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HomeMy WebLinkAbout2010-11-08 11-012 ORDERItem IN% 11 012 Date: November 8 2010 ltem/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 due Penobscot River Waterfront. In 2010 the City entered Into an agreement for a concert series on the waterfront. Waterfront Concerts, LLC, the promoter of the concerts, wishes W present another concert series on the Penobscot River Waterfront from May 1, 2011 through October 12, 2011 This Order will authorize the execution of the agreement. The proposed agreement has been reviewed by the Council at a Council workshop. Deparbnent Head ManageesC rnenb: gig e interim Cdy Manager Associated Information: Order Legal Approval: ry Solicitor O Passage _ First Reading Page _ of _ Referml 1 Assigned to Councilor _ Ealmeu 1.1 012 p - No rw bez S. 2010 i CITY OF BANGOR (MLE.) ORDER, Autlmrizing Execution of Agreement between the City of Bangor and Waterfront Concerts, LLC WHEREAS, the City is Me 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, 2011 through October 12, 2011 Ry tme otyL Mz/ of me oty ofEangd: ORDERED, THAT Robert W. Farrar, Interim City Manager, is hereby authorized, on behalf of the Cry of Bangor, to execute an agreement with Waterfront Concerts, LLC W 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. IP CITY COOPCIL November S. 2010 Notion !lade -awl Seconded fot passage Resident Kenneth ]abaem Caaplaived of wise fret past onterts and suggested tba ewmcil require a mz+m.m wise level and measure the sound vtth a decibel ester which esum be lacated at the sound board. Alex Gray. President of Naterfront Concerts vxplalned (that improvements to deaden the soul d can he xde P d CITY (1TTL8Je..eL..ei:3sa BxewCiw of--Agremant harmer UC Cite of Bangor and vaier£rwt meert _ LLC Migtedb Couallnet � l✓ 11 012 AGREEMENT Agreement made this _ day of 2010 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 "Promote. 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, 2011 through October 12, 2011. 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 concert series on various dates to be agreed upon by the parties from May 1, 2011 through October 12, 2011. 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. 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 the Premises Is a public space and needs to be available to the public to the greatest extent possible given the limitations imposed upon public use of the Premises by this Agreement. The City and the Promoter acknowledge that visibility of the Premises between concert events is important and necessary and that any obstructions to visibility between concert events shall not be permitted. The City and the Promoter will discuss and develop plans to maintain visibility of the Premises between concerts. Said plans shall, at a minimum provide for the removal of the fabric that covers the fence around the premises, provide for removal of sections of the fence, provide for public access to the Premises, and 11 012 provide for removal of all obstructions along Main Street from the pedestrian stairs to Railroad Street under certain conditions. 2. Parking The City and the Promoter agree to negotiate the use of various City owned parking Including Bass Park, 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 at Bass Park or on the Bangor Waterfront. t>lr�a�lra�lr3t 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, 2011 and October 12, 2011 known to the City is attached as Exhibit B. The City agrees not W permit events on the Premises on dates that Promoter has concerts. 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 Mur minimum. S. 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 the American Folk Festival may use the stage for its 2011 American Folk Festival Event from Friday August 26, 2011 through Sunday August 28, 2011 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, 2010 all rigging plans to promoter for structural review and the American Folk Festival agrees to use Promotets rigging staff to rig and supervise the use of the stage during said period. Associated costs for sald services will be the responsibility of American Falk Festival. Promoter may negotiate, at its sole discretion, with all for profit 11 012 events for the use of its stage and infrastructure. Promoter agrees to secure the stage to minimize unauthorized use of the stage. The Cry and the Promoter acknowledge the benefit to permitting a portion of the stage structure to remain on the premises during the winter months ("off season") Including costs saving, eliminating potential damage to the premises that could result from moving the structure, and ensuring that the stage will be ready for the first concert. The Promoter shall be permitted to leave the current portion of the stage on the site during the "off season" and during the term of this agreement. The promoter shall maintain security and Insurance as provided In this agreement and shall conduct periodic inspections of the stage. l Promoter shall provide reasonable private security for the concerts within the confines of the concert area and shall contract with the Cry to provide additional security and public safety for the concerts in the 2011 Waterfront Concert Series. Promoter shall pay the City for police at a rate of $210 per officer for a four hour minimum and $52.50 for each additional hour and emergency medical personnel at a rate of $172 per commanding officer (ane) for a four hour minimum and $43 for each additional hour and $152 for each firefighter (three) for a four hour minimum and $38 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 attentlance. 