COOPERATIVE ENDEAVOR AGREEMENT Between THE CITY OF NEW ORLEANS And THE NEW ORLEANS BUILDING CORPORATION And THE ORLEANS PARISH COMMUNICATIONS DISTRICT THIS COOPERATIVE ENDEAVOR AGREEMENT (the “Agreement”), signed and made effective this day of 2013 (the “Effective Date”), by and among the City of New Orleans (the “City”), herein represented by Mitchell J. Landrieu, Mayor; the New Orleans Building Corporation (the “NOBC”), a public benefit corporation of the City, herein represented by Cedric S. Grant, Acting Chief Executive Officer; and the Orleans Parish Communications District, a political subdivision of the State of Louisiana (the “OPCD”), herein represented by , witnesses that: WHEREAS, the City of New Orleans is the owner of a certain parcel of immovable property (the “Property”) that composes a portion of the Union Passenger Terminal Property which is described in the attached Exhibit A; and WHEREAS, the OPCD currently leases the Property as part of the “Leased Premises” leased from the City pursuant to a Ground Lease ( the “Ground Lease”)effective January 20, 2005, and authorized by Ordinance No. 021694,and utilizes the Property in furtherance of the OPCD’s official duties; and Deleted: from the City Deleted: WHEREAS, the NOBC also leases the Property from the City for the purpose of operating the Union Passenger Terminal on behalf of the City; and WHEREAS, the City, NOBC, and OPCD desire to clarify the rights and responsibilities of the parties with regard to the Property; NOW THEREFORE, the City, the NOBC, and the OPCD, for the consideration and under the conditions set forth, agree as follows: I. The City, as the owner of the Property, has certain obligations incurred in connection with the acquisition of the Property and desires to grant OPCD continued use of the Property. To that end: A. The NOBC shall discharge the duties of the City with regard to obligations incurred by the City in connection with acquisition of the Property. B. The City grants continued use of the Property to the OPCD for activities in furtherance of the official duties of the OPCD. C. Subject to prior review and mutual agreement, the OPCD shall execute such documents Deleted: T Deleted: any as are reasonably necessary to allow the City and/or the NOBC to discharge preexisting obligations related to the Property, as long as such obligations do not interfere in any way with the OPCD’s discharge of their official duties. Deleted: unreasonably D. The OPCD grants a right of entry to the Property, upon reasonable notice, to the NOBC and any third parties necessary to effectuate discharge of the NOBC’s obligations under this agreement. II. FUNDING/COMPENSATION. None III. DURATION. This Agreement will be effective for the term of the Ground Lease. Deleted: _____ from the Effective Date IV. INDEMNITY. A. Duty to Indemnify the City. To the fullest extent permitted by law, the OPCD and/or NOBC will protect, defend, indemnify, and hold harmless the City, its agents, elected officials, and employees (collectively, the “Indemnified Parties”) from and against all claims, demands, actions, liabilities, losses (including, without limitation, economic losses), and costs, arising out of or related to (a) any actual or alleged act or omission in the performance of this Agreement by the OPCD and/or NOBC, its employees, or any subcontractor or (b) any act outside the scope of this Agreement by the OPCD and/or NOBC, its employees, or any subcontractor. B. Limit on Duty to Indemnify. Notwithstanding anything in this Agreement to the contrary, the OPCD and/or NOBC are not required to indemnify the Indemnified Parties for any loss that results from the gross negligence or willful misconduct of any of the Indemnified Parties, provided that the OPCD and/or NOBC or any subcontractor did not contribute to such gross negligence or willful misconduct. C. Duty to Indemnify the OPCD. The City and NOBC agree, to the fullest extent permitted by law, to protect, defend, indemnify, and hold harmless the OPCD, its agents, elected officials, and employees from and against all claims, demands, actions, liabilities, losses (including, without limitation, economic losses and challenges to the performance of the City’s and/or NOBC’s obligations in regard to the Property), and costs, including without limitation reasonable attorney fees arising out of or related to the City’s and/or NOBC’s performance of obligations related to the acquisition of the Property. V. INSURANCE. The NOBC shall maintain the appropriate levels of insurance on the Property and any improvements thereon. VI. NOTICES. Except for any routine communication, any notice, demand, communication, or request required or permitted under this Agreement will be given in writing and delivered in person or by certified mail, return receipt requested as follows: 1. To the City: Cedric S. Grant, Deputy Mayor- Facilities, Infrastructure and Community Cooperative Endeavor Agreement City of New Orleans, OPCD, and NOBC Page 2 of 6 Deleted: <#>TERMINATION.¶ <#>Termination for Convenience. The City may terminate this Agreement at any time during the term of the Agreement by giving the OPCD and NOBC written notice of its intention to terminate at least thirty (30) days before the intended date of termination.