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HomeMy WebLinkAbout2011-11-28 12-019 ORDERCOUNCIL ACTION Item No. 12 019 Date: November 28, 2011 Item/Subject: Order, Authorizing Execution of Agreement between the City of Bangor and Waterfront Concerts, LLC Responsible Department: Legal Commentary: The City is the owner of property located on the Penobscot River Waterfront. The City and Waterfront Concerts, LLC have entered into agreements for a concert series on the waterfront for the last two years. Waterfront Concerts, LLC, the promoter of the concerts, wishes to present another concert series on the Penobscot River Waterfront from May 1, 2012 through October 12, 2012. This Order will authorize the execution of the agreement. The proposed agreement has been reviewed by the Council at a Council Workshop. Department Head Manager's Comments: ( City Manager Associated Information: Order, Agreement Budget Approval: Finance Director Legal Approval: ,,,,/'J Introduced for X Passage First Reading Referral Page _of_ Solicitor 12 019 Assigned to Councilor — Sprague November 28, 2011 +O-F-BANC S � CITY OF BANGOR p�$3Jfg N4TED, FE --` (TITLE.) Order, Authorizing Execution of Agreement between the City of Bangor and Waterfront Concerts, LLC WHEREAS, the City is the owner of property located on the Penobscot River Waterfront; and WHEREAS, Waterfront Concerts, LLC wishes to present a concert series on the Penobscot River Waterfront from May 1, 2012 through October 12, 2012. By the city Council of the City 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 to provide concerts on the Penobscot River Waterfront. Said Agreement shall be in substantially the same form as attached hereto and in a final form as approved by the City Solicitor or the Assistant City Solicitor. IN CITY COUNCIL November 28, 2011 Motion Made and Seconded to Postpone to the Next Regularly Scheduled Council - Meeting Postponed to the Next Regularly Scheduled Council Meeting CITY CLERIC �y IN CITY COUNCIL December 7, 2011 Motion Made and Seconded to Postpone to next regularly Scheduled council meeting Vote: 0-9 Councilors Voting Yes: None Councilors Voting No: Baldacci, Blanchette, Durgin, Gallant, Gratwick, Longo, Hawes, Sprague & Weston Failed Motion Made and Seconded for Passage Motion Doubted Vote: 9-0 Councilors Voting Yes: Baldacci, Blanchette, Durgin, Gallant, Gratwick, Longo, Hawes, Sprague & Weston Councilors Voting No: None Passed If ITY CLERIC # 12-019 ORDER (TITLE,) Authorizing Execution of Agreement between the City of Bangor and Waterfront Concerts, LLC Assigned to Councilor 46-)a4.LL �� 12 019 AGREEMENT Agreement made this day of , 2011 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 City is the owner of certain property located on the Penobscot River waterfront (hereafter the "Premises") as more particularly described on Exhibit A attached; and WHEREAS, the Promoter wishes to present a summer concert series on the Premises on various dates to be agreed upon by the parties from May 1, 2012 through October 12, 2012. NOW, THEREFORE, in consideration of the covenants and agreement hereinafter contained, the City and the Promoter mutually agree to all obligations, terms, and conditions as follows: 1. Premises The Promoter shall have the right to occupy the Premises for a concert series on various dates to be agreed upon by the parties from May 1, 2012 through October 12, 2012. Concerts on any day Sunday through Thursday shall end at 10:30 p.m. Concerts held on any Friday or Saturday shall end at 11:30 p.m. On all dates other than concert dates, the Premises will be under the control of the City and open to the public and Promoter shall take no action that will impede the City and public use of the property on non -concert dates. As of April 1, 2012 the Promoter may occupy the premises for the purpose of establishing and assembling the structures necessary to support a concert venue for the 2012 season. The Promoter shall remove all such structures by October 20, 2012 unless otherwise agreed by the City Notwithstanding the above, the Promoter shall use all efforts in its negotiations with performers for events to end by 10:00 p.m. Sunday through Thursday and 11:00 p. m. Friday and Saturday. In the event that Promoter fails to meet the curfew required for an event (namely, the event has not ended and/or attendees have not begun to vacate the Premises), the Promoter shall pay to the City the sum of $5,000.00, payable the day of the event. The parties acknowledge that there may be some unforeseen circumstances, such as inclement weather or travel problems, that may be considered by the City in determining whether the penalty should be waived. Any wavier by the City shall be with the expressed approval of the City Manager. 