AN ACT RELATIVE TO THE PROVINCETOWN PIER CORPORATION.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. The general court finds that:
(a) There exists within the town of Provincetown an underutilized marine and marine-related facility named MacMillan Pier that is owned by the town of Provincetown and, due to age and other factors, has become obsolete, decadent, substandard and blighted. Such pier constitutes a serious and growing menace, injurious and inimical to the safety, health, morals and welfare of the residents of the town. MacMillan Pier constitutes an economic liability, substantially impairs or arrests the sound growth of the town and retards its economic well-being. The pier both decreases the value of private investments and threatens the sources of public revenue. Redevelopment of such property in accordance with the Provincetown Harbor Plan will eliminate substandard conditions and prevent their recurrence and is necessary to retain existing industries, businesses and residents and to attract new industries, businesses and residents, and to promote the sound economic growth of the town.
(b) The menace of such obsolete, decadent, substandard or blighted property is beyond remedy and control solely by the regulatory process in the exercise of police power or direct management by the town of Provincetown, and cannot be dealt with effectively by the operations of private enterprise, without the aid provided herein. The lease of MacMillan Pier by the town of Provincetown to a public corporation to be called the Provincetown Public Pier Corporation for the purpose of bringing sound and market-based management practices to MacMillan Pier operations, eliminating decadent, substandard, or blighted open conditions therein, preventing recurrence of such conditions in the area, and permitting the removal or addition of structures and improvements of sites for marine and marine-related uses.
(c) A public corporation is necessary to ensure that the public purposes that need to be accommodated at MacMillan Pier, and any other properties that might be acquired by the corporation, are preserved. These public purposes, which are described in the Provincetown Harbor Plan, include, commercial fishing, transportation and other marine and marine-related uses.
(d) The exercise of powers by the corporation and any assistance which may be given by the town, or any other public body in connection therewith, are public uses and purposes for which public money may be expended.
Therefore, it is the purpose of the corporation created by this act to aid private enterprises, the town of Provincetown, and other public agencies in the speedy and orderly redevelopment of certain marine and marine-related property within the town to stimulate economic development.
SECTION 2. As used in this act the following words shall, unless a different meaning clearly appears from the context, have the following meanings:-
"Board of selectmen", the duly elected board of selectmen of the town of Provincetown.
"Corporation", the Provincetown Public Pier Corporation established by section 3.
"Costs of a project", all costs, whether incurred prior to or after the issue of bonds or notes hereunder, of site development, improvement, enlargement, reconstruction, alteration, machinery, equipment, furnishings, demolition or removal of existing structures, financing charges, interest prior to and during the carrying out of the project, interest for up to two years after completion of the project, planning, engineering and legal services, administrative expenses, the funding of notes issued for capital purposes, such reserve for debt service or other capital or current expenses as may be required by a trust agreement or resolution securing notes or bonds, and all other expenses incidental to the determination of the feasibility of the project to carrying out or placing the project in operation.
"Harbor Plan", the Provincetown Harbor Plan published pursuant to 301 CMR 23.00, by the Provincetown Harbor planning committee, approved by the secretary of environmental affairs on May 4, 1999, and updated from time to time by the Provincetown Harbor committee.
"Two-thirds vote", a vote of at least two-thirds of the voters of the town of Provincetown present and voting at a town meeting duly called.
"Marine and marine-related economic development project", (1) a project to be undertaken in accordance with the Harbor Plan for acquisition or leasing by the corporation of land and improvements thereon, and the development of the property so acquired; or (2) a project to be undertaken in accordance with the Harbor Plan for the rehabilitation or conservation of property, or for the demolition, removal, rehabilitation or addition of improvements whenever necessary to eliminate unhealthful, unsanitary or unsafe conditions, mitigate or eliminate traffic congestion, or eliminate obsolete or other uses detrimental to the public welfare; or (3) a project involving a combination of the foregoing types of projects.
"Marine and marine-related economic development project plan", a detailed plan, as approved from time to time by the board of directors of the corporation after a public hearing for one or more marine and marine-related economic development projects, which plan shall at a minimum indicate the boundaries of the project, a concept design and proposed uses, and an economic feasibility study. The plan as adopted will, for the purposes of chapter 30B of the General Laws be considered the plan required by clause (25) of subsection (b) of section 1 of said chapter 30B.
