SETTLEMENT AGREEMENT

BETWEEN THE UNITED STATES OF AMERICA;
SUNOCO, INC.; and SUNOCO, INC. (R&M);

IN THE MATTER OF THE “OPTIMA”
GASOLINE STATIONS AND CONVENIENCE STORES

Background

1.     This matter was initiated by a review by the Department of Justice (“the Department”) of gasoline stations and convenience stores owned, leased (or leased to), or operated by Sunoco, Inc.; and Sunoco, Inc. (R&M) (collectively, “Sunoco”), for compliance with title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. part 36. This matter relates to an agreement between Sunoco and Wal-Mart Stores, Inc., under which Sunoco will lease property at Wal-Mart locations to develop gasoline stations and convenience stores operating under the brand names “Optima Fuel Center” and “Optima Quik Mart” (the “Optima stores”). Based on its review of construction and site plans for the Optima stores, the Department alleges that the Optima stores, as built, may not comply with the Standards for Accessible Design (“ADA Standards”), as incorporated into the title III implementing regulation at 28 C.F.R. part 36 app. A.

2.     The Department is authorized to enforce title III of the ADA by, among other things, seeking the alteration of facilities to make such facilities readily accessible to and usable by individuals with disabilities, if those facilities are subject to the new construction standards and not in compliance with them. See 42 U.S.C. § 12188(a)(2). In addition, the Department may commence a civil action to enforce title III in any situation where the Attorney General believes a pattern or practice of discrimination exists or a matter of general public importance is raised. See id. at § 12188(b)(1)(B).

3.      During calendar year 2001, Sunoco constructed and opened thirteen Optima stores at Wal-Mart locations in New York, Pennsylvania, and West Virginia. During calendar year 2002, Sunoco constructed and opened sixteen additional Optima stores. These store locations are listed in Exhibit A. Because each of the Optima stores was constructed or altered after the effective date of title III of the ADA, each Optima store is subject to title III’s new construction provisions and implementing regulation, including the ADA Standards.

4.      The Department alleges that some aspects of the design plans originally prepared for the Optima stores and submitted to the Department for review did not comply with the ADA Standards. Sunoco contends that in many instances, the plans reviewed by the Department were preliminary in nature and that many of the alleged violations contained in those plans would have been corrected through the normal course of design development and construction. The items alleged as non-compliant by the Department are identified as follows:

a.     Parking: Some of the Optima store plans did not provide any designated accessible parking spaces. Where the plans did provide designated accessible parking spaces, some of the spaces did not comply with the ADA Standards.

b.     Accessible Routes: The locations of parking spaces, curb ramps, and other features, as depicted in the plans, did not always provide the shortest accessible route of travel from the designated accessible parking spaces to an accessible store entrance. Store elements such as exterior transaction drawers and public toilet rooms were not always on accessible routes.

c.     Accessible Goods and Services: The exterior transaction drawers and some interior check-out counters, as depicted in the plans, did not comply with the ADA Standards. Some items in customer self-service areas, as depicted in the plans, were located outside the reach ranges required by the ADA Standards. The interior aisles, as depicted in the plans, did not always comply with the ADA Standards.

d.      Toilet Rooms: As depicted in the plans, signage identifying public toilet rooms either did not exist or did not always comply with the ADA Standards.

5.     Sunoco states that it is committed to full compliance with title III of the ADA. To demonstrate that commitment, Sunoco has agreed to comply with the new construction provisions of title III and to ensure that any and all Optima stores are readily accessible to and usable by individuals with disabilities. After consultation with the Department, Sunoco has provided the Department with revised design plans for the future construction of Optima stores; the revised plans address many of the Department’s concerns about the earlier plans. Sunoco also has agreed to make alterations to Optima stores that have been completed or that are being or will be constructed to comply with title III and the ADA Standards. Sunoco agrees to take the steps outlined in this Settlement Agreement to ensure that individuals with disabilities, including individuals who use wheelchairs, have an opportunity equal to that of non-disabled individuals to enjoy the goods and services of the Optima stores. In light of this agreement, the parties have determined that the Department of Justice’s review of the Optima store plans for compliance with title III can be resolved without litigation and have prepared and agreed to the terms of this Settlement Agreement.

6.     The United States alleges that the employee-only areas of the Optima stores also violate the ADA Standards for new construction, but has chosen not to address these violations in this negotiated Agreement.

