This agreement was entered into between the Towns of Yarmouth and Cumberland in 1989 to regulate ferry service between Cousins Island and Chebeague Island. It expired on January 1, 2000. As of the summer of 2000, no renewal of the agreement has been reached, despite repeated efforts between the two towns to do so.

AGREEMENT

WHEREAS, the Towns of Yarmouth and Cumberland have a long history of mutual cooperation between municipal governments; and

WHEREAS, the Towns of Cumberland and Yarmouth have common interests in docks on Chebeague Island in Cumberland and on Cousins Island in Yarmouth; and

WHEREAS, the docks on Chebeague Island and Cousins Island are used by residents of both Towns, particularly residents of Chebeague Island traveling by ferry between Chebeague Island and Cousins Island; and

WHEREAS, the Cumberland County Superior Court issued an "Amended Judgment and Order" in the case of Town of Yarmouth v. Chebeague Transportation Company, Docket No. CV-86-722, (Cumberland County Sup. Ct. 1988), which "Amended Judgment and Order" restricts the use for commercial purposes of certain property located on Cousins Island, owned by Winifred Blanchard and leased to Chebeague Transportation Company for use as a parking lot and as a staging area for barging, which land is described as Plot #1 on a plan entitled "Section No. 1, Plan of Partition of Nancy H. Hamilton Estate," which plan is recorded in the Cumberland County Registry of Deeds in Plan Book 22, Page 3, which property and the right of way thereto (across property, now and formerly owned by Barbara A. Sewell) is also shown on a plan entitled "Plan of lands Along Wharf Road, Cousins Island," recorded in said Registry in Plan Book 58, Page 46, and to which plans specific reference is made herein, and which property is also the subject of an Agreement dated November 16, 1976, between the Town of Yarmouth and Robert G. Blanchard and Chebeague Transportation Company, which reserves for residents of the Town of Yarmouth fifteen parking spaces in the commercial parking facility operated by Chebeague Transportation Company on said Blanchard property; and

WHEREAS, Chebeague Transportation Company, a Maine corporation, operates a passenger ferry between Chebeague Island and Cousins Island, using the Town docks on each island for passenger service, and operates a barge from an area of the Porgy Shore and a parking lot, both on the land leased from Winifred Blanchard on Cousins Island in close proximity to the Cousins Island Wharf; and

WHEREAS, the Town of Yarmouth amended its Traffic Ordinance May 24, 1988, to limit vehicular access to the dock end of Wharf Road (on a seasonal basis) to reduce traffic congestion and otherwise minimize the threat to vehicular and pedestrian safety in the area adjacent to the Cousins Island Wharf; and

WHEREAS, the Town Councils of the Towns of Cumberland and Yarmouth have participated in a series of meetings in recent years relative to problems associated with parking, barging and dock usage on Cousins Island by passengers of the Chebeague Transportation Company ferry, and those meetings have resulted in joint endeavors to alleviate or reduce the problems; and

WHEREAS, the Town Councils of the Towns of Cumberland and Yarmouth have continued to communicate in an effort to resolve differences that exist between residents of Cumberland, especially of Chebeague Island, and residents of Yarmouth, especially of Cousins Island over uses of the Cousins Island dock by the Chebeague Transportation Company and its passengers and other customers; and

WHEREAS, the Towns of Cumberland and Yarmouth recognize that the mutual problems arising out of the use of Yarmouth's dock by the Chebeague Transportation Company and the resulting traffic, congestion, noise and other burdens are susceptible to resolution by agreement between the Towns, and that such agreement to be effective may require the joint exercise of municipal power, as authorized by 30-A M.R.S.A. '2203 (Supp. Pamph. 1988); and

WHEREAS, the Towns of Yarmouth and Cumberland recognize the importance of the use of the Cousins Island dock by Cumberland residents living on Chebeague Island and by Yarmouth residents;

NOW, THEREFORE, be it mutually agreed between the Town of Cumberland and the Town of Yarmouth pursuant to 30-A M.R.S.A. '2203 (Supp. Pamph. 1988), as follows:

1. The Town Councils of the Towns of Yarmouth and Cumberland shall limit Chebeague Transportation Company's ferry landings, either by ordinance or by agreement with Chebeague Transportation Company, as follows:

a. Chebeague Transportation Company, its successors and assigns, may land and dock its passenger ferry at the Cousins Island dock in Yarmouth in accordance with the "published schedule" in effect for the day of the ferry landing. In addition to those landings designated in the "published schedule," unscheduled ferry landings of the Chebeague Transportation Company may occur at the Cousins Island dock in order to enable residents of Chebeague Island to attend meetings of the Yarmouth and Cumberland Town Councils and similar governmental proceedings, to enable residents of Chebeague Island to attend special school functions during the regular school year, to enable individuals to attend funerals on Chebeague Island and to enable residents of Chebeague Island to attend and participate in recreation programs sponsored by the Town of Cumberland; provided, however, that the combined total of said scheduled and unscheduled trips shall not exceed either 71 per week or 11 per day.

