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HomeMy WebLinkAbout2014-06-23 14-227 ORDERCOUNCIL ACTION Item No. 14 ;227 J Date: June 23, 2014 Item/Subject: Authorizing Agreement with Waterfront Concerts, LLC - 2014 Concert Season Responsible Department: Legal Commentary: This Order will authorize the City Manager to execute an amendment to the five year agreement with Waterfront Concerts authorized by Council Order 12-252. In the 2013 concert season, the City changed the orientation of the concert site and entered into a five year agreement with Waterfront Concerts. As the series and site has evolved, staff and councilors have identified provisions of the agreement with Waterfront Concert that should be modified for the 2014 concert season to mutually benefit both parties including: removing the requirement that the City maintain the turf, provide that all of the existing parking lot on the West side of the Railroad tracks may be used by Waterfront Concerts for efficient access to the venue, and Waterfront Concerts will pay $15,000 to the City to be held in escrow to offset the costs associated with the sound study. Additionally, Waterfront Concerts will continue to the pay the City $1.25 although the City will no longer have any maintenance responsibility. This item was reviewed in Executive Session on June 9, 2014. Manager's Comments: Associated Information: Budget Approval: Legal Approval: Introduced for Passage _ First Reading Referral Department Head ManagerCity Finar(ee Director Page _ of _ icitor 14-227 JUNE 23, 2014 ._ Assigned to Councilor Plourde CITY OF BANGOR ;Z•_ �+Th O �D 4 y ED. (TITLE.) ORDER, Authorizing Agreement with Waterfront Concerts, LLC - 2014 Concert Season WHEREAS, Waterfront Concerts, LLC produces a summer concert series on the Bangor waterfront; and WHEREAS, On July 23, 2012, by Council Order 12-252 the City Council authorized the execution of a five year agreement with Waterfront Concerts, LLC through October, 2016.; and WHEREAS, on March 29, 2013, by Council Order 13- 119 the City Council authorized the negotiation of a five year extension of the Agreement; and WHEREAS, the parties are in the process of obtaining the necessary permits and approval for a permanent concert venue; and WHEREAS, the parties agree that the permitting process should be completed prior to completion of negotiations of the five year contract extension; and WHEREAS, the parties agree that it is the best interest of each to amend the current agreement to provide for some changes for the 2014 concert season pending completion of negotiations for the five year extension. By the City Council of the Ofy of Bangor: ORDERED, THAT, Catherine M. Conlow, City Manager, is hereby authorized on behalf of the City of Bangor to execute an Agreement with Waterfront Concerts, LLC providing for certain changes to the existing Agreement for the 2014 concert season. Said Agreement is attached hereto. IN CITY COUNCIL JUNE 23, 2014 MOTION MADE AND SECONDED FOR PASSAGE MOTION DOUBTED CARY WESTON SPOKE IN FAVOR OF THEi_;WATERFRONT CONCERTS VOTE: 8-1 COUNCILORS VOTIONG YES: BALDACCI, BLANCHETTE, DURGIN, GALLANT, GRAHAM, NEALLEY, PLOURDE, SPRAGUE COUNILORS VOTING NO: CIVIELLO CITY CL RK 14-227 JUNE 23, 2014 AGREEMENT Agreement made this day of , 2014 by and between the City of Bangor, a municipal corporation having its place of business at 73 Harlow Street, Bangor, Maine (hereinafter the "City") and Waterfront Concerts, LLC, of Old Town, Maine (hereinafter the "Promoter'. WHEREAS, the Promoter and the City are parties to an agreement dated July 27, 2012 for the Promoter to present a summer concert series on the Premises through 2016; and WHEREAS, the parties have agreed to negotiate amendments to the agreement for Promoter to present a summer concert series on the Premises on various dates under certain terms and conditions to be agreed upon by the parties through 2021; and WHEREAS, the parties are in the process of obtaining necessary permits and approval for a permanent concert venue on the Bangor waterfront for the summer concert series on certain property (hereinafter "concert venue); and WHEREAS, the parties expect the permitting process to continue through part or all of the 2014 concert season; and WHEREAS, the parties agree that the permitting process needs to be completed before the parties are able to finalize negotiations to amend the agreement to provide for concerts through 2021; and WHEREAS, the parties agree that it is appropriate to make certain changes to the agreement for the 2014 concert season. NOW, THEREFORE, in consideration of the covenants and agreement hereinafter contained, the City and the Promoter mutually agree to all obligations, terms, and conditions for the 2014 concert season as follows: 1. The following provision in Section 1 B shall be deleted: The Premises are further