SETTLEMENT AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
AND
TROPICANA ATLANTIC CITY CORP. D/B/A TROPICANA CASINO AND RESORT
UNDER THE AMERICANS WITH DISABILITIES ACT OF 1990
DJ #202-48-242

I. INTRODUCTION

  1. This Agreement ("Agreement") is made and entered into by the United States of America ("United States") and Tropicana Atlantic City Corp. d/b/a Tropicana Casino and Resort (the "Company"), owner and operator of the Tropicana Atlantic City (the "Tropicana") (collectively "the Parties").
  2. This Agreement resolves an investigation and compliance review conducted by the United States Department of Justice (the "Department") of the Tropicana under title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181-12189 ("ADA"). Tropicana is a multiuse facility located at Brighton Avenue and the Boardwalk, Atlantic City, New Jersey 08401. The Company owns and operates the Tropicana.
  3. The Tropicana consists of a casino and a hotel with a total of 2,079 guest rooms contained in four connecting towers. The original tower, referred to as the North Tower, was built in 1981. Thereafter, the Tropicana constructed the South Tower in 1988. In 1996, the Tropicana built the West Tower. The most recent tower, the Havana Tower, was built in 2004. The Tropicana also contains numerous restaurants and bars, a ballroom, a theater, multiple meeting and convention rooms, and several specialty retail shops.
  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 information provided by the Company and conducted a four-day site visit of the Tropicana's facilities from December 10-13, 2012.
  5. The Tropicana represents that it has a long-standing commitment to accessibility, including the existence of accessible elements and hotel rooms at the Tropicana, the availability of auxiliary aids and services, and the maintenance of policies, practices, and procedures regarding accessibility for guests with disabilities; the Tropicana has cooperated fully in the United States' investigation and made clear that it will work cooperatively with the United States to ensure that the Tropicana is in full compliance with the requirements of Title III of the ADA. This Agreement is a negotiated compromise resolution and none of the terms of this Agreement shall be deemed to constitute an admission by the Tropicana of any violation of liability under Title III of the ADA or any other law.

II. APPLICATION

  1. The Company is a public accommodation because it is a private entity that owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. §§ 12181(6), (7); 28 C.F.R. § 36.104. Accordingly, the Company is subject to the requirements of title III of the ADA, and its implementing regulations, which are found at 28 C.F.R. part 36.
  2. Parts of the Tropicana facility were built in 1981 and 1988. Those parts of the Tropicana that are open to the public are subject to Title III, are existing facilities designed and constructed prior to January 26, 1993, and are subject to the barrier removal requirements of Title III of the ADA and 28 C.F.R. § 36.304, except where to do so would not be readily achievable. Alterations to the Tropicana that affect usability are subject to the alterations requirements of the ADA and shall comply with 28 C.F.R. § 36.402 "to the maximum extent feasible." The phrase "to the maximum extent feasible" applies to the occasional case where the nature of an existing facility makes it virtually impossible to comply fully with applicable accessibility standards through a planned alteration. See 28 C.F.R. § 36.402(c). In 1996 and 2004, the Tropicana constructed the West Tower, and the Havana Tower, respectively; therefore, those additions, along with a high-end entertainment and shopping venue, known as "the Quarter", constructed subsequent to January 26, 1992, shall be regarded as alterations. See 28 C.F.R. § 36.406(a); 1991 Standards for Accessible Design ("1991 Standards") § 4.1.5. The analysis as to whether the Company is in compliance with the ADA is based, for the most part, upon the 1991 Standards.
  3. On March 15, 2011, the revised ADA title III regulation became effective, including revised ADA Standards for Accessible Design ( "2010 Standards"). The effective date of the 2010 Standards, generally, was March 15, 2012. The compliance date for §§ 242 and 1009 of the 2010 Standards, with respect to the provision of accessible entry and exit to existing swimming pools, wading pools, and spas (those built before March 15, 2012) was extended to January 31, 2013. See 28 C.F.R. § 36.104 (which defines the 2010 Standards as the requirements set forth in appendices B and D to 36 C.F.R. part 1191 and the requirements contained in subpart D of 28 C.F.R. part 36). The 2010 Standards are used to determine the remedial actions the Company must take. See 28 C.F.R. § 36.406(a)(5). The revised ADA title III regulation and the 2010 Standards contain new requirements for elements in existing facilities that were not addressed in the 1991 Standards. These requirements include recreational facilities found at the Tropicana, such as spas, hot tubs, saunas, exercise machines, and a swimming pool. These elements must be modified to the extent readily achievable to comply with the 2010 Standards. See 28 C.F.R. § 36.304 (d)(2)(iii).
  4. Title III requires a public accommodation to ensure that, to the maximum extent feasible, the altered portions of a facility are readily accessible to and usable by individuals with disabilities to provide them with an equal opportunity to participate in, or benefit from, its goods and services. 42 U.S.C. § 12182(a); 42 U.S.C. § 12183(a)(2); 28 C.F.R. §§ 36.201(a); 28 C.F.R. § 36.402(a); 28 C.F.R. § 36.403(a)(1). Title III also requires a public accommodation to make reasonable modifications to its policies, practices, and procedures when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302. A public accommodation must also remove architectural barriers in existing facilities where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense. 42 U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R. § 36.304. Moreover, a public accommodation must maintain in operable working condition those features of its facilities that are required to be accessible. 28 C.F.R. § 36.211(a).

