HomeMy WebLinkAbout2012-07-23 12-252 ORDERCOUNCIL ACTION
Item No. 12-252
Date: July 23, 2012
Item/Subject: Authorizing the Execution of a 5 -Year Agreement with Waterfront Concerts, LLC
Responsible Department: Legal
Commentary:
This Order, if approved, will authorize termination the existing agreement with Waterfront
Concerts LLC and replace it with a 5 -year agreement. On December 8, 2011 the City of Bangor
and Waterfront Concert, LLC entered into a one year agreement for the 2012 summer concert
series. Terms of the agreement include that Waterfront Concerts can utilize the existing site for
5 years, pay the City $1.25 per ticket sold, and reimburse the city for any incurred expenses.
Additionally, the agreement anticipates that the City will construct a new permanent concert
venue within 5 years. The new agreement provides that both parties will negotiate terms and
conditions for the use of a permanent concert venue once construction has been completed and
it is ready for use. This agreement was reviewed and recommended by the Council at a
workshop on June 7, 2012.
Manager's Comments:
Associated Information:
Budget Approval:
Legal Approval:
Introduced for
Passage
First Reading
Referral
Department Head
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Finance Director
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icitor
12-252
JULY 23, 2012
Assigned to Councilor Blanchette
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CITY OF BANGOR
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(TITLE.) ORDER, Authorizing the Execution of a 5 -Year Agreement with Waterfront
Concerts, LLC
WHEREAS, Waterfront Concerts, LLC produces a summer concert series on the Bangor
waterfront; and
WHEREAS, on December 8,2011 the City of Bangor and Waterfront Concert, LLC executed a
one year agreement setting forth the rights and responsibilities of the City of Bangor and
Waterfront Concerts, LLC; and
WHEREAS, the City of Bangor has decided to construct a permanent concert venue on the
Bangor waterfront; and
WHEREAS, it is in the best interests of the City of Bangor to enter into a new, long-term
agreement with Waterfront Concerts, LLC.
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 a termination of the existing Agreement with Waterfront Concerts,
LLC and to execute a new Agreement with Waterfront Concerts, LLC. 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 and Seconded for Passage
Motion Doubted
Vote: 8-0
Councilors Voting Yes: Baldacci, Blanchette,
Gallant, Gratwick, Longo, Hawes, Sprague,
Weston
Councilos Voting No: None
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CITY CLERK
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12-252
July 23, 2012
AGREEMENT
Agreement 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 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'l as more particularly described on Exhibit A
attached; and
WHEREAS, the Promoter has presented a summer concert series on the Premises
during 2010 and 2011; and
WHEREAS, the Promoter and the City are parties to an agreement for the
Promoter to present a summer concert series on the Premises during 2012; 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, 2013 through
October 12, 2016; and
WHEREAS, the parties wish to create a permanent concert venue on the Bangor
waterfront for the summer concert series on certain property (hereinafter "concert
venue) beginning the 2013 summer concert series, as more particularly described as
Exhibit C.
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. Term, Premises and Concert Venue
A. Term
The term of this Agreement shall be for a period of five years. 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 1st through October 12th of each year of this
agreement. It is the intent and agreement of the parties that when the concert venue
as more particularly describe in Exhibit C is ready for occupancy a new agreement for
the use of the permanent concert venue has been finalized by and between the parties
that Promoter shall have the right to occupy the concert venue and shall no longer have
the right to occupy the Premises.
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July 23, 2012
B. Use of Premises
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 1st of each year the Promoter may occupy the
premises for the purpose of establishing and assembling the structures necessary to
support a concert venue for that concert season. The Promoter shall remove all
temporary structures by October 20"' of each year 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.
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: 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.
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.
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July 23, 2012
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.
C. Permanent Concert Venue
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
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 event the City and the Promoter will meet and determine the
number and location of parking spaces needed for the event.
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 through October 12, 2016 and
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.
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July 23, 2012
The parties acknowledge that the City and the Bangor Folk Festival, a/k/a
American Folk Festival, are parties to an agreement permitting the Bangor Folk Festival
to use City property on the Bangor Waterfront for its festival in August of each year
through 2016. 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 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.
