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HomeMy WebLinkAbout2017-06-12 17-209 ORDERCOUNCIL ACTION Item No. 17-20 Date: June 12, 2017 Item/Subject: Authorizing the Execution of an Agreement with Bangor Folk Festival Responsible Department: Legal Commentary: This Order will authorize the execution of a five-year agreement between the City and the Bangor Folk Festival for continuation of the American Folk Festival on the Bangor Waterfront. If approved, the Folk Festival will continue to sponsor a yearly festival on the Bangor waterfront. The City will continue to provide up to $50,000 in-kind support mostly in the form of services provided by Police, Fire, Public Works and Parks and Recreation. Currently, the Folk Festival owes the City approximately $119,000. Under the terms of the agreement and an earlier promissory note, The Folk Festival will pay $15,000 per year with the final amount paid in a lump sum. The council, in executive session, has reviewed this item. Department Head Manager's Comments: I�� M City Manager Associated Information: Budget Approval: Finance Director Legal Approval: zlvm Ci olicitor Introduced for Passage First Reading Page _ of _ Referral 17-209 JUNE 12, 2017 Assigned to Councilor Faircloth CITY OF BANGOR R4TEDFE r` (TITLE.) ORDER, Authorizing the Execution an of 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, in 2012 the Cityof Bangor and the Bangor Folk Festival entered into an agreement setting forth the rights and responsibilities of the City of Bangor and the Bangor Folk Festival; and WHEREAS, the agreement expired aafter the 2016 Folk Festival; and WHEREAS, it is in the best interests of the City of Bangor to enter into a new 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 an 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 JUNE 12, 2017 CO 17-209 MOTION MADE AND SECONDED FOR PASSAGE PASSED CITY CLER1 17-209 JUNE 12, 2017 AGREEMENT Agreement made this day of , 2017 by and between the American 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 American Folk Festival produces a folk festival in Bangor Maine that has brought thousands of visitors to the City of Bangor, involved thousands of volunteers and the support of 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 American Folk Festival; and WHEREAS, the parties executed an Agreement dated July 31, 2012 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 2021 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. In addition, the City anticipates that during the term of this Agreement it will be required to undertake certain actions on the premises described in Exhibit A pursuant to a consent decree with the United States that may impact the Folk festival. Specifically, in addition to the potential of other action, the City will be installing an underground combined sewer overflow (CSO) structure on the premises during the term of this Agreement. At these times 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 It 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. 17-209 JUNE 12, 2017 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 American Folk Festival event on the Friday, Saturday and Sunday of the event, said dates being so-called "black -out" dates for the waterfront concert series. The waterfront concert venue shall be allowed to host an event on the Thursday prior to the American Folk Festival event subject to the terms and conditions set forth in Exhibit B attached hereto. ARTICLE II TERM This Agreement shall be effective through October 31, 2021 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, City Electrical, Public Works, Parks & Recreation, 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. 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 or to provide 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 value of in-kind service agreed to be provided by the City for the Folk Festival event has not been fully used, the remainder of the balance may be used for 17-209 JUNE 12, 2017 such other Folk Festival events within the City during until the following Folk Festival event. ARTICLE IV — PROMISSORY NOTE The Folk Festival shall execute a Promissory Note for the benefit of the City in the amount of $119,993.56, said Note to be in substantially the same form as Exhibit C, 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 — LAWS, ORDINANCES, RULE AND REGUALTIONS The Folk Festival shall comply with all Federal, State, and local laws, regulation, ordinances and policies and shall take all necessary and appropriate actions to ensure that vendors and performers at the Folk Festival shall comply with all Federal, State, and