7.     The parties stipulate as follows:

a.     Sunoco, Inc., a Pennsylvania corporation, and its subsidiaries (collectively, “Sunoco”) refine and market petroleum and petrochemical products, and are private entities within the meaning of title III of the ADA. See 42 U.S.C. § 12181(6); 28 C.F.R. § 36.104.

b.      Sunoco leases and/or operates approximately twenty-nine newly-constructed gasoline stations or convenience stores operating under the Optima brand and intends to lease and/or operate additional newly-constructed Optima stores in the future, all of which are and will be service establishments covered by title III of the ADA. See 42 U.S.C. § 12181(7)(F); 28 C.F.R. § 36.104.

c.     Optima stores affect commerce, as defined by title III of the ADA, through selling gasoline and other consumer products. See 42 U.S.C. § 12181(7); 28 C.F.R. § 36.104.

d.     Sunoco, Inc. (R&M), a Pennsylvania corporation, is a wholly-owned subsidiary of Sunoco, Inc. Sunoco, Inc. (R&M) owns or leases real property for the operation of Sunoco gasoline stations and convenience stores.

e.     Sunoco, Inc. and its subsidiaries operate and manage Sunoco gasoline stations and conveniences stores on real property owned or leased by Sunoco, Inc. (R&M).

f.     Sunoco, Inc. and its subsidiaries are public accommodations because they are private entities that own, lease (or lease to), or operate places of public accommodations. See 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104.

Agreement

8.      Sunoco and its officers, agents, and employees hereby agree to comply with the obligations imposed by title III of the ADA, including the obligation to design and construct Optima stores so that they are readily accessible to and usable by individuals with disabilities, in full compliance with the ADA Standards, and the obligation not to discriminate against individuals on the basis of disability in the full and equal enjoyment of the goods and services of any and all Optima stores.

9.     To ensure that Optima stores are readily accessible to and usable by individuals with disabilities, subject to Section 12 below, Sunoco will make structural and other modifications necessary to bring any and all Optima stores, including but not limited to those listed in Exhibit A to this Settlement Agreement, into compliance with this section and the ADA Standards. For stores that have been constructed or are under construction, Sunoco will make all necessary modifications within six months of the effective date of this Settlement Agreement. For stores currently under design, Sunoco will make all necessary modifications so that the stores will comply with this section and the ADA Standards when constructed. Such modifications shall include:

a.      Accessible Parking. Accessible parking spaces shall be provided in compliance with ADA Standards §§ 4.1.2(5) and 4.6, including the following requirements:

i.      Minimum Number: At each Optima store, designated accessible parking shall be provided, in compliance with ADA Standards § 4.1.2(5)(a). Specifically, where the total number of parking spaces is between one and 25, at least one parking space must be designated an accessible parking space.

ii.      Requirements: Each accessible parking space provided shall comply with ADA Standards § 4.6, including the following requirements:

(1)    Location: Each accessible parking space shall be located on the shortest accessible route of travel from the parking area to an accessible entrance, in compliance with ADA Standards § 4.6.2.

(2)    Parking Spaces: Each accessible parking space shall be a minimum of 96 inches wide and shall have an access aisle adjacent to it that is part of an accessible route to the building or facility entrance, in compliance with ADA Standards § 4.6.3. Each such accessible parking space shall be level with surface slopes not exceeding 1:50 (2%) in all directions, in compliance with ADA Standards § 4.6.3.

(3)    Signage and Vertical Clearance: Each accessible parking space shall be so designated with signage complying with ADA Standards §§ 4.6.4 and 4.30. Such signage shall be located so that it cannot be obscured by a vehicle parked in the space, in compliance with Standards § 4.6.4. The vertical clearance at such spaces shall comply with ADA Standards § 4.6.5.

(4)    Van Spaces: One in every eight accessible parking spaces, but not less than one, shall be served by an access aisle a minimum of 96 inches wide and shall be designated “Van Accessible,” in compliance with Standards § 4.1.2(5)(b). Each such access aisle shall be level with surface slopes not exceeding 1:50 (2%) in all directions, in compliance with ADA Standards § 4.6.3. Access aisles may be shared by two adjacent accessible spaces, in compliance with ADA Standards § 4.6.3. Each access aisle shall be so designated by painted stripes.

b.      Accessible Routes. Accessible routes shall be provided in compliance with ADA Standards § 4.3, including the following requirements:

i.      At least one accessible route complying with ADA Standards § 4.3 shall be provided within the boundary of the Optima site from accessible public transportation stops, accessible parking, and public streets or sidewalks, to an accessible building entrance, in compliance with ADA Standards §§ 4.1.2(1) and 4.3.2(1). Such an accessible route shall, to the maximum extent feasible, coincide with the route used by the general public, in compliance with ADA Standards § 4.3.2(1).

ii.      At least one accessible route complying with ADA Standards § 4.3 shall be provided to connect accessible buildings, accessible facilities, accessible elements, and accessible spaces that are on the same site, including the accessible entrance, in compliance with ADA Standards §§ 4.1.2.(2) and 4.3.2(2).

iii.      Each accessible route provided shall comply with ADA Standards § 4.3, including the following requirements:

(1)    Protruding and Blocking Objects: All objects that protrude from surfaces or posts into circulation paths shall comply with ADA Standards § 4.4. Protruding objects shall not reduce the clear width of an accessible route or maneuvering space, in compliance with ADA Standards § 4.4.1. Specifically, where vending machines, display racks, trash receptacles, newspaper stands, planters, or benches are on site, these items may not block an accessible route. Delivery trucks and other vehicles also may not block an accessible route.

