EXHIBIT 10.03
SECOND AMENDMENT TO
AMENDED AND RESTATED LEASE AGREEMENT
BY AND BETWEEN
RIVERGATE DEVELOPMENT CORPORATION
AND
JAZZ CASINO COMPANY, L.L.C.
AND
CITY OF NEW ORLEANS
This Second Amendment to Amended and Restated Lease Agreement (the
"Second Amendment") is made and entered into this 7th day of February, 2002, by
and between:
RIVERGATE DEVELOPMENT CORPORATION ("Landlord"), a Louisiana public
benefit corporation;
and
JAZZ CASINO COMPANY, L.L.C. ("Tenant"), a Louisiana limited liability
company, successor-in-interest to Grand Palais Casino, Inc. and
▇▇▇▇▇▇'▇ Jazz Company, represented herein by its undersigned agent,
duly authorized;
and
CITY OF NEW ORLEANS ("City"), a municipal corporation appearing herein
as INTERVENOR.
WHEREAS, an Amended and Restated Lease Agreement (the "Lease") was
entered into by and between Landlord, Tenant and City, dated October 29, 1998, a
memorandum of which is filed in the conveyance records of Orleans Parish,
Louisiana, at Instrument No. 168130, Notarial Archives No. 98-50458, whereby
certain terms of the Original Amended Lease were amended and restated;
WHEREAS, on or about March 15, 2001, the City adopted Ordinance Number
20,080 M.C.S., authorizing the Rivergate Development Corporation and the Mayor
of the City of New Orleans to enter into the First Amendment to Amended and
Restated Lease Agreement
addressing reductions and/or savings in payments, taxes, administrative and
operational costs and/or any other expenses that Tenant currently pays or incurs
at least annually under the Lease or as a result of obligations imposed or
created by the Lease, whether to Landlord, City or others; and
WHEREAS, on or about March 28, 2001, the Mayor of the City of New
Orleans, the Rivergate Development Corporation and Jazz Casino Company, L.L.C.,
executed the First Amendment to the Amended and Restated Lease Agreement in
accordance with Ordinance Number 20,080 M.C.S.; and
WHEREAS, the parties desire to revise certain provisions of the Lease
and the First Amendment to Amended and Restated Lease Agreement in order to
provide annual savings and/or reductions for the Term of the Lease and any
Extended Term of the Lease as provided in Ordinance No. 20,080 M.C.S.;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Landlord, Tenant and City agree that the Lease
and the First Amendment to Amended and Restated Lease Agreement are hereby
modified and amended in the following particulars, to-wit:
1. Capitalized terms utilized herein but not otherwise defined herein have the
meaning ascribed to them in the Lease.
2. Section 4.23 of the Lease added by the First Amendment to Amended and
Restated Lease Agreement is hereby deleted in its entirety. All other amendments
made to the Lease contained in the First Amendment to Amended and Restated Lease
Agreement are maintained and reaffirmed.
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3. The Lease is hereby amended as follows:
A. THE FOLLOWING NEW SECTION IS HEREBY ADDED TO THE LEASE AS
SECTION 4.23:
"SECTION 4.23 AD VALOREM/PROPERTY TAXES
Tenant hereby agrees to grant a permanent, annual
credit toward the total required reduction/savings of
$5,000,000 as provided in Ordinance Number 20,080 M.C.S. equal
to the property tax savings realized by Tenant in an amount
equaling $2,100,000.00. Any changed or increased assessment
directly resulting from new or additional improvements to the
Development or for any other reason shall not reduce any such
credits granted by Tenant toward the total required
reduction/savings of $5,000,000."
B. THE FOLLOWING NEW SECTION IS HEREBY ADDED TO THE LEASE AS
SECTION 4.24:
"SECTION 4.24 LODGING, RETAIL MERCHANDISE AND FOOD SERVICES
Notwithstanding any provisions of the Lease and in
accordance with Section 8.1 herein, Tenant shall be permitted
to operate the Development and to conduct its operations with
respect to lodging, retail merchandise and food services to
the full extent permitted by applicable state and local law,
subject to the City's Comprehensive Zoning Ordinance.
Notwithstanding any of the foregoing provisions, nothing
contained herein shall: (1) diminish or otherwise affect the
City's zoning rights and powers, (2) be considered a zoning or
conditional use approval, nor amend or alter the process and
procedures for obtaining conditional uses or zoning rights."
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C. THE FOLLOWING NEW SECTION IS HEREBY ADDED TO THE LEASE AS
SECTION 4.26:
"SECTION 4.26 LANDLORD APPROVAL PROCESS AND CITY CO-OPERATION
a) Landlord shall cooperate with and assist
Tenant in obtaining permits for the development and operation
of the Leased Premises and future hotel improvement. Landlord
shall approve or deny in writing any application to amend any
conditional use ordinance within thirty (30) days after such
application is deemed complete in all respects by the director
of the City Planning Commission or other appropriate
department head and shall then forward the application which
has been either accepted or denied in writing by the Landlord
to the City Planning Commission for continued processing. The
lack of Landlord's approval, denial or signature shall not
constitute an incomplete application. If the application is
denied by the Landlord, it may state the reasons for the
denial and any objections thereto or it may simply forward the
application to the City Planning Commission with a simple
"accepted" or "denied" statement.
b) No permits, conditional use, licenses,
approvals or consents shall be unreasonably denied or
unreasonably delayed by the City and Landlord and, subject to
all applicable Governmental Restrictions, ordinances, rules,
regulations and laws, City agrees to use good faith efforts to
assist, cooperate with and facilitate Tenant throughout the
Term of the Lease in the permitting and approval procedures
for the development and operation of the Leased Premises and
all future developments undertaken by Tenant.
c) Landlord shall make good faith efforts to
assist, cooperate with and facilitate Tenant throughout the
Term of the Lease in obtaining permits, any necessary
approvals and/or consents, for the development and operation
of the Leased Premises and all future developments undertaken
by Tenant. Landlord
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hereby agrees that any and all necessary signatures, approvals
or consents, whether written or otherwise, required to be
given by Landlord pursuant to the Lease or as may be required
for any other reason, shall be granted or denied in writing by
Landlord to Tenant within thirty (30) days following receipt
of a written request by Landlord from Tenant and shall then
forward the permit, application or document which has been
granted or denied to the next appropriate City department for
action and continued processing. The lack of Landlord's
approval, denial or signature shall not constitute an
incomplete application, permit or document. If the permit,
application or document is denied by the Landlord, it may
state the reasons for the denial and any objections thereto or
it may simply forward the application to the appropriate City
department with a simple "accepted" or "denied" statement. If
an application or other documentation submitted to Landlord
for a signature, approval or consent is incomplete, the thirty
(30) day period provided for in the preceding sentences shall
not begin to run until such application or submittal is
delivered to Landlord in a complete form, provided that
Landlord, within ten (10) days of receipt of such application
or submittal, delivers notice in writing to Tenant that such
submittal or application is incomplete and the reasons
therefore. If Landlord fails to provide timely notice to
Tenant that such submittal or application is incomplete,
Landlord shall have waived any right to claim that such
application or submittal was/is incomplete and Landlord shall
be subject to the thirty (30) day period described above. If
Landlord fails to provide such signatures, approvals or
consents within the time provided above, such failure shall be
deemed to be the necessary approval or consent, and Landlord
hereby acknowledges and agrees that all Persons and/or
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departments of the City may rely on the provisions of this
Section and proceed as if Landlord had granted the requested
approval or consent, or, as the case may be, signed the
necessary application(s). Notwithstanding any provision to the
contrary, at any time, the City Council and/or the City
Planning Commission or any other City Department may seek
additional information or review by the RDC.
d) No permit, license, or conditional use
shall be unreasonably delayed or unreasonably denied with
respect to the development of the Leased Premises or the
development and construction of a hotel.
e) City agrees to support, assist and
cooperate with Tenant and/or its designee in the approval
process for the development of a hotel on the ▇▇▇▇▇▇ Property,
more fully described in Exhibit "4" ("▇▇▇▇▇▇ Property"), to
the extent permitted by applicable state law, local law,
ordinances, and subject to the City's Comprehensive Zoning
Ordinances and subject to any and all reviews, restrictions,
processes, procedures and other legal requirements of the
City.
f) Notwithstanding any provision contained
herein or any provision of the Lease, nothing contained herein
shall: (1) diminish or otherwise affect the City's zoning
rights and powers, (2) be considered a zoning or conditional
use approval, nor amend or alter the process and procedures
for obtaining conditional uses or zoning rights."
D. THE FOLLOWING NEW SECTION IS HEREBY ADDED TO THE LEASE AS
SECTION 4.27:
"SECTION 4.24 LEASE OR CONVEYANCE OF ▇▇▇▇▇▇ CORNER LOT
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The City/Landlord presently owns and leases to Tenant
under the Lease, Square 16, Lot "F" located at the corner of
▇▇▇▇▇▇ Street and Poydras which is more fully described and
depicted in Exhibit "3" ("▇▇▇▇▇▇ Corner Lot"), which is the
same Lot "F" that was donated to the City on November 15,
1994, by Act of Donation by ▇▇▇▇▇▇'▇ Jazz Company, Donor to
the City of New Orleans, Donee, bearing conveyance office
instrument No. 96359, filed on March 16, 1994. The
City/Landlord agrees that within 120 days after the execution
of this Second Amendment to Amended and Restated Lease, the
appropriate entity will lease for 99 years or convey ownership
of all of the City's/Landlord's right, title and interest in
said ▇▇▇▇▇▇ Corner Lot to Tenant as may be allowed and
permitted by law, such lease or conveyance to be on reasonable
terms and conditions mutually acceptable to Tenant, City and
Landlord. The City does not warrant or guarantee title or that
that it has any rights to said ▇▇▇▇▇▇ Corner Lot. If the
City/Landlord fails to lease or convey said property as
provided above and has the legal ability to do so, Tenant may
annually deduct $400,000 per year (pro-rated on a daily basis)
("$400,000 Deduction") from the Minimum Payments only for so
long as the City/Landlord fails to lease or convey said
property to Tenant. If City/Landlord is legally unable to
lease or convey said property as provided above, then
Landlord/City shall have 150 days after the execution of this
Second Amendment to Amended and Restated Lease to negotiate
with Tenant an alternative reduction/savings. City, Landlord
and Tenant shall negotiate in good faith a mutually acceptable
alternative reduction/savings, which, if implemented by
City/Landlord, shall be in lieu of the $400,000 Deduction. The
alternative reduction/savings savings shall be implemented by
the City/Landlord within 180
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days from the Effective Date. If Tenant unreasonably refuses
to accept a lease or conveyance of said property, as provided
above, there shall be no reduction in the Minimum Payments and
the obligations imposed on the City and Landlord in the First
Amendment to Amended and Restated Lease shall be fully and
completely satisfied with respect to the $400,000 Deduction."
