VOLUNTARY COMPLIANCE AGREEMENT

between

THE UNITED STATES OF AMERICA

and

WESTGATE RESORTS, LTD.

and

CFI RESORTS MANAGEMENT, INC.

WHEREAS, the Americans with Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. §§ 12181-12189, provides, among other things, that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation," §§ 42 U.S.C. § 12182(a); and

WHEREAS, the term "public accommodation" under the ADA includes "an inn, hotel, motel, or other place of lodging," §§ 42 U.S.C. § 12181(7)(A); and

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

WHEREAS, on November 30 through December 1, 2011, pursuant to its authority under 42 U.S.C. § 12188(b)(1)(A)(i), the United States Attorney's Office for the Eastern District of Tennessee (the "United States") commenced an investigation of the owners and operators of the Westgate Smoky Mountain Resort & Spa (the "Resort"), based upon complaints from patrons of the Resort that the Resort lacked the accessible features required by law (the "Investigation"); and

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

WHEREAS, in light of the actions taken by the Resort to date to comply with the ADA, and the actions that the Resort has agreed to take within the next three years as set forth in this agreement (the "Agreement"), the United States has decided to take no further enforcement action at this time with respect to the Resort as a result of this Investigation.

NOW, THEREFORE, IT IS HEREBY AGREED, BY AND BETWEEN THE UNITED STATES OF AMERICA AND THE OWNERS AND OPERATORS OF THE RESORT, AS FOLLOWS:

I.        APPLICATION AND PARTIES BOUND

  1. The Resort is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7) because, among other things, it is “an inn, hotel, motel, or other place of lodging.” 42 U.S.C. § 12181(7)(A); See 28 C.F.R. § 36.104.
  2. Westgate Resorts, Ltd. (the “Owner”) is a public accommodation within the meaning of Title III of the ADA because it owns the Resort, a place of public accommodation. See 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104.
  3. CFI Resorts Management, Inc. (the “Operator”) is a public accommodation within the meaning of Title III of the ADA because it operates the Resort, a place of public accommodation. See 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104.
  4. This Agreement shall be binding on the Owner and the Operator, and each of their agents and employees. In the event the Owner or Operator seeks to transfer or assign all or part of their interest in the Resort, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale the Owner or Operator shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
  5. The Resort properties affected by this agreement shall include new construction, property existing prior to July 26, 1991 (“Existing Property”), and alterations to Existing Property.

    6. II.        DEFINITIONS

  6. For purposes of this Agreement, the term "1991 Standards" means requirements set forth in the ADA Standards for Accessible Design, originally published on July 26, 1991, and republished as Appendix D to 28 C.F.R. part 36. 28 C.F.R. § 36.104.
  7. For purposes of this Agreement, the term "2010 Standards" means the 2010 ADA Standards for Accessible Design, which consist of the 2004 ADAAG, 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. 28 C.F.R. § 36.104.
  8. For purposes of this Agreement, the term "alterations" means a change to the Resort that affects or could affect the usability of the building or facility or any part thereof and includes, but is not limited to, remodeling, renovation, rehabilitation, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full height partitions. Normal maintenance, re-roofing, painting or wallpapering, asbestos removal, or changes to mechanical or electrical systems are not alterations unless they affect the usability of the building or facility.

    9. III.        STANDARDS GOVERNING THIS AGREEMENT

  9. Because this investigation was commenced and completed by the United States under the ADA using the 1991 Standards, before the 2010 Standards took effect, and because the parties had reached an agreement in principle before the 2010 Standards took effect, the parties agree for the purposes of this Agreement, the 1991 Standards shall apply except where specifically noted. The 1991 Standards apply only to the provisions of this Agreement as specifically set forth herein. For any and all other aspects of the Resort as a public accommodation (goods, services, privileges, advantages, or accommodations) not specified herein, the current law shall govern, including the 2010 Standards.

    10. IV.        WELCOME CENTER

  10. The Resort shall ensure that the Site Arrival and at least one upper level and one lower level Entrance to the Welcome Center is in compliance with Sections 4.1.2(5), 4.6.2, 4.6.3, 4.7.2, 4.13.5, 4.13.6, and 4.13.8 of the 1991 Standards.
  11. The Resort shall ensure that its Welcome Center Lobby on each level is in compliance with Sections 4.1.3(16)(a), 4.4.1, and 7.2 of the 1991 Standards.
  12. The Resort shall ensure that its Welcome Center Restrooms are in compliance with Sections 4.1.3(16)(a), 4.4.1, 4.13.6, 4.13.11, 4.17.3, 4.17.5, 4.18.2, 4.19.4, 4.22.7, 4.25.3, and 4.32.4 of the 1991 Standards.
  13. The Resort shall ensure that its Welcome Center Great Room and Development Museum are in compliance with 28 C.F.R. § 36.302 and Section 4.32.3 of the 1991 Standards. The Resort shall maintain its fire extinguishers in the Welcome Center Great Room such that their projection distance from the wall is in compliance with Section 4.4.1 of the 1991 Standards. Additionally, the Resort shall maintain the wall-mounted televisions in the Welcome Center Development Museum in compliance with Section 4.4.1 of the 1991 Standards.