b. The term "published schedule" shall mean the schedule printed and distributed to the general public, as that schedule may be adjusted on a seasonal basis or for other reasons, provided the schedule shall change no more than four times in any calendar year. The Town of Yarmouth and the Town of Cumberland shall maintain copies of the published ferry schedule to monitor compliance with this Agreement, which copies shall be updated by Chebeague Transportation Company prior to the effective date of any change. On a monthly basis Chebeague Transportation Company shall submit a certified list of actual trips to the Yarmouth Town Manager.

c. Emergency landings of the Chebeague Transportation Company shall not be counted as scheduled or unscheduled ferry landings within the meaning of subparagraph (a) above.

d. Chebeague Transportation Company shall determine, in its sole discretion, the published ferry schedule subject to the limitations specified in this Agreement, provided that the first arrival of the ferry at Cousins Island shall occur no earlier than 6:30 a.m. and the last departure from Cousins Island shall be scheduled no later than 10:45 p.m. prevailing time, and the vessel will depart no later than 11:00 p.m.

e. In the event of the temporary loss of the use of the "Islander" to provide ferry transportation as permitted herein, the Chebeague Transportation Company may utilize a vessel of equivalent or smaller passenger-carrying capacity; provided however, that a vessel of smaller passenger-carrying capacity shall if necessary be permitted to make additional trips between Cousins and Chebeague Islands in order to transport those passengers present and waiting to board the ferry for a scheduled trip, who would otherwise have been transported by the "Islander" or a vessel of equivalent size. In the event that the Chebeague Transportation Company is unable to utilize a vessel of equivalent passenger-carrying capacity to temporarily replace the "Islander," and if it appears likely that more ferry trips than the 71 per week or 11 per day specified in subparagraph 1(a) of this Agreement may be necessary to transport those passengers present and waiting to board the ferry for scheduled trips, the joint standing committee as established in paragraph 7 of this Agreement shall meet at the earliest opportunity to review the matter and to make appropriate recommendations to the Town Councils of Cumberland and Yarmouth. The Town Councils of Cumberland and Yarmouth shall meet as soon thereafter as possible to consider the recommendations of the joint standing committee and to take such action as may be necessary to alleviate the temporary need.

f. In the event that Chebeague Transportation Company replaces "The Islander" with another vessel to be used as a passenger ferry between Cousins Island and Chebeague Island, said replacement vessel shall not exceed the 46 gross registered tonnage of "The Islander" nor shall such vessel exceed presently certified capacity of "The Islander", which is 119 passengers and 3 crew, as evidenced by a certificate of inspection by the United States Coast Guard, dated June, 1988, a copy of which is attached hereto as Exhibit A and made a part hereof.

g. The parties agree that passenger transportation services for using the Cousins Island dock facilities shall be limited to those specified in this Paragraph 1.

2. The Town of Yarmouth shall amend Article V of its Harbor, Boat and Waterfront Ordinance, to allow commercial vehicles to make deliveries to the Cousins Island dock between the hours of 7:00 a.m. and 12:00 noon, provided that only non-dual wheeled vehicles shall make such deliveries. Non-dual wheeled vehicles shall not be used for the purpose of transporting multiple loads or providing for a scheduled delivery service for commercial entities. Deliveries of prescriptions medication and deliveries of meals through the Meals on Wheels program shall be exempt from this provision of the Yarmouth Harbor, Boat and Water front Ordinance.

The Town of Yarmouth shall further amend Article III, Section 111 of its Traffic Ordinance to limit vehicular access to Wharf Road beyond the intersection of Wharf Road with the right of way to the previously described Blanchard parking lot only from Friday at 3:00 p.m. to Monday at 6:00 a.m., each weekend during the period beginning May 15 and ending September 30 of each year. When a holiday during that period falls on a Monday, the period of restricted access shall extend through Tuesday at 6:00 a.m.

3. The Town of Yarmouth shall create a reserve fund for the sole purposes of providing for the maintenance and eventual replacement of the Cousins Island dock.

a. The Town of Cumberland, on an annual basis on or before July 1 of each year, shall pay to the Town of Yarmouth an amount equal to 75% of the sum of (1) the estimated annual operating and maintenance costs for the Cousins Island dock and (2) 5% of the estimated cost to replace the Cousins Island dock facility at the end of its anticipated useful life (20 years), provided that the total of such annual payment shall not exceed $5,000.00. The first such payment from the Town of Cumberland to the Town of Yarmouth shall be due on July 1, 1989, and payment shall be due annually thereafter on the same date.

b. In the event that the need to repair or replace the Cousins Island dock arises, Yarmouth shall repair or replace the dock as may be necessary; provided, however, that Cumberland's obligation to provide funding for a replacement dock shall not exceed an amount equal to its proportionate share of a dock of the same size and of the same design and materials as the present dock, unless the parties specifically agree otherwise. In the event that the funds available in the said reserve fund may be insufficient to cover the costs of the repair or replacement, Cumberland shall pay to Yarmouth an amount equal to 75% of the costs in excess of the funds available in the reserve fund, prior to the commencement of necessary repairs or replacement. The Town of Yarmouth will provide an annual accounting of sums expended for maintenance and/or replacement of the Cousins Island dock to the Town of Cumberland.