(2)    Width: The minimum clear width of an accessible route shall be 36 inches, except at doors, and otherwise shall comply with ADA Standards § 4.3.3.

(3)    Ground and Floor Surfaces: Ground and floor surfaces along accessible routes and in accessible spaces shall be stable, firm, slip-resistant, and otherwise shall comply with ADA Standards §§ 4.3.6 and 4.5.

(4)    Slope: An accessible route with a running slope greater than 1:20 is a ramp and shall comply with ADA Standards §§ 4.3.7 and 4.8. Nowhere shall the cross slope of an accessible route exceed 1:50.

(5)    Changes in Levels: Changes in levels along an accessible route shall comply with ADA Standards §§ 4.3.8 and 4.5.2. If an accessible route has changes in level greater than 1/2 inch, then a curb ramp that complies with ADA Standards § 4.7 or a ramp that complies with ADA Standards § 4.8 shall be provided.

c.      Accessible Curb Ramps. Curb ramps shall be provided wherever an accessible route crosses a curb, in compliance with ADA Standards § 4.7.1. Each curb ramp provided shall comply with ADA Standards § 4.7, including the following requirements:

i.      Slope: The slope of curb ramps shall be no greater than 1:12, in compliance with ADA Standards § 4.7.2 and Figure 11.

ii.      Width: The minimum width of a curb ramp shall be 36 inches, in compliance with ADA Standards § 4.7.3.

iii.      Surfaces: Surfaces of curb ramps shall be stable, firm, slip-resistant, and otherwise shall comply with ADA Standards §§ 4.5 and 4.7.4.

iv.      Location: Curb ramps shall be located or protected to prevent their obstruction by parked vehicles, in compliance with ADA Standards § 4.7.8.

v.      Sides: If a curb ramp is located where pedestrians must walk across the ramp, it shall have flared sides with a maximum slope of 1:10, in compliance with ADA Standards § 4.7.5 and Figure 12(a).

d.      Accessible Entrances and Doors. Each Optima store shall have no fewer than one accessible entrance (i.e., at least 50% of all public entrances) to the building or facility with at least one accessible door complying with ADA Standards § 4.13 to each accessible space within the building or facility. Additionally, accessible entrances, which may also serve as accessible means of egress, shall be provided in the same number as required for exits by local building/life safety regulations, in compliance with ADA Standards §§ 4.1.3(8)(a)(ii) and 4.1.3(9). Entrances required to be accessible shall be part of an accessible route complying with ADA Standards §§ 4.3 and 4.14.1. Each accessible entrance and means of egress, including the doors that are part of such accessible entrance and means of egress, shall comply with ADA Standards §§ 4.13 and 4.14, including the following requirements:

i.      Maneuvering Clearances at Doors: Minimum maneuvering clearances at doors that are not automatic or power-assisted shall comply with ADA Standards §§ 4.13.6 and Figure 25.

ii.      Signage: Signage shall be provided at each accessible entrance (when not all entrances at a store are accessible) and at each inaccessible entrance indicating the route to the nearest accessible entrance, in compliance with ADA Standards §§ 4.1.2(7) and 4.1.3(8)(d). Such signage shall comply with ADA Standards § 4.30.

e.      Accessible Goods and Services.

i.      Accessible Route: Each interior aisle within all Optima stores shall be considered an accessible route, and shall comply with ADA Standards § 4.3. All objects that protrude from surfaces or posts into interior aisles shall comply with ADA Standards § 4.4. Protruding objects shall not reduce the clear width of an interior aisle or maneuvering space in compliance with ADA Standards § 4.4.1. Specifically, where vending machines, display racks, trash receptacles, newspaper stands, planters, or benches are on site, these items may not block an interior aisle.

ii.      Width: The minimum clear width of each interior aisle shall be 36 inches, except at doors, in compliance with ADA Standards § 4.3.3. If a person in a wheelchair must make a turn around an obstruction, the minimum clear width of the interior aisle shall comply with ADA Standards § 4.3.3 and Figures 7(a) and 7(b).

