AGREEMENT FOR COOPERATIVE ECONOMIC BY AND BETWEEN THEREGIONAL TRANSIT AUTHORITYAND TEENEW ORLEANS TOURISM CORPORATION This agreement (?Agreement?) is made and entered into this 1st day of June, 2000, by and between the Regional Trans it Authority herein represented by Robert Tucker, Chairman of the Board of Commissioners of the RTA, acting pursuant to Resolution O. 20- 032 Of its Board of Commissioners, duly adopted on May 31, 2000 and attached hereto as Exhibit A, and the New Orleans Tourism Marketing Corporation OTMC appearing herein through Sandra Shils tone, its Executive Vice .Pres ident and Director of Marketing, - acting pursuant to a duly-adopted resolution of its Board of Directors adopted on May 25, 2000 and attached hereto as Exhibit . i . A. WHEREAS, the Regional Transit Authority was created for purposes de?ned in La. R.S. 48:1652 and 1654 which provide as follows: ?1 1652. Declaration of.policy -- - - - The area comprising the parishes of Orleans, Jefferson, St. Tammany, St. Bernard, and other parishes, has developed and continues 'to develop into a? metIOpoIitan area with a common. interest in the cultural social and economic well-b eing of the maple therein and the deveIOpment of the educational, commercial, and industrial resources thereof. There exist in this metropolitan area serious traf?c conditions and cong estrous and serious mass transportation problems which impede and will increasingly impede the deveIOpment of these common interests toward their fullest potential. Concerted governmental action is needed to alleviate such traf?c conditions and congestion, correct de?ciencies in mass transportation, coordinate and balance the transportation facilities Operating therein, and Otherwise provide a sounder basis for the deveIOpment of traffic patterns and control. . The deveIOpment of a mass transportation system through a joint C) instrumentality of the local governments within the metropolitan area is a reasonable approach to the aforesaid needs and problems. The cultural, social, and econOmic well-being of the pe0p1e in the metrOpolitan area and the development of the educational, commercial, and industrial resources thereof are . matters of public interest and concern throughout the state. Accordingly, it is the public policy of this state, as a matter of public health, safety convenience, and welfare, to promote the establishment of such a joint instrumentality, . encourage participation therein by the local governments involved, facilitate the accomplishment of its purposes, and bring about solutions to the aforesaid needs and problems. as?: {21654. ,Creation, organization, and. purpose 1 . ,5 $31331: B. The purpose for which the authority is created is to plan, design, lease as lessee, purchase, acquire, hold, own, construct,? improve, have an equity in, finance, maintain, and administer a transit system within the metrop olitan area to Operate same or contract therefore lease as lessor same for Operation by private parties. . WHEREAS, the. Louisiana Legislature has conferred .bro' ad powers up on .the RTA and its' Board of Commissioners, including the powers .conferrEd. by La. R8. 48: 1651 et; seq. particularly La. as. 48:1656; and. . C. WHEREAS, the New Orleans Tourism Marketing Corporation OTMC is a non-pro?t Louisiana economic development corp oration, duly organized and existing 1311151131? .10 the Louisiana C00peratz've Economic Develqpment Law (La. 3319020 et seq.), which, pursuant to its purpose successfully works and endeavors cooperatively with various publ1c and .. if) (A) E. WHEREAS, tdurists, conventioneers, trade Show participants, and the public need for safe, ef?cient, 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 traf?c, wear on roads, air pollution, and the use of valuable hotel, trade sh ow, and convention center properties for parking of vehicles; and F. WHEREAS, the RTA presently maintains and operates the City?s historic street- car lines and the Riverfront streetcar lines, which serve. as both tourists attractions as viable means of clean and reliable transportation, and the RTA is currently seeking to expand and develop light rail facilities needed to augment and further expand transit services to the region; and . . . . WHEREAS, the RTA and Oils/1C, 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 c00peratively endeavor through long-term planning and implementation to meet the needs of both local and visiting transit users; and H. WAS, in 1990 the City. of New Orleans enacted' and levied a hotel occupancy privilege tax by Ordinance No. 14138 Mayor Council Series, in order to provide the City with revenues needed to provide funds for cooperative economic development of the City?s tourism, convention and hospitality industries through cooperative endeavors with and OTMC has endeavored, worked cooperatively with various public and .. private entities, and performed services for the past decade in exchange for and consideration C) i of payments made by the City for the public purpose of promoting economic development and marketing the City and its. attractions; and I. WHEREAS, enhanced cooperation between the RTA and the tourism and convention industry and the various economic development and tourism and convention promotion agencies in New Orleans, both public and private, will further the mission of the RTA by promoting economic development in the region, in particular, development of the regional tourism and convention industry, by enhancing the ability of the RTA to secure federal and state funding for capital improvements, by.facilitating the ability of the ETA to serve visitors and the tourism and convention industry workforce, and by promoting in the. long -.term an increase of RTA revenues through both its sales and use tax and fate box .a . collections by increasing the volume of sales-taxable transactions and increasing" visitor utilization of RTAitranisit services; and J. WHEREAS, local music and entertainment, 10 cally-produced or ?lmed motion pictures, local culture, and/ or the historic landmark street railways and prop osed'. new lightmail services should play a featured role in. local tourism and convention development activities; and . K. WHEREAS the Ernest N. Morial New Orleans Exhibition Hall Authority is a political subdivision of the State of Louisiana, established amended, which constructed, owns and oversees the Operation of the world class Ernest N. Morial Convention Center-New Orleans (the ?Convention Center?) along the Mississippi River and adjacent to the Rail Corridor and Riverfront Streetcar line, and which utilizes hotel-motel taxes to retire bonded indebtedness for the construction and expansion of 5 . 