described on Exhibit A. The buildings and structures to be allowed on said premises are as follows: stage, up to two (2) storage units (sometimes known as "Connex" boxes, one (1) show trailer, one (1) production trailer , one (1) trailer, two (2) dressing room trailer/structure (may vary in size depending on event), catering tent/area. 14-227 JUNE 23, 2014 And replaced with: The Premises are further described on Exhibit A. The buildings and structures to be allowed on said premises are as follows: stage, up to five (5) storage units (sometimes known as "Connex" boxes), two (2) production trailers, three (3) dressing room trailers/structures, catering tent/area; three (3) structures for the sale of beverages; a Platinum tent, so-called; Meet and Greet tent; VIP bathroom trailer; and crew shower trailer. In addition, Promoter may use areas behind the stage to park vehicles of employees and staff. In addition, the Premises shall include the entirety of the existing parking lot abutting the concert venue on Railroad Street. The right to use the parking lot is subject to the terms and conditions of the City of Bangor's Agreement with the Bangor Folk Festival dated July 31, 2012 and KahBang Music and Arts Festival dated August 31, 2012, and Promoter's use of the parking lot shall not be inconsistent with the rights of the Bangor Folk Festival and KahBang Music and Arts Festival pursuant to said agreements. The Promoter understands that unless KahBang and Bangor Folk Festival agree otherwise he shall remove all property from said parking lot. Further, Promoter's use of the parking lot shall be limited to the following: a box office trailer; a security trailer; a catering trailer; three (3) concession trailers; a merchandise tent; the entry scaffolding. In addition, for all day concert events Promoter may use the Railroad Stage site for additional stages, so-called B and C stages. 2. The following provision in Section 1 B shall be deleted: The Promoter shall use reasonable efforts ("preventive maintenance') prior to each concert to prepare the grounds to minimize damage from use by the attendees. And replaced with: The Promoter shall use reasonable efforts ("preventive maintenance's prior to each concert to prepare the grounds to minimize damage from use by the attendees. The Promoter shall be responsible for all maintenance of the concert venue, including the access road for any damage caused by Promoter or its invitees, parking lot for any damage caused by Promoter or its invitees, fence owned or leased by Promoter, seating area and grounds. Promoter's 14-227 JUNE 23, 2014 maintenance shall be no less than the City's standard maintenance of its parks and open space. 3. The following provision in Section 1 C shall be deleted: When the permanent concert venue as more particularly described on Exhibit C is ready for occupancy the parties shall enter into a new agreement for use of the permanent venue. Construction of the permanent concert venue shall include permitting, sound study, access road and parking, "pad' for the stage and screening/fencing. The parties acknowledge that said agreement shall contained many of the same terms and conditions contained herein, but that they shall negotiate some new terms and conditions as may be required including, but not limited to, cost sharing for construction of the permanent concert venue, financial terms and conditions, use of the convert venue after the summer concert series, the structures to be located on the permanent concert venue site, property taxes, future improvements and additions to the permanent concert venue And replaced with: The permanent concert venue as more particularly described on Exhibit C was ready for occupancy, and, in fact, occupied for the 2013 concert season. The parties have been negotiating and shall enter into a new agreement for use of the permanent venue. Construction of the permanent concert venue shall include permitting, sound study, access road (from Railroad Street) and parking, "pad' for the stage and screening/fencing and may include access from Lincoln Street. The parties acknowledge that said agreement shall contained many of the same terms and conditions contained herein, but that they shall negotiate some new terms and conditions as may be required including, but not limited to, cost sharing for construction of the permanent concert venue, financial terms and conditions, use of the concert venue after the summer concert series, the structures to be located on the permanent concert venue site, property taxes, future improvements and additions to the permanent concert venue. Provided that, however, during the negotiations the parties have agreed to make certain changes to the concert venue, all as shown on an amended site plan dated 2014. The City shall be responsible for the preparing of the site plan and