SECOND EXTENSION OF AND ADDENDUM TO

SETTLEMENT AGREEMENT

UNDER THE AMERICANS WITH DISABILITIES ACT

BETWEEN THE UNITED STATES OF AMERICA

AND

MOTEL 6 OPERATING L.P.

DJ# 202-73-57



 

BACKGROUND

A1. On August 12, 2004, the United States and Motel 6 Operating, L.P. (“Motel 6”) entered into a Settlement Agreement to resolve issues concerning Motel 6’s compliance with title III of the Americans with Disabilities Act, 42 U.S.C. Sec. 12181 et seq. (the “ADA”).

A2. On January 19, 2006, the parties entered into an Extension of and Addendum to the Settlement Agreement that provided certain extensions to complete renovations as well as additional property inspections. In addition, Motel 6 agreed to revise its reservation system to provide guests with disabilities a more reliable and accessible system to make room reservations, whether using the telephone or internet. Motel 6 has completed, in a timely manner, all of the initial requirements of the Agreement including the requisite ADA training, comprehensive ADA surveys of all facilities, and the development of detailed plans and cost estimates to bring each facility into compliance with the Settlement Agreement.

A3. Motel 6 has successfully completed its requirements under the Settlement Agreement to date, including the accessibility modifications at 25% of its company operated Motel 6 properties and the reconfiguration of its reservation system and related processes. The United States has conducted inspections of six Motel 6 properties, and has reviewed the independent accessibility reports for seven Motel 6 properties and has determined that each is in substantial compliance with the Settlement Agreement. Moreover, the United States recognizes that Motel 6 is in compliance not only with the letter of the Settlement Agreement, but also with the spirit of the Agreement. Motel 6 has taken a hands-on approach to the renovation process, finding creative solutions to make physical elements more accessible, ensuring the quality of the renovation work by providing training to contractors, reviewing their work both internally and with independent consultants, and working with vendors to make furniture fixtures and components more accessible.

A4. After completing 170 renovation projects, Motel 6 approached the United States to report specific concerns regarding its continued ability to timely meet its commitments under the Settlement Agreement. Specifically, Motel 6 contended that it needs more time due to (i) the actual costs of such renovations, (ii) the time needed to complete them, and (iii) the fact that the resources that it must dedicate to complete each motel cost significantly more than Motel 6 initially contemplated when it entered into the Settlement Agreement. According to Motel 6, the significant increases in costs and resources have resulted from numerous factors, including the need to create a separate internal ADA renovation department within Motel 6, the time it has taken to hire and train ADA project contractors, the hiring of independent ADA consultants to inspect and test the accuracy and completeness of the renovations, the more extensive renovation scopes at the properties that Motel 6 acquired as compared to company “core-built” properties, complex permitting processes and requirements resulting from enhanced requirements in various jurisdictions, and significant increases in the costs of construction labor and materials.

A5. Motel 6 has reported that it projects the cost of the total renovation project to be 240% of the cost it originally estimated. Motel 6 has shared voluntarily with the United States specific financial and other data to document the significant increases. It has also explained the specific financial and adverse business impact that such increases will have on company operations in both the short and long term, if the United States does not grant some form of relief. Notably, Motel 6 is not requesting a reduction in the scope of its commitment, and it has reaffirmed its commitment to fully complete the ADA modifications in accordance with the quality levels it previously demonstrated.

A6. In light of the commitment Motel 6 has demonstrated to date, the specific challenges that Motel 6 faces in reasonably completing the renovation projects within the time frames set forth in the Settlement Agreement, and the very positive results achieved through its compliance efforts to date, the parties have agreed to enter into this Second Extension of and Addendum to the Settlement Agreement. Now, the parties hereby agree as follows:

A7. This document incorporates by reference and expands upon the Original Agreement entered into by the parties on August 14, 2004, and replaces the Addendum and Extension of that Agreement entered into on June 4, 2006. The parties have modified paragraphs 21 through 27 and 32 and 33 of the Original Agreement and have set forth those changes in this document. Other than those modified provisions, all other provisions of the August 14, 2004, Agreement will remain effective, in their original unmodified form, until the expiration of this Agreement.