0 . the Convention Center and its two major exPansion projects necessitated since its Opening in 1985 in order to allow the facility to accommddate growing demand; and L. 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? larger convention centers; and M. WHEREAS, governing Board of Directors is comprised of persons nominated or appointed by the Greater New Orleans Hotel and Motel Association, (the ?Hotel Association?), the New Orleans Metmp olitan' Convention and Visitors Bureau (the the Louisiana Restaurant Association (the ?Restaurant Association? the City of. New Orlm (the ?City'), and other private and public entities, and is well situated - foster cooperation among the City, ENMNOEHA, the Hotel Association, the .the .Rstaurant Association, for-pro?t hotel operating companies, the RTA, the Louisiana Stadium and ExPosition District, the Louisiana Department of culture, Recreation and Tourism, the New Orleans Film and Video Commission, the New Orleans Music and Entertainment Commission, the Mayor?s Of?ce of Tourism and the Greater New Orleans Multi- Cultural Tourism Commission, and other entities, public and private; with a' role. to play in development of tourism, convention, transportation, and related industries and N. WHEREAS, the RTA is involved in certain litigation pending in the Civil District Court for the Parish of 0r1cans, State of Louisiana, bearing docket No. 99?11874 (the ?Mandamus/Declaratory Suit?), concerning the enforcement and collection of the existing RTAisales and use tax as applied pursuant to La. RS. 47:301(14) to the furnishing of hotel sleeping rooms in Orleans Parish (the Tax (Hotels) and 6 - O. 0. WHEREAS, the Mandamus/ Declaratory Suit was ?led on July 22, 1999. On July 29, 1999 the CVB, the Hotel Association, the Restauth Association, and various individual hotels intervened into the Mandamus/Declaratory Suit, which was well publicized in the' . newspaper, electronic news media and the subject of much discussion throughout the hospitality industries of the City of New Orleans. Following various motions and rulings in the suit, research, education, discussion, con?ict and ultimately, cooperation, a number of intervening parties withdrew or dismissed their claims in intervention so as not to retard the resolution of the Mandamus/D eclaratory Suit, OTMC has intervened or will intervene int-IQ the litigation due to its interest in the lawful outcome of the suit and in the execution of this Agreement, and other parties, including numerous hotels and the Hotel Association, have 5 determined .to remain actively involved in the lawful resolutiOn of the litigation entry of a Final Judgment in the Mandamus/Declaratory Suit; and . i P. WHEREAS, all of the remaining parties to the Mandamus/Declaratory Suit including the original Plaintiff, RTA, Defendants, Maria Kahn, in her of?cial cap acity as Director. of. Finance of the City of New Orleans and Courtland Crouchet, in his of?cial capacity as collector or revenue of .the City of New Orleans, and Intervenors,'NOTMC, the - Hotel Association and its privies, and the individual hotels the Days Inn/New Orleans, Doubletree Hotel New Orleans, Embassy Suites Hotel New Orleans, our Points Hotel, Hilton New Orleans Riverside, Holiday Inn Select, The Inn on Bourbon, Maison Dupuy Hotel, Provincial MOtels, Inc., .Radisson Hotel New Orleans, The Warwick, Corporation d/b/a- Comfort Inn Downtown, .Windsor Court Hotel, and Riverfront Hotel (collectively the ?Intervening Hotels"), have ?led (or will jointly ?le) a Motion for Final 7 collected following the historic streetcars and thei'proposed light rail system(s) as tourist attractions and viable means of needed transportation, (vi) the signi?cant 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, the operation of the Convention Center at an operational de?cit due to competition from other cities and the need to charge competitive rates for Convention Center bookings and services, (ix) the need to fund the prOposed Phase IV expansion of the Convention Center in order keep the facility competitive and to allow the facility to continue to host ever growing trade shows and associations, the direct relationship between tourism and convention bookings and had 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 direct relationship between increased tourism, . and increases in the sales and use taxes, including the RTA Tax (Hotels) and3 the corresponding relationship up on the funding of public transportation instrumentalities, mom-ma bonded indebtedness and needed Convention Center expansion, and the needle obtain federal funds and other sources of funding the construction of light rail or other means of public transportation. AND slow, in consideration of the foregoing, and in order to provide cooperatively for ,the improvement of transit, the enhanced integration of tourist, hospitality and convention related activities and transit and transit-rel ated activities, additional tourism, hospitality and convention and trade show attendance through expanded facilities, marketing, transp ortation planning, and relinvestmem: in further revenue-development transit-related 9 activities; and in furtherance of their purposes and the public interests, the RTA and OTMC do hereby agree and bind themselves, each to the other, as follows: I. . DEFINITIONS As used herein, the following terms shall have the following meanings: ?Additional Portion? has the meaning ascribed to it in Section 5.1 3 hereof. ?Agreement? means this Agreement for Services and Cooperative Economic Endeavor Agreement By and Between the Regional Transit Authority and the New Orleans Tourism Marketing Corporation. ?Annual Fee? has the meaning ascribed to it in Section 5.1 1 hereof, and 1s comprised of . the Primary Portion and Additional portion, if any, payable by RTA to the NOTMC during each Contract Year. ?Contract Year? has the meaning ascribed to it in Section 5. 