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HomeMy WebLinkAbout2010-02-22 10-083 ORDERCOUNCIL ACTION Item No, O ;c Date: February 22, 2010 Item/Subject: Authorizing the Execution of Agreement with Bangor Folk Festival Responsible Department: Legal Commentary: The Bangor Folk Festival produces a folk festival on the Bangor waterfront annually. The City of Bangor has provided financial and other support for the folk festival every year. This Order will authorize the execution of a written agreement to set forth the rights and responsibilities of the City of Bangor and the Bangor Folk Festival. The Agreement will be for a term of three years and will provide that the City will not give the Bangor Folk Festival any cash contribution, set limits on the in-kind contribution of the City, provides for repayment of the approximately $300,000 due the City from the Folk Festival, provides that the City will no longer act as fiscal agent for the Bangor Folk Festival, provides that the Bangor Folk Festival will amend its by-laws to remove the provision for City Council representation on its Board of Directors, and provides for periodical reporting by the Bangor Folk Festival to the City of its financial condition. Manager's Comments: Associated Information: Budget Approval: Legal Approval: Introduced for Passage First Reading Referral Department Head Page _ of _ City Manager Finance Director City Solicitor Assigned to Councilor f BA- 0 CITY OF BANGOR 1­ 0 4 rr 0. 1 (TITLE.) ORDER, Authorizing the Execution of Agreement with Bangor Folk Festival WHEREAS, the Bangor Folk Festival, produces a folk festival on the Bangor waterfront annually; and WHEREAS, historically the City of Bangor has provided financial and other support for the folk festival; and WHEREAS, it is appropriate to have a written agreement to set forth the rights and responsibilities of the City of Bangor and the Bangor Folk Festival. By the City Council of the City of Bangor. ORDERED, THAT, the Interim City Manager is hereby authorized on behalf of the City of Bangor to execute an Agreement with the Bangor Folk Festival. Said Agreement shall be in substantially the same form as attached hereto and in a final form acceptable to the City Solicitor or Assistant City Solicitor. IN CITY COUNCIL February 22, 2010 Motion Made and Seconded for Passage Motion Doubted Vote: 9-0 Councilors Voting Yes: Blanchette, Bronson, Gratwick, Hawes, Nealley, Palmer, Stone, Weston & Wheeler Councilors Voting No: None Passed I Of LERK ORDER (TITLE,) Authorizing Faecution of Agreement with Bangor Folk Festival Assigned to Councilor AGREEMENT Agreement made this _ day of 2010 by and between the Bangor Folk Festival, a Maine nonprofit corporation with a place of business at Bangor, Maine (hereinafter Folk Festival), the City of Bangor, a municipal corporation located at 73 Harlow Street, Bangor, Maine (hereinafter (City). WHEREAS, the Bangor Folk Festival produces a folk festival in Bangor Maine; and WHEREAS, the City has historically provided support to the Bangor Folk Festival; and WHEREAS, the parties agree that the responsibilities of the parties should be reduced to a written Agreement. NOW THEREFORE, the parties agree as follows: ARTICLE I - PREMISES The City does hereby agree that the Folk Festival may use and occupy the premises described on Exhibit A, attached hereto, for the purpose of putting on the American Folk Festival in August of each year of the term of this Agreement. ARTICLE II TERM This Agreement shall be effective through October 31, 2012 unless terminated earlier as provided herein. ARTICLE III - SERVICES In consideration of the mutual promises contained herein, the City agrees to provide certain services to the Folk Festival, said services described in Exhibit B attached hereto. ARTICLE IV — PROMISSORY NOTE The Folk Festival shall execute a Promissory Note for the benefit of the City in the amount of $299,993.09, said Note to be in substantially the same form as Exhibit C, attached hereto. 083L [_r ARTICLE V — FISCAL AGENT The parties acknowledge that the City is currently acting as fiscal agent for the Folk Festival. On or before June 30, 2010 the City shall no longer act as the fiscal agent for the Folk Festival and the Folk Festival will, by that date, have another entity to act as fiscal agent or will act on its own behalf. So long as the City acts as fiscal agent for the Folk Festival the following controls will be adhered to on when and how these funds held will be disbursed: 1. All revenues received by the Bangor Folk Festival will be turned over to the City for deposit into the American Folk Festival bank account; and 2. All invoices for payment should be provided to the City for payment as indicated below; and 3. Under no circumstances will the City advance any funds on behalf of the Bangor Folk Festival; and 4. The Bangor Folk Festival account must maintain a balance of $28,750 in order for any funds to be released for non -fixed expenses (fixed expenses are defined as payroll, insurance, Bangor Savings Bank note repayments, and minimum required credit card payments, the established balance is equal to two months of fixed expenses); and 5. In the event that the held balance is insufficient to cover fixed expenses, said fixed expenses will go unpaid. ARTICLE VI — CASH CONTRIBUTION During the term of this Agreement the Folk Festival shall not seek from the City, nor shall the City provide, any cash contributions to the Folk Festival. ARTICLE VII — CITY PARTICIPATION ON FOLK FESTIVAL BOARD OF DIRECTORS The parties acknowledge that the by-laws of the Folk Festival currently provide for the City to have two representatives on the Folk Festival Board of Directors. No later than April 1, 2010 the Folk Festival shall take all necessary and appropriate steps to amend its by-laws to delete the provision for City representation on the Folk Festival Board of Directors. The parties acknowledge and agree that pending that action the City representatives will not attend meetings of the Folk Festival Board of Directors unless specifically requested to do so by the Folk Festival Board of Directors. f LI-Cl8� ARTICLE VIII — FINANCIAL REPORTING TO CITY The Folk Festival shall provide monthly balance sheet and income statements to the City no later than thirty days after month end in a format as approved by the City's Finance Director and Chair of the City's Finance Committee. ARTICLE IX - TERMINATION It is covenanted and agreed that: 1. If the Folk Festival fails to comply with the terms of the promissory note provided for in Article IV of this Agreement; or 2. If the Folk Festival shall neglect or fail to pay any charge that may become payable under this Agreement when due and such default continues for a period of ten (10) days after written notice by the City; or 3. If the Folk Festival shall neglect or fail to perform or observe any of the other covenants, terms, provisions, or conditions on its part to be performed, or observed; or 4. If the Folk Festival should fail to comply with all Federal, State or municipal laws, rules, regulation or ordinances; or 5. If the Folk Festival should lose its 501 (c) (3) tax exempt status. 