  1. The parties to this Agreement are the United States of America and Motel 6 Operating L.P. The parties hereby agree as follows:

A. DEFINITIONS

  1. “ADA” means the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., and its implementing regulations issued by the United States in effect on the date of the execution of this Agreement.
  2. “Title III” means specifically title III of the ADA, 42 U.S.C. §§ 12181-12189 (1990), and the implementing regulations in 28 C.F.R. Part 36 and Appendix A in effect on the date of the execution of this Agreement.
  3. “Standards” means the provisions of the ADA Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A, in effect on the date of the execution of this Agreement.
  4. Unless otherwise defined, all terms used in this document have the meaning used in the ADA and the Standards.
  5. “Alterations” and other forms of “alter” mean modification to a facility, which has occurred since January 26, 1992, in a manner that affects or could affect the usability of that facility or part thereof, within the meaning of 42 U.S.C. § 12183(a)(2)and 28 C.F.R. § 36.402, § 36.403, and App. A § 3.5.
  6. “Motel 6” means all motel facilities operated under the trade name Motel 6 and owned or operated by Motel 6 Operating L.P.
  7. “Dispersal of Guestrooms” refers to the classes of sleeping accommodations including room size, cost, amenities provided and number of beds provided. See 28 C.F.R. Part 36, App. A §§ 9.1.4(1) and (2).

B. FACTS

  1. Motel 6 is a public accommodation because it is a private entity that owns, leases, or operates a place of public accommodation. 42 U.S.C. §§ 12181(6), (7); 28 C.F.R. § 36.104.
  2. The Department of Justice (“Department”) initiated a compliance review of Motel 6 facilities owned by its parent company Accor, pursuant to the Attorney General’s authority under 42 U.S.C. § 12188(b)(1)(A)(i) to conduct periodic reviews of compliance of covered entities. As part of its review, the Department conducted architectural surveys of a number of Motel 6 facilities.
  3. During the course of its compliance review, and as a result of its architectural surveys of Motel 6 facilities, the Department determined that there were architectural barriers to access at every Motel 6 facility surveyed and that each of these facilities violated either the new construction, alteration or barrier removal requirements of the ADA. Specifically, the Department concluded that several features, elements and spaces of the Motel 6 facilities were not in compliance with the Standards. Examples of the various features, elements and spaces of the Motel 6 facilities surveyed that have been identified as in violation of the regulation and corresponding provisions of the Standards for Accessible Design are listed in Exhibit 1.
  4. In order to redress the accessibility issues identified at the facilities that were surveyed by the United States, and to ensure that all of the Motel 6 facilities owned by Accor are in compliance with the ADA, Motel 6 has agreed to take the steps outlined in section D of this Agreement.
  5. Facilities which have undergone alterations, as defined by the Standards § 3.5, are required to ensure, among other things, that if existing elements, spaces, or common areas are altered, then each such altered element, space, feature, or area shall comply with the applicable provisions of the requirements for new construction.1 42 U.S.C. § 12183(a)(2)(A)(iv); 28 C.F.R. §§ 36.402-406; 28 C.F.R. Pt. 36, App. A. Rather than undertake a case by case analysis of every altered facility, Motel 6 has agreed to enter a system-wide settlement that will ensure access at all of its facilities. Because nearly all Motel 6 facilities have undergone one or more renovations during the past 10 years, and because Motel 6 fully supports the ADA and welcomes persons with disabilities at its facilities, Motel 6 has agreed to take steps to make all of its properties accessible and usable to individuals with disabilities.

1 In addition to the requirements of Section 4.1.6(1) of the Standards, an alteration that affects or could affect the usability of or access to an area containing a primary function 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 fountains serving the altered area are readily accessible to, and usable by, individuals with disabilities, unless such alterations are disproportionate to the overall alterations in terms of cost and scope.

C. JURISDICTION

  1. All Motel 6's in the United States are places of lodging and are thus places of public accommodation within the meaning of 42 U.S.C. § 12181(7)(A) and 28 C.F.R. § 36.104.
  2. The United States enters into this Agreement pursuant to its authority, under 42 U.S.C. § 12188(b) and 28 C.F.R. § 36.503, to enforce the ADA. The parties enter into this Agreement in order to avoid litigation.

