2011 Goldenvoice, LLC - Reimbursement Ave. 50 ImprovementsREIMBURSEMENT AGREEMENT FOR AVENUE 50 IMPROVEMENTS
This Reimbursement Agreement (hereafter "Agreement") is entered into this 22-
day of February, 2011 ("Effective Date"), by and between the CITY OF LA QUINTA, a
California Municipal Corporation (the "City") and GOLDENVOICE, LLC a California limited
liability company ("Goldenvoice"). The City and Goldenvoice are hereafter periodically referred
to collectively as the "parties" and individually as a "party." This Agreement is entered into with
reference to the following facts:
RECITALS
A. The City is the owner of fee title to that certain real property which is a public street
commonly known as Avenue 50 lying within the City's boundaries.
B. Goldenvoice is in the business of staging and promoting concerts and other events.
Goldenvoice regularly schedules events to be held at the Empire Polo Club ("Empire
Polo Club") in the City of Indio, just outside of the City's eastern boundary. Reoccurring
events at Empire Polo Club include the Coachella Valley Music and Arts Festival
("Coachella") and the Stagecoach Festival ("Stagecoach"). In addition to those events,
Goldenvoice will also put on The Big 4 Concert ("The Big 4") this year. Coachella,
Stagecoach and The Big 4 are collectively referred to as the "Events".
C. This year, all three Events are scheduled to take place on consecutive weekends in April
and May at the Empire Polo Club.
D. In past years, Coachella and Stagecoach have generated large audiences, resulting in,
among other problems for the City, increased traffic congestion including on Avenue 50.
With the addition of The Big 4 this year, the Parties agree that that there will be an even
greater burden on the City's infrastructure and resources than in past years.
E. On or about September 30, 2010, the City and Goldenvoice began discussions centered
around the problems to the City's infrastructure and resources created by Goldenvoice's
Events at the Empire Polo Club. The City has proposed constructing improvements to
portions of Avenue 50 east of Jefferson Street (the "Improvements"). The Parties agree
that the Improvements will ease congestion, improve the condition of Avenue 50, and
enable better access to the Empire Polo Club for Goldenvoice's events.
F. The City has requested that Goldenvoice reimburse the City for the cost of the
Improvements. The Parties estimate the Improvements will cost the City $250,000.
G. With this Agreement, the Parties desire a funding reimbursement mechanism for the City,
so as to enable the City to proceed with the Improvements, all in accordance with the
terms and conditions of this Agreement.
00 a02A4/1I
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals and the terms, and
conditions set forth herein, and for other good and valuable consideration, receipt of which is
hereby acknowledged, the Parties agree as follows:
1. Responsibilities of Goldenvoice.
a. Reimbursement Obligation. Goldenvoice shall reimburse the City for all actual
costs incurred by City to design and construct the Improvements
("Reimbursement Obligation"). The Parties agree that in no event will
Goldenvoice's Reimbursement Obligation exceed $250,000 ("Maximum
Reimbursement Obligation").
i. Schedule of Reimbursement Payments. Goldenvoice shall reimburse the
City in three payments ("Reimbursement Payments") in accordance with
the following schedule:
1. March 1, 2011 - $90,000;
2. February 1, 2012 - $80,000; and
3. February 1, 2013 - $80,000.
ii. Reduction of Final Reimbursement Payment. The third and final payment,
due February 1, 2013, shall be reduced if the actual cost of the
Improvements to the City is less than $250,000. The City will notify
Goldenvoice of the actual cost of the Improvements to the City no later
than October 1, 2011.
b. Costs of Establishment of Agreement. Goldenvoice shall be responsible for all
actual and reasonable costs , including, but not limited to, drafting, revising, and
amending this Agreement. These costs shall be separate from the Reimbursement
Obligation and not included in the Maximum Reimbursement Obligation of
$250,000 described in Section 1(a).
2. Responsibilities of the Citv. The City agrees to construct the Improvements in
accordance with all applicable City and State codes and regulations, as well as any other
applicable laws, codes and regulations. The City will make every reasonable attempt to
complete the Improvements by April 7, 2011. However, failure to complete the
Improvements by this date shall not in any way effect the Responsibilities of
Goldenvoice or constitute a breach of this Agreement. Should the City fail to make the
Improvements by April 7, 2011, the City will cooperate with Goldenvoice to minimize
any impact upon traffic circulation to and from any of its three events (Coachella,
Stagecoach, and The Big 4). Should the City fail to complete the Improvements by
October 1, 2011, Goldenvoice shall have the right to suspend its performance under this
Agreement until such time as the Improvements are complete.
