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Phase IV Escrow Fund Agreement
This agr~ement (the "Phase IV Escrow Fund Agreement") is made and entered

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· into this 2nd day of April, 2002, by, between and among the Regional Transit Authority
("RTA") herein represented by Robert Tucker, Chairman of its Board of Commissioners,
acting pursuant to a Resolution of its Board of Commissioners, attached hereto as
Exhibit A, the Ernest N. Morial New Orleans Exhibition Hall Authority ("ENMNOEHA"),
appearing herein through Ralph Brennan, its President, acting pursuant to a Resolution
of its Board of Directors, attached hereto as Exhibit B, and the Nevy Orleans Tourism
Marketing Corporation ("NOTMC"), appearing herein through Sandra Shilstone, its
Executive Vice President and Director of Marketing, acting pursuant to a Resolution of
its Board of Directors, and attached hereto as Exhibit C.
RECITALS:
A. WHEREAS, the Louisiana Legislature has conferred broad powers upon the
Regional Transit Authority and its Board of Commissioners ("RTA"), for the health, ·
safety, convenience, and welfare of the public, pursuant to the provisions of R.S.
48:1651 et. seq. including,' but not limited to, the responsibility to develop a mass
transportation system through a joint instrumentality of the local governments within the
New Orleans metropolitan area, to improve and correct deficiencies in mass
transportation, to coordinate and balance the transportation facilities operating therein,
to otherwise provide a sounder basis for the development of traffic patterns and control,

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 and generally to do all things necessary or proper in furtherance of the public policy of
this state to facilitate the accomplishment of its purposes; and

8. WHEREAS, the Ernest N. Moria! New Orleans Exhibition Hall Authority
("ENMNOEHA"), is a political subdivision of the State of Louisiana, established by Act
305 of 1978, as amended, with broadly granted legal authority to develop properties in
the Parish of Orleans, and has caused the construction, operation, and expansion of
the world-class Ernest N. Morial Convention Center-New Orleans (the "Convention

Center"), located on the East Bank of the Mississippi River, including the construction
of a multi-million dollar, elevated pedestrian walkway over the Convention Center (the
"Skywalk"), retained in an operable condition by ENMNOEHA, that is suitable for
providing pedestrian access between Convention Center Boulevard and the Riverfront
Streetcar transit line by escalators and elevators at a Riverfront Streetcar landing
constructed by ENMNOEHA within the public servitude areas of the traditional
Mississippi River rail corridor; and

C. WHEREAS, the New Orleans Tourism Marketing Corporation ("NOTMC") is a nonprofit Louisiana economic development corporation, duly organized and existing
pursuant to the Louisiana Cooperative Economic Development Law (R.S. 33:9020 et
. seq.), which, pursuant to its purpose successfully works and endeavors cooperatively

with various public and private members of the tourism, hospitality and convention
industries, as well as the City of New Orleans, to plan, furnish and provide needed

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services to market and promote the City of New Orleans as a convention and tourist
destination, to encourage the construction of new facilities and the expansion of
existing faciliti~s, to stimulate and enhance the economy of the City of New Orleans
and thereby reduce conditions of economic distress within the City of New Orleans; and

D. WHEREAS, the RTA at present maintains and operates the City's historic streetcar
lines and the Riverfront streetcar lines adjacent to the Convention Center, which serve
as both tourist attractions and as viable means of clean and reliable transportation; and

E. WHEREAS, tourists, conventioneers, trade show participants, and the public need
safe, efficient, dependable, and reliable transportation, including the planning,
implementation, and marketing of such transportation, in order to allow for ease of
transportation between the many attractions and facilities offered by the City of New
Orleans, to reduce traffic, wear on roads, air pollution, and the use of valuable hotel,
trade show, and convention center properties for parking of vehicles; and

F. WHEREAS, ENMNOEHA is presently planning a fourth phase expansion of the
Convention Center ("Phase IV"), in order to allow the facility to continue to
accommodate growing demand and remain competitive with the country's larger
convention centers, which in turn will bring in more tourists and hotel occupants, and a
corresponding increase in the need for public transportation; and

Page 3 of 50

 G. WHEREAS, ENMNOEHA utilizes certain hospitality-industry-related taxes to retire
bonded indebtedness issued to finance the construction and expansion of the
Convention Cen.ter, including its two previous major expansion projects, which were
necessitated since its opening in 1985, in order to allow the facility to accommodate
ever growing demand; and

H. WHEREAS, ENMNOEHA, NOTMC and the RTA each acknowledge the importance
of the hospitality, convention and tourism industries as major and significant factors of
the New Orleans economy, and the many relationships between and interdependence
of the need for accessible and adequate public transportation and the tourism and
hospitality industries including, but not limited

ta: (i) the need for reliable public

transportation by hospitality industry workers to get to and from their places of
employment, (ii) the need for a punctual and reliable work force to serve and satisfy
visiting tourists and conventioneers, (iii) the direct relationship between the pleasurable
experience of visiting tourists and conventioneers and the probability that they will
return to the City again in the future, (iv) the transportation needs of visiting tourists and
conventioneers while visiting the City, (v) the uniqueness of the historic streetcars and
the proposed light rail system(s) as tourist attractions and viable means of needed
transportation, (vi) the significant economic impact of returning tourists and
conventioneers, (vii) the long term planning required for the construction of
transportation facilities and the hosting of major conventions and trade shows, (viii) the
cost of operation of the Convention Center at an operational deficit due to competition
from other cities and the need to charge competitive rates for Convention Center

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bookings and services, (ix) the need to fund the proposed Phase IV expansion of the
Convention Center in order to keep the facility competitive and to allow the facility to
continue to hoi?t ever growing trade shows and associations, (x) the direct relationship
between tourism and convention bookings and hotel occupancy, demand, and
expansion, (xi) the relationship between increased tourism and convention bookings
and the increased transportation needs of visiting attendees, hospitality workers, and
construction workers, (xii) the efficiencies and economies gained by supplementing
local ridership on transit services with visitor ridership, thus reducing the cost per rider
of maintaining appropriate frequency and quality of service, (xiii) the desirability of
supplementing local fare box revenues with visitor-generated fares, which import money
from outside the regional economy to assist in financing local transit; (xiv) the
desirability of incorporating local transit and transportation system plans as an item for
consideration in Convention Center planning; (xv) the direct relationship between
increased tourism, and increases in the sales and use taxes, including the-RTA Tax
(Hotels), and the corresponding relationship with the funding of public transportation
instrumentalities, NOTMC's funding, the payment of ENMNOEHA's bonded
indebtedness and needed Convention Center expansion; and

I. WHEREAS, ENMNOEHA, the RTA and NOTMC, pursuant to their purposes and
authority, can and should jointly plan and contribute to the economic development of
the City of New Orleans and the metropolitan area, and cooperatively endeavor through
long-term planning and implementation to meet the needs of both local and visiting
transit users, including participation in cooperative endeavors to facilitate the

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construction of the planned Phase IV Expansion of the Convention Center; and

J. WHEREAS, the RTA and NOTMC entered into an Agreement for Services and
Cooperative Economic Endeavor on June 1,·2000 (the "Cooperative Endeavor
Agreement") a copy of which is attached hereto and incorporated by the reference as

Exhibit D; which contemplates the execution of this Phase IV Escrow Fund Agreement
in Sections 4.2, 4.3, and 4.4 thereof; and

K. WHEREAS, the Attorney General of the State of Louisiana has reviewed the

Cooperative Endeavor Agreement and has issued a written opinion which concludes
that the Cooperative Endeavor Agreement is valid, enforceable, and properly confected
in the public interest, pursuant to the Constitution and Laws of the State of Louisiana;
and

L. WHEREAS, the Cooperative Endeavor Agreement has also been attached to the
Final Judgment rendered on the 2nd day of June, 2000, by the Civil District Court for
the Parish of Orleans, State of Louisiana, in the matter entitled "Reg'ional Transit
Authority v. Marina Kahn. et al.", bearing docket No. 99-11874, Division "I" of said
Court, (the "Mandamus/Declaratory Suit"), which Final Judgment has become final and ·
definitive following the expiration of all legal time for appeal, and the Cooperative
Endeavor Agreement was therefore approved in connection with a considered
Judgment of said Court in connection with the entry of the considered, Final Judgment;

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and

M. WHEREAS, Capitalized words used as defined terms herein and which are not
otherwise defined herein, shall have the meaning and definition ascribed to them in the
attached Cooperative Endeavor Agreement; and all provisions hereof shall be
construed in a manner that is consistent with and that facilitates fulfilling the intent of
said Cooperative Endeavor Agreement; and

N. WHEREAS, the RTA, ENMNOEHA and NOTMC do hereby declare that the
confection of this Phase IV Escrow Fund Agreement pursuant to the Cooperative
Endeavor Agreemerit is reasonable, necessary and/or appropriate and in the public·
interest; and

0. WHEREAS, this agreement has been entered into and confected and is, together
with the Cooperative Endeavor Agreement incorporated herein by reference, approved
and executed in accordance with the provisions of RS. 33:1321 et. seq.

