VOLUNTARY COMPLIANCE AGREEMENT
THE UNITED STATES OF AMERICA
RP/HH MILFORD PLAZA LESSEE, LP
WHEREAS, the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181 et seq., provides, among other things, that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation,” 42 U.S.C. § 12182(a); and
WHEREAS, the term “public accommodation” under the ADA includes “an inn, hotel, motel, or other place of lodging,” 42 U.S.C. § 12181(7)(A); and
WHEREAS, the ADA authorizes the United States Department of Justice to “undertake periodic reviews of compliance of covered entities,” 42 U.S.C. § 12188(b)(1)(A)(i); and
WHEREAS, on May 5, 2005, pursuant to its authority under 42 U.S.C. § 12188(b)(1)(A)(i), the United States Attorney’s Office for the Southern District of New York (the “United States”) commenced a limited review of certain hotels in New York City to determine whether these hotels, with respect to the specific areas reviewed, were operating in compliance with Title III of the ADA (the “Compliance Review”); and
WHEREAS, as part of the Compliance Review, the United States requested information from the owners and operators of the Milford Plaza (the “Hotel”), conducted a limited inspection of certain features and facilities within the Hotel, and met with representatives of the Hotel; and
WHEREAS, the United States and the Hotel share the goal of resolving the Compliance Review and ensuring that the Hotel operates in compliance with Title III of the ADA; and
WHEREAS, in light of the actions taken by the Hotel to date to comply with the ADA, the actions taken by the Hotel during the period of the Compliance Review, and the actions that the Hotel has agreed to take within the next three years as set forth in this agreement (the “Agreement”), the United States has decided to take no further enforcement action at this time with respect to the Hotel as a result of this Compliance Review;
NOW, THEREFORE, IT IS HEREBY AGREED, BY AND BETWEEN THE UNITED STATES OF AMERICA AND THE OWNERS AND OPERATORS OF THE HOTEL, AS FOLLOWS:
1. The Hotel is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7) because, among other things, it is “an inn, hotel, motel, or other place of lodging.” 42 U.S.C. § 12181(7)(A); see 28 C.F.R. § 36.104.
2. RP/HH Milford Plaza Owner LP (the “Owner” and/or “Operator”) is a public accommodation within the meaning of Title III of the ADA because it owns and/or operates the Hotel, a place of public accommodation. See 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104.
3. This Agreement shall be binding on the Owner and the Operator, which will be responsible for compliance by its agents and employees, for so long as the Owner and/or the Operator shall own and/or operate the Hotel. In the event the Owner and/or Operator seeks to transfer or assign all or part of their interest in the Hotel, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale the Owners shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
4. For purposes of this Agreement, the term “2010 Standards” means the ADA Standards for Accessible Design, 28 C.F.R. Part 36, subpart b and the 2004 ADAAG at 36 C.F.R. part 1191, appendices B and D.
5. For purposes of this Agreement, the term “accessible” means in compliance with the 2010 Standards.
6. For purposes of this Agreement, the term “alterations” means a change to the Hotel that affects or could affect the usability of the building or facility or any part thereof and includes, but is not limited to, remodeling, renovation, rehabilitation, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full height partitions. Normal maintenance, re-roofing, painting or wallpapering, asbestos removal, or changes to mechanical or electrical systems are not alterations unless they affect the usability of the building or facility.
8. The Hotel shall ensure that its main public entrance is accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility. For purposes of this Agreement, the Hotel shall bring its main public entrance into compliance with Sections 206.4, 206.5, and 402.2 of the 2010 Standards within 12 months after the effective date of this Agreement.
8. The Hotel shall ensure that its registration counter (or any auxiliary counter) complies with Sections 227.3 and 904.4 of the 2010 Standards. For purposes of this Agreement, the Hotel shall bring its registration counter or auxiliary registration counter into compliance within 12 months after the effective date of this Agreement.
9. The Hotel agrees to maintain a TTY at the front desk so that Hotel personnel can communicate with persons who are deaf, hard of hearing, or have speech impairments.
