Bayville Overseers-BBH Agreement-08


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"Peace agreement"
The long term agreement between Boothbay Harbor and Bayville Village Corporation was signed by the Boothbay Harbor Selectmen on April 14, 2008 and was approved by the Boothbay Harbor voters at their Town Meeting on May 3, 2008. The Bayville Overseers have signed the agreement and it will be presented to the Bayville voters for approval at a special village meeting on July 5, 2008 just before the Bayville Improvement Association meeting. The Bayville Overseers Jim Coleman Chesterton 500 Unicorn Dr. Woburn, MA 01888 USA Phone: 781.481.2394 Cell Phone: 617.834.5104 Fax: 781.481.2336
Bayville Overseers & Boothbay Harbor Selectmen sign Agreement to conclude secession debate, April 2008
We Overseers are, I hope, near the end of our long course of discussions with Boothbay Harbor. Last week the Selectmen there and we Overseers signed off on an agreement between the two towns to bury our weapons for at least 25 years, and hopefully longer. A copy of what was signed is attached. The agreement will become effective if approved both by the Harbor voters at their meeting on May 5 and by the Bayville voters at a special meeting that we will propose to coincide with the Improvement Association meeting on the morning of Saturday, July 5. A notice of the Bayville special meeting will be mailed to each voter, and a warrant will be posted prior to it. The only item proposed for the special meeting will be an article asking whether Bayville will approve the agreement. Chuck Wolfram April 21, 2008
*Agreement as Signed* This Agreement is made as of this _______ day of April 2008 by and between the TOWN OF BOOTHBAY HARBOR, a body politic and corporate (“Boothbay Harbor”), and BAYVILLE VILLAGE CORPORATION, a body politic and corporate (“Bayville Village”). Boothbay Harbor and Bayville Village are sometimes hereinafter collectively referred to as the “Parties”. Any term in this Agreement wherever used or defined and printed with initial or all capital letters shall have the meaning ascribed to such term. RECITALS 1. Boothbay Harbor was incorporated by the State of Maine on February 16, 1899 and is located in the County of Lincoln, State of Maine. 2. Bayville Village was created in 1911 by “An Act to incorporate the Bayville Village Corporation,” Chapter 227 of the Private and Special Laws of 1911, (“Bayville Charter”) and is located within the territorial limits of Boothbay Harbor. 3. The rights, duties and obligations between Boothbay Harbor and Bayville Village are governed by the Bayville Charter. 4. From the date of the creation of Bayville Village to the date of this Agreement, the Bayville Charter has not been amended. 5. The Bayville Charter in section 5 states that Boothbay Harbor shall collect the property taxes on property within Bayville Village and shall pay to Bayville Village 60% of those taxes (“Tax Split”). The payment to Bayville Village by Boothbay Harbor of Bayville Village’s share of the taxes does not require approval of a vote by a town meeting of Boothbay Harbor. 6. In recent years, there have been unsuccessful attempts to have the Maine Legislature alter the Bayville Charter to change the Tax Split which has caused the Parties to spend large sums for legal and lobbying costs and fees. 7. Boothbay Harbor and Bayville Village desire to end all attempts to amend, alter or repeal the Bayville Charter and to restore the amicable relationships between the Parties. 8. Boothbay Harbor and Bayville Village further desire to provide compensation to Boothbay Harbor for revenue shortfalls caused by the inclusion of 100% of Bayville Village’s real estate valuation in the total Boothbay Harbor tax valuation for the purposes of determining State aid (“State Aid Loss”). The State Aid Loss is caused by shortcomings in the State’s formula for determining it and not by any act or failure of either Bayville Village or Boothbay Harbor. Bayville Village has no prior obligation to compensate Boothbay Harbor for the State Aid Loss. NOW THEREFORE, in consideration of the foregoing, the representations, warranties and covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which hereby is acknowledged, and intending to be legally bound, the Parties hereby agree as follows: Section 1. Recitals. The Parties covenant and agree that all of the above recitals are true and correct and are binding upon them as covenants of this Agreement. Section 2. Term. (a) Notwithstanding the date of execution of this Agreement, the Original Term of this Agreement shall be a period of twenty-five (25) Years beginning on the Commencement Date. (b) As used herein, the term “Commencement Date” shall mean the date on which