12 019 Prior to each event the Promoter shall provide the City with a schedule, sometimes commonly referred to as a the "production managers day sheet" , for each event which shall include such items as arrival time equipment, arrival time of performers, sound checks and other pre -event matters. Promoter shall consult with the City with regard to any concerns that the City may have with the pre -event schedule. The Premises are further described on Exhibit A. The buildings and structures to be allowed on said premises are as follows: 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. The parties acknowledge that certain structures necessary for support of the concerts shall be on the premises, provided that, however, no structure shall be used for daily, regular office space for Promoter. The Promoter shall not have the right to use any City property, streets, parking areas or sidewalks outside the boundaries or the Premises except to the extent provided in the Agreement. The Promoter shall use reasonable efforts ("preventive maintenance") prior to each concert to prepare the grounds to minimize damage from use by the attendees. The City and the Promoter acknowledge the need for a secure venue perimeter for each concert. The City and the Promoter acknowledge that a portion of the Premises is a public space and needs to be available to the public. The City and the Promoter will discuss and develop plans to maintain adequate visibility of the Premises between concerts. Said plans shall provide for public access to the premises and may provide for removal of all obstructions along Main Street under certain conditions. 2. Parking The City and the Promoter agree to negotiate the use of various City owned parking including the Pickering Square Parking Garage, Summer Street lots and Front Street lots. The parties acknowledge that the parking areas may not be available on all dates depending upon other events on the Bangor Waterfront. The parties acknowledge that exclusive use of all of the said street parking lots by Promoter is not in the best interest of the City and that any negotiated use of parking lots may not include the exclusive use of the lots and/or may include a portion of the lots rather than its entirety. Prior to each on sale date the City and the Promoter will meet and determine the number and location of parking spaces needed for the event. 12 019 3. "Traditional Waterfront Event Dates" The City and the Promoter acknowledge that the City has historically permitted the use of the Premises for various non-profit and for profit activities. The City will inform the Promoter of the uses of the Premises and the immediate vicinity as City becomes aware of those uses. The current uses planned for May 1, 2012 through October 12, 2012 known to the City is attached as Exhibit B. The City agrees not to permit events on the Premises on dates that Promoter has concerts. The parties acknowledge that the City and the Bangor Folk Festival, a/k/a American Folk Festival, are parties to an agreement dated May 12, 2010 permitting the Bangor Folk Festival to use City property on the Bangor Waterfront for its festival in August 2012. The parties acknowledge that Promoter may have event opportunities near the dates of the American Folk Festival. The Promoter shall not have an event that interferes with the American Folk Festival, provided that, however, the Promoter and representatives of the American Folk Festival may agree to an agreement for an event by the Promoter's. Any agreement between the Promoter and the American Folk Festival not consistent with the terms of this agreement shall first be reviewed by the City. The parties agree to consider any opportunity for events scheduled for the Bangor Waterfront to work with the Promoter when it may be in the best interest of all parties. 4. Electricity The City has three and single phased power on the waterfront and Promoter may use this power supply. The Promoter agrees to pay the City for any and all electrical tie-ins required for the concerts at a rate of $75 per hour with a three hour minimum. 5. Concert Equipment and Concert Stage The Promoter shall provide all sound, lights, staging, barricades, and fencing necessary for its concerts. The City and the Promoter agree that the concert stage may remain on the Premises for the summer concert series. The Promoter agrees that it may consider use of the stage by non-profit entities subject to any terms and conditions negotiated by and between the Promoter and the non-profit entity. The Promoter agrees that if the American Folk Festival wishes it, may use the stage for its 2012 American Folk Festival Event from Friday August 24, 2012 through Sunday August 26, 2012 incurring no rental charge provided, however, that the American Folk Festival shall maintain insurance (liability and personnel injury) in an amount not less than $1,000,000 per accident and $5,000,000 aggregate coverage and name Waterfront Concerts, LLC as an additional insured and provided further that the American Folk Festival submits, prior to August 12, 2012 all rigging plans to promoter for structural 12 019 review and the American Folk Festival agrees to use Promoter's rigging staff to rig and supervise the use of the stage during said period. Associated costs for said services will be the responsibility of American Folk Festival. Promoter may negotiate, at its sole discretion, with all for profit events for the use of its stage and infrastructure., Promoter agrees to secure the stage to minimize unauthorized use of the stage. The Promoter shall dismantle and remove the stage and all structures and buildings from the premises no later than October 30, 2011 or within three week of the last event if sooner. The City and the Promoter may negotiate terms and conditions under which the stage or any other structure may remain on the premises if the waterfront concert events are to continue beyond 2012. 