10. The Hotel has previously conducted, and maintained a record of, a self-evaluation of the rooms that the Hotel currently designates as its “accessible” rooms. To increase accessibility for individuals with disabilities, the Hotel agrees it shall continue to provide a total of not less than 38 units, sleeping rooms, or suites in compliance with Sections 224 and 806 of the 2010 Standards to the extent readily achievable; and a total of not less than 14 of such units shall have accessible roll-in showers. The Hotel shall further ensure that for all accessible units, the controls to the room safe shall be located between between 48 inches maximum and 15 inches minimum for an unobstructed or forward reach, pursuant to 2010 Standards §§ 224.1.1, 224.2, 205.1, 309.3, 308.2, and 308.3. The Hotel shall further ensure that, to the extent any of the following rooms are among the 38 accessible rooms required under this paragraph: (i) it shall provide sufficient pull side maneuvering clearance in rooms 301, 302, and 328 for a side approach, and in room 327 for a front approach, pursuant to 2010 Standards §§ 224.1.1, 224.2, 206.5.2, 402.2, and 404.2.4; (ii) within 3 years after the effective date of this Agreement, in room 317, the toilet clear floor space shall be 60 inches minimum measured perpendicular from the side wall and 56 inches minimum measures perpendicular from the rear wall, pursuant to 2010 Standards §§ 224.1.1, 224.2, 806.2.4, and 604.3.1; and (iii) in room 321, the bathtub clear floor space in the alcove be at least 30 inches wide, as readily achievable, pursuant to 2010 Standards §§ 224.1.1, 224.2, 305.7.1, and 607.2.
11. To provide persons with disabilities a range of options equivalent to the options available to other persons served by a hotel, the Standards obligate hotels to disperse their accessible rooms among the various classes of sleeping accommodations available, pursuant to Sections 224.5 and 806.2 of the 2010 Standards. Factors to be considered include room size, cost, amenities provided, and the number of beds provided. Id. The Hotel will ensure that, within two years after the effective date of this Agreement, it offers at least one accessible room in each of the following classes of sleeping accommodations: Standard Room with Two Twin Beds, Standard Room with One Double Bed, Standard Room with Two Double Beds, Standard Room with One Queen Bed, Standard Room with One King Bed, Queen Suite Room, and King Suite Room.
12. To increase accessibility for individuals with hearing impairments, the Hotel shall provide a total of 123 units that are accessible to persons with hearing impairments. The Hotel may satisfy the requirements of this paragraph either by providing units that are in compliance with Sections 224.1 and 806.3 of the 2010 Standards or by providing equivalent facilitation in compliance with Sections 224.1 and 806.3 of the 2010 Standards. To the extent the Hotel provides rooms that comply with Sections 224.1 and 806.3 of the 2010 Standards, the Hotel shall complete the construction of such rooms within three years after the effective date of the Agreement. In the event that the Hotel engages in alterations to the existing fire alarm system, the Hotel shall install permanent visual alarm systems.
13. The Hotel shall establish a written policy specifically addressing the provision of services to individuals with disabilities.
14. The Hotel’s policy shall specify, among other things, that
(a) persons with disabilities may reserve accessible guestrooms/suites in the same way and on the same terms that other persons can reserve guestrooms/suites (see 28 C.F.R. § 36.302);
(b) all reservation staff (including staff located on-site at the Hotel and staff located off-site at a reservations center) shall have ready access to information about the lodging facility’s accessible guestrooms/suites (including specific information on room layout and types and sizes of accessible showers, bathtubs and other features, such as tub seats) for use in making reservations and answering questions (see 28 C.F.R. § 36.302);
(c) accessible guestrooms/suites shall be held for possible use by persons with disabilities until all other rooms in the same price category have been rented (see 28 C.F.R. § 36.302);
(d) the rates for accessible guestrooms/suites shall be the same as the rates for guestrooms/suites with comparable features and amenities that are not designated accessible (see 28 C.F.R. § 36.301(c));
(e) accessible features inside and outside the Hotel shall be maintained in good working order (see 28 C.F.R. § 36.211);
(f) fire-safety information, maximum room rate information, telephone and television information cards, guest services guides, restaurant menus, room service menus, and all other printed materials provided for use by guests shall also be available in alternate formats so that blind persons and persons with low vision have access to the information (see 28 C.F.R. § 36.303(b), 36.303(c));
(g) persons with disabilities shall be permitted to use service animals, without incurring any extra charges or conditions, in guestroom/suites and all public areas of the facility (see 28 C.F.R. § 36.302(c));
(h) televisions in guestrooms/suites shall include televisions with built-in captioning features or close-captioning decoders provided for use by persons who are deaf or hard of hearing (see 28 C.F.R. § 36.303(e));
(i) Hotel staff shall be made available to move furniture, and provide and adjust accessible features in guestrooms when features require installation or adjustment to ensure accessibility (see 28 C.F.R. § 36.302(a)); and
(j) Hotel staff which provide such guest services shall be trained to offer assistance, upon request, to persons with disabilities who cannot transport their luggage to/from their guestrooms/suites and who may need assistance in locating guestrooms and Hotel amenities (see 28 C.F.R. § 36.302(a)).