iii.      Head Room: Interior aisles shall have 80 inches minimum clear head room, and otherwise shall comply with ADA Standards §§ 4.3.5 and 4.4.2.

iv.      Ground and Floor Surfaces: Ground and floor surfaces along interior aisles shall be stable, firm, slip-resistant, and otherwise shall comply with ADA Standards §§ 4.3.6 and 4.5.

v.      Changes in Levels: Changes in levels along each interior aisle shall comply with ADA Standards §§ 4.3.8 and 4.5.2. If an interior aisle has changes in level greater than 1/2 inch, then Sunoco shall provide a ramp complying with ADA Standards § 4.8.

vi.       Forward Reach: If the clear floor space only allows forward approach to items in customer self-service areas where tableware, dishware, condiments, food and beverages are provided, the maximum high forward reach shall be 48 inches, and the low forward reach shall be no less than 15 inches, in compliance with ADA Standards §§ 5.6 and 4.2.5. If the high forward reach is over an obstruction, reach and clearances shall comply with ADA Standards § 4.2.5 and Figure 5(b).

vii.      Side Reach: If the clear floor space allows parallel approach to items in customer self-service areas where tableware, dishware, condiments, food and beverages are provided, the maximum high side reach allowed shall be 54 inches and the low side reach shall be no less than nine inches, in compliance with ADA Standards §§ 5.6 and 4.2.6. If the side reach is over an obstruction, the reach and clearances shall comply with ADA Standards § 4.2.6 and Figure 6(c).

viii.      Interior Check-Out Counters: At least one interior check-out counter in each Optima convenience store, or a portion of at least one interior check-out counter in such stores, shall be at least 36 inches long and a maximum of 36 inches above the finish floor, in compliance with ADA Standards § 7.2(1). Such check-out counter shall be on an accessible interior aisle complying with ADA Standards § 4.3, in compliance with ADA Standards § 7.2(1).

ix.      Exterior Transaction Drawers: Any exterior transaction drawer at an Optima gas station shall be installed such that, when the drawer is open to the customer, the bottom rim is at a maximum of 36 inches above the finish floor and the drawer is in close proximity to an exterior counter. The exterior counter (a) shall be at the same height as the bottom rim and (b) either alone or in combination with the exterior transaction drawer, shall measure at least 36 inches in length. Such transaction drawer shall be on an accessible route complying with ADA Standards § 4.3, in compliance with ADA Standards § 7.2.

f.      Accessible Toilet Facilities. If public toilet facilities are provided at an Optima store, then each such toilet facility shall comply with ADA Standards §§ 4.1.2(6) and 4.22, including the following requirements:

i.      Accessible Route: Accessible toilet rooms shall be on an accessible route, in compliance with ADA Standards § 4.22.1. Accessible toilets, lavatories and mirrors, and controls and dispensers, as required below, shall be on an accessible route, in compliance with ADA Standards § 4.22.3.

ii.      Doors: Each interior hinged door to accessible toilet rooms shall require an opening force of no greater than five lbf, in compliance with ADA Standards § 4.13.11, and otherwise shall comply with ADA Standards §§ 4.13 and 4.22.2. Doors shall not swing into the clear floor space required for any fixture, in compliance with ADA Standards § 4.22.2.

iii.      Clear Floor Space: Each accessible toilet room shall contain an unobstructed turning space complying with ADA Standards §§ 4.2.3 and 4.22.3.

iv.      Signage: Each accessible toilet room shall provide signage complying with ADA Standards §§ 4.1.3(16), 4.1.2(7) and 4.30. Such signage shall provide raised and Braille characters complying with ADA Standards § 4.30. Such signage shall be installed on the wall adjacent to the latch side of the door, in compliance with ADA Standards § 4.30.6. Mounting height shall be 60 inches above the finish floor to the centerline of the sign, and mounting location otherwise shall comply with ADA Standards § 4.30.6.

v.      Toilets: Toilets in accessible toilet rooms shall comply with ADA Standards § 4.16 and 4.22.4, including the following requirements:

(1)    Clear Floor Space: Clear floor space for accessible toilets shall comply with ADA Standards § 4.16.2 and Figure 28, and may be arranged to allow either a left-handed or right-handed approach.

(2)    Height: The height of each accessible toilet shall be between 17 and 19 inches, measured to the top of the toilet seat, in compliance with ADA Standards § 4.16.3.

(3)    Grab Bars: Each accessible toilet shall be accompanied by grab bars that comply with ADA Standards § 4.26 and Figure 29, in compliance with ADA Standards § 4.16.4.