D. CORRECTIVE ACTIONS TO BE TAKEN BY MOTEL 6

  1. Motel 6 agrees to design and construct new facilities in compliance with the ADA and to ensure that any alterations made to an existing facility are, to the maximum extent possible, readily accessible to, and usable by, individuals with disabilities, 42 U.S.C. § 12183(a)(2)(A)(iv); 28 C.F.R. §§ 36.402-406; 28 C.F.R. Pt. 36, App. A.
  2. By no later than July 31, 2004, Motel 6 shall designate or hire a Compliance Officer who will have the authority and responsibility for ensuring that Motel 6 meets the terms of this Agreement and of the ADA. The Compliance Officer will – at Motel 6's expense – undergo training on the ADA’s accessibility requirements by no later than October 1, 2004.
  3. By no later than October 1, 2004, Motel 6 will identify and train no fewer than twenty Motel 6 personnel – including, at least two from each region – who will assist the Compliance Officer in (a) evaluating every Motel 6 facility to identify potential ADA violations, if any, and (b) closely monitoring the work of private contractors hired to carry out accessibility work. The training will include a two day program provided by the United States (directly and/or through a private contractor chosen by the United States and paid for by Motel 6) as well as additional training provided by Motel 6.
  4. By no later than December 30, 2004, Motel 6 will evaluate no less than thirty three percent (33%) of all Motel 6 facilities to identify and reduce to writing all aspects of these facilities that do not meet the Standards. By no later than March 31, 2005, Motel 6 will evaluate no less than sixty-six percent (66%) of all Motel 6 facilities to identify, and reduce to writing all aspects of these facilities that do not meet the Standards. By no later than June 30, 2005, Motel 6 will have evaluated every Motel 6 facility to identify, and reduce to writing all aspects of these facilities that do not meet the Standards. Motel 6 will provide the United States with a list of facilities that have been surveyed by the above deadlines. Motel 6 will also maintain copies of these evaluations and will, upon request, make selected reports available to the United States within 30 days of a written request. In the event that the training to be provided by the United States is delayed for unforeseen circumstances, the deadlines for Motel 6 to evaluate its facilities will be postponed accordingly.

