VOLUNTARY COMPLIANCE AGREEMENT
THE UNITED STATES OF AMERICA
Vornado/Charles E. Smith L.P., a Virginia limited partnership on behalf of Crystal City Shops and Underground
WHEREAS, the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 §§ 12181-12189, 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); 28 C.F.R. § 36.201(a);
WHEREAS, the term “public accommodation” under the ADA includes a “shopping center,” 42 U.S.C. § 12181(7)(E);
WHEREAS, the ADA authorizes the United States Attorney’s Office for the Eastern District of Virginia (the “United States”) to investigate alleged violations of Title III, and to undertake reviews of compliance of covered entities pursuant to 42 U.S.C. § 12188(b)(1)(A)(i);
WHEREAS, pursuant to its authority under 42 U.S.C. § 12188(b)(1)(A)(i), the United States has requested information from the owners and operators of the Crystal City Shops and Underground (“Crystal”), in connection with a compliance review of the shopping center;
WHEREAS, the United States conducted a limited site inspection of certain features and facilities within Crystal;
WHEREAS, the United States and Crystal share the goal of ensuring that Crystal operates in compliance with Title III of the ADA and its implementing regulations, 28 C.F.R. part 36; and
WHEREAS, in light of the actions taken by Crystal to date to comply with the ADA, and the actions that Crystal has agreed to take 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 Crystal;
NOW, THEREFORE, IT IS HEREBY AGREED, BY AND BETWEEN THE UNITED STATES OF AMERICA AND THE OWNERS AND OPERATORS OF CRYSTAL, AS FOLLOWS:
APPLICATION AND PARTIES BOUND
- Crystal is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7) because, among other things, it is a “shopping center.” 42 U.S.C. § 12181(7)(E); 28 C.F.R. § 36.104.
- Crystal is an interior pedestrian concourse that connects underground and grade level retail shops, service establishments, pharmacies, professional offices of health care providers, a theater, hotels, office buildings, residential buildings, parking garages and the Crystal City Metro Station. The pedestrian concourse spans from 12th Street to 23rd Street in Arlington, Virginia, and is composed of five sections connected by tunnels.
Section A - Crystal Shops at Crystal Park Section
B - Shops at 2100 Crystal Drive Section
C - Shops at the Mall
Section D - Shops at 1750 Crystal Drive
Section E - Shops at Gateway
An underground pedestrian concourse and tunnels connect Sections B through E.
- Crystal was designed and constructed for first occupancy prior to January 26, 1993, and is an existing facility pursuant to Title III of the ADA. There have been some alterations since January 26, 1992, however, Crystal has been unable to provide complete information on these alterations.
- Vornado/Charles E. Smith L.P., (the “Operator”) is a public accommodation within the meaning of Title III of the ADA because it operates the shopping center commonly known as Crystal City Shops and Underground, a place of public accommodation. See 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104. Operator represents that it is authorized by the owners of Crystal to execute this Agreement on behalf of itself and the owners of Crystal.
- This Agreement shall apply to all common areas within Crystal that are open for public use. This includes, but is not limited to: public entrances, assembly areas, toilet rooms, elevators, and corridors. This Agreement shall not apply to areas rented by individual retail establishments, including stores and restaurants, and shall not apply to non-public use areas.
- This Agreement shall be binding on the Owner and the Operator, and each of their agents and employees. In the event the Owner and/or Operator seeks to transfer or assign all or part of their interest in the shopping center, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale the Owner and/or Operator shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
- For purposes of this Agreement, the term “2010 Standards” means the 2010 ADA Standards for Accessible Design, see 28 C.F.R. § 36.104 (defining the 2010 ADA Standards as the requirements set forth in appendices B and D to 36 C.F.R. Part 1191 and the requirements contained in 28 C.F.R. §35.151).1
- For purposes of this Agreement, the term “1991 Standards” means the 1991 ADA Standards for Accessible Design, 28 C.F.R. Part 36, App. D (2011).
- For the purposes of this Agreement, the term “Effective Date” means the date this Agreement is executed by all parties.
- For purposes of this Agreement, the term “accessible” means in compliance with the 2010 Standards. However, for elements of Crystal that were in existence on the Effective Date, the term “accessible” means in compliance with either the 1991 Standards or the 2010 Standards.
- For purposes of this Agreement, the term “alterations” means a change to the shopping center 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. See 28 C.F.R.
