SETTLEMENT AGREEMENT

BETWEEN

THE UNITED STATES OF AMERICA

AND

VISCOUNT HOTEL GROUP, LLC

UNDER THE AMERICANS WITH DISABILITIES ACT

BACKGROUND AND JURISDICTION

1. The parties to this agreement are the United States of America and Viscount Hotel Group, LLC (“Viscount”) (collectively “the Parties”).
2. Viscount operates a place of lodging and is therefore a public accommodation within the meaning of section 301 (7)(A) of the Americans with Disabilities Act (“the ADA” or “the Act”) and section 36.104 of the Department’s implementing regulation. 42 U.S.C. § 12181; 28 C.F.R. § 36.104. Title III requires that public accommodations not discriminate against any individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation, 42 U.S.C. § 12182.
3. This matter was initiated by a complaint filed with the United States Department of Justice (“the Department”) regarding the Viscount Suite Hotel, located at 4855 East Broadway, Tucson, Arizona (“the Hotel”). The complaint was investigated by the United States Attorney’s Office for the District of Arizona by a referral from the Disability Rights Section of the Civil Rights Division of the United States Department of Justice, under authority granted by Section 308(b) of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12188. The complaint alleges that the parking lot and open dining area of the Hotel have architectural barriers to access by persons with disabilities and removal of these barriers is readily achievable.
4. The subject of this Settlement Agreement is the removal of architectural barriers throughout the Hotel, including, but not limited to, the parking lot, public pay phones, public restrooms, guest rooms, restaurants, and other spaces of the Hotel and the provision of auxiliary aids and services for guests who are deaf or hard of hearing. Viscount agrees to complete such barrier removal in a manner that is consistent with Title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181-89, and the Department’s Title III regulation, 28 C.F.R. part 36, including the ADA Standards for Accessible Design (“Standards”).
5. The Parties desire to settle this matter without resorting to litigation and have, therefore, entered into this Settlement Agreement.

AGREEMENT

The Parties agree as follows:

Parking

6. Viscount agrees to remove barriers to access in the parking area, and to bring the parking lot into compliance with the Standards as follows:

Public Telephones

7. Viscount agrees to make its public telephones accessible to persons with disabilities as follows:

Public Restrooms

8. Viscount agrees to remove barriers that limit access to the restrooms located on the ground floor of the lobby as follows:

Elevators Servicing the Guest Rooms

9. Viscount agrees to remove barriers related to the Hotel elevators by placing proper signage on each hoistway entrance consistent with Standard § 4.10.5. The modifications to the elevators will be completed within sixty (60) days of the effective date of this Agreement.

Guest Rooms

10. Viscount agrees to remove certain barriers from seven (7) designated accessible guest rooms as follows:
    1.  The following modifications will be made to each bathroom:

    (1)   Modify the bathroom door so that it swings outward and will not restrict the clear floor space for the toilet, bathtub and lavatory, consistent with Standards §§ 4.16.2; 4.23.2; 4.19.3 and 4.20.2.

    (2)   Insulate and configure the drain pipes under the lavatory to protect against contact and other injuries to a person in a wheelchair, consistent with Standard § 4.19.4.

    (3)   Modify the towel rack so that it is a maximum of 48 inches above the floor consistent with Standard § 4.2.5.

    (4)   Modify the side grab bar of the toilet so that it is at least 42 inches long and can be folded-up so it will not restrict the clear floor space when not in use, consistent with Standards §§ 4.16.2; 4.16.4.

    (5)   Modify the rear grab bar behind the toilet so that it is at least 36 inches long and 33-36 inches above the finish floor consistent with Standard § 4.16.4.

    (6)   Modify the coat hook on the bathroom door so that it is a maximum of 48 inches above the floor consistent with Standard § 4.2.5.

    (7)   Add an additional grab bar on the back wall of the bathtub consistent with Standard § 4.20.4.

    (8)   Modify the bathroom door handle hardware so that it is easy to grasp with one hand and does not require tight grasping, tight pinching, or twisting of the wrist to operate, consistent with Standard § 4.13.9.