15. The Owner and Operator acknowledge and agree that any alteration to the Hotel (including, notwithstanding anything to the contrary in this Agreement, all obligations of the Hotel to make physical changes pursuant to this Agreement) shall comply with the Standards to the maximum extent feasible. The Owner and Operator further acknowledge and agree that if an alteration affects or could affect the usability of or access to an area of the Hotel that contains a primary function, that alteration shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered area and the restrooms, telephones, and drinking fountain serving the altered area are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, unless the cost and scope of such alterations is disproportionate to the cost of the overall alteration. Specifically, the Owner and Operator agree that the clear opening width of all new doors shall be at least 32 inches minimum, pursuant to 2010 Standards §§ 224.1.2 and 404.2.3. The Owner and Operator agree to notify the United States, in writing, of any alterations to the Hotel commenced during the term of this Agreement and shall, in that notification, specify the steps taken to ensure that the alterations comply with the Standards to the maximum extent feasible. The United States acknowledges receipt of notice of the current renovation of the Hotel, which include the alterations required pursuant to this Agreement.
16. In addition to the measures set forth above, the Owner and Operator agree that the Hotel has undertaken, or will undertake within one year after the effective date of this Agreement, the following measures to increase accessibility at the Hotel:
(a) The Hotel shall ensure that the headroom from the finish floor to the bottom of the lobby escalator is a minimum of 80 inches high (see 2010 Standards § 307), or that such lobby escalator is removed or otherwise complies with Standards;
(b) The Hotel shall bring its lobby level restrooms into compliance with the 2010 Standards, specifically: (i) by providing an ambulatory accessible toilet compartment in the women’s room, pursuant to 2010 Standards §§ 213.3.1 and 604.8.2; (ii) increasing the pull side maneuvering clearance perpendicular to the accessible toilet compartment to at least 42 inches in the women’s room, pursuant to 2010 Standards §§ 213.3.1 and 604.8.1.2; (iii) increasing the space between the diaper changing station and the side grab bar in the women’s room to at least 12 inches, pursuant to 2010 Standards §§ 213.3.2, 604.5, and 609.3; (iv) in both the men’s and women’s restrooms, providing a toilet seat cover dispenser with at least 30 inches by 48 inches clear floor space, pursuant to 2010 Standards §§ 205.1, 309.2, and 305.3.
(c) The Hotel shall provide a visual fire alarm in the lobby (see 2010 Standards § 702);
(d) The Hotel shall either install an additional standard height drinking fountain or water cooler that is usable by individuals who have difficulty bending or stooping, or replace the existing drinking fountain or water cooler with one which is in compliance with the Standards (see 2010 Standards § 602)
(e) The Hotel shall provide an accessible route from and to the lobby and the Upper Lobby Lounge, specifically (i) insure that the handrail gripping surface of the stairway from the ground level to the lobby level has a perimeter dimension between 4 inches and 6.25 inches, pursuant to 2010 Standards §§ 210.1, 504.6, and 505.7.2; (ii) provide a handrail on both sides of the stairway from the elevator lobby level to the lounge platform, pursuant to 2010 Standards §§ 210.1, 504.6, and 505; and (iii) provide a handrail on both sides of the south stairway from the lobby level to the sundries and toilet room level, pursuant to 2010 Standards §§ 210.1, 504.6, and 505;
(f) The Hotel shall provide a Concierge Counter with a portion a minimum of 36 inches long and a maximum of 36 inches high, an auxiliary Concierge Counter, or equivalent facilitation (see 2010 Standards §§ 227.3 and 904.4); and
(g) The Hotel shall ensure that in the Fitness Center, clear floor space is provided adjacent to the exercise equipment, specifically that at least one of each type of exercise equipment shall have a clear floor space positioned for transfer or for use by an individual seated in a wheelchair, pursuant to 2010 Standards §§ 236.1, 1004.1, and 305.