NOW, THEREFORE, in consideration of the foregoing, and in consideration of the
promises each party has made to each other party, and in furtherance of their purposes
and in the public interest, the RTA, ENMNOEHA and NOTMC do hereby enter into this
Phase IV Escrow Fund Agreement and do now hereby mutually bind and obligate
themselves each to each, to the following obligations, covenants, terms and conditions:

I.

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 DEFINITIONS
1.1

As used herein, the following terms shall have the following meanings:

A)

"Additional Portion" has the meaning ascribed to it in the
Cooperative Endeavor Agreement attached hereto as
Exhibit D.

8)

·"Administrator" shall mean the person or entity appointed
to administer the ENMNOEHA-Transit Fund pursuant to
Section 4.1 hereof.

C)

"Agreement" means this Phase IV Escrow Fund
Agreement By and Among the Regional Transit Authority,
the Ernest N. Morial New Orleans Exhibition Hall Authority,
and the New Orleans Tourism Marketing Corporation.

D)

"Annual Fee" has the meaning ascribed to it in the
Cooperative Endeavor Agreement attached hereto as
Exhibit D, and is comprised of the Primary Portion and
Additional portion, if any, payable by RTA to the NOTMC
during each Contract Year thereunder.

E)

. F)

"Bonds" means and includes any and all bonds, notes, certificates
or instruments or similar written evidence of a debt on which the
issuing company or governmental body promises to pay the
bondholders a specified amount of interest for a specified length of
time, and to repay the loan on the expiration date, including any
written obligation to refund any of them. For the purpose of Section
8.6 and similar provisions of this Agreement concerning Bonds
issued by ENMNOEHA. "B'onds" shall mean such instruments
issued by the ENMNOEHA in order to fund and/or finance actual
construction costs (labor and materials and/or "brick and mortar''
costs) of the Phase IV Expansion Project having an expiration date
beyond the then-current budget year of ENMNOEHA and secured
in whole or in part by a pledge of the Expansion Payments.

"City" means the City of New Orleans.

G)

"Contract Year" has the meaning ascribed to it in the
Cooperative Endeavor Agreement attached hereto as Exhibit D.

H)

"Convention Center" has the meaning ascribed to it in
paragraph 8 of the Recitals.
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"Cooperative Endeavor Agreement" has the meaning
ascribed to it in paragraph J of the Recitals. A copy of the
Cooperative Endeavor Agreement is attached hereto as
Exhibit D.

J)

"Depository" shall mean one or more federally chartered
and federally insured financial institutions having a principal
place of business and domicile in Orleans Parish, eligible
·under law to receive deposits of funds belonging to the City
of New Orleans, and selected for purposes of this
Agreement pursuant to Article IV hereof to receive deposits
of funds comprising or intended to comprise funds of the
ENMNOEHA-Transit Fund.

K)

"ENMNOEHA" means the Ernest N. Moria! New Orleans
Exhibition Hall Authority, a political subdivision of the State
of Louisiana and a party to this Agreement.

L)

"ENMNOEHA-Transit Fund" has the meaning ascribed to it
in Section 4.2 of the Cooperative Endeavor Agreement.

M)

"Expansion Payment" has the meaning ascribed to it in
Section 4.2 of the Cooperative Endeavor Agreement and is
equal in amount to fifty (50%) percent of the Annual Fee
payable by the RTA to NOTMC thereunder.

N)

"Final Judgment" has the meaning ascribed to it in the
Cooperative Endeavor Agreement at paragraph P of the
Recitals thereof.

0)

"Interim Fund" has the meaning ascribed to it in Section
4.2 of the Cooperative Endeavor Agreement.

P)

"Mandamus/Declaratory Suit" has the meaning ascribed to
it in the Cooperative Endeavor Agreement at paragraph N of
the Recitals thereof.

Q)

."Mayor" means the Mayor of the City of New Orleans.

R)

"NOTMC" means the New Orleans Tourism Marketing
Corporation, a non-profit, economic development
corporation organized under the Laws of Louisiana and a
party to this Agreement.

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 S)

"Phase IV" has the meaning ascribed to it in paragraph F
of the Recitals.

T)

"Phase IV Escrow Fund Agreement" means this
Agreement By and Among the Regional Transit Authority,
the Ernest N. Morial New Orleans Exhibition Hall Authority,
and the New Orleans Tourism Marketing Corporation, as
previously contemplated in Section 4.2 of the Cooperative
·Endeavor Agreement.
·

U)

"Primary Portion" has the meaning ascribed to it in the
Cooperative Endeavor Agreement attached hereto as
Exhibit D.

V)

"RTA" means the Regional Transit Authority, a political
subdivision existing under the Laws of Louisiana and a party
to this Agreement.

W)

"RTA Tax (Hotels)" has the meaning ascribed to it in the
Cooperative Endeavor Agreement at paragraph Q of the
Recitals thereof.

X)

"Skywalk" or "Skywalk Pedestrian Walkway" has the
meaning ascribed to it in paragraph B of the Recitals.

1.2

C~pitalized

words used as defined terms herein and which are not

otherwise defined herein, shall have the meaning and definition ascribed to them in the
attached Cooperative Endeavor Agreement; and all provisions hereof shall be
construed in a manner that is consistent with and fulfill the intent of said Cooperative
Endeavor Agreement.

II.
REPRESENTATION AS TO CAPACITY AND AUTHORITY
2.1

Capacity. Each party represents and warrants that it has full capacity and

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power and has obtained all authorizations and consents necessary for it to enter into .

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 this Phase IV Escrow Fund Agreement.

Ill.
COOPERATIVE ENDEAVOR
3.1

Cooperative Economic Endeavor. This Agreement shall constitute a

cooperative endeavor agreement entered into pursuant to the authorization of La.
Const. (1974), Article 6, Section 20 and Article VII, Section 14(C), R.S. 33:1321

et.

seq., and other applicable law, and the provisions hereof shall mutually bind and
obligate ENMNOEHA, RTA and NOTMC to fulfill all of the covenants, commitments,
and obligations agreed upon and set forth herein.
3.2

Mutual Cooperation. In the Cooperative Endeavor Agreement dated June

1, 2000 (Exhibit D), NOTMC has agreed to dedicate a sum equal to fifty (50%) percent
of the Annual Fee actually received from the RTA thereunder to the ENMNOEHATransit Fund, pursuant to Section .4.1 thereof. NOTMC, ENMNOEHA and the RTA
agree to cooperate with each other during the term hereof in order to promote and
implement the convention-tourism-hospitality-industry and transit and transit-related
public purposes, goals, objectives, terms and conditions hereof, as well as those
provided in the Cooperative Endeavor Agreement, and to administer and utilize the
ENMNOEHA-Transit Fund in accordance with the terms and conditions contained
herein.
3.3

Cooperation with Others. In addition to cooperating with each other,

ENMNOEHA, NOTMC and the RTA agree to cooperate with th_e City, and other
interested or concerned entities, both public and private, in order to implement the
hospitality, convention and tourism industry and transit and transit-related public

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 purposes, goals, and purposes hereof and in the Cooperative Endeavor Agreement.
Notwithstanding said duty of reasonable cooperation, the parties declare there are no·
parties to this Agreement other than NOTMC, ENMNOEHA and the RTA and that no
party hereto is the guarantor of the obligations of any other party hereto.
3.4

Further Agreements. NOTMC, ENMNOEHA and the RTA acknowledge

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that additional agreements which are consisten.t with the purposes, terms and
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conditions hereof may be required during the term hereof, including but not limited to
the agreements which relate to the utilization of the ENMNOEHA-Transit Fund as
provided in Section 4.2 of the Cooperative Endeavor Agreement, and the parties agree
to endeavor cooperatively to finalize any such additional documents as may be
reasonably required to effectuate the purposes, terms and conditions hereof.