¶ <#>Termination for Cause. Either party may terminate this Agreement immediately for cause. If either party prevails in a challenge to a termination for cause, the termination for cause will be deemed to be a termination for convenience effective thirty (30) days from the date that the original written notice of termination for cause without the requirement of notice.¶ Formatted: Bullets and Numbering Deleted: <#>Independent Duty to Defend. Notwithstanding anything in this Agreement to the contrary, the OPDC and/or NOBC, at its option, will immediately defend the City from, or reimburse the City for the City’s costs incurred in the defense of, any claim that actually or potentially falls within the scope of this indemnity, even if the claim is groundless, false, or fraudulent, or if the OPCD and/or NOBC is absolved of liability.¶ Formatted: Bullets and Numbering Deleted: <#>Expenses. The OPCD and/or NOBC will bear all expenses, including without limitation reasonable attorney fees, of the City in enforcing the terms of this article.¶ Deleted: OPCD Formatted: Bullets and Numbering Development City of New Orleans 1340 Poydras Street, Suite 1000 New Orleans, LA 70112 & City Attorney City of New Orleans 1300 Perdido Street, Suite 5E03 New Orleans, LA 70112 2. To the OPCD: ????? 3. To the NOBC: Cedric S. Grant, Acting CEO New Orleans Building Corporation 1340 Poydras Street, Suite 1000 New Orleans, LA 70112 Notices are effective when received, except any notice that is not received due to the intended recipient’s refusal or avoidance of delivery is deemed received as of the date of the first attempted delivery. Each party is responsible for notifying the other in writing that references this Agreement of any changes in its address(es) set forth above. VII. INCORPORATED DOCUMENTS. Formatted: Bullets and Numbering The following documents are incorporated by reference into this Agreement: A. The following documents are incorporated by reference into this Agreement: 1. Exhibit A B. If any these documents conflict, in whole or in part, with this Agreement, the terms and conditions of this Agreement will control except as provided by law. VIII. MISCELLANEOUS PROVISIONS. Formatted: Bullets and Numbering A. Ownership of Documents. All data collected and all products of work prepared, created, or modified by the OPCD and/or NOBC in the performance this Agreement, including, without limitation, any and all notes, tables, graphs, reports, files, computer programs, source code, documents, records, disks, original drawings, or other such material, regardless of form and whether finished or unfinished, (collectively, “Work Product”) are the exclusive property of the City, and no reproduction of any portions of such Work Product may be made in any form without the express written consent of the City. The City shall have all right, title, and interest in all Work Product, including without limitation the right to secure and maintain the copyright, trademark, and/or patent of Work Product in the name of the City. This City may use or distribute all Work Product for any purpose without the consent of and for no additional consideration owing to the OPCD and/or NOBC. Cooperative Endeavor Agreement City of New Orleans, OPCD, and NOBC Page 3 of 6 B. Prohibition Against Financial Interest in Agreement. No elected official or employee of any party to this Agreement shall have a financial interest, direct or indirect, in this Agreement, including through any financial interest held by the spouse, child, or parent. Any willful violation of this provision, with the expressed or implied knowledge of the other parties, will render this Agreement voidable. Restrictions on Subleases. The OPCD and/or NOBC may not enter into any sublease without the prior approval of the Council of the City of New Orleans. C. Non-Exclusivity for the City. The City shall be free to engage the services of other persons for the performance of some or all of the obligations contemplated this Agreement. D. Acknowledgment of Exclusion of Worker’s Compensation Coverage. All parties expressly agree and acknowledges that they are independent contractors as defined in La. R.S. 23:1021 and as such, it is expressly agreed and understood between the parties hereto, in entering into this services agreement, that no Party be liable to another for any benefits or coverage as provided by the Workmen's Compensation Law of the State of Louisiana, and further, under the provisions of La. R.S. 23:1034, anyone employed by any party be considered an employee of another for the purpose of Workers’ Compensation coverage. E. Acknowledgment of Exclusion of Unemployment Compensation Coverage. All parties herein expressly declare and acknowledges that they are independent contractors, and as such is being hired under this Agreement for hire as noted and defined in La. R.S. 23:1472(E), and therefore, it is expressly declared and understood between the parties hereto, in entering into this services agreement, or agreement for hire, and in connection with unemployment compensation only, that: Formatted: Bullets and Numbering Deleted: the City Deleted: OPCD and/or NOBC Deleted: by the City and shall entitle the City to recover, in addition to any other rights and remedies available to the City, all monies paid by the City to the OPCD and/or NOBC pursuant to this Agreement without regard to the OPCD and/or NOBC’s satisfactory performance.