IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA

Plaintiff,

v.

PENN'S LANDING PARTNERS, and
BRENNAN BEER GORMAN

Defendants

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CIVIL ACTION NO.

02-7463


CONSENT ORDER AND FINAL JUDEMENT AS TO

PENN'S LANDING PARTNERS AND BRENNAN BEER GORMAN




Settlement Agreement bullet divider Department of Justice Press Releases



I. DEFINITIONS


The Parties stipulate that certain terms shall be defined for purposes of this Consent Order:

A. “Department” shall mean the United Stated Department of Justice and, because the Department has designated enforcement authority for Title III of the ADA, “Department” is used interchangeably with the “United States;”

B. “Penn” shall mean Penn’s Landing Partners, and its subsidiaries, assignees, and/or successors-in-interest; at any time during the Term of this Consent Order;

C. “Brennan” shall mean Brennan Beer Gorman, and its subsidiaries, assignees, and/or successors-in-interest; at any time during the Term of this Consent Order;

D. “Hyatt” shall mean the Hyatt Hotels Corporation and its subsidiaries, assignees, and/or successors-in-interest; at any time during the Term of this Consent Order;

E. “Hyatt Regency” or the “Project” shall mean the Hyatt Regency Philadelphia at Penn’s Landing located at 200 N. Columbus Blvd., Philadelphia, Pennsylvania;

F. “Consent Order” shall mean this Consent Order and Final Judgement;

G. “Effective Date” shall mean the date this Consent Order is entered into as a final judgment by the United States District Court for the Eastern District of Pennsylvania;

H. “Standards” shall mean the Americans with Disabilities Act Standards for Accessible Design set forth at 28 C.F.R. pt. 36, Appendix A, revised as of July 1, 1994;

I. “Fully Accessible Rooms” shall mean rooms that are accessible to both individuals with mobility impairments and individuals with hearing impairments and which comply with Standards §§ 9.2 and 9.3;

J. “Rooms accessible to individuals with hearing impairments” shall mean rooms complying with Standard §9.3, but not necessarily with Standard § 9.2;

K (1). “Class of Rooms” means a category of rooms sharing common characteristics in terms of size, cost, amenities provided, and the number and type of beds provided.

K (2). "Amenities"- The Department of Justice defines "Amenities" to include features such as views and special accommodations geared toward the business traveler.

L. “Concept Drawing” shall mean a design illustrating the solution to an accessibility problem; said drawing must be sufficiently detailed to document compliance with the Standards;

M. “Construction Documents” shall mean the plans, elevations, cross sections and details, fully dimensioned and annotated, on which the contractor will rely in the field; and

N. “Site Review” shall mean an on site review of the Hyatt Regency by 3 representatives of the Department and their consulting experts for the purposes of determining if the hotel as built is in compliance with the Standards.


II. THE PARTIES

A. Plaintiff is the United States of America acting through the United States Department of Justice.

B. Defendant Penn is a joint venture of Sommerset Holdings and Keating Development Co. Penn is a real estate development company doing business in Philadelphia, Pennsylvania.

C. The Department asserts that Penn is the owner and developer of the Hyatt Regency, and it participated in the design and construction of the Hyatt Regency within the meaning of 42 U.S.C. §12183. Penn denies this.

D. Defendant Brennan is an architectural firm with offices located in New York, New York.

E. Plaintiff asserts that Brennan in providing its services for the Project can be held directly liable under Title III of the ADA, particularly 42 U.S.C. §12183, in regard to the Project. Brennan was retained by Penn as the architect of record on the Project. It provided architectural and normal structural, mechanical and electrical engineering design services, and administration services associated therewith, but did not provide civil engineering, landscape architecture, audio/visual, signage, graphics, interior, or millwork design services for the Project. Brennan asserts that its status as architect of record for the Project, and its services for the Project, do not render it a party which can be held directly liable under Title III of the ADA, particularly 42 U.S.C. §12183, in regard to the Project, and it does not by entering into, or by being subject to, this Consent Order and Final Judgment, admit that it is so directly liable.


III. BACKGROUND

A. Pursuant to section 308 of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12188 (b) (1) (A) (i), the United States Attorney’s Office for the Eastern District of Pennsylvania undertook a compliance review of the Hyatt Regency construction project to determine if the hotel was being designed and constructed in accordance with the Standards. That review is ongoing.

B. As part of its investigation, the Department reviewed plans and documents for the Hyatt Regency dated July 16, 1999, labeled “One Hundred Percent Contract Documents”, but which underwent further revisions. Based upon its review of those plans and documents, plaintiff identified several features, elements, and spaces of the Hyatt Regency which it asserted failed to comply with the ADA’s standards. Because development of the Project was ongoing, the Department elected to issue findings prior to the completion of its review.

C. Thereafter, in an effort to resolve their differences expeditiously, plaintiff United States and defendants engaged in good faith negotiations, during the course of which additional drawings have been submitted. As a result of these negotiations, Defendants Penn and Brennan report that they made modifications to plans and/or corrected elements of the facility that were already constructed. The United States has not confirmed these modifications by a site review.

