MEMORANDUM OF AGREEMENT Between PROVINCETOWN BOARD OF SELECTMEN And PROVINCETOWN FISHERMEN’S ASSOCIATION

This Memorandum of Agreement is entered into this 26th day of February, 2001, by and between the Town of Provincetown, acting through its Board of Selectmen, and the Provincetown Fishermen’s Association.

INTRODUCTION The Town of Provincetown (“Town”) is currently engaged in renovations to MacMillan Pier. These renovations have been funded by State and Federal grants totaling $14.3 million, and funds raised and appropriated by the Town totaling $3.8 million. Upon completion of construction, MacMillan Pier will be managed by an entity known as the Provincetown Public Pier Corporation (“Pier Corporation”) which was established by a Special Act of the Legislature, Chapter 13 of the Acts of 2000. The Town endorsed the concept of the Public Pier Corporation by vote of Town Meeting. It is the intent of the Town to ensure that the Pier Corporation operates MacMillan Pier as a business, by providing adequate facilities to support the commercial fishing industry as a priority, while maintaining adequate facilities for ferries, whale watch boats, and other water dependent issues. To facilitate management of the pier, the Board of Selectmen has been authorized by Section 3(b) of Chapter 13 of the Acts of 2000 to lease MacMillan Pier to the Pier Corporation for a term not to exceed twenty years.

The Provincetown Fishermen’s Association (“Association”) is currently an unincorporated association of individuals engaged in commercial fishing operations utilizing Provincetown based fishing vessels. The Association is in the process of organizing as a non-profit corporation. Due to concerns which the Association has with the management structure of MacMillan Pier once the construction of the improvements is completed, the Association has been meeting with Town officials to work cooperatively to address those concerns. This Memorandum of Agreement is intended to memorialize the agreements reached during such discussions.

I. Legislative Changes The Board of Selectmen will place a home rule petition on the warrant for the April 2, 2001, Special Town Meeting to amend the Pier Corporation special legislation as follows.

To see if the Town will vote to instruct its representative in the General Court to file a home rule petition for a special act to amend Chapter 13 of the Acts of 2000, An Act Relative To The Provincetown Pier Corporation, to read substantially as follows:

SECTION 1. A new subsection (g) is hereby added to Section 3 of Chapter 13 of the Acts of 2000 to read as follows: "(g) The pier corporation board of directors shall be subject to the Open Meeting Law, Chapter 39, section 23B of the General Laws; and shall hold all its meetings in the town of Provincetown unless otherwise approved by a prior vote of the Board of Selectmen."

SECTION 2. A new subsection (h) is hereby added to Section 3 of Chapter 13 of the Acts of 2000 to read as follows: "(h) The corporation shall manage the pier in such a manner as to encourage and support the commercial fishing industry, and shall, at a minimum, give first priority to Provincetown based commercial fishing vessels in the assignment of dockage space on the town owned finger piers and floating dock slips on the northeasterly side of the pier as well as to the provision of adequate loading and off-loading facilities for commercial fishing vessels."

SECTION 3. The twelfth sentence of Section 4(a) of Chapter 13 of the Acts of 2000 is hereby amended to read as follows: "Members of the board of directors shall have education and experience in one or more of the following fields: commercial fishing, 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."

SECTION 4. This act shall take effect upon its passage. The General Court may only make clerical or editorial changes of form to the bill, unless the Board of Selectmen approves amendments to the bill before enactment by the general court. The Board of Selectmen is hereby authorized to approve amendments which shall be within the scope of the general public objectives of this petition; or to take any other action relative thereto.

II. Operational Issues In order to provide the commercial fisherman with self-governance in matters pertaining to commercial fishing on MacMillan Pier, the parties hereto agree that the Board of Selectmen will include in the lease agreement between the Town and the Pier Corporation a provision requiring the Pier Corporation to sublease a portion of the pier to the Association as described below. The terms of the sublease will be negotiated between the Board of Selectmen and the Association prior to the appointment of the Board of Directors of the Pier Corporation.

