The following Q & A provides information to the Barron Park community regarding the agreement ( Donkey Agreement 8-30-2013) recently negotiated between ACTERRA , the non-profit organization that is the fiscal agent of the Donkey Project, and James Witt, owner of the donkey pasture. These issues were discussed with the Donkey Handlers, the group of volunteers who lovingly tend to the care and feeding of the donkeys, in a meeting on Sunday September 15
This Q & A was prepared by Richard Whitmore, longtime Barron Park resident and retired attorney who volunteered his time and expertise to assist Bob Frost, Head Volunteer Donkey Handler, and Michael Closson, (recently retired) Executive Director of ACTERRA, in the negotiation with James Witt.
WHAT PROMPTED THE DISCUSSIONS WITH JAMES WITT IN THE FIRST PLACE?
After fifteen (15) years of paying property taxes on the donkey pasture without reimbursement and without any written obligation to do so, James Witt contacted James Closson of ACTERRA to seek a contribution from the community to help him with his property taxes on the pasture. James Witt was seeking reimbursement of $7700 per year, the approximate pro rata amount of taxes attributable to the pasture. His position that he should be paid at least $7000 annually continued until the last stages of the negotiations.
WHO WAS INVOLVED IN THE NEGOTIATIONS WITH JAMES WITT?
Before meeting with James Witt, there was an initial internal strategy meeting in April that included Inge Harding-Barlowe, Doug Moran, Art Liberman, Gwen Luce, Bob Frost, Dick Whitmore and Michael Closson of ACTERRA. This group’s consensus was to have Frost, Whitmore and Closson at the negotiating table with James Witt.
WHY WERE MICHAEL CLOSSON AND ACTERRA INVOLVED IN THESE DISCUSSIONS?
Pursuant to a 2002 agreement with the Donkey Project, ACTERRA collects money on behalf of the donkeys and its non-profit status allows tax deductions for donors. ACTERRA also pays the premium for liability insurance covering the donkeys.
During the recent negotiations with James Witt, he indicated that he believed that he owned the donkeys since he had been ‘hosting’ them on his property for fifteen (15) years for free. We disagreed but did not feel that we could rationally argue that BPA or the Donkey Project owned the donkeys (in part because the Donkey Project does not appear to be the kind of legal entity that could own something). Logically, ACTERRA was the only alternative owner and that was confirmed in the negotiated agreement.
DID MICHAEL CLOSSON ACT IN THE BEST INTERESTS OF THE DONKEYS OR WAS HE SIMPLY CHECKING OFF AN ITEM FROM HIS LIST BEFORE RETIREMENT?
Michael was the main point person in dealing with James Witt. He spent a lot of time analyzing issues, working with Frost and Whitmore and communicating with James Witt. He was especially effective in direct dealings with Witt, who early on expressed respect for Closson. Closson expressed to everyone, including Witt, that this matter was a high priority for him and he wanted to make every effort to complete the negotiations before he retired (August 31) rather than have the parties start over.
WERE THERE PRIOR AGREEMENTS WITH JAMES WITT?
After extensive research we could only locate one prior agreement. It was the 1998 Sales Agreement between Joor Bol and James Witt for the purchase of the land. It contained a provision that the parties “will mutually agree to a deed restriction to allow the ‘pasture’ to remain so, in perpetuity.” There was no reference to the donkeys and the parties never did agree or record a deed restriction. Indeed, there was correspondence prior to the closing that appeared to ‘rescind’ this portion of the Sales Agreement. Even if the ‘perpetuity’ language had not been rescinded and had been included in a deed restriction, there appears to be some legal uncertainty about whether a promise in “perpetuity” would be enforceable.
There were discussions with James Witt about a Declaration of Easement for Mickey’s Meadow but no agreement resulted from those discussions.
There was a 2002 agreement between Leland Smith on behalf of the Donkey Project and ACTERRA regarding tax deductible donations and liability insurance, but James Witt was not a party to that agreement.