D. The parties have agreed to enter into this jointly proposed Consent Order and Final Judgment in the interests of compromise, thereby avoiding the cost and disruption of litigation.


IV. AGREEMENT OF THE PARTIES

Based upon the foregoing, and by the consent of plaintiff United States and defendants Penn and Brennan, it is hereby ORDERED and DECREED that:

A. Jurisdiction and Venue

1. This Court has jurisdiction over this action for the purposes of entering into and enforcing this Consent Order and Final Judgment under 42 U.S.C. § 12188(b)(1)(B) and 28 U.S.C. §§ 1331 and 1345. The Court may grant declaratory and other relief necessary to enforce this Order pursuant to 28 U.S.C. §§ 2201 and 2202.

2. Venue is proper in this district.

3. The Hyatt Regency is a non-residential facility whose operations affect commerce. As such, it is a commercial facility within the meaning of section 303(a) of the Act. 42 U.S.C. § 12183(a). In addition, because of the Hyatt Regency is a place of lodging, it is also a place of public accommodation within the meaning of sections 302 and 303(a) of the Act. Id.

4. The building permit for the Hyatt Regency issued on October 4, 1999.

5. A temporary certificate of occupancy issued on December 13, 2000 and portions of the hotel opened to the public on December 19, 2000.

6. Hyatt operates the Hyatt Regency within the meaning of section 302 of the Act, 42 U.S.C. § 12182.

B. Findings

7. As of the signing of this agreement, the United States has reviewed drawings at various stages of completion and construction documents provided by defendants Penn and Brennan. Based on the drawings and documents, the United States identified what it alleges are violations of the Standards as enumerated in Exhibit 1.

8. Based partially on the preliminary and subsequent findings presented by the United States in writing and in meetings, certain designs were revised in accordance with the Standards. Other revisions have been made as part of the normal course and scope of a construction project of this magnitude. The Defendant's response to the United State's list of alleged violations, including areas where remediation is allegedly complete, is attached as Exhibit 2.

9. As of the execution of this agreement, the United States has not conducted a site review to verify whether construction based on the revised drawings is in compliance with the Standards. This Consent Order sets forth provisions for resolving any remaining alleged violations that were noted in Exhibit 2, as well as those that may be found during a site review.

C. Remedial Actions to be Taken Prior to the Site Review

10. Defendant Brennan will provide the necessary architectural and normal structural, mechanical, and/or electrical engineering design services, and related administration services, to support the construction expressly provided for herein, and in the chart attached hereto as Exhibit 2, and to support the construction required in order to respond to any additional violations of the Standards, and resulting from Brennan’s services for the Project, that may be found to exist in any site reviews by the United States, so as to assist bringing the Project into compliance with the Standards. Defendant Penn will provide for the necessary construction and the completion thereof. Defendants Penn and Brennan will provide the Department with plans prepared for the United States’ approval in advance of the performance of any remedial work not already completed. Construction will not begin in these areas until the Department has approved the plans.

11. Within thirty days of the execution of this agreement, Defendant Penn will provide the United States with a final matrix of fully accessible rooms. Defendant Penn, with Brennans’ assistance as needed, will use its best efforts to obtain all necessary permits and/or approvals required to make rooms accessible in accordance with the matrix. Within (60) days of issuance of the necessary permits and/or approvals, Defendant Penn will provide for complete modifications as needed to ensure that Fully Accessible Rooms are dispersed as follows:

Floor

Type

View (room number)

5 Fully Accessible Junior Suite (King Bed) Southeast corner (511)
10 (or Higher) Fully Accessible Executive King Southeast or Southwest corner
11 Standard King (Roll-in shower) North (1106)
12 Standard King (Tub) North (1206)
13 Standard King (Tub) North (1306)
14 Standard King (Tub) North (1406)
15 Standard King (Roll-in shower) North (1506)
16 Standard King (Roll-in shower) North (1606)
17 Standard Double (Roll-in shower) North (1706)
18 Standard Double North (1806)
19 Business Double (Tub) North (1906)
20 Business Double (Tub) North (2006)
21 Executive King connected to Presidential Suite (Tub) Northeast (2108)
22 VIP (Roll-in shower) South (2215)


The rooms on the 19th and 20th floors will be equipped as business plan rooms, and the Fully Accessible Executive King on the 21st floor will connect to the Presidential Suite. Defendant Penn will also provide for modifications to the guest rooms as needed to ensure that the rooms for individuals with hearing impairments comply with the matrix attached hereto as Exhibit 3. Defendant Brennan will provide architectural and normal structural, mechanical, electrical and/or plumbing engineering services therefore, to the extent required as a result of Brennans’ services for the project.