6. Security Promoter shall provide reasonable private security for the concerts within the confines of the concert area and shall contract with the City to provide additional security and public safety for the concerts in the 2012 Waterfront Concert Series. Promoter shall pay the City for police at a rate of $225 per officer for a four hour minimum and $55.00 for each additional hour and emergency medical personnel at a rate of $180 per commanding officer (one) for a four hour minimum and $48 for each additional hour and $160 for each firefighter (three) for a four hour minimum and $43 per firefighter for each additional hour and equipment required by the City for each concert. The City and the Promoter acknowledge that the level of police and emergency personnel and equipment needed for each concert will depend, in part, on the type of concert and the anticipated attendance. Promoter and City shall work together to determine the appropriate level of security personnel needed for each concert, depending on the type of concert and the anticipated attendance. The City and promoter acknowledge that for the largest event anticipated per discussions to date will require up to 12 police personnel and up to 10 fire personnel. 7. Restrooms Promoter shall be responsible for providing portable restroom facilities for each concert. The number of portable restrooms to be provided shall be 1 for every 340 ticket holders for a 4-5 hour concert and shall include an adequate number of barrier free portable restrooms. 8. Vendors The Promoter may have vendors for food and beverages, including vendor(s) duly licensed and authorized to sell alcoholic beverages in the State of Maine, on the premises within the secured event area. The City recognizes the importance of food and beverage sales to the success of the Waterfront Concerts events and shall cooperate with Promoter to obtain necessary licenses and permits, with both parties 12 019 acknowledging that Promoter must comply with State and local laws, codes and regulations. 9. Clean up The Promoter shall be responsible for cleanup of the premises and surrounding sidewalks and streets, including, but not limited to, removal of all refuse. The Promoter shall be responsible for providing any refuse containers. 10. Marketing The Promoter shall be responsible for all reasonable marketing of the concert series. 11. Regulations and City Waterfront Policy The Promoter shall comply with all federal, state and local laws, regulations and ordinances. The Promoter shall comply with the City's Waterfront Policy attached as Exhibit C. 12.Insurance The Promoter agrees to indemnify and save the City and its employees harmless from all suits, claims, damages and actions of any kind or nature arising directly or indirectly from the negligence or willful acts of the Promoter, its agents, servants, and employees in the exercise of Promoter's rights granted under this Agreement. For this purpose only, Promoter hereby expressly waives any and all immunity from suit or judgment the Promoter may otherwise enjoy under provisions of the Maine Worker's Compensation Act, Title 39-A Maine Revised Statutes, Section 104, or other provisions of law, with respect to any claim, demand, action, suit or judgment brought or recovered by the Promoter's agents, servants or employees against the City of Bangor, arising directly or indirectly, out of the Promoter's or its agents, servants or employees exercise of the rights granted under this Agreement. For this purpose only, the Promoter further expressly waives any and all immunity from suit or judgment it may otherwise enjoy under Title 14 Maine Revised Statutes, Section 158-A. The Promoter shall at its own expense provide commercial liability insurance in an amount not less than $1,000,000 per accident and $5,000,000 aggregate coverage for all claims arising out of the named insured's activities on the premises. The City shall be provided with certificates of insurance evidencing such coverage, which shall name the City of Bangor as an additional insured. 13. Financial Considerations 12 019 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. The City and Promoter acknowledge the potential need for giving "comp" ticket as part of the promotion of the concerts and for other reasons. Any comp ticket above 500 for each concert shall be deemed a ticket sold for the purpose of determining the amount due to the City from ticket sales. In the event Promoter determines that it needs to comp more than 500 tickets due to other contractual obligations or events beyond Promoter's control, the parties will work together to negotiate an increase in comp tickets. The City shall retain 50% of all parking fees collected, after deduction of expenses, for parking at the Pickering Square Parking Garage if it is used pursuant to Paragraph 2 above. The Promoter shall retain 50% of all parking fees collected, after deduction of expenses, for parking at the Pickering Square Parking Garage if it used pursuant to section 2 above. For all other parking, the Promoter shall retain 100% of all parking fees for any City owned property or lots on the waterfront if said property if used pursuant to section 2 above. rental. The Promoter shall retain 100% of all revenue from beverage sales and space The Promoter shall retain 100% of all revenue from food sales and space rental. The Promoter shall retain all revenue from ticket sales, including any and all service fees, after payment to the City of the amount due as described above. The Promoter shall retain 100% of the concert co -promote and sponsorship revenue. 