N.Y. Gen. Mun. Law § 912-b

* § 912-b. Orange county industrial development agency. 1. For the\nbenefit of the county of Orange and the inhabitants thereof, an\nindustrial development agency, to be known as the ORANGE COUNTY\nINDUSTRIAL DEVELOPMENT AGENCY, is hereby established for the\naccomplishment of any or all of the purposes specified in title one of\nthis article. It shall constitute a body corporate and politic, and be\nperpetual in duration. It shall have the powers and duties now or\nhereafter conferred by title one of this article upon industrial\ndevelopment agencies. It shall be organized in a manner prescribed by\nand be subject to the provisions of title one of this article. Its\nmembers shall be appointed by the governing body of the county of\nOrange. The agency, its members, officers and employees and its\noperations and activities shall in all respects be governed by the\nprovisions of title one of this article.\n ** 2. For purposes of this section:\n (a) "financial assistance" shall mean any financial assistance offered\nby the Orange county industrial development agency for any project,\nincluding but not limited to, a payment in lieu of taxes agreement, an\nagreement to waive sales tax, or an agreement to waive mortgage\nrecording taxes.\n (b) "monitor" shall mean the independent monitor appointed by the\nstate inspector general under paragraph (a) of subdivision three of this\nsection.\n (c) "funding corporation" shall mean the Orange County Funding\nCorporation, a local development corporation established pursuant to\nsection fourteen hundred eleven of the not-for-profit corporation law.\n ** NB Repealed May 3, 2030\n ** 3. (a) In accordance with the powers of the office of the state\ninspector general established by subdivision eight of section fifty-four\nof the executive law, the state inspector general shall appoint an\nindependent monitor to carry out the provisions of this section\nincluding but not limited to providing guidance and technical assistance\nrelated to the policies, practices, programs and decisions of the Orange\ncounty industrial development agency and the funding corporation,\nincluding but not limited to decisions, actions and policies related to\ncontracts and financial assistance agreements. The state inspector\ngeneral shall appoint such monitor within ninety days of the effective\ndate of this subdivision or as soon thereafter as is practicable. After\nsuch appointment, the inspector general may only remove the monitor for\nviolations of law.\n (b) The reasonable and necessary expenses incurred by the monitor\nwhile performing their official duties shall be paid by the industrial\ndevelopment agency and the funding corporation, in such proportions as\nthe state inspector general shall verify and determine are attributable\nto each entity's matters. The state inspector general shall determine\nand verify: (i) the reasonable and necessary expenses incurred by the\nmonitor in the performance of duties under this section; (ii) any\nreasonable and necessary expenses and costs, including but not limited\nto attorneys' fees and litigation costs, incurred by the monitor or the\noffice of the state inspector general in connection with the\nappointment, retention, administration, oversight, defense,\nindemnification, representation, enforcement or continuation of the\nmonitor; and (iii) the proportion of such expenses and costs\nattributable to the industrial development agency and the funding\ncorporation. The obligation to pay pursuant to this paragraph shall\napply to all such expenses and costs incurred on and after the date the\nmonitor was first appointed pursuant to paragraph (a) of this\nsubdivision, whether or not previously invoiced, noticed or demanded.\nNot later than thirty days after the effective date of the chapter\namending the laws of two thousand twenty-six that amended this\nparagraph, each such entity shall pay all unpaid amounts determined and\nverified by the state inspector general pursuant to this paragraph;\nprovided, however, that if the state inspector general provides written\nnotice of any additional amount due after such date, such amount shall\nbe paid within thirty days after receipt of such notice. For each state\nfiscal year thereafter, each such entity shall pay any amount determined\nand verified by the state inspector general pursuant to this paragraph\nnot later than thirty days after receipt of written notice from the\nstate inspector general of the amount due. Notwithstanding any other\nprovision of law to the contrary, if the industrial development agency\nor the funding corporation fails to pay any amount required to be paid\npursuant to this paragraph by the applicable date required by this\nparagraph, any contract or financial assistance entered into or proposed\nto be entered into on or after such applicable date by such industrial\ndevelopment agency or funding corporation shall not be legally binding\nor effective and may not be reconsidered until the state inspector\ngeneral certifies in writing that all amounts required to be paid by\nsuch agency or corporation pursuant to this paragraph, including all\nunpaid amounts incurred before the effective date of the chapter of the\nlaws of two thousand twenty-six that amended this paragraph, have been\npaid in full; provided, however, that nothing in this sentence shall\naffect the validity of any contract or financial assistance entered into\nbefore such applicable date. Notice of any suspension of the industrial\ndevelopment agency or funding corporation's ability to enter contracts\nor provide financial assistance pursuant to this section shall be\npublicly posted both on the website of the state inspector general, and\non the website or websites of the industrial development agency or\nfunding corporation. Any action taken in violation of this paragraph\nshall be void and shall not be legally binding or effective.