local laws, regulation, ordinances and policies. The City and the Folk Festival acknowledge and agree that the Maine Department of Environmental Protection has granted the City of Bangor and exemption from noise regulations subject to certain conditions as set forth in Exhibit D attached. The Folk Festival shall abide by and comply with all Maine Department of Environmental Protection requirements as set forth in Exhibit D in order that the City does not lose its exempt status ARTICLE VIII - LIABILITY AND PROPERTY DAMAGE INSURANCE The Folk Festival, during the entire term of this Agreement, or any extension thereof, shall maintain, at its sole expense, insurance of the following types with companies authorized to do business in the State of Maine for the protection of the City of Bangor, 17-209 JUNE 12, 2017 who shall be named as an additional insured against all claims, losses, costs or expenses arising out of injuries to persons whether or not employed by Folk Festival or damage to property whether resulting from acts, omissions, negligence or otherwise of the Folk Festival, its directors, officers, employees and agents and arising from the Folk Festival's use of the premises or any part or portion thereof. Bodily Injury $400,000.00 each occurrence Comprehensive Property Damage $400,000.00 each occurrence Worker's Compensation Insurance ARTICLE IX — INDEMNITY A. General Indemnification — The Folk Festival shall defend and hold the City, and its inhabitants, officers, employees and agents completely harmless from and against any and all liabilities, losses, suits, claims, judgments, fines or demands arising by reason of injury or death of any person or damage to any property, including all reasonable costs for investigation and defense thereof (including but not limited to reasonable attorneys' fees, court costs, and expert witness fees), any nature whatsoever arising out of or incident to this Agreement and/or the use, occupancy, conduct, or management of the leased premises or the acts or omissions of the Folk Festival's officers, agents, employees, contractors, subcontractors, licensees, or invitees, unless such injury, death, or damage is caused by the negligence of the City. The Folk Festival shall give to the City reasonable notice of any such claims or actions. The Folk Festival shall also use counsel reasonably acceptable to the City in carrying out its obligations under this Article. B. Folk Festival's Waiver of Workers' Compensation Immunity - The Folk Festival hereby expressly agrees that it will defend, indemnify and hold the City of Bangor, its inhabitants, officers, employees and agents completely harmless from any and all claims made or asserted by the Folk Festival's agents, servants or employees arising out of the Folk Festival's activities under this Agreement. For this purpose, the Folk Festival hereby expressly waives any and all immunity it may have under the Maine Workers Compensation Act in regard to such claims made or asserted by the Folk Festival's agents, servants or employees. The indemnification provided under this paragraph shall extend to and include any and all reasonable costs incurred by the City of Bangor to answer, investigate, defend and settle all such claims, including but not limited to the City of Bangor's costs for reasonable attorneys fees, expert and other witness fees, the cost of investigators, and payment in full of any and all judgments rendered in favor of Folk Festival's agents, servants or employees against the City of Bangor in regard to claims made or asserted by such agents, servants, or employees. 17-209 JUNE 12, 2017 ARTICLE X - 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 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. 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 XI - 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 17-209 JUNE 12, 2017 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 XII - 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, American Folk Festival, PO Box 1206, Bangor, Maine 04402, or to such other respective addressees as the parties may designate to each other in writing from time to time. ARTICLE XIII - 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. 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: AMERICAN FOLK FESTIVAL Name: Title: 17-209 JUNE 12, 2017 EXHIBIT B Thursday WFC event 1. Front Street will be secured so that vehicle access from Railroad Street will be prohibited. 2. The AFF retains a presence on Railroad Street and in City parking lots along Front Street and WFC will adjust its use accordingly so as not to conflict. 