E. SECTION 5.1 OF THE LEASE IS HEREBY DELETED IN ITS ENTIRETY AND
AMENDED TO READ AS FOLLOWS:
"SECTION 5.1 OPEN ACCESS PROGRAM
Tenant has heretofore adopted an Open Access Plan and
Open Access Program. Tenant, Landlord and City hereby agree
and consent to the adoption of the First Amendment to the Open
Access Program and the First Amendment to the Open Access
Plan, all as more fully set forth on Exhibits 1 and 2
respectively, attached hereto, (the Open Access Program and
the First Amendment to the Open Access Program shall
hereinafter collectively be referred to as the "Revised Open
Access Program" and the Open Access Plans and the First
Amendment to the Open Access Plans shall be hereinafter
collectively referred to as the "Revised Open Access Plans").
As additional consideration for the right to lease the Leased
Premises and the Improvements, Tenant hereby adopts and, from
and after the Effective Date of this Second Amendment, shall
implement the Revised Open Access Program and the Revised Open
Access Plans. Landlord and City hereby agree to waive any
violations of the Open Access Plan or Open Access Program that
arose prior to the Effective Date of this Second Amendment.
Tenant shall use the efforts specified in the Revised
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Open Access Program and the Revised Open Access Plans and all
due diligence to achieve the goals and objectives and to
satisfy the commitments stated in the Revised Open Access
Program and Revised Open Access Plans under the penalties
provided therein. Tenant covenants it will, and will require
the Casino Manager/Operator and JCC Development to, comply
with the Revised Open Access Program and the Revised Open
Access Plans in all hiring, employment and contracting
decisions. The Revised Open Access Program and the Revised
Open Access Plans shall supersede and replace the Open Access
Program and Open Access Plans, respectively, to the extent
there is a conflict."
F. SECTION 8.1 OF THE LEASE IS HEREBY DELETED IN ITS ENTIRETY AND
AMENDED TO READ AS FOLLOWS:
"SECTION 8.1 PERMITTED USES
Tenant may occupy and use the Leased Premises and the
Improvements thereon for the purpose of conducting Casino
Gaming Operations pursuant to and in compliance with the Act
as it may be amended from time to time and Section 4.24
hereinabove, and for any use related or incidental. To the
extent permitted by the zoning laws and ordinances of the City
in effect as of the Effective Date or thereafter amended or
enacted so long as such amendment or newly enacted ordinance
is not Discriminatory and not prohibited by state law, uses
related or incidental to Casino Gaming Operations include: (i)
hotel and food service at or in connection with the Casino to
the extent permitted by La. R.S. 27:243(C)(2) as in effect as
of the date hereof or thereafter amended or enacted; (ii) live
entertainment at the Casino to the extent approved by the
zoning laws and
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ordinances of the City in effect as of the Effective Date or
thereafter amended or enacted; (iii) retail use at the Casino,
to the extent approved by the zoning laws and ordinances of
the City in effect as of the Effective Date or thereafter
amended or enacted; (iv) exterior signs on the Leased Premises
in appropriate locations, sizes, numbers and appearance
identifying performers, performances or other special events
held in the Casino. In addition, Tenant is permitted to charge
an admittance fee for boxing or other specialty events not
normally conducted by businesses in the immediate vicinity of
the Casino, as more particularly agreed to in the conditional
use ordinances, subject to the application of any Special
Event Charges in accordance with Section 9.7 of the Lease.
Tenant may occupy and use the Support Facilities Premises and
the Improvements thereon for parking, casino support, employee
training, offices and any other use permitted by zoning laws
and the ordinances of the City. Tenant and JCC Development may
permit the premises subject to the Second Floor Non-Gaming
Sublease to be occupied and used for non-gaming uses of the
type to be described in the Master Plan, and for any use
related or incidental thereto, and for no other purpose.
Except as otherwise provided in the Lease, Tenant shall not
use the Development for any other purpose without Landlord's
prior written consent."
G. SECTION 8.4 OF THE LEASE IS HEREBY DELETED IN ITS ENTIRETY AND
AMENDED TO READ AS FOLLOWS:
"SECTION 8.4 USES OF DEVELOPMENT REVENUES
Notwithstanding the permitted uses described in
Section 8.1 of this Lease or other permitted uses within the
Development, Tenant shall not, and Tenant
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shall not permit any of its Affiliates, including without
limitation JCC Development, to operate taxis in the
metropolitan New Orleans area. Notwithstanding the foregoing,
Tenant, or any of its Affiliates, may own and operate a total
of two courtesy cars/limousines and one courtesy bus in the
aggregate as defined in Section 162-187.5(b)(2) of the Code of
the City of New Orleans, Louisiana. Bus service may not be
provided in areas where the operation of buses is restricted
or prohibited by law in effect as of the date hereof or as
hereafter amended or enacted, so long as such amendment or
newly enacted ordinance is not Discriminatory. Tenant shall
properly apply for and submit all required information and
data to the appropriate city department and/or agency for the
right to own and operate a total of two courtesy
cars/limousines and one courtesy bus in the aggregate within
90 days of the Effective Date as hereinafter defined. If
Tenant is unreasonably denied said rights by the appropriate
city department and/or agency based upon the
non-discriminatory application of applicable standards, rules
and regulations or said department and/or agency delays acting
upon said application within 60 days from submission of a
complete application, the Tenant may annually deduct $500,000
(pro-rated on a daily basis) for two cars/limousines and/or
$500,000 (pro-rated on a daily basis) for one courtesy bus, as
applicable, from the Minimum Payments for only such time as
the city department and/or agency unreasonably fails to grant
said rights. If the right to own and operate a total of two
courtesy cars/limousines and/or one courtesy bus, as
applicable, is granted to Tenant by the appropriate city
department or agency, or if Tenant files to properly apply
within 90 days or if the application is denied reasonably,
then such denial, failure to properly and/or
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timely apply or, any subsequent loss or reasonable termination
of said right based upon the non-discriminatory application of
applicable laws, standards, rules and regulations shall not
result in any reduction in the Minimum Payments and the
obligations imposed on the City and Landlord in the First
Amendment to Amended and Restated Lease shall be fully and
completely satisfied with respect to the reductions stated in
this Section.
Notwithstanding the foregoing, Tenant or JCC
Development shall not operate a licensed gaming riverboat (a
"Riverboat Casino") without the prior written consent of
Landlord, the City and the City Council, which consent can be
withheld in each of these parties' respective sole discretion.
Notwithstanding the permitted uses described in
Section 8.1 hereinabove, or other permitted uses within the
Development, Tenant shall not, and Tenant shall not permit JCC
Development to use any revenues generated at the Development
to subsidize Persons that will compete unfairly with the
businesses located in Orleans Parish, such as restaurants,
hotels or other commercial enterprises. This section shall not
prohibit Tenant or JCC Development from providing
complimentary services as permitted by state law."
H. THE FOLLOWING NEW SECTION IS HEREBY ADDED TO THE LEASE AS
SECTION 4.27:
"4.27 PARKING SPACE REDUCTIONS
The City acknowledges that Tenant has provided
parking spaces in the parking garages in excess of the number
that operational experience has shown
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are necessary for its day-to-day operations. Accordingly,
subject to an amendment to the Conditional Use Ordinance, the
City supports a one time reduction in the required number of
garage parking spaces required to be available at all times
for casino patrons and employees by up to 700 spaces, provided
that the reduced number of spaces in the garages is adequate
to satisfy actual casino customer usage and further provided
that Tenant files a completed application for the Conditional
Use amendment to obtain the parking space reductions by March
1, 2002. If the City is legally able to grant a reduction in
spaces but fails to do so, then Tenant may annually deduct
$200,000 ("Parking Space Value") per year from the Minimum
Payments only for so long as the City fails to grant a
reduction in the parking spaces. Notwithstanding the
foregoing, if City is legally unable to grant a reduction in
parking spaces as provided above, then City shall have 150
days after the execution of this Second Amendment to Amended
and Restated Lease to negotiate with Tenant an alternative
reduction/savings equal to the Parking Space Value. City and
Tenant shall negotiate in good faith a mutually acceptable
alternative reduction/savings, which, if implemented by City,
shall be in lieu of the $200,000 Parking Space Value."
4. It is hereby agreed by the parties that if there has been or if there
is presently a default or Event of Default caused by Tenant, Landlord
and/or the City as of the Effective Date of this Second Amendment to
Amended and Restated Lease Agreement, each party hereby waives any
right to declare a default or Event of Default and/or to take any legal
action of any type with respect to any such prior default or Event of
Default. Nothing herein shall prevent the placing in default, notice of
default or assigning an Event of Default to any
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future breach or default of the Lease as defined in said Lease
Agreement, arising or occurring after the Effective Date of this Second
Amendment to Amended and Restated Lease Agreement.
5. In the event of any conflict between any of the terms and conditions of
the Lease and this Second Amendment, the terms and conditions of the
Lease shall prevail unless such interpretation would render the
provisions of this Second Amendment nugatory.
6. The effective date of this Second Amendment to Amended and Restated
Lease (the "Effective Date") is the date that the Second Amendment to
Amended and Restated Lease is executed by all parties. Tenant
acknowledges that it granted various extensions for the City and
Landlord to designate reductions/savings in compliance with Ordinance
No. 20,080. Tenant shall be due no credits, moneys, offsets, reductions
and/or damages which may have resulted due to the inability or failure
of the Landlord and/or City to earlier designate any reductions/savings
in accordance with the First Amendment to Amended and Restated Lease
Agreement and Ordinance No. 20,080 M.C.S.
7. Tenant, City and Landlord agree and acknowledge that the amendments and
revisions to the Lease contained herein, together with other agreements
and consideration, have fully and completely satisfied any and all
requirements and obligations imposed by the First Amendment to Amended
and Restated Lease Agreement and Ordinance No. 20,080 M.C.S. with
respect to the designation of annual reduction/savings totaling Five
Million ($5,000,000) Dollars.
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8. Tenant, Landlord and City shall immediately dismiss with prejudice all
legal proceedings, suits, petitions, complaints and motions, if any,
pending before any United States Bankruptcy Courts and any other legal
proceeding and/or motion pending before any other state or federal
court concerning the breach and/or default of the Lease and/or the
First Amendment to Amended and Restated Lease Agreement or failure of
the City and/or Landlord to designate reductions/savings in accordance
with the First Amendment to Amended and Restated Lease Agreement and
Ordinance No. 20,080 M.C.S.
9. Except as specifically amended and stipulated herein, the Lease,
together with each and every prior amendment, extension and supplement
thereto, continues uninterrupted in full force and effect as to all of
its terms and conditions, which said Lease, as further hereby amended,
is hereby ratified and confirmed in all respects.