    Motel 6's facility evaluations shall be conducted by either a licensed design professional or by individuals who have received the training specified in paragraph 18. Among other tools chosen by Motel 6, the technical assistance checklist found on the Department of Justice website (and attached hereto as Exhibit 2) will be used for these evaluations.
  5. By no later than June 30, 2005, Motel 6 will educate all motel managers and assistant managers about its obligations under the ADA including, but not limited to, how to maintain and operate Motel 6 facilities in a manner that ensures all guests with disabilities are afforded an equivalent service. Motel 6 will provide a report to the United States by July 31, 2005, documenting the completion of and content of this training. Motel 6 will develop training materials to include information relevant to ADA compliance and will also annually educate all new managers about their obligations under the ADA.
  6. With regard to all of its “newly constructed” facilities (those properties constructed by Motel 6 for first occupancy after January 26, 1993), Motel 6 will, by no later than March 1, 2006, conform all elements that deviate from the Standards of Accessible Design (with the exception of two Motel 6 prototype properties, one in Houston, Texas and one in New Orleans, which will be completed by December 31, 2006).
  7. With regard to all of its properties designed for first occupancy prior to January 26, 1993, Motel 6 will ensure that every such facility, at a minimum, meets the criteria set forth in A through L below, by no later than the dates set forth in the schedule outlined in paragraph 23.
    1. Designated Accessible Parking Spaces serving the Office: Each facility shall have at least one meeting the Standards.
    2. Designated Accessible Parking Spaces serving the Designated Accessible Guestrooms: Each accessible guestroom shall have at least one accessible parking space meeting the Standards.
    3. Entrance doors to Office: Each Office shall have an accessible entrance meeting the Standards.
    4. Accessible Routes from Parking Spaces to the Office: There shall be at least one accessible route meeting the Standards, including any curb ramps along the route, from the accessible parking space to the Office.
    5. Curb ramps at Parking Spaces serving the Designated Accessible Guestrooms: All curb ramps leading from the accessible parking spaces to accessible guestrooms shall meet the Standards.
    6. Exterior Doors to the Designated Accessible Guestrooms: All exterior doors and door hardware at the accessible guestrooms shall meet the Standards.
    7. Identification Signs on Guestrooms and Laundry: All room signs and directional signs shall meet the Standards and be placed in locations that comply with the Standards.
    8. Walkways surrounding the building: The following shall meet the Standards at each motel: (i) all walkways to accessible guestrooms from the Office; (ii) all walkways to accessible guestrooms from the accessible parking space designated for that room; and (iii) all walkways from the accessible guestrooms to the common use areas.
    9. Guest Laundry Room. The walkway to and entrance into a guest laundry room shall be accessible, meeting the Standards.
    10. Dispersal of Accessible Guestrooms: For each type of available room there shall be a minimum of one accessible guestroom meeting the Standards. In many Motel 6 facilities that were constructed for first occupancy before January 26, 1993, the guestrooms are too small to contain two double beds and to meet the Standards of Accessible Design. In these circumstances, if a person with a disability requests an accessible room with two beds, Motel 6 may choose from several options. Motel 6 may rent such individual the designated accessible room and a connecting room together for the price of one room. (See 28 C.F.R. Part 36, Appendix A § 9.1.4.). In situations where there are no adjoining rooms that may be linked for this purpose, Motel 6 may offer a guest either two adjacent rooms, or one room that otherwise meets the Standards but has one double (or queen size bed) and one single bed.
    11. Number of Accessible Guest Rooms: Motel 6 will provide the number of accessible guest rooms required by the Standards at each facility and, unless it is technically infeasible, those rooms shall meet the requirements of the Standards. Each facility shall have at least one accessible room with a roll-in shower meeting the Standards.
    12. Swimming Pool: If a swimming pool is provided there must be an accessible route from the Office to the swimming pool.
  8. Motel 6 will complete all work required by the Original Agreement as follows:
    1. By or before December 31, 2006, Motel 6 will complete accessibility repairs to no fewer than 25% of all properties that it owns or operates. Included among these facilities will be all prototype facilities, Motel 6 properties in California and Florida, and a number of properties in Washington and Oregon. By or before December 31, 2006, Motel 6 will also provide the United States with a list of all properties completed in that calendar year.
    2. By or before December 31, 2007 – and continuing each year though December 31, 2013 – Motel 6 will complete accessibility repairs at no fewer than 50 of its properties per year. By December 31 of each year, Motel 6 will provide the United States with a list of all properties it has completed in that calender year. Motel 6 has represented that it will spend a minimum of 17.5 million dollars per year to fulfill its responsibilities under this Agreement. In addition, Motel 6 will endeavor to complete all accessibility modifications by December 31, 2012 – even though this Agreement grants Motel 6 through 2013 to complete all work required by this Agreement.
  9. Reservation System Changes: By June 1, 2006, Motel 6 will ensure that its telephone and internet reservation systems provide service to individuals who request accessible rooms that is equivalent to that provided to individuals who seek to reserve standard rooms. To demonstrate compliance with this paragraph, Motel 6 will retain an independent consultant to conduct testing of the ability to reserve accessible rooms. Testing will begin by July 1, 2006, will be conducted on no fewer than five dates and twenty properties and will be conducted of randomly chosen properties, as follows: a) via the Motel 6 Website; b) by calling individual properties directly; and c) by calling Motel 6's central call center. Motel 6's independent consultant will provide all testing data to the Department of Justice by December 31, 2006. If any remaining problems are identified by Motel 6's independent consultant, or otherwise, Motel 6 will correct them by no later than March 1, 2007.
  10. By January 15, 2007, 2008, 2009, 2010, 2011, 2012 and 2013 (of each year respectively), the United States will identify seven facilities for which it seeks detailed compliance information. Motel 6 will ensure that an independent consultant (an expert architect or accessibility specialist selected by Motel 6) conducts surveys of and prepares reports on each of these facilities by April 1 of each year. Motel 6 is strongly encouraged to consult with the United States on the selection of the consultant. These reports will identify the Motel 6 motel number and location, the date the motel was constructed, and any and all elements that do not comply with the Standards or this Agreement. In addition, the United States reserves the right to inspect any Motel 6 property upon seven days notice.