the last of the following events shall have occurred: i. Boothbay Harbor, at a duly called town meeting, shall approve by a majority vote a specific warrant article for the adoption, ratification and confirmation of this Agreement and the approval of the Selectmen’s execution of this Agreement; ii. Bayville Village, at a duly called town meeting, shall approve by a majority vote a specific warrant article for the adoption, ratification and confirmation of this Agreement and the approval of the Board of Overseers’ execution of this Agreement; and iii. The first April 1^st after both affirmative town meeting votes in subsections (i) and (ii) above. The term “Year” shall mean the period from April 1^st to April 1^st. The Parties each agree to hold a town meeting for approval of this Agreement as soon as practical after its execution. Unless Terminated as hereinafter provided, this Agreement shall automatically be renewed for successive five (5) year periods (each a “Renewal Term”) indefinitely. Each Renewal Term shall be on the same terms, covenants and conditions as are contained in this Agreement. No instrument or other written document is necessary to establish a Renewal Term. Section 3. Termination. This Agreement may be terminated: i. By Notice of Termination sent during the twenty-fifth (25^th) Year of the Original Term; or ii. By Notice of Termination sent during the fifth (5^th) Year of any Renewal Term. (a) Notice of Termination to be effective must be approved at a duly called town meeting of the Party seeking Termination. The giving of a Notice of Termination must be in a separate warrant article seeking approval by the voters of such Termination. (b) In order for a Notice of Termination to be effective, it has to be delivered no earlier than April 2^nd or later than October 1^st of the last Year of either the Original Term or the last Year of a Renewal Term. Notice of Termination means a written communication stating that a Party has Terminated this Agreement effective at the end of the Original Term or the end of any Renewal Term. Unless and until Terminated as provided herein, this Agreement shall remain in full force and effect throughout its entire Original Term and any Renewal Term. Section 4. Amendment. Except as provided in this section, this Agreement may not be amended except: (a) At any time upon the affirmative vote on an article for an amendment or Termination at regular or special town meetings of both Bayville Village and Boothbay Harbor; and (b) If the current state formulas for state aid are changed, or if there are changes in any statutory or case law, rules or regulations, and such change or changes materially impact inequitably either Boothbay Harbor or Bayville Village, the Parties agree to enter into negotiations to arrive at an amendment to this Agreement to address any such inequity. Such an amendment will become effective on approval by a majority of the selectmen of Boothbay Harbor and a majority of the overseers of Bayville Village and would not be subject to the requirements of Clause (a) above. Section 5. Charter Change. Boothbay Harbor and Bayville Village covenant and agree that neither of them will, directly or indirectly, pursue, support, or advocate any change, amendment or alteration of the Bayville Charter, including without limitation, any change in the Tax Split or any secession of Bayville Village from Boothbay Harbor or any local actions or state legislative actions that would, directly or indirectly, affect the Bayville Charter (all hereinafter collectively, the “Charter Change”). Boothbay Harbor and Bayville Village covenant and agree that they will not, directly or indirectly, by themselves, through other governmental entities or private entities, or by citizens’ groups or individual, pursue, support or advocate any Charter Change. The Parties covenant and agree that they will indicate in writing to the State Legislators representing Bayville Village and Boothbay Harbor that the Parties oppose any legislative effort for a Charter Change, and the Parties will indicate in writing and in testimony their opposition to a Charter Change at any legislative hearing on any proposed legislation for a Charter Change. Boothbay Harbor and Bayville Village may pursue, support and advocate for a Charter Change if the proposed Charter Change has been affirmatively voted by town meetings of both Boothbay Harbor and Bayville Village in warrant articles specifically seeking such Charter Change. Section 6. State Aid Loss. Bayville Village covenants and agrees to remit to Boothbay Harbor an amount of money, if any, equal to the amount that Boothbay Harbor loses in State Aid due to the calculation of that State Aid being based on 100% of Bayville