"Town", the town of Provincetown.
"Town manager", the person holding the office of town manager under chapter 7 of the charter of the town of Provincetown.
SECTION 3. (a) There is hereby created a body politic and corporate to be known as the Provincetown Public Pier Corporation. The corporation is a public instrumentality separate from the town, and is not an authority, board or committee of the town. The corporation is empowered to carry out the provisions of this act, and the exercise by the corporation of the powers conferred by this act are the performance of essential public functions.
(b) Notwithstanding any other general or special law to the contrary, the town, acting through the board of selectmen, may lease for a term not to exceed 20 years MacMillan Pier to the corporation, upon such terms and conditions as the board of selectmen shall determine; but redevelopment of said property shall be undertaken by the town in accordance with the applicable provisions of chapters 7,30 and 149 of the General Laws before its lease to the corporation. Subject to the applicable provisions of chapter 40 of the General Laws, the town may authorize the board of selectmen to lease or sell other town-owned property to the corporation. The terms and conditions of any such lease or sale shall be determined by the board of selectmen. The lease shall provide that the corporation may not encumber MacMillan Pier, or the corporation's leasehold interest therein without approval of the board of selectmen. The lease shall also provide that the lease shall terminate in the event that the corporation ceases to use MacMillan Pier for the declared public purpose described in section 1.
(c) The corporation may acquire, through lease, sale or any other means the property known as Fisherman's Pier subject to a two-thirds vote.
(d) The town shall not incur any financial obligation as a result of any action by the corporation, absent a two-thirds vote.
(e) For the purposes of section 11A of chapter 30A and chapter 30B of the General Laws, the corporation shall be a governmental body. The corporation shall not be subject to section 16 of chapter 30B of the General Laws. Redevelopment or improvement of any property owned by the corporation or leased by the corporation to another party, including design, development, construction and operation shall be subject to sections 38A to 38 O, inclusive, of chapter 7, section 39M of chapter30 and sections 44A to 44M, inclusive, of chapter 149 of the General Laws when customized improvements exceed the thresholds contained therein, except to the extent that the corporation enters into a ground lease which provides that title to such improvements remain with the lessee. For the purposes of clause Twenty-sixth of section 7 of chapter 4 of the General Laws, and chapter 66 of the General Laws, the records of the corporation shall be public records. Chapter 31 of the General Laws shall not apply to any person employed or engaged by the corporation under this act. For the purposes of chapter 268A of the General Laws, the corporation shall be considered a municipal agency. The members of the board of directors and employees of the corporation, together with any person who performs professional services for the corporation on a part-time, intermittent, or consultant basis, such as those of an architect, attorney, engineer, planner, or construction, financial, or real estate expert, shall be special municipal employees.
(f) The corporation shall be subject to all local by-laws and regulations of the town, including the zoning by-law and by-laws concerning the protection of foreshores and wetlands in the town.