12. Defendant Penn will provide for the modification of the Presidential suite to make the living, and dining areas as well as the kitchenette fully accessible. These areas shall meet all relevant provisions of the ADA Standards, including but not limited to, being on an accessible route within the meaning of the ADA Standards. Defendant Brennan will provide architectural and normal structural, mechanical, electrical and/or plumbing engineering services therefore, to the extent required as a result of Brennans’ services for the project.

13. Signage will be provided by Penn at the staircase located to the North of the switchback ramp indicating the existence and location of the ramp from the boardwalk to the Dock Street entry to the hotel. This signage will comply with the relevant provisions of the ADA Standards. Defendant Penn will submit to the United States for its review and approval, the wording, dimensions, proposed placement, and other ADA-required specifications of the signage within thirty days of the execution of this agreement. The agreed upon signage will be installed as soon thereafter as is practically possible.

14 (a). Within fifteen (15) days of the execution of this agreement, Defendants Penn and Brennan will provide the United States with concept drawings for two van accessible parking spaces, one to be located on the Dock Street oval driveway under the canopy and protected from vehicular traffic, and one to be located on Level 1 of the garage on the Walnut Street side of the garage. These spaces will comply with all relevant provisions of the ADA Standards, including, but not limited to, sections 4.1.2(5)(b) and 4.6.

14 (b). The United States will review these concept drawings and will notify Defendants Penn and Brennan within fifteen (15) days of its approval or disapproval of each element. Within twenty-one (21) days of notice of the United States’ approval of the concept drawings, Penn and Brennan will submit final construction documents to the United States for approval.

14 (c). Defendant Penn, with Brennan’s assistance, will use its best efforts to obtain all necessary permits and/or approvals required to complete construction of the van accessible spaces and will complete construction of the spaces within (60) days of issuance of the necessary permits and approvals except as noted in paragraph 21.

D. Site Review, Findings, and Remediation

15. The parties agree that within sixty (60) days of completion of any of the modifications required by paragraphs 11 through 14 and any outstanding items on Exhibit 2 to the Consent Decree, the United States will be permitted access to, and will perform a site review of, all completed aspects of the Project. Findings will be provided to the defendants outlining any additional violations of the Standards that may be found to exist.

16. Within 21 days of the issuance of the Findings of the site review, Defendant Penn will provide concept drawings (which will be prepared by Brennan to the extent their need is the result of Brennan’s services for the Project) addressing any additional violations identified as a result of the site review. If the defendants desire the United States to review alternative proposals for any area, they must all be submitted within this period. As for those Findings with which a defendant or defendants disagree, plaintiff and the disagreeing defendant or defendants shall proceed as set forth in Subpart G. Procedures in the Event of Non-Agreement.

17. Within 21 days of receipt of the concept drawings, the United States will notify Penn of its approval or disapproval of the concept drawings. Within 21 days of the United States’ approval of the concept drawings, Defendant Penn will submit final construction documents to the United States for approval. Defendant Brennan will prepare the architectural and normal structural, mechanical, electrical and/or plumbing engineering construction documents therefore to the extent the changes are required as a result of Brennan’s services for the Project.

18. Defendant Penn will use its best efforts to obtain any additional state or local permits and/or approvals necessary to complete the construction and/or remedial work as specified herein as subsequently approved by the Department of Justice to bring the Project into compliance with the Standards. Defendant Brennan will provide the necessary architectural and normal structural, mechanical, and/or electrical engineering design, and associated administrative services to Defendant Penn for such permits and/or approvals, to the extent they are required because of services that have been provided by Brennan for the Project.

19. The United States will be promptly notified of any problems that arise in the approval process and allowed to participate at its discretion in resolving these disputes with state and local entities.

20. Except as noted in paragraph 21, Defendant Penn, with Brennan’s assistance as required, will ensure that construction is completed within 180 days of the issuance of the necessary permits and/or approvals.

21. In the event that defendants are delayed in completing any item undertaken in this agreement or complying with any obligation pursuant to the terms of this agreement due to any acts of God, force majeure, strike, lock out, or any other condition beyond the reasonable control of defendants (hereinafter the “Conditions”) then the time for performing such work or complying with such obligation shall be extended for such reasonable time until after the Conditions end or substitute arrangements can easily be made by defendants for performance of such items or complying with such obligations as long as defendants provide written notice to the Department by certified mail at the address listed at the signature line of this document within 30 days of the onset of the specified Conditions.

22. Defendants Penn and Brennan will provide progress reports to the United States at 30 day intervals. The first report will be due 30 days from the date on which the United States notifies the defendants in writing of the approval of the final plans. The reports will terminate when all modifications required as a result of the site review are completed.

23. Within 45 days of completion of the entire project, the United States will be permitted access to and at its discretion, may perform a site review of the Hyatt Regency. In the event such a site review is undertaken, the United States will notify Defendants Penn and Brennan of any asserted non-compliance with this Consent Decree or the ADA and Defendants Penn and Brennan will rectify the issues within a time agreed on by the parties. In the event the parties cannot agree, the parties will proceed in accordance with the Procedures in the Event of Non-agreement.