IV.
OBLIGATIONS OF ENMNOEHA

4.1

In consideration of the payments to be made by NOTMC and/or the

escrowing of funds for the benefit of ENMNOEHA hereunder, and in consideration of
the obligations of all the parties hereunder, ENMNOEHA agrees to perform the
following services and do the following things:

A.

Plan and implement the Phase IV Expansion Project in ways deemed
likely in its sound discretion, to increase convention attendance in the City
of New Orleans, tourism in the City of New Orleans, hotel occupancy, and
use of RTA and other transportation services, and allow the Convention
Center to host or accommodate large .trade shows and conventions that
can not be comfortably accommodated in the existing facilities, or as

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otherwise necessary to accommodate future demand for Convention

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Center facilities, particularly including in said planning and
implementation, in its sound discretion and to the extent feasible,

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reasonable attention to the need for preserving the Skywalk in an
operable condition and the public transportation needs of convention and
trade show attendees and the public including, but not limited to, use of
such transportation facilities and services of the RTA and/or other RTA
facilities and services of the same type and magnitude and
appropriateness as the Riverfront Streetcar, bus lines on Convention
Center Boulevard and connecting streetcar and bus lines and, if
reasonably feasible, the Canal Street Streetcar .line.

R

Take all reasonable and appropriate measures to obtain necessary
funding for the proposed Phase IV Expansion Project, including
cooperation with other agencies, public and private, in an on-going effort
to secure state, federal, and/or other funding for development and
construction of capital improvements, and to work with NOTMC, and the
City, to ensure that the City receives appropriate recognition or credit with
the State of Louisiana or other interested parties for the financial
contribution to the Phase IV Expansion Project pursuant to Section 4.4 C
hereof.

C.

Expend funds from the ENMNOEHA-Transit Fund only in accordance with
the terms and conditions contained herein, for purposes that are
consistent with and conducive to the promotion and enhancement of the

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 tourism, convention and hospitality industry-related and transit and transitrelated purposes of this Agreement and the Cooperative Endeavor
Agreement.
D.

Through an Administrator, prudently administer the ENMNOEHA-Transit
· Fund in order to ensure that all funds paid into the Fund and that all of the
interest thereon and increase, and earnings thereof, shall be maintained,
used, and/or expended so!ely for the benefit of the Phase IV Convention
Center Expansion Project pursuant to the terms and conditions of this
Phase IV Escrow Fund Agreement and the Cooperative Endeavor
Agreement.

E.

Prior to the transfer, deposit and/or payment of any portion of the
Expansion Payment(s) and/or any funds in the Interim Fund to the
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ENMNOEHA-Transit Fund, with the advice and consent of the Mayor of
New Orleans or the Chairman of the Board of Commissioners of the RTA,
appoint and give written notice to NOTMC, the RTA, and the Mayor of
New Orleans of the appointment of an Administrator of the ENMNOEHATransit Fund, who shall administer the ENMNOEHA-Transit Fund on
behalf of the ENMNOEHA.
F.

Separately maintain the ENMNOEHA-Transit Fund and all interest
thereon and increase, and earnings thereof, without commingling said
funds with the other funds, savings or accounts of ENMNOEHA, except as
expressly authorized herein, and then only for the purposes permitted
herein, in accordance with the terms and conditions contained herein.

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G.

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Promptly transfer and return all funds in the ENMNOEHA-Transit Fund,
including all interest thereon and increase and earnings thereof, to
NOTMC, as provided in Section 4.2 of the Cooperative Endeavor
Agreement, in the event that ENMNOEHA and NOTMC determine or a
·court of competent jurisdiction declares in a final and· definitive judgment
that the proposed Phase IV Expansion Project is not feasible and/or will
not be pursued, constructed and/or developed within the reasonably
foreseeable future, whether due to lack of financing or any other cause, or
if ENMNOEHA or a court of competent jurisdiction declares in a final and
definitive judgment determines that it cannot utilize the ENMNOEHATransit Fund pursuant to and in accordance with the terms and conditions
contained herein and/or in the Cooperative Endeavor Agreement. The
determination of ENMNOEHA and NOTMC shall be evidenced by a
resolution adopted by the Board of each delivered to the other parties and
the Mayor of the City of New Orleans.

H.

Keep NOTMC and RTA reasonably informed upon request regarding
ENMNOEHA's plans or the status of the Phase IV Expansion Project,
and provide consultation with the NOTMC and RTA, or either, as needed
or requested, regarding Convention Center events or information
regarding public transportation services to and from the City's tourist
attractions, tourist and transportation related facilities, and/or related
areas of interest whenever reasonably feasible and appropriate under the
circumstances.

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 I.

Promote appropriate use of RTA services by tourists, convention-goers
and/or convention organizers whenever reasonably feasible and
appropriate under the circumstances.

J.

Upon the request of the RTA, make available reasonable locations and
space for the RTA and/or its agents to provide and place or construct
transit information displays and/or sales kiosks whether staffed by the
RTA and/or its agents or automated, in order to educate Convention
Center users and visitors concerning RTA transit services. The number,
size, design, construction or placement and location of displays and
kiosks shall be reasonably determined by ENMNOEHA in close
consultation with the RTA. ENMNOEHA shall not be obliged to design,
purchase, construct, maintain, equip and/or staff said displays or kiosks
except to the extent that the Board of Commissioners of ENMNOEHA
from time to time may elect to allocate and/or appropriate funds for such
purposes. The cost of designing, purchasing, constructing, installing,
maintaining and staffing said displays and/or kiosks may be borne by the
NOTMC, if provision therefor is included in its plan and approved by the
City Council of New Orleans, or by another person or entity other than the
ENMNOEHA.

K.

Implement the Phase IV Expansion project, if it is implemented, in full
compliance with all applicable provisions of the Constitution and laws of
the State of Louisiana, the applicable provisions of the Charter, Codes

Page 16 of 50

 and ordinances of general application of the City of New Orleans, and all
provisions and regulations governing construction of improvements in the
areas where new facilities a.nd/or improvements are to be located
including, but not limited to, R.S. 33:109.

L.

. Continue to provide unimpeded transit servitudes for light rail and other
transit facilities, to the extent already granted or required, and refrain in
the future from unreasonably refusing to grant servitudes or rights of way
or of use, for good cause or adequate consideration, when appropriate to
meet the transportation needs of residents and visitors and not
inconsistent with the reasonable plans and needs of ENMNOEHA.

4.2

The ENMNOEHA-Transit Fund. Pursuant to the Cooperative Endeavor

Agreement and in recognition and in consideration of the many interrelationships
between the transportation and hospitality industries, NOTMC has agreed to allocate
and dedicate a sum in dollars equal to fifty (50%) percent of the Annual Fee paid each
year by the RTA to NOTMC thereunder (the "Expansion Payment") to a special

tru~t

fund or special interest..:.bearing account, known as the "Moria! Convention Center
Expansion Transit Fund" (the "ENMNOEHA-Transit Fund"). This Phase IV Escrow
Fund Agreement is the agreement contemplated by the parties to the Cooperative
Endeavor Agreement with respect to the establishment, maintenance, utilization, and
operation of the ENMNOEHA-Transit Fund, in order to ensure the maintenance of the
designated funds and interest thereon and increase thereof separate from all other
funds of ENMNOEHA or NOTMC. All funds paid into the ENMNOEHA-Transit Fund
and all of the interest thereon and increase, and earnings thereof; shall be maintained,

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used, and/or expended solely for the benefit of the Phase IV Convention Center
· expansion project administered by ENMNOEHA, pursuant to the terms and conditions
hereof and of the Cooperative Endeavor Agreement.
4.3

