SETTLEMENT AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
AND
HOTEL HEADQUARTERS ASSOCIATES, L.P.,
HEADQUARTERS HOTEL MANAGEMENT, LLC and
SHERATON OPERATING CORPORATION,

UNDER THE AMERICANS WITH DISABILITIES ACT OF 1990

DJ #202-48-241

I. INTRODUCTION

1. This Agreement (“Agreement”) is made and entered into by the United States of America (“United States”), Hotel Headquarters Associates, L.P. (“HHA”) (owner of the Sheraton Atlantic City Convention Center Hotel (the “Sheraton AC”), and Headquarters Hotel Management, LLC and Sheraton Operating Corporation (collectively, the operator of the Sheraton AC and hereafter defined as “Operator”).  The United States, HHA, and Operator shall be referred to collectively as “the Parties.”
2. This Agreement resolves an investigation and compliance review conducted by the United States Department of Justice (the “Department”) of the Sheraton AC under Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181-12189 (“ADA”).  The Sheraton AC is a multi-use facility located at 2 Convention Blvd., Atlantic City, New Jersey 08401. 
3. The Sheraton AC is a hotel with a total of 502 guest rooms/suites.  The Sheraton AC also contains restaurants, fitness and recreation facilities, and several ballrooms/meeting areas.
4. On February 16, 2011, pursuant to its authority under 42 U.S.C. § 12188(b)(1)(A)(i), the United States Attorney's Office for the District of New Jersey commenced a compliance review of certain casino/hotels in Atlantic City, New Jersey to determine whether these casino/hotels are operating in compliance with Title III of the ADA (the “Compliance Review”).  The Department reviewed the initial and supplemental information provided by the Sheraton AC and conducted a site visit of the Sheraton AC’s facilities on May 23, 2013.

II. APPLICATION

5. HHA is a public accommodation because it is a private entity that owns a place of public accommodation.  42 U.S.C. §§ 12181(6), (7); 28 C.F.R. § 36.104.  Operator is a public accommodation because it operates a place of public accommodation.  Accordingly, these entities are subject to the requirements of Title III of the ADA and its implementing regulations, which are found at 28 C.F.R. Part 36.
6. The Sheraton AC was built in 1997.  Under the applicable ADA regulations, the Sheraton AC is considered “new construction,” because it was designed and constructed after January 26, 1993.  Accordingly, Sheraton AC must have been designed and constructed to be readily accessible to and usable by individuals with disabilities.  See 42 U.S.C. § 12183(a)(1); 28 C.F.R. § 36.401(a).  New construction subject to § 36.401 shall comply with the 1991 Standards for Accessible Design if the date when the last application for a building permit or permit extension is certified to be complete by a State, county, or local government (or, in those jurisdictions where the government does not certify completion of applications, if the date when the last application for a building permit or permit extension is received by the State, county or local government) is before September 15, 2010, or if no permit is required, if the start of physical construction occurs before September 15, 2010.  See 28 C.F.R. § 36.406(a); 28 C.F.R. Part 36, Appendix D (1991 Standards for Accessible Design) (“1991 Standards”) § 4.1.5.
7. The 1991 Standards have been used to determine barriers to access at the Sheraton AC.  Elements that are identified as noncompliant with the requirements of the 1991 Standards shall be modified to comply with the 2010 ADA Standards for Accessible Design (“2010 Standards”). See 28 C.F.R. §§ 36.104, 36.406(a)(5). 

III. FINDINGS BY THE DEPARTMENT

8. During the course of the Compliance Review, the Department found deviations from the 1991 Standards, which are listed in Attachment A to this Agreement. Some of the Department's more significant findings include the following:

1. EXTERIOR AREAS OF THE HOTEL
1. Leased Parking Spaces in AC Convention Center Self-Park Garage:
   • Required accessible parking space identification signage missing from some of the designated accessible parking spaces.
   • The vertical clearance of self-park garage does not accommodate vans.
2. PUBLIC AREAS ON THE INTERIOR OF THE HOTEL/CASINO
1. Boulevard Café: Men's and Women's Toilet Rooms
   • No ambulatory stall in the women's toilet room.
   • The coat hook in the designated accessible stall in each toilet room is not mounted at a compliant height.
2. Buffet
   • Buffet counter surfaces are not mounted at a compliant height.
   • When fully stacked, plates stacked on the buffet are not within the required reach ranges.
3. Ballrooms: Men's and Women's Toilet Rooms
   • The coat hook in the designated accessible stall in each toilet room is not mounted at a compliant height.
4. Corridor Serving the Ballrooms (Tun Tavern side)
   • The wall sconces protrude into the circulation path.
5. Tun Tavern
   • The ramp handrail extensions are not rounded and do not return smoothly to the floor, wall, or post.
   • The hardware to the door to the designated accessible stall in each toilet room requires tight grasping, pinching, and twisting.
   • The lavatory faucets with self-closing valves in the men's toilet room do not stay on for a sufficient duration.
6. Hotel Lobby: Men's and Women's Toilet Rooms
   • The coat hook in the designated accessible stall in each toilet room is not mounted at a compliant height.
   • The toilet seat cover dispenser in the designated accessible standard stall in the women's toilet room is not mounted at an accessible height.
   • The lavatory faucets with self-closing valves in the men's toilet room do not stay on for a sufficient duration.
   • The lavatory pipes are not insulated.
7. Spa Work Out Area
   • The entry door requires too much force to open and has hardware that requires tight grasping, pinching, and twisting.
   • The automated external defibrillator and stainless steel towel dispenser protrude into the circulation path.
8. Spa Unisex Toilet Room
   • The entry door requires too much force to open and has hardware that requires tight grasping, pinching, and twisting.
   • The toilet seat cover dispenser in the designated accessible standard stall is not mounted at an accessible height.
9. Indoor Swimming Pool Area
   • The entry door requires too much force to open.
3. DESIGNATED ACCESSIBLE GUEST ROOMS/SUITES

