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HomeMy WebLinkAbout2012-07-23 12-253 ORDERCOUNCIL ACTION Item No. 12-253 Date: July 23, 2012 Item/Subject: Authorizing the Execution of a 5 -Year Agreement with Bangor Folk Festival Responsible Department: Legal Commentary: This order will authorize the termination of a three year agreement with the Bangor Folk Festival, signed in February of 2010, and approves the execution of a five-year agreement with the Bangor Folk Festival for production of a music festival which takes place annually on the Bangor Waterfront. The proposed agreement is similar to the past however it provides a five year term that allows the Folk Festival full access to the waterfront for the traditional dates of the Folk Festival. Additionally, the City has agreed to continue with in-kind support in an amount not to exceed $50,000, provided that the festival remains free and open to the general public. This item was reviewed an executive session and recommended for approval by the Council in and workshop on June 7, 2012 Manager's Comments: Associated Information: Budget Approval: Legal Approval: Introduced for Passage First Reading Referral Department Head Page _ of _ City Manager nance Director Solicitor 12-253 JULY 23, 2012 Assigned to Councilor Baldacci CITY OF BANGOR �qf (TITLE.) ORDER, Authorizing the Execution of a 5 -Year Agreement with Bangor Folk Festival WHEREAS, the Bangor Folk Festival produces a folk festival on the Bangor waterfront annually; and WHEREAS, historically the City of Bangor has provided financial and other support for the folk festival; and WHEREAS, on May 12, 2010 the Cityof Bangor and the Bangor Folk Festival entered into a three year agreement setting forth the rights and responsibilities of the City of Bangor and the Bangor Folk Festival; and WHEREAS, it is in the best interests of the City of Bangor to enter into a new, long-term agreement. 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 the Bangor Folk Festival and to execute a new Agreement with the Bangor Folk 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 Notion made and seconded for Passage Notion Doubted Vote: 8-0 Councilors Voting Yes: Baldacci, Blanchette, Gallant, Gratwick, Longo, Hawes, Sprague, Weston Councilors Voting No: None �s CITY CLERK aojiauno3 of peu6issd 12-253 JULY 23, 2012 AGREEMENT Agreement made this day of , 2012 by and between the Bangor Folk Festival, a Maine nonprofit corporation with a place of business at Bangor, Maine (hereinafter Folk Festival), the City of Bangor, a municipal corporation located at 73 Harlow Street, Bangor, Maine (hereinafter City). WHEREAS, the Bangor Folk Festival produces a folk festival in Bangor Maine that has brought thousands of visitors to the City of Bangor, involved hundreds of volunteers and the support or large numbers of organizations and individuals, and become a celebration of community raising the City of Bangor's profile; and WHEREAS, the City has historically provided support to the Bangor Folk Festival; and WHEREAS, the parties executed an Agreement dated May 12, 2010 setting forth the responsibilities of the parties; and WHEREAS, the parties wish to enter into a new agreement, replacing the existing agreement, setting forth the responsibilities of the parties through the 2016 Folk Festival. NOW, THEREFORE, the parties agree as follows: ARTICLE I - PREMISES The City does hereby agree that the Folk Festival may use and occupy the premises described on Exhibit A, attached hereto, for the purpose of putting on the American Folk Festival 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, the Folk festival shall relocate its activity on the affected property and the City shall cooperate with the Folk Festival to accomplish the relocation. The Folk festival shall inform the City of the exact dates of each annual American Folk Festival by January 1 St of each year. The parties acknowledge that the events of the Folk Festival begin on a Thursday evening and end the following Sunday evening. The parties further acknowledge that prior to the events "set-up" of the Folk Festival occurs. Representatives of the Folk Festival shall coordinate with the City's Director of Parks and Recreation regarding the set-up and use of the premises, particularly parking lots and public streets. 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 Folk Festival on the Thursday evening prior to the American Folk Festival event and the Friday, Saturday and Sunday of the event, said dates being 12-253 JULY 23, 2012 so-called "black -out" dates for the waterfront concert series. The parties and the promoter of the waterfront concert series shall negotiate with the City of Bangor whether the Wednesday immediately before the American Folk Festival will be a "black -out" date, and agree that for 2012 it shall not be such a date. ARTICLE II TERM This Agreement shall be effective through October 31, 2016 unless terminated earlier as provided herein. ARTICLE III - SERVICES In consideration of the mutual promises contained herein, the City agrees to provide certain services to