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HomeMy WebLinkAbout2012-07-23 12-251 ORDERCOUNCIL ACTION Item No. 12-251 Date: July 23, 2012 Item/Subject: Order, Authorizing the Execution of a 5 -Year Agreement with KahBang Music and Arts Festival Responsible Department: Legal Commentary: This Order authorizes the execution of a five year agreement that set out the rights and responsibilities for KahBang's use of the waterfront for its annual music festival. The agreement is similar to the current agreement and states that KahBang will pay the City $1.25 for each ticket sold, escrow $5,000, and pay direct costs for City services. This agreement was reviewed and recommended for approval at a Council Workshop on June 7, 2012. Manager's Comments: Associated Information: Budget Approval: Legal Approval: Introduced for Passage First Reading Referral Department Head ` -" 1 jam, L.& L. -) City Manager Page _ of _ Finance Director Solicitor 12-251 JULY 23, 2012 Assigned to Councilor Gallant ��y i-9q,ysos, z�11�.n 1 CITY OF BANGOR (TITLE.) ORDER, Authorizing the Execution of a 5 -Year Agreement with KahBang Music and Arts Festival WHEREAS, the KahBang Music and Arts Festival produces a music festival on the Bangor waterfront annually; and WHEREAS, it is in the best interests of the City of Bangor to enter into an agreement to set out the rights and responsibilities of the parties. 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 the KahBang Music and Arts 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 July 23, 2012 Motion made for Passage No Second Motion Failed Motion made and seconded to postpone until the City Council Meeting on August 13, 2012 Motion Doubted Vote: 5-3 Councilors Voting Yes: Baldacci, Blanchette, Gratwick, Sprague, Weston Councilors Voting No: Gallant, Longo, Hawes IN CITY COUNCIL AUGUST 13, 2012 MOTION MADE AND SECONDED TO POSTPONE TO A DATE CERTAIN -THREE COUNCIL MEETINGS FROM AUGUST 13, 2012 MOTION DOUBTED VOTE; 8-1 COUNCILORS VOTING YES; BALDACCI, BLANCHETTE, DURGIN, GALLANT, GRATWICK, HAWES, SPRAGUE, WESTON COUNCILORS VOTING NO; LONGO PASSED CITY CLERK IN CITY COUNCIL August 27, 2012 Motion Made and seconded to Suspend the Rules to add by Substitution Order 12-251 Tim Lo Executive Director of Kahbang Music and Arts Festival thanked the council for the opportunity to continue the festival in Bangor Motion made and seconded for Passage Passed &-e-f, - ' dkt�_ Q_<1 Crlv ^ ' aol!3uno3 of pau6issd (`3-1ju.0 12-251 July 23, 2012 AGREEMENT This agreement is made this day of ,.2012 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 KahBang Music and Arts Festival, a Maine Corporation having a place of business in Bangor, Maine (hereinafter "KahBang") WHEREAS, the City is the owner of certain property located on the Penobscot River Waterfront (hereinafter "Premises"); and WHEREAS, KahBang wishes to host a music festival of live music on the Penobscot River Waterfront during a weekend in August of each year. NOW, THEREFORE, in consideration of the covenants and agreement hereinafter contained, the City and KahBang mutually agree to all obligations, terms and conditions as follows: 1. Term This Agreement shall be effective through August 31, 2016 unless terminated earlier as provided herein. 2. Premises KahBang shall have the right to occupy the Premises as described in Exhibit A attached for the purpose of putting on a two day music festival of live music a Friday and Saturday in August of each year of the term of this Agreement. In the event that the City of Bangor receives and accepts a proposal for development of any portion of the premises, KahBang shall relocate its activity on the affected property and the City shall cooperate with the KahBang to accomplish the relocation. KahBang shall inform the City of the exact dates of each annual music festival by January 1St of each year. The parties acknowledge that KahBang is working towards expanding the event and agree to consider an amendment to this Agreement appropriate, understanding that the City of Bangor also has agreement with Waterfront Concerts and the Bangor Folk Festival that impact the use of the Premises. The parties acknowledge that the City of Bangor shall have an agreement to provide a waterfront concert venue for each year and shall provide that the waterfront concert series shall not interfere with the music festival on the days of the music festival, said dates being so-called "black -out" dates for the waterfront concert series. The music festival shall end by 11:30 p.m. on both Friday and Saturday. In the event that KahBang fails to meet the curfew requirement on either Friday or Saturday (namely, the event on either Friday and/or Saturday has not ended and/or attendees have not begun to vacate the Premises), KahBang shall pay to the City the sum of $5,000.00, payable at the conclusion of the event. It is the intent of the parties that the stage performance ends and the so-called Railroad Stage area (corner of Main Street and 12-251 July 23, 2012 Railroad Street) be vacated by 11:30 p.m., understanding that other KahBang venues may have attendees after 11:30 p.m. 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. 3. Parking Prior to the music festival the City and KahBang shall meet to determine the number and location of parking spaces needed for the event. 4. Electricity The City has three and single phase power on the waterfront and KahBang may use this power supply. KahBang agrees to pay the City for any and all electrical tie-ins required at the City's hourly rate customarily charged for such electrical service with a three hour minimum. 