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
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(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.
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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.
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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
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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
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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
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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
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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.
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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.