Interim Fund. NOTMC has received funds paid as payments of the

Annual Fee(~) from the RTA prior to the execution of this Phase IV Escrow Fund
Agreement, and NOTMC has been required to promptly deposit the Expansion
Payment into a special interest bearing account in a federally-insured depository bank
in the City of New Orleans bearing the name "Special Convention Center Expansion
Transit Fund" (the "Interim Fund"), pursuant to the terms and conditions of the
Cooperative Endeavor Agreement. Said Interim Fund has been established prior to the
execution of this Agreement, and NOTMC has been permitted, pursuanf to the terms of
the Cooperative Endeavor Agreement, to transfer all or any portion of the Interim Fund
to a different or other federally-insured depository bank(s) in the City of New Orleans, or
another depository approved by the RTA, ENMNOEHA and the Mayor thereafter.
Further, NOTMC is obligated to furnish the RTA, ENMNOEHA and the Mayor with
information regarding the Interim Fund, including the account numbers and account
balances, as and when requested. The term "Interim Fund", as used herein, shall
include the original account, as well as any other accounts into which the Expansion
Payment(s) is or are or have been transferred or deposited as herein provided,
including all earnings and interest thereon. No funds may be expended, transferred or
withdrawn from the Interim Fund for any purpose except as authorized and provided
herein. NOTMC shall not be required to establish and/or maintain a special account for
an Interim Fund after the effective date hereof once any and all funds in the Interim

Page 18 of 50

 Fund are paid or transferred or deposited in the ENMNOEHA-Transit Fund. Rather, the
Expansion Payment shall thereafter be directly deposited and transferred into the
ENMNOEHA-Transit Fund, established pursuant to the provisions of Section 4.2
hereof.
4.4

. Terms and Conditions. In addition to the other terms and conditions

hereof, the RTA, NOTMC, and ENMNOEHA agree that the following provisions shall
apply to the payment, use and administration of the Expansion Payment and the use
and administration of the ENMNOEHA-Transit Fund:
A.

Use of the Fund. The ENMNOEHA-Transit Fund may only be used for the

financing or funding of actual physical construction costs (labor and materials) of new
capital facilities and/or capital improvements of the Convention Center in connection
with the Phase IV Expansion Project, particularly including, but not limited.to, facilities
and/or improvements that address and recognize the need for access to the RTA's
Riverfront Streetcar and shuttle-bus services (to the fullest extent feasible and
appropriate in the reasonable judgment of ENMNOEHA) and the transportation needs
of Convention Center attende.es and the public, consistent with the needs of
ENMNOEHA and the legal requirements for the use and/or expenditure of the revenues
derived from the RTA Tax (Hotels). In addition to the foregoing, moneys in the
EMNOEHA-Transit Fund may be used to pay debt service on the Bonds issued
pursuant to Section 4.40 hereof.
B.

Administration of the ENMNOEHA-Transit Fund.

(i)

Selection of Depository. The fiscal agent depository banks
(the "Depository") for the deposit of the Expansion Payment

Page 19 of 50

 funds by NOTMC shall be selected and designated in the
manner provided by resolution of the Board of
Commissioners of ENMNOEHA, consistently with and
pursuant to the requirements hereof. ENMNOEHA shall
.furnish NOTMC and the RTA with written notice of its
selection and designation of Depository and shall thereafter
assist NOTMC with the establishment of the Depository
account(s), into which NOTMC shall deposit the Expansion
Payment as herein provided. NOTMC shall authorize the
RTA and ENMNOEHA to obtain information regarding the
status of any such Depository account(s) at any time,
including the balance(s), security, or expenditures therefrom.
ENMNOEHA shall also notify the RTA of the identity of each
Depository and the account numbers of each Depository
account opened. ENMNOEHA's selection and designation
of the fiscal Depository agents for deposit by NOTMC of the
funds comprising the ENMNOEHA-Transit Fund shall
comply with all legal requirements that currently govern or
relate to ENMNOEHA's selection and utilization of fiscal
agents for the deposit of ENMNOEHA's public monies or
funds, subject to the terms, conditions, and limitations on the
use or expenditure of the ENMNOEHA-Transit Fund herein.
ENMNOEHA's selection of fiscal _Depository agents for the

Page 20 of 50

 ENMNOEHA-Transit Fund hereunder shall not in any way
affect the separate and distinct character of the
ENMNOEHA-Transit Fund, which shall at all times remain
specially designated and separated from the other funds of
. ENMNOEHA. ENMNOEHA agrees that it shall not comingle any portion of the ENMNOEHA-Transit Fund with any
other funds or accounts of ENMNOEHA and that the fund
shall be administered and expended pursuant to the terms
· and conditions contained herein and in the Cooperative
Endeavor Agreement, and/or returned to NOTMC in the
event that the Phase IV Expansion Project is deemed .
abandoned pursuant to the provisions of Section 4.6 hereof.
(ii)

Minimum Depository Requirements. Each Depository shall
also comply with the following minimum requirements:
a. Each Depository designated and selected as the fiscal
agent for the ENMNOEHA-Transit Fund shall lawfully
maintain its principal offices and facilities and be domiciled
in the Parish of Orleans, State of Louisiana.
b. The Depository shall be required to furnish the following to the
Administrator of the ENMNOEHA-Transit Fund, for the benefit of
ENMNOEHA and NOTMC as security for deposits comprising the
ENMNOEHA-Transit Fund held in its custody:
.(1) Bonds of the United States of America or any colonial possession

Page 21 of 50

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thereof; or bonds of the State of Louisiana or bonds of the City of New
Orleans, or bonds of the Orleans Levee Board or Orleans Parish School
Board, or bonds of the Board of Commissioners of the Port of New
Orleans, or
. (2) Promissory notes, warrants, or certificates of indebtedness, of any
depositing authority referred to in R.S. 33:2928, which notes, warrants, or
certificates of indebtedness inust be either un-matured or payable on
demand.
(iii)

Use and Application of Principal. Interest or Other Earnings.
All principal and interest or other earnings on the funds
comprising the ENMNOEHA-Transit Fund shall become a
part of the Fund and shall not be expended for any purpose,
except for purposes for which ENMNOEHA-Transit Fund
may be expended as herein provided. All securities
pledged as security for the funds comprising the
ENMNOEHA-Transit Fund either in the physical possession
of the Administrator or deposited under joint custodianship in
the safety deposit vault of the Depository, or held in trust by
any bank or trust company for account of ENMNOEHA,
NOTMC, or the ENMNOEHA-Transit Fund, shall at all times
be deemed to be under the control and in the possession of
ENMNOEHA, NOTMC, and the ENMNOEHA-Transit Fund,
through its designated Administrator, and shall be delivered

Page 22 of 50

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I

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into the custody of the Administrator, or in the absence
thereof, to the chief financial officer of ENMNOEHA with the
written approval of NOTMC for the ENMNOEHA-Transit
Fund, or if requested in writing by both NOTMC and
. ENMNOEHA, to the special account of ENMNOEHA, if and
when demanded pursuant to the provisions of Section 4.1 F
hereof. The Administrator may not make such a demand for
transfer of the funds comprising the ENMNOEHA-Transit
Fund without first having obtained the approval and consent
of both NOTMC and ENMNOEHA. The trustee for the Bonds
contemplated by Section 4.40

h~reof shall

have a first lien

on the moneys in the ENMNOEHA-Transit Fund for the
benefit of the holders of the Bonds once any Bonds are
issued, and moneys shall be

disburse~

to the Trustee from

the ENMNOEHA-Transit Fund to pay monthly principal and
interest installments on Bonds issued by ENMNOEHA.
(iv)

Accounting and Accountability.
All funds in the ENMNOEHA-Transit Fund shall be
administered and accounted for in accordance with the laws
and accounting standards applicable to funds of a Louisiana
governmental entity and/or political subdivisions and all
records pertaining thereto shall be public records.

(v)

Selection and Qualifications of Fund Administrator.