1 4 hereof. ?Convention Center? has the meaning ascribed to it in paragraph of the Recitals. ?Cultural. Entities? has the meaning ascribed to it in Section 4.1 F. hereof. has the meaning ascribed to it in paragraph of the Recitals. has the meaning ascribed to. it in paragraph of the Recitals. Fund? has the meaning ascribed to it in Section '4.2 hereof.? ?Expansion Payment? has the meaning ascribed to it in Section 4.2 hereof and is. equal to ?fty percent of the Annual Fee payable by the RTA to OTMC hereunder. ?Final Judgment? has the meaning ascribed to it in paragraph of the Recitals. ?Interim Fund? has the meaning ascribed to 1: in Section 4.2 hereof. ?Intervcning Hotels? has themeaning ascribed to it in paragraph of the Recitals. ?Hotel Association? has the meaning ascribed to it .in?paragraph of the Recitals. .10 C) ?Jazzland? means that certain amusement park and public attraction in New Orleans East, which opened to the public on May 20, 2000. ?Mandamus/ Declaratory Suit? has the meaning ascribed to it in paragraph of the Recitals. 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. ?Phase has the meaning ascribed to it in paragraph I. of the Recitals. ?Phase IV Escrow Fund Agreement? has the meaning ascribed to it in Section 4.2 hereof. ?Primary Portion? has the meaning ascribed to it in section 5.1 D2 hereof. ?Restaurant Association? has the meaning ascribed to it in paragraph of the Recitals. means the Regional Transit Authority a governmental entity existing under the Laws . of Louisiana and a party to this Agreement." Tax (H otels)? has the meaning ascribed to it in paragraph of the Recitals. II. REPRESENTATION AS TO CAPACITY AND AUTHORITY . 2.1 Qapggitz. Each party represents and warrants that it has full capacity and power and has obtained all authoriZations and consents necessary for it to enter into this Agreement. . - . . co ENDEAVOR 3This Agreement shall constitute an agreement for services and a cooperative endeavor agreement entered into pursuant to the authorization of La} Const. (1974), Article 6, Section 20 and Article VII, Section and other applicable 11 law, and the provisions liereof shall mutually bind and obligate RTA and OTMC to ful?ll all of the covenants, commitments, and obligations agreed upon and set forth herein. 3.2 Wagon. The parties acknowledge that the RTA has a unique, immediately-imminent opportunity: to obtain signi?cant federal funding for the pr0posed Canal Street streetcar and will have additional opportunities in the future to obtain federal funding for other light rail expansion and/ or restoration projects, which will further the many interests of the hospitality and transportation industries, provided that the RTA can contribute and furnish basic funding. The parties also acknowledge that time is of the essence with respect to the ability to obtain such federal funds. In furtherance of this cooperative endeavor, the RTA has dedicated a sum each year equal to that portion: of 1ts general sales and use tax revenues described herein as the RZTA Tax (Hotel's)? tar: the development, repair, and maintenance of its streetcar and/ or light rail projects and related purposes including its obligations under this Cooperative Endeavor Agreement, as provided in Section 5.1C hereof, and NOTMC has agreed to dedicate a sum equal to fifty percent of 'the Annual Fee actually received from the RTA hereunder to the Fund, as provided in. Section 4.1 hereof. NOTMC and the RTA agree to cooperate with each other during the term hereof in order to promote and implement the convention-t ourism- hospitality-industry and transit and. transit-related public purp oses, goals, objectives, terms and conditions hereof, specifically including the need to perform all acts and do all things on a . timely basis which are reasonably necessary for the RTA to secure federal funding for proposed streetcar and/ or light rail projects. .0 12 - In addition to cooperating with each other, NOTMC and the RTA agree to co operate with ENMNOEHA, the 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 purposes, goals, and purposes hereof. Without detracting from said duty of cooPeration, the parties declare there are no parties to this Agreement other than the New Orleans Tourism Marketing Corporation and the Regional Transit Authority. Except as expressly provided in Sections 4.2, 4.3 and 4.4 hereof, nothing in this Agreement shall be construed as a stipulation pour amtmz' or as creating the status of a third-bene?ciary. - i i 3.4 W. NOTMC and the RTA acknowledge that additional "agreements which are consistent with the purposes, terms and conditions hereof may: ?ortshall be required during the term hereof, including but not limited to the agreements which relate to the establishment and utilization of the Fund as provided in Section 4.2 hereof, and the parties agree to endeavor cooPeratively to ?nalize any such additional documents as may be reasonably required to effectuate the purposes, terms and conditions hereof. . . NOTMC and the RTA acknowledge 3.5 hov- on k. that the NOTMC has successfully operated to market and advertise the City of New Orleans for convention, hospitality and tourism-related public purposes for the past 10 years, based upon annual funding by payments from and budgets approved by the City of New Orleans, . and that past and present Operations are based upon such budgets and funding by the City. Although the Annual'Pee received hereunder by NOTMC may be included in one 13 r? i or more budgets the City of New Orleans, the NSEMC and RTA acknowledge and agree that neither this Agreement, nor: the payments received or to be received by OTMC hereunder shall affect, reduce, or abate other funding in any way, and that all payments made to by the RTA hereunder shall be deemed additional funding to NOTMC, as payment for the services to be rendered by NOTMC hereunder, and to be used for the purposes set forth herein. The parties acknowledge that the