VOLUNTARY COMPLIANCE AGREEMENT
between
THE UNITED STATES OF AMERICA
and
ALTAMAREA, LLC and
CENTRAL PARK SOUTH ASSOCIATES, LLC

WHEREAS, the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12181 et seq., provides, among other things, that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation," 42 U.S.C. § 12182(a); and

WHEREAS, the term “public accommodation” under the ADA includes “a restaurant, bar, or other establishment serving food or drink,” 42 U.S.C. § 12181(7)(B); and

WHEREAS, the ADA authorizes the United States Department of Justice to “undertake periodic reviews of compliance of covered entities,” 42 U.S.C. § 12188(b)(1)(A)(i); and

WHEREAS, the United States Attorney’s Office for the Southern District of New York (the “United States”), pursuant to its authority under 42 U.S.C. § 12188(b)(1)(A)(i), commenced a limited  review of certain restaurants in New York City to determine, with respect to the specific areas reviewed, whether those restaurants were operating in compliance with Title III of the ADA (the “Compliance Review”); and

WHEREAS, as part of the Compliance Review, the United States requested information from Altamarea, LLC (“Altamarea”), the owner and operator of Marea (the “Restaurant”), which is located  in a building at 240 Central Park South, New York, New York the title of which is owned by Central Park South Associates, LLC (the “Landlord”);

WHEREAS, the United States conducted a limited site inspection of certain features and facilities within the Restaurant, and met with representatives of the Restaurant; and

WHEREAS, the United States and the Restaurant share the goal of resolving the Compliance Review and ensuring that the Restaurant operates in compliance with Title III of the ADA; and

WHEREAS, in light of the actions taken by the Restaurant to date to comply with the ADA, the actions taken by the Restaurant during the period of the Compliance Review, and the actions that the Restaurant has agreed to take within the next three years as set forth in this agreement (the “Agreement”), the United States has decided to take no further enforcement action at this time with respect to the Restaurant as a result of this Compliance Review;

NOW, THEREFORE, IT IS HEREBY AGREED, BY AND BETWEEN THE UNITED STATES OF AMERICA, ALTAMAREA AND THE LANDLORD AS FOLLOWS:

I. APPLICATION AND PARTIES BOUND

1. The Restaurant is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7) because, among other things, it is “a restaurant, bar, or other establishment serving food or drink.”  42 U.S.C. § 12181(7)(B); see 28 C.F.R. § 36.104.
2. This Agreement shall be binding on the Landlord and Altamarea.  In the event that Altamarea seeks to transfer or assign all or part of its interest in the Restaurant, and the successor or assignee intends on carrying on the same or similar use of the Restaurant, as a condition of sale, Altamarea shall obtain the written agreement of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.
3. In the event the Landlord seeks to transfer or assign all or part of its interest in the building housing the Restaurant, and the successor or assignee intends on leasing the current Restaurant space for the same or similar use, as a condition of sale the Landlord shall obtain the written agreement of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.
4. This Agreement shall apply to all public use areas within the Restaurant.  This includes, but is not limited to: public entrances, waiting areas, bar areas, dining areas, toilet rooms, and corridors.  This Agreement shall not apply to employee work areas, such as food preparation and storage locations, and other service-related areas.

II. DEFINITIONS

5. For purposes of this Agreement, the term “Standards” means the 2010 Standards for Accessible Design (“2010 Standards”), which consist of the 2004 ADA Accessibility Guidelines (“ADAAG”), appendices B and D to 36 C.F.R. Pt. 1191, and the requirements contained in subpart D of 28 C.F.R. Pt. 36, 28 C.F.R. § 36,104.
6. For purposes of this Agreement, the term “accessible” means in compliance with the Standards.
7. For purposes of this Agreement, the term “alterations” means a change to the Restaurant 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, reconstruction, 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, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.” See 28 C.F.R. §§ 35.151(b), 36.402.

III. RESERVATIONS AND FOOD ORDERING PROCEDURES

8. The Restaurant shall accept relay calls. See 28 C.F.R. § 36.303.

   IV. MAIN PUBLIC ENTRANCE TO BAR LEVEL

9. The Restaurant shall ensure that the entrance level to the bar level is accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility, in accordance with this paragraph. The Restaurant has applied to the Landmarks Preservation Commission for a variance to allow them to comply with this paragraph. The Restaurant will be in compliance with this paragraph if within thirty (30) days following receipt of such variance it: (i) installs directional signage indicating the route to the alternate entrance to the main dining room level located in the 240 Central Park South apartment building lobby; and (ii) installs door hardware on the exterior side of the door. See 2010 Standards §§ 206.4.1, 206.5.1, 216.6, 309.4, 404.2.1, 404.2.7, 703.5, and 703.7.2.1.

   V. ALTERNATE ENTRANCE TO THE MAIN DINING LEVEL

10. The Restaurant shall install an alternate entrance to the main dining level located between the lobby of the adjoining building and the Restaurant that is fully accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility, and shall install all appropriate signage. The Restaurant represents that it has already complied with the requirement. See 2010 Standards §§ 206.4.1, 206.5.1, 216.6, 309.4, 404.2.1, 404.2.7, 703.5, and 703.7.2.1.