E. ENFORCEMENT AND MISCELLANEOUS PROVISIONS

  1. By or before May 1, 2007, 2008, 2009, 2010, 2011, 2012 and 2013, respectively, after the United States has evaluated the seven survey reports created by an independent consultant hired by Motel 6, and has also had the opportunity to conduct its own independent evaluation of three or more additional Motel 6 facilities, the United States will notify Motel 6 of its determination whether Motel 6 is – for that particular year – in “substantial compliance” with paragraphs 21, 22 and 23 of this Agreement. In the event that Motel 6 is not in substantial compliance in any given year, it will pay civil a penalty to the United States of $110,000 by June 1 of that year.

    For purposes of this Agreement “substantial compliance” is defined as 90% of the facilities surveyed (by Motel 6 and the United States) meeting the requirements of this Agreement. In other words, if the United States finds that more than one in ten facilities surveyed is found to lack the accessible features required by the terms of this Agreement, Motel 6 will be deemed not in substantial compliance and will be required to pay the above civil penalty.

    In addition, in any given year, if the United States finds that Motel 6 is not in substantial compliance with the Agreement, Motel 6 will promptly identify and correct all aspects of its facilities which are not compliant within 90 days of such notification, and the provisions of paragraph 27 will apply.
  2. If the United States believes that Motel 6 is not in compliance with this Agreement or any requirements contained herein, the United States agrees to notify Motel 6 in writing of the alleged noncompliance and to attempt to seek a resolution of the matter with Motel 6. If the parties are unable to reach a resolution within 60 days of the date of the United States’ written notification, the United States may seek enforcement of the terms of the Agreement in any United States District Court where jurisdiction and venue are proper. In the event that a court determines that Motel 6 has failed to comply with any term in this Agreement, such failure to comply shall be treated as a violation of title III of the ADA and the United States may seek, and the court may assess, civil penalties as provided in 42 U.S.C. § 12188(b)(2)(C). For example, a violation of paragraph 23A, 23B, 23C, or 23D is a violation for purposes of this provision. Alternatively, should the parties be unable to reach a resolution within 60 days of the date of the United States’ written notification, the United States may bring an action to enforce compliance with the ADA and its implementing regulations in any United States District Court where jurisdiction and venue are proper.
  3. Nothing in this Agreement waives the right of the United States to bring a civil action to enforce this Agreement.
  4. This Agreement shall be binding on Motel 6, its agents, and employees. In the event that Motel 6 seeks to transfer or assign all or part of its interest in any facility covered by this Agreement and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale Motel 6 shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this agreement. 30. This Settlement Agreement constitutes the entire agreement between the parties relating to this matter and no other statement, promise, or agreement, either written or oral, made by any party or agents of any party that is not contained in this written Settlement Agreement, including its attachments, shall be enforceable.
  5. Any notices or other communications required by this Agreement shall be effective when delivered either in person or by overnight mail.
  6. If any term of this Settlement Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the Department of Justice and Motel 6 shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
  7. This Agreement is effective from the date of the last signature below until August 1, 2014.


For Motel 6 Operating L. P.: For the United States:


Accor North America, Inc.
Managing General Partner
WAN J. KIM
Assistant Attorney General
Civil Rights Division



By:______________________
ALAN J. RABINOWITZ
Executive Vice President & General Counsel
Motel 6 Operating L.P.
4001 International Parkway
Carrollton, Texas 75007
(972) 360-2530

By:______________________
JOHN L. WODATCH, Chief
L. IRENE BOWEN, Deputy Chief
ALYSE BASS, Senior Trial Attorney
Disability Rights Section
U.S. Department of Justice
Washington, DC 20035-6738
(202) 307-2227

Date__________________________ Date             August 2, 2007             


 





October 09, 2008