E. Payments

24 (a). Within thirty (30) days after the Effective Date of this Consent Order, defendant Brennan shall make a payment in furtherance of the public interest in the amount of twenty five thousand and no/00 dollars ($25,000.00) to the United States Treasury (or a designated Fund).

24 (b). Within thirty days (30) days after the Effective Date of this Consent Order, defendant Penn shall make a payment in furtherance of the public interest in the amount of fifteen thousand dollars and no/00 dollars ($15,000.00) to the United States Treasury (or a designated Fund).

F. Training

25. Defendant Brennan agrees that its architects specializing in hotel/motel design who have not already received Department approved training within the preceding twelve months, will, within twelve months of the execution of this Consent Order, participate in a training program sponsored by Hecker Designs, LTD on accessible hotel/motel design. In the event of Hecker Designs, LTD unavailability, a program approved in advance by the Department may be substituted. Said training will be paid for by Brennan.

G. Procedures in the Event of a Non-agreement

26. If the parties disagree regarding any modifications that are not expressly provided for in this agreement, the parties will make a good faith effort to negotiate a resolution.

27. If the parties are unable to resolve the dispute between themselves, either party may elect to proceed to mediation by providing notice to the other parties. The mediation will be conducted by a mediator designated by ADR Associates. Unless the parties otherwise agree, they will be available for mediation within sixty (60) days of the receipt of the notification under this section of the Consent Order unless the mediator believes the circumstances warrant an extension of time. Neither party shall bring an action to enforce the Consent Order without first complying with this section. The costs of the mediation will be equally divided among, and paid by, the participating parties thereto.

28. Any civil action to enforce this Consent Order shall be filed in the U.S. District Court for the Eastern District of Pennsylvania. In a civil action to enforce this Consent Order, either Party may seek any appropriate relief, including an adjudication of contempt. In addition, the United States may seek relief under 42 U.S.C. § 12188(b)(2)(C).

H. Official Notices

30. All notices and reports required by this Consent Order shall be sent to the Parties at the following addresses or at such other address as the Parties may designate in writing in the future:

(a) For notices and reports to the Department:

James G. Sheehan, Chief
Civil Division
U.S. Attorney’s Office, Eastern District of Pennsylvania
615 Chestnut St. Suite 1250
Philadelphia, PA 19106

Nancy L. Griffin
Assistant U.S. Attorney
United States Attorney’s Office
615 Chestnut Street
Philadelphia, PA 19106

(b) For notices and reports to Penn and Hyatt:

Theodore L. White
Deutsch, Kerrigan & Stiles
755 Magazine Street
New Orleans, LA 70130-3672

Michael Sencindiver
Keating Development Company
One Bala Ave.
Bala Cynwyd, PA 19004

(c). For notices and reports to Brennan:

Louis Hedgecock
Brennan Beer Gorman Architects
515 Madison Avenue
New York, NY 10022

I. General Provisions

31. This Consent Order is a public document. A copy of this document, or any information contained herein, may be made available to any person.

32. This Consent Order shall govern the compliance of the defendants with respect to the matters raised herein.

33. This Consent Order shall be binding on the United States, Penn, and Brennan and their successors in interest and Penn, and Brennan have a duty to so notify all such successors in interest of the existence and terms of this Consent Order.

34. This Consent Order 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 any of the Parties or agents of any of the Parties that is not contained in this written Consent Order shall be enforceable regarding the matters raised herein.

35. This instrument reflects the entire agreement between the parties.




SO ORDERED this 26 day of September , 2002.


__________________________
United States District Judge


AGREED AND CONSENTED TO:


FOR UNITED STATES OF AMERICA:


For Plaintiff United States of America:




















PATRICK MEEHAN
United States Attorney

__________________________
JAMES G. SHEEHAN
Assistant United States Attorney
Chief, Civil Division


__________________________
NANCY L. GRIFFIN
Assistant United States Attorney
United States Attorney's Office
Eastern District of Pennsylvania
65 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Phone: (215) 861-8250
Fax: (215) 861-8594


For Defendant Penn's Landing Partners:














MICHAEL SENCINDIVER
Vice President
Penn's Landing Partners
Suite 400
One Bala Avenue
Bala Cynwyd, PA 19004


__________________________
THEODORE L. WHITE
Deutsch, Kerrigan & Stiles
755 Magazine St.
New Orleans, LA 70130-3672


For Defendant Brennan Beer Gorman:





Louis Hedgecock
Brennan Beer Gorman Architects
515 Madison Avenue
New York, NY 10022




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EXHIBIT 1

Violations List


The following is a list of violations of the Americans with Disabilities Act Standards for Accessible Design. 28 C.F.R. pt 36, Appendix A; based on a review of drawings proffered by Penn's Landing Partners. The list is inclusive of all items observed, whether or not they may have been addressed in later iterations of drawings, revisions of drawings, or during construction.