THUS DONE AND EXECUTED by the undersigned parties as of the date first
herein set forth.
WITNESSES: LANDLORD:
RIVERGATE DEVELOPMENT
CORPORATION
/s/ [illegible] By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------- -------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
/s/ ▇▇▇▇▇▇▇ ▇. [illegible] Title: President
-------------------------------- ----------------------------------
TENANT
JAZZ CASINO COMPANY, L.L.C.
/s/ [illegible] By: /s/ L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- -------------------------------------
Name: L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Vice President
-------------------------------- ----------------------------------
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INTERVENOR:
CITY OF NEW ORLEANS
/s/ ▇▇▇▇▇▇▇ ▇. [illegible] By: /s/ ▇▇▇▇ ▇. Morial
-------------------------------- -------------------------------------
Name: ▇▇▇▇ ▇. Morial
-----------------------------------
Title: Mayor
-------------------------------- ----------------------------------
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1. PART II, SUBPART "T" OF THE OPEN ACCESS PROGRAM ("PROGRAM") IS
HEREBY AMENDED TO READ IN ITS ENTIRETY AS FOLLOWS:
"T. CONTRIBUTIONS TO PUBLIC SUPPORT EFFORTS
In addition to the payments to be made to fund Newcorp pursuant to Part
II, Subpart B of this Open Access Program, JCC will also donate an aggregate
amount of $2,500,000 as contributions to public support efforts over the course
of five (5) years. These contributions shall be payable in five (5) annual
installments of $500,000 per year, the first of which shall be made as of the
opening date of the Casino, with additional $500,000 installments to be paid on
each of the first, second, third and fourth anniversary dates thereafter (funded
each year in quarterly installments to a separate account established for that
purpose as stated below). Such donations are designed to enhance existing
business development programs and other public support endeavors, which will be
selected based on the following criteria:
o Potential recipients of such funds will be identified by: (i)
applications from potential recipients; (ii) recommendations from
public and private agencies and officials; (iii) JCC on its own
initiative; or (iv) otherwise as the circumstances may allow;
o JCC shall decide upon the recipients and the amounts of such funds,
keeping RDC, the Mayor and the New Orleans City Council advised on a
semi-annual basis in the semi-annual reports described in Part II,
Subpart C and Part V, Subpart B of this Open Access Program. This
will be accomplished by the President of ▇▇▇▇▇▇'▇ New Orleans
Management Company, as assisted by his or her staff and as
authorized by the member(s) of JCC. A form of application will
EXHIBIT 1
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be prepared and distributed within sixty (60) days after the
effective date of the Plan of Reorganization of HJC;
o All grant applications must articulate specific goals to be
achieved. Preference will be given to applications for grants of
$20,000 or less. However, subsequent grants to the same entity are
possible for larger projects, provided the recipient has achieved
the goals articulated in the first grant. Applicants that anticipate
applying for a series of small grants may say so in their first
application, and may describe the overall project they hope to
develop. However, as noted, subsequent grants will only be made to
an entity or individual if JCC's monitoring determines that the
first grant was used for the intended purposes.
The intended focus of such contributions to public support efforts will
be on programs aimed at fostering emerging or new Open Access Participant firms
and the training and skills improvements that will allow Open Access
Participants to participate in and benefit from new and existing business
opportunities. This delineation of the intended uses of the funds is intended to
be illustrative, but not necessarily comprehensive, as it is not possible to
list all types of activities that fit within the terms "existing business
development programs and other public support endeavors." Undoubtedly the
creative individuals and organizations that engage in such activities both now
and in future years will advance a broad array of opportunities for
consideration. All contributions are subject to those statutes, regulations and
guidelines promulgated by the State and Federal governments and their
instrumentalities, which govern spending by JCC.
At the beginning of each semi-annual period (commencing with the
opening date of the Casino), JCC shall pay fifty (50%) of the public support
efforts funds for the year (i.e. $250,000
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of the yearly amount of $500,000) into a separate account. On a monthly, or such
other basis as specified in approved grants, payments shall be made from that
account to approved grant recipients, pursuant to the process articulated above.
Any of these funds not disbursed during the quarter shall remain in the separate
account, to be disbursed, along with the funds to be added by JCC during the
next quarter, to approved grant recipients in accordance with the payment
schedule specified in the approved grants. It is the intent of this public
support efforts funding process that, by the end of each year, all five hundred
thousand dollars ($500,000) shall have been paid into the separate fund, with as
much of it disbursed to approved grant recipients as possible.
JCC shall include in each semi-annual report to the RDC, the Mayor, and
the New Orleans City Council (see Part II, Subpart C and Part V, Subpart B of
this Open Access Program) a report showing how much JCC paid into the separate
account during the prior six-month period, the amount disbursed to approved
grant recipients under this public support efforts program during the prior
six-month period, and the amount remaining in the separate account at the end of
each semi-annual period. Said report shall also list the amount for each of
these items on a year-to-date basis.
If any moneys remain undisbursed in the separate account at the end of
the year, they, along with any interest in the account, shall be carried
forward, to be disbursed to approved grant recipients in subsequent semi-annual
periods."
2. PART IV, SUBPART A.2. IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
"2. "Net hiring for the semi-annual period" for any particular job
category is the figure which results from adding the new hires, plus the
promotions and the transfers into the job category or categories being
considered during the relevant semi-annual period, and then
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subtracting (from that interim number) the layoffs, demotions, terminations
(both voluntary and involuntary) and transfers out of the relevant job category
during the semi-annual period involved. This number can be expressed as a
percentage by comparing the net hiring figure for a particular category of Open
Acres Participants (e.g., non-minority women) for a particular job category
(e.g., professionals) to the net hiring figure for everyone in that category for
the semi-annual period involved (i.e., the net hiring of women professionals
compared to the net hiring of all professionals during that semi-annual
period)."
3. PART IV, SUBPART A.3. IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
"3. "Total employment of Open Access Participants in a particular
employment category at the end of a particular semi-annual period" means the
percentage of each category of Open Access Participants in the employment
category involved on the last two (2) payroll days of the particular semi-annual
period, averaged. Thus, the number of a particular category of Open Access
Participants (e.g., non-minority women) employed in a particular job category
(e.g., professionals) on the last two (2) payroll days of the last month of a
particular semi-annual period is compared to the total number of persons
employed in that category on those two (2) days, with the result expressed as a
percentage (e.g., 60 non-minority women professionals out of 200 total
professionals on June 17th and 66 non-minority women professionals out of a
total of 210 professionals on June 31st would result in 30.73% non-minority
women for the semi-annual period)."
4. PART IV, SUBPART B IS HEREBY AMENDED TO READ IN IT ENTIRETY AS
FOLLOWS:
"B. WAIVER SYSTEM
In the event that JCC reasonably believes in advance of the
beginning of any semi-annual period that, despite it making all necessary and
reasonable efforts, it will be unable
-4-
to achieve the goal in any particular employment category, construction or
contracting category, JCC may apply to the RDC Board of Directors for an advance
waiver of that goal, in whole or in part, fully supporting its application in
writing with objective data and other relevant information about the actual
unavailability of Open Access Participants for the particular employment
category or actual unavailability of MBE or WBE companies for the particular
construction contracting category involved during the semi-annual period for
which the waiver is requested. Such an application shall be made at least thirty
(30) days in advance of the beginning of the semi-annual period for which it is
requested. Notwithstanding the submission of any such waiver application, JCC
shall continue to make all necessary and reasonable efforts to achieve the goal
from which JCC has requested a waiver.
The RDC Board shall designate a person (or persons) to review the
application. The RDC designee may, without a hearing, reject an application
which he or she deems inappropriate; in which case, the RDC designee must state
the reasons for rejection, in a letter to JCC, the Mayor, and the Chair of the
New Orleans City Council Special Development Projects Committee (or its
successor committee). Alternatively, the RDC designee may arrange a meeting of
persons he or she deems appropriate, plus persons JCC deems appropriate, in
order to discuss and address the issues presented in the waiver request and the
relevant information. In either case, within twenty-one (21) days after receipt
of the waiver request, the RDC designee shall respond in writing, stating that
he or she will recommend the waiver, in whole or in part, or will not recommend
it, and stating the reasons for his or her decision. If the RDC designee
recommends the waiver, he or she shall send a written recommendation of a waiver
for a particular semi-annual period to the Mayor and the Chair of the New
Orleans City Council Special Development Projects Committee (or its successor).
The New Orleans City Council
-5-
Special Development Projects Committee (or its successor) will consider the
recommendation at its next regularly scheduled meeting, and the Mayor shall act
expeditiously.
A waiver shall be effective only if it is approved in writing by both
the Mayor and the New Orleans City Council Special Development Projects
Committee (or its successor), and shall be effective only for the semi-annual
period for which it is approved. In the event there is no successor for the New
Orleans City Council Special Development Projects Committee, approval must be
obtained from a majority of the members of the New Orleans City Council and from
the Mayor. The parties understand and agree that the timing of the application,
meeting schedules, volume of material to be considered, and other matters may
result in the waiver (if it is granted) being applicable to a semi-annual period
subsequent to the one for which JCC originally made application. If a waiver is
granted, whatever portion of the goal that is not waived shall remain as the
goal for the particular semi-annual period involved, and all of the rights,
duties, and procedures articulated in this Part IV of this Open Access Program
shall remain applicable to that unwaived portion of the goal. If a waiver is not
granted for a particular semi-annual period, then all of the rights, duties, and
procedures articulated in this Part IV of this Open Access Program shall remain
applicable for that semi-annual period."
5. PART IV, SUBPART C IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
"C. VIOLATIONS WITH RESPECT TO EMPLOYMENT AND CONTRACTING GOALS
For each semi-annual period in which the Mayor finds JCC to be in
violation, the Mayor may assess a fine of up to $10,000.00 for each Category of
Violation relating to any one of the eighteen (18) employment and six (6)
contracting categories in the Open Access Plans See Part IV, Subpart A(1)(a) and
Subpart A(1)(b) of this Open Access Program. If subsequent violations of the
same Category of Violation are found by the Mayor for two or more consecutive
semi-
-6-
annual periods, the Mayor may assess a fine for the second and subsequent
semi-annual periods of up to $20,000.00 for each Category of Violation."
6. PART IV, SUBPART D IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
"D. FAILURE TO COMPLY WITH NEWCORP FUNDING AND PUBLIC SUPPORT EFFORTS
OBLIGATIONS
The fine for each violation of JCC's quarterly funding obligation to
Newcorp (See Part IV, Subpart A(1)(c) of this Open Access Program), or violation
of funding obligations for public support efforts (See Part IV, Subpart A(1)(d)
of this Open Access Program) shall be set by the Mayor in an amount not to
exceed $20,000.00 for the first violation. If subsequent violations of the same
Category of Violation are found by the Mayor for two or more consecutive
semi-annual period, the Mayor may assess a fine for the second and subsequent
semi-annual periods of up to $40,000.00 for each Category of Violation."