City, a party to the Mandamus/Declaratory Suit throughtits Director of Finance and its. Collector of Revenue, is a separate and distinct legal entity from the RTA, . and that the RTA has no power pr authority to cause the City to increase, decrease, or. otherwise modify the City?s funding of NOTMC. The parties further . acknowledge that: the City has been apprised of the planned execution of thi?si??greement and has been furnished with a c0py hereof, in ?nal form, prior to theiexecution thereof (ii) a copy of this Agreement is or shall be attached as Exhibit I to the Final Judgment, submitted by Joint Motion ?by the City and all other parties to the Mandamus/Declaratory Suit for entry, the City has accepted the terms and provisions of this Agreement in - connection with the resolution and/or settlement of theiMandamuV eclaratory Suit, and has not made any suggestions or representations whatsoever. that funding by the City might be reduced or adversely affected in any way as a result of the payments to be made by the RTA hereunder. This Agreement is completely separate and distinct from agreements, relationships or funding by the City. Accordingly; no increase, decrease, or other modification of the City's funding of NOTMC shall have any. effect whatsoever on the payments to be made by the RTA to OTMC hereunder or on the validity or enforceability 14 of this Agreementheld accountable or responsible therefore, unless caused by the fault of the RTA, in violation of the acknowledgments, warranties, representations or provisions contained herein. Notwithstanding anything contained to the contrary in this Section 3.5, any action taken by the City to modify funding not caused by the fault of either party hereto shall not constitute a breech of this agreement. IV. - . OBLIGATIONS OF NOTMC 4.1 In consideration. of the payments to i be made by the RTA to NOTMC hereunder, NOTMC shall perform the following services: I A. Augment or expand existing tourism marketing activities, and/ or initiate new tourism marketing activities in such ways as are likely in the long term to increase the number of tourists, trade show and/ or convention attendees, visitors, and/ or local utilization of. RTA transit services, and/ or increased RTA sales and use tax revenues, including but not limited to revenues resulting from the collection of the RTA Tax (Hotels). B. Include reasonable attention to the Riverfront, St. Charles, and other historic and/ or restored or expanded streetcar lines in' tourism and convention promotions, whenever reasonably 'feasible' and/ or appropriate under the circumstances. C. Consult with the RTA as needed or requested. regarding information or . promotions of transportation services to the City? 3 tourist 15 E. an" attractions, tourists or transportation related facilities, or related areas of interest, such as the Cdnvention Center, New Orleans East/Jazzl'and, the Airports, Union Passenger Terminal, the New Orleans Museum of Art, City Park, the Cemeteries, and/ or the Florida Parishes, and coordinate its own promotions with .those of the RTA, whenever reasonably feasible and/ or appropriate under the circumstances. Cooperate with and actively assist the RTA and other. agencies, public and private, in an -on-going effort to secure federal, state, and other funding for development, preservation, .and maintenance and capital improvements of existing and propos?d streeth and light rail pro ects, including but not limited to light rail service to New OrleansaEastt?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 under the circumstances. ?Promote appropriate use of R'l'A?i services by tourists, iconiveniion-goers and/ or convention organizers whenever reasonably feasible and/ or appropriate under the circumstances. Promote the development of the tourism industry by giving due attention and appropriate funding, as limited below, to marketing activities to locally-connected ?lms and music and local culture, with . due attention especially to those artistic and cultural eXpressions that are 16 .O . 0. related to, feature, or which incorporate significant references to the historic streetcar systems and/ or other public tran3portation systems whenever reasonably feasible and/ or appropriate under the circumstances: In recognition of the interrelationships between local culture, tourism, ?lms, music, transportation, tourism marketing, and hocel occupancy, and in furtherance of the objectives and cooperative goals of this Agreement, the parties agree that NOTMC shall dedicate, pay-over, or expend funds in support of the activities of the New Orleans Film and Video Commission, the New Orleans Music and . Entertainment Commission, and/ or the Mayor?s Of?ce of Tourism and . .Arts (collectively the ?Cultural Entities?), from the Annual Fee paid: by the ETA to NOTMC hereunder, provided that: the total amount paid in any Contract .Year from the Annual Fee to. one or more- of the. .Cultural Entities shall not exceed a total sum equal to 3.45% of the Annual Fee, and Gi) NOTMC shall require any such Cultural Entities that receive any such funds to make all reasonable efforts to use such funds in ways intended to feature or enhance tourism, public transportation, and the overall objectives and goals of this Agreement. The parties acknowledge that funding under this. agreement is intended to be in addition to funding presently available to one or more Cultural - Entities regardless of the source thereof and is not intended to supplant, replahe, or result in a reduction of any such funding. Neither party shall 17 if?) be deemed to have breached this agreement because of any alteration in third-party funding of a Cultural Entity unless such an alteration is induced by the act of that party. 4.2 Hulk recognition of this c00perative endeavor and the many interrelationships between the transportation and hospitality industries, and the transit and transit-related purposes of the RTA, NOTMC shall each year allocate and dedicate 'a sum in dollars equal to ?fty percent of the Annual Fee paid by the RTA to NOTMC hereunder (the ?Expansion Payment?) 