the Folk Festival for its annual folk festivals during the term of this Agreement. The City shall provide in-kind services consisting of police, EMS, electrical, public works, and parking. The value of the in-kind services shall not exceed $50,000 and shall be calculated as follows: Labor: actual employee wages and benefits. Equipment: to be charged at the City's established rate as may be amended from time to time. The in-kind services to be provided to the Folk Festival shall include the Bangor police department, EMS, trash removal and electrical. Other in-kind services shall be provided as agreed by the parties though not to exceed the aforementioned $50,000 in value when combined with Bangor police department, EMS, and electrical. The Folk Festival shall not contract with any party other than the City to provide the electrical services (other than those acceptable to the City Engineer) and police department services. The police department services shall include, but not be limited to: traffic control and law enforcement functions. The EMS services shall include, but not be limited to, EMS personnel on bicycles and on foot to be able to provide medical aid to those in need. The electrical service shall include, but not be limited to, providing electrical service connection and necessary electrical wiring. In the event that the Folk Festival requests additional services from the City the City may provide said services provided that the Folk Festival pays for the estimated costs of said services in advance. 12-253 JULY 23, 2012 ARTICLE IV — PROMISSORY NOTE The Folk Festival shall execute a Promissory Note for the benefit of the City in the amount of $239,933.56, said Note to be in substantially the same form as Exhibit B, attached hereto. ARTICLE V — CASH CONTRIBUTION During the term of this Agreement the Folk Festival shall not seek from the City, nor shall the City provide, any cash contributions to the Folk Festival, provided that, however, City Departments (for example, Bangor International Airport) may advertise as part of the Folk Festival event or promotion. ARTICLE VI — FINANCIAL REPORTING TO CITY The Folk Festival shall provide monthly balance sheet and income statements to the City no later than thirty days after month end in a format as approved by the City's Finance Director and Chair of the City's Finance Committee. ARTICLE VII - TERMINATION It is covenanted and agreed that: 1. If the Folk Festival fails to comply with the terms and conditions of the promissory note referenced in Article IV of this Agreement; or 2. If the Folk Festival shall neglect or fail to pay any charge that may become payable under this Agreement when due and such default continues for a period of ten (10) days after written notice by the City; or 3. If the Folk Festival shall neglect or fail to perform or observe any of the other covenants, terms, provisions, or conditions on its part to be performed, or observed; or 4. If the Folk Festival should fail to comply with all Federal, State or municipal laws, rules, regulation or ordinances; or 5. If the Folk Festival should lose its 501 (c) (3) tax exempt status. 6. If the Folk Festival should fail to produce a folk festival. 7. If the Folk Festival shall be declared bankrupt or insolvent according to law; or 12-253 JULY 23, 2012 8. If any assignment shall be made of the property of the Folk Festival for the benefit of creditors; or 9. 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 the Folk Festival's property by a Court of competent jurisdiction; or 10. If a petition shall be filed for a reorganization of the Folk Festival under provisions of the Bankruptcy Act now or hereafter enacted; or 11. If the Folk Festival shall file a petition for such reorganization or for arrangements under any provision of the Bankruptcy Act now or hereafter enacted; or Then, in any of the said cases (notwithstanding waiver of the benefit hereof or consent in a former instance), the Folk Festival may be considered in default hereunder, and the City may terminate this Agreement ARTICLE VIII - WAIVER Failure on the part of the City to complain of any action or non -action on the part of the Folk Festival no matter how long the same may continue, shall never be deemed to be a waiver by the City of any of City's rights hereunder. Further, it is covenanted and agreed that no waiver at any time of any of the provisions hereof by the City, shall be construed as a waiver of any other provisions hereunder, and that a waiver at any time of any of the provisions hereof shall not be construed at any subsequent time as a waiver of the same provisions. ARTICLE IX - NOTICES Notices to the City provided for in this Agreement shall be sufficient if sent by registered or certified mail, return receipt requested, postage prepaid to: City Manager, City of Bangor, City Hall, 73 Harlow Street Bangor, Maine, 04401; and notices to the Folk Festival, are to be sent by registered or certified mail, return receipt requested, postage prepaid, addressed to: Executive Director, Bangor Folk Festival, 40 Harlow Street, Bangor, Maine 04401, or to such other respective addressees as the parties may designate to each other in writing from time to time. ARTICLE X - NO PARTNERSHIP OR JOINT VENTURE CREATED Nothing contained herein shall be deemed or construed as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto. 12-253 JULY 23, 2012 IN WITNESS WHEREOF this Agreement has been executed sealed and delivered as of the day and year first above written. CITY OF BANGOR Name: Title: BANGOR FOLK FESTIVAL Name: Title: 12 253 American Folk Festival - Exhibit "A" wj (P U., I I 0 01Y HAMMOND ° cy��' `� °r' S'T sk 'Ok Cal Cj S ca St C, &4.fj- lof St 0 a \ N� � 06 0f1j 1 ) . 