\nNotwithstanding any other provision of law, while acting within the\nscope of their authority, the monitor shall not be subject to any\nliability resulting from carrying out any of the powers expressly given\nin this section, and the monitor shall be entitled to defense and\nindemnification by the industrial development agency and the funding\ncorporation.\n (c) The monitor shall be entitled to attend all meetings of the\nindustrial development agency and the funding corporation, including\nexecutive sessions; provided however, such monitor shall not be\nconsidered for purposes of establishing a quorum of the board, provided\nfurther that the monitor may be excused from executive sessions when\nproposed, pending or current litigation involving the monitor or the\noffice of the state inspector general are being discussed. The\nindustrial development agency shall cooperate with any monitor with\naccess, within forty-eight hours of such request from the monitor, to\nany necessary documents and records of the industrial development agency\nincluding but not limited to databases and planning documents, financial\nassistance agreements, and contracts consistent with all applicable\nstate and federal statutes. The monitor shall provide a copy of such\nrequest for any document or record to the industrial development agency\nboard.\n (d) The board shall provide the monitor with copies of any meeting\nagendas and all resolutions and motions on such agenda for each board\nmeeting no later than seventy-two hours prior to such board meeting. If\na proposed resolution or motion is for the purpose of approving a\ncontract or any financial assistance for a project, the board clerk\nshall provide the monitor with copies of the proposed contract or\nfinancial assistance language at least seven days prior to such meeting.\n (e) In the event the monitor is not provided with copies of proposed\nresolutions or motions seventy-two hours prior to a board meeting or in\nthe case of a proposed motion or resolution for the purpose of approving\na contract or financial assistance, seven days prior to the next board\nmeeting, the monitor may, at their discretion, remove an item including\nboard resolutions or motions, from consideration by the board at such\nmeeting. Upon failure of the board to provide proposed resolutions or\nmotions as required by this section, the monitor shall provide notice of\nfailure to the board. An item removed from consideration by the monitor\nmay not be reconsidered by the board until the next board meeting.\n (f) The monitor shall have the power to review any modification to the\nindustrial development agency's uniform tax exemption policy required by\nsection eight hundred seventy-four of this article, contract or\nfinancial assistance proposed for consideration by the industrial\ndevelopment agency proposed by the board on or after the effective date\nof this subdivision; provided however, that all such proposed\nmodifications to the industrial development agency's uniform tax\nexemption policy required by section eight hundred seventy-four of this\narticle, contracts or agreements shall be provided by the industrial\ndevelopment agency board to the monitor at least seven days prior to\nadoption.\n (i) At least seventy-two hours prior to adoption by the board, the\nmonitor shall advise the board or employees of the industrial\ndevelopment agency, in writing, of the existence of violations of the\nindustrial development agency's uniform tax exemption policy required by\nsection eight hundred seventy-four of this article, actual or potential\nconflicts of interest, or violations of law arising from a proposed\ncontract or financial assistance agreement that the industrial\ndevelopment agency shall consider before entering into any such contract\nor agreement.\n (ii) The board shall document for its own records the existence and\nresolution of any actual or potential conflict of interest or other\nviolation identified by the monitor.\n (iii) No such contract or agreement may be voted on, approved or\nentered into by the industrial development agency unless such actual or\npotential conflict of interest or violation has been resolved to the\nsatisfaction of the monitor, and unless the monitor has advised the\nboard or employees, in writing, of their approval.