Violations

Accessible Loading Zone

1. The front entry passenger loading zone access aisle required for the accessible loading zone exceeds 1:50 (2%) slope, and lacks a sign designating it. (Standard 4.6.6 and 4.1.2(7)(b))

2. The walkway from the loading zone to the front entry exceeds 1:50 (2%) slope. When this entry is approached from the side, as it is when arriving from the switchback ramp, this portion of the walkway is one with a non-compliant cross slope exceeding 1:50. (Standard 4.3.7)

Accessible Routes to the Hotel Entry

3. Accessible Routes - The design does not provide compliant accessible routes from parking lots, public transportation stops, and public streets to the accessible entry of the building, coinciding to the maximum extent feasible with the route of the general public as follows. There is an interior accessible route indicated at the Basement Level of the hotel from the garage via a Lobby Elevator that is not fully compliant. (Standard 4.3.2)

(a) Garage Accessible Parking to Hotel Lobby In the Garage - There is no accessible route from the garage to the hotel lobby. An interior accessible route connecting to the accessible parking stalls is implied along the Valet vehicular drive in the basement that is indicated by a painted stripe. An accessible route cannot be in a vehicular route, except as a striped crosswalk. A separate accessible pedestrian route is required between designated accessible parking access aisles and the Lobby Elevator Entry. (Standard 4.3.2 and 4.6.3)

(b) Boardwalk to Main Hotel and Restaurant Front Entries on Dock St. - The accessible route from the public sidewalk (Boardwalk) to the Restaurant entry does not coincide with the more direct stair route the general public can take from the Boardwalk. The accessible route requires wheelchair users arriving from the northern approach to the Boardwalk to use a lengthy route of Boardwalk, switchback ramp and walkway that is far longer than the direct route via stairs that the public can use. The general public can use the stairs to the north of the switchback ramp to the main entry level. (Standard 4.3.2)

(c) Boardwalk to Restaurant Terrace - There is no accessible route via ramp or elevator between the Terrace and the Boardwalk. The obvious route for the general public between the Terrace and Boardwalk (5'-8" level change) is the stairs located in the middle of the length of the Terrace. The route does not coincide to the maximum extent possible with the route the general public can take from the Boardwalk. (Standard 4.3.2)

(d) Boardwalk from the Garage - The route does not coincide to the maximum extent feasible with the route the general public can take from the Garage to the Boardwalk. (Standard 4.3.2) The general public using the garage can exit the garage directly to the Boardwalk as pedestrians from either the first floor or basement floor via one flight of stairs down or up respectively. Additionally, there are no accessible exits from the Garage nor an accessible route to an exit. (Standard 4.1.3(8)(ii) and 4.6.3) Accessible pairs of parking stalls are located adjacent to the elevators on the Basement floor and floors 2-5. The first floor accessible stalls are located adjacent to the opposite (north) end vehicular entry to the garage (Walnut St.) Disabled customers going to the Boardwalk from accessible stalls would have to traverse the full length of the sloped garage, and exit via the sloped vehicular exit lane. A vehicular lane is not an accessible route, except at a crosswalk.

(e) Access from public transportation - Columbus St. sidewalk to Dock St Front Entry - The accessible route from the sidewalk and public transportation to the entry does not coincide to the maximum extent feasible with the route the general public can take. (Standard 4.3.2) The accessible route shown from the sidewalk on Columbus St. requires wheelchair users to go around the south, east, and half the north sides of the courtyard driveway, rather than the more direct route from the sidewalk on the north side of the courtyard. The north side from the sidewalk appears to be a non-compliant ramp slope (but not designed as a ramp with handrails), and the walk lacks curb ramps enabling a wheelchair user to cross the valet driveway opening.

(f) Curb Ramps - The original drawings do not show required curb ramps at the following locations: Dock St. entry driveway, at breaks in the Columbus St. sidewalk at the loading dock, and at the garage entry driveways at Walnut St. that would enable crossing the vehicular exit. (Standard 4.7.1; 4.7.5 and Fig. 13) Revised Civil drawing does show curb ramps added at the sidewalk at the entry driveway and at the sidewalk breaks for the loading dock. The civil drawing appears to have curb ramps of unusual configuration due to the angled curb line and the loading dock, and we cannot confirm if the side slopes meet Standard 4.7.5.

Accessible Parking Spaces

4. The accessible parking spaces on Level 1 of the garage are not located on the shortest accessible route to the hotel lobby entrance. The accessible parking spaces serving a particular building must "be located on the shortest accessible route of travel from adjacent parking to an accessible entrance." (Standard 4.6.2) The design also requires users to use the vehicular lane as an accessible route, which is not compliant. (Standard 3.5 - Definition of Accessible Route) The access aisles must be part of an accessible route. (Standard 4.6.3) There is no accessible means of egress from the Garage. (Standard 4.6.2)

5.Van Accessible Stalls - There are no van accessible parking stalls shown in the drawings of the garage dated January 16, 1999. Further, the garage as constructed can not accommodate van accessible spaces because of inadequate vertical clearance. A height of 98" is required at the parking spaces and along at least one vehicular access route between the spaces and an entrance and exit. One in every eight accessible spaces must be van accessible. In this instance, two van accessible spaces are required. (Standard §§ 4.1.2(b)& 4.6.2).