7. PART IV, SUBPART E IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
"E. FAILURE TO COMPLY WITH CERTIFICATION PROCESS REQUIREMENTS
In the event JCC counts as MBEs or WBEs in its semi-annual reports
companies which it has not yet so certified, then the Mayor may impose a fine
for each such purported MBE or WBE that has been so counted. See Part IV,
Subpart A(1)(e) of this Open Access Program. The fine for each such violation of
JCC's certification obligation shall be set by the Mayor in an amount not to
exceed $20,000.00 for the first violation. If subsequent violations of this
Category of Violation are found by the Mayor for two or more consecutive
semi-annual period, the Mayor may assess a fine for the second and subsequent
semi-annual period of up to $40,000.00 for each Category of Violation."
8. PART IV, SUBPART F IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
"F. MEASURES OF COMPLIANCE
-7-
If during any semi-annual reporting period, JCC has: (a) achieved all
the employment goals (as specified in the Open Access Plans), as measured by
"total employment of Open Access Participants" in all employment categories at
the end of that semi-annual period (as defined in Part IV, Subpart A(3), above);
and (b) achieved the MBE and WBE contracting goals specified in those Plans, as
measured by contracting dollars disbursed to MBEs and WBE contracting goals
specified in those Plans, as measured by contracting dollars disbursed to MBEs
and WBEs during the particular semi-annual period; and (c) complied with its
obligations with respect to Newcorp; and (d) made the required public support
donations; and (e) complied with the Certification Process requirements, then
JCC shall be deemed to be in compliance with the Plans for that reported period.
If JCC's "total employment of Open Access Participants" for a
particular employment category at the end of the particular semi-annual period
involved is less than the employment goal for that category of Open Access
participants, or its contracting dollars disbursed to MBEs and WBEs during the
particular semi-annual period involved are less than the contracting goal for
that category of contractors, then the Major must evaluate the following
factors:
1. Whether JCC has made all necessary and reasonable efforts to
perform the tasks identified as Compliance-Oriented efforts
(described in Appendices A, B, C and D of this Open Access
Program) in a manner intended to achieve that particular goal;
2. Whether: (i) JCC's deficiency in reaching the particular
employment goal for the semi-annual period involved is no more
than ten percent (10%) below the particular employment goal
for the category of Open Access Participants being considered
(e.g. if the goal for non-minority women professionals is
thirty-percent
-8-
(30%), a positive score can be obtained for this factor only
if total employment of non-minority women professionals at the
end of the semi-annual period, when rounded down to the
nearest whole number, is twenty-seven percent (27%) or
higher), or (ii) JCC's deficiency in reaching the particular
employment goal for the semi-annual period involved would not
have occurred if the "average of the number of persons in the
category of Open Access Participants" (e.g., non-minority
women) in the job category being considered (e.g.,
professionals) on the two (2) payroll days used to calculate
total employment had been two persons higher than it actually
was. For purposes of this subparagraph 2(ii), the "average of
the number of persons in the category of Open Access
Participants" is determined by rounding down to the nearest
whole number (e.g., if the average of the number of
non-minority women professionals is 7.8, then for purposes of
this subparagraph 2(ii), the number 7.8 is rounded down to 7).
Furthermore, this subparagraph 2(ii) is only applicable if the
number of persons in the category of Open Access Participants
needed to meet the particular employment goal being considered
(e.g., thirteen non-minority women professionals) is less than
twenty (20). If the number of persons in the category of Open
Access Participants needed to meet the particular employment
goal being considered is twenty (20) or more, then only the
calculation in subparagraph 2(i) can be used.
3. Whether JCC's "net hiring for the semi-annual period"
(expressed as a percentage) is at or above the goal for the
category involved, or is within one person of that goal or,
for contracting, its contracting dollars awarded during the
-9-
semi-annual period are at or above the goal for the category
of Open Access Participants involved;
4. For contracting, whether JCC's contracting dollars disbursed
to MBEs and WBEs on a cumulative basis, as of the end of the
particular semi-annual period being considered, are at or
above the goal for the category of Open Access Participants
involved; and
5. Whether JCC reached the goal in the category (or categories)
involved during both of the two prior semi-annual periods.
JCC shall be deemed to be in compliance for the particular semi-annual
period for a particular employment category, if the Mayor determines that JCC
has a positive score on three of factor numbers 1, 2, 3 or 5 described above,
and JCC prepares an Action Plan of additional efforts to be performed during the
next semi-annual period reasonably calculated to improve performance in the
category involved. During the subsequent semiannual period (or semi-annual
period, if the Action Plan covers more than one semi-annual), JCC's performance
of the tasks in the Action Plan (and the reasonableness of the Action Plan)
shall also be considered in evaluating factor number 1, above, in the Mayor's
evaluation of the factors described above.
JCC shall be deemed to be in compliance for the particular
semi-annual period for a particular contracting category if the Mayor determines
that JCC has a positive score on three of factor numbers 1, 3, 4 or 5; and JCC
prepares an Action Plan of additional efforts to be performed during the next
semi-annual period reasonably calculated to improve performance in the category
involved. During the subsequent semi-annual period (or semi-annual period, if
the Action Plan covers more than one semi-annual period), JCC's performance of
the tasks in the
-10-
Action Plan (and the reasonableness of the Action Plan) shall also be considered
in evaluating factor number 1, above, in the Mayor's evaluation of the factors
described above.
In addition to the semi-annual reporting requirements set
forth in Part II, Subpart C of this Open Access Program, each semi-annual report
filed by JCC shall contain all information necessary to assist the Mayor in
measuring compliance through the evaluative process set forth above.
If within each particular employment category for a particular
reporting period, JCC has used its Good Faith Efforts to fulfill its
non-minority female goals and JCC has a sufficient surplus number of minority
female Open Access participants to offset a deficiency in the non-minority
female goals, JCC shall be deemed to be in compliance with the Plans for that
reporting period."
9. PART IV, SUBPART G IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
"G. REQUESTS FOR REVIEW
If, after the Mayor has reviewed JCC's semi-annual report (for employment and
contracting, this will, if applicable, include his or her evaluation of factors
1 through 5 described in Part IV, Subpart F of this Open Access Program), he or
she concludes that JCC has violated one or more of the Categories of Violation
described in Part IV, Subpart A(1) of this Open Access Program, he or she may,
within thirty (30) days of receipt of the semi-annual report, issue a Request
for Review to JCC.
The Request for Review shall set forth in detail the specific
Categories of Violation the Mayor believes that JCC has violated. In the Request
for Review, the Mayor may recommend actions to cure the areas of believed
non-compliance. If the Mayor fails to issue a Request for
-11-
Review within this 30-day period, JCC shall be deemed to be in compliance for
that reporting period.
In the event JCC fails to file a semi-annual report, the Mayor may
conclude that JCC has violated one or more Categories of Violation and the Mayor
may, within thirty (30) days of the deadline for filing the semi-annual report,
issue a Request for Review."
10. PART V, SUBPART A IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
A. Demonstration of Good Faith Efforts
JCC shall utilize Good Faith Efforts to meet the goals and requirements
of the Open Access Program and Plan. Good Faith Efforts means actions taken by
JCC in a true and genuine attempt to achieve compliance with and to further the
intent and purpose of the Open Access Plan and Open Access Program, without any
design to deceive or defraud the City/Landlord or the intended beneficiaries of
the Open Access Plan or Open Access Program or otherwise undermine the intent of
the Open Access Plan or Open Access Program. Good faith requires that JCC make
all reasonable and necessary efforts to achieve its goals articulated in the
Open Access Plan and Open Access Program. To evaluate whether JCC has utilized
Good Faith Efforts, the number and quality of the following activities may be
considered:
1. Outreach, Recruitment and Retention
a. Dissemination of Information on Employment Needs:
whether JCC used the services of community
organizations, skills training programs, employment
agencies and educational institutions that provide
assistance in the recruitment and placement of
disadvantaged and minority individuals.
b. Policy Statements: whether JCC's employees were
provided with copies of an employee handbook, which
contained EEO and Open Access policies.
c. Publications: whether JCC EEO and Open Access
policies were featured periodically in employee
publications.
-12-
d. Recruitment Sources: whether JCC maintained regular
communications with major established and reputable
recruiting sources.
e. Employment Application: whether JCC's employment
application communicated prominently JCC's EEO
policy.
f. Applicant Flow and Personnel Monitoring: whether JCC
maintains employment in human resources information
system and has the ability to analyze transactions to
identify problem areas and take appropriate remedial
actions as necessary.
g. Irrelevant Criteria: whether JCC ensured that no
irrelevant or unnecessary elements were included in
the selection criteria.
h. Job Fairs. JCC, independently or in conjunction with
other agencies and/or employees, shall conduct job
fairs, as needed, aimed at recruiting individuals in
different areas of New Orleans where applications
will be distributed and collected. JCC shall
designate persons to direct these intensified
outreach efforts.
i. Benefits Advertising. JCC shall include in its
recruiting and employment materials and literature
information and data emphasizing its Child Care,
Education Assistance and Home Ownership Programs.
2. Training and Career Development
a. Independent Training Agencies: whether JCC assisted,
established and reputable skills training centers,
Open Access Participants and others in establishing
programs to train workers for jobs existing at the
Casino.
b. Career Development: whether JCC utilized a variety of
career development techniques, including:
(i) whether JCC made available a variety of
classroom and other training programs to
enhance the knowledge and skills of
employees;
(ii) whether JCC used on-the-job training to
enhance performance;
(iii) whether JCC used apprenticeships to provide
accelerated cross occupational training;
(iv) whether JCC instituted an internship program
for college and university students age
twenty-one (21) and over;
-13-
(v) whether JCC advised the Mayor and the New
Orleans City Council Special Projects
Committee (or its successor committee) of
the details of its training programs and any
significant changes in these programs.
c. Staff Training: whether JCC held training sessions to
inform management employees and others engaged in
employment processes of JCC's commitment and
responsibilities under the Open Access Program."
11. PART V, SUBPART B IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
"B. RECORD KEEPING
JCC shall establish and maintain records and submit semi-annual reports
to RDC, the Mayor, and the New Orleans City Council, which will identify and
assess progress in achieving Open Access Program contracting and subcontracting
goals and other Open Access Programs employment efforts. See Part II, Subpart C,
above. JCC will make all records pertaining to its Open Access Program available
to the foregoing entities for an annual evaluation.