3. WFC security to take appropriate steps to try to prevent concert attendees from doing damage to the Folk Festival site. 4. WFC will shrink-wrap any porta potties that belong to the Folk Festival and place notices inside the shrink-wrapping and denote which event they are for. 5. WFC grounds personnel will clean any trash containers that the City provides for AFF on Railroad Street by 8:00 a.m. Friday if they are used by WFC attendees. 6. AFF sponsor signs and banners will be places where and when they usually are placed. WFC is not required to allow Folk Festival banners or signage to be affixed to its fence. 7. WFC shall notify the AFF no later than May 24t1i of each year whether WFC will have a Thursday concert. 8. WFC to add AFF as a named insured for the period of the WFC event. 9. WFC shall pay to the AFF $1.00 per ticket with a minimum guarantee of $10,000. 10. WFC will ensure that there is no conflict between its electrical hookup needs and those of the AFF. 11. Concert and sound checks must be coordinated with AFF production staff if to begin before 2:00 pm. WFC shall not have an all -day event. 17-209 JUNE 12, 2017 �5 Legend. 1 Two Rivers Stage 2 Railroad Stage 3 Railroad Stage Parking Area * 4 Main Festival Area * Traffic path for artist and tech access to the Railroad Stage, the City of Bangor's Mobile Command Unit, the portable office trailer that serves as the "Bucket Counting" location, and a tent from which Bucket Brigade volunteers are dispatched." Setup dates on each night to be determined by the City Manager or ' their designee each year 17-209 JUNE 12, 2017 EXHIBIT C PROMISSORY NOTE AND AGREEMENT LENDER/CREDITOR: City of Bangor, 73 Harlow St., Bangor, Maine 04401 BORROWER/DEBTOR: Bangor Folk Festival 85 Texas Avenue, Bangor, Maine 04401 with a mailing address of P.O. Box 1206, Bangor, Maine 04402 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: One Hundred Nineteen Thousand Nine Hundred Ninety-three Dollars and Fifty-six Cents ($119,993.56) 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 $15,000.00. The first installment being due on November 1, 2017 and the last such installment due on November 1, 2021, 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. 17-209 NNE 12, 2017 DEBTOR does hereby waive presentment, demand, protest, notice of protest, demand and/or of dishonor, and the DEBTOR hereby waives, to the extent 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 STATE OF MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION PAUL R. LEPAGE GOVERNOR December 23, 2014 Jeremy Martin, Director Code Enforcement Division City of Bangor 73 Harlow Street Bangor, ME 04401 RE: City of Bangor's Waterfront Concert Venue Dear Mr. Martin: 17-209 JUNE 12, 2017 EevuoM�y� o+ee PATRICIA W. AHO COMMISSIONER This letter is in response to your October 6, 2014 letter concerning the City's Waterfront concert venue. The City has requested a determination from the Department that the Waterfront concert venue be allowed to meet the exemption in the Department's Rules concerning the Control of Noise (06-096 Chapter 375 (10)(C)(5)g) for occasional cultural events allowed by a municipality, provided the only affected protected locations are contained within that municipality. The following is a brief summary of the permits issued by the Department for the waterfront development: • The Department first issued a permit for the reconstruction of the waterfront bulkhead and the marina in Department Order #L -22011 -L6 -A -N, dated September 30, 2004, pursuant to the Natural Resources Protection Act. • In Department Order #L -22011 -28 -B -N, dated April 29, 2009, the Department approved the development of the Bangor Waterfront Park, pursuant to the Site Location of Development Act (Site Law). • On September 12, 2012, in Department Order #L -22011 -28 -J -B, the Department issued a Site Law amendment for the realignment and regrading of the concert venue. At that time, the concert stage was proposed to be temporary. • In the spring of 2013, the Department determined that the operator of the concert venue, Waterfront Concerts, LLC, erected a permanent stage and made several other improvements at the facility. The Department is processing a minor amendment application to update the Site Law permit for these improvements. To support the City's assertion that the Waterfront concert venue continues to be exempt from the Site Law noise Rules, the Department understands that the City hired Acentech, Inc. to monitor sound levels at several locations, analysis the data, and prepare recommendations for the City. Acentech, Inc. monitored sound levels near the venue, one at the nearest protected location in Bangor, one at the Brewer Public Library, and at the mix station in the concert venue for a AUGUSTA BANGOR PORTLAND PRh:SQUH ISI.h: 17 SI ATF HOUSE STATION 106 HOGAN ROAD, SLWIT 6 312 C:1NCO ROAD 1235 CI;N,rRAI, DRIVE., SKYWAY PARK AUGUs'r.4, NIAINP.O 04331-0017 BANGOR, MA1Nl::04401 PR-17.AND , MAINP.04103 PRESQUE. ISLE, N�IAINP.04769 (207) 287-7688 FAX: (20?) 