(4)    Flush Controls: Flush controls for accessible toilets shall be hand-operated or automatic and shall comply with ADA Standards §§ 4.16.5 and 4.27.4. Flush controls for accessible toilets shall require a force to activate of no more than five lbf, in compliance with ADA Standards §§ 4.16.5 and 4.27.4. Controls for flush valves for accessible toilets shall be mounted on the wide side of toilet areas no more than 44 inches above the floor, in compliance with ADA Standards § 4.16.5.

(5)    Toilet Paper Dispensers: Toilet paper dispensers in accessible toilet stalls shall be installed within applicable reach ranges and otherwise shall comply with ADA Standards § 4.16.6 and Figure 29(b).

(6)   Toilet Seat Cover Dispensers: In accessible toilet rooms where a toilet seat cover dispenser has been installed, said dispenser shall be installed on an accessible route and shall comply with ADA Standards § 4.27.

vi.      Lavatories and Mirrors. If lavatories and mirrors are provided, then at least one of each shall comply with ADA Standards §§ 4.19 and 4.22.6, including the following requirements. These requirements shall apply to lavatory fixtures, vanities, and built-in lavatories, in compliance with ADA Standards § 4.19.1.

(1)    Height and Clearances: Accessible lavatories shall be mounted with the rim or counter surface no higher than 34 inches above the finish floor, and shall provide a clearance of at least 29 inches above the finish floor to the bottom of the apron, and otherwise shall comply with ADA Standards § 4.19.2.

(2)    Clear Floor Space: A clear floor space 30 inches by 48 inches complying with § 4.2.4 shall be provided in front of each accessible lavatory to allow forward approach, in compliance with ADA Standards § 4.19.3. Such clear floor space shall adjoin or overlap an accessible route and shall extend no more than 19 inches underneath the lavatory, in compliance with ADA Standards § 4.19.3.

(3)    Exposed Pipes: Hot water and drain pipes under lavatories shall be insulated or otherwise configured to protect against contact, in compliance with ADA Standards § 4.19.4. There shall be no sharp or abrasive surfaces under lavatories, in compliance with ADA Standards § 4.19.4.

(4)    Faucets: Accessible lavatory faucets shall require a force to activate of no more than five lbf, and otherwise shall comply with ADA Standards §§ 4.19.5 and 4.27.4. If self-closing valves are used, the faucets shall remain open for at least 10 seconds, in compliance with ADA Standards § 4.19.5.

(5)    Mirrors: Accessible mirrors shall be mounted with the bottom edge of the reflecting surface no higher than 40 inches above the finish floor, in compliance with ADA Standards § 4.19.6.

vii.      Controls and Dispensers: If controls, dispensers, receptacles, or other equipment are provided, then at least one of each shall be on an accessible route and shall comply with ADA Standards §§ 4.22.7 and 4.27. This includes soap dispensers, paper towel dispensers, hot air hand dryers, and waste receptacles. Each such accessible element shall comply with ADA Standards § 4.27, including the following requirements:

(1)    Clear Floor Space: Clear floor space complying with ADA Standards § 4.2.4 that allows a forward or parallel approach by a person using a wheelchair shall be provided at each accessible piece of equipment, in compliance with ADA Standards § 4.27.2.

(2)    Height: The highest operable part of the controls for any accessible piece of equipment shall be placed within at least one of the reach ranges specified in ADA Standards §§ 4.2.5 and 4.2.6, in compliance with ADA Standards § 4.27.3.

(3)    Operation: The controls and operating mechanisms for any accessible piece of equipment shall require a force to activate of no more than 5 lbf, and otherwise shall comply with ADA Standards § 4.27.4.

g.      Accessible Fuel Dispensers and Pump Island Equipment.

i.      Gasoline Pumps: If fuel dispensers with pump handles used to dispense gasoline are provided, then at least one such fuel dispenser dispensing each type of fuel sold (e.g., unleaded, diesel) shall comply with the ADA Standards §§ 4.2, 4.3, and 4.27 for Space Allowance and Reach Ranges, Accessible Routes, and Controls and Operating Mechanisms including the following requirements:

(1)    Height: The highest operable part of the controls for each accessible fuel dispenser shall be within one of the reach ranges specified in ADA Standards §§ 4.2.5 and 4.2.6.

(2)    Accessible Route: Each accessible fuel dispenser shall be located on an accessible route, in compliance with ADA Standards § 4.3.

(3)    Clear Floor Space: Clear floor space that allows a forward or a parallel approach by a person using a wheelchair shall be provided in front of each accessible fuel dispenser, in accordance with ADA Standards §§ 4.2.4 and 4.27.2. The total space allotted to vehicles stopped at each accessible fuel dispenser must ensure that such clear floor space is available in front of each fuel dispenser.