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, while located on the Premises, that if the American Folk Festival wishes it, may
use the stage for its annual American Folk Festival Events from Friday through Sunday
of each year that Promoter is located on the Premises 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 1st
of each year all rigging plans to promoter for structural 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.
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July 23, 2012
Except as otherwise provided, the Promoter shall dismantle and remove the
stage and all structures and buildings from the premises no later than October 30"' of
each year at the Premises, 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 event is to
relocate to the permanent Concert Venue. The parties agree that if the permanent
Concert Venue is be expected to be ready to occupy in 2013 the stage may remain on
the Premises after the 2012 concert series.
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 Waterfront Concert Series. Promoter
shall pay the City for police at the City's customary charged hourly rate with a four hour
minimum and the City's customary charged hourly rate for each additional hour and
emergency medical personnel at the City's customary charged hourly rate with a four
hour minimum and the City's customary charged hourly rate 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
concert 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
acknowledging that Promoter must comply with State and local laws, codes and
regulations.
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July 23, 2012
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.
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
The parties agree that financial terms and conditions set forth in this section 13
shall be in effect during the time that Promoter occupies the Premises as more
particularly described on Exhibit A. When the Promoter is able to occupy the
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July 23, 2012
permanent Concert Venue as more particularly described on Exhibit D the parties shall
negotiate new financial terms and conditions.
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.
The Promoter shall retain 100% of all revenue from beverage sales and space
rental.
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 its of each year 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.
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July 23, 2012
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
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 1st of
each year.
15. Concerts for Future Years
During the term of this Agreement the City and the Promoter continue efforts to
construct a permanent concert venue to be located on the City waterfront property as
more particularly described in Exhibit D.
The parties agree to negotiate an amendment to this agreement or a separate
agreement regarding each party's financial contribution to construction for the
permanent concert venue, including cost of power, fencing/screening and sound study.
When the permanent concert venue as more particularly described on Exhibit D
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
16. Amendments
Any amendment to this Agreement shall be in writing.
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July 23, 2012
17. Entire Agreement
This agreement constitutes the entire agreement between the City and the
Promoter and all prior discussions and agreements concerning the 2013-2016
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
Witness
WATERFRONT CONCERTS, LLC
Name: Alexander Gray
Title: Sr. Booking Agent - Maine
CITY OF BANGOR
Name:
Title:
12 252
Waterfront Concerts - Exhibit "A"
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12-252
July 23, 2012
EXHIBIT "B"
2012-2016
TRADITIONAL WATERFRONT EVENT DATES
The following are typical events that have traditionally happened on the Waterfront.
July 4th, annually: Fireworks Display: The display is staged in front of the earth
amphitheater. Patrons view the fireworks around the entire site.
August 9, 10, 11, 2012: KahBang: This event is a Friday night and Saturday event.
August 9th is set aside as a setup day. The City of Bangor and KahBang have an
agreement through 2016 for a two day music festival in August of each year on the
Bangor waterfront.
August 22, 23, 24, 25 & 26, 2012. American Folk Festival: This event happens on
the entire Waterfront. Typically this event starts to set up the week prior to the event.
For 2012, August 22 & 23 have been dedicated for set up days. The City and the
American Folk Festival have an agreement through 2016 for the Folk Festival which
occurs towards the end of august of each year.
September 8, 2012: Convention and Visitors Bureau Car Show: The CVB Car
show utilizes the Front Street/river side of the Waterfront from the Harbormaster
building to the Dutton Street end of the site. (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.) The CVB Cart Show has been an
annual event and is expect to remain so during early September of each year.
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 a Waterfront Concert
event to be staged in the evening of the same day. The Susan G. Komen "Race for the
Cure" has been an annual event and is expect to remain so during early September of
each year
Other events: Cancer Care Survivor Day that usually takes place in June. The
Humane Society holds their Paws on Parade event in October.
12 252
Waterfront Concerts - Exhibit "C"
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