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 acknmiedge that for the largest concert anticipated per discussions to date will require up to 12 police 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 reslrooms. 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. 11 012 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 Bahlblt 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 ads of the Promoter, Its agents, servants, and employees in the exerdse 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 othenvise enjoy under provisions of the Maine Worker's Compensator Act, Tide 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 Tide 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 aaident 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 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. It 012 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 Promotees control, theparties will work together to negotiate an increase in romp tickets. The City shall retain 50% of all parking fees collected, after deduction of expenses, for parking at Bass Park and the Pickering Square Parking Garage if either is used pursuant to Paragraph 2 above. The Promoter shall retain 50% of all parking fees collected, after deduction of expenses, for parking at Bass Park and the Pickering Square Parking Garage Is either if 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 use its own ticketing company and system for the sale of concert tickets. The City and the Promoter acknowledge that it may be in the best interest of the City to sell tickets for the waterfront concert series at the Bangor Auditorium and will work together to negotiate terms for the City's sale of tickets In advance of the Sale of any such tickets by the City. 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 1, 2011 the sum of $10,000 to be held by the City in escrow. If, after consulting in with Promoter, the parties cannot reach an agreement concerning arty monies owed for an alleged financial obligation or damage, the City shall have the night to draw down the escrow funds to pay any financial obligation due the City Seven (7) days after a scheduled concert. 11 012 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 obllgadon (for example, deanup of the premiss) that the Promoter breaches. In the event the Gly draws funds from the escrow account, the Promoter shall, within seven (7) days of the GNs withdrawal of funds deposit sufficient funds Into the escrow account to restore the balance of the fund to $10,000. The City shall return to the Promoter any funds remaining in the escrow account no later than November 1, 2011. 15. Concerts for Future Years During the tens of this Agreement the City and the Promoter shall negotiate a multi-year agreement if it is in the hest Interests of each party. 16. Amendments Any amendment to this Agreement shall be in writing. 17. Endre Agreement This agreement constitutes the entire agreement between the City and the Promoter and all prior discusskns and agreements concerning the 2011 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 choke 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. 11 012 WATERFRONT CONCERTS, LLC Witness Name: Alexander Gray Title: Sr. Booking Agent - Maine CITY OF BANGOR Witrless Name: Title: 6fyev r. 4V� zam EXHIBIT B BLACKOUT DATES Jury 0, 2011: Fireworks Display 11 012 July 10, 11, & 12: United Maine Craftsman Craft Show & Penobscot River Revival Event. (Note: The Craft Show typically occupies the Main St. Railroad Street owner. An alternative may be discussed as an option) August 12, 13, & 14: KahBang Music and Ahs Festival August 23, 24, 25, 26, 27, & 28.. September 10, 2011: Convention and Visitors Bureau Car Show (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.) September 1 B, 2011: Susan B. Kamen "Race for the Cure" EXHIBIT C 11 012 City of Bangor Waterfront and Park Facility Event Permit Policy 1.0 Purpose The City of Bangor recognizes and values the importance of special events, whether public or private. When public, they can enhance the quality of fife through offering cultural, recreational, or educational opportunities as well as providing economic benefit to the community. These events are typically organized by dedicated volunteers or community groups, and may be sponsored by organizations or individuals. Private events can enceumge a broad and varied use of public facilities and promote those facilities. The City of Bangor Waterfront and Park Event Permit Policy covers defined areas of the Waterfront and certain facilities in City parks, excluding Bass Park and the Bangor Municipal Goff Course. This policy is designed to ensure effective coordination of events throughout the year. 2.0 Policy It is the policy of the City of Bangor to accommodate events on the Waterfront or in Public Parks where such events are determined to meet the purpose of this policy while permitting the general public to either participate in the event or to continue to use the park or, at minimum, sufficient areas within the park for the normal purposes for which they are intended. 