'to a special trust fund or special interest bearing account, to be known as the ?Morial Convention Center Expansion Transit Fund? (the Fund?), which shall be evidenced by appropriate agreements and other instruments intended to assure the separate maintenance of the designated funds}. and interest thereupon from all other funds of OTMC. All funds paid into the ENWOEHAI Transit Fund and all of the increases, interests, and earnings thereof shall be maintained, used, and/ or expended solely for the bene?t of the Phase IV Convention Center eXpansion project administered by ENMNOEHA, pursuant to the terms and conditions 'of a written escrow agreement to be entered into among the RTA, OTMC, and ENNINOEHA and approved by the Mayor of the City .of New Orleans (the ?Phase IV Escrow Fund Agreement"). The Phase IV Escrow Fund Agreement shall provide that expenditures from the ENMNOEHA- .Transit Fund shall be made for purposes that are consistent with and conducive to the promotion and enhancement of the tourism, convention and hospitality. industry-related and transit and transit-related purposes of this Agreement. Notwithstanding the foregoing, 1n the event that ENWOEHA determines that the proposed Phase IV expansion project is not 18 . feasible, or that ENMNOEHA cannot or will not enter into the pr0posed Phase IV Escrow Fund Agreement, then in such an event, the Executive Vice President of OTMC shall provide ENMNOEHA, the RTA and the Mayor with at least thirty (30) days prior written notice and certi?cation that the proposed release and payment of said monies will be made pursuant to the intent and purposes of this Agreement. After said notice and valid certi?cation and the passing of thirty (3 0) days, NOTMC shall be entitled to withdraw the funds from the Interim Fund and thereafter retain the 'funds thus withdrawn and all the Eirpansion 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 the obligations of NOTMC under this Agreement, pursuant to a budget . approved by the City and otherwise as required by contract or law. 4.3 W. Until such time as the contemplated ,Phase IV Escrow Fund Agreement has been entered into among the RTA, OTMC, and ENMNOEHA. and approved by the Mayor of .the City of New Orleans (the ?Mayor?) the Exp ansi on ayment. shall i-be deposited by OTMC into an 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?). .Prior to the confection of the Phase IV . Escrow Fund Agreement, .NOTMC may transfer all or any portion of the Interim Fund to a different or other federally-insured depository bankts) in the City of New Orleans, or another depository approved by the RTA, ENIVINOEHA and the Mayor. NOTMC shall furnish the and the Mayor with information regarding the Interim Fund, including - the account numbers and account balances, as and when requested. No funds may be 19 - O, eXp ended or withdrawn from the Interim Fund for any purpose except as authorized and provided in the Phase IV Escrow Fund Agreement. Notv'vithstanding the foregoing, in the event that ENMNOEHA determines that the proposed Phase IV expansion project is not feasible, or that ENMNOEHA cannot or will not enter into the proposed Phase IV Escrow Fund Agreement, then in such an event, the Executive Vice President of NOTMC shall provide ENMVOEHA, the RTA and the Mayor with at least thirty (30) days prior written notice and certi?cation that the proposed release and payment of said monies will be made pursuant to the intent and purposes of this Agreement. After said notice and valid certi?cation and the passing of thirty (3 0) days, NOTMQ shall be entitled to 'withdraw the funds from. the Interim Fund and thereafter retain the fiinds thus withdrawn and all the - . Expansion Payment funds for itself, and to expend them to promote tourism for New Orleans in. accordance with the tourism, convention, hospitality and transit and transit- . related . purposes and the obligations of under this Agreement, pursuant to a budget approved by the City and Otherwise as required by contract or law. Any dispute as. to the granting or validity of such written certi?cation or of right to withdraw funds - . from the Interim Fund and retain the Expansion Payment funds shall be submitted ?rst 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. 4.4 - i . The Phase IV Escrow Fund Agreement shall provide for the following matters with respect to receipt of the Expansion Pagans and the use and pwv?se of the. as well. as my .. .. additional matters which are agreed upon. among the parties and which do not con?ict with 20 C) . C.) the terms and conditions of this Agreement and serve to advance the transit and transit- related purposes of this Agreement: A. W. The permitted uses of the funds are for ?nancing or funding- C. of actual physical construction costs (labor and materials) of new capital facilities and/Or capital improvements of Phase IV, and particularly including the need for access to the Riverfront Streetcar and shuttle-bus services and the transportation needs. of Convention Center attendees and the public, consistent with the needs of WOEHA and the legal requirements for the use of the RTA Tax (Hotels); I am?? to . .- aunt;- u- - .-.. How and by whom-the fund will 1.. administered and cannoned, including: the selectionz?nof. depository, (ii) minimum requirements for any depository, (iil) the use and application of principal and interest. or other earnings, (iv) accounting. and accountability, selection and quali?cations of fund administrator or trustee, and (vi) procedures and required documentation ivith respect to the expenditure offandsf Recognition. In consideration of the difficulty of ?nancing each phase of Convention Center expansion, 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 the payment of the EXpansion Payment into theifund, toward the City?s contribution to the proposed Phase IV expansion project. It shall also be stated 21 C) in . any other agreements between the OTMC 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 ?nancing arrangements for the Phase IV project. D. handing. overall ?nancing and bonding needs and requirements shall also be taken into consideration and appropriate provisions shall be included, to the extent allowed by law or not otherwise inconsistent with the terms and conditions of this Agreement, in order to assist or facilitate Phase IV ?nancing and/ or bonding needs. 