Village’s real estate tax value (rather than on only the 40% of that value on which the Boothbay Harbor retains such taxes as the result of the Tax Split). The amount of State Aid Loss attributable to state/municipal revenue sharing only is currently approximated to be $1,200.00 per year. Other potential sources of State Aid Loss include, but are not limited to, tree growth reimbursement, state aid to education and highway aid. The State Aid Loss shall be calculated annually based on data provided by the appropriate office of the Maine Municipal Association or upon such other data that the Parties may agree upon. Bayville Village shall request such calculation in writing from Maine Municipal Association and send a copy of its request to the Town Manager of Boothbay Harbor by August 1^st of each Year, with respect to any State Aid Loss suffered by Boothbay Harbor in the preceding fiscal year. Section 7. Boothbay Region Refuse Disposal District. Boothbay Harbor is required to pay a fee to the Boothbay Region Refuse Disposal District (“Disposal District”). Currently, Bayville Village pays a proportionate share of the Disposal District fee pursuant to a formula agreed to by Bayville Village and Boothbay Harbor. Bayville Village and Boothbay Harbor covenant and agree that the existing formula under which Bayville Village compensates Boothbay Harbor for its share of the Disposal District fee shall remain in effect during the Term or any Renewal Term of this Agreement. The Parties agree that any increase or decrease in the fee charged to Boothbay Harbor by the Disposal District will be reflected by a proportional increase or decrease in the fee to be paid by Bayville Village to Boothbay Harbor. Section 8. Default. Bayville Village agrees that, if it should violate the terms of Section 5, above, it shall reimburse each fiscal year Boothbay Harbor for the amount of expenses, costs, attorney fees and lobbying fees reasonably expended by Boothbay Harbor in resisting any Charter Change each fiscal year that Boothbay Harbor is resisting any Charter Change. Boothbay Harbor agrees that, if it should violate the terms of Section 5 above, it shall reimburse each fiscal year Bayville Village for the amount of expenses, costs, attorney fees and lobbying fees reasonably expended by Bayville Village in resisting any Charter Change each fiscal year that Bayville Village is resisting any Charter Change. Section 9. Dispute Resolution. In the event of any dispute between the Parties with respect to this Agreement above, Boothbay Harbor and Bayville Village shall, within three (3) days of written notice of a dispute from one Party to the other, designate, within ten (10) days an individual, as its representative, and each such representative will use commercially reasonable efforts to resolve the dispute promptly. If the individuals designated by the Parties are unable to resolve the dispute within five (5) days, the dispute will be promptly submitted to the full Board of Selectmen of Boothbay Harbor and the full Board of Overseers of Bayville Village (collectively the “Board”). Such Board will meet in person at least once in the ten (10) day period following the submission of the dispute to them and will use commercially reasonable efforts to resolve the dispute promptly. If such Board is unable to resolve the dispute within fifteen (15) days of the submission of the dispute to them, the Parties may exercise any rights or remedies available to them in this Agreement. If any Party fails to timely appoint a representative or submit a dispute to the Board, then the Party’s representative timely acting shall have the authority to submit the dispute to arbitration in accordance with the provisions contained in this Agreement. Nothing in this dispute resolution mechanism will preclude or restrict either Party from immediately resorting to a court of competent jurisdiction solely for the purpose of securing an injunction or for the remedy of specific performance to enforce their rights. Any controversy, claim or dispute arising out of or relating to this Agreement and not resolved pursuant to the dispute resolution mechanism above may be referred by either Party to the American Arbitration Association to be settled by arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association before a single arbitrator in Portland, Maine (or such other location as the Parties may agree), such arbitrator to be chosen by mutual agreement of the Parties or, absent such agreement, by the American Arbitration Association. Judgment upon the award of the arbitrator may be entered in any court having jurisdiction thereof. The fees and expenses of the arbitrator shall be apportioned between the Parties by the arbitrator with the findings and results of the arbitration. Furthermore, the arbitrator, in his sole discretion, may award to the prevailing Party its costs and attorneys’ fees to be paid by the other Party. Any award shall be a conclusive determination of the disputed matter, shall be final and binding upon the Parties and shall not be contested by the Parties. The arbitrator will not award punitive damages or multiple damages or any other damages not measured by the prevailing Party’s actual damages. Section 10. Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been given: (i) when delivered personally, (ii) one Business Day after being sent by nationally recognized overnight delivery service, (iii) when sent by facsimile transmission, if the sending facsimile machine receives and prints a confirmation of receipt by the receiving facsimile machine, or (iv) three Business Days after being deposited in the United States mail, certified and with proper postage prepaid, addressed as follows: If to TOWN OF BOOTHBAY HARBOR: 11 Howard Street Boothbay Harbor, ME 04538 Attention: Town Manager If to BAYVILLE VILLAGE: c/o Phil Roberts 2 Roberts Circle Boothbay Harbor, ME 04538 Any Party may change the address to which notices or other communications are to be directed to it by giving notice of such change to the other Party in the manner provided in this Section. “Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in Portland, Maine are authorized or required by Law to be closed. Section 11. Successors and Assigns and Binding Effect. This Agreement and the rights and obligations hereunder shall inure to the benefit of and be binding upon Boothbay Harbor and Bayville Village and their respective successors and assigns. Boothbay Harbor and Bayville Village each has full power and authority to enter into this Agreement, and the execution and delivery of this Agreement and the performance of the obligations of Boothbay Harbor and Bayville Village have been duly and validly authorized by all necessary corporate action. The obligations of Boothbay Harbor and Bayville Village under this Agreement constitute valid and legally binding obligations of Boothbay Harbor and Bayville Village respectively, enforceable in accordance with the terms of this Agreement. Section 12. Counterparts. This Agreement may be executed simultaneously in two or more counterparts (which may be by facsimile or electronic transmission), each of which shall be deemed to be original, but all of which together shall constitute one and the same instrument. Section 13. Interpretation. The headings contained in this Agreement are for convenience of reference only and shall in no way affect the meaning or interpretation of this Agreement. Unless the context of this Agreement expressly indicates otherwise, any singular term in this Agreement includes the plural, and any plural term includes the singular. If any term or condition of this Agreement is found to be ambiguous, the ambiguity shall not be construed in favor of or against any Party,, and all language shall be in all cases construed as a whole according to its fair meaning. Section 14. Governing Law. This Agreement shall be construed in accordance with, and the legal relations among the Parties shall be governed by, the laws of the State of Maine applicable to agreements executed and fully performed in the State of Maine. Section 15. Severability. If any provision of this Agreement shall be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement shall not be affected and shall remain in full force and effect, and the Parties shall negotiate in good faith to replace such illegal, void or unenforceable provision with a provision that corresponds as closely as possible to the intentions of the Parties as expressed by such illegal, void, or unenforceable provision. Section 16. No Waiver. The failure of any Party hereto to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such provision, nor in any way to affect the validity of this Agreement or any part of it or the right of such Party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to be a waiver of any other or subsequent breach. Section 17. Integration. This Agreement expresses the full and complete understanding of the Parties relating to the subject matter of it, and it supersedes any and all prior, contemporaneous, oral or written agreements or understandings between the Parties. There are no agreements, representations or promises between the Parties with respect to the subject matter of this Agreement which do not appear on the face hereof. IN WITNESS WHEREOF, this Agreement has been duly executed by Louis Burnham, Bruce Engert, Robert Splaine, Brian Schutrumpt, and Thomas Carbone , as Selectmen of the Town of Boothbay