(4)    Operation: The controls and operating mechanisms on each accessible fuel dispenser must comply with ADA Standards §§ 4.27.1, 4.27.2, and 4.27.3.

(5)    Signage: Each accessible fuel dispenser shall be so designated by a sign.

ii.      Self-Service Card Readers: Sunoco provides self-service card readers at all fuel dispensers at Optima stores. At least one self-service card reader provided at any designated accessible fuel dispenser shall comply with the ADA Standards §§ 4.2, 4.3 and 4.27 for Space Allowance and Reach Ranges, Accessible Routes, and Controls and Operating Mechanisms, including the following requirements:

(1)    Height: The highest operable part of the controls for each accessible self-service card reader shall be within one of the reach ranges specified in ADA Standards §§ 4.2.5 and 4.2.6.

(2)    Clear Floor Space: Clear floor space that allows a forward or a parallel approach by a person using a wheelchair shall be provided in front of each accessible self-service card reader, in accordance with ADA Standards §§ 4.2.4 and 4.27.2. The total space allotted to vehicles stopped at each accessible fuel dispenser must ensure that such clear floor space is available in front of each accessible self-service card reader.

(3)    Operation: The controls and operating mechanisms for accessible self-service card readers shall require a force to activate of no more than 5 lbf, and otherwise shall comply with ADA Standards § 4.27.4.

iii.      Pump Island Equipment: If a pump island provides an accessible fuel dispenser, then at least one paper towel dispenser and one window-washing squeegee container at that pump island shall comply with the ADA Standards §§ 4.2, 4.3 and 4.27 for Space Allowance and Reach Ranges, Accessible Routes, and Controls and Operating Mechanisms, including the following requirements:

(1)    Height: Each accessible paper towel dispenser and each window-washing squeegee container shall be within one of the reach ranges specified in ADA Standards §§ 4.2.5 and 4.2.6.

(2)    Accessible Route: Each accessible paper towel dispenser and each window-washing squeegee container shall be located on an accessible route, in compliance with ADA Standards § 4.3.

(3)    Clear Floor Space: Clear floor space that allows a forward or a parallel approach by a person using a wheelchair shall be provided in front of each accessible paper towel dispenser and each window-washing squeegee container, in accordance with ADA Standards §§ 4.2.4 and 4.27.2. The total space allotted to vehicles stopped at each accessible fuel dispensers must ensure that such clear floor space is available in front of each accessible paper towel dispenser and each window-washing squeegee container.

(4)    Operation: The controls and operating mechanisms for accessible pump island equipment shall require a force to activate of no more than 5 lbf, and otherwise shall comply with ADA Standards § 4.27.4.

iv.      Refueling Assistance: Sunoco shall provide refueling assistance at any gas pump upon the request of any customer with a disability.

(1)    Such service may be subject to limitations existing at stores during such time as the stores are operating on a remote control basis with a single employee.

(2)    Sunoco shall let patrons know, through appropriate signage at each pump, that customers with disabilities can obtain refueling assistance by either honking or otherwise signaling an employee.

(3)    Sunoco shall provide refueling assistance to any customer with a disability without any charge beyond the self-serve price.

h.      Accessible Drinking Fountains or Water Coolers, Public Telephones, and Alarm Systems: Sunoco does not intend to provide drinking fountains or water coolers, public telephones, or alarm systems in any of the Optima stores. If Sunoco decides to provide these in any of the Optima stores in the future, they shall comply with the following requirements:

i.      Drinking Fountains or Water Coolers: Drinking fountains or water coolers shall comply with ADA Standards §§ 4.1.2(2)-(4), 4.1.3(10), and 4.15.

ii.      Public Telephones: Public telephones shall comply with ADA Standards §§ 4.1.2(2)-(4), 4.1.3(17), and 4.31.

iii.      Alarm Systems: Alarm systems shall comply with ADA Standards §§ 4.13(14) and 4.28.

10.      For three years from the effective date of this Settlement Agreement, Sunoco shall, every six months, produce for counsel for the United States a written report detailing work performed by Sunoco in furtherance of the compliance program set forth in paragraph 9 above, and identifying any newly-constructed Optima stores. The report shall describe the steps Sunoco has taken to fulfill its obligations under this Settlement Agreement. After receipt of any such report, the Department may request additional information from Sunoco when reasonably necessary. Sunoco shall provide such information within thirty (30) days of receipt of the Department’s request for additional information.