- Crystal shall ensure that certain public entrances are accessible to, and usable by, persons with disabilities, including persons using wheelchairs or other mobility devices, pursuant to Sections 206.4, 206.5, and 402.2 of the 2010 Standards unless the particular entrances were in existence, and accessible, on the effective date. For purposes of this Agreement, Crystal shall maintain the public exterior and interior entrances to the Shops and public parking garages identified in Composite Exhibit A with "ISA." Each of these accessible entrances shall be identified by the International Symbol of Accessibility. See the 2010 Standards §§ 216.6 and 703.7.2.1. For those entrances, including entrances from the parking garage that are not accessible, directional signs that indicate the location of the nearest accessible entrance to the shops and public parking garage entrances shall be provided as set forth in Composite Exhibit A. See the 2010 Standards §§ 216.6 and 703.5; 1991 Standards §4.1.6(1)(h).
PATH OF TRAVEL
- Crystal shall install a new lift at the stairs immediately in front of the Crystal City Marriott Lower Level Lobby entrance in order to provide an accessible route from the accessible plaza level approach from the Section D Area via the elevator at 1800 South Bell Street through the tunnel leading to Crystal at 2100 (C Area). See the 1991 Standards §§ 4.1.3(8)(b)(ii), 4.14.1 and 4.3 & 2010 Standards §§ 206.3, 206.4.3, 206.7, 402.2 and 410.
- Throughout the public areas of the complex, Crystal will replace, screen-off, or provide cane-detectable warning elements for any light fixtures and signs that protrude more than 4 inches horizontally from the wall into the circulation path at elevations between 27 inches and 80 inches above the finished floor ("a.f.f."). See the 2010 Standards §§ 204.1 and 307.
- The owners and operators of Crystal recognize that there is presently no vertical accessibility (and by extension no accessible route) to four stores in Section D due to steps: Woman in Motion, Coqui Boutique, Possessions and Puppet Heaven ("Inaccessible Retail Space"). Crystal contends that these steps are necessary due to the configuration of the garage below and that installing a lift leading to these stores would not be readily achievable because it would block the retail windows for Dress Barn and/or Daniel's Boutique. Crystal is aware that the barrier removal obligation under Title III of the ADA is a continuing obligation such that if a certain barrier is not readily achievable to remove at a certain point in time then regular evaluations should be made to determine when it would be readily achievable to remove that barrier. Crystal agrees that when these respective tenants that do not have accessible entrances on an accessible route due to the presence of steps go dark, and the successor tenants who will be occupying these tenant spaces open for business, these tenant spaces will have an accessible entrance on an accessible route including any required vertical accessibility under the ADA. In this context, Crystal plans to perform an alteration to the parts of Section D including, but not limited to the area of Section D containing the Inaccessible Retail Space. The tenants in the Inaccessible Retail Space will close for business in their current locations no later than the Completion Date as defined in Section 32 below. From that time forward there will be no tenants open for business in the Inaccessible Retail Space until the alteration has been completed so that the successor tenants have accessible entrances on an accessible route as set forth in the 2010 Standards.
- For the ramp to the Crystal Drive Pedestrian Concourse (near "Holistic Point"), Crystal will add accessible handrails and install a lift gate at the electrical closet door on this ramp. See 1991 Standards §§ 4.1.3(1), 4.3.7 and 4.8.5; 2010 Standards §§ 206.2.4, 402.2, 405.8 and 505.
- For the ramp leading to the Section D-E tunnel, Crystal will add handrails that are compliant with the ADA standards. See the 1991 Standards §§ 4.1.3(1), 4.3.7 and 4.8.5; 2010 Standards §§ 206.2.4, 402.2, 405.8 and 505.
- For the ramp in the Alley Shops Pedestrian Concourse, Crystal will install a new rail within 4 inches of the surface of the ramp along the open railing side to act as edge protection. See the 1991 Standards §§ 4.1.3(1), 4.3.7, 4.8.7 and Fig. 17; 2010 Standards §§ 206.2.4, 402.2 and 405.9.
- Crystal recognizes that the tunnel ramp leading to Section E from Section D exceeds 30 feet. See 1991 Standards §§ 4.1.3(8)(b)(ii), 4.1.3(1), 4.14.1, 4.3.7, 4.8.2 and Fig. 16; 2010 Standards §§ 206.2.4, 206.3, 206.4.3, 402.2 and 405.6. Crystal contends that due to limited ceiling height in an area that pre-dates the ADA, it would be problematic to insert landings as necessary to break up the runs. For this tunnel ramp, Crystal will install ADA compliant handrails on these ramp sections. 2010 Standards §§ 405.8, 505.