III. FINDINGS BY THE DEPARTMENT

  1. During the course of the Compliance Review, the Department found violations of the 1991 Standards, which are listed in Attachment A to this Agreement. Some of the Department's findings include the following:
  1. Parking
    1. Self-Park Garage A:
      • Several of the designated accessible parking spaces do not have the required 60-inch wide access aisle;
      • Vertical clearance is insufficient to permit a van to be parked;
      • Accessible parking space identification signage can be obscured when a vehicle is parked in the space;
      • Curb ramps leading from the elevator lobbies to the parking areas on all levels, except the second level, have a level change at the bottom that is not beveled.
  2. North Tower
    1. Public Toilet Rooms
      • Signs identifying the toilet rooms in raised characters and Braille are not provided on the walls adjacent to the latch side of the entry doors;
      • In some of the designated accessible standard stalls, there is no grab bar at the rear of the toilet, or the rear grab bar is too short;
      • Some coat hooks in the designated accessible standard stalls are mounted too high;
      • Some large toilet rooms are lacking “ambulatory” accessible stalls;
      • Some toilet seat (in the designated accessible standard stall) or urinal heights do not comply with the Standards;
      • Some thresholds do not comply with the Standards;
      • Some toilet rooms have no lavatory with hot water supply and drain pipes that are insulated or otherwise configured to protect against contact;
      • In one toilet room, the entry door pull side maneuvering clearance is too narrow and in another toilet room, the entry door push side maneuvering clearance is too narrow;
      • In one toilet room, the flush control on the toilet in the designated accessible standard stall is on the narrow side of the toilet;
      • In one toilet room, there is no front approach accessible lavatory;
      • Some toilet paper dispensers are not within reach of the toilet in the designated accessible stall;
      • In one toilet room, the approach to the designated accessible stall is too narrow;
      • Some designated accessible stall doors swing inward;
      • Some toilet rooms have insufficient clearance around the toilet in the designated accessible standard stall;
      • In one toilet room, the feminine hygiene product vending machine is a protruding object hazard.
    2. Designated Accessible Guest Rooms/Suites
      • In one designated accessible guest room, the pull side maneuvering clearance at the entry door is too narrow;
      • In some designated accessible guest rooms, there is insufficient space between or next to the beds to permit maneuvering;
      • Drapery controls are too high and require tight grasping and pinching to operate the draperies;
      • Bathtub and shower controls are not installed in compliant locations in the bathrooms of some designated accessible guest rooms/suites;
      • Some of the designated accessible guest room bathrooms have lavatories that do not have hot water supply and drain pipes that are insulated or otherwise configured to protect against contact;
      • In some designated accessible guest room bathrooms, there is no seat that is capable of secure placement provided in the bathtubs;
      • There are non-compliant or missing grab bars at the bathtubs and/or the toilets in some designated accessible guest room bathrooms;
      • In one designated accessible guest room bathroom, the clear floor space at the toilet is too small, and the centerline of the toilet is too far from the wall;
      • In some designated accessible guest room bathrooms, the towel rack is a protruding object hazard;
      • In one designated accessible guest room bathroom, the toilet paper dispenser was not within reach of the toilet;
      • In one designated accessible guest room, the operating hardware on the sliding bathroom entry door was not exposed and usable from both sides.
    3. Other Areas
      • Cash register counters near the former lobby entrance and the convention area registration counters are not accessible;
      • There is no interior accessible route from the beauty salon to the other areas of the first floor and no directional signage to the exterior accessible route;