WHY WAS THERE A SLIDING SCALE FOR PAYMENTS TO JAMES WITT AND IS SUCH AN ARRANGEMENT LEGAL?
In an effort to persuade James Witt to accept an amount other than $7000 per year, we proposed to condition payments on the amount being contributed by the community. In the first year, the amount would be $3500, half of the $7000 he was seeking. In later years, the amount would vary between $3500 and $7000 depending on how much was raised in donations, less expenses.
We felt that a sliding scale was a protection for the community because it meant we would not pay if the donations were not adequate. We also felt it was a legal lease payment since it was akin to a flat amount and a percentage of “profits.”
The decision to designate payments as “rent” rather than ‘tax reimbursement’ was Mr. Witt’s.
WHAT WAS THE REASON FOR HAVING TWO FUNDRAISING WEBSITES?
At the outset of the meetings with James Witt he advised that he had reserved the domain name BarronParkDonkeys.com. He said he did so because he thought there should be a more active effort to raise funds and he predicted that such an effort would generate significantly more money than prior efforts. To make sure that ACTERRA/Donkey Project were part of the effort, ACTERRA reserved the domain name BarronParkDonkeys.org. We agreed that both websites would have links to ACTERRA and that we would cooperate in the fundraising.
HOW MUCH HAS BEEN RAISED IN THE PAST FOR THE DONKEYS AND WHAT ARE WE LOOKING TO DO IN THE FUTURE?
The average amount of funds raised for donkeys in the past is $3720. We discussed new approaches to fundraising with James Witt, including his suggestion that there be a QR code reader at the gate to the pasture so there could be instant smart phone contributions. We are also looking at special fundraising events like the one scheduled for November 3, 2013 (Notice forthcoming). Contributions will go to the “Donkey Project” at ACTERRA.
Community members have raised questions about the possibility of segregating funds donated for the donkeys. One option discussed is to separate all donations as either for care/feeding and or for rent to be paid to James Witt. Another possibility is to preserve amounts donated prior to the agreement and only apply future donations to the ‘rent’ obligations to James Witt. There will be a committee to explore with ACTERRA these two possibilities.
WHAT WOULD HAVE HAPPENED IF WE DID NOT HAVE AN AGREEMENT WITH JAMES WITT?
If we had not negotiated an agreement, there would have been no legal obligation for James Witt to keep the donkeys on his land, although he never threatened eviction of the donkeys. He did mention his interest in leasing out the land as a pasture for horses.
There was also a report that James Witt has expressed an interest in leasing plots in the pasture to community members for organic gardens.
WHY IS JAMES WITT BEING NAMED AS AN ‘ADDITIONAL INSURED’ AND WHAT IS HE BEING INSURED AGAINST?
James Witt sought to be included on ACTERRA’s liability insurance policy as an ‘additional insured.; This would mean he would be covered under the policy if a third party sued for injuries caused by the donkeys and named him as the property owner. Michael Closson conferred with ACTERRA’s insurance agent and legal counsel and concluded that naming James Witt would not be an insurance or legal problem and there would be no additional cost.
WHAT DID PERRY AND NINER GET OUT OF THIS AGREEMENT?
The donkeys for the first time have a written agreement assuring that they can stay on the land. Also, the agreement contains a promise that there can be two donkeys even if one passes away. The agreement caps the liability for taxes at $7000 per year even if taxes go up in the next eight (8) years. The agreement confirms that James Witt does not own the donkeys.
CAN JAMES WITT STILL STORE EQUIPMENT AND TRUCKS ON THE PROPERTY?
As was true prior to this agreement, James Witt can place equipment on the property since he is the property owner. There is a question about whether he can drive vehicles along the bike path to get them to the pasture. The agreement requires him to provide a pasture for the donkeys and if his storage or other actions deprive the donkeys of a reasonable habitable space then he would be in violation of the agreement.