1 10 ;st '09 7c'e 0 Wale r 01" ! \ k9 St 'V0 G"01 AU co Oasis 00" American Folk Festival Sites *1 Two Rivers Stage *2 Railroad Stage *3 Summer Street parking lots * Setup dates on each O night to be determined by the City Manager of her designee each year. 11 1 inch = 600 feet AT CIO i IT k1 Q7 AU co Oasis 00" American Folk Festival Sites *1 Two Rivers Stage *2 Railroad Stage *3 Summer Street parking lots * Setup dates on each O night to be determined by the City Manager of her designee each year. 11 1 inch = 600 feet 12-253 JULY 23, 2012 PROMISSORY NOTE AND AGREEMENT LENDER/CREDITOR: City of Bangor, 73 Harlow St., Bangor, Maine 04401 BORROWER/DEBTOR: Bangor Folk Festival 40 Harlow Street Bangor, Maine 04401 FOR VALUE RECEIVED, the above-named BORROWER/DEBTOR, hereinafter collectively referred to as DEBTOR, promises to pay the CITY OF BANGOR (hereinafter termed CITY) at its Office at 73 Harlow Street, Bangor, Maine, the sum of: Two Hundred Thirty -Nine Thousand Nine Hundred Thirty-three Dollars and Fifty-six Cents ($239,933.56) with the interest at the rate of 0.0% per annum until paid. Both principal and interest on this Note are payable in annual installments of $29,991.70. The first installment being due on November 1, 2012 and the last such installment due on November 1, 2016, when all principal and interest remaining unpaid shall be due and payable. All payments shall be applied to the principal under this NOTE until the same is paid in full. The DEBTOR reserves the right to prepay at any time all or any part of the principal amount of this Note without the payment of any penalties or premiums. If any installment due and payable hereunder is in default for a period of 20 days after notice of DEBTOR's right to cure is given, the CITY may declare the entire debt in default and require the immediate payment of the unpaid principal amount of this Note. Failure of the CITY to promptly give Notice of Right to Cure or to promptly take any other actions necessary to accelerate the amounts due hereunder, shall not constitute a waiver of default, nor shall it be a bar to exercise of any of the forgoing rights at a later date. The DEBTOR shall be in default under this Note when the prospect of payment or performance under this Note is significantly impaired. The following shall constitute a significant impairment of the prospect of payment or performance: (1) Insolvency, assignment for the benefit of creditors, the commencement of any proceeding under any bankruptcy or solvency laws by or against the DEBTOR; (2) Breach of an Agreement by and between the City of Bangor and Bangor Folk Festival of even date. (3) Failure to produce a folk festival. (4) Breach of the Agreement by and between the parties of even date herewith. DEBTOR does hereby waive presentment, demand, protest, notice of protest, demand and/or of dishonor, and the DEBTOR hereby waives, to the extent 12-253 JULY 23, 2012 authorized by law, any and all homestead, and other exemption rights which otherwise would apply to the debt evidenced by this Agreement. If suit is instituted by the CITY to recover upon this Note, the DEBTOR agrees to pay all reasonable attorneys' fees not in excess of 15% of the unpaid debt after default together with any and all court costs. If any obligation or portion of this Note is determined to be invalid or unenforceable under law, it shall not affect the validity or enforcement of the remaining obligations or portions thereof. This Note shall be construed in accordance with and be governed by, the laws of the State of Maine. NOTICE TO DEBTOR: 1) Do not sign this Agreement before you read it. 2) You are entitled to a copy of this Agreement. 3) You may prepay the unpaid balance at any time without penalty. By the signature(s) below, DEBTOR agrees to the terms of this Agreement and Promissory Note and acknowledges receipt of one completed copy of this Note and the disclosures, and acknowledges that the DEBTOR has read and is bound by the same. If the undersigned shall consist of more than one individual or entity then the obligations of the undersigned under this Note shall be joint and several. Date: BANGOR FOLK FESTIVAL Witness Name: Title: STATE OF MAINE Penobscot, ss. Then personally appeared the above named , of the Bangor Folk Festival and acknowledged the foregoing instrument to be his/her free act and deed in his/her said capacity and the free act and deed of said corporation. Before me, Notary Public State of Maine