SECTION 4. (a) The corporation shall be managed by a board of directors consisting of five members, appointed by the board of selectmen. A nominating committee shall be established in accordance with this section for the sole purpose of identifying candidates for nomination to the board of directors of the corporation. The nominating committee shall consist of two members of the harbor committee; one member of the Provincetown finance committee; and two representatives from the commonwealth having employment at either the Massachusetts Development Finance Agency, the Massachusetts coastal zone management office, or the department of environmental management office of waterways. The harbor committee members shall be designated by a majority vote of the harbor committee. The finance committee member shall be designated by a majority vote of the finance committee. The governor shall designate the representatives from the commonwealth. The pier nominating committee shall enter into an open, public and inclusive initial selection process. The nominating committee shall publicize the qualifications required to serve on the board of directors and shall actively and aggressively seek candidates to serve on the board of directors of the corporation. The nominating committee shall initially present to the board of selectmen a minimum of five candidates for the board of directors of the corporation. The board of selectmen may accept or reject any or all of the proposed candidates, and request additional names from the nominating committee. Thereafter, as vacancies occur on the board of directors, the nominating committee may present to the board of selectmen names of proposed candidates to fill said vacancies. Members of the board of directors shall have education and experience in one or more of the following fields: law, finance, marine operations and real estate and the board as a whole shall include persons with education and experience in several of these fields. Each of the five members shall be sworn to the faithful performance of his official duties as a director of the corporation. A majority of the five members shall constitute a quorum for the transaction of any business, but any action of the board of directors shall require the affirmative vote of a majority of the entire board. The board of directors shall elect from among its members a chairman, vice-chairman, clerk, treasurer and other officers as it finds necessary and determine their duties. The original members of the board of directors shall be appointed within 60 days following the effective date of this act. Of the members of the board of directors first appointed, one shall be appointed to serve for a term of one year, one for a term of two years, one for a term of three years, one for a term of four years, and one for a term of five years. All terms thereafter shall be for five years. Upon the expiration of the term of office of any member of the board of directors, or any subsequent member of the board of directors, the successor of such member shall be appointed for a term of five years. In the event of a vacancy on the board of directors, a successor member shall be appointed to complete the term of service for the member whose term has not expired; provided, however, that for the purposes of this section, service to complete the term of another member shall constitute service for one term if the balance of said term being completed is more than 50 per cent of the original term. Unless reappointed no member of the board of directors shall hold office after the expiration of his term. No member of the board of directors of the corporation shall hold office for more than two consecutive terms.
(b) Any member of the board of directors of the corporation may be removed by the board of selectmen for cause after reasonable notice and a public hearing by the board of selectmen, unless the notice and hearing are in writing expressly waived by the member of the board subject to removal.
(c) The members of the board of directors shall not receive compensation for the performance of their duties hereunder, but each member shall be reimbursed by the corporation for expenses actually incurred in the performance of his duties. Every such reimbursement shall be open to public inspection from and after the requisition therefor.
(d) The board of directors shall adopt a corporate seal for the corporation and designate the custodian thereof. The board of directors shall cause at all times accurate accounts to be kept of all receipts and expenditures of the funds of the corporation; and shall make a report annually to the board of selectmen, containing an abstract of such accounts and detailed information of all receipts and expenditures, including prices paid for property acquisition, contracts for construction of facilities and for the leasing thereof, and such other detailed information as may be helpful. The corporation shall cause an audit of its books and accounts to be made at least once in each fiscal year by certified public accountants and the cost thereof shall be treated as a current expense. Except as otherwise provided for in this act, the corporation shall have the full power to exercise care of its property and the management of its business and affairs. The treasurer shall give bond for the faithful performance of his duties, with a surety company authorized to do business in the commonwealth as surety, in such sum as the board may determine, the premium thereof to be paid by the corporation.
(e) The corporation may be dissolved only in accordance with the following procedure. Either the town manager or the board of selectmen shall make a finding that the corporation is no longer needed to provide for the sound and market-based management, operation and maintenance of MacMillan Pier, and that the purpose of the corporation as set forth in section 1 of this act has been fulfilled, or that the corporation has failed to fulfill such purposes. If such a finding is made, the board of selectmen shall hold a public hearing on whether the corporation should be dissolved. Notice of the public hearing shall be published no later than two weeks prior to the hearing date in two newspapers having general circulation in the town. After the public hearing, the board of selectmen shall make a recommendation to the town meeting as to whether the corporation shall be dissolved. Thereafter, the town meeting may by majority vote dissolve the corporation. Following a vote of dissolution by the town meeting as described herein, the corporation shall transact only such business as is necessary to conclude its affairs. Following dissolution of the corporation, the town shall assume all legal obligations, and liabilities, assets, debts, leases, contracts and all real and other property of the corporation.