    14. V.        THE LODGE

  14. The Resort shall ensure that the Site Arrival and Entrance to the Lodge is in compliance with Sections 4.1.2(5), 4.6.2, and 4.6.6 of the 1991 Standards.
  15. The Resort shall ensure that the Lobby of the Lodge is in compliance with 28 C.F.R. § 36.302 and Sections 4.4.1, 4.32.3, and 7.2 of the 1991 Standards.
  16. The Resort shall ensure that the Marketplace and Deli at the Lodge are in compliance with Sections 4.3.5, 4.4.1, and 5.6 of the 1991 Standards.
  17. The Resort shall ensure that the Fitness Center at the Lodge is in compliance with Sections 4.4.2 and 4.31.3 of the 1991 Standards.
  18. The Resort shall ensure that its Lodge Restrooms are in compliance with Sections 4.1.3(16)(a), 4.4.1, 4.13.6, 4.13.11, 4.17.3, 4.17.5, 4.17.6, 4.18.2, 4.19.4, 4.22.7, 4.25.3, 4.30.6, and 4.32.4 of the 1991 Standards.
  19. The Resort shall ensure that the Serenity Spa at the Lodge, including locker rooms, is in compliance with Sections 4.1.3(14), 4.1.3(16)(a), 4.2.4, 4.4.2, 4.5.2, 4.13.5, 4.13.6, 4.13.9, 4.13.11, 4.21.4, 4.21.7, 4.25.3, 4.25.4, 4.27.4, 7.2, and 4.35.4 of the 1991 Standards.
  20. The Resort shall ensure that the Smokehouse Grill, Mason Jar Lounge, Picnic Area North of the Lodge, and Game Room Arcade at the Lodge are in compliance with 28 C.F.R. § 36.302 and Sections 4.1.3(16)(a), 4.4.1, 4.32.3, and 7.2 of the 1991 Standards.

    21. VI.        WILD BEAR INDOOR WATER PARK

  21. The Resort shall ensure that the Site Arrival and Entrance to the Wild Bear Indoor Water Park are in compliance with Sections 4.1.2(5), 4.3.7, 4.5.4, 4.6.3, 4.6.4, 4.7.2, and 4.7.5 of the 1991 Standards.
  22. The Resort shall ensure that the Lobby Area of the Wild Bear Indoor Water Park is in compliance with Sections 4.4.1 and 7.2 of the 1991 Standards.
  23. The Resort shall ensure that the Pool Area of the Wild Bear Indoor Water Park is in compliance with 28 C.F.R. § 36.304 and Sections 4.4.1, 4.13.2, and 4.25.4 of the 1991 Standards.
  24. The Resort shall ensure that the Locker Rooms at the Wild Bear Indoor Water Park are in compliance with Sections 4.1.3(16)(a), 4.4.1, 4.5.2, 4.13.9, 4.17.3, 4.17.5, 4.17.6, 4.22.7, 4.23.4, 4.23.7, 4.25.3, 4.25.4, and 4.35.4 of the 1991 Standards.
  25. The Resort shall ensure that the Cafeteria and Dining Areas at the Wild Bear Indoor Water Park are in compliance with Sections 4.4.1, 4.13.9, 4.32.3, 5.5, 5.6, and 7.2 of the 1991 Standards and 28 C.F.R.§ 36.302.
  26. The Resort shall ensure that the Game Room Arcade and Game Room Single-User Restroom at the Wild Bear Indoor Water Park are in compliance with Sections 4.1.3(14), 4.1.3(16)(a), 4.4.1, 4.13.8, 4.13.9, 4.13.11, 4.16.4, 4.17.6, and 4.22.7 of the 1991 Standards.
  27. The Resort shall ensure that the Cafeteria and Dining Areas at the Wild Bear Indoor Water Park are in compliance with Sections 4.4.1, 4.13.9, 4.32.3, 5.5, 5.6, and 7.2 of the 1991 Standards and 28 C.F.R. § 36.302.
  28. The Resort shall ensure that the Third Floor In-House Sales Lounge at the Wild Bear Indoor Water Park is in compliance with Sections 4.4.1, 4.32.3, and 7.2 of the 1991 Standards and 28 C.F.R. § 36.302.

