copy of this Agreement to the Department at the address and telephone number indicated after the Department's signature lines on this document. Notwithstanding any other language in this Agreement, the Parties acknowledge that, because of security reasons, design and construction drawings of the Tennis Center which are referred to herein and attached hereto as exhibits will not be released by the Department pursuant to this paragraph until after the expiration of this Agreement pursuant to the Department's letter of November 9, 1994, attached hereto as Exhibit 12. The Parties to this Agreement acknowledge (i) that SMMA is a state authority subject to the Georgia Open Records Act, O.C.G.A. § 50-18-70 et seq., and (ii) the Open Records Act will govern all of SMMA's responses to requests to SMMA for disclosure of the Agreement or its exhibits, including exceptions to disclosure. SMMA acknowledges that ACOG may assert exceptions to disclosure under the Act to the extent permitted by law. In addition, SMMA agrees to notify ACOG of any request made under the Open Records Act for the Agreement or its exhibits prior to SMMA's disclosure of the documents or notification to the requesting party that disclosure is not required. Such notice to ACOG shall identify the information requested and SMMA's anticipated response to such request. However, such notice from SMMA to ACOG is only required for requests made to SMMA prior to September 15, 1996.
39. This Agreement shall be binding on the Respondents and their successors in interest, and each Respondent has a duty to notify all such successors in interest, if any, of these obligations and to include in all future documents transferring any right or interest in the Tennis Center any obligations to comply with this Agreement not retained by the Respondent(s).
40. If any provision of this Agreement is affected by any future proceeding in bankruptcy, the Parties shall jointly apply to the Bankruptcy Court for withdrawal to the United States District Court for the Northern District of Georgia for resolution of the matter.
41. This Agreement, including the exhibits attached hereto and the drawings referenced herein, 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.
42. This Agreement is limited to the Tennis Center and does not apply to any other design or construction project of any Respondent. The Agreement covers all aspects of the design and construction of the Tennis Center, including all additions or changes made during the term of this Agreement. This Agreement does not affect any continuing responsibility of the Respondents, or any one of them, to comply with the ADA, where applicable, concerning: (a) any duties of the Respondents with regard to other venues being designed, constructed, modified or operated for use during the Olympic Games; (b) any responsibilities the Respondents may incur toward their employees under Titles I and II of the Act; and (c) any ADA responsibility the Respondents have for the Tennis Center where said responsibility is not covered by the provisions of Paragraphs 26, 27, or 28 of this Agreement, except any changes or modifications in the design of the Tennis Center after the execution but during the term of this Agreement. With respect to any litigation between the Parties to this Agreement which may arise over any of the issues described in Subparagraphs (a) or (b) of this Paragraph 41, the Parties shall be free to argue any principles of law and shall not be bound by the terms or underlying principles of this Agreement.
43. The Parties hereby represent and acknowledge that this Agreement is given and executed voluntarily and is not based upon any representation by any of the Parties to another Party as to the merits, legal liability, or value of any claims of the Parties or any matters related thereto.
44. The Parties acknowledge that they have been afforded an opportunity to consider this Agreement and the terms and conditions set forth herein, and that they have read and understood the terms of the Agreement and have been given an opportunity to consult with their respective counsel prior to executing this Agreement.
45. Where the same reduced-sized and full-sized design drawings are attached hereto as an exhibit, the reduced-sized drawings are merely representative of the full-sized design drawings, copies of which are to be maintained by each party. In the event of a discrepancy between a full-sized design drawing and a reduced-sized version of the same document, the full-sized version is to be considered authoritative.
46. Provided no changes are made after the date hereof to the design contained or referenced in an exhibit set forth in Paragraph 26, if there is any disagreement between the Parties concerning the requirements of the Agreement with respect to (1) the referenced sections of the ADA, its implementing regulations or Standards and (2) any listed exhibit, then the exhibit shall govern.
47. A signer of this document, in a representative capacity for MAOGA, ACOG, SMMA, or the Department, represents that he or she is authorized to bind such entity to this Agreement.
48. In any instance where notice is required to be given to any or all of the Parties to this agreement, such notice shall be provided in writing, sent via certified or registered U.S. Mail, return receipt requested, to the following individuals in their capacity as representatives of the Parties to this agreement:
Josie A. Alexander, Esq.
Alexander & Associates
230 Peachtree Street, N.W.
Atlanta, Georgia 30303
Horace H. Sibley, Esq.
King & Spalding
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1763
C. Geoffrey Weirich, Esq.
Paul, Hastings, Janofsky & Walker
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Stone Mountain Memorial Association
Attn: G. Curtis Branscome
P.O. Box 778
Stone Mountain, Georgia 30086
with a concurrent copy to:
Cheryl A. Janson, Esq.
Assistant Attorney General
Georgia Department of Law
40 Capitol Square
Atlanta, Georgia 30334-1300
John L. Wodatch, Section Chief
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738
49. This Agreement may be executed in several counterparts, each of which shall be an original and shall constitute one and the same instrument. All exhibits hereto are hereby incorporated by specific reference into this Agreement, and their terms are made a part of this Agreement as though fully recited herein.