Page 23 of 50

 ()
The Administrator of the ENMNOEHA-Transit Fund shall be
selected in the manner provided in Section 4.1 hereof and
shall be an actual domiciliary of the Parish of Orleans with
expertise and experience in public finance or a related area.
Successors to the Administrator shall be selected in the
same manner and shall have the same qualifications a.s the
initial Administrator.
(vi)

Procedures and Required Documentation for Expenditures.
1) No expenditure shall be made from the ENMNOEHATransit Fund or from the proceeds of bonds or other debt
instruments secured by the Fund and/or Expansion
Payments and/or the payment or servicing of which said
funds are pledged or dedicated unless the expenditure is
both permitted by this Agreement and authorized in a capital
budget duly adopted by the Board of Commissioners of the
ENMNOEHA in accordance with applicable state law. Prior
to the adoption of such a budget, ENMNOEHA shall deliver .
to NOTMC, the RTA, and the Mayor of New Orleans (at
least five days in advance thereof except when a written
waiver of this notice requirement is obtained) a written notice
and agenda of the meeting(s) at which the proposed budget
will or may be considered and/or adopted. The notice shall
include a detailed explanation of all expenditures to be made

Page 24 of 50

 from the ENMNOEHA-Transit Fund that are proposed to be
included in the proposed budget and the manner in which
the proposed expenditures will be in compliance with the
provisions of this Agreement. The detailed written
. explanation required by this paragraph shall constitute an
obligatory course of action, binding upon ENMNOEHA, upon
written acceptance of NOTMC and the RTA.
Notwithstanding anything to the contrary, the NOTMC shall
have no authority to affect the capital budget duly accepted
by the Board of Commissioners of the ENMNOEHA but shall
seek legal relief afforded them by the Cooperative Endeavor
Agreement and this Escrow Agreement. The requirements of
this paragraph 4.4(B)(vi)(1) shall be deemed satisfied by the
presentation and adoption of a detailed construction budget
for.the Phase IV Expansion at a meeting of the Board of
Commissioners of ENMNOEHA accompanied by a
statement explaining how the expansion as planned and
budgeted will be in compliance with this Agreement.
Notwithstanding the foregoing, no consent of either the RTA
or NOTMC is required for expenditures to pay debt service
on Bonds which are secured by moneys in the ENMNOEHATransit Fund.
2) All plans for the Phase IV Expansion project shall be

Page 25 of 50

--------·····---··------

 submitted for consideration by the City Planning
Commission of New Orleans, as provided in and subject to
all applicable provisions of R.S. 33: 109, together with a letter
addressed to the City Planning Commission explaining how
. the plans are consistent with the need to provide reasonable
access to the Riverfront Streetcar and RTA shuttle bus
service and are otherwise consistent with the transportation
needs of convention-goers and the public. A copy of said
letter to the City Planning Commission shall be served
promptly upon the RTA, NOTMC and the Mayor of the City
of New Orleans.
3) Within thirty days of the end of each fiscal year, the
ENMNOEHA shall by certified mail, return receipt requested,
serve NOTMC and the RTA with a written statement
providing detailed documentation of all expenditures made
from the ENMNOEHA-Transit Fund.
(vii)

-Other Conditions.
All moneys held by the Administrator and/or the
ENMNOEHA shall be held and invested in full compliance
with applicable state law.

C.

Recognition. Due and proper recognition shall be provided by the parties
in dealing with various public and private agencies, including the State of
Louisiana, which attributes and gives the City of New Orleans credit for
Page 26 of 50

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the payment of the Expansion Payment into the fund, toward any
expected contribution of the City and Orleans Parish to the proposed
Phase IV expansion project. It shall also be stated in any other
agreements between the NOTMC and ENMNOEHA which relate to the
. Expansion Payment or Phase IV, that all monies paid out of the fund shall
be credited to the Orleans Parish share of any funding and/or financing
arrangements for the Phase IV Expansion project.
D.

Bonding. The RTA, NOTMC, and ENMNOEHA mutually acknowledge the
potential difficulty of financing the Phase IV Expansion Project, and they
hereby agree to consider fully and take ENMNOEHA's bonding needs and
requirements into account in the administration, handling, maintenance,
and utilization of the ENMNOEHA-Transit Fund. The RTA, NOTMC, and
ENMNOEHA shall execute such further documents and shall do such
further things as may reasonably be required in order to assist or facilitate
ENMNOEHA's Phase IV financing and/or bonding needs to the extent
allowed by law and not otherwise inconsistent with the terms and
conditions of this Agreement. In the event that any provision hereof, or in
the Cooperative Endeavor Agreement, shall cause a barrier or obstacle to
ENMNOEHA's financing and bonding needs for the accomplishment of
the Phase IV Expansion Project, the parties will attempt in good faith to
i

seek a solution to said barrier or obstacle through all reasonable and
available means, which may include the written amendment of the

Page 27 of 50

 Cooperative Endeavor Agreement or this Phase IV Escrow Fund
Agreement as permitted or allowed by law.
To that end, the parties hereto agree and acknowledge that
the moneys owed by NOTMC pursuant to the Cooperative
· Endeavor Agreement and the right of ENMNOEHA to
receive such moneys may be pledged and assigned to the
trustee for the benefit of the owners of Bonds issued by
ENMNOEHA to finance or refinance any cost of the Phase
IV Project for which funds in the ENMNOEHA Transit Fund
may be expended. The parties further agree that when any
bonds have been issued, no action can be taken to
discontinue or decrease the revenues in anticipation of the
collection of which such Bonds have been issued or in any
way make any change in the allocation and dedication of the
revenues which would diminish the amount of revenues to
be received therefrom until all of such Bonds have been
retired or irrevocable provision made for their payment in
principal and interest, and any violation of this covenant
shall be legally enforceable by the trustee acting on behalf of
the Bondholders .. Notwithstanding anything in this
Agreement to the contrary, the RTA and NOTMC shall never
be obliged to pay anything more or anything other than the
Page 28 of 50

 Annual Fee and the Expansion Payment, respectively,
except that the NOTMC may agree with the ENMNOEHA to
increase the Expansion Payment. The parties agree that
none of them shall voluntarily take any action to reduce the
· rate or the scope of applicability of the RTA Sales Tax
(Hotels) during the term of this Agreement.
4.5

In addition, ENMNOEHA agrees that it shall:

A.

Conduct all operations, planning and construction in complete compliance
with the provisions of this Agreement and with all laws, ordinances, and
regulations applicable to it.

B.

Designate· one of its officers or executives as its liaison to
the RTA and NOTMC for the purpose of promoting clarity,
efficiency and convenience in communications.

C.

Regularly consult with and consider the advice of the
designated liaison persons of the RTA and NOTMC.

D.

Upon the RTA or NOTMC's request, render quarterly written reports or
other·appropriate information to the RTA and/or NOTMC setting forth
details of the material operations and activities in which ENMNOEHA
engages in pursuant to this Agreement.

E.

Cooperate with and actively assist to a reasonable extent the RTA and
other agencies, public and private, in an on-going effort to secure federal,
state, and other funding for capital improvements and the development,
preservation, and maintenance of existing and proposed streetcar and

Page 29 of 50

 light rail projects including, but not limited to, light rail service to New
Orleans East and Jazzland, the Airports, Union Passenger Terminal, the
New Orleans Museum of Art and City Park, the Cemeteries, and/or the
Florida Parishes, whenever reasonably feasible and/or appropriate.
4.6

. Return of Funds Upon Abandonment of Phase IV Expansion Project.
Notwithstanding the foregoing, in the event that NOTMC determines that
the proposed Phase IV Expansion Project is not reasonably feasible, or
that ENMNOEHA cannot or will not utilize the ENMNOEHA-Transit Fund
or earnings thereupon pursuant to the terms and conditions ·contained
herein, then in such an event, the Executive Vice President of NOTMC, or
its chief executive officer, shall provide ENMNOEHA, the RTA and the·
Mayor with at least thirty (30) days prior written notice that ENMNOEHA
will not be able to utilize the ENMNOEHA-Transit Fund for purposes
authorized herein, and shall so certify that the ENMNOEHA-Transit Fund
may be released unto NOTMC pursuant to the intent and purposes of this
Agreement. Said notice shall include a copy of the resolution described in
Section 4.1 G. After said notice and valid certification and the passing of
thirty (30) days, NOTMC shall be entitled to withdraw the funds from the
ENMNOEHA-Transit Fund and thereafter retain the funds thus withdrawn
and all the Expansion Payment funds for itself, and to expend them to
promote tourism for the City of New Orleans in accordance with the
tourism, convention, hospitality and transit and transit-related purposes,
·and pursuant to the obligations of NOTMC under the Cooperative
Page 30 of 50

 Endeavor Agreement, pursuant to a budget approved by the City, or
otherwise as required by contract or law. Any dispute as to the granting or
validity of such written certification or of NOTMC's right to withdraw funds
from the ENMNOEHA-Transit Fund and to retain the Expansion Payment
. funds shall be submitted first for mediation by the Mayor of the City of
New Orleans, if he or she agrees to accept the role of mediator, prior to
recourse in the Courts. Any civil action concerning NOTMC's right to
withdraw funds from the ENMNOEHA-Transit Fund shall be instituted in
the Civil District Court for the Parish of Orleans.

v.
OBLIGATIONS OF NOTMC

5.1

In consideration of t~e services rendered by ENMNOEHA and the

undertakings of ENMNOEHA hereunder, NOTMC shall do the following things and
make the payments specified below to the ENMNOEHA-Transit Fund:

A.