Further JCC will adhere to the following timetable for reporting
requirements:
o annual assessment of success in reducing unemployment,
underemployment, chronic unemployment, and underutilization
of Open Access Participants commencing twelve (12) months
after the opening date of the Casino;
o semi-annual reports on hiring and retention of minority
individuals, women, and persons with disabilities, for each
semi-annual period, with reports due on the last day of
July and January of the following calendar year.
-14-
o semi-annual reports on contracting with MBEs, WBEs and
DBEs, and companies owned by persons with disabilities,
with reports due on the last day of July and January of the
following calendar year;
o annual assessments of the impact of JCC's services on the
community commencing twelve (12) months after the opening
date of the Casino;"
12. PART V, SUBPART D IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
"D. REPORTING MECHANISMS TO TRACK THE HIRING AND RETENTION OF MEMBERS OF
MINORITY GROUPS, WOMEN AND PERSONS WITH DISABILITIES
JCC will maintain a roster of all employees and enterprises with which
JCC is doing business. The roster will indicate the status of employees in the
following categories:
o Minority
o Non-minority Women
o Men
o Persons with Disabilities
o MBE
o WBE
o DBE
o Other
The roster or employment monitoring form will reflect the dynamics of
changes in contracting and employment on a semi-annual basis."
13. APPENDICES "A" THROUGH "D" ARE HEREBY DELETED IN THEIR ENTIRETY AND
REPLACED WITH THE FOLLOWING:
-15-
"APPENDIX "A" TO THE OPEN ACCESS PROGRAM
EVALUATION OF GOOD FAITH EFFORTS (CONTRACTING)
JCC shall utilize its Good Faith Efforts to meet the goals and
requirements of the Open Access Plan. Good Faith Efforts means actions taken by
JCC in a true and genuine attempt to achieve compliance with and to further the
intent and purpose of the Open Access Plan and Open Access Program, without any
design to deceive or defraud the City/Landlord or the intended beneficiaries of
the Open Access Plan or Open Access Program or otherwise undermine the intent of
the Open Access Plan or Open Access Program. Good faith requires that JCC make
all reasonable and necessary efforts to achieve its goals articulated in the
Open Access Plan and Open Access Program. To evaluate whether JCC has utilized
its Good Faith Efforts, the number and quality of the following activities may
be considered:
1. whether JCC held any pre-bid meetings for formal bids to
inform Open Access Participants of contracting opportunities
and/or utilized the Open Access Program Directory of
Certifications.
2. whether JCC advertised in general circulation and targeted
association publications concerning Open Access Program
contracting opportunities, and allowed the Open Access
Participants reasonable time to respond;
3. whether JCC provided written notice to a reasonable number of
specific Open Access Participants and allowed sufficient time
for the Open Access Participants to participate effectively;
4. whether JCC selected portions of the work to be performed by
Open Access Participants in order to increase the likelihood
of meeting the Open Access Program goals (including, where
appropriate, breaking down contracts into economically
feasible units to facilitate Open Access Participant
participation);
5. whether JCC encourages its contractors to seek out ▇▇▇
subcontractors at appropriate participation levels;
6. whether JCC provided interested Open Access Participants with
adequate information about the plans, specifications and
requirements of the contract;
-16-
7. whether JCC negotiated in "good faith" with interested Open
Access Participants and did not reject Open Access
Participants as unqualified without sound reasons based on a
thorough investigation of their capabilities;
8. Community Resources. JCC has and will continue to use the
services of available minority and women's community
organizations; minority and women's contractors' groups;
local, state and federal minority and women's business
assistance offices; disability rights organizations; and other
organizations that provide assistance in the recruitment and
placement of Open Access Participant firms and in the
recruitment of firms eligible for certification as Open Access
Participant firms.
9. Disqualification. If JCC rejects an Open Access Participant
firm as unqualified, JCC will maintain a written record of its
reason(s).
10. Participation Records. JCC shall maintain a written record of
each supply and service contract, the dollar value of each
contract and the MBE or WBE status of each contractor or
subcontractor.
11. Replacement of Contracts with Open Access Participants. JCC
shall strive to ensure that majority-owned firms are not
substituted for contracted MBE and WBE firms in a manner that
is consistent with the objectives of the Open Access Program,
as stated in Part 1, Subpart B thereof. JCC will give notice
to the RDC of any substitution of a minority-owned firm for an
MBE or WBE. JCC will investigate any complaints by MBE or WBE
firms relating to substituting majority-owned firms for them."
"APPENDIX "B" TO THE OPEN ACCESS PROGRAM
EVALUATION OF GOOD FAITH EFFORTS (EMPLOYMENT)
JCC shall utilize Good Faith Efforts to meet the goals and requirements
of the Open Access Program and Plan. Good Faith Efforts means actions taken by
JCC in a true and genuine attempt to achieve compliance with and to further the
intent and purpose of the Open Access Plan and Open Access Program, without any
design to deceive or defraud the City/Landlord or the intended beneficiaries of
the Open Access Plan or Open Access Program or otherwise undermine the intent of
the Open Access Plan or Open Access Program. Good faith requires that JCC makes
all reasonable and necessary efforts to achieve its goals articulated in the
Open
-17-
Access Plan and Open Access Program. To evaluate whether JCC has utilized Good
Faith Efforts, the number and quality of the following activities may be
considered:
1. Outreach, Recruitment and Retention
a. Dissemination of Information on Employment Needs:
whether JCC used the services of community
organizations, skills training programs, employment
agencies and educational institutions that provide
assistance in the recruitment and placement of
disadvantaged and minority individuals.
b. Policy Statements: whether JCC's employees were
provided with copies of an employee handbook, which
contained EEO and Open Access policies.
c. Publications: whether JCC EEO and Open Access
policies were featured periodically in employee
publications.
d. Recruitment Sources: whether JCC maintained regular
communications with major established and reputable
recruiting sources.
e. Employment Application: whether JCC's employment
application communicated prominently JCC's EEO
policy.
f. Applicant Flow and Personnel Monitoring: whether JCC
maintains employment in a human resources information
system and has the ability to analyze transactions to
identify problem areas and take appropriate remedial
actions as necessary.
g. Irrelevant Criteria: whether JCC ensured that no
irrelevant or unnecessary elements were included in
the selection criteria.
h. Job Fairs. JCC, independently or in conjunction with
other agencies and/or employers, shall conduct job
fairs, as needed, aimed at recruiting individuals in
different areas of New Orleans where applications
will be distributed and collected. JCC shall
designate persons to direct these intensified
outreach efforts.
i. Benefits Advertising. JCC shall include in its
recruiting and employment materials and literature
information and data emphasizing its Child Care,
Education Assistance and Home Ownership Programs.
2. Training and Career Development
a. Independent Training Agencies: whether JCC assisted,
established and reputable skills training centers,
Open Access Participants and others in establishing
programs to train workers for jobs existing at the
Casino.
-18-
b. Career Development: whether JCC utilized a variety of
career development techniques, including:
(i) whether JCC made available a variety of
classroom and other training programs to
enhance the knowledge and skills of
employees;
(ii) whether JCC used on-the-job training to
enhance performance;
(iii) whether JCC used apprenticeships to provide
accelerated cross occupational training;
(iv) whether JCC instituted an internship program
for college and university students age
twenty-one (21) and over;
(v) whether JCC advised the Mayor and the New
Orleans City Council Special Projects
Committee (or its successor committee) of
the details in its training programs and any
significant changes in these programs.
c. Staff Training: whether JCC held training sessions to
inform management employees and others engaged in
employment processes of JCC's commitment and
responsibilities under the Open Access Program."
14. PART V, IS HEREBY AMENDED TO ADD THE FOLLOWING PARAGRAPH TO THE END OF
SUBPART "H":
"In the event of any conflict between any of the terms and conditions
of the Open Access Program and this Amendment to the Open Access Program, the
terms and conditions of this amendment to the Open Access Program shall
prevail."
-19-
EXHIBIT 2
1. PART I, SUBPART F OF THE OPEN ACCESS PLAN ("PLAN") IS HEREBY AMENDED
TO READ IN ITS ENTIRETY AS FOLLOWS:
"F. CONTRIBUTIONS TO PUBLIC SUPPORT EFFORTS
Pursuant to Part II, Introduction, paragraph 5; Part II, Subpart T; and
Part IV, Subparts A.1.d. and D of the Open Access Program, JCC will donate an
aggregate amount of $2,500,000 as contributions to public support efforts over
the course of five (5) years. These contributions shall be payable in five (5)
annual installments of $500,000 per year, the first of which shall be made as of
the opening date of the Casino, with additional $500,000 installments to be paid
on each of the first, second, third and fourth anniversary dates thereafter
(funded each year in quarterly installments to a separate account established
for that purpose as stated below). These annual contributions are in addition to
the initial capitalization of Newcorp and the $250,000 annual payments to
Newcorp described above. Such donations are designated to enhance existing
business development programs and other public support endeavors, and will be
made based on the following criteria:
o Potential recipients of such funds will be identified by: (i)
applications from potential recipients; (ii) recommendations from
public and private agencies and officials; (iii) JCC on its own
initiative; or (iv) otherwise as the circumstances may allow;
o JCC shall decide upon the recipients and the amounts of such funds,
keeping the RDC, the Mayor and the City Council advised on a
semi-annual basis in the semi-annual reports described in Part II,
Subpart C; Part IV, Subpart F; and Part V, Subpart B of the Open
Access Program. This will be accomplished by the President of JCC,
as assisted by his or her staff and as authorized by the
-1-
member(s) of JCC. A form of application will be prepared and
distributed within sixty (60) after the Effective Date;
o All grant applications must articulate specific goals to be
achieved. Preference will be given to applications for grants of
$20,000 or less. However, subsequent grants to the same entity are
possible for larger projects, provided the recipient has achieved
the goals articulated in the first grant. Applicants that anticipate
applying for a series of small grants may say so in their first
application, and may describe the overall project they hope to
develop. However, as noted, subsequent grants will only be made to
an entity or individual if JCC's monitoring determines that the
first grant was used for the intended purposes.
The intended focus of such contributions to public support efforts will
be on programs aimed at fostering emerging or new Open Access Participant firms
and the training and skills improvements that will allow Open Access
Participants to participate in and benefit from new and existing business
opportunities. This delineation of the intended use of the funds is intended to
be illustrative, but not necessarily comprehensive, as it is not possible to
list all types of activities that fit within the terms "existing business
development programs and other public support endeavors." Undoubtedly the
creative individuals and organizations that engage in such activities both now
and in future years will advance a broad array of opportunities for
consideration. All contributions are subject to those statutes, regulations and
guidelines promulgated by the State and Federal governments and their
instrumentalities, which govern spending by JCC.