11.      Sunoco shall, throughout the term of this Settlement Agreement, cooperate with the Department of Justice in permitting representatives of the Department of Justice to audit, on a random basis, compliance work done at Optima stores. Such audits will be scheduled only with proper notice and agreement by Sunoco. Subject to paragraph 12 below, any modifications performed by Sunoco that do not strictly comply with the ADA Standards, subject to conventional building industry tolerances for field conditions pursuant to ADA Standard § 3.2, must be redone within sixty (60) days of the Department’s objections. The burden is on Sunoco, or any successor in interest, to provide specific evidence of accepted dimensional tolerances, however, no dimensional tolerances shall apply where the ADA Standards specify a minimum clearance necessary for an element to be usable by persons with disabilities.

12.      In the event that Sunoco is required to obtain, for any of the steps to remove barriers to access specified in this agreement, any building, mechanical, electrical, plumbing or other permit or approval, Sunoco shall seek such permit or approval in good faith and in a timely fashion. Additionally, in the event that Sunoco is prevented from making structural and other modifications to its stores by acts of God, fires, accidents, earthquakes, explosions, floods, wars, labor disputes or shortages, riots, sabotage, extreme weather, or any similar circumstances beyond Sunoco’s reasonable control, Sunoco shall seek to resume work on such modifications as soon as possible. Should the process for seeking permits or approvals, or delay caused by circumstances beyond Sunoco’s reasonable control, appear to jeopardize the schedule for compliance outlined in paragraph 9 above, Sunoco shall promptly notify counsel for the United States. The parties shall thereafter attempt, in good faith, to determine how much additional time is required to secure the permit or approval, if applicable, and complete the work at issue. If a permit or approval has been denied, or circumstances beyond Sunoco’s reasonable control make completion of modifications at a particular location impossible, the parties shall attempt to identify alternative methods of removing the barrier in question, or otherwise providing access to the goods or services affected by the barrier.

13.      Within ninety (90) days of the effective date of this Settlement Agreement, Sunoco shall post at each existing Optima store open to the public for business at any time during the effective term of this Agreement a readily observable sign or decal containing a toll free number where customers may call to comment upon the accessibility features or services provided to individuals with disabilities at Optima stores. Such a sign or decal shall resemble in large part the replica attached as Exhibit B to this Settlement Agreement. Sunoco also shall post such a sign or decal at each newly-constructed Optima store, if any are constructed and open for business during the effective term of this Agreement. Sunoco shall monitor customer calls and inquiries involving accessibility issues at Optima stores made via the toll free number. Whenever Sunoco receives a comment regarding accessibility features or services to individuals with disabilities at Optima stores, Sunoco shall communicate the comment to the appropriate personnel. During the term of this Settlement Agreement, Sunoco shall maintain a record of comments made regarding accessibility features or services provided to individuals with disabilities at Optima stores. Once annually during the term of this Settlement Agreement, Sunoco shall provide the Department with a redacted copy of such comments including any follow-up action in response to the comments. Said redactions shall include the name, address, telephone number, credit card number, credit card transaction number, and auto registration number of the individual making the comment.

14.      Within ninety (90) days of the effective date of this Settlement Agreement, Sunoco shall distribute to all existing Optima stores open to the public for business, or within ninety (90) days of any Optima store opening to the public for business at any time during the effective term of this Agreement, either in writing or through electronic media, its policies regarding the ADA and accessibility to its goods and services for individuals with disabilities. The policies communicated to the stores shall be substantially in the form attached as Exhibit C to this Settlement Agreement. This statement of policy shall be distributed to all newly-constructed Optima stores, if any are constructed and open for business during the effective term of this Agreement, in the same manner. Sunoco shall then redistribute this statement of policies annually thereafter.

15.      Annually, at the same time Sunoco distributes its statement of policies regarding the ADA and accessibility to its goods and services for individuals with disabilities, Sunoco shall also distribute to each store open to the public for business at that time an Accessibility Maintenance Checklist substantially in the form attached to this Settlement Agreement as Exhibit D. The manager at each Optima store shall complete the Checklist and return it to Sunoco’s Assistant General Counsel. Copies of the completed Checklists shall be provided to the Department once a year as part of a report required to be made by Sunoco by paragraph 10.

Enforcement

16.      The Department may review compliance with this Settlement Agreement at any time and may enforce this Settlement Agreement if the United States believes that it or any requirement thereof has been violated. Such compliance review may include inspection of any and all Optima stores. If the United States believes that Sunoco has violated this Agreement or any portion of it has been violated, it will raise its concern(s) with Sunoco and the parties will attempt to resolve the concern(s) in good faith. The United States will give Sunoco twenty-one days from the date it notifies Sunoco of any breach of this Settlement Agreement to cure that breach, prior to instituting any court action. It may be a defense to a claim of noncompliance with paragraph 9(g) that the obligations contained therein may conflict with local building/life safety regulations. If the parties are not able to reach an amicable resolution of the matter, the Department may file a civil action to enforce the Agreement in federal district court. If the court makes a determination of a violation of this Agreement, such failure to comply shall be treated as a violation of the ADA, and the Department may seek all remedies provided in 42 U.S.C. § 12188. As part of such remedies, the United States may seek a civil penalty as specifically provided in 42 U.S.C. § 12188(b)(2)(C)(ii).