14. Escrow The Promoter shall pay to the City on or before April 1, 2012 the sum of $15,000 to be held by the City in escrow. If, after consulting in with Promoter, the parties cannot reach an agreement concerning any monies owed for an alleged financial obligation or damage, the City shall have the right to draw down the escrow funds to pay any financial obligation due the City seven (7) days after a scheduled concert. In the event the City withdraws any funds from the escrow account, the City will provide Promoter within seven (7) days of any such withdrawal and accounting, which shall include the amount of the withdrawal and all documentation, including receipts 12 01.9 and invoices, relating to any such withdrawal. Promoter reserves its right to challenge the City's unreasonable withdrawal of funds from the escrow. The City may also draw from the escrow account funds to pay for any damages to the Premises from a concert if not repaired by the Promoter within seven (7) days of the concert. The City may also draw from the escrow funds to pay for any other obligation (for example, cleanup of the premises) that the Promoter breaches. In the event the City draws funds from the escrow account, the Promoter shall, within seven (7) days of the City's withdrawal of funds deposit sufficient funds into the escrow account to restore the balance of the fund to $15,000. The City shall return to the Promoter any funds remaining in the escrow account no later than November 1, 2012. 15. Concerts for Future Years During the term of this Agreement the City and the Promoter shall negotiate a multi-year agreement if it is in the best interests of each party. 16. Amendments Any amendment to this Agreement shall be in writing. 17. Entire Agreement This agreement constitutes the entire agreement between the City and the Promoter and all prior discussions and agreements concerning the 2012 Waterfront Concert Series are hereby incorporated and merged into this agreement. 18. Governing Law This agreement shall be governed by the laws of the State of Maine without regard to choice of laws. 19. 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 WATERFRONT CONCERTS, LLC Name: Alexander Gray Title: Sr. Booking Agent - Maine '-_� � ,� �. \ .. � - -- --_ ... .� ,. � i I 7 -__- - _ _. � _ / I *,. � + 1 12 0]9 EXHIBIT B Structures on Site The City acknowledges the need for various buildings and other support structures that are needed to appropriately equip the backstage area. Those structures and equipment shall include: • Up to two(2) storage "boxes" which are sometimes referred to as "Connex" boxes. • One(1) shower trailer • One(1) Production Trailer • One(1) Tour office trailer • Two(2) Dressing room trailers/structures. (This may vary in size as the size and needs of events become known.) • Catering tent/area. 12 019 EXHIBIT "C" 2012 TRADITIONAL WATERFRONT EVENT DATES The following are typical events that have traditionally happened on the Waterfront. July 4t", 2012; Fireworks Display: The display is staged in front of the earth amphitheater. Patrons view the fireworks around the entire site. August 24, 25 & 26. American Folk Festival: This event happens on the entire Waterfront. Typically this event starts to set up the week prior to the event. September TBA: Convention and Visitors Bureau Car Show: The CVB Car show has typically happened on the second Saturday of September. This year they are pursuing another large event to be staged the same day as their event. That would change their event to September 29, 2012 (Note: The Bangor Land Trust holds their "Pedal the Penobscot" event on the Sunday morning after the car show. This event is approximately 150 participants and ends by noon. Regardless of the final decision of the car show, this event will typically happens on the second Sunday of September.) September 16, 2012: Susan B. Komen "Race for the Cure: This is event stages on the "river side" of the Waterfront. The event is a morning event and generally has concluded around 2:00pm of the event day. There is potential for an Waterfront Concert event to be staged in the evening of the same day. Other events: United Maine Craftsman, KahBang, and Penobscot River Revival. These event do not currently have dates secured. The United Maine Craftsman event took place in Paul Bunyan Park in 2011, KahBang occurred in August and the Penobscot River Revival has happened in July. Also, the Humane Society holds their Paws on Parade event in October.