   In the guest rooms or suites designated as mobility accessible:

   • Not all guest room entry doors have adequate pull side maneuvering clearance.
   • Connecting doors to adjoining guest rooms do not provide an adequate clear width and have objects that protrude into the accessible route to those doors.
   • Many controls, operating mechanisms and amenities, such as drapery pulls and thermostats are not located within required reach ranges or are otherwise inaccessible.
   • Not all shower stalls have compliant seating or shower heads.
   • Not all bathtubs have permanent seats and/or compliant grab bars.
   • Not all toilets are fully configured in accordance with the 1991 Standards (e.g., flush controls, grab bars).

IV. TERMS OF AGREEMENT

9. To avoid potential litigation, the Parties agree to the terms of this Settlement Agreement.  These terms are intended to redress the alleged violations of the ADA that have been identified by the Department.
10. HHA agrees to correct each alleged violation identified in Attachment A, to the extent the violation has not already been remedied, in accordance with the schedule set forth below.
1. Within six months of the effective date of this Agreement, HHA shall ensure that:
   1. The designated accessible parking spaces in the Sheraton AC's self-park garage have compliant signage.
2. Within twelve months of the effective date of this Agreement, HHA shall remedy each of the non-compliant circumstances described in the pertinent portions of Attachment A, with respect to the following rooms and/or spaces:
   1. Public toilet rooms;
   2. Van accessible parking;
   3. Tun Tavern barrier removal, including the protrusion of the sconces into the circulation path of the corridor that serves the ballrooms on the Tun Tavern side; and
   4. Buffet barrier removal.
3. Within twenty-four months of the effective date of this Agreement, HHA shall remedy each of the noncompliant circumstances described in the pertinent portions of Attachment A, with respect to:
   1. Accessible guest rooms with mobility features, including the widening of the connecting room doors to/from the designated accessible rooms to provide 32 inches of clear width.
   2. To the extent that the barriers identified in the sample of accessible guest rooms also exist in other accessible guest rooms, those barriers shall also be removed.
11. If HHA renovates any space described in Attachment A affected by this Agreement such that any violation(s) identified in Attachment A no longer exist(s), then HHA shall be excused from remedying the alleged violation(s) because the violation(s) will be moot. HHA, however, shall ensure that the renovated space fully complies with the ADA.
12. HHA and Operator shall not discriminate against individuals with disabilities on the basis of disability in the full and equal enjoyment of its goods, services, and facilities.
13. Operator shall make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford its goods, services, or facilities to individuals with disabilities who visit the Sheraton AC, unless the modifications would fundamentally alter the nature of the goods, services, or facilities.
14. Operator shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to, and usable by, persons with disabilities.
15. Within twelve months of the effective date of this Agreement, Operator shall provide training on Title III of the ADA to every manager and employee whose routine job functions require them to interact with guests, as well as any Sheraton AC employee who receives, handles, or processes requests for reasonable modifications. For all of these managers and employees, this training session shall cover the anti-discrimination provisions of Title III of the ADA; the duty to make reasonable modifications to policies, practices and procedures under the ADA; and the Sheraton AC's disability rights policies. Within fourteen days after the training, the Operator shall provide the Department with an attendance sheet indicating which employees attended the training, their titles, and when the training occurred.
16. During the term of this Agreement, HHA and Operator shall provide an annual report to the Department on the anniversary of the effective date of this Agreement, regarding its progress with respect to the completion of its responsibilities pursuant to Paragraphs 10 and 15 of this Agreement. The report shall identify and document ) the modifications that HHA and/or Operator have made and document any training of employees that has occurred (by date and the content of the training).