Designate a liaison and key contact person to represent the NOTMC in its
dealings with the RTA, ENMNOEHA, and other tourism and convention
industry agencies, public and private;
I

B.

Pay into the ENMNOEHA-Transit Fund, the Expansion Payment in an
amount of money equal to Fifty (50%) Percent of the Annual Fee actually
received by NOTMC from the RTAin each Contract Year pursuant to the
Cooperative Endeavor Agreement, within fifteen (15) days of NOTMC's
receipt of said Annual Fee or portion thereof, during the entire term
hereof;

Page 31 of 50

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I
I

 C.

Fully comply with all terms and conditions of the Cooperative Endeavor
Agreement during the entire term thereof.

5.2

The NOTMC is not responsible to the RTA or any other party, person or
entity for the monitoring of the Convention Center's budget or expenditure
; of funds that have been paid over to the E.NMNOEHA-Transit Fund.

5.3

Unless and then only to the extent otherwise required by the Final
Judgment, NOTMC may, with the approval of any party entitled to
receive any report pursuant to this Agreement and/or the Cooperative
Endeavor Agreement, make the report on an annual basis in lieu of a
quarterly basis.

VI.
OBLIGATIONS OF THE RTA

6.1

In consideration of the obligations and undertakings made to it by
ENMNOEHA hereunder, the RTA shall:
a. Comply reasonably with the provisions of the Cooperative
Endeavor Agreement during the term thereof;
b. Cooperate reasonably with NOTMC and ENMNOEHA to
facilitate and promote commencement and completion of the
Phase IV Expansion project;
c. Fulfill obligations imposed on it elsewhere in this
Agreement in a reasonable manner;
d. Not unreasonably withhold any approval or consent
which it is requested or authorized to give under the

Page 32 of 50

---------

-----------···----

 provisions of this Agreement; and
e. Provide reasonable accuracy and clarity in transit
information whenever such information is provided by
signage or or other means located in the Morial Convention
Center pursuant to Article IV hereof.

VII.
OWNERSHIP, RESPONSIBILITIES AND LIABILITIES

7.1

The parties each agree that they are not partners or joint venturers with

.each other nor with any person or entity named herein, and that no party shall acquire
any ownership interest in any other party or any other party's improvements, fixtures,
equipment, furniture, or other property acquired by any other person or entity as ar result
of any of the provisions of the Agreement. None of the parties shall be liable under the
Agreement for any debt or obligation of any kind whatsoever of the other party and/or
parties or of any third party claiming under this Agreement.
7.2

The Annual Fee and any other monies paid by the RTA to the NOTMC

pursuant to the Cooperative Endeavor Agreement shall immediately become the funds
of the NOTMC upon receipt, and such funds shall not be, and shall not be considered
the funds of either ENMNOEHA or the RTA. The Expansion Payment and any other
monies deposited or paid by NOTMC to the ENMNOEHA-Transit Fund pursuant to this
Agreement shall immediately become a part of the ENMNOEHA-Transit Fund and they
may be disbursed and expended solely pursuant to the terms and conditions contained
herein. Once deposited such funds comprising the ENMNOEHA-Transit Fund shall not
be, and shall not be considered the funds of either NOTMC or the RTA. However, the
Page 33 of 50

 NOTMC will maintain its interest in the funds pursuant to this agreement in the event of
the termination of this Escrow Fund Agreement or the abandonment of the Phase IV
project pursuant to Section 4.6 or a determination that the Convention Center is unable
to apply the funds pursuant to this Agreement, at which point the NOTMC will avail itself
of the procequres contained this Agreement for effecting a return of those funds.
7.3

The parties agree and stipulate that payments to be made to or by any

one party or to any person or fund herein named shall be calculated on the bases set
forth in this Agreement but may be made using funds derived from any lawful source of
revenue, and that, unless oth~rwise specifically provided to the contrary herein, nothing
in this Agreement shall be construed as requiring funds from any one particular source
to be used to make payments required to be made by or to any party to the Agreement
or any third-person or fund named herein. However, it is expressly understood that
NOTMC's responsibiiity to pay the Expansion Payment into the ENMNOEHA-Transit
Fund is calculated based upon and contingent upon NOTMC's actual receipt of the
corresponding Annual Fee payment or portion thereof to be paid by the RTA to NOTMC
pursuant to the Cooperative Endeavor Agreement.
7.4

Nothing in this Agreement shall be construed as giving the RTA or

NOTMC of their agents a role in or control or supervision of the manner in which
ENMNOEHA fulfills its obligation under this Agreement. The ENMNOEHA shall plan
and conduct all Phase IV Expansion Project activities required by this Agreement in
ways determined in its reasonable discretion but in full compliance with all of the
provisions of this Agreement.
7.5

That both the RTA and NOTMC have complied with all of the obligations
Page 34 of 50

 under the Cooperative Endeavor Agreement which is in full force and effect and without
known default by any party under its terms as of the date of the execution of this
Agreement.
VIII.
TERM AND TERMINATION
8.1

Term. This Agreement shall commence on the date it has been signed by

all parties and approved in writing by the Mayor of the City of New Orleans, and shall
continue during the term of the Cooperative Endeavor Agreement and be co-terminous
therewith unless terminated "for cause" for violation of a material obligation as provided
in Section 8.2 of this Agreement. The obligations to return any funds remaining in the
ENMNOEHA-Transit Fund to NOTMC upon termination hereof or otherwise pursuant to
the provisions of Article IV hereof shall survive the termination hereof.
8.2.

Termination "for cause". As used herein, breach of a material obligation is

understood to mean any failure of a party to carry out all or part of its substantive
obligations under this Agreement such that one or both of the other two parties is
substantially deprived of what it is reasonably entitled to expect under this Agreement,
unless such performance is prevented by strikes, war, Acts of God, or similar
circumstances not reasonably within the control of said party. Any party may terminate
this Agreement for valid "cause" by written notice to all other parties not less than sixty
(60) days in advance. If this Agreement has remained in force for more than two (2)
years, the notice period to terminate for valid "cause" shall be a minimum of ninety (90)
days. The end of any notice period must coincide with the end of a calendar month.
8.3

Notice of Default/Right to Cure. In case of a substantial breach of another

Page 35 of 50

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party's material obligations under this Agreement, the offended party shall furnish both
other parties with written notice of default, specifying the alleged default and reasons
therefor, and shall allow the allegedly defaulting party at least thirty (30) days time
following actual receipt of notice to cure said default, or to commence the cure of said
default if the. default can not be cured within thirty (30) days time despite reasonable,
good faith efforts, diligently pursued. In the event that said act of default has not been
cured within thirty (30) days time to cure said default,'or if the offending party has not
commenced the cure of said default if the default can not be cured within thirty (30)
days time and diligently pursued the cure thereafter, then the offended party who
previously furnished the written notice of default hereunder niay terminate this
Agreement by written notice to both of the other parties hereto.
8.4

Remedies for Breach. If either party fails to fulfill in a timely and proper

manner its material obligations under this Agreement (including the incorporated
Cooperative Endeavor Agreement), or violates any of the material covenants,
agreements, or stipulations of this Agreement, the aggrieved and/or the non-violating
party shall ther~upon have the option to: A) seek to enforce specific performance of the
provisions of the Agreement, and/or 8) may seek an award of damages as a remedy
for any material breach of the Agreement by the other party, subject to the limitations
set forth in this Article.