The sublease will provide that the Association at all times must operate the subleased premises in accordance with the requirements of Chapter 91 license No. 8621 issued to the Town by the Commonwealth of Massachusetts, dated October 16, 2000, and in a manner which promotes nondiscriminatory access to the pier and its facilities.

a. Off-Loading Facilities and Pier “T” The Board of Selectmen will negotiate with the Association a sublease of that portion of the Pier “T” which is east of the centerline of the roadway and such other areas of the Pier as may be determined by the Town during construction, for seafood off-loading operations in exchange for a rental payment to the Pier Corporation which is based upon a minimum payment, plus a payment per pound of product off-loaded through the facility. Said rental payments shall be calculated at a minimum to meet the revenues anticipated to the Pier Corporation through “Fish Off-Loading” as specified at page 25 of the Town of Provincetown FY 2002-2011 Fiscal Policy Plan. The Association will propose a plan to the Board of Selectmen designating the precise area to be subleased. The Board of Selectmen will hold a public hearing on said plan. The final area to be subleased shall be determined by the Board of Selectmen, in consultation with the Pier Corporation and the Association, and shall be consistent with the legislative mandate to give priority to the commercial fishing industry. The Town agrees to meet with the Association in advance of the appointment of the Board of Directors of the Pier Corporation for the purpose of discussing the location of the area to be subleased. The sublease shall include a provision giving priority to commercial fishing vessels to tie up to that portion of the Pier “T” which is east of the centerline of the roadway for loading and off-loading operations. The Pier Corporation will not permit any other uses of this section of the “T” which would interfere with such loading and off-loading operations. Notwithstanding the foregoing, the Parties expressly acknowledge that the Town has not made a final decision as to the location of the handicapped accessible restrooms as required under Special Waterways Condition No. 13 of the Chapter 91 license, or the location of a building for the headquarters of the Pier Corporation, if the decision is made to locate the Pier Corporation headquarters on the Pier. Accordingly, nothing in this section shall be construed as prohibiting the location of such buildings on the Pier “T” east of the roadway as long as adequate facilities are maintained for fish loading and off-loading and transportation activities in connection therewith as long as such facilities do not interfere with fish loading, off-loading, and transportation activities.

The Association shall have the right to erect and maintain such buildings and structures on the leased areas as are, in the judgment of the Association, reasonable and necessary in order to facilitate off-loading of commercial fish landings at the Pier, subject to the approval of the Pier Corporation, which approval shall not be unreasonably withheld. The Association will use its best efforts to provide public viewing areas adjacent to off-loading facilities, and shall have the right, subject to the foregoing approval, which shall not be unreasonably withheld, to operate a fish market or other facility open to the public within the subleased premises, subject to all applicable zoning and other by-laws and regulations.

The location of the Harbormaster’s building will be subject to discussion and re-location to a place mutually agreeable, so that the facility will not interfere with trucking operations ancillary to commercial fish off-loading operations.

b. Slip Assignments and Dockage The parties recognize that the westerly side of the MacMillan Pier, as well as tie-up facilities adjacent to the portion of the “T” being subleased to the Association, are reserved for commercial vessels (with the limited exception of not more than 25% of the small boat slips, and then only in the event that the “small boat commercial fishery” does not occupy the complete facility, and then in the discretion of the managing authority; See Special Condition No. 23 to the Chapter 91 License dated October 16, 2000).

In the exercise of self-governance over the commercial fishing operations at the MacMillan Pier, the Pier Corporation and the Association shall jointly determine eligibility for, and assignment of, dockage for commercial fishing vessels at MacMillan Pier, with priority in slip assignments and dockage to Provincetown based commercial fishing vessels. The Association shall allocate dockage space designed for commercial fishing vessels among its members, subject to approval by the Pier Corporation, which approval shall not be unreasonably withheld. If waiting lists are at any time required for the assignment of berths for commercial fishing vessels, they shall be maintained by the Pier Corporation in conjunction with the Association. The Association shall, in conjunction with the Board of Selectmen, set forth a fair and objective definition of the term “Provincetown based commercial fishing vessel”, which shall govern the implementation of this section.