- In the Section E tunnel, Crystal will install accessible handrails on the face of the existing inaccessible 2x board handrails along this sloped path or otherwise provide accessible handrails along this sloped path. See the 1991 Standards §§ 4.1.3(1), 4.3.7, 4.8.5 and 4.26.2.; 2010 Standards §§ 206.4.3, 402.2, 405.8 and 505.
- Crystal will make modifications to ensure that its toilet rooms are accessible. The slope of the ramps from the corridor to the men's and women's toilet rooms located in Section B in the Shops @ 2100 shall have a running slope not steeper than 1: 12 unless on the Effective Date the ramps were compliant with Sections 4.6.6(3)(a) of the 1991 Standards. See the 2010 Standards §§ 206.2.4, 402.2 and 405.2.
- Crystal will ensure that toilet room trash cans are located such that a minimum of 54 inches is provided perpendicular to the door for a latch side approach to pull open a door equipped with a closer. Alternatively, Crystal will provide an automatic door opener if it cannot otherwise comply with the required door maneuvering clearance. See the 2010 Standards §§ 206.5.2, 404.2.4 and 404.3.
- Crystal will ensure that the mirrors in its toilet rooms that are located above accessible lavatories or countertops shall be mounted with the bottom edge of the reflecting surface no higher than 40 inches above the finish floor. In lieu of lowering mirrors over accessible lavatories, Crystal may install additional mirrors that are not located above the accessible lavatories or countertops which have the bottom edge of the reflecting surface 35 inches maximum above the finished floor or ground or full-length mirrors. See the 2010 Standards §§
213.3.5 and 603.3, and Advisory 603.3.
- Crystal will ensure that outside handrails in parking garages extend horizontally above the landing for 12 inches minimum beyond the top and bottom of ramp runs. Extensions shall return to a wall, guard, or the landing surface, or shall be continuous to the handrail of an adjacent ramp run. See the 2010 Standards §§ 206.2.4, 206.4.2, 402.2, 405.8 and 505.10.1.
- In the 20th Street Public Parking at the Entrance to the 20th Street Pedestrian Concourse: Crystal will convert the 4 standard parking spaces (immediately left of the existing two accessible parking spaces) into two van accessible parking spaces. See the 2010 Standards §§ 208 and 503.
- Crystal will ensure that all accessible parking spaces shall be identified by a sign containing the International Symbol of Accessibility and, when appropriate, "van accessible." The signs shall be located 60 inches minimum above the finish floor or ground surface measured to the bottom of the sign so that it cannot be obscured by vehicles parked in the space. See the 2010 Standards § § 216.5, 502.6 and 703.7.2.1.
- Crystal will relocate the designated accessible entrance from the garage door nearest to the Crystal City Marriott Parking Garage to the eastern door immediately adjacent to the designated parking spaces or create a new accessible entrance in the same general area. Crystal will install a ramped approach from the garage to the new designated accessible entrance and directional signs at the existing door. See the 2010 Standards §§ 206.2.4, 206.4.2, 402.2, 405, 216.6 and 703.5.
- In the 1800 South Bell Street Parking garage, Crystal will relocate accessible parking spaces to a more level portion of the garage near the elevator lobby so the approach route uses the recently installed platform lift. These new spaces will be designated as accessible parking only by signs that comport with the ADA and the City of Arlington, Virginia, regulations. See the 1991 Standards § § 4.1.2(5) and 4.6.4.; 2010 Standards § § 208, 502, 216.5, 502.6 and 703.7.2.1.
- Crystal will abandon the designated accessible entrance for the parking garage entrance to the pedestrian concourse between Sections B and C. Crystal will compensate for the loss of the accessible parking space by the addition of two new accessible parking spaces adjacent to the actual accessible entrance to the mall near the pay station. See the 2010 Standards §§ 208 and 503.
POLICIES, PRACTICES AND PROCEDURES
- Crystal shall provide maps that identify accessible entrances and routes. These maps shall be available to the public on Crystal's web site, in paper format, and in the same locations as maps that are displayed throughout the shopping center.
- The Owner and Operator acknowledge and agree that any alteration to Crystal shall comply with the 2010 Standards2 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 Crystal 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 or other mobility devices, unless the cost and scope of such alterations is disproportionate to the cost of the overall alteration as set forth in 28 C.F.R. § 36.403. The Owner and Operator agree to notify the United States, in writing, of any alterations to those areas of Crystal described by, and not excluded by, paragraph 6 of this Agreement, 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.