At the beginning of each semiannual period (commencing with the opening
date of the Casino), JCC shall pay fifty percent (50%) of the public support
efforts funds for the year (i.e.,
-2-
$250,000 of the yearly amount of $500,000) into a separate account. On a
monthly, or such other basis as specified in approved grants, payments shall be
made from that account to approved grant recipients, pursuant to the process
articulated above. Any of these funds not disbursed during the quarter shall
remain in the separate account, to be disbursed, along with the funds to be
added by JCC during the next quarter, to approved grant recipients in accordance
with the disbursal schedule specified in the approved grants. It is the intent
of this public support efforts funding process that, by the end of the year, the
entire $500,000 shall have been paid into the separate fund, with as much of it
disbursed to approved grant recipients as possible.
JCC shall include in each semi-annual report to the RDC, the Mayor and
the City Council, in accordance with Part II, Subpart C; Part IV, Subpart F;
Part V, Subpart B of the Open Access Program, a report showing the amount JCC
paid into the separate account during the respective semi-annual periods, the
amount disbursed to approved grant recipients under this public support efforts
program during the semi-annual period, and the amount remaining in the separate
account at the end of the semi-annual period. Said report shall also list the
amount for each of these items on a year-to-date basis.
If any moneys remain undisbursed in the separate account at the end of
the year, they, along with any interest in the account, shall be carried
forward, to be disbursed to approved grant recipients semi-annually."
2. PART III, SUBPART A.2. THE PLAN IS HEREBY AMENDED TO READ IN ITS
ENTIRETY AS FOLLOWS:
"2. OPEN ACCESS EMPLOYMENT OBJECTIVES
JCC will make all necessary and reasonable efforts, through the means
set forth below, to achieve levels of employment among those engaged in
operation of the Casino at the level of
-3-
their actual availability in the relevant labor market. The NERA Study (Table
8.3) has found such actual availability to be as follows:
MINORITY INDIVIDUALS
--------------------
Managers & Professionals 16.3%
Supevisors 26.3%
Technicians 32.5%
Support Occupations 56.0%
Cleaners, Operators, Laborers 84.0%
NON-MINORITY WOMEN
------------------
Managers & Professionals 34.5%
Supevisors 36.4%
Technicians 10.0%
Support Occupations 27.8%
Cleaners, Operators, Laborers 4.7%
Following the method used by NERA in the NERA Study, JCC will calculate
the utilization of Minority Individuals and Non-Minority Women by their numbers
and by the percentage they constitute of the total number of individuals
employed at the Casino during any given semi-annual period. See Part IV,
Subparts A and F of the Open Access Program. Because NERA's availability
analysis was based on the assumption that minority women will be counted as
Minority Individuals and not as women, JCC will count minority women in that
way.
If within each particular Open Access category for a particular
reporting period, JCC has used its Good Faith Efforts to fulfill its
Non-Minority Women goals and JCC has a sufficient surplus number of Minority
Individual Open Access participants to offset a deficiency in the
-4-
Non-Minority Women goals, JCC shall be deemed to be in compliance with the Plan
for that reporting period.
As suggested by the NERA Study finding that potential availability of
Minority Individuals and MBEs greatly exceeds actual availability, JCC
anticipates that such actual availability will increase as a result of the
efforts of this Open Access Plan for Operation of the Casino and other efforts
to remove discriminatory barriers. Accordingly, JCC anticipates significant
incremental increases in its hiring and contracting goals as a result of the
reassessments of goals that will commence in September 2000 pursuant to Part V,
Subpart I of the Open Access Program."
3. PART III, SUBPART A.4. IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
"4. EVALUATION OF GOOD FAITH EFFORTS (EMPLOYMENT)
JCC shall utilize Good Faith Efforts to meet the goals and requirements
of the Open Access Program and Plan. Good Faith Efforts means actions taken by
JCC in a true and genuine attempt to achieve compliance with and to further the
intent and purpose of the Open Access Plan and Open Access Program, without any
design to deceive or defraud the City/Landlord or the intended beneficiaries of
the Open Access Plan or Open Access Program or otherwise undermine the intent of
the Open Access Plan or Open Access Program. Good faith requires that JCC make
all reasonable and necessary efforts to achieve its goals articulated in the
Open Access Plan and Open Access Program. To evaluate whether JCC has utilized
Good Faith Efforts, the number and quality of the following activities may be
considered:
A. Outreach, Recruitment and Retention
1. Dissemination of Information on Employment Needs: whether JCC
used the services of community organizations, skills training
programs, employment agencies and educational institutions
that provide assistance in the recruitment and placement of
disadvantaged and minority individuals.
-5-
2. Policy Statements: whether JCC's employees were provided with
copies of an employee handbook, which contained EEO and Open
Access policies.
3. Publications: whether JCC EEO and Open Access policies were
featured periodically in employee publications
4. Recruitment Sources: whether JCC maintained regular
communications with major established and reputable recruiting
sources.
5. Employment Application: whether JCC's employment application
communicated prominently JCC's EEO policy.
6. Applicant Flow and Personnel Monitoring: whether JCC maintains
employment in a human resources information system and has the
ability to analyze transactions to identify problem areas and
take appropriate remedial actions as necessary.
7. Irrelevant Criteria: whether JCC ensures that no irrelevant or
unnecessary elements were included in the selection criteria.
8. Job Fairs. JCC, independently or in conjunction with other
agencies and/or employers, shall conduct job fairs, as needed,
aimed at recruiting individuals in different areas of New
Orleans where applications will be distributed and collected.
JCC shall designate persons to direct these intensified
outreach efforts.
9. Benefits Advertising. JCC shall include in its recruiting and
employment materials and literature information and data
emphasizing its Child Care, Education Assistance and Home
Ownership Programs.
B. Training and Career Development
1. Independent Training Agencies: whether JCC assisted,
established and reputable skills training centers, Open Access
Participants and others in establishing programs to train
workers for jobs existing at the Casino.
2. Career Development: whether JCC utilized a variety of career
development techniques, including:
(i) whether JCC made available a variety of classroom and
other training programs to enhance the knowledge and
skills of employees;
(ii) whether JCC used on-the-job training to enhance
performance;
(iii) whether JCC used apprenticeships to provide
accelerated cross occupational training;
-6-
(iv) whether JCC instituted an internship program for
college and university students age twenty-one (21)
and over;
(v) whether JCC advised the Mayor and the New Orleans
City Council Special Projects Committee (or its
successor committee) of the details of its training
programs and any significant changes in these
programs.
3. Staff Training: whether JCC held training sessions to inform
management employees and others engaged in employment
processes of JCC's commitment and responsibilities under the
Open Access Program."
4. PART III, SUBPART A.5. IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
"5. REPORTING
JCC will report to the RDC, the Mayor and the City Council on January 31st and
July 31st of each year concerning certain employment information relating to
operation of the Casino in accordance with Part II, Subpart C; Part IV, Subpart
F; and Part V, Subpart B of the Open Access Program. JCC shall submit
semi-annual reports concerning employment information relating to the operation
of the Casino beginning with a report due on July 31, 2002.
These semi-annual reports shall contain the following information:"
5. PART III, SUBPART A.5.A IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
"a. EMPLOYEES: The total number of employees as of the end of each
six-month period, broken into the five (5) occupational categories set forth in
the NERA Study. These figures are further broken down into regular full-time;
regular part-time; temporary and on-call, including the number in each category
who are minority men, minority women, non-minority men and non-minority women.
JCC will also report on the current make-up of the workforce as of the last two
(2) payroll days in the six month period covered by the report. See Part IV,
Subpart A.3. of the Open Access Program."
6. PART III, SUBPART A.5.B IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
-7-
"b. NEW HIRES: The total number of persons hired during the prior
six-month period for each of the categories specified above, including the
number in each category who are Minority Individuals and women."
7. PART III, SUBPART A.5.C. IS HEREBY AMENDED TO READ IN ITS ENTIRETY
AS FOLLOWS:
"c. TERMINATIONS: The total number of regular full-time and regular
part-time employees whose employment terminated during prior six-month period,
including the number in each category who are Minority Individuals and women and
a statement within each subcategory of the number terminated voluntarily and
involuntarily."
8. PART III, SUBPART A.5.D. IS HEREBY AMENDED TO READ IN ITS ENTIRETY
AS FOLLOWS:
"d. OTHER EMPLOYEE DATA: In addition to the employment data
described in items a. through c., above, each semi-annual report shall report
the Net Hiring for the prior six-month period and Total Employment of Open
Access Participants, as defined herein and in Part IV, Subpart A of the Open
Access Program. Further, the semi-annual report will describe all of the
subfactors used to make these calculations."
9. PART III, SUBPART A.5.E IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
"e. PROSPECTIVE EMPLOYEE TRAINING: The total number of prospective
employees who were trained during the prior six-month period, including the
number who are Minority Individuals and women."
10. PART III, SUBPART A.5.F. IS HEREBY AMENDED TO READ IN ITS ENTIRETY
AS FOLLOWS:
"f. ACCOUNTING FOR MINORITY WOMEN: Because NERA's availability
analysis was based on the assumption that minority women will be counted as
Minority Individuals rather than as women, JCC will count minority women in that
way."
11. PART III, SUBPART A.5.G. IS HEREBY AMENDED TO READ IN ITS ENTIRETY
AS FOLLOWS:
-8-
"g. PERSONS WITH DISABILITIES: Insofar as JCC becomes aware of the
disabled status of individuals employed, hired, terminated or trained during the
prior six-month period, it shall report that information in a separate section
of the report, which will note that such information is necessarily partial and
incomplete."
12. PART III, SUBPART A.5.H. IS HEREBY AMENDED TO READ IN ITS ENTIRETY
AS FOLLOWS:
"h. RESIDENCE: JCC will report on the percentage of its employees
who are residents of Orleans Parish and the percentage who are residents of
Louisiana.
In reporting on JCC's progress toward meeting its goals for the prior
six-month period, JCC will compare its performance data against the goals as set
forth in this Open Access Plan for Operation of the Casino. JCC's semi-annual
employment reports will also describe additional efforts to comply with the
relevant portions of Part IV, Subpart A of the Open Access Program.
JCC will include in the report any explanatory or background
information which it believes will aid in understanding or interpreting the data
being reported and information on any other relevant subjects as requested by
the Mayor and/or the City Council.
Commencing on July 31, 2002, JCC will submit annually, a report, in
writing, to the City Council on the success of the Open Access Plan for
Operation of the Casino regarding the employment component for operation of the
Casino in reducing unemployment, underemployment, chronic unemployment, under
utilization of traditionally disadvantaged groups and on the Open Access
Program's impact on the community.