    29. VII.        SITE AMENITIES

  29. The Resort shall ensure that the Valley Pool and Restrooms are in compliance with Sections 4.1.2, 4.1.3(16)(a), 4.3.7, 4.4, 4.4.1, 4.6.3, 4.13.6, 4.13.8, 4.13.9, 4.16.2, 4.16.4, 4.19.4, and 4.22.7 of the 1991 Standards.
  30. The Resort shall ensure that the Playground Area is in compliance with Sections 4.1.2(5), 4.5.1, 4.5.2, and 4.32 of the 1991 Standards and 2010 Standards §§ 240 and 1008.
  31. The Resort shall ensure that the Dog Run by Building 329 is in compliance with Sections 4.1.2(5), 4.5.1, and 4.5.2 of the 1991 Standards.

    32. VIII.        BUILDING 1000

  32. The Resort shall ensure that the Site Arrival and Entrance to Building 1000 are in compliance with Fair Housing Accessibility Guideline (“FHAG”) 4(6) and Sections 4.3.7, 4.4.1, 4.6.3, 4.6.4, and 4.7.2 of the 1991 Standards.
  33. The Resort shall ensure that the Timeshare Unit Sales Areas, including the single-user restroom, in Building 1000 are in compliance with Sections 4.1.3(16)(a), 4.13.9, 4.16.4, 4.16.5, 4.17.6, 4.22.3, 4.22.7, 4.27.3, 4.32.3, and 4.32.4 of the 1991 Standards.
  34. The Resort shall ensure that there are four units in Building 1000 that are in compliance with Section 9.1.2 of the 1991 Standards, and these four accessible units shall include at least one accessible unit with a roll-in shower. For purposes of this Agreement, the Resort shall ensure that these four units comply with all required 1991 Standards, including, but not limited to, Sections 9.1.3, 9.1.4, and 9.2.
  35. In addition to the four accessible units in Building 1000 referenced in the preceding paragraph, the Resort shall ensure that there are three additional rooms that are made accessible for persons with hearing impairments as required by Sections 9.1.3 and 9.3 of the 1991 Standards.

    36. IX.        BUILDING 3000

  36. The Resort shall ensure that the Site Arrival and Entrance to Building 3000 are in compliance with FHAG 4(6) and Sections 4.1.2(5), 4.3.2(1), 4.3.7, 4.4.1, 4.5.2, 4.6.3, 4.6.4, and 4.7.2 of the 1991 Standards.
  37. The Resort shall ensure that there are five units in Building 3000 that are in compliance with Section 9.1.2 of the 1991 Standards, and these five accessible units shall include at least one accessible unit with a roll-in shower. For purposes of this Agreement, the Resort shall ensure that these five units comply with all required 1991 Standards, including, but not limited to, Sections 9.1.3, 9.1.4, and 9.2.
  38. In addition to the five accessible units in Building 3000 referenced in the preceding paragraph, the Resort shall ensure that there are three additional rooms that are made accessible for persons with hearing impairments as required by Sections 9.1.3 and 9.3 of the 1991 Standards.

    39. X.        BUILDING 4000

  39. The Resort shall ensure that the Site Arrival and Entrance to Building 4000 are in compliance with FHAG 4(6) and Sections 4.1.2(5), 4.3.2(1), 4.3.7, 4.4.1, 4.4.2, 4.5.2, 4.6.3, 4.6.4, and 4.7.2 of the 1991 Standards.
  40. The Resort shall ensure that there are five units in Building 4000 that are in compliance with Section 9.1.2 of the 1991 Standards, and these five accessible units shall include at least one accessible unit with a roll-in shower. For purposes of this Agreement, the Resort shall ensure that these five units comply with all required 1991 Standards, including, but not limited to, Sections 9.1.3, 9.1.4, and 9.2.
  41. In addition to the five accessible units in Building 4000 referenced in the preceding paragraph, the Resort shall ensure that there are three additional rooms that are made accessible for persons with hearing impairments as required by Sections 9.1.3 and 9.3 of the 1991 Standards.