      • Some of the ramps have a rise greater than six inches, but do not have handrails on both sides of the ramp;
      • The entrance door to the Il Verde Restaurant requires too much force to open;
      • The Tropicana Showroom does not provide any wheelchair spaces, any companion seats, or any designated aisle seats;
      • Some drinking fountains do not comply with the Standards;
      • There is no accessible route to the stage in the Royal Swan Ballroom;
      • The mailbox near the former lobby entrance is a protruding object hazard;
      • The knee space at the computer workstation in the business center does not comply with the Standards.
  3. South Tower
    1. Public Toilet Rooms
      • Some toilet rooms have no lavatory with hot water supply and drain pipes that are insulated or otherwise configured to protect against contact;
      • In some toilet rooms, there is no front approach accessible lavatory;
      • Some large toilet rooms are lacking “ambulatory” accessible stalls;
      • Signs identifying the toilet rooms in raised characters and Braille are not provided on the wall adjacent to the latch side of the door;
      • In some toilet rooms, the toilet seat in the designated accessible stall is too low;
      • In some toilet rooms, the threshold does not comply with the Standards;
      • In one toilet room, the mirrors are mounted too high, the threshold is not beveled, and the toilet flush control in the designated accessible stall is on the narrow side of the toilet;
      • The payphone near the large women’s toilet room on the second floor of the casino is a protruding object hazard;
      • The toilet rooms near the meeting rooms and elevators are completely inaccessible.
    2. Locker Rooms and Swimming Pools
      • None of the shower stalls comply with the size requirements, provide the required seats, or the required grab bars;
      • The shower spray unit in the largest stall of the women's locker room only has a fixed shower head;
      • All shower controls require tight grasping and twisting;
      • None of the lavatories have hot water supply and drain pipes that are insulated or otherwise configured to protect against contact;
      • The pull side maneuvering clearance at the entry/exit doors to both locker rooms is too narrow;
      • The "house" phones, facial tissue dispensers, and drinking fountains are not mounted at a compliant height;
      • The sauna in the men's locker room does not have a compliant bench, wheelchair turning space, or entry door;
      • Signs identifying the locker rooms in raised characters and Braille are not provided on the wall adjacent to the latch side of the door.
    3. Designated Accessible Guest Rooms/Suites
      • Drapery and thermostat controls require tight grasping and pinching to operate the draperies;
      • Drapery and thermostat controls are too high;
      • In some designated accessible guest rooms, the route to the thermostat control and/or drapery controls is too narrow;
      • In some designated accessible guest room bathrooms, the flush control is on the narrow side of the toilet;
      • In the bathrooms of some designated accessible guest rooms, there are either non-existent or non-compliant grab bars;
      • In the bathrooms of some designated accessible guest rooms, the toilet is not located beside a wall;
      • In one designated accessible guest room, there is insufficient clear floor space in the bathroom, the bathtub controls are not offset towards the clear floor space, there is no accessible bathtub seat that is capable of secure placement, the toilet paper dispenser is not within reach of the toilet, and the shower spray unit is only a fixed shower head.
    4. Other areas
      • Compliant clear floor space is not provided between each different type of exercise machine/equipment in the exercise room;
      • In the Fiesta Buffet, the buffet counter surfaces and the cash register counters are too high;
      • The interior ramp near the porte cochere in the main lobby has a rise greater than six inches, but does not have compliant handrails on both sides of the ramp;
      • Drinking fountains near the meeting rooms and elevators are not at the compliant height.
  4. Havana Tower