SECTION 5. The corporation is hereby authorized to:-
(a) sue and be sued in its own name, plead and be impleaded;
(b) adopt rules for the regulation of its affairs and the conduct of its business and to alter the same;
(c) employ consulting engineers, an executive director, superintendents, managers, and such other employees, agents and consultants as may be necessary in its judgment, and to fix their compensation. Employees of the corporation shall not be deemed to be employees of the town; provided, however, that the town and the corporation may in writing agree to allow employees of the corporation to participate in employee insurance, retirement or other benefit programs offered to town employees;
(d) make and enter into all contracts and agreements necessary or incidental to the performance of its duties;
(e) receive and accept from any federal agency, the commonwealth or the town grants, loans or advances for or in aid of an economic development project or projects and to receive and accept contributions from any other source of either money, property, labor or other things of value, to be held, used and applied for the purposes for which such grants, loans, advances and contributions may be made;
(f) borrow money and to borrow money against its income stream and assets, and, from time to time, to make, accept, endorse and execute promissory notes, bills of exchange and other obligations of the corporation, for moneys borrowed or in payment for property acquired for any other purposes of the corporation, and to secure the payment of such obligations by pledge, indenture, agreement, assignment of leases or other instrument of trust, said borrowing may be for a term not exceeding 40 years;
(g) invest any funds not required for immediate use or disbursement in certificate of deposit or in obligations of the government of the United States or in obligations the payment of the principal of, and interest on, which is guaranteed by the government of the United States; and subject to a specific vote of the board of directors, to invest funds in any fashion in which municipal funds may be invested pursuant to the provisions of chapter 44 of the General Laws;
(h) provide such advisory services and technical assistance as may be necessary or desirable to carry out the purposes of this act;
(i) prepare or cause to be prepared plans, designs, drawings, specifications and estimates of cost for the construction, reconstruction, development, redevelopment, rehabilitation, remodeling, alteration or repair of marine-related projects and from time to time modify such plans, designs, drawings, specifications and estimates;
(j) designate property as marine and marine-related economic development projects, in accordance with the Harbor Plan;
(k) acquire and hold by bequest, devise, grant, gift, purchase, exchange, lease, judicial order or decree, or otherwise, for any of its objects and purposes, any property, either real or personal, or any interest therein; and without limiting the generality of the foregoing, to acquire by purchase or otherwise, on such terms and in such manner as it finds necessary for carrying out the provisions of this act subject to the provisions of paragraphs (b) to (d), inclusive, of section 3. The corporation shall not have the power of eminent domain. Notwithstanding anything to the contrary herein, the corporation shall not acquire any interest in real property until said acquisition has been authorized by a two-thirds vote;
(l) procure insurance against any loss in connection with its property and other assets and operations in such amounts and from such insurers as it deems desirable;
(m) improve property acquired by it, and to engage in or contract for the demolition, construction, reconstruction, development, redevelopment, rehabilitation, remodeling, alteration or repair thereof, provided that a two-thirds vote shall be necessary to authorize the construction, demolition, repair, or alteration of any building or structure located on MacMillan Pier;
(n) arrange or contract with the town for the planning, replanning, opening, grading or closing of streets, roads, alleys or other places or for the furnishing of facilities or for the acquisition by the town of property or property rights or for the furnishing of property or services in connection with a project or projects;
(o) sell, convey, mortgage, lease, transfer, option, exchange, or otherwise dispose of any property, either real or personal, or any interest therein, as the objects and purposes of the corporation may require, subject to town meeting approval only in accordance with paragraphs (b) to (d), inclusive, of section 3;
(p) manage or lease any marine and marine-related economic development project whether owned or leased by the corporation and to enter into agreement with the commonwealth or the town or any agency or instrumentality thereof or with any person, firm, partnership or corporation either public or private for the purposes of causing any project to be managed;
(q) establish and collect fees for the use of any properties owned or leased by the corporation;
(r) act with respect to one or more projects as a corporation organized under chapter 121A of the General Laws; and
(s) do all acts and things necessary or convenient to carry out the powers expressly granted in this act.
Notwithstanding the provisions of any general or special law to the contrary, the corporation may not expend money or incur any financial obligation in excess of $50,000 in the aggregate, except the annual operating budget of the corporation, at any one time without the approval of the board of selectmen.
Notwithstanding the provisions of any general or special law to the contrary, the corporation shall establish a maintenance reserve fund from the pier's lease revenues sufficient to meet the expenses of maintaining the pier in a fully operational state and avoiding any reoccurrence of the pier's obsolete, decadent, substandard and blighted state as described in section 1, including, but not limited to, routine and non-routine maintenance and the maintenance of any and all improvements. The corporation shall file an annual report with the house and senate committees on ways and means detailing all receipts, expenditures and the status of said reserve funds.