4.5 In addition, the NOTMC agrees that it shall: .. A. Conduct all. operations, promotions, and related a?airs in complete" compliance with the provisions of this Agreement and with all laws, ordinances, and regulations tapplicahle to it. .B. Designate one of its of?cers or executives as its liaison to the RTA for the purpose of promoting clarity, ef?ciency and convenience .in communications. C. Regularly consult and consider the advice of. the designated liaison person of the RTA. D. Up on the request, render quarterly written reports or Other appropriate information to the RTA setting 'forth details of the material operations and activities which OTMC engages in pursuant to this Agreement. . I 22 C) C) V. OBLIGATIONS OF THE RTA 5.1 In consideration of the services rendered by NOTMC and the undertakings of . NOTMC hereunder, the RTA shall do the following things and make the payments speci?ed below to NOTMC: A. . 0"0w0?. Through its Chairman of the Board, after consultation with the Mayor of the . City of New Orleans and members of the RTA Board of Commissioners, designate a liaison and key contact person to represent the RTA in its dealings .. with the NOTMC, ENMNOEHA, and other tourism and convention industry agencies, public and private; and Pay to the NOTMC annual contract fees asifollowszo i) The Annual Fee shall be paid in each Contract Year in four quarterly. installments, each of which shall be a sum in dollars equal to the Primary l;ortion and (if any) the Additional Portion for the preceding quarter of. the RTA iI'ax (Hotels) revenues actually received by the RTA. Said quarterly payments for each quarter. of the Contract Year shall be made by the to the on or before 'the ?fteenth (15th) day following having actually received from the tax collectors all of the RTA Tax (I-lotels) revenues paid to the City with respect to the pertinent quarterly period, which dates are currently anticipated to fall on each of the following dates: . a) .- .. for determining the date of -thg first quarterly payment: the? date on?- .. which the shall actually have received its remittance from the City -O-l Ono?m - .- 0 r. - to- ?-00.00. 0 0 tax .- collectors of RTA sales and use taxes reported and paid to the City in the fourth month of the Contract Year; b) for determining the date of the second quarterly payment: the. date on which the shall actually have received its remittance from the City tax collectors of RTA sales and use taxes reported and paid to the City in the seventh month of the Contract Year c) for determining the date oi the third quarterly payment: the date on which the RTA shall actually have received its remittance from the City tax collectors of RTA sales and use taxes reported .and paid to the City in the tenth month of the Contract Year; d) for determining the date of the fourth quarterly payment: the' dam-on which the RTA shall actually have received its remittance from the City tax. collectors of RTA sales and use taxes reported and paid to the: City in the first month of the next following Contract Year; and 2) In each Contract Year in that quarter thereof, if any, in which the cumulated total of the RTA Tax (Hotels) revenues actually. received to date by the RTA from City tax collectors exceeds the threshold sum of $7,200,000.00 dividing the base for. calculation of the Primary Portion from the base. for calculation of the . Additional Portion, the portion of that quarter? 8 RTA Tax (Hotels) revenues which constitutes part of the base for calculating the Primary Portion shall be .. -.multiplied by a factor of .40 to determine the amount of that quarter?s Priinaly. -. Portion payment, and the portion of that quarter?s RTA Tax (Hotels) revenues that 24 C) exceeds said threshold amount for that Contract Year shall be treated as part of the base for calculation of the Additional Portion and shall be multiplied by a factor of :60 .to determine the Additional Portion payment due. for that quarter. Thereafter, in that Year, all additional RTA Tax (Hotels) revenues actually received by theiRTA from the City tax collectors shall be treated as part of the base for calculation of the Additional Portion payment(s), if any, to be paid in the remaining quarters, if any, of that contract Year. C. . Dedicate and. appropriate. annually. to capital" imProvements, capital asset eXpenditures, and/ or repairs and maintenance of its streetcar and/ or light rail transportation facilities a sum in dollars equal to the RTA Tax (Hotels) revenues actually received by the RTA, less a sum equal to all paymentst'wh'ich the RTA pays to NO TMC pursuant to this Agreement in that year; and D. For the purposes of this Agreement, the following terms shall have the following meanings: . 1) ?Annual Fee?. shall mean the total amount payable by the RTA. to NOTMC per contract Year hereunder, comprised of the Primary Portion and the Additional Portion, if any. i 2) ?Primary Portion? shall mean a sum cdual to forty percent of the ?rst Seven Million Two Hundred- Thousand ($7,200, 000.00) Dollars of the RTA Tax (Hotels) actually received by the RTA for each Contract Year, not to .exceed a Mum of Two Million Eight Hundred and Eighty Thousand Dollars. 25 (j 3) ?Additional Portion? shall mean a sum equal to sixry percent of the total RTA Tax (Hotels) actually received by the RTA for each Contract Year in excess of the. first Seven Million Two Hundred-Thousand . Dollars of such RTA .Tax (Hotels) received by the RTA for each such Contract Year. The Additional Portion, if any, to be paid to NOTMC shall be in addition to the Primary Portion. 4) ?Contract Year? shall mean a period of tvvelve (12) consecutive calendar months, with the ?rst full Contract Year '(for the purpose of calculating the dates on which payments are due), commencing on the ?rst day of January 2000. Each - Contract Year therea?er shall commence on the ?rst day of each next Calendar Year however, notwithstanding the commencement of the ?rst Contract 'Yf?eanion: January 1, 2000 (for purpose of calculating the dates on which payments shall be due), nothing in this de?nition shall be deemed to alter the meaning of any other provision of this Agreement, the sole purpose of commencing. the ?rst Contract Year prior to August 1, 2000 being to make each Contract Year co-terminus with . . each Calendar Year, and not to create or impose any obligations prior to August 1, 2000 upon any person, ?rm, c?orporatiOn or legal entity. . . VI. OWNERSHIP, AND LIABILITIES. 