    1. Public Toilet Rooms
      • In some toilet rooms, there is no front approach accessible lavatory;
      • Some large toilet rooms are lacking "ambulatory" accessible stalls;
      • In some toilet rooms, signs identifying the toilet rooms in raised characters and Braille are not provided on the walls adjacent to the latch side of the entry doors;
      • The entry doors to some toilet rooms require too much force to open;
      • Some entry doors require too much force to open;
      • In some toilet rooms, coat hooks and toilet paper dispensers are not mounted in compliant locations;
      • In some toilet rooms, the flush controls are on the narrow side of the designated accessible toilet;
      • Some toilet rooms have no lavatory with hot water supply and drain pipes that are insulated or otherwise configured to protect against contact.
    2. Designated Accessible Guest Rooms/Suites
      • Drapery controls are too high, and require tight grasping and pinching to operate the draperies;
      • In one guest room, there is no accessible route connecting all accessible spaces and elements within the guest room;
      • In some designated accessible guest room bathrooms, there is no compliant seat in the shower or bathtub;
      • In some designated accessible guest room bathrooms, shower spray units and controls are not installed in a compliant location;
      • In some designated accessible guest room bathrooms, the towel racks are protruding object hazards.
    3. Other Areas
      • There is no accessible route to the stage in Tangos;
      • The Ranchera Meeting Room entry door requires too much force to open;
      • The drinking fountain on the third floor does not provide a flow of water that is at least four inches high.
  5. West Tower
    1. Public Toilet Rooms
      • Signs identifying the toilet rooms in raised characters and Braille are not provided on the walls adjacent to the latch side of the entry doors;
      • In some toilet rooms, the centerline of the toilet in the designated accessible standard stall is too far from the side wall;
      • Some toilet rooms have no lavatory with hot water supply and drain pipes that are insulated or otherwise configured to protect against contact;
      • Some large toilet rooms are lacking "ambulatory" accessible stalls;
      • In some toilet rooms, there is no front approach accessible lavatory;
      • In some toilet rooms, hand dryers are protruding object hazards;
      • In some designated accessible standard stalls, the door does not swing outward.
    2. Guest Rooms/Suites
      • Drapery controls are too high, and require tight grasping and pinching to operate the draperies;
      • In some designated accessible guest rooms, the thermostat and/or bathtub faucet controls require tight grasping, pinching, or twisting;
      • In one of the designated accessible guest rooms, the pull side maneuvering clearance at the guest room entry door is too narrow;
      • In the bathrooms of some designated accessible guest rooms/suites, the toilet paper dispenser is not installed within reach of the toilet;
      • In the bathrooms of some designated accessible guest rooms/suites, there was no compliant seat in the shower or bathtub;
      • In the bathrooms of some designated accessible guest rooms/suites, the clear floor space around the toilet is too small;
      • In the bathrooms of some designated accessible guest rooms/suites, the toilet flush control is on the narrow side of the toilet;
      • In the bathrooms of some designated accessible guest rooms/suites, the shower spray units are only fixed shower heads;
      • In the bathroom of one of the designated accessible guest rooms, the robe hook is mounted too high.
    3. Other areas
      • The pay phones in the Transportation Center are mounted too high.
  1. The Department also identified other violations of title III of the ADA and its implementing regulations, in accordance with the provisions identified in paragraph 8, above. For example, the Department found that the Company did not provide an opportunity for potential guests to reserve accessible guest rooms and suites on the Tropicana website, even though potential guests, without disabilities, can reserve other guest rooms and suites on the Tropicana's website.

