Cue the "Dragnet" music. The rumbling voice of the narrator intones that we will once again visit our hotelfiles to review the raw, the true, the underbelly of the hotel contract world. We will take a look at a real provision addressing the "public accommodations" requirements of Title III of the Americans With Disabilities Act (ADA). So, just the facts, ma'am:
Sample ADA Provision: The Hotel represents and the Meeting Sponsor acknowledges that beginning on January 1, 1992, and continuing thereafter in accordance with the compliance dates established or required under Title III of the Americans With Disabilities Act and the regulations promulgated thereunder, the hotel facilities being rented to the Meeting Sponsor under this Agreement, its guest rooms, common areas, and its transportation services will be in compliance with the public accommodation requirements of the ADA.
The first thing to note is that this provision fails to address a key problem created by the ADA--joint and several liability. Under the ADA, each party responsible for complying with "public accommodation" requirements can be held liable for the actions of any one of them. (A public accommodation is a private entity that owns, leases, or operates as a "place of public accommodation," including hotels and convention centers.) Thus, under the ADA, the hotel and the meeting sponsor that leases space can be held liable if the hotel fails to provide appropriate access to its facilities. Such liability is costly; civil penalties may run as high as $50,000 for the first violation and $100,000 per subsequent violation.
Shifting Liability One way to address this problem is to contractually shift the liability. For example, the parties could agree to make the hotel responsible for ensuring that its physical facilities comply with the ADA. To do so, the following sentence could be inserted into the sample provision: "The Meeting Sponsor has no authority to remove and shall not be liable or responsible for moving any structural, architectural, or communication barriers of the Hotel." Similarly, the contract could make the meeting sponsor responsible for providing auxiliary aids (i.e., sign language interpreters and Braille copies of handout materials) for attendees. To that end, the following language could be added: "The Meeting Sponsor agrees to provide or pay for any auxiliary aids required by meeting attendees in the meeting rooms of the Hotel."
Once ADA responsibility has been reasonably allocated, the parties should further protect themselves by adding an indemnification provision. The sample provision above could be improved by adding the following clause: "The Hotel shall indemnify and hold the Meeting Sponsor harmless from and against any and all claims, damages, expenses, including attorneys' fees and litigation expenses, that may be incurred by or asserted against the Meeting Sponsor, its officers, directors, agents, or employees on the basis of the Hotel's breach of this paragraph or noncompliance with any provisions of the ADA."
Unnecessary Acknowledgments Another troublesome aspect of the sample provision is its first line, which states that the meeting sponsor acknowledges whatever is stated later in the provision, namely that the hotel has been in compliance with the ADA since 1992. This could pose problems for the sponsor if the hotel is, in fact, not compliant. The "acknowledgment" could be interpreted to mean that the sponsor has concluded independently that the hotel meets the ADA requirements. As a result, the ability to enforce any shift in liability to the hotel has been effectively removed, regardless of how the parties have allocated their ADA responsibilities in the contract. The words "and the meeting sponsor acknowledges" should be deleted from the provision to make it clear that it is only the hotel's representation of its ADA readiness.