3.0 Definitions 3.1 Event: An organized activity that has a predefernined start and end, a duration of 3 days or less, and that takes place no more than once per year. 3.2 Non ProfillCommunity Open Event These are events that include, but are not limited to, festivals, performances, competitions, or other organized public events where public property will be used. These events do not benefit an individual or a'for profV organization, although they may raise funds for a charitable purpose. Such events may be sponsored by a for-profit entity; however, proceeds of the event, If any, must be used or a non-profit purpose. A non-profit organizer may be required to provide confirmation of that group's non- profit status. 3.3 For Profit Open Event: An event held for the purpose of profiting a business or individual or for promoting a product or service provided by or associated with a for-proft entity. 11 012 3.4 City Open Event: An event sponsored solely or in combination by Me City, a City department, an organization sponsored by the City, or an organization on whose Board the City is represented. 3.5 Private Events: Events where attendance is limited to specific inwrees or identifiable groups such as family members, employees of an organization, or members of a club. They include, but are not limited to, wedding ceremonies, family gatherings, company phonics, or other similar events that are not intended for the public. 3S Waterfront: For purposes of this policy, the waterfront shall include all land owned and controlled by the City as follows: along the Penobscot River from its confluence with the Kenduskeag Stream to Dutton Street; adjacent to Railroad Street; and bounded by Railroad and Main Street. Area also includes a parcel west of the railroad tracks which is bounded by Railroad Street and Main Street. See Appendix A for a map detailing the above definition. 3.7 Park Facility: Those facilities located within City Parks available for scheduled exclusive use to include: special purpose athletic fields such as baseball, softball, and soccer fields; the Bandstand at Paul Bunyan Park; the bridge and Gazebo at Cascade Park; and such other facilities as may be designated for such use by the Director of Parks and Recreation based on the level of demand. 4.0 Permit Required. Any event which will make use of any area of the waterfront or any park facility covered by this policy or which will significantly limit the ability of the general public to use the waterfront or any significant area within it must be permitted by the Bangor Department of Parks and Recreation. In considering whether a permit shall be granted, the Director of Parks and Recreation or designee shall take into consideration the following: 4.1 whether the event is appropriate for the requested area or facility; 4.2 the health, welfare, and safety of event participants and the general public; - 4.3 the impact of Me event of City staffing and the ability of such staff to continue to provide normal daily services; 4.4 whether the requested event conflicts or is incompatible with other events already permitted for that Pads or area; 4.5 The limitations the event will place on public use of the area, if any. Permits are not required for events sponsored by the Department of Parks and Recreation including such activities as scheduled athletic events and tournaments. u 012 5.0 Permit Procedure Applications for a permit shall be submitted to the Department of Parks and Recreation on an application form provided by the Department. Applications for a permit cannot be submitted prior to December 14 of the year prior to the year the event will be held. Events that recur each year must submit an application each year. 5.1 Applications for any event must be received by the Parks and Recreation Department 30 calendar days prior to the first day of the event- 5.2 vent5.2 Applications must be accompanied by a $25 non-refundable fee payable to the City of Bangor. 5.3 When applicable and available, event promotional material and sponsor information should be submitted with the application. 5.4 The permit application must be complete, including any supporting documentation requested. Incomplete applicationswill be returned and not considered until they are complete. 5.5 Any event that is not open to Me public or for which an entrance fee or donation is expected must clearly set forth in the permit application the park facility or area of the waterfront to be used for the event 5 6 Upon receipt of an event application, the Department of Parks and Recreation may notify other City Departments, as appropriate, and request that they provide review and comment prior to approval. 5.7 If necessary, the Parks and Recreation Department may request that the applicant provide any additional information required to adequately review the request. 