SECTION 6. No marine and marine-related economic development project, or fee, or lease, or license shall be undertaken until a public hearing relating to the project, fee, lease, or license has been held by the corporation after due notice. Further, after due notice, the corporation shall hold at least one public hearing annually to receive comments about its management and operations. Due notice of public hearings shall be given by the corporation to (1) such persons, groups and organizations as have requested in writing that such notice be given them, (2) the senator for the senatorial district of the commonwealth and the representative for the representative district of the commonwealth within which the marine and marine-related economic development project falls, and (3) the general public through a legal notice in two newspapers having a general circulation in the town published no later than two weeks prior to the hearing date.
SECTION 7. The corporation shall be liable in contract and in tort in the same manner as a municipal corporation. The directors, employees, officers and agents of the corporation shall be liable as such in contracts and tort, in the same manner as municipal employees under the General Laws. The corporation shall indemnify its employees under sections 9 and 13 of chapter 258 of the General Laws as public employees. The property or funds of the corporation shall not be subject to attachment or to levy and sale on execution, but if the corporation refuses to pay a judgment entered against it in any court of competent jurisdiction, the Barnstable division of the superior court department may direct the treasurer of such corporation to pay such judgment. The real estate owned by the corporation shall not be subject to liens under chapter 254 of the General Laws, but the provisions of sections 28 and 29 chapter 149 of the General Laws shall be applicable to any construction work by the corporation.
SECTION 8. (a) The real estate and tangible personal property of the corporation shall be deemed public property used for the essential public and governmental purposes and shall be exempt from taxation by the commonwealth or any subdivision thereof and from betterments and special assessments; provided, however, that in lieu of such taxes, betterments, and special assessments, the town may determine a sum to be paid to it annually in any year or period of years, such sum to be in any year not in excess of the amount that would be levied at the then current tax rate upon the average assessed value of such real estate, including buildings and other structures, for the three years preceding the acquisition thereof, the valuation for each year being reduced by all abatements thereon.
(b) The town may, however, agree with the corporation upon the payments to be made, or the corporation may make and the town may accept such payments, the amount of which shall not in either case be subject to the foregoing limitation.
(c) Nothing in this act shall be construed to prevent the taxation, to the same extent and in the same manner as other real estate is taxed, of real estate sold or otherwise transferred by the corporation pursuant to an economic development project, or the taxation to the same extent and in the same manner as real estate of the commonwealth is taxed, of real estate acquired by the corporation pursuant to an economic development project and thereafter leased by the corporation; provided, however, that real estate so acquired by the corporation and sold or leased to an urban redevelopment corporation or other entity operating under chapter 120A, chapter 121B and chapter 121C of the General Laws shall be taxed under said chapters.
SECTION 9. The town may borrow under section 8 of chapter 44of the General Laws, or otherwise as appropriate, or may agree with the corporation or with the federal government or the commonwealth to borrow or as otherwise appropriate, in aid of the corporation, such sums as may be necessary to carry out the purposes and powers of the corporation, including defraying part of the development, acquisition and operating costs of any marine and marine-related economic development project. Indebtedness of the town authorized under this section shall be outside the limit of indebtedness prescribed in section 10 of said chapter 44 and shall be payable within 40 years and otherwise subject to sections 16 to 27, inclusive, of said chapter 44; provided, however, that the total amount of indebtedness of the town outstanding at any one time under this section and clauses (1), (2) and (4) of section 20 of chapter 121B of the General Laws shall not exceed 5 per cent of the town's equalized valuation as defined in section 1 of said chapter 44, notwithstanding the provisions of section 21 of said chapter 121B. Indebtedness incurred under this act shall also be subject to approval under section 22 of said chapter 121B in like manner as indebtedness incurred under said section 20.
SECTION 10. This act, being necessary for the welfare of the commonwealth and the town and its inhabitants, shall be liberally construed to effect the purpose thereof.