17.      Failure by the United States to seek enforcement of any provision of this Settlement Agreement shall not be construed as a waiver of its right to seek enforcement of other provisions or deadlines of this Agreement.

Implementation

18.      This Settlement Agreement resolves all issues raised in the Department of Justice’s review of the Optima store plans for compliance with title III of the ADA. It is limited to those issues and does not address Sunoco’s other obligations under the ADA, including physical access at any other facility or facilities owned, leased (or leased to), or operated, now or in the future, by Sunoco.

19.      This Settlement Agreement is final and binding on Sunoco, its agents and employees. In the event Sunoco seeks to transfer or assign all or part of its interest in any facility covered by this agreement, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale Sunoco shall obtain the written accession of the successor or assign to any obligations remaining under this agreement for the remaining term of this agreement. This Settlement Agreement constitutes the entire agreement between the parties relating to Department of Justice No. 202-62-110, and no other statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written Settlement Agreement, including its attachments, shall be enforceable.

20.       Nothing in this Settlement Agreement affects Sunoco’s obligations to comply with any federal or state statutory, administrative, regulatory, or common law relating to accessibility for individuals with disabilities.

21.      This Settlement Agreement is a public document. A copy of this document, or any information concerning its contents, may be made available to any person.

22.      The individuals signing this Settlement Agreement represent that they are authorized to bind the parties to this Settlement Agreement.

23.      The effective date of this Settlement Agreement is the date of the last signature below.

24.      Any notice required to be given pursuant to this Settlement Agreement shall be sent by certified mail, return receipt requested, to the parties at the following addresses:

1.       If by Sunoco to the Department, to:

John L. Wodatch
Chief
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530

with a copy to:

Heather A. Wydra
Phyllis M. Cohen
Janine Scott
Trial Attorneys
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530

2.     If by the Department to Sunoco, to:

Joseph D. Zulli
Assistant General Counsel
Sunoco, Inc.
Mellon Bank Center, Suite LL
1735 Market Street
Philadelphia, PA 19103

24. This Settlement Agreement shall remain in effect for three (3) years from its effective date.

FOR SUNOCO, INC.; AND SUNOCO, INC. (R&M);

FOR UNITED STATES OF AMERICA:

By: _____________________________ JOSEPH D. ZULLI Assistant General Counsel Sunoco, Inc. Mellon Bank Center, Suite LL 1735 Market Street Philadelphia, PA 19103 ________11/21/05_______________ Date

WAN J. KIM Assistant Attorney General Civil Rights Division By: _____________________________ JOHN L. WODATCH, CHIEF L. Irene Bowen, Deputy Chief Heather A. Wydra, Trial Attorney Phyllis M. Cohen, Trial Attorney Janine Scott, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, D.C. 20530 (202) 307-1061 (202) 514-3882 (202) 353-7414 _________11/29/05___________ Date

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EXHIBIT A

OPTIMA STORES COMPLETED IN CALENDAR YEAR 2001

Duns No.	City, State
07890569	Springville, NY
07750102	Chambersburg, PA
07764582	Clearfield, PA
07437957	Coal Township, PA
07211063	Honesdale, PA
07331572	Lebanon, PA
07110893	Lewistown, PA
07410863	Keyser, WV
07399595	Lewisburg, WV
07946999	New Martinsville, WV
07705718	Vienna, WV
07378342	Weston, WV

OPTIMA STORES COMPLETED IN CALENDAR YEAR 2002

Duns No.	City, State
07822083	Norwich, NY
07219058	Fredonia, NY
07899446	Somersworth, NH
07352487	Mansfield, PA
07797483	Derry, NH
07941966	New Hartford, NY
07297526	Rome, NY
07604838	North Oxford, MA
07092802	Moorefield, WV
07211998	East Stroudsburg, PA
07796022	Biddeford, ME
07172240	North Versailles, PA
07828023	Hudson, MA
07425747	Auburn, NY
07047590	Brockton, MA
07614779	Seneca Falls, NY
07004658	Rochester, NY
07576598	Auburn, ME
07091077	Central Square, NY
07320732	Mt. Pleasant, PA
07521537	Tewksbury, MA

EXHIBIT B

EXHIBIT C

EXHIBIT D

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December 29, 2005