Slope of Ramps and Curb Ramps

6. The employee/service entry ramp on the ground floor has a non-compliant slope of 1:10 (10% slope). The least possible slope must be used for a ramp, and the maximum allowable slope is 1:12 (8.33%). (Standard § 4.8.2 and Figure 16)

7. The curb ramps to all garage elevator areas on all garage levels exceed 1:12 (8.33%) slope and project into the vehicular way. The typical curb ramp detail does not indicate that when the landing area at the top of the curb ramp is less than 4', the side flares must be a maximum of 1:12 (8.33%) slope. (Standard 4.7.2, 4.7.5, and 4.7.6)

Quantity of Accessible Rooms

8. Accessible Rooms for individuals with Hearing Impairments - Originally, only 5 rooms were provided for people with hearing impairments. Three additional rooms are required, for a total of eight rooms for people with hearing impairments. (8 required per Standard 9.1.3 for 350 room hotel)

9.Fully Accessible Rooms - The required quantity of accessible rooms was
not provided. One required fully accessible room for persons with mobility impairments and hearing impairments was not provided. Rooms with roll-in showers were not designated on drawings. (i2 fully accessible rooms required, of which 4 must have roll-in showers) Additionally, rooms for individuals with hearing impairments must be equipped with visual alarms, notification devices, and telephones, and must have available text telephones (TTYs or TDDs) and closed captioned televisions. These are not indicated on the drawings. (Standard 9.1.2 and 9.2.2(8)).

Distribution of Accessible Guest Rooms

10. The distribution of accessible rooms does not provide the full range of options available to the general public. People with disabilities must "have a range of options equivalent to those available to other persons served by the facility...". (Standard 9.1.4) Accordingly, accessible rooms must be dispersed throughout the facility and among the classes of accommodations, which includes cost, size, number of beds and amenities. Plans show most accessible rooms do not have the amenity of river view or downtown skyline view. All the rooms for people with hearing impairments are stacked and located on the lower floors of the building, below the eighth floor. One accessible junior suite is provided. One additional suite is selected to be an accessible one, and it is a Conference Suite of lesser quality and amenity than Presidential and VIP suites. No accessible Executive Suite is provided. One accessible room of each of the classes is not provided.

Access to the Terrace from the Restaurant

11. The restaurant has direct access to the terrace (with dining tables) via a flight of interior stairs. The accessible route does not coincide with the route for the general public. Individuals who are unable to negotiate the stairs must leave the restaurant to access the
terrace via an exterior ramp at the front of the hotel. Standard section 4.1.3(1), in conjunction with standard Sections 4.3.1 and 4.3, requires that "the accessible route shall, to the maximum extent feasible; coincide with the route for the general public." The restaurant cannot have sunken seating sections without an accessible route to them. (Standard 5.4)

12. The handrails at the restaurant stairs lack compliant handrail extensions. (Standard §4.9.4(2)

Third Floor Meeting Room Entry Doors Issues

13. Five meeting room entry doors, specifically D5, D5A, D18, D19 & D 10A, lack the required maneuvering room clearances for a front approach. (Standard 4.13.6 and Figure 25)

Men's and Women's Staff Locker Rooms

14. The drawings do not depict adequate clear floor space within the locker areas. (Standard 4.35.2)

15.The locker rooms drawings do not depict any details defining placement and structural requirements for a bench within the dressing room. (Section 4.35.4)

Men's Staff Locker Room

16. The Men's Locker Room entry privacy wall lacks 48" clear width for the accessible route turning around the privacy wall. (Standard 4.3.3 and Figure 7(b))

Men's & Women's Public Lockers (Pool Area)

17. There is no access to the lockers located in an alcove because the clear width is less than 5' required for an alcove. (Standard Figure 4 e))

Restroom and Shower Accessibility Issues

18. Drawings applicable to all public restrooms do not reference any pipe insulation to protect the user against contact with the hot water and drain pipes at lavatories. (Standard 4.19.4)

19. There are six or more stalls in the 2ndFloor Men's and Women's Restrooms. Thus, a stall is required that is at least 36 inches wide with an outward swinging, self closing, door and parallel grab bars, in addition to the accessible stall. (Section 4.22.4; Fig. 30(d) and 4.26)

20. An accessible route has not been provided to the employee restroom adjacent to the Pot Washing area of the Kitchen, through the doors of the Beverage and Display Kitchen area. The accessible route must be provided to these employee areas. The recessed configuration and lack of 48 inch maneuvering clearances at kitchen doors to the restaurant impedes the accessible route to the toilet. (Standard 4.13.6 and Figure 25(a); 4.1.3(1) and (7))

