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✓
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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
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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
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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.
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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.
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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.
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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.
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WATERFRONT CONCERTS, LLC
Witness Name: Alexander Gray
Title: Sr. Booking Agent - Maine
CITY OF BANGOR
Witrless Name:
Title:
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EXHIBIT B
BLACKOUT DATES
Jury 0, 2011: Fireworks Display
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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.
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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.
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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
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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
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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.