    (9)   Add a bathtub seat consistent with Standard § 4.20.3.

    (10)   Should the Hotel undergo renovations or alterations in the future, Viscount agrees to evaluate its obligations under the ADA to increase the clear floor space in the bathrooms if feasible, and to install roll-in showers in three (3) of the designated accessible guest rooms, consistent with Standards §§ 4.16.2; 9.1.2; 4.23.3; 4.19.3 and 4.20.2.

    2. Modify the temperature control mechanisms so that they are a maximum of 48 inches above the floor for a forward reach, or 54 inches for a side reach, consistent with Standards §§ 4.27.3; 4.2.5 and 4.2.6.
    3. Equip the rooms with visual smoke alarms, visual door knock and telephone indicators, accessible telephones and television decoders, consistent with Standard § 9.3.1.
    4. The modifications in this paragraph will be completed within 120 days of the effective date of this Agreement.

11. In addition to the accessible guest rooms referenced in paragraph 10, Viscount agrees to modify five (5) additional rooms to make them accessible to persons with hearing impairments, consistent with Standard § 9.3.1. The modifications will be completed within 120 days of the effective date of this Agreement.

Policies and Procedures

12. Viscount agrees to institute the following written policies within thirty (30) days of the effective date of this Agreement:

13. In the event of the occurrence of the contingencies described in subparagraphs 12 b (i) -(iv) , above, Viscount will reserve equivalent and accessible accommodations at another convenient and comparable place of lodging for a guest who had a guaranteed reservation for an accessible room. Viscount will pay the difference, if any, between Viscount’s guaranteed reservation rate and the rate at the alternate hotel for the first night’s lodging.

IMPLEMENTATION AND ENFORCEMENT

14. The Attorney General is authorized, pursuant to section 308(b)(1)(B) of the Act, to bring a civil action under Title III, enforcing the ADA in any situation where a pattern or practice of discrimination is believed to exist or a matter of general importance is raised. In consideration of the terms of this Agreement as set forth above, the Attorney General agrees to refrain from undertaking further investigation or from filing civil suit under Title III in this matter, except as provided in paragraph 15 below.
15. The Department may review compliance with this Agreement at any time. If it believes that this Agreement or any requirement thereof has been violated, the United States Attorney’s Office will so notify Viscount in writing and it will attempt to resolve the issue or issues in good faith. If the Parties are unable to reach a satisfactory resolution of the issue or issues raised within sixty (60) days of the date the United States Attorney’s Office provides notice to the Viscount, the United States Attorney’s Office may institute a civil action in federal district court directly to enforce title III of the ADA or to enforce the terms of this Agreement.
16. Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein shall not be construed as a waiver of its right to do so with regard to other deadlines and provisions of this Agreement.
17. In the event that Viscount fails to comply in a timely fashion with any material requirement of this Agreement without obtaining sufficient advance written agreement with the Department as to a temporary modification of the relevant terms of the Agreement, all terms of this Agreement shall become enforceable in United States District Court.
18. A copy of this document or any information contained in it will be made available to any person or entity upon request.
19. The effective date of this Agreement is the date of the last signature below. This Settlement Agreement is final and binding on the Viscount, its agents and employees. In the event Viscount 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 Viscount shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
20. This Agreement constitutes the entire Agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement, shall be enforceable. This Agreement is intended to remedy the violations of the Americans with Disabilities Act perceived by the Department. This Agreement does not affect the continuing responsibility of Viscount to comply with all aspects of the Americans with Disabilities Act. Specifically, this Agreement does not affect the duties of Viscount with regard to the alterations and new construction requirements of the Act, nor with regard to barrier removal in other parts of the Hotel not mentioned herein or in any other facility owned and/or operated by Viscount.
21. The parties agree that, if any provision of this Agreement is affected by any future proceeding in bankruptcy, the parties shall jointly apply for withdrawal of the proceeding to district court for resolution of the matter.
22. A signer of this document in a representative capacity for a partnership, corporation, or other entity, represents that he or she is authorized to bind such partnership, corporation, or other entity to this Agreement.

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March 23, 2007