50. Notwithstanding any other provision of this Agreement as between the Department, MAOGA, and ACOG only, this Agreement shall remain in effect until six months after ACOG's post-Olympic modifications to the Tennis Stadium are completed and shall expire at that time. ACOG agrees to notify the Department of this completion. In the event of any failure to provide the Department with this notification within two weeks of the date of the completion of the modifications, as between the Department and ACOG only, this Agreement shall remain in effect for six months after the date on which the Department receives such notification, and shall expire at that time.
51. As between the Department and SMMA only, so long as no alterations, as defined by the Act, are performed on the Tennis Center after ACOG's completion of the post-Olympic modifications, and the terms of this Agreement are met fully this Agreement shall be deemed to resolve all outstanding issues relating to compliance with the new construction provisions of Title II of the Act at the Tennis Center, and the Department shall be forever prohibited from further investigating or pursuing any complaints or claims against SMMA for alleged violations of the Act's new construction or alterations provisions pertaining to the Tennis Center.
52. As a result of its approval authority, the Department contends that MAOGA is responsible for the design and construction of the Center. MAOGA denies that it is responsible for either the design or construction of the Center within the meaning of Title II of the ADA. Notwithstanding this dispute between MAOGA and the Department over MAOGA's alleged legal responsibility for the Center's design and construction, and in order to avoid litigation over this coverage issue notwithstanding the resolution of the substantive issues described herein, the Parties have agreed that MAOGA will execute this Agreement, but will reserve all its rights to argue that it has no Title II responsibility regarding the Center in the event there is any enforcement litigation concerning this Agreement. Notwithstanding any other provision of this Agreement, in the event of any such enforcement litigation the Department expressly agrees that: (1) there shall be no prejudice to MAOGA from executing this Agreement, and (2) the Department shall make no argument therein that MAOGA is estopped or otherwise prevented from arguing that it is not legally responsible for the accessibility of the Center.
53. By executing this Agreement jointly, no Respondent commits to undertake or be responsible for actions which are beyond that Respondent's authority as an owner or operator of the Tennis Center at the relevant point in time. Respondent(s) acknowledges that, as to each undertaking in this Agreement, at least one of them is responsible.
54. All Parties to this Agreement shall support it fully. To the extent that the Department receives a complaint under Title II or Title III of the ADA which challenges an aspect of the design, construction, alteration, or operation of the Tennis Center which is permitted under this Agreement, the Department shall not seek relief on behalf of such individual under either Title II or Title III.
55. The date this Agreement commences is the date of the last signature below.
56. The failure by any one party to sign this Agreement does not void the Agreement as between the parties who are signatories.
IN WITNESS WHEREOF,
the Parties have caused this Agreement to be executed and sealed.
READ CAREFULLY BEFORE SIGNING.
UNITED STATES OF AMERICA
U.S. Department of Justice
DEVAL L. PATRICK
Assistant Attorney General
KERRY ALAN SCANLON
Deputy Assistant Attorney General
Civil Rights Division
JOHN L. WODATCH
L. IRENE BOWEN
JOSEPH C. RUSSO
D.C. Bar No. 432249
TROY R. JUSTESEN
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, DC 20035-6738
ATLANTA COMMITTEE FOR THE OLYMPIC GAMES, INC.
A.D. FRAZIER, JR.
As: Chief Operating Officer
250 Williams Street, Suite 6000
P.O. Box 1996
Atlanta, Georgia 30301-1996 USA
Approved and Recommended for the Atlanta Committee for the Olympic Games, Inc.:
JOSIE A. ALEXANDER, ESQ.
Georgia Bar No. 008886
ALEXANDER & ASSOCIATES
230 Peachtree Street, N.W.
Atlanta, Georgia 30303
MARVA JONES BROOKS, ESQ.
Georgia Bar No. 85150
ARNALL GOLDEN & GREGORY
2800 One Atlantic Center
1201 W. Peachtree Street, N.W.
Atlanta, Georgia 30309-3400
HORACE H. SIBLEY, ESQ.
Georgia Bar No. 644800
KING & SPALDING
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1763
METROPOLITAN ATLANTA OLYMPIC GAMES AUTHORITY
As: Executive Director
250 Williams Street
Atlanta, Georgia 30303
Approved and Recommended for the Metropolitan Atlanta Olympic Games Authority:
C. GEOFFREY WEIRICH, ESQ.
Georgia Bar No. 746455
WILLIAM E. EASON, ESQ.
Georgia Bar No. 237600
PAUL, HASTINGS, JANOFSKY & WALKER
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
STONE MOUNTAIN MEMORIAL ASSOCIATION
G. CURTIS BRANSCOME
As: General Manager of Stone Mountain Memorial Association
P.O. Box 778
Stone Mountain, Georgia 30086
October 2, 2001