21. The bathrooms in the guest rooms designated as Room 511 (ADA-1) and Room 2215 (ADA-2), as well as the Men's 3rdFloor Public restroom do not comply with the standards. They lack an unobstructed turning space of 60" within the room. (Standard 4.22.3 and 4.2.3)

22. The bathroom in room 511 has the toilet side grab bar placed in front of a window. Room 511 drawings depict the space between the grab bar and the glazing, which would appear to be greater than the 1-1/2" from the adjacent wall surface, which is non-compliant. There are also some safety concerns that an individual transferring from a wheelchair could exert considerable lateral force against the glazing, and the plans do not indicate the composition or strength of the glazing. (Section 4.26.2 and implied overall safety concerns as demonstrated in 4.26.3)

23. The framed decorative mirrors may not have the edge of the reflecting surface higher than 40" above the finished floor. (Standard 4.19.6) Neither the drawings nor the specifications identify the material composition of the frame or its dimensions, so we are concerned that it is not correctly dimensioned to the reflecting surface.

24. Transfer seats were not shown on drawings for all accessible showers and tubs. (Standard 4.20.3 (Figures 33 and 34), Standard 4.21.3 (Figure 35 through 37), Standard 9.1.2 (Figure 57)

25. The drawings for the accessible bathrooms have non-compliant control mechanisms for the bath tubs and showers and incorrect mounting locations. (Standard 4.20.5 (Figure 34)) The control panel for the tub in an accessible bathroom shall be at the foot of the tub beneath the grab bar. Section 4.21.5 (Figure 57) details the standard for shower controls. Standard Section 4.2.5 provides that the maximum high forward reach allowable is forty-eight inches. Drawings of the Accessible Suite 2215 and details are insufficient to determine whether the bathroom showers meet the standard of section 9.1.2, Figure 37.

26.The showers in accessible guest rooms are shown as fixed, not folding, seats. (Standard 4.21.3) 27. The sink in the kitchenette counter top in the accessible Suite 2215 does not have the minimum required 27" knee space. (Standard §4.32.3 and Figure 45)

Doors in a Series and Turnaround Area

28. The are doors in a series with inadequate space between the doors in the locations noted below. The minimum space between two doors in a series must be forty-eight inches plus the width of any door which swings into the space. The doors must either swing in the same direction or both doors can swing away from the space between two doors.

(a) Entry from the Hallway into the Vestibule serving two guest rooms including Room 511 (Type ADA-1); and

(b) Women's Staff Locker Room Vestibule doors.

29. The Vestibule for Room 511 in Item 31 a) above additionally appears to be too small to have a 60" turnaround or T-shaped compliant turnaround, which could potentially cause a customer to be trapped in the vestibule. (Standard 4.2.3)

Projector Room

30. There is not an accessible route depicted in the plans from one end of the projection room to the other. Interior Door D31 has non-compliant door maneuvering room less than 48" for a latch side approach. (Standard 4.13.6 (Figure 25 c) )

Sauna

31. The revised, annotated version of the Amerec catalog shop drawing, 100076BO shows a 60" turning radius only when the lower "retractable" bench is removed. The drawing is not sufficiently detailed to demonstrate whether the bench operates in a manner that makes the sauna accessible to a wheelchair user unassisted. The height of the benches is not designated. Further, the shop drawing does not detail the types of controls.

The architectural drawings provided were insufficient to evaluate for compliance with the standards, with respect to the location, dimension and elevation of all benches within the Sauna. (Standard 4.32)

Laundry room

32. The drawings provided did not indicate the location and dimensions of washers and dryers, which could make the accessible route or maneuvering space non-compliant. (Standard 4.3.3 and 4.2.4)

Assistive Listening Devices for meeting Rooms

33. We observed no indication on architectural drawings that provisions for an assistive listening system at meeting rooms have been made. (Standard 4.1.3(19)(b))

Accessible Sales and Service Counters

34. Accessible section of registration desk, concierge desk and coffee bar - The registration desk, concierge desk and coffee bar do not appear to have a lowered 36" high section of counter for transactions. (Section 7.2.)

Food Service Lines

35. The buffet tray line at the restaurant appears to be higher than the 34" maximum allowable. (Section 5.5)




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EXHIBIT 2

Defendant's Response
(to be verified by Field Survey)