MONITORING AND COMPLIANCE, AND FORCE MAJUERE
- Except as set forth in this Agreement, one hundred and eighty days after the effective date of this Agreement ("Completion Date"), Crystal shall complete all remedial steps specified by this Agreement and provide to the United States a narrative report with photographs of the actions it has taken to effectuate the remedial steps in the Agreement. Further, Crystal shall provide the United States with copies of the maps showing the accessible entrances and routes that it has created pursuant to this agreement, along with screen shots of the maps on its web site and photos of the new maps within the facility.
- Notwithstanding Paragraph 32, if the Modifications are not completed on or before the Completion Date due to acts of God, third parties, or reasons beyond the control of Crystal (including, but not limited to, delay in obtaining or inability to obtain building permits, delay in obtaining or inability to obtain the consent of any other necessary person or entity whose consent is required pursuant to any agreement affecting the Property, failure of government inspectors to make inspections, shortages in construction materials, contractor defaults, work stoppages due to labor-related disputes or weather conditions), then Crystal shall be allowed additional time in which to complete the relevant Modifications and shall not be deemed to be in violation of the Completion Date, provided that Crystal gives written notice to United States of the delay, the reasons for the delay, and the anticipated date of completion, and makes a good-faith effort to effect implementation as soon as practicable.
- If any of the Modifications are not deemed possible due to any local Authority Having Jurisdiction ("AHJ") refusing to grant the necessary permits for life safety reasons, Crystal will attempt to perform the work required to the maximum extent feasible. If the resulting modification would not result in the accessibility as contemplated by the corresponding provision in this Agreement, Crystal will notify the USAO that it cannot perform the required modification as stated and will meet and confer with the USAO to determine an alternative modification to the extent required under the ADA and in a manner that is readily achievable and not technically infeasible.
- Every year during the term of this Agreement on the anniversary date of the effective date of the Agreement, Crystal shall provide to the United States a narrative report of the actions taken during the reporting period to remove any barriers to access and otherwise enhance accessibility for individuals with disabilities at Crystal and any plans for action concerning ADA compliance in the coming year. The report shall include as an exhibit copies of any complaint, whether formal or informal, received during the reporting period alleging that Crystal was not being operated in compliance with the ADA or otherwise discriminated against any person on account of disability.
- The Owner and Operator of Crystal shall cooperate in good faith with any and all reasonable requests by the United States for access to Crystal and for information and documents concerning Crystal's compliance with this Agreement and the ADA.
- 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 Crystal and communications with Crystal's employees. The United States shall have the right to inspect the facility at any time. However, during the period of November 15 through January 5, barring exigent circumstances (which shall be determined in the United States' reasonable discretion), the United States shall not conduct formal inspections without providing Crystal with 48 hours notice so that Crystal staff may attend such inspections to act as a liason with tenants. This provision shall not preclude the United States or its agents from visiting the pubic areas of Crystal without such notice or being accompanied by Crystal staff, including making observations and taking measurements and/or photographs, during this period so long as such is accomplished in a discrete manner so as not to upset tenants during the holiday shopping period.
- 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 shopping center in writing and attempt to resolve the issue or issues in good faith. If the United States and the Owner and Operator of the shopping center 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 to enforce the terms of this Agreement and/or the ADA. In the event the United States commences such a civil action, Owner and Operator will not have waived any rights they otherwise would have had but for the existence of this Agreement, and will have not waived any defenses available under the ADA, its regulations, and/or the
2010 (and 1991 to the extent applicable) Standards.
- In consideration for Crystal's timely performance of all of its obligations under this Agreement, the United States agrees to discontinue its investigation of Crystal, except as provided in the Enforcement portion of this Agreement. The United States reserves the right to investigate any complaint it receives concerning Crystal, to initiate future compliance reviews concerning Crystal with respect to any aspect of Crystal or its operation not expressly addressed in Parts III through VIII 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 Crystal, or commences any future compliance review concerning Crystal, nothing in this Agreement shall limit the scope of any investigation or compliance review of Crystal or preclude the United States from seeking relief beyond that required under this Agreement.
- A copy of this Agreement shall be made available to any person upon request.
- 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.
- This Agreement memorializes the commitments made by the Owner and Operator of Crystal to increase accessibility of Crystal and the terms under which the United States has agreed to conclude this particular investigation of Crystal without further review or enforcement action. This Agreement is not intended to certify or signify, however, that Crystal 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 Crystal'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.
- The individuals signing this Agreement represent that they are authorized to bind the parties to this Agreement.
- 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.
- 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.
- This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement. Electronically transmitted signatures shall constitute acceptable, binding signatures for purposes of this Agreement.