6. If the Folk Festival should fail to produce a folk festival. 7. If the Folk Festival shall be declared bankrupt or insolvent according to law; or 8. If any assignment shall be made of the property of the Folk Festival for the benefit of creditors; or 9. If a receiver, guardian conservator, or trustee in bankruptcy or other similar officer shall be appointed to take charge of all or any substantial part of the Folk Festival's property by a Court of competent jurisdiction; or 10. If a petition shall be filed for a reorganization of the Folk Festival under provisions of the Bankruptcy Act now or hereafter enacted; or 11. If the Folk Festival shall file a petition for such reorganization or for arrangements under any provision of the Bankruptcy Act now or hereafter enacted; or 0 083 Then, in any of the said cases (notwithstanding any license of any former breach of covenant or waiver of the benefit hereof or consent in a former instance), the Folk Festival may be considered in default hereunder, and the City may terminate this Agreement ARTICLE X - WAIVER Failure on the part of the City to complain of any action or non -action on the part of the Folk Festival no matter how long the same may continue, shall never be deemed to be a waiver by the City of any of City's rights hereunder. Further, it is covenanted and agreed that no waiver at any time of any of the provisions hereof by the City, shall be construed as a waiver of any other provisions hereunder, and that a waiver at any time of any of the provisions hereof shall not be construed at any subsequent time as a waiver of the same provisions. ARTICLE XI - NOTICES Notices to the Lessee provided for in this Lease shall be sufficient if sent by registered or certified mail, return receipt requested, postage prepaid to: City Manager, City of Bangor, City Hall, 73 Harlow Street Bangor, Maine, 04401; and notices to Lessee, are to be sent by registered or certified mail, return receipt requested, postage prepaid, addressed to: Executive Director, Bangor Folk Festival, 40 Harlow Street, Bangor, Maine 04401, or to such other respective addressees as the parties may designate to each other in writing from time to time. ARTICLE XII - NO PARTNERSHIP OR JOINT VENTURE CREATED Nothing contained herein shall be deemed or construed as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto. IN WITNESS WHEREOF this Agreement has been executed sealed and delivered as of the day and year first above written. CITY OF BANGOR Name: Title: BANGOR FOLK FESTIVAL Name: Title: . 083 EXHIBIT A [insert diagram/map of Folk Festival area] 01 083 EXHIBIT B For the 2010 Folk Festival the City shall provide in-kind services consisting of police, EMS, electrical, trash removal, public works, parking and bus transportation. The value of the in-kind services shall not exceed $65,000 and shall be calculated as follows: Labor: actual employee wages and benefits. Equipment: to be charged at the City's established rate as may be amended from time to time. Rates in effect as of the date of this Agreement are as follows: Sweeper - $33/hour Large Front End Loader - $33/hour Small Front End Loader - $22/hour Dump Truck - $22/hour Small Dump Truck - $17.50/hour 1 Ton Truck - $11 /hour Pickup Truck - $7.50/hour The in-kind services to be provided to the Folk Festival shall include police, EMS, trash removal and electrical. Other in-kind services shall be provided as agreed by the parties though not to exceed the aforementioned $65,000 in value when combined with police, EMS, trash removal and electrical. The Folk shall not contract with any party other than the City to provide the electrical services. In the event that the Folk Festival requested additional services from the City the City may provide said services provided that the Folk Festival pays for them in advance. For the 2011 Folk Festival the City shall provide in-kind services consisting of police, EMS, electrical, and trash removal, public works, parking, and bus transportation. The value of the in-kind services shall not exceed $50,000 and shall be calculated as follows: Labor: actual employee wages and benefits Equipment: to be charged at the City's established rate as may be amended from time to time. The in-kind services to be provided to the Folk Festival shall include police, EMS, trash removal and electrical. Other in-kind services shall be provided as agreed by the parties though not to exceed the aforementioned $50,000 in value when combined with police, EMS, trash removal and electrical. The Folk shall not contract with any party other than the City to provide the electrical services. In the event that the Folk Festival requested additional services from the City the City may provide said services provided that the Folk Festival pays for them advance. 083 For the 2012 Folk Festival the City shall provide in-kind services consisting of police, EMS, electrical, and trash removal, parking, public works, bus transportation. The value of the in-kind services shall not exceed $40,000 and shall be calculated as follows: Labor: actual employee wages and benefits Equipment: to be charged at the City's established rate as may be amended from time to time. The in-kind services to be provided to the Folk Festival shall include police, EMS, trash removal and electrical. Other in-kind services shall be provided as agreed by the parties though not to exceed the aforementioned $40,000 in value when combined with police, EMS, trash removal and electrical. The Folk shall not contract with any party other than the City to provide the electrical services. In the event that the Folk Festival requested additional services from the City the City may provide said services provided that the Folk Festival pays for them advance. J 0813 EXHIBIT C [insert promissory note with terms including zero percent interest, ten year amortization with balloon payment at end of three years, and annual payments to be made on November 1" of each year]