Harbor and Barbara B. Allison, James Coleman, Jr. Peter W. Jordan, and Charles W. Wolfram, as Overseers of Bayville Village Corporation, thereunto duly authorized as of the day and year first above written. TOWN OF BOOTHBAY HARBOR ____________________________ _____________________________ Witness By:__________________________ Its:__________________________ ____________________________ _____________________________ Witness By:__________________________ Its:__________________________ ____________________________ _____________________________ Witness By:__________________________ Its:__________________________ ____________________________ _____________________________ Witness By:__________________________ Its:__________________________ ____________________________ _____________________________ Witness By:__________________________ Its:__________________________ BAYVILLE VILLAGE CORPORATION ______________________________ _____________________________ Witness By:___________________________ Its:___________________________ ______________________________ _____________________________ Witness By:___________________________ Its:___________________________ ______________________________ _____________________________ Witness By:___________________________ Its:___________________________ ______________________________ _____________________________ Witness By:___________________________ Its:___________________________ ______________________________ _____________________________ Witness By:___________________________ Its:___________________________ STATE OF MAINE _________________, SS. April____, 2008 Personally appeared the above named ______________as ______________ of the Town of Boothbay Harbor and acknowledged the foregoing instrument to be his free act and deed and the free act and the deed of Town of Boothbay Harbor. Before me, ____________________________ Notary Public/Attorney-at-Law Print Name:___________________ Commission Expires:________________ STATE OF MAINE _________________, SS. April____, 2008 Personally appeared the above named ______________as ______________ of the Town of Boothbay Harbor and acknowledged the foregoing instrument to be his free act and deed and the free act and the deed of Town of Boothbay Harbor. Before me, ____________________________ Notary Public/Attorney-at-Law Print Name:___________________ Commission Expires:________________ STATE OF MAINE _________________, SS. April____, 2008 Personally appeared the above named ______________as ______________ of the Town of Boothbay Harbor and acknowledged the foregoing instrument to be his free act and deed and the free act and the deed of Town of Boothbay Harbor. Before me, ____________________________ Notary Public/Attorney-at-Law Print Name:___________________ Commission Expires:________________ STATE OF MAINE _________________, SS. April____, 2008 Personally appeared the above named ______________as ______________ of the Town of Boothbay Harbor and acknowledged the foregoing instrument to be his free act and deed and the free act and the deed of Town of Boothbay Harbor. Before me, ____________________________ Notary Public/Attorney-at-Law Print Name:___________________ Commission Expires:________________ STATE OF MAINE _________________, SS. April____, 2008 Personally appeared the above named ______________as ______________ of the Town of Boothbay Harbor and acknowledged the foregoing instrument to be his free act and deed and the free act and the deed of Town of Boothbay Harbor. Before me, ____________________________ Notary Public/Attorney-at-Law Print Name:___________________ Commission Expires:________________ STATE OF MAINE _________________, SS. April____, 2008 Personally appeared the above named ______________as ______________ of the Bayville Board of Overseers and acknowledged the foregoing instrument to be his free act and deed and the free act and the deed of Bayville Village Corporation. Before me, ____________________________ Notary Public/Attorney-at-Law Print Name:___________________ Commission Expires:________________ STATE OF MAINE _________________, SS. April____, 2008 Personally appeared the above named ______________as ______________ of the Bayville Board of Overseers and acknowledged the foregoing instrument to be his free act and deed and the free act and the deed of Bayville Village Corporation. Before me, ____________________________ Notary Public/Attorney-at-Law Print Name:___________________ Commission Expires:________________ Top Welcome Page

"Peace agreement"

The long term agreement between Boothbay Harbor and Bayville Village Corporation was signed by the Boothbay Harbor Selectmen on April 14, 2008 and was approved by the Boothbay Harbor voters at their Town Meeting on May 3, 2008.