IV. TERMS OF AGREEMENT

  1. It is understood and agreed that this Agreement constitutes a compromise and settlement of disputed claims, and is not intended, nor to be construed, as an admission by Tropicana of non-compliance with the requirements of Title III of the ADA and its implementing regulations or any liability arising thereunder.  This Agreement therefore shall not be taken or used or be deemed admissible in evidence for purposes of proving non-compliance with the requirements of Title III of the ADA and its implementing regulations or for purposes of proving any liability arising thereunder, in any action or proceeding except an action brought by the United States to enforce the terms of this Agreement.
  2. The Parties hereby confirm that there are no intended third party beneficiaries of this Agreement, and therefore, no person who is not a party to this Agreement shall have any right to enforce its terms against either Party.
  3. The Company agrees to correct each 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, the Company shall ensure that:
      1. The designated accessible car parking spaces in the Tropicana’s self-park garage “A” have compliant access aisles and identification signs;
      2. The Tropicana self-park garages have compliant van accessible parking spaces;
      3. A compliant accessible route exists from the elevator lobbies to the accessible parking areas; and
      4. Reservations for accessible guest rooms can be made through the Tropicana’s website reservation system.
    2. Within nine months of the effective date of this Agreement, the Company shall remedy each of the non-compliant circumstances described in Attachment A with respect to the following rooms and/or spaces:
      1. Public toilet rooms;
      2. Drinking Fountains;
      3. Bars;
      4. Retail Spaces; and
      5. Buffet.
    3. Within eighteen months of the effective date of this Agreement, the Company shall remedy each of the non-compliant circumstances described in Attachment A with respect to:
      1. The designated accessible guest rooms of various types in the Havana Tower and the West Tower so that the Tropicana's number and distribution of accessible guest rooms comply with the 2010 Standards.
    4. Within twenty-four months of the effective date of this Agreement, the Company shall remedy each of the noncompliant circumstances described in Attachment A with respect to:
      1. The designated accessible guest rooms of various types in the South Tower and the North Tower so that the Tropicana's number and distribution of accessible guest rooms comply with the 2010 Standards.
    5. Within thirty months of the effective date of this Agreement, the Company shall remedy each of the noncompliant circumstances described in Attachment A with respect to the following amenities:
      1. Spa locker rooms, including associated toilet/bathing rooms;
      2. Gym/Exercise room;
      3. Saunas; and
      4. Swimming pool.
    6. Within thirty-six months of the date of this Agreement, the Company shall make a good faith effort to ensure that all of its facilities that are not expressly addressed in Attachment A are readily accessible to and usable by, individuals with disabilities.
    7. Failure of the Tropicana to perform any action required by this Settlement Agreement shall not subject it to any liability or remedy for damages or otherwise, or constitute breach of this Settlement Agreement, if such failure is occasioned in whole or in part by an act of God, fires, accidents, earthquakes, explosions, floods, wars, terrorism, labor disputes or shortages, riots or sabotage, or any similar circumstance beyond the Tropicana's reasonable control.
    8. Tropicana's obligations set forth in this Settlement Agreement are subject to, and contingent upon, obtaining all necessary permits, consents, and approvals from local building departments and other relevant governmental authorities, including, but not limited to, fire officials and planning commissions.
      • A good faith effort will be made to obtain the necessary permits, consents, and/or approvals, however, if such permits, consents, and/or approvals cannot be obtained by the Tropicana for an alteration or modification, those alterations or modifications specifically requiring the denied permit(s), consent, and/or approval need not be made, however, the Tropicana shall make all other alterations and modifications to the Property required by this Settlement Agreement which do not require the denied permit(s), consent, and/or approval, or for which the necessary permit(s), consent, and/or approval is obtained.
      • The Parties agree that any delays in making the alterations/modifications to a Property as provided for herein caused by city or county building officials, inspectors, or permitting departments shall not be deemed to violate the compliance dates contained herein, provided any such delays do not result from the Tropicana's failure to take appropriate action and provided that before the expiration of the applicable remediation period, the Tropicana provides the United States with written notice, by certified mail and/or facsimile and/or e-mailed .pdf file, of the specific non-compliance and the reasons therefor.
  1. If the Company alters any space described in Attachment A affected by this Agreement such that any violation(s) identified in Attachment A no longer exist(s), then the Company shall be excused from remedying the alleged violation(s) because the violation(s) will be moot.  The Company, however, shall ensure that the altered space fully complies with the ADA.  28 C.F.R. §§ 36.402 and 36.403.
  2. The Company shall not discriminate against individuals with disabilities on the basis of disability in the full and equal enjoyment of its goods, services, and facilities.  42 U.S.C. § 12182.
  3. The Company shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford its goods, services, or facilities to individuals with disabilities who visit the Tropicana, unless the modifications would fundamentally alter the nature of the goods, services, or facilities.  28 C.F.R. § 36.302.
  4. The Company 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.  28 C.F.R. § 36.211.
  5. Within six months of the effective date of this Agreement, the Company shall develop and implement a written Disability Rights Policy for the Tropicana that:
    1. Sets forth and explains the anti-discrimination mandate of title III of the ADA;
    2. Describes the duty to make reasonable modifications to policies, practices, and procedures under the ADA and provides examples of such modifications; and
    3. Identifies and explains the procedures that employees must follow when responding to requests for reasonable modifications made by persons with disabilities, including ensuring that the person who decides whether to grant or deny the request has received the training identified in Paragraph 18. The Disability Rights Policy shall include, but not be limited to, procedures for handling requests for reasonable modifications pertaining to gaming tables and slot machines, as well as reservations for designated accessible guest rooms.