    VI. HOST STATION

11. The Restaurant shall ensure that it maintains its host station in the condition as it existed at the time of the Government's inspection on April 18, 2013. The Restaurant shall notify the United States, through undersigned counsel, in writing if it makes any alteration of the host station, or any alteration of routes from the entrance to the host station and from the host station to the seating area, during the term of this Agreement. See 2010 Standards §§ 206.2.4 and Chapter 4. The Restaurant shall provide an accessible route from the alternate entrance to the main dining room area.

    VII. DINING AND BAR AREAS

12. The Restaurant shall ensure that 5% of the total number of fixed seating or standing locations in the Restaurant's main dining area is accessible to persons with disabilities, such that eight (8) seating locations are accessible. Each accessible seating location shall have adequate floor space, knee clearance, and sufficient height, and shall be located on an accessible route. See 2010 Standards §§ 206.2.4, 226.1, 902 and Chapter 4.
13. Accessible seating shall be distributed throughout the main dining area of the Restaurant in compliance with the 2010 Standards § 226.2.
14. The Restaurant shall permit persons using wheelchairs for mobility, and their companions, to sit at an accessible location and order drinks from the bar without having to order food from the menu. The Restaurant shall also permit persons using wheelchairs for mobility, and their companions, to order from the bar menu while sitting at any accessible location in the main dining area when such bar menu is available to other restaurant patrons.

    VIII. STAIRWAYS

15. The Restaurant shall ensure that its stairways are accessible to, and usable by, persons with disabilities. The Restaurant may satisfy the requirements of this paragraph if within thirty (30) days of signing this Agreement the Restaurant curves or bevels all stair nosings, installs a second handrail on the front stairs of the bar area, and trains staff to assist any individual who needs assistance navigating either the stairs to the private dining room or the stairs from the bar level to the main level. See 2010 Standards §§ 210.1, 504.6, 505.2, and 504.5.

    IX. RESTROOMS

16. The Restaurant shall ensure that there is an accessible route from each accessible seating location in the main dining area to the accessible restroom. The Restaurant shall install an automatic door opener and proper signage to alert individuals to the location of the accessible restroom. The Restaurant represents that it has complied with the requirements of this Paragraph. See 2010 Standards §§ 206.2.4 and Chapter 4.
17. The Restaurant shall install sign identifying the toilet rooms in raised characters and Braille. See 2010 Standards §§ 216.2, 703.1, 703.2, 703.3, 703.4, and 703.5.
18. The Restaurant shall ensure that the unisex toilet room is accessible to, and usable by, persons with disabilities, including persons using wheelchairs. For purposes of this Agreement, the Restaurant shall be considered in compliance with this Paragraph if, within sixty (60) days of signing this Agreement, it does the following:
    1. Installs a new door to the unisex toilet room with the proper hardware and push side clearance. The force required for opening the door must not exceed 5 pounds. See 2010 Standards §§ 206.5.2, 309.4, 404.2.4, 404.2.7, 404.2.9.
    2. Bevels the level at the door threshold such that the slope is not steeper than 1:2. See 2010 Standards §§ 206.5.2, 303, 404.2.5.
    3. Installs a new toilet with a smaller profile to increase the turning space. See 2010 Standards §§ 213.2, 304, 603.1.
    4. Installs new grab bars such that the side toilet bar is 42 inches long minimum, located 12 inches from the rear wall and extending 54 inches minimum from the rear wall, and the rear grab bar is 36 inches long minimum and extending from the centerline of the water closet 12 inches minimum on one side and 24 inches minimum on the other side. See 2010 Standards §§ 213.3.2, 604.5.2 and 609.
    5. Replaces the toilet flush control so it is located on the wide side of the toilet area. See 2010 Standards §§ 213.3.2 and 604.6.
    6. Moves the mirror above the lavatory so that it is installed with the bottom edge of the reflecting surface 40 inches maximum above the finished floor. See 2010 Standards §§ 213.3.5 and 603.3.
    7. Moves the coat hook so it is mounted 48 inches maximum and 15 inches minimum above the finish floor for a side reach. See 2010 Standards §§ 213.3.7, 603.4 and 308.3.