Commercial fishing vessels shall have the right, during storms and heavy weather, to temporarily move their vessels to the westerly side of the pier for such limited time frames as necessary for the protection of the vessel. During off-season periods, transient vessels shall be permitted to tie up at the westerly side of the pier as space limitations may allow, subject to the approval of the Pier Corporation, which approval shall not be unreasonably withheld.

Day-to-day management of the dockage facilities, assignment of transient slips, billing, and collection of fees shall remain the responsibility of the Pier Corporation. All fees for dockage shall be paid to the Pier Corporation.

c. Fees for Dockage The parties agree that the basis for establishing fees for dockage should be the rates charged for comparable space in the open market. Rates for dockage shall therefore be determined on an annual basis in a three-way agreement between the Town, the Pier Corporation, and the Association. Such rates shall be established in accordance with an objective formula for determining the going market rate for comparable berthing space for commercial vessels, which formula will be incorporated into the lease between the Board of Selectmen and the Pier Corporation authorized by Section 3(b) of Chapter 13 of the Acts of 2000. After determination of the market rate, and discussion with the representatives of the Association, the Board of Selectmen, in its sole discretion, will annually determine whether to apply the annual rent reduction as set forth in Section 3(a) of the October 29, 1999 draft lease between the Town and the Pier Corporation.

In the event that either the Pier Corporation, the Association, or the Board of Selectmen disagrees with the determination of the market rate for dockage as determined through the application of the formula set forth in the lease, any party may seek arbitration of such market rate through the auspices of the American Arbitration Association. The determination of such arbitrator shall be conclusive and binding upon all parties with reference to the fiscal year for which the decision is rendered.

d. Day-to-Day Operational Issues The parties anticipate a myriad of day-to-day operational issues which will require cooperation and resolution between the Association, its members, and the Pier Corporation. Such matters as annual loading and off-loading of lobster gear, stretching and mending of nets and lines, user conflicts with courtesy and dinghy floats, crowd control with respect to whale-watching and ferry operations, and so forth, will need to be managed in such a way so that no user interferes with the reasonable operations of other users.

The lease between the Board of Selectmen and the Pier Corporation will contain a requirement that the Pier Corporation establish a dispute resolution mechanism which shall include a right to arbitration to address such disputes. In no event shall the Town or any of its officials or employees be involved in resolving such operational disputes, unless the dispute involves a breach of the Town’s lease with the Pier Corporation.

e. Dissolution of Either the Pier Corporation or the Association In the event of dissolution of the Pier Corporation as provided in Section 4(e) of chapter 13 of the Acts of 2000, the obligations of the Pier Corporation as contained in the sublease between the Pier Corporation and the Association will be assumed by the Town. Should the Association be dissolved, any fixtures or structures owned by the Association may be acquired by the Pier Corporation at fair market value, or ordered removed.

III. Town-Controlled Issues The Town will, under Chapter 13 of the Acts of 2000, retain control and management over mooring operations and the use of the Municipal Parking Lot. The Board of Selectmen and the Association will work cooperatively to ensure that the parking lot, bulkhead, and courtesy float remain available, during and after construction, to lobster fishermen and others for the purpose of loading and off-loading gear. Both parties will work to ensure that Town moorings remain available on an equitable basis, to the commercial fishing fleet, and that all Town Boards work to ensure that fees for such moorings are determined equitably and in an open and fair process.

IV. Grant Conditions The Parties recognize that the grant agreement for the MacMillan Pier construction project with the Massachusetts Executive Office of Transportation and Construction contains the following condition:

The Grantee [Town] is also responsible for establishing the Pier Corporation per the process outlined in the Act [Chapter 13 of the Acts of 2000]. Once the Pier Corporation is operational, the Grantee will prepare a lease that will allow the Pier Corporation to assume management of the Pier. This lease document will be prepared in collaboration with the Pier Corporation, MassDevelopment and EOTC. MassDevelopment will only be able to disburse funds from the Grant to the Grantee for the Project after the lease between the Pier Corporation and the Grantee is fully executed and in effect.

Therefore, the Parties recognize that this Memorandum of Understanding and any lease, sublease, or other agreement affecting the management of MacMillan Pier is subject to this grant condition. Dated: February 26, 2001 Provincetown Board of Selectmen and Provincetown Fishermen’s Association