5. Security KahBang shall provide reasonable private security for their event within the confines of the festival area(s). KahBang shall contract with the City to provide additional security and public safety for the duration of their event. KahBang shall pay the City for police at the City's hourly rate customarily charged with a four hour minimum and the City's customarily charged hourly rate for each additional hour. Emergency medical personnel shall be paid at the City's hourly rate customarily charged per commanding officer (one) for a four hour minimum and the City's customarily charged hourly rate for each additional hour and the City's hourly rate customarily charged for each firefighter for a four hour minimum and the City's customarily charged hourly rate for each firefighter for each additional hour and equipment required by the City for this event. KahBang and the City shall work together to determine the appropriate level of security personnel needed. 6. Restrooms KahBang shall be responsible for providing portable restroom facilities for their event. The number of portable restrooms to be provided shall be accordance with typical event standards of this type. An adequate number of barrier free portable restrooms shall be included. 7. Vendors KahBang may have vendors for food and beverages, including a vendor duly licensed and authorized to sell alcoholic beverages in the State of Maine, on the premises within the secured event area. KahBang must comply with State and local laws, codes and regulations. 12-251 July 23, 2012 8. Cleanup KahBang shall be responsible for the cleanup of the premises and surrounding sidewalks and streets, including but not limited to, removal of all refuse. KahBang shall be responsible for providing any refuse containers. 9. Insurance KahBang and its organizers agree 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 KahBang, its agents, servants, and employees in the exercise of KahBang's rights granted under this Agreement. For this purpose only, KahBang and its organizers hereby expressly waives any and all immunity from suit or judgment KahBang 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 KahBang's agents, servants or employees against the City of Bangor, arising directly or indirectly, out of the KahBang's or its agents, servants or employees exercise of the rights granted under this Agreement. For this purpose only, the KahBang further expressly waives any and all immunity from suit or judgment it may otherwise enjoy under Title 14 Maine Revised Statutes, Section 158-A. KahBang 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. 10. Financial Considerations KahBang agrees to pay the City $1.00 of every ticket sold and $.25 of every ticket sold for the purpose of maintenance of the premises. Payment for this and City services will be due at the conclusion of the event on Saturday through a settlement process with the Parks and Recreation Director or his designee and Tim Lo of KahBang or his designee. KahBang shall be entitled to retain 100% of all revenue from beverage and food sales and space rental. KahBang 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. KahBang shall retain 100% of the event co -promote and sponsorship revenue. 11. Escrow KahBang shall pay to the City on or before July 1St of each year the sum of $7,000 to be held by the City in escrow. If, after consulting in with KahBang, the parties cannot reach an agreement concerning any monies owed for an alleged financial obligation or damage, the City shall have the right 12-251 July 23, 2012 to draw down the escrow funds to pay any financial obligation due the City seven (7) days after the scheduled event. 12. Default/Termination It is covenanted and agreed that: A. If KahBang shall neglect or fail to pay charges payable hereunder and shall default shall continue uncured for a period of two (2) business days after receipt of notice thereof by City; or B. If KahBang shall neglect or fail to perform or observe any of the other covenants, terms or conditions on its part to be performed and observed and such default shall continue for two (2) days after receipt of notice thereof by the City and KahBang shall not have commenced and diligently pursued the remedy of said default; or C. If the estate hereby created shall be taken on execution or by other process of law; or D. If KahBang shall be declared bankrupt or insolvent according to law; or E. If any assignment shall be made of the property of KahBang for the benefit of creditors; or F. 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 KahBang's property by a Court of competent jurisdiction; or G. If a petition shall be filed for a reorganization of KahBang under provisions of the Bankruptcy Act now or hereafter enacted, and such proceeding is not dismissed within one hundred (120) days after it was commenced; or H. If KahBang shall file a petition for such reorganization or for arrangements under any provision of the Bankruptcy Act now or hereafter enacted and providing a plan for a debtor to settle, satisfy or extend the time for the payment of debts, then, in any of the said cases (notwithstanding any license or any breach or covenant or waiver of the benefit hereof or consent in a former instance); or I. If, notwithstanding Section 12 ( B), KahBang fails to comply with the notice provision contained in Section 2. In the event KahBang, its agents, employees or representatives are on the premises, the City lawfully may, immediately or at any time thereafter, and without demand or notice, enter into and upon the said premises or any part thereof, in the name of the whole and repossess the same as of the City's former estate, and expel KahBang and those claiming through or under it and remove its or their effects (forcibly, if necessary) without being deemed guilty of any manner of trespass, and without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant, and upon entry as aforesaid, this Agreement shall terminate. 12-251 July 23, 2012 13. Amendments Any amendments to this agreement shall be in writing. 14. Entire Agreement This agreement constitutes the entire agreement between the City and KahBang. 15. 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 KAHBANG MUSIC AND ARTS FESTIVAL Name: Title: CITY OF BANGOR Catherine M. Conlow City Manager 12 251 KahBana - Exhibit "A" HAM A. SMT ` s '�ooGKS�c cj �G;� �'t� � c�'� �� CrgSs U N ovV wafer tib 4b,� hoc Q oca a dos i , k At CO Aare coag: s R �< KahBang i i JF /w 1 CO i Cq' ,rl CIO - 1 inch = 600 feet