17. Upon the completion of the alterations required by this Agreement, the Hotel shall provide to the United States a certification from the Owner and/or Owner’s architect confirming such completion. If, during the term of this Agreement, the Hotel takes any further action to remove barriers to access or otherwise enhance accessibility for individuals with disabilities at the Hotel or prepares any plans for action concerning ADA compliance during the term of this Agreement, other than the alterations required by this Agreement or otherwise performed as part of the Hotel’s current renovation project, the Hotel shall provide to the United States a narrative report of same. The Hotel shall also provide to the United States, as an exhibit to such report or otherwise, copies of any complaint, whether formal or informal, received during the term of this Agreement alleging that the Hotel was not being operated in compliance with the ADA or otherwise discriminated against any person on account of disability.
18. The Owner and Operator of the Hotel shall cooperate in good faith with any and all reasonable requests by the United States for access to the Hotel and for information and documents concerning the Hotel's compliance with this Agreement and the ADA.
19. The United States shall have the right to verify compliance with this Agreement and the ADA, both as set forth in this Agreement and through any means available to the general public, including visits to the public areas of the Hotel and communications with Hotel staff. The United States shall have the right to inspect the facility at reasonable times upon ten (10) business days advance written notice to Owner.
20. If the United States believes that this Agreement or any of its requirements has been violated, it will notify the Owner and Operator of the Hotel in writing and attempt to resolve the issue or issues in good faith. If the United States and the Owner and Operator of the Hotel are unable to reach a satisfactory resolution of the issue or issues, the United States may commence a civil action in the United States District Court for the Southern District of New York to enforce the terms of this Agreement and/or the ADA.
21. In consideration for the Hotel's timely performance of all of its obligations under this Agreement, the United States agrees to discontinue the Compliance Review of the Hotel, except as provided in the Enforcement portion of this Agreement. The United States reserves the right to investigate any complaint it receives concerning the Hotel, to initiate future compliance reviews concerning the Hotel with respect to any aspect of the Hotel or its operation not expressly addressed in Parts III through VIII and X of this Agreement, and to investigate and commence a civil action with respect to any violation of the ADA. In the event the United States receives and investigates an ADA complaint concerning the Hotel, or commences any such future compliance review concerning the Hotel, nothing in this Agreement shall limit the scope of any investigation or compliance review of the Hotel or preclude the United States from seeking relief beyond that required under this Agreement with respect to the Hotel and its operation not expressly addressed in Parts III through VIII and X of this Agreement, provided the Hotel has timely performed such obligations under this Agreement.
22. A copy of this Agreement shall be made available to any person upon request.
23. The effective date of this Agreement is the date of the last signature on the Agreement. The term of this Agreement is three years from the effective date. Unless otherwise expressly provided in this Agreement, all obligations under this Agreement must be completed before the expiration of the term of this Agreement.
24. This Agreement memorializes the commitments made by the Owner and Operator of the Hotel to increase accessibility of the Hotel and the terms under which the United States has agreed to conclude this particular Compliance Review of the Hotel without further review or enforcement action. This Agreement is not intended to certify or signify, however, that the Hotel is now (or, with the actions taken pursuant to this Agreement, will be) in full compliance with the ADA, or constitute a finding by the United States of such compliance, and it may not be used in any proceeding to signify such compliance. This Agreement does not affect the Hotel's continuing responsibility and obligation to comply with all aspects of the ADA. This Agreement is not intended to reflect any legal interpretation of any provisions of the ADA by the United States, and it may not be used in any proceeding to demonstrate such legal interpretations.
25. This Agreement does not constitute an admission by the Hotel, Owner and/or Operator of non-compliance with any provision of the ADA.
26. Each party represents respectively that the individuals signing this Agreement on behalf of such party are authorized to bind such party to this Agreement.
27. Failure by the United States to enforce the entire Agreement with regard to any deadline or any other provision of the Agreement, shall not be construed as a waiver of its right to enforce other deadlines or provisions of the Agreement.
28. This Agreement constitutes the entire agreement between the parties relating to the complaint, 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 Agreement, shall be enforceable.
New York, New York
Sept. 27 , 2013
FOR THE UNITED STATES
United States Attorney for the
Southern District of New York
By: /s/ David J. Kennedy
LAWRENCE H. FOGELMAN
DAVID J. KENNEDY
Assistant United States Attorneys
86 Chambers Street, 3rd Floor
New York, New York 10007
New York, New York
Sept. 26 , 2013
FOR THE OWNER AND OPERATOR OF THE HOTEL:
RP/HH MILFORD PLAZA LESSEE, LP
By: RP HH MILFORD PLAZA LESSEE GP,
LLC, its general partner
By: /s/ Ron J. Hoyl
Ron J. Hoyl, Vice President
870 Seventh Avenue
New York, New York 10019