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3. The Improvements. The Improvements shall consist of widening the south side of
Avenue 50 to provide a total of three (3) lanes from the centerline of Jefferson Street to
approximately 1,600 feet to the east to where the pavement currently exists in a widened
condition. The intent of the improvements is to provide enough pavement to provide two
eastbound lanes and one westbound lane in this area where currently only two paved
travel lanes exist. Goldenvoice will be responsible for the cost of installation and removal
of any temporary striping or traffic control necessary in connection with the Events, as
the City reserves the right to permanently stripe these lanes in any configuration as it sees
fit to accommodate daily traffic.
4. Payments.
a. Transmittal of Payments. Goldenvoice shall make all Reimbursement Payments,
and pay all other sums due under this Agreement, in lawful money of the United
States, by check payable to "CITY OF LA QUINTA" and shall personally deliver
or mail all payments without any notice or demand to the City at the address set
forth in Section 8 below. Goldenvoice assumes all risk of loss or late payment if
any payment is made by mail, unless such loss is due to the fault of City or its
employees (ex: if City fails to properly deposit or credit a Reimbursement
Payment which was properly addressed to, and timely received by, City). In the
event City does not receive a Reimbursement Payment within ten (10) days after
its due date, City shall promptly send written notification to Goldenvoice.
b. No Offsets. All Reimbursement Payments and other sums due under this
Agreement shall be paid without offset or deduction. Neither the payment by
Goldenvoice nor the acceptance by the City of any Reimbursement Payment or
other sum in an amount which is less than the amount due and payable pursuant to
this Agreement shall constitute an agreement by the City modifying this
Agreement or a waiver of the City's right to receive all sums provided for in this
Agreement. Unless otherwise expressly agreed to in a separate writing signed by
both parties, no endorsement or statement on any check or any letter
accompanying any check or payment shall be deemed an accord or satisfaction,
and the City shall accept all checks and payments from Goldenvoice without
prejudice to the City's right to recover the balance of the amount due or to pursue
any other remedy in this Agreement or otherwise provided by law.
c. Charges for Payment of License Fee.
i. If any payment of any Reimbursement Payment or any other sum due the
City is not received by the City within ten (10) days after the due date,
following written notice from City and three (3) business days thereafter
to cure, if the Reimbursement Payment or other sum due is not received by
City, Goldenvoice shall be deemed delinquent in its Reimbursement
Payment and a late charge of Two Hundred Dollars ($200.00), shall
become immediately due and payable to the City. An additional charge of
one-half percent (0.5%) of such delinquent Reimbursement Payment
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(excluding late charges) shall be added for each additional calendar month
(or portion thereof) that the delinquent sum remains unpaid.
ii. Goldenvoice and the City hereby acknowledge and agree that such late
charges do not represent and shall not be deemed to be an interest
payment, but that such late charges represent a fair and reasonable
estimate of the costs and expenses that the City will incur by reason of
Goldenvoice's late payment.
iii. Acceptance by the City of any delinquent Reimbursement Payment or late
charge shall in no way constitute a waiver of Goldenvoice's default with
respect to such overdue and delinquent payment, or in any way impair,
prevent or restrict the City from exercising any of its rights or remedies set
forth in this Agreement or otherwise provided at law.
5. Disputes. In the event of any dispute arising under this Agreement, the injured party
shall notify the injuring party of its contentions by submitting a claim therefore. The
injured party shall continue performing its obligations incurred herein so long as the
injuring party commences to cure such injuring action within ten (10) days of service of
such notice and completes the cure within forty-five (45) days after the notification, or
such longer period as may be agreed upon by both parties to this Agreement.
6. Attorney's Fees. If either party commences an action against the other arising out of or
in connection with this Agreement the prevailing party shall be entitled to recover
reasonable attorney's fees and legal costs from the losing party.
7. Term of Agreement. This Agreement shall remain in full force following the date it has
been executed by both parties until the final payment has been made by Goldenvoice.
8. Notice. Any notice, demand, request, consent, approval, or communication either party
desires or is required to give to the other party in connection with this Agreement shall be
in writing and either delivered personally (by hand or by messenger), or sent by prepaid,
certified or first-class mail, return receipt requested or U.S. Postal Service Express Mail
or FedEx, U.P.S. or other similar recognized overnight delivery service, to the address set
forth below. Notice shall be deemed to have been given on the date it was received as
evidenced by signature, or date of first refusal, if that be the case, if served as provided in
this Section. Either party may change the address at which it receives notices by
notifying the other party of such change in the manner provided herein.
If to City: City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Planning Director
(760)777-7071
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If to Goldenvoice: Goldenvoice, LLC
5750 Wilshire Blvd #501
Los Angeles, CA 90036
Attn: Skip Paige
(323)930-7100
With copy to: Goldenvoice, LLC
5750 Wilshire Blvd #501
Los Angeles, CA 90036
Attn: General Counsel
(323) 930-5784; facsimile: 323-930-5785
9. Assignment of Agreement. Goldenvoice may not assign, sublet, hypothecate, encumber,
or transfer (whether voluntarily or involuntarily) its obligations hereunder to any party
other than its parent, or an affiliate thereof, without the prior written consent of the City,
which consent may be withheld in the City's sole and absolute discretion.