    The Tropicana shall provide a draft of such Policy to the Department for its written approval prior to dissemination.

  6. Within twelve months of the effective date of this Agreement, the Company shall provide training on title III of the ADA to every manager, director, and supervisor whose routine job functions require them to regularly interact with guests and/or to supervise employees who regularly interact with guests, and to any Tropicana employee who receives, handles, or processes reservations or requests for reasonable modifications of policies, practices, or procedures. Tropicana shall also provide ADA training to all new employees during employee orientation. The use of an ADA training video is an acceptable form of training. For all of these managers, directors, supervisors, and employees, the 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 Tropicana's new Disability Rights Policy. The Tropicana's managers and employees who receive, handle, or process reservations will also receive training about the requirement to hold accessible guest rooms for possible rental by persons with disabilities until all other guest rooms in the same price category have been rented. This training will also describe the classes and types of guest rooms that the Tropicana offers that are designated as being accessible. Within fourteen days after the training, the Company shall provide the Department with an attendance sheet indicating which employees attended the training, their titles, and when it occurred. Tropicana shall provide sign-in sheets documenting the training of new employees on the date the annual report is due.
  7. During the term of this Agreement, the Company 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 12, 17, and 18 of this Agreement.  The report shall identify and document (e.g., with copies of construction contracts, photographs, and/or design drawings) the modifications that the Company has made, document any training of employees that has occurred (by date and the content of the training), and provide copies of any ADA-related policies that the Company has adopted.

    8. V. IMPLEMENTATION AND ENFORCEMENT

  8. The Department shall have the right, during the term of this Agreement and with reasonable prior notice to the Company of not less than twenty-one days, to conduct inspections of the Tropicana'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 the Company, so that the Company can ensure minimal disruption to its operations from such inspections.
  9. If the Department believes that the Company is not in compliance with this Agreement or any requirements contained herein, the Department agrees to notify the Company 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 the Company has failed to make a modification required pursuant to this Agreement, including Attachment A, on or before the deadline set forth in Paragraphs 12, 17, or 18, 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 Company’s defenses to an action under the ADA.
  10. 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 21.
  11. 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.
  12. This Agreement shall be binding upon the Company, its agents, and employees.  In the event the Company seeks to transfer or assign all or part of its interests in the Tropicana, then, as a condition of sale, the Company shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
  13. 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):

    14. For the Company:

    Joseph Muskett, Esq.
    Corporate Counsel
    Tropicana Atlantic City, 5th Floor
    Brighton Avenue and The Boardwalk
    Atlantic City, New Jersey 08401

    For the United States:

    Mark C. Orlowski
    Assistant U.S. Attorney
    United States Attorney’s Office
    970 Broad Street, 7th Floor
    Newark, NJ 07102
    Mark.Orlowski@usdoj.gov
    Tel: (973) 645-2760
    Fax: (973) 297-2010

  14. This Agreement, including Attachment A, constitutes the entire Agreement between the Parties relating to Department of Justice Investigation No. 202-48-242 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.
  15. 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, the Department and the Company 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.
  16. This Agreement is limited to the Tropicana facility in Atlantic City, New Jersey and does not apply to any other facility, design or construction project of, or related to, the Company.  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 the Company’s continuing responsibility to comply with all aspects of the ADA not covered by this Agreement.
  17. A signatory to this document in a representative capacity for the Company represents that he or she is authorized to bind the Company to this Agreement.
  18. The effective date of this Agreement is the date of the last signature below.  The Agreement shall remain in effect for thirty-six months from the effective date, unless extended by written agreement of the Parties.

FOR THE COMPANY:

TROPICANA ATLANTIC CITY CORP.
D/B/A TROPICANA CASINO AND RESORT

 

By:     /s/ Steve Callender           
STEVE CALLENDER
General Manager

Dated: 12/23/14

 

FOR THE UNITED STATES:

PAUL J. FISHMAN
UNITED STATES ATTORNEY
DISTRICT OF NEW JERSEY

 

By:     /s/ Mark C. Orlowski         
MARK C. ORLOWSKI
Assistant U.S. Attorney

Dated: 12/23/14

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