287-7826 (207) 741-437(1 FAX (2117) 941 4.584 (207) 822-1300 FAX: (207) 822-(3(13 (207) 764-0477 FAX: (207) 760-3143 ..cb ertc: wwa.mamc.gov/dcP 17-209 JUNE 12, 2017 Letter to Jeremy Martin (December 23, 2014) Page 2 of 3 number of concert events in 2014. These measurements were used by Acentech, Inc. to make a series of recommendations in order to control the sound levels produced during concert events at the venue to minimize the impacts to neighboring municipalities. The City currently has approximately 50 events at the waterfront over the course of a year, of which 20 to 25 are concerts promoted and operated by Waterfront Concerts, LLC, under contract with the City. The Department understands that the City is proposing the following measures to address noise concerns from the Waterfront concert venue: 1. During concert events, the City will continuously monitor sound pressure levels in the standard 63 Hz octave band at the venue mix location, and the 1 -minute (Leq) sound level will be logged every minute at the venue mix location and the Brewer location. 2. The City has instituted a noise complaint registration system where individuals can contact the Bangor Police Department to express their noise concerns. 3. The City will consider concert events to have exceeded the sound level limits if: a. The 1 -minute (Leq) sound level at the 63 Hz exceeds 115 dB at the venue mix position; or, b. There are more than 10 instances where the 1 -minute (Leq) sound level at 63 Hz exceeds 110 dB at the venue mix position. 4. The City is negotiating a contract extension with Waterfront Concerts, LLC through 2021 that will include the noise control recommendations listed here, as well as for appropriate penalties to enforce noise level violations. The City will provide copies of the contract extension to the Department. 5. The City will continue to enforce its cutoff time of 10:30 pm for concert events on Sunday through Thursday, and 11:30 pm for events on Friday and Saturday. The City will continue to encourage Waterfront Concerts, LLC, to make best efforts to end concerts by 10:00 pm on Sunday through Thursday, and 11:00 pm on Friday and Saturday. The Department appreciates the efforts the City has made in addressing noise concerns at the Waterfront concert venue. The Department has concluded based on the City's proposal, recommendations, and the Acentech, Inc. sound report, that concert events held at the Waterfront concert venue can be considered to meet the exemption in the Department's Noise Rules (Chapter 375 (10)(C)(5)g). Please note that the Department has made this conclusion of exemption to the Department's Noise Rules based on the evidence in the record and the unique circumstances of this case, and this conclusion should not be used at other developments. To ensure this exemption continues to be met moving forward at the Waterfront concert venue, the Department requests the City to provide the following measures: 1. The proposed measures listed above will continue to be enacted by the City, including the continued use of the noise complaint registration system. 2. The number of concert events is limited to less than 20 to 25 events per year. 3. The City will submit sound monitoring results each year, within 60 days of the end of the concert season. The results should contain readings from the venue mix station, and 17-2'9 JUNE 12, 207 Letter to Jeremy Martin (December 23, 2014) Page 3 of 3 nearest protected location in Brewer. Results shall be submitted for a period of five years starting in 2015. For future concert events, the Department would consider a neighboring municipality to be affected if any concert's sound levels caused the A -weighted hourly average ambient sound levels to increase by more than 10 decibels. If the Department finds this exemption has not been properly applied, it may re-examine the project's noise impacts and may impose additional terms or conditions as appropriate. If you have any questions please call me at (207) 446-9026 or e-mail me at Jim.R.Beyer@maine.gov. Sincerely, JAMES R. BEYER Regional Licensing and Compliance Manager Division of Land Resource Regulation Bureau of Land & Water Quality Eastern Maine Regional Office — Bangor C: Mark Bergeron, DEP