10. Entire Agreement. This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof, and supersedes all prior understandings
or agreements with respect to such subject matter.
11. Third Party Beneficiaries. Nothing expressed or mentioned in this Agreement is intended
to or shall be construed to give any person, other than the parties and their respective
successors, assigns, any legal or equitable right, remedy, or claim under or in respect of
this Agreement or any provisions hereof, and this Agreement is intended to be for the
sole and exclusive benefit of the parties and their successors, assigns, and for the benefit
of no other person or entity.
12. General Provisions.
a. Except as otherwise provided herein, the terms, conditions, covenants, and
agreements set forth herein shall apply to and bind the heirs, executors,
administrators, assigns, and successors of the parties hereto.
b. Neither party to this Agreement relies upon any warranty or representation not
contained in this Agreement.
c. This Agreement shall be governed by and interpreted with respect to the laws of
the State of California, without regard to its conflict of law provisions.
d. Any failure or delay by either party in asserting any of its rights and remedies as
to any default shall not operate as a waiver of any default or of any rights or
remedies provided for herein.
e. This Agreement may be amended at any time by the mutual consent of the parties
by an instrument in writing signed by both parties.
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f. This Agreement may be executed in counterparts, which when taken together,
shall constitute one fully executed document. Facsimile copies, PDFs, and
photocopies of signatures shall be as valid as originals.
g. The relationship created by this Agreement is that of independent contractors, and
nothing contained in this Agreement shall be deemed or construed as creating any
partnership, joint venture, employment relationship, agency or other relationship
between the parties or to make either party liable for the debts or obligations of
the other party. No officer, employee, agent, or servant of one party shall be
deemed at any time to be an employee, servant, or agent of the other party for any
purpose whatsoever. Each party shall require all of its personnel to refrain from
making any representation by word or conduct whereby any other person might
understand or believe that such persons are employees, agents, or servants of the
other party.
13. Severability. In the event that any provision or provisions of this Agreement are held
unenforceable, all provisions not so held shall remain in full force and effect.
14. Further Assurances. The parties hereto agree to perform their obligations hereunder in
"good faith," and to take all reasonable action necessary to effectuate the terms of this
Agreement.
15. Construction. The parties acknowledge and agree that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or amendments hereto.
16. Authority of Signatories. The persons executing this Agreement on behalf of the parties
hereto warrant that they are duly authorized to execute this Agreement on behalf of said
parties and that by so executing this Agreement the parties are formally bound to the
provisions of this Agreement.
17. Representations and Warranties; Covenants. Each party hereby represents, warrants and
agrees that (a) it has the full right and authority to enter into and fully perform this
Agreement in accordance with its terms and that this Agreement constitutes a valid,
binding and enforceable agreement of such party, (b) it shall perform its activities under
this Agreement in accordance with all applicable Federal, state and local laws and
regulations, (c) the execution, delivery and performance of this Agreement will not
violate the provisions of any agreement to which it is a party or by which it is bound and
(d) it shall, at its own cost, apply for and secure any and all permits, licenses or other
consents which may be required for the performance of its obligations under this
Agreement.
18.Indemnification. The parties hereby agree to protect, defend, indemnify and hold
harmless each other, and their respective affiliates, officers, directors, shareholders,
members, agents and employees from and against any and all claims, demands, damages,
losses or expenses, of any nature whatsoever, including court costs and reasonable
attorneys' fees, arising directly or indirectly from or out of any breach by that party of any
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of its representations, warranties or obligations hereunder or its negligence or willful
misconduct, except to the extent attributable to the negligence or willful misconduct of
the other party. This section shall survive the termination of this Agreement.
19. Waiver of Property Damage During Construction. During construction of the
Improvements, City agrees that Goldenvoice shall not be responsible for any loss or
damage to any property of the City, it contractors, employees, or agents in connection
with the Improvements, and City expressly assumes all risks of loss, damage or
destruction of or to any of its property resulting from any such causes.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set
forth above.
ST:
01
Vemonica Wecino, City Clerk
City of La inta
A ROV ' A TO FO
el
I atherine Jenson, ty Attomey
City of La Quinta
CITY OF LA QUINTA, a California Municipal
Corporation
Byrl�G'C/�YJ�lrt•�J� �ZG�YtC�ZC'_.
Thomas P. Genovese, City Manager
Date:,
GOLDENVOICE, LLC,
a California Limited Liability Company
By:
P T�
Paul Tollett
President
Date:
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