Para. # Issue

Comment

Status as Alleged by Defendants
1,2 accessible loading zone Copeland surveyed area to determine if acceptable; review pending review of slopes pending
3a non-compliant route from accessible parking to lobby accessible route (sidewalk with curb) has been provided remediation completed
3b accessible route from boardwalk to entry stairs have been eliminated per SKA - 171 remediation completed
3c accessible route from boardwalk to terrace;
see Consent Decree paragraph C.15
stairs have been eliminated per SKA - 171 remediation completed
3d accessible route from garage to boardwalk;
see Consent Decree paragraph C.14
door has been alarmed and equipped with emergency exit only sign remediation completed
3e access from public transportation sidewalk removed remediation completed
3f curb ramps not fully accessible ramps fully accessible ok as designed & built
4 no accessible route from accessible parking spaces at northern end of garage accessible route provided for accessible spaces at northern end of garage remediation completed
5 no van accessible spaces provided in garage;
see Consent Decree paragraph C.18.a.1
BBG Bulletins 20E and 20F address the garage van accessible space (drawing 3A-2); civil engineering work to be provided by Pennoni Associates remediation pending
6 non-compliant slope of employee/service ramp on ground floor slopes comply per survey ok as designed & built
7 non-compliant curb ramp to all garage elevator areas on all levels slopes comply per survey ok as designed & built
8 accessible rooms - hearing impairments; only have 5 rooms, need 3 more will incorporate into final room matrix remediation pending
9 fully accessible rooms - need to increase the number will incorporate into final room matrix remediation pending
10 distribution of accessible rooms does not provide full range of options will incorporate into final room matrix remediation pending
11, 12 access to the terrace from the restaurant is not the same as for the general public; handrails at the stairs are non-compliant; see Consent Decree paragraphs C.16 and C.18.a.3 modified per approved SKA-171 remediation complete
13 five meeting room entry doors lack required maneuvering room clearances accessible maneuvering room clearances exist design clarified & ok as built
14, 15 locker room benches and clearances do not comply 1 bench in each locker has been removed - punch list item remediation completed
16 men’s locker room privacy wall lacks 48" clear width work completed - punch list item remediation completed
17 men’s and women’s public lockers lack access due to clear width less than 5' required in an alcove area modified to provide required turning radius - punch list item remediation completed
18 public restrooms do not show pipe insulation pipe insulation has been provided - punch list item ok as designed & built
19 in the men’s and women’s 2nd floor restrooms, a 36" wide stall with an outward swinging, self closing door and parallel grab bars is required in addition to the accessible stall ambulatory stall installed - punch list item design clarified & ok as built
20 no accessible route to the employee restroom adjacent to the pot washing area, through the doors of the beverage and display kitchen area design revised remediation pending
21 guestroom bathrooms 511 and 2215 and men’s 3rd floor public restroom lack unobstructed 60" turning space within the room required turning radii provided ok as designed & built
22 guest room bathroom 511 has toilet side grab bar in front of window ; drawings depict space between grab bar and glazing as exceeding the 1 1/2" space between the grab bar and the wall; safety concerns about an individual exerting considerable lateral force against the glazing and the plans do not indicate the composition of strength of the glazing a 10" drywall partition has been constructed behind the grab bar; space does not exceed 1 1/2"; strength/safety of glazing is not an ADA issue - punch list issue

remediation completed

23 framed decorative mirrors may not have the edge of the reflective surface higher than 40" mirrors moved - punch list issue remediation completed
24 transfer seats were not shown on drawings for all accessible showers and tubs owner provided item ok as provided
25 drawings show non-compliant control mechanisms and incorrect mounting locations for accessible bathtubs and showers Moen 2343 “Monticello” control mechanisms are correctly installed and are ADA compliant - controls provided are compliant as revised remediation completed as revised
26 showers in accessible guest rooms are shown as fixed, not folding seats installed seats are folding design clarified - ok as built
27 sink in the kitchenette counter in accessible suite 2215 does not have the minimum 27" knee space minimum knee space of 27" is provided; compliant as revised ok in revised design & ok built
28a inadequate space between doors in a series in the entry from hallway into the vestibule serving room 511 doors are offset enough that they do not qualify as doors in a series ok as designed & built
28b inadequate space between doors in a series at the women’s staff locker room vestibule doors one of the doors was altered to swing out - punch list issue remediation completed
29 vestibule for room 511 appears to be too small to have a 60" turnaround area has been surveyed and 60" turnaround is provided ok as designed & built
30 no accessible route from one end of the projection room to the other; interior door D31 has a non-compliant door maneuvering room not public space; however, lift installed as per plans; there will not be any equipment blocking the accessible route; noncompliant door D31 removed - punch list issue accessible route ok as revised & ok as built
31 concerns about sauna turning radius; height of benches not detailed; no detail on types of controls design clarified ok as installed
32 no indication of location and dimensions of washers and dryers there is no laundry room n.a
33 no assistive listening devices for meeting rooms shown on drawings owner provided item provided per event as required
34 registration desk, concierge desk and coffee bar do not appear to have a lower 36" high section of counter for transactions coffee bar designed, and redesigned, by Culpepper; registration desk will be handled through equivalent facilitation at the concierge desk (see ADAAG Sec. 7.2 (2) (ii) or (iii); concierge desk to be redesigned and provided with point of sale equipment to handle all registration requirements coffee bar ok as redesigned & built; registration/ concierge desk remediation pending
35 buffet tray line at the restaurant appears to be higher than 34" maximum allowable within allowable construction tolerance ok as designed & built





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EXHIBIT 3

HEARING-ACCESSIBLE ROOMS



ROOMS: 514
611
614
711
714
1712
1812
1912

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April 3, 2003