8.5
A.

· Limitation of Liability. Notwithstanding anything to the contrary in this

Agreement or in any collateral, supplemental or preceding agreement (including but not
limited to the Cooperative Endeavor Agreement), the Parties agree that they shall look
Page 36 of 50

 solely to the funds then held in the ENMNOEHA - Transit Fund and any unspent and
unencumbered funds of NOTMC remaining from the RTA's payment of the Annual Fee
for the collection of any judgment (or other judicial process) requiring the payment of
money or damages by NOTMC in the event of any default or breach by NOTMC with
respect to any of the terms, covenants and conditions of this Agreement to be observed
and/or performed by NOTMC, the RTA, or ENMNOEHA. Further, in the event that any
Party hereto procures or causes to be procured and maintairied any type of insurance
at any time during the term of this Agreement regarding the payment of funds or
provisions of this Agreement, including bonding of any revenues hereunder, such Party
shall exercise its reasonable best efforts to cause any such insurer to waive its rights of
subrogation against the other Parties hereto, and further, under no circumstances shall
any such title insurer have any greater rights than the Party it insures with respect to
the rights, causes of action, or any claims against any of the other Parties hereto, and
such title insurer shall only look to the funds then held in the ENMNOEHA-Transit Fund
and any unspent and unencumbered funds of NOTMC remaining from the RTA's
payment of the Annual Fee for the collection of any judgment against any of the other
Parties hereto. Any such insurer which insures any interest or payments to be made
under this Agreement shall be deemed to have agreed to such limitations of liability as
set forth herein. Other than the funds then held in the ENMNOEHA-Transit Fund and
any unspent and unencumbered funds of NOTMC remaining from the RTA's payment
of the Annual Fee (and only if Louisiana law allows seizure of public property), no other
assets of any party hereto shall be subject to levy, execution or other procedure for the

Page 37 of 50

 satisfaction of any Party or insurer's judgment, and under no circumstances shall
NOTMC and/or the RTA or any of their respective officers, directors, agents, managers,
consultants, a.ttorneys, or employees have any personal liability hereunder or for the
· obligations of NOTMC and/or the RTA hereunder. Nothing contained herein, however,
shall be construed to limit or restrict any rights or actions which any Party to this
Agreement may have against any other third party.
B.

Notwithstanding anything to the contrary contained herein, this Agreement

and the Cooperative Endeavor Agreement may not be terminated while any Bonds
issued by ENMNOEHA to finance or refinance costs of the Phase IV Project for which
monies in the ENMNOEHA Transit Fund may be expended are outstanding (excluding
Bonds which are paid or deemed paid pursuant to the provisions of their authorizing
indenture or resolution authorizing their issuance), and the Trustee shall be entitled to
. seek to enforce specific performance for any violation of this Agreement, including,
without limitation, a default which results in a nonpayment of moneys into the
ENMNOEHA-Transit Fund.
Notwithstanding anything in this Agreement to the contrary, the RTA and
NOTMC shall never be obliged to pay anything more or anything other than the Annual
Fee and the Expansion Payment, respectively, except that the NOTMC may agree with
the ENMNOEHA to increase the Expansion Payment.
The parties agree that none of them shall voluntarily take any action to reduce
the rate or the scope of applicability of the RTA Sales Tax (Hotels) during the term of
this Agreement.
Page 38 of 50

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8.6

Continuation of Cooperative Endeavor Agreement while Bonds

Outstanding. Unless and until all Bonds (if any) of ENMNOEHA secured by the
Expansion Payments and issued to fund or finance in whole or in part construction of
the Phase IV Expansion (excluding Bonds which are paid or deemed paid pursuant to
the provisions of their authorizing indenture or resolution), have been liquidated,
notwithstanding anything to the contrary contained herein, the Cooperative Economic
Endeavor Agreement between the RTA and the NOTMC may not be terminated
provided that nothing contained in this Agreement shall alter the method of calculating
the Annual Payment(s) by the RTA to the NOTMC nor impose on the RTA any
obligation to make any payment to NOTMC and/or ENMNOEHA other than said Annual
Payment(s).

IX.
RELATIONSHIP BETWEEN THE PARTIES

9.1

No provision of the Agreement is intended to create nor shall it be

deemed or construed to create any relationship between the parties other than that of
independent contracting parties acting pursuant to a cooperative endeavor agreement
under La. Const. (1974), Article 6, Section 20 and Article VII, Section 14(C) and R.S.
33:1321 et seq.
9.2

Nothing in this Agreement shall be construed or deemed to revise, modify,

annul and/or supersede any provision of the Cooperative Endeavor Agreement nor
shall termination of this Agreement cause, necessitate and/or in and of itself result in
termination of the Cooperative Endeavor Agreement.

Page 39 of 50

 The parties hereby knowingly acknowledge that the term and method of
termination of the Agreement for SeNices and Cooperative Economic Endeavor are
governed solely by its provisions.
9.3

NOTMC, ENMNOEHA and the RTA acknowledge that the Cooperative

Endeavor Agreement between the RTA and NOTMC is in full force and effect, without
known default by any party, that it is fully bfnding and enforceable pursuant to its terms,
and that NOTMC and the RTA have performed all acts and done all things required
thereby as of the Effective Date hereof. Once Bonds are issued for the Phase IV Project,
all covenants and agreements on the part of the RTA and NOTMC with respect to this
Escrow Fund Agreement shall be for the benefit of the registered owners from time to
time of the Bonds, the trustee bank acting on behalf of the owners of the Bonds and the
issuer of any credit enhancement devices which support the payment of the Bonds.
The owners of the Bonds, the trustee on behalf of the owners of the Bonds, and any
credit enhancers are third party beneficiaries of this Agreement and of the Cooperative
Endeavor Agreement.

x.
AMENDMENTS TO THE AGREEMENT

10.1

This Agreement may be amended at anytime only by a written document that

makes specific reference to this Agreement and is signed by representatives of all three
of the parties by virtue of resolutions adopted by the respective board of each party. Any
material amendment hereto that is not of a minor or technical nature must also be
approved by the Mayor of New Orleans.

Page 40 of 50

 Notwithstanding the foregoing, this Agreement may not be amended in any
way without the written consent of the trustee acting on behalf of the owners of the Bonds,
which consent shall be given only if the trustee determines and/or a final and definitive

judgment of a court of competent jurisdiction declares that the amendment does not
adversely affect the interests of the owners of the Bonds (which determination may be
made in reliance upon an opinion of counsel to the trustee).

XI.
GOVERNING LAW

11.1

This Agreement shall be governed by, and interpreted in accordance with,

the laws of the State of Louisiana and the Ordinances of the Parish of Orleans, to the
exclusion of the laws of any other forum.
11.2

The parties acknowledge that the confection of this Agreement is made in

part as a result of the Cooperative Endeavor Agreement. Any civil action concerning any
dispute arising under this Agreement or regarding its interpretation or validity shall be
instituted in the Civil District Court for the Parish of Orleans, State of Louisiana. In the
event that any party to this Agreement is required to engage an attorney to enforce its
rights under this Agreement, said party shall be entitled to recover from the defaulting party
or parties its costs and reasonable attorney's fees incurred in order to enforce its rights
hereunder.
XII.
ASSIGNABILITY

12.1

No party may assign the rights, duties and/or obligations under the

Page 41 of 50

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;

Agreement, either in whole or in part, without the prior written consent of the other parties,
which consent shall not be unreasonably or untimely withheld.
In addition, the written consent of the trustee, if any, acting on behalf of the owners
of the Bonds, if any, shall be required for any assignment, which consent shall be given if
and only if the trustee determines that the assignment does not adversely affect the
interests of the owners of the Bonds (which determination may be made in reliance upon
an opinion of counsel to the trustee) and/or a court of competent jurisdiction enunciates
said determination in a final and definitive judgment.
XIII.
CAUSES BEYOND CONTROL

13.1

Neither party shall be responsible in damages for delays or failure in

performance resulting from acts beyond the control of that party. Such acts shall include,
but not be limited to, Acts of God, strikes, riots, Acts of War, epidemics, statutes, judicial
interpretations of statutes, and/or governmental regulations superimposed after the fact,
fire, communication line failures not reasonably foreseeable, power failures not reasonably
foreseeable, earthquakes, or other natural disasters, including any act caused by or related
to a Y2K failure and/or malfunction.
XIV.
INVALIDITY OR UNENFORCEABILITY

14.1

The invalidity or unenforceability of any terms or conditions of this Agreement

shall in no way affect the validity or enforceability of any other of its terms or provisions.
In the event that any of the terms of this Agreement conflict with a rule of law or statutory
provision or are otherwise unenforceable under the laws or regulations of any government

Page 42 of 50

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or subdivision thereof, such terms shall be deemed stricken from this Agreement but such
invalidity or unenforceability shall not invalidate any other terms of this Agreement. The
foregoing shall not apply where invalidity or unenforceability of such provisions does
substantial violence to the remainder of this Agreement.

xv.
LIAISON
15.1 Each party shall designate one or more persons who shall act as a point of
contact with the other party to facilitate the expeditious and felicitous execution of the
Agreement. The parties agreethat Ms. Sandra Shilstone shall serve as NOTMC's liaison,
the Executive Vice President of ENMNOEHA shall serve as ENMNOEHA liaison, and Ms.
Lisa Burns shall serve as the RTA's liaison hereunder until further notice by NOTMC or
ENMNOEHA or the RTA.