V. IMPLEMENTATION AND ENFORCEMENT

17. The Department shall have the right, during the term of this Agreement and with reasonable prior notice to HHA and Operator of not less than twenty-one days, to conduct inspections of the Sheraton AC's facilities and to request information, documents, or photographs to evaluate compliance with this Agreement. The Department shall make every effort to conduct its inspections at times that are agreeable to HHA and Operator, so that they can ensure minimal disruption to its operations from such inspections.
18. If the Department believes that HHA and/or Operator are not in compliance with this Agreement or any requirements contained herein, the Department agrees to notify HHA and Operator in writing of the alleged noncompliance and attempt to seek a resolution of the matter. If the Parties are unable to reach a resolution within thirty days of the date of the Department's written notification, and the alleged noncompliance concerns element(s) of the facility in existence as of the effective date of this Agreement as referenced on Attachment A, the United States may seek enforcement of the terms of this Agreement in the United States District Court for the District of New Jersey. If the Parties are unable to reach a resolution within thirty days of the date of the Department's written notification, and the alleged noncompliance concerns new elements or facilities not in existence as of the effective date of this Agreement, the United States may seek enforcement of the terms of this Agreement and/or to enforce compliance with the ADA in the United States District Court for the District of New Jersey. In the event the court determines that HHA has failed to make a modification required pursuant to this Agreement, including Attachment A, on or before the deadlines set forth in Paragraphs 10 or 15, such failure to comply shall be treated as a second violation of Title III of the ADA and the United States may seek, and the court may assess, civil penalties as provided in 42 U.S.C. § 12188(b)(2)(C). In the event that the United States files suit to enforce compliance with the ADA, as distinguished from compliance with the terms of this Agreement, nothing in this Agreement shall be construed as a waiver of any of the HHA or Operator's defenses to an action under the ADA.
19. In consideration of, and consistent with, all the terms of this Agreement, the Attorney General agrees to refrain from undertaking further investigation into and from filing a civil suit regarding all matters contained within this Agreement and its attachments, except as provided in Paragraph 18.
20. The Department's failure to enforce this entire Agreement or any provision hereof, with regard to any deadline or any other provision contained herein, shall not be construed as a waiver by the Department of any right to do so.
21. This Agreement shall be binding upon HHA and Operator. In the event the HHA seeks to transfer or assign all or part of its interests in any facility covered by this Agreement, and the successor(s) or assign(s) intends on carrying on the same or similar use of the facility, then, as a condition of sale, HMO shall obtain the written accession of the successor(s) or assign(s) to any obligations remaining under this Agreement for the remaining term of this Agreement.
22. All notices, demands, or other communications to be provided pursuant to this Agreement shall be in writing and delivered by fax, electronic mail, or overnight mail to the following persons and addresses (or such other persons and addresses as any party may designate in writing from time to time):

    For HHA:
    Tom Scannapieco
    President
    Hotel Headquarters Associates, L.P.
    400 South River Road
    New Hope PA, 18938
    Toms@sdc400.com
    Tel: (215) 862-5400

    For Operator:
    Jamie E. Balanoff
    Vice President, Associate General Counsel
    Starwood Hotels & Resorts Worldwide, Inc.
    One StarPoint
    Stamford, CT 06902
    jamie.balanoff@starwoodhotels.com
    Tel: (203) 351-2546
    Fax: (203) 351-2498

    Minh N. Vu
    Seyfarth Shaw LLP
    975 F Street, N.W.
    Washington, D.C. 20004
    mvu@seyfarth.com
    Tel: (202) 828-5337
    Fax: (202) 641-9279

    For the United States:
    Elizabeth A. Pascal
    Assistant U.S. Attorney
    United States Attorney's Office
    401 Market Street, 4th Floor
    Camden, NJ 08102
    Elizabeth.Pascal@usdoj.gov
    Tel: (856) 757-5105
    Fax: (856) 757-5416

23. This Agreement, including Attachment A, constitutes the entire Agreement between the Parties relating to Department of Justice Investigation No. 202-48-241 with respect to the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of any party, that is not contained in this written Agreement shall be enforceable.
24. If any provision of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided however, that if the severance of any such provision materially alters the rights or obligations of the Parties, they shall engage in good faith negotiations to adopt such mutually agreeable amendments to this Agreement as may be necessary to restore the Parties as closely as possible to the initially agreed-upon relative rights and obligations.
25. This Agreement is limited to the Sheraton AC and does not apply to any other design or construction project of, or related to, HHA or Operator. It is limited to the matters described herein and does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect HHA and Operator's continuing responsibility to comply with all aspects of the ADA not covered by this Agreement.
26. A signatory to this document in a representative capacity for HHA and Operator represents that he or she is authorized to bind the HHA and Operator, respectively, to this Agreement.
27. The effective date of this Agreement is the date of the last signature below. The Agreement shall remain in effect for twenty-four months from the effective date, unless extended by written agreement of the Parties.

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