\n (iv) At least seventy-two hours prior to adoption by the board, the\nmonitor shall advise the board or employees, in writing, of their\ndisapproval of any changes to the industrial development agency's\nuniform tax exemption policy; provided additionally, that within thirty\ndays after their appointment, the monitor shall advise such board or\nemployees, in writing, of their disapproval of any changes to the\nindustrial development agency's uniform tax exemption policy made by the\nboard that were made on or after the effective date of this subdivision\nuntil such monitor's appointment. Any such change to the uniform tax\nexemption policy disapproved by the monitor shall not be effective, and\nshall not be reconsidered by the board for at least ten days or until\nthe next board meeting; provided, however, that any change to the\nuniform tax exemption policy that was made by the board on or after the\neffective date of this subdivision until such monitor's appointment that\nis disapproved by the monitor shall not affect the validity of any prior\nagreement entered into prior to the monitor's appointment.\n (v) At least seventy-two hours prior to adoption by the board, the\nmonitor shall advise the board or employees, in writing, of their\ndisapproval of any proposed contract or agreement with a project\napplying for financial assistance that would permit a deviation from the\nindustrial development agency's uniform tax exemption policy required by\nsection eight hundred seventy-four of this article. Any such proposed\ncontract or financial assistance agreement that would permit a deviation\nfrom such policy shall not be effective, and may not be reconsidered by\nthe board for at least ten days or until the next board meeting.\n (vi) The monitor shall have seventy-two hours after any contract or\nfinancial assistance is approved to review such financial assistance or\ncontract, and if a violation of policy related to the industrial\ndevelopment agency's uniform tax exemption policy required by section\neight hundred seventy-four of this article, a conflict of interest, or a\nviolation of law is identified during such time period, the monitor\nshall notify the industrial development agency in writing. Any such\ncontract or financial assistance so identified by the monitor shall not\nbe legally binding or effective, and may not be reconsidered by the\nboard for at least ten days or until the next board meeting.\n (g) The board, in consultation with the monitor, shall adopt a\nconflict of interest policy, or revise an existing conflict of interest\npolicy, that complies with all existing applicable laws, rules and\nregulations, including article eighteen of this chapter. The conflict of\ninterest policy shall include, but not be limited to:\n (i) a definition of the circumstances that constitute a conflict of\ninterest;\n (ii) procedures for identifying, disclosing and resolving a conflict\nof interest to the board;\n (iii) a requirement that the person with the conflict of interest not\nbe present at or participate in board deliberations or votes on the\nmatter giving rise to such conflict, provided that nothing in this\nparagraph shall prohibit the board from requesting that the person with\nthe conflict of interest present information as background or answer\nquestions at a board meeting prior to the commencement of deliberations\nor voting thereto;\n (iv) a prohibition against any attempt by the person with the conflict\nto influence improperly the deliberation or voting on the matter giving\nrise to such conflict;\n (v) compliance with all applicable state laws and regulations; and\n (vi) a requirement that the existence and resolution of the conflict\nbe documented in the board's records, including in the minutes of any\nmeeting at which the conflict was discussed or voted upon.\n (h) The monitor may advise the board and any industrial development\nagency officers, employees or agents to undergo any training as deemed\nnecessary.\n (i) (i) The funding corporation shall provide the monitor with copies\nof any meeting agendas and all proposed resolutions and motions to be\nconsidered by the board of directors no later than seventy-two hours\nprior to such meeting. If a proposed resolution or motion is for the\npurpose of authorizing or approving a contract, agreement, financing,\nissuance of bonds, notes or other obligations, property transaction, or\nproject, the funding corporation shall provide the monitor with copies\nof the proposed transactional documents and material supporting\ndocumentation at least seven days prior to such meeting.\n (ii) In the event the monitor is not provided with materials within\nthe time periods required by this paragraph, the monitor may, in their\ndiscretion, remove an item from consideration by the board of directors\nat such meeting. An item removed from consideration by the monitor may\nnot be reconsidered by the board of directors until the next meeting.\n (iii) At least seventy-two hours prior to consideration by the board\nof directors, the monitor shall advise the funding corporation, in\nwriting, of the existence of: (A) any actual or potential conflicts of\ninterest; (B) any violations of the funding corporation's conflict of\ninterest policy; (C) any violations of section seven hundred fifteen or\nsection seven hundred fifteen-a of the not-for-profit corporation law;\n(D) any failure to comply with the funding corporation's certificate of\nincorporation; or (E) any other violations of law arising from a\nproposed transaction or project.