    42. XI.        CABINS

  42. The parties agree that retrofitting the cabins, which are existing facilities, on the property to make them accessible would be a significant undertaking and one that is not necessary if two new, accessible cabin units were constructed. The Resort, therefore, agrees to construct two new cabins that are in compliance with Title III of the ADA. The Resort agrees that these cabins will be constructed in accordance with the 2010 Standards. For purposes of this Agreement, the Resort shall ensure that these two cabins are also made accessible to the hearing impaired as required by the 2010 Standards. The Resort shall ensure that the Site Arrival and Entrance to these two cabins are in compliance with Title III of the ADA as required by the 2010 Standards.
  43. In addition to the two, newly constructed, accessible cabins referenced in the preceding paragraph, the Resort shall ensure that there are 12 (i.e., 2% of 579 cabin units) existing cabins that are made accessible for persons with hearing impairments as required by Sections 9.1.3 and 9.3 of the 1991 Standards.

    44. XII.        BUILDING 5000

  44. The Resort shall ensure that upon the completion of construction of Building 5000, there are four units with mobility features and seven units with communication features in Building 5000 that are in compliance with Title III of the ADA as required by Section 224 of the 2010 Standards. One of the four units with mobility features shall also be one of the seven units equipped with communications features. For purposes of this Agreement, the Resort shall ensure that these units comply with all required 2010 Standards, including, but not limited to, Section 224.
  45. 45. The Resort shall ensure that the Site Arrival and Entrance to Building 5000 are in compliance with Title III of the ADA. For purposes of this Agreement, the Resort shall maintain the Site Arrival and Entrance to Building 5000 in compliance with Sections 206, 208, and 209 of the 2010 Standards.

    46. XIII.        POLICIES, PRACTICES, AND PROCEDURES

  46. The Resort shall establish a written policy specifically addressing the provision of services to individuals with disabilities.
  47. The Resort's policy shall specify, among other things, that

    48. (a)    persons with disabilities may reserve accessible guestrooms/suites in the same way and on the same terms that other persons can reserve guestrooms/suites (see 28 C.F.R. § 36.302);

    (b)    all reservation staff (including staff located on-site at the Resort and staff located off-site at a reservations center) shall have ready access to information about the lodging facility's accessible guestrooms/suites (including specific information on room layout and types and sizes of accessible showers, bathtubs and other features, such as tub seats) for use in making reservations and answering questions (see 28 C.F.R. § 36.302);

    (c)    accessible guestrooms/suites shall be held for possible use by persons with disabilities until all other rooms in the same price category have been rented (see 28 C.F.R. § 36.302);

    (d)    the rates for accessible guestrooms/suites shall be the same as the rates for guestrooms/suites with comparable features and amenities that are not designated accessible (see 28 C.F.R. § 36.301(c));

    (e)    accessible features inside and outside the Resort shall be maintained in good working order (see 28 C.F.R. § 36.211);

    (f)    fire-safety information, maximum room rate information, telephone and television information cards, guest services guides, restaurant menus, room service menus, and all other printed materials provided for use by guests shall also be available in alternate formats so that blind persons and persons with low vision have access to the information (see 28 C.F.R. §§ 36.303(a)-(c));

    (g)    persons with disabilities shall be permitted to use service animals, without incurring any extra charges or conditions, in guestroom/suites and all public areas of the facility (see 28 C.F.R. § 36.302(c));

    (h)    televisions in guestrooms/suites shall include televisions with built-in captioning features or close-captioning decoders provided for use by persons who are deaf or hard of hearing (see 28 C.F.R. § 36.303(e));

    (i)    Resort staff shall be made available to move furniture, and provide and adjust accessible features in guestrooms when features require installation or adjustment to ensure accessibility (see 28 C.F.R. § 36.302(a)); and

    (j)    Resort staff shall be trained to offer assistance, upon request, to persons with disabilities who cannot transport their luggage to/from their guestrooms/suites and who may need assistance in locating guestrooms and Resort amenities (see 28 C.F.R. § 36.302(a)).

    XIV.        ALTERATIONS

  48. The Owner and Operator acknowledge and agree that any alteration to the Resort shall comply with the 2010 Standards to the maximum extent feasible. The Owner and Operator further acknowledge and agree that if an alteration affects or could affect the usability of or access to an area of the Resort that contains a primary function, that alteration shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered area and the restrooms, telephones, and drinking fountain serving the altered area are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, unless the cost and scope of such alterations is disproportionate to the cost of the overall alteration. The Owner and Operator agree to notify the United States, in writing, of any alterations to the Resort commenced during the term of this Agreement and shall, in that notification, specify the steps taken to ensure that the alterations comply with the 2010 Standards to the maximum extent feasible.