Notwithstanding the foregoing obligations for JCC's semi-annual
reports, the RDC, the Mayor and the City Council acknowledge that, as an
on-going matter, periodic revisions and adjustments to JCC's reporting
obligations will be needed. Within twenty-four months from the date that all
parties execute the Second Amendment to Amended and Restated Lease Agreement,
-9-
representatives of the RDC, the Mayor, the City Council and JCC will meet, at a
time and place that is mutually acceptable to the parties, for the purpose of
revising and implementing the JCC Open Access Program and the JCC Open Access
Plans in a manner that is consistent with the Mayor's and the City Council's
efforts to standardize all City approved Plans and Programs to make them
consistent with current law. The representatives identified above will
specifically discuss the implementation of a Plan and Program based upon low
income and/or disadvantage status. Before becoming effective, any proposed
revisions to JCC's Plan and/or Program from this or comparable meetings must be
agreed to in writing by the RDC and the Mayor and must obtain approval of the
City Council."
13. PART III, SUBPART A.6. IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
"6. Responsibility. The members of JCC have the overall responsibility
for the success of JCC's equal employment opportunity and Open Access
policy. JCC shall require HNOMC to comply with the provisions of the
Open Access Program and these Open Access Plans insofar as its
contractual duties to JCC bear upon such activities. JCC continues to
take full responsibility for any aspects of the implementation of these
Open Access Plans that may be delegated to HNOMC.
a. Administration of Open Access Plan: JCC shall designate the
individual responsible for administration of JCC's equal employment
policy and the employment components of the Open Access Plan for
Operation of the Casino ("Designated Responsible Person"). Said
Designated Responsible Person shall be responsible for assuring that
appropriate action is taken by all levels of management to achieve
JCC's equal employment opportunity and Open Access employment
objectives."
14. PART III, SUBPART B.2. IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
-10-
2. OPEN ACCESS CONTRACTING OBJECTIVES:
Based on findings of the NERA Study concerning actual
availability, JCC will make all necessary and reasonable efforts to achieve the
following utilization levels for MBEs and non-minority WBEs, respectively, in
the operation of the Casino. These goals are applicable to all service and
commodities contracting by JCC and HJC, as defined and explained in the NERA
Study at page 136 and in the supplemental memorandum attached as Addendum J
hereto. (Lists of commodity and non-professional service purchases submitted to
NERA as a basis for developing these goals are attached hereto as Addenda K and
L, respectively.) The resulting goals are as follows:
Operations Contracting
Non-Minority
MBEs WBEs
-------- ------------
Professional Services 3.1% 10.3%
Commodities and Non-Professional Services 7.5% 14.7%
If within each particular Open Access category for a particular
reporting period, JCC has used its Good Faith Efforts to fulfill its
Non-Minority WBE goals and JCC has a sufficient surplus number of MBE
participants to offset a deficiency in the Non-Minority WBE goals, JCC shall be
deemed to be in compliance with the Plan for that reporting period.
As suggested by the NERA Study finding that potential availability of Minority
Individuals and MBEs greatly exceeds actual availability, JCC anticipates that
such actual availability will increase as a result of the efforts of this Open
Access Plan for Operation of the Casino and other efforts to remove
discriminatory barriers. Accordingly, JCC anticipates significant incremental
increases in its hiring and contracting goals as a result of the reassessments
of goals that will commence in September 2000 in accordance with Part V, Subpart
I of the Open Access Program.
-11-
Thus, JCC has a present perception that the appropriate contracting goal for
operation of the Casino by March 31, 2001 will be higher than those set forth
above, and that comparable percentage increases in goals will be called for by
subsequent goal assessments."
15. PART III, SUBPART B.4. IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
"4. EVALUATION OF GOOD FAITH EFFORTS (CONTRACTING)
JCC shall utilize its Good Faith Efforts to meet the goals and
requirements of the Open Access Plan. Good Faith Efforts means actions taken by
JCC in a true and genuine attempt to achieve compliance with and to further the
intent and purpose of the Open Access Plan and Open Access Program, without any
design to deceive or defraud the City/Landlord or the intended beneficiaries of
the Open Access Plan or Open Access Program or otherwise undermine the intent of
the Open Access Plan or Open Access Program. Good faith requires the JCC make
all reasonable and necessary efforts to achieve its goals articulated in the
Open Access Plan and Open Access Program. To evaluate whether JCC has utilized
its Good Faith Efforts, the number and quality of the following activities may
be considered:
1. whether JCC held any pre-bid meetings for formal bids to
inform Open Access Participants of contracting opportunities
and/or utilized the Open Access Program Directory of
Certifications.
2. whether JCC advertised in general circulation and targeted
association publications concerning Open Access Program
contracting opportunities, and allowed the Open Access
Participants reasonable time to respond;
3. whether JCC provided written notice to a reasonable number of
specific Open Access Participants and allowed sufficient time
for the Open Access Participants to participate effectively;
4. whether JCC selected portions of the work to be performed by
Open Access Participants in order to increase the likelihood
of meeting the Open Access Program goals (including, where
appropriate, breaking down contracts into economically
feasible units to facilitate Open Access Participant
participation);
-12-
5. whether JCC encourages its contractors to seek out
DBEsubcontractors at appropriate participation levels;
6. whether JCC provided interested Open Access Participants with
adequate information about the plans, specifications and
requirements of the contract;
7. whether JCC negotiated in "good faith" with interested Open
Access Participants and did not reject Open Access
Participants as unqualified without sound reasons based on a
thorough investigation of their capabilities;
8. Community Resources. JCC has and will continue to use, as
needed, the services of available minority and women's
community organizations; minority and women's contractors'
groups; local, state and federal minority and women's business
assistance offices; disability rights organizations; and other
organizations that provide assistance in the recruitment and
placement of Open Access Participant firms and in the
recruitment of firms eligible for certification as Open Access
Participant firms.
9. Disqualification. If JCC rejects an Open Access Participant
firm as unqualified, JCC will maintain a written record of its
reason(s).
10. Participation Records. JCC shall maintain a written record of
each supply and service contract, the dollar value of each
contract and the MBE or WBE status of each contractor or
subcontractor.
11. Replacement of Contracts with Open Access Participants. JCC
shall strive to ensure that majority-owned firms are not
substituted for contracted MBE and WBE firms in a manner that
is consistent with the objectives of the Open Access Program,
as stated in Part I, Subpart B thereof. JCC will give notice
to the RDC of any substitution of a minority-owned firm for an
MBE or WBE. JCC will investigate any complaints by MBE or WBE
firms relating to substituting majority-owned firms for them."
16. PART III, SUBPART B.5. IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS
FOLLOWS:
"5. REPORTING
JCC will report semi-annually to the RDC, the Mayor and the City
Council with regard to its progress implementing the contracting provisions of
the Open Access Plan for Operation of the Casino in accordance with Part II,
Subpart C; Part IV, Subpart F; and Part V, Subpart B of the Open Access Program.
-13-
Reports will be filed no later than one month after the close of each
semi-annual period, with reports due on July 31st and January 31st, for the
previous calendar year. JCC shall submit semi-annual reports concerning
contracting relating to the operation of the Casino.
The semi-annual reports shall address:
o Efforts undertaken by JCC to publicize the provisions and
opportunities of the Casino operations procurement program.
o Efforts undertaken by JCC to identify Open Access Participant
firms and efforts undertaken to encourage participation in the
Casino operations procurement program.
o Efforts undertaken by JCC to remedy any inability of Open Access
Participant firms to perform procurement contracts or proposed
procurement contracts.
o A summary of the progress being made toward the Casino operations
procurement program's objectives and goals.
o The extent to which joint ventures, made up in part of MBEs
and/or WBEs, have been utilized by JCC in operating the Casino.
o Name, address and phone number of each MBE and WBE that has been
contacted by JCC.
o Name, address and phone number of each MBE and WBE that responded
to requests from JCC.
o A list of all service and supply contracts awarded to an MBE or
WBE, including for each the date awarded; the type of good(s) or
service(s) provided; name, address, phone number, contact person
and the racial or gender category of the MBE and WBE.
-14-
o The number of service and supply contracts awarded to each
individual MBE and individual WBE; and the dollar value of each
of those contracts during the reporting period.
o Recommendations of JCC to strengthen its Open Access Program.
o Forecast of the procurement contracts expected to be awarded,
including probable monetary amounts involved, the number and type
of contracts to be awarded and expected solicitation dates.
o The total dollar volume of service and supply contracts signed
during the covered quarter for operation of the Casino and the
total dollar volume and percentage of such contracts awarded to
MBEs and WBEs during the quarter.
o All funds paid to MBE and WBE service and supply contractors on a
cumulative basis, the percentage which those funds constitute of
the total funds paid as of the end of the semi-annual period, and
the aggregate amount of funds paid to MBEs and WBE as of the end
the semi-annual period.
o All funds paid to MBE and WBE service and supply contractors on a
quarterly and semi-annual basis and the percentage which those
funds constitute of the total funds paid for that period.
o In reporting on the four (4) preceding items, funds paid to joint
ventures made up in part of MBEs and/or WBEs shall be counted
only to the extent of monies actually received by the MBE and/or
WBE, excluding any work said MBE and/or WBE subcontracted to a
non-Open Access Participant firm.
o In the performance of its work on the Casino, an MBE or WBE
contractor or subcontractor may enter into second-tier
subcontracts consistent with standard
-15-
industry practices. However, if an MBE or WBE contractor or
subcontractor subcontracts a significantly greater portion of the
work of its contract or subcontract to a non-MBE or non-WBE than
would be expected on the basis of standard industry practices,
then that MBE or WBE subcontractor will not be viewed as
performing a commercially useful function and JCC may not count
such participation towards the MBE or WBE goals under these Open
Access Plans.
o MBE and WBE manufacturers, suppliers (subject to the immediately
following paragraph) and wholesalers will be credited for the
entire amount of purchase orders involved, regardless of who does
the installation; provided, however, if the installation price
paid to a non-MBE or non-WBE contractor exceeds fifty percent
(50%) of the purchase price, JCC will receive MBE or WBE credit
for the purchase price only. JCC will not double count amounts
paid for the purchase of equipment, products or supplies from
MBEs or WBEs and amounts paid for installation by MBEs or WBEs.
o MBE and WBE suppliers will be given full credit for purchase
orders if such suppliers are bona fide business enterprises which
maintain inventory for sale to customers (i.e., they are not
brokers).
o A breakdown of the firms that were certified, decertified and
recertified during the semi-annual period and whether they are
MBEs or WBEs.
In reporting on its progress toward achieving its goals for the
semi-annual period, JCC will compare its performance data against the goals as
set forth in this Open Access Plan for
-16-
Operation of the Casino. Therefore, the semi-annual report, in addition to the
data described above, shall include all data needed to make the calculations
described in Part IV, Subparts A and F of the Open Access Program as well as all
figures necessary to make those calculations. JCC's semi-annual contracting
reports will also describe additional efforts to comply with the relevant
portions of Part IV, Subpart A of the Open Access Program.