XVI.

PERSONNEL
16.1

Personnel or contractors engaged or assigned by ENMNOEHA to perform

the services required under this Agreement shall be qualified to perform such assigned
duties and ENMNOEHA will determine which personnel shall be assigned for any particular
undertaking.
16.2

ENMNOEHA assumes and/or retains the responsibility for its personnel or

contractors assigned to provide the services required. hereunder and, with respect to
employees, will make all necessary deductions for social security and withholding taxes,
contributions for employment compensation funds, and shall maintain at its expense all
necessary insurance for its employees including, but not limited to, worker's compensation
Page 43 of 50

 (.

)

coverage.

XVII.
EQUAL OPPORTUNITY
17.1

ENMNOEHAshall comply with the requirements of Title VII of the Civil Rights

Act of 1964, i=ind other applicable laws, rules and regulations; and ENMNOEHA agrees that
it shall not discriminate against employees, contractors, or applicants for employment or
contracts due to race, color, creed, religion, sex, gender identification, sexual orientation,
age, ancestry, national origin, physical condition, or disability.

XVIII.
WAIVER OF BREACH
· 18.1

The waiver by any party of a breach or violation of any provision of the

Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach
of the Agreement. ·

XIX.
NOTICE
19.1

Any notice, demand, communication or payment required under the

Agreement shall be deemed effectively given when personally delivered or mailed by
prepaid certified mail, return.receipt requested, to the Chief Executive Officer or Executive
·Director or Deputy Director of a party at its principal place of business as listed in Section
19.2 below or to such other address and to the attention of such other person as either
party may designate by written notice ..
19.2

The principal place of business of each party hereto is as follows:

Page 44 of 50

 Ernest N. Morial New Orleans Exhibition Hall Authority
900 Convention Center Boulevard
New Orleans, Louisiana 70130
Attn: Executive Vice-President
Regional Transit Authority
6700 Plaza Drive
New Orleans, Louisiana 70127
Attn: Ghairman of the Authority
The New Orleans Tourism Marketing Corporation
365 Canal Street, Suite 1120
New Orleans, Louisiana 70124
Attn: Executive Vice President
A copy of any notice of an alleged default required to be sent to ENMNOEHA
hereunoer shall simultaneously be sent to:
Matt Chenevert, Esquire,
Ernest N. Moria! New Orleans Exhibition Hall Authority,
900 Convention Center Boulevard
New Orleans, Louisiana 70130
A copy of any notice of an alleged default required to be sent to NOTMC hereunder
shall simultaneously be sent to:
·
Graymond Martin
650 Poydras Street, Suite 1515
New Orleans, Louisiana 70130
A copy of any notice of an alleged default required to be sentto the RTA hereunder
shall simultaneously, be sent to:
The Mayor of the City of New Orleans
1300 Perdido Street, Room 2E10
New Orleans, Louisiana 70112
AND
Salvador Anzelmo, Esq.
RTA Special Counsel
One Canal Place, Suite 2800
365 Canal Street
New Orleans, Louisiana 70130

Page 45 of 50

 xx.
MULTIPLE ORIGINALS
20.1

The Agreement and amendments thereto shall be in writing and executed in

multiple originals on behalf of the parties; and each multiple shall be equally deemed to be
an original. .

XXI.
SOLE AGREEMENT
21.1

The parties hereby agree that except as otherwise expressly provided herein

this Agreement (including the provisions incorporated herein by reference) constitutes the
sole and complete agreement between them on the subject matter encompassed hereby
and supersedes all previous understandings, negotiations, and/or agreements on said
subject matter, and no word, provision, clause or paragraph shall be changed, amended
or altered in any manner whatsoever except with the written consent of the parties hereto
as provided in Section 10.1.
This Agreement is made and executed in multiple originals by the Ernest N. Moria!
New Orleans Exhibition Hall Authority, the Regional Transit Authority, and the New Orleans
Tourism Marketing Corporation, by and through their undersigned duly-authorized
representatives on the date(s) and in the presence of the witnesses hereinafter set forth
below and is approved by the Mayor of the City of New Orleans.

Page 46 of 50

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 ()

NEW ORLEANS TOURISM
MARKETING CORPORATION

By:~~

Sandra Shilstone
Executive Vice President and Director
of Marketing

ERNEST N. MORIAL NEW ORLEANS
EXHIBITION HALL AUTHORITY

By:~~.~~
RaPhBffinnan, its President

Approved this
day

•

2.

of~~, 2002 .

>•~_.,..,~..,

Marc H. Moria!,

Mayor,~f Nev:.2fle4JO?°

 ACKNOWLEDGMENT

STATE OF LOUISIANA
PARISH OF ORLEANS
Before me, the undersigned notary public, personally came and appeared
Robert H. Tucker, Jr., who after being duly sworn, deposed and stated that he is the
Chairman of the Board of Commissioners of the Regional Transit Authority, that he is
duly authorized to execute the above and foregoing agreement for a cooperative
endeavor on behalf of the Regional Transit Authority, and that, in his capacity as
Chairman of the Board of Commissioners of the Regional Transit Authority, he
executed same for the purposes and on the terms and c- ditions therein
expressed.

Sworn to and subscribed before me,
N~c, this "'t.-.4Lday of
2002.
.

f

·N~a

 CJ
ACKNOWLEDGMENT

STATE OF LOUISIANA
PARISH OF ORLEANS
Before me, the undersigned notary public, personally came and appeared
Sandra Shilstone, who after being duly sworn, deposed and stated that she is the
Executive Vice President and Director of Marketing of the New Orleans Tourism
Marketing Corporation, that she is duly authorized to execute the above and
foregoing agreement for a cooperative endeavor on behalf of the New Orleans
Tourism Marketing Corporation, and that, in her capacity as the Executive Vice
President and Director of Marketing of the New Orleans Tourism Marketing
Corporation, she executed same for the purposes and on the terms and conditions
. therein expressed.

Sandra Shilstone

Sworn to and subscribed before me,
Notary Public, this __ day of
_ _ _ _ ,2002.

Notary Public

 ACKNOWLEDGMENT

STATE OF LOUISIANA
PARISH OF ORLEANS
Before me, the undersigned notary public, personally came and appeared
Ralph Brennan, who after being duly sworn, deposed and stated that he is the
President of the Ernest N. Morial New Orleans Exhibition Hall Authority, that he is
duly authorized to execute the above and foregoing agreement for a cooperative
endeavor on behalf of the Ernest N. Moria! New Orleans Exhibition Hall Authority,
and that, in his capacity as the President of the Ernest N. Moria! New Orleans
Exhibition Hall Authority, he executed same for -~he purposes and on the terms and
conditions therein expressed.

Sworn to and subscribed before me,
Notary Public, this 1. ~ day of
~
,2002.

\11~/
Notary Public
C:\My Documenls\DOCS\RTA\PHASEIV\AGREEMEN.APRll02.wpd

 (

AF'PROVAL AND COMMITMENT AGREEMENT

On this the 2nd day o:f April, 2002, Marc H. Morial, the Mayor of the City ofNew
Orleans hereby concurs in ap:proving, and we, the undersigned representatives of the Regional
Transit Authority (RTA), 1:he Ernest N. Morial New Orleans Exhibition Hall Authority
(EMNOEHA), the New Orleans Tourism Marketing Corporation (NOTMC), hereby concur in
agreeing on and approving the attached Phase N Escrow Fund Agreement and commit to present
same to the Boards ofCo:m.:missioners of the RTA and the ENMNOEHA and the Board of
Directors of the New Orleans Tourism Marketing Corporation for ratification, said Agreement to
become effective as provided therein.

Marc H. Morial
Ma or City of New Orleans

Chairman, Board of Commissioners
Regional Transit Authority

~dra Shilstone
Executive Vice President and Director
New Orleans Tourism Marketing Corporation

C:\My Documents\DOCSIRTAIPHASE!V\APPRO\· .•.LCOl-iMJT.AGR.wpd

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