\n (iv) The board of directors shall document for its own records the\nexistence and resolution of any actual or potential conflict of interest\nor other violation identified by the monitor.\n (v) No such contract, agreement, financing, issuance, property\ntransaction, or project may be voted on, approved, authorized, or\nentered into by the funding corporation unless such actual or potential\nconflict of interest or violation has been resolved to the satisfaction\nof the monitor and the monitor has advised the funding corporation, in\nwriting, of the monitor's approval.\n (vi) In determining whether to approve a proposed project or\nfinancing, the monitor may require the funding corporation to\ndemonstrate that there is a commitment of funds sufficient to finance\nthe acquisition and construction of the project, taking into\nconsideration commitments of funds, projections of fees or other\nrevenues, and security.\n ** NB Repealed May 3, 2030\n ** 4. The monitor shall undertake an enhanced review of the budget\ndecisions and financial assistance agreements of the industrial\ndevelopment agency.\n (a) The board shall annually submit the industrial development\nagency's proposed budget for the next succeeding fiscal year to the\nmonitor no later than forty-five days prior to its adoption. The monitor\nshall review the budget to ensure that it, to the greatest extent\npossible, is consistent with purposes and necessary activities of the\nOrange county industrial development agency, and that it does not\nsubstantially conflict with the long term economic interests of Orange\ncounty and its constituents.\n (b) The board shall provide quarterly reports to the monitor and\nannual reports to the state inspector general on the operational status\nof the industrial development agency. In addition, the monitor shall\nprovide semi-annual reports to the state inspector general, the\ngovernor, the temporary president of the senate, and the speaker of the\nassembly on the fiscal and operational status of the industrial\ndevelopment agency. Such semi-annual report shall include a summary of\nall the contracts that the board entered into throughout the year. All\nreports shall be subject to review by the comptroller.\n (c) The monitor shall advise the board in the development and revision\nof the industrial development agency's goals, implementation of its\npriorities and budgetary recommendations.\n (d) The monitor may recommend, and the board may consider by vote of a\nresolution at the next scheduled meeting of the board, cost saving\nmeasures including, but not limited to, shared service agreements.\n (e) Upon receiving a recommendation, in writing, from the monitor, the\nboard shall consider such recommendation and, within forty-five days of\nreceiving such recommendation, hold a vote on accepting such\nrecommendation. Such recommendation shall only be rejected upon at least\nfive members of the board voting to reject such recommendation. Such\nrecommendations requiring such a vote shall include, but not be limited\nto, recommendations relating to contracts, budget decisions, and\nfinancial assistance agreements.\n ** NB Repealed May 3, 2030\n ** 5. The monitor shall, at their discretion, direct the board to\nrecoup financial assistance, in full or in part, where the recipient of\nfinancial assistance failed to execute and complete the terms of a\ncontract, agreement or understanding including, but not limited to, job\ncreation goals and the development of promised facilities or operations.\n ** NB Repealed May 3, 2030\n ** 6. The Orange county funding corporation, established by Orange\ncounty resolution number one hundred twenty-five of the year two\nthousand ten is a local development corporation established pursuant to\nsection fourteen hundred eleven of the not-for-profit corporation law.\nThe funding corporation shall comply with the applicable provisions of\nsubdivision three of this section, and the monitor shall have the powers\nset forth in paragraph (i) of subdivision three of this section with\nrespect to the funding corporation.\n ** NB Repealed May 3, 2030\n ** 7. Notwithstanding any other provision of law to the contrary, the\nmonitor may commence an action or special proceeding in any court of\ncompetent jurisdiction to enjoin unlawful acts or practices by the\nindustrial development agency or the funding corporation and to compel\ncompliance with this section, including the recovery of amounts due to\nthe monitor for reasonable and necessary expenses and costs, including\nbut not limited to attorneys' fees and litigation costs, authorized by\nthis section.\n ** NB Repealed May 3, 2030\n ** 8. Nothing in this section shall be construed to abrogate the\nduties and responsibilities of the board consistent with applicable\nstate law and regulations.\n ** NB Repealed May 3, 2030\n * NB Agency expires per §§ 856 and 882\n