permitting, including SLODA, and the Promoter shall be responsible for all costs associated with construction of the changes as shown on said amended site plan, except for drainage improvements. Promoter may enter into a contract with a third party for such construction or improvements, subject to the City's 14-227 JUNE 23, 2014 review and approval of the contract and the City's right to reasonably oversee the construction. There shall be no "change orders" to said contract without the expressed written consent of the City, which shall not be unreasonably withheld. Further, as part of the SLODA approval process further sound studies are required. The Promoter and the City shall retain the services of an expert, namely, Acentech to conduct said studies and the Promoter shall pay the sum of $15,000.00 towards the cost of for the study. Upon the execution of this agreement, Promoter shall deposit said $15,000 with the City to be held in escrow and paid towards the sound study. The City and Promoter acknowledge that the level of sound is an important consideration in the SLODA and concern of the residents of the City of Bangor. The City and Promoter acknowledge that the Promoter has made efforts to have performers avoid exceeding certain decibel levels. For the 2014 concert season the Promoter shall use reasonable and best efforts to not permit the 1 -minute average (Leq) at 63 Hz to exceed 105dB at the mix position and to not permit more than 10 instances where the 1 —minute average (Leq) sound level at 63 Hz exceeds 100dB at the mix position.. 4. The following Section 4 shall be deleted: The City has three and single phased power on the waterfront and Promoter may use this power supply. The Promoter agrees to pay for all electrical power that it uses. The Promoter agrees to pay the City for any and all electrical tie-ins required for the concerts at the City's hourly rate customarily charged a rate with a three hour minimum. The City intends to establish electrical service to the permanent Concert Venue. And replaced with: The City has three and single phased power on the waterfront and Promoter may use this power supply. The Promoter agrees to pay for all electrical power that it uses. The Promoter shall be responsible for all electrical tie-ins required for concerts. The Promoter shall only use a licensed electrician approved by the City. The Promoter shall make no changes to the electrical components unless approved and authorized by the City. In the event, the Promoter requests and the City agrees to use City staff for electrical work, the Promoter agrees to pay the City for any and all electrical tie-ins required for the concerts at the City's hourly rate customarily charged a rate with a three hour minimum. 14-227 JUNE 23, 2014 5. The following sentence in Section 6 shall be deleted: The City and Promoter acknowledge that for the largest concert anticipated per discussions to date will require up to 12 police personnel and up to 10 fire personnel. And replaced with: The City and Promoter acknowledge that for the largest concert anticipated per discussions to date it may require up to 10police personnel and up to 8 fire personnel 6. The following Section 13 shall be deleted: The Promoter agrees to pay to the City $1.00 of every ticket sold for each concert. In addition, the Promoter agrees to pay to the City $0.25 of every ticket sold for each concert for the purpose of maintenance of the premises. And replaced with: The Promoter agrees to pay to the City $1.25 of every ticket sold for each concert. 7. Term of Agreement This agreement shall amend certain terms of the July 27, 2012 Agreement by and between the parties only for the 2014 concert season May 1, 2014 through October 12, 2014 and the parties shall continue to negotiate an amendment to the July 12, 2014 Agreement. The remaining terms and conditions of the July 27, 2012 Agreement shall remain in full force and effect. It is the intent of this Agreement to change certain terms and conditions for the 2014 concert recognizing the need for further action for the permitting process and need for certain adjustments for the 2014 concert season. If at the end of the 2014 concert season the parties have not negotiated amendments to the July 27, 2012 Agreement, then all terms and conditions of said Agreement as originally agreed upon by the parties shall be in full force and effect. 14-227 JUNE 23, 2014 8. Governing Law This agreement shall be governed by the laws of the State of Maine without regard to choice of laws. 9. Authority to Execute The undersigned hereby warrant and represent that they have proper authority to enter into this agreement on behalf of their respective parties. Witness Witness WATERFRONT CONCERTS, LLC Name: Alexander Gray Title: Sr. Booking Agent - Maine CITY OF BANGOR Name: Catherine M. Conlow Title: City Manager