1 W111, RTA acknowledges NOTMC's proprietary rights and to ?all trademarks, trade names, marketing information, databases, symbols and other forms of intellectual property belonging to NOTMC and agrees to use such property only to the 26 . (T) extent, and in the form in- which, it is registered or permitted by NOTMC hereunder. RTA shall not adopt, use, or register any words, phrases, or symbols which are identical to or confusingly similar to any item of NOTMC's intellectual property: 6.2 Upon termination .of this Agreement, all rights and obligations created or conferred upon RTA by way of this Agreement shall revert to NOTMC. Accordingly, upon request of OTMC and upon identi?cation of such property by NOTMC: RTA shall cease to exploit all NOTMC property including intellectual property supplied or . furnished during the term of this Agreement, and RTA shall (except as Otherwise required by law) return or, at NOTMC's option, destroy all NOTMC property which RTA may possess, including drawings/ speci?cations, signs, stationery, advertising materials, sales literature, and all other tangible materials bearing OTMC is name and/ or trademark?shor in any other way connected with OTMC. Nothing in this Agreement shall at any time deprive - the RTA of the right to use its name, acronym, logos, symbols, and/ or images of RTA facilities in any lawful and appropriate way, notwithstanding the fact that the same may have bemused. by OTMC in the performance of its obligations under this Agreement. 6.3 - The parties (RTEA and OTMC) each igr?e that they are not partners or joint venturers with each other nor with any person or entity named herein, and that the RTA shall not acquire an ownership interest in the NOTMC nor in any improvements, ?xtures, equipment, .furniture, or other property acquired by any. other person or entity as a result of any provisions of the Agreement. .Neither party shall be liable under the Agreement for any debt or .obligation of the other party or of any- third party. NOTMC shall be 30131? responsible, subject to any limitations imposed or provided by the laws of the State of 27 .a Louisiana governing economic development corporations: for any and all debts, and obligations and liabilities of OTMC and any and all debts, obligations, and/ 01' liabilities arising out of or associated with the actions and Operations of the NOTMC pursuant to this Agreement. 6.4 The Annual Fee and any Other monies paid by the RTA to the NOTMC hereunder shall immediately become the funds of the upon receipt, and such funds shall not be, and shall not be considered the funds of the RTA. 6.5 The NOTMC and the RTA agree and stipulate that payments to be made to or by either party or to any person or fund herein named shall be calculated on the bases set forth in this- Agrcement but may be made using funds derived from any lawful source of revenue, and that, unless otherwise speci?cally provided to the contrary herein, that ~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 either party to the Agreement or any third-person or fund named herein. 36.6 Nothing in this Agreement shall be construed as giving the RTA or its agents a role in Or control or supervision of the manner in which NOTMC ful?lls its obligation under this Agreement. The NO TMC shall plan and conduct all promotional activities required by this Agreement in ways determined in its reasonable discretion but in .full compliance with all of the provisions of this Agreement. All decisions as to the appropriate content, direction, form, style and conduct of any .. .. particular program, promotion or production shall be made solely by the NOTMC provided that the. over-all programs, promotions, and productions of NOTMC in each Contract Year shall be '28 C) reasonable and in compliance with the provisions of this Agreement. Subject to the requirement of such over-all compliance, nothing in this Agreement shall oblige the NOTMC to include attention to the RTA and/or its facilities or services in any particular program, promotion or production, if the reasonably determines such attention would be inappropriate and that over-all full compliance with its obligati ons under this Agreement can be accomplished without such attention. The NOIMC shall ekercise the prudence of a reasonably prudent administration with reSpect to all funds in the Interim Fund and Fund and said funds when feasible shall be invested in a federally-insured depository bank in the City of New Orleans in order to obtain the maximum rate of return reasonably avail able at a level of risk acceptable to such a prudent administrator. . vn. TERM AND 7. 1 Ienn. This Agreement shall commence on the ?rst day of the month immediately following the entry of the Final Judgment in the Mandamus/ Declaratory Shit and shall remain in effect for aslong as the RTA collects the RTA Tax (Hotels) as provided in the Final Judgment and Decree, unless terminated ?for cause? for violation of a material obligation as provided in Section 7.2- of this Agreement. . . 7.2 W. 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 the other party is substantially deprived of what it is reasonably entitled to expect under this Agreement, 'unless such performance is prevented by 29 strikes, war, Acts of God, or similar circumstances not reasonably within the control of said party. Either party may terminate said Agreement for valid muse by written notice to the other 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 monthLin- . . In case of a substantial breach of the other party's material obligations under this Agreement, the offended party shall furnish the other party with written notice of default, and reasons thereforband shall allow the other 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) daysatime 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 o?ending 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 may terminate i this Agreement by written notice to the offending party. 