¶ Deleted: The OPCD and NOBC Deleted: the City shall not Deleted: the OPCD and/or NOBC Deleted: the OPCD and/or NOBC shall not Deleted: the City Deleted: The OPCD and NOBC Deleted: by the City 1. The All parties have been and will be free from any control or direction by another party over the performance of the services covered by this contract; and Deleted: OPCD and/or NOBC 2. Services to be performed by the parties are outside the normal course and scope of the other party’s usual business; and Deleted: OPCD and/or NOBC 3. All parties have been independently engaged in performing the services listed herein prior to the date of this agreement. Deleted: The OPCD and/or NOBC Consequently, anyone employed by the any party shall be considered an employee of another party for the purpose of unemployment compensation coverage, which is expressly waived and excluded. Deleted: neither the OPCD and/or NOBC nor Deleted: the City Deleted: City’s Deleted: OPCD and/or NOBC F. Waiver of Benefits. The City and the OPCD and/or NOBC agree and understand that the OPCD and/or NOBC, acting as independent agents, shall not receive any sick and annual leave, health or life insurance, pension, or other benefits from the City. G. Jurisdiction. The OPCD and/or NOBC consent and yield to the jurisdiction of the State Civil Courts of the Parish of Orleans and formally waives any pleas of jurisdiction on account of the residence elsewhere. H. Governing Law. Any dispute arising from or relating to this Agreement or the performance of any obligations under this Agreement shall be resolved in accordance with the laws of the State of Louisiana. I. Rules of Construction. This Agreement has been reviewed by all parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of all parties. The headings and captions of this Agreement are provided for convenience only and are not intended to have effect in the construction or Cooperative Endeavor Agreement City of New Orleans, OPCD, and NOBC Page 4 of 6 Deleted: the City Formatted: Bullets and Numbering interpretation of this Agreement. The singular number includes the plural, where appropriate. Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved in favor of or against either party on the basis of which party drafted the language. J. Severability. The parties intend all provisions of this Agreement to be enforced to the fullest extent permitted by law. Accordingly, if a court of competent jurisdiction finds any provision to be unenforceable as written, the court should reform the provision so that it is enforceable to the maximum extent permitted by law. If a court finds any provision is not subject to reformation, that provision shall be fully severable and the remaining provisions of this Agreement shall remain in full force and effect and shall be construed and enforced as if such illegal, invalid, or unenforceable provision was never included, and the remaining provisions of this Agreement shall remain in full force and effect. K. Survival of Provisions. All representations and warranties and all responsibilities regarding record retention, access, and ownership, cooperation with Office of Inspector General investigations, and indemnification shall survive the termination of this Agreement and continue in full force and effect. L. No Third-Party Beneficiaries. This Agreement is entered into for the exclusive benefit of the City, the OPCD, and NOBC, and the parties expressly disclaim any intent to benefit any person that is not a party to this Agreement. M. Non-Waiver. The failure of either party to insist upon strict compliance with any provision of this Agreement, to enforce any right, or to seek any remedy upon discovery of any default or breach of the other party shall not affect or be deemed a waiver of any party’s right to insist upon compliance with the terms and conditions of the Agreement, to exercise any rights, or to seek any available remedy with respect to any default, breach, or defective performance. N. Agreement Binding. This Agreement is not assignable by either party unless authorized by a validly executed amendment. O. Modifications. This Agreement shall not be modified except by written amendment executed by authorized representatives of the parties. P. Voluntary Execution. The OPCD and NOBC have read and fully understand the terms, covenants and conditions set forth in this Agreement and are executing the same willingly and voluntarily of its own volition. Q. Complete Agreement. This Agreement supersedes and replaces any and all prior agreements, negotiations, and discussions between the parties with regard to the terms, obligations, and conditions of this Agreement. IN WITNESS WHEREOF, the City, the OPCD and NOBC, through their duly authorized representatives, execute this Agreement. CITY OF NEW ORLEANS BY: MITCHELL J. LANDRIEU, MAYOR Cooperative Endeavor Agreement City of New Orleans, OPCD, and NOBC Page 5 of 6 FORM AND LEGALITY APPROVED: Law Department By: Printed Name: NEW ORLEANS BUILDING CORPORATION BY: CEDRIC S. GRANT, ACTING CEO ORLEANS PARISH COMMUNICATIONS DISTRICT BY:___________________________________ Name, Title Cooperative Endeavor Agreement City of New Orleans, OPCD, and NOBC Page 6 of 6