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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 S_Z!0196�Z i�� .. Finance Director Page _of_ icitor 12-252 JULY 23, 2012 Assigned to Councilor Blanchette .f, l O CITY OF BANGOR OA4<�,fE r (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 �wlpd s� CITY CLERK aoiiouno3 o; pau6issd 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. 12-252 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. 12-252 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. 12-252 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. 12-252 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. 12-252 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 12-252 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. 12-252 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. 12-252 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" _ HaMN1oND �T NQ- S. 0 4s N iMy°ice' apfcle0s4 9t° aCWale r Ioe/p St 00, °X eqj �� • --- �, r, CO 40 40 00 41. Exhibit "A" S r' i� S� 1 inch = 600 feet 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" .�, \ vim, C, LL HAMOND $T ` ' o��sK o� 'S'9,� -0 Comes c�Cli ate cv j. O c �er t wale r. eaar Seg G'V/(p St arc '4'i� Off, S't , `�'t,9`e% 0�� CT ��S i0f I ,y ,sy& � .. dal i`- �'� Exhibit "C" 5 t j 1 inch = 600 feet