    49. XV.        MONITORING AND COMPLIANCE

  49. Every year during the term of this Agreement on the anniversary date of the effective date of the Agreement, the Resort shall provide to the United States a narrative report of the actions taken during the reporting period to remove any violations of the 1991 Standards and otherwise enhance accessibility for individuals with disabilities at the Resort and any plans for action concerning ADA compliance in the coming year. The report shall include as an exhibit copies of any complaint, whether formal or informal, received during the reporting period alleging that the Resort was not being operated in compliance with the ADA or otherwise discriminated against any person on account of disability.
  50. The Owner and Operator of the Resort shall cooperate in good faith with any and all reasonable requests by the United States for access to the Resort and for information and documents concerning the Resort's compliance with this Agreement and the ADA.
  51. The United States shall have the right to verify compliance with this Agreement and the ADA, both as set forth in this Agreement and through any means available to the general public, including visits to the public areas of the Resort and communications with Resort staff upon reasonable notice. The United States shall have the right to inspect the facility at any time upon reasonable notice.

    52. XVI.        ENFORCEMENT

  52. If the United States believes that this Agreement or any of its requirements have been violated, it will notify the Owner and Operator of the Resort in writing and attempt to resolve the issue or issues in good faith. If the United States and the Owner and Operator of the Resort are unable to reach a satisfactory resolution of the issue or issues, the United States may commence a civil action in the United States District Court for the Eastern District of Tennessee to enforce the terms of this Agreement and/or the ADA.

    53. XVII.        GENERAL PROVISIONS

  53. The United States reserves the right to investigate any complaint it receives concerning the Resort, to initiate future compliance reviews concerning the Resort with respect to any aspect of the Resort or its operation not expressly addressed in Parts IV through XIII of this Agreement, and to investigate and commence a civil action with respect to any violation of the ADA. In the event the United States receives and investigates an ADA complaint concerning the Resort, or commences any future compliance review concerning the Resort, nothing in this Agreement shall limit the scope of any investigation or compliance reviewof the Resort or preclude the United States from seeking relief beyond that required under this Agreement.
  54. A copy of this Agreement shall be made available to any person upon request.
  55. The effective date of this Agreement is the date of the last signature on the Agreement. The term of this Agreement is three years from the effective date. Unless otherwise stated herein, all modifications or requirements under this Agreement shall be completed within three years.
  56. This Agreement memorializes the commitments made by the Owner and Operator of the Resort to increase accessibility of the Resort and the terms under which the United States has agreed to conclude this particular Investigation without further review or enforcement action. This Agreement is not intended to certify or signify, however, that the Resort is now (or, with the actions taken pursuant to this Agreement, will be) in full compliance with the ADA, or constitute a finding by the United States of such compliance, and it may not be used in any proceeding to signify such compliance. This Agreement does not affect the Resort's continuing responsibility and obligation to comply with all aspects of the ADA. This Agreement is not intended to reflect any legal interpretation of any provisions of the ADA by the United States, and it may not be used in any proceeding to demonstrate such legal interpretations.
  57. This Agreement does not constitute an admission by the Resort of non-compliance with any provision of the ADA.
  58. The individuals signing this Agreement represent that they are authorized to bind the parties to this Agreement.
  59. Failure by the United States to enforce the entire Agreement with regard to any deadline or any other provision of the Agreement, shall not be construed as a waiver of its right to enforce other deadlines or provisions of the Agreement.
  60. This Agreement constitutes the entire agreement between the parties relating to the complaint, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this Agreement, shall be enforceable.
Knoxville, Tennessee
_October 16, 2012______
FOR THE UNITED STATES

WILLIAM C. KILLIAN
United States Attorney for the
Eastern District of Tennessee

By: _/s/ William J. Monahan______
WILLIAM J. MONAHAN
Assistant United States Attorney (Ga. Bar 801028)
Eastern District of Tennessee
800 Market Street, Suite 211
Knoxville, Tennessee 37932

 

Orlando, Florida
__November 13, 2012_____

FOR THE OWNERS OF THE RESORT:
Westgate Resorts, Ltd.

By: /s/ David Siegel___________
DAVID SIEGEL
President
Westgate Resorts, Ltd.
5601 Windhover Drive
Orlando, Florida 32819

 

Orlando, Florida
_November 13, 2012______

FOR THE OPERATORS OF THE RESORT:
CFI Resorts Management, Inc.

 

By: __David Siegel____________
DAVID SIEGEL
President of General Partner, Westgate Resorts, Inc.
Authorized Official to sign
for CFI Resorts Management, Inc.
5601 Windhover Drive
Orlando, Florida 32819

 

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