5.8 The applicant will be noted no later than 30 working days after receipt of the application, or 15 days prior to the date of the event where the application is received within 45 days of the event, of the status of the request, any conditions that the Department will require, and an estimate of the amount of reimbursement that will be necessary for the City to provide staff and services W support the event, fi any. These deadlines may be waived at the discretion of the Director of Parks and Recreation where the nature of the event allows for a mom rapid review and where the facility or waterfront area requested is available.. 5.9 Where more than one application is received for an event and the events are incompatible, permits shall be processed in the order in which they are received. 6.0 Other Requirements it 012 6.1 Any event on the Waterfront must either be open to the public or located in an area defined by the permit which will limn public access to the event while allowing the public access to other areas of the park. Any areas designated for the use of only event participants shall be clearly defined on any per0 application, including the specific time period during which the area will be closed to the public. 6.2 Proof of insurance must be provided for all open events. Coverage shall include comprehensive general liability insurance or public liability insurance either spec to the proposed event or covering all activities of the sponsoring organization and must provide coverage of at least $400,000 per claim/$ 1,000,000 annual aggregate. The City may require a higher amount rf it dome it necessary. The City may require insurance for private events at the discretion of the Parks and Recreation Director or designee. A current certfcate of insurance indicating that the City of Bangor is an additional named insured must be provided no later than ten days prior to the date of the event. When insurance is required, this certificate must be provided before the actual event permit is issued. 6.3 The permit holder is responsible for clean up during and at the antl of the event, including removal of all event equipment and trash and restoring the area to its preevent condition within 48 hours after completion of the event. The permit holder is responsible for any damage to public property resulting from the event. At the sole discretion of the Director of Parks and Recreation or designee, a cleaning deposit and/or damage deposit may be required prior to permit issuance. 6.4 Applicants are strongly discouraged from promoting any proposed event to the public until the peril has been approved. 6.5 Any refreshments provided during open events must be served in plastic containers. 66 Open event organizers must provide the number of portable restroom facilities required by the event permit, such number to be based on expected attendance. 6.7 The permit holder shall be solely responsible for ensuring that any vendors associated with the event have the appropriate perils and licenses required by City ordinances. Information regarding permits and licenses may be obtained from the City Clerk. 6.8 Events shall comply with current noise ordinances. Noise, including live music, worded music, public address systems, etc. shall be limited to levels and times allowed under the City of Bangor Code. 6.9 Alcoholic beverages are generally not permitted. Approval may, however, be granted for alcoholic beverages at events on the Waterfront upon a showing by applicant that appropriate safeguards, including the Il 012 possession of a valid liquor license issued by the State at Maine, are in place to ensure public safety and welfare.. Where serving or selling alcoholic beverages is requested, the permit will be subject to review and approval by the Bangor Police Department and any requirements placed on the permit by the Police Department shall be adhered to throughout theevent. Non-compliance will result in the immediate revocation of the event permit. The pemut holder agrees to specifically indemnify the City against any and all claims which are in any way related to alcohol consumption. 6.10 Any disturbance of the surface of an area or facility required to erect a tent, other structure, or for any purpose whatsoever, must be specifically approved by the Director of Parks and Recreation or designee. This may include the requirement of weighted supports rather than stakes. Permit holders shall be responsible for any damage caused to in -ground utilities or installations should a surface be disturbed at any non -approved location. 6.11 The permit holder agrees to abide by all other applicable City ordinances not specifically mentioned in this policy. 7.0 Miscellaneous 7.1 Events lasting longer than three days may be considered but shall be subject to approval by the C'Ty Council Committee with jurisdiction over the Parks and Recreation Department. T2 Any area covered by this policy shall othenvise be available to the public when not in use for a permitted event or otherwise closed to the public by the Director of Parks and Recreation. 7.3 The City of Bangor Parks and Recreation Department is responsible for the administration of this policy and for its periodic review and revision.