JCC will include in the report any explanatory or background
information which it believes will aid in understanding or interpreting the data
being reported and information on any other relevant subjects as requested by
the Mayor and/or of the City Council.
Commencing on July 31, 2002, JCC will submit an annual report, in
writing, for the previous calendar year, to the City Council on the success of
the Open Access Plan for Operation of the Casino regarding the contracting
component for operation of the Casino in reducing unemployment, underemployment,
chronic unemployment, under utilization of traditionally disadvantaged groups
and on the Open Access Program's impact on the community.
Notwithstanding the foregoing obligations for JCC's semi-annual
reports, the RDC, the Mayor and the City Council acknowledge that, as an
on-going matter, periodic revisions and adjustments to JCC's reporting
obligations will be needed. Within twenty-four months from the date that all
parties execute the Second Amendment to Amened and Restated Lease Agreement,
representatives of the RDC, the Mayor, the City Council and JCC will meet, at a
time and place that is mutually acceptable to the parties, for the purpose of
revising and implementing the JCC Open Access Program and the JCC Open Access
Plans in a manner that is consistent with the Mayor's and the City Council's
Efforts to standardize all City approved Plans and Programs to make them
consistent with current law. The representatives identified above will
specifically discuss the implementation of a Plan and Program based upon law
income and/or disadvantage
-17-
status. Before becoming effective, any proposed revisions to JCC's Plan and/or
Program from this or comparable meetings must be agreed to in writing by the RDC
and the Mayor and must obtain approval of the City Council.
16. In the event of any conflict between any of the terms and
conditions of the Open Access Program and this Amendment to the Open Access
Program, the terms and conditions of this amendment to the Open Access Program
shall prevail."\
17. Section "K" of the Addenda To The Amended and Restated Open Access
Plans is amended as follows:
a. "Hotels", are deleted from the Annual Operating Purchases;
b. "Waste Removal" is added to the Annual Operating Purchases;
18. Section "I" of the Addenda To The Amended and Restated Open Access
Plans is amended as follows:
a. "Insurance and "Entertainment-Performers and agencies", are
deleted from the Annual Operating category;
b. "Employment Services" and "Guard/Security Services" are added to
the Annual Operating category.
-18-
EXHIBIT ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ SUPPORT FACILITY PREMISES
▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇:
A CERTAIN LOT OF GROUND, situated in the First District of the City of New
Orleans, Orleans Parish, Louisiana, in Square 16, bounded by Poydras, Fulton,
South ▇▇▇▇▇▇ and Lafayette Streets, which said lot is designated as Lot F on a
plan of resubdivision by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ of Engineering Technology, Inc.,
dated June 28, 1982 approved by the City Planning Commission under Subdivision
Docket No. 96/82, registered as a Declaration of Title Change under Entry No.
466470 in Conveyance Office Book 781, folio 237, records of Orleans Parish, and
according to the survey by ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., L.S., dated August 24, 1990, and
according to survey by ▇▇▇▇▇▇▇▇, ▇▇▇▇ & Associates, Drawing No. L-15, last dated
October 25, 1994, said Lot F is more fully described and measures as follows:
Commencing at the intersection of the westerly right of way line of ▇▇▇▇▇▇
Street and the southerly right of way line of Poydras Street and being the point
of beginning; from said point of beginning, thence South 2 degrees 0 minutes 19
seconds East (South 02 degrees, 01 minutes, 00 seconds East, title) along the
westerly right of way line of ▇▇▇▇▇▇ Street a distance of 92 feet, 5 inches, 4
lines (92 feet 4 inches 5 lines, title, and 91.93' title, and 91 feet, 11
inches, 1 line, title) to a point; thence North 76 degrees 7 minutes 30 seconds
West (North 76 degrees, 07 minutes, 00 seconds, West, title) a distance of 46
feet 6 inches 5 lines (46 feet 9 inches 7 lines, title and 46.82', title) to a
point; thence North 1 degree 50 minutes 45 seconds West, 92 feet, 3 inches, 4
lines , to a point on the southerly right of way line of Poydras Street (title
measurement: North 02 degrees 01 minutes 00 seconds West 23 feet, 6 inches, 0
lines, title; and 23.50 feet title to a point; thence South 76 degrees 07
minutes 00 seconds East, 0 feet, 8 inches, 0 lines, title, and 0.44 feet, title,
to a point; thence North 01 degrees 53 minutes 46 seconds West, 68 feet, 9
inches, 0 lines, title, and 68.85 feet, title to a point on the southerly right
of way line of Poydras Street) thence south 76 degrees 14 minutes 24 seconds
East (South 76 degrees, 14 minutes, 00 seconds East, title) along the southerly
right of way line of Poydras Street a distance of 46 feet 3 inches 0 lines (45
feet 11 inches 6 lines, title; and 45.92', and 45 feet 11 inches 0 lines, title)
to the point of beginning.
-1-
EXHIBIT 4
▇▇▇▇▇▇ PROPERTY
A certain piece or portion of ground, situated in the Parish of Orleans, in the
First District of the City of New Orleans, Square 16, bounded by ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Lafayette Street and Poydras Street, comprised of ▇▇▇▇ ▇,
▇, ▇, ▇, ▇ and 10 thru 16 inclusive, as shown on a survey plat by the office of
▇▇▇▇▇▇▇▇, ▇▇▇▇ and Associates, designated as Drawing No. T-182-4, dated October
20, 1998 and is more particularly described as follows:
Begin at the intersection of the east line of South ▇▇▇▇▇▇ Street, with the
upper line of Poydras Street; thence along said line of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
degrees 14 minutes 24 seconds East, 68 feet 11 inches 6 eighths to the east line
of Lot 3; thence along said line, South 1 degree 50 minutes 45 seconds East, 92
feet 3 inches 4 eighths to the lower line of Lot A; thence along said line,
South 76 degrees 7 minutes 30 seconds East, 46 feet 6 inches 5 eighths to the
west line of ▇▇▇▇▇▇ Street; thence along said line, South 2 degrees 00 minutes
19 seconds East, 277 feet 2 inches 3 eighths to the lower line of ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇; thence along said line North 75 degrees 59 minutes 17 seconds West, 117
feet 8 inches 0 eighths to the east line of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇; thence along
said line, North 1 degree 39 minutes 49 seconds West, 368 feet 6 inches 0
eighths to the upper line of Poydras Street and the Point of Beginning.
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EXHIBIT B
FIRST AMENDMENT TO
SECOND FLOOR NON-GAMING SUBLEASE
THIS FIRST AMENDMENT TO SECOND FLOOR NON-GAMING SUBLEASE (the "First
Amendment"), dated as of February 7, 2002, is made by and between Jazz Casino
Company, L.L.C., a Louisiana limited liability company ("Sublessor") and JCC
Development Company, L.L.C., a Louisiana limited liability company
("Sublessee").
WHEREAS, Sublessor and Sublessee did enter into that certain Second
Floor Non-Gaming Sublease, dated on or around October 26, 1998 (the "Sublease");
WHEREAS, Sublessor did sublease to Sublessee the Premises as more fully
described therein;
WHEREAS, on or about March 28, 2001, the Mayor of the City of New
Orleans, the Rivergate Development Corporation and Sublessor executed the First
Amendment to Amended and Restated Lease Agreement;
WHEREAS, by Ordinance No. 20515 M.C.S., the City Council of New Orleans
approved this First Amendment and further authorized the Rivergate Development
Corporation to execute this First Amendment thereby acknowledging, accepting and
consenting to the changes more fully set forth herein;
NOW THEREFORE IN CONSIDERATION OF THE FOREGOING, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. All capitalized terms utilized herein but not otherwise
defined herein have the meaning ascribed to them in the
Sublease.
-1-
2. Section 4.5 of the Sublease is hereby deleted in its entirety
and amended to read as follows: "4.5 Sublessee shall be bound
by and agree to all of the terms, conditions, prohibitions and
restrictions concerning permitted uses contained in the
Amended and Restated Lease between JCC, City of New Orleans
and the Rivergate Development Corporation, and any amendments
thereto, including but not limited to section 8.1 and 8.4
thereof."
3. In the event of any conflict between any of the terms and
conditions of the Sublease and the First Amendment, the terms
and conditions of this Sublease shall prevail unless such
interpretation would render the provisions of this First
Amendment nugatory.
4. The effective date of this First Amendment is the date of
execution by all parties.
5. Except as specifically amended and stipulated herein, the
Sublease, together with each and every prior amendment,
extension and supplement thereto, continues uninterrupted in
full force and effect as to all of its terms and conditions,
which said Sublease, as further hereby amended, is hereby
ratified and confirmed in all respects.
THUS DONE AND EXECUTED by the undersigned parties as of the date first
herein set forth.
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WITNESSES SUBLESSOR:
JAZZ CASINO COMPANY, L.L.C., A
LOUISIANA LIMITED LIABILITY COMPANY
/S/ [ILLEGIBLE] BY: /s/ L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------ -------------------------------
NAME: L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ TITLE: VICE PRESIDENT
------------------------------------ ----------------------------
WITNESSES SUBLESSEE:
JCC DEVELOPMENT
COMPANY, L.L.C. A LOUISIANA
LIMITED LIABILITY COMPANY
/S/ [ILLEGIBLE] BY: /s/ L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------ -------------------------------
NAME: L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ TITLE: VICE PRESIDENT
------------------------------------ ----------------------------
ACKNOWLEDGED BY AND CONSENTED TO
BY LANDLORD:
RIVERGATE DEVELOPMENT CORPORATION,
A LOUISIANA PUBLIC-BENEFIT CORPORATION
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
TITLE: PRESIDENT
------------------------------------------
-3-
HOTEL LANGUAGE
Landlord, City and Tenant hereby agree that it is in the best
interests of all said parties, and that the purposes of the Lease are best
served, if Tenant and/or its designee is able to utilize those certain parcels
of real property more fully described on Exhibit " " attached hereto (the
"▇▇▇▇▇▇ Property") for the anticipated development of a hotel, as authorized by
La. R.S. 27:243(C)(2), as may be amended from time to time. Landlord and City
acknowledge that the ▇▇▇▇▇▇ Property is zoned CBD-1 and that a hotel is a
permitted use thereon. Landlord agrees to support, assist and cooperate with
Tenant and/or its designee in the approval process for development of a hotel on
the ▇▇▇▇▇▇ Property. City also agrees, subject to any and all reviews or other
requirements of applicable local law, to support the development of a hotel on
the ▇▇▇▇▇▇ Property.
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