c. The payments made to the Town of Yarmouth by the Town of Cumberland pursuant to the provisions of this paragraph shall be in lieu of any schedule of docking fees, user fees, or similar fees, charges, taxes, or other monetary assessments that the Town of Yarmouth might otherwise be entitled to impose upon the Chebeague Transportation Company or its passengers for the use of the Cousins Island dock. The Town of Yarmouth shall be responsible for funding the remaining normal and anticipated costs associated with the maintenance and replacement of the Cousins Island dock and the Town or Yarmouth's ramp and float to be installed on the Cousins Island dock.

d. The Town of Cumberland shall continue to maintain sole possession of the ramp and float already installed on the Cousins Island dock, and shall be solely responsible for all costs associated with the maintenance and eventual repair of said ramp and float. The Town of Cumberland agrees that any payment hereunder will not create any ownership interest in the Cousins Island dock for the Town of Cumberland.

4. On or before July 1, 1989, the Town of Cumberland will donate to the Town of Yarmouth a ramp and float which the Town of Yarmouth will install, own and maintain at the Cousins Island dock for use by Yarmouth residents and others not associated with Chebeague Transportation Company on such terms as Yarmouth in its sole discretion determines to be appropriate. Yarmouth expressly reserves its right to enact ordinances or regulations governing the use of this float and ramp.

5. The Town of Yarmouth agrees that it will continue to allow operation of the Chebeague Transportation Company ferry service from the Cousins Island dock on a year-round basis subject to the limitations and reciprocal obligations described in this Agreement.

6. Unless sooner terminated, this Agreement shall expire and be of no further force and effect on January 1, 2000. Provided, however, that if either Town should suffer or permit a material breach of the terms hereof, the other party may cancel this agreement on six month's prior written notice, after a majority vote of its Town Council authorizing said notice; and provided further that any such notice or cancellation shall set forth the grounds of said breach and allow the other party 14 days to cure said breach, in which event said notice of cancellation shall be deemed withdrawn and of no effect. The parties recognize that in the event that Chebeague Transportation Company fails to abide by the terms and conditions of this Agreement, including but not limited to paragraph 1 hereof, the Town of Yarmouth may treat such failure as a material breach by the Town of Cumberland, and may terminate the Agreement in accordance with this paragraph.

Notification of the occurrence of a material breach shall be given in writing by the aggrieved party to the Town Manager of the opposite party, and the 14 day period to cure the said breach shall begin to run as of the date of delivery of the written notice to the Town Manager of the opposite party. Any subsequent breach shall require similar notice and opportunity to cure; provided, however, that in the event of repeated or frequent instances of material breach, including a failure by Chebeague Transportation Company to abide by the terms and conditions hereof, the right to cure shall be forfeited. A forfeiture of the right to cure shall be determined by majority vote of the Town Council of either party, and written notice of a determination of forfeiture shall be provided to the Town Manager of the opposite party. A determination of forfeiture shall serve as a notice of cancellation of this Agreement, and said cancellation shall occur 6 months from the date of determination of forfeiture.

7. A joint standing committee will be established by action of the Cumberland and Yarmouth Town Councils, and shall consist of 2 members from the Cumberland Town Council, 2 members from the Yarmouth Town Council to be appointed by each Council, to meet in Early April and early November of each year and on such additional occasions as the committee deems necessary for the purpose of implementing and overseeing this agreement and/or making recommendations to the Town Councils of Cumberland and Yarmouth relative to same. Cumberland agrees that one of its two representatives shall be the Chebeague Island District representative to the Cumberland Town Council. The committee shall have advisory power only; the Town Councils of Cumberland and Yarmouth shall be responsible for complying with and enforcing the terms of this Agreement.

8. The parties acknowledge a memorandum or lease, executed between Winifred Blanchard and Chebeague Transportation Company on October 11, 1984, for the previously described Blanchard parking lot, was recorded in the Cumberland County Registry of Deeds on October 19, 1984 at Book 6596, Page 9.

9. This Agreement may be amended, modified, or extended at any time provided that any amendment, modification, or extension shall be in writing and shall have received the affirmative vote of a majority of the members of both the Yarmouth Town Council and the Cumberland Town Council.

Dated at Yarmouth, Maine, this 6th day of June, 1989.

TOWN OF CUMBERLAND

By: Its Town Manager, /s/ Robert B. Benson

Witness: /s/ Stephen W. Moriarty

TOWN OF YARMOUTH

By: Its Town Manager, /s/ Osmond C. Bonsey

Witness: /s/ Philip E. Harriman

For more information, call CTC at 207-846-3700 or send e-mail to: ctc@nlis.net.

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