7.4 W. If either party fails to ful?ll in a timely and proper manner its material obligations under this Agreement, or violates any of the material covenants, agreements, or stipulations of the Agreement, the aggrieved and/ or the non-V1 olating party shall thereupon have the option to: A) seek to enforce specific performance of the provisions of the Agreement, and/ or 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, or B) 30 .. C) C.) .. terminate the Agreement after giving written notice to the other party of such default, providing the opportunity to cure, and notice of termination as provided herein. Upon any such termination this Agreementshall then be deemed terminated and shall have no further legal force and effect as of the date in the ?nal notice of termination. RELATIONSHIP BETWEEN THE PARTIES 8.1 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(0); AMENDMENTS To THE AGREEMENT 1 This Agreement may be amended at any time by a written document that makes speci?c reference to this. Agreement and is signed by representatives of both of the parties by; virtue-of resolutions adopted by the respective board of each party. GOVERNING LAW 1 O. 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..-. 10.2.. . The parties acknowledge thatithe confection of this Agreement is made in part as a result of the settlement and/ or resolution of the Mandamus/ Declaratory Suit and the 31 I 0. 3 .. ad entry of the Final Judgment. 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, and shall be brought before the Court as a matter of continuing jurisdiction as a result of the matter entitled ?mem docket No. 99-11874 referred to as the ?Mandamus/ eclaratory Suit? herein. In the event that either party is required to engage an attorney to enforce its rights under this Agreement, said party shall be entitled to recover its costs and reasonable attorney?s fees incurred in order to enforce its rights hereunder. XI. 11.1 Neither party may assign the rights, duties and/ or obligations und?ntthe Agreement, either in whole or in part, without the prior written consent of the other party, which consent. shall not be unreasonably or untimely withheld. Notwithstanding the foregoing, OTMC may engage. independent contractors to assist NOTMC with the perfotmance of its duties or obligations hereunder, similar in nature to established business practices prior to the commencement hereof or as otherwise established by NOTMC during the term hereof with respect to rendering of services involving the engagement of agencies or contractors to assist OTMC in performing its services for the City of New Orleans. 32 . . C) XII. CAUSES BEYOND CONTROL 12.1 Neither party shall be responsible in damages for delays or failure in performance resulting from acts beyond the control of a 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, ?re, 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 33 (5 XIV. LIAISON 14.1 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 RTA agrees that Ms. Sandra Shilstone shall serve as primary liaison hereunder until further notice by NOTMC. XV. PERSONNEL 15. 1 Personnel or contractors engaged or assigned by NOTMC to perform the services required under this' Agreement shall be quali?ed to perform such assigned duties and NOTMC will determine which personnel shall be assigned for any particular project. 15.2 i OTMC 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 coverage. . XVI. . EQUAL 1 6. 1 NOTMC shall comply with the requirements of Title VII of the Civil Rights Act . of 19 64,- and other applicable laws, rules and regulations; and NOTMC agrees that it shall not discriminate against employees, contractors, or applicants for employment or contracts due to 34 Cl- .0..-. oo?u-Qo c0000 0- o. ?l 0 0 race, color, creed, religion, sex, gender identi?cation, sexual orientation, age, ancestry, national origin, physical condition, or disability. XVII. VIAIVER OF BREACH 17.1 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. NOTICE 18. 1 Any notice, demand, communication or payment required under the Agreement shall be deemed effectively given when personally delivered or mailed by.1 prep aid certi?ed 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 18.2. Below or to such other address and to the attention of such other person as either party may designate by written notice. 18.2 The principal place of business of each party hereto is as follows: Regional Transit Authority . 6700 Plaza Drive New Orleans, Louisiana 70127 The New Orleans Tourism Marketing Corporation Attn. Executive Vice President 365 Canal Street, Suite 1120 New Orleans, Louisiana 70 124 .- 35 f) A copy of any notice of alleged default to NOTMC hereunder shall simultaneously be sent to Stephen M. Chouest, Esq., Stephen M. :Chouest Associates, APLC 4732 Utica Street, Metairie, LA 70006. A copy of any notice of alleged default to the RTA hereunder shall simultaneously, be made to: The Mayor of the City of New Orleans 1300 Perdido Street, Room 21310 New Orleans, Louisiana 70112 RTA General Counsel Kim Boyle, Esq. 400 Poydras Street New Orleans, Louisiana 70130 XIX. MULTIPLE ORIGINALS 19. 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. - . XX. SOLE Aenmaam 20.1 The parties hereby agree that this Agreement constitutes the sole and complete agreement between them on the subject .matter encompassed. hereby and supersedes .all previous understandings, negotiations, and/ or agreements' on i said 'subj ect 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 36 0 .0 a .0 cm-ou?m This Agreement is executed by the Regional Transit Authority and the New Orleans Tourism Marketing Corporation, by and through their undersigned duly-authorized representatives on the date (5) and in the presence of the witnesses hereinafter set forth helow. Witnesses: THE ON s, A'v- BY: W?i? I . Rob??rr?f' Chairman,Board of ?orn?rni'gsioers . I. {?og/m NEW ORLEANS TOURISM :1 BY: J, Mg. I WKEGNID Sandra Shilstone Executive Vice President and Director. of Marketing 37