    X. POLICIES, PRACTICES AND PROCEDURES

19. The Restaurant shall establish a written policy specifically addressing the provision of services to individuals with disabilities.
20. The Restaurant's policy shall specify, among other things, that
    1. persons with disabilities may make reservations in the same way and on the same terms that other persons can make reservations (see 28 C.F.R. § 36.302);
    2. all reservation staff (including staff located on-site at the Restaurant and staff located off-site at a reservations center) shall have ready access to information about the Restaurant's accessibility features for use in assisting customers in making reservations and answering questions (see 28 C.F.R. § 36.302);
    3. accessible features inside and outside the Restaurant must be maintained in good working order (see 28 C.F.R. § 36.302);
    4. employees will receive basic training on how to accommodate persons with disabilities (e.g., overview of the Restaurant's accessibility features, dealing with service animals, etc.) (see 28 C.F.R. § 36.302(a));
    5. restaurant staff is to be trained to offer assistance, upon request, to persons with disabilities who may need assistance in using Restaurant services (see 28 C.F.R. § 36.302(a));
    6. Restaurant staff is to be made available to move tables, and provide and adjust accessible features of the facility when features require installation or adjustment to ensure accessibility (see 28 C.F.R. § 36.302(a));
    7. Restaurant menus, and all other printed materials provided for use by patrons, also be available in alternate formats so that blind persons and persons with low vision can read them (alternate formats include Braille, large print, and audio recording) (see 28 C.F.R. § 36.303(b));
    8. dietary information (either on its menus or elsewhere) will be provided for patrons with diabetes or those with food allergies (see 28 C.F.R. § 36.302);
    9. special foods will be provided to meet a patron's dietary needs upon request (see 28 C.F.R. § 36.307);
    10. persons with disabilities may use service animals, without imposing any extra charges or conditions, in all public areas of the facility, including restrooms (see 28 C.F.R. § 36.302(c)); and
    11. Restaurant employees shall receive training on the proper manner for determining whether an animal qualifies as a service animal (see 28 C.F.R. § 36.302(c)(6)).

    XI. ALTERATIONS

21. 21. Altamarea acknowledges and agrees that any alteration to the Restaurant "shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs." See 28 C.F.R. § 36.402(a). Altamarea further acknowledges and agrees that if an alteration affects or could affect the usability of or access to an area of the Restaurant 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 fountains serving the altered area are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, unless the cost and scope of such alterations is disproportionate to the cost of the overall alteration. See 28 C.F.R. § 36.403(a)(1). Altamarea agrees to notify the Landlord and the United States, in writing, of any alterations to the Restaurant commenced during the term of this Agreement and shall, in that notification, specify the steps taken to ensure that the alterations comply with the Standards to the maximum extent feasible. The Landlord agrees that it shall in no way impede Altamarea's efforts to ensure the Restaurant's compliance with all obligations set forth herein.

    XII. MONITORING AND COMPLIANCE

22. Every year during the term of this Agreement on the anniversary date of the effective date of the Agreement, Altamarea shall provide to the Landlord and 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 the Restaurant 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 the Restaurant was not being operated in compliance with the ADA or otherwise discriminated against any person on account of disability.
23. The Landlord and Altamarea shall cooperate in good faith with any and all reasonable requests by the United States for access to the Restaurant and for information and documents concerning the Restaurant's compliance with this Agreement and the ADA.
24. The United States shall have the right to verify compliance with this Agreement and the ADA, both as set forth in this Agreement and through any means available to the general public, including visits to the public areas of the Restaurant and communications with Restaurant staff. The United States shall have the right to inspect the facility at any time that the Restaurant is open for business, and counsel for the United States need not identify themselves in the course of visits to the public areas.

    XIII. ENFORCEMENT

25. If the United States believes that this Agreement or any of its requirements has been violated, it will notify the Landlord and Altamarea in writing and attempt to resolve the issue or issues in good faith. If the United States and the Landlord and Altamarea are unable to reach a satisfactory resolution of the issue or issues, the United States may commence a civil action in the United States District Court for the Southern District of New York to enforce the terms of this Agreement and/or the ADA.

    XIV. GENERAL PROVISIONS

26. In consideration for the Restaurant's timely performance of all of its obligations under this Agreement, the United States agrees to discontinue the Compliance Review of the Restaurant, except as provided in the Enforcement portion of this Agreement. The United States reserves the right to investigate any complaint it receives concerning the Restaurant, to initiate future compliance reviews concerning the Restaurant with respect to any aspect of the Restaurant or its operation not expressly addressed in Parts III through X of this Agreement, and to investigate and commence a civil action with respect to any violation of the ADA. In the event the United States receives and investigates an ADA complaint concerning the Restaurant, or commences any future compliance review concerning the Restaurant, nothing in this Agreement shall limit the scope of any investigation or compliance review of the Restaurant or preclude the United States from seeking relief beyond that required under this Agreement.
27. A copy of this Agreement shall be made available to any person upon request.
28. 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.
29. This Agreement memorializes the commitments made by the Landlord and Altamarea to increase accessibility of the Restaurant and the terms under which the United States has agreed to conclude this particular Compliance Review of the Restaurant without further review or enforcement action. This Agreement is not intended to certify or signify, however, that the Restaurant is now (or, with the actions taken pursuant to this Agreement, will be in full compliance with the ADA, or constitute a finding by the United States of such compliance, and it may not be used in any proceeding to signify such compliance. This Agreement does not affect the Restaurant'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.
30. This Agreement does not constitute an admission by the Restaurant, Altamarea or the Landlord of non-compliance with any provision of the ADA.
31. The individuals signing this Agreement represent that they are authorized to bind the parties to this Agreement.
32. 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.
33. This Agreement constitutes the entire agreement between the parties relating to the compliance review, 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.

 

 

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