N.Y. General Municipal Law § 912-b: Orange county industrial development agency

* § 912-b. Orange county industrial development agency. 1. For the

benefit of the county of Orange and the inhabitants thereof, an

industrial development agency, to be known as the ORANGE COUNTY

INDUSTRIAL DEVELOPMENT AGENCY, is hereby established for the

accomplishment of any or all of the purposes specified in title one of

this article. It shall constitute a body corporate and politic, and be

perpetual in duration. It shall have the powers and duties now or

hereafter conferred by title one of this article upon industrial

development agencies. It shall be organized in a manner prescribed by

and be subject to the provisions of title one of this article. Its

members shall be appointed by the governing body of the county of

Orange. The agency, its members, officers and employees and its

operations and activities shall in all respects be governed by the

provisions of title one of this article.

** 2. For purposes of this section:

(a) "financial assistance" shall mean any financial assistance offered

by the Orange county industrial development agency for any project,

including but not limited to, a payment in lieu of taxes agreement, an

agreement to waive sales tax, or an agreement to waive mortgage

recording taxes.

(b) "monitor" shall mean the independent monitor appointed by the

state inspector general under paragraph (a) of subdivision three of this

section.

(c) "funding corporation" shall mean the Orange County Funding

Corporation, a local development corporation established pursuant to

section fourteen hundred eleven of the not-for-profit corporation law.

** NB Repealed May 3, 2030

** 3. (a) In accordance with the powers of the office of the state

inspector general established by subdivision eight of section fifty-four

of the executive law, the state inspector general shall appoint an

independent monitor to carry out the provisions of this section

including but not limited to providing guidance and technical assistance

related to the policies, practices, programs and decisions of the Orange

county industrial development agency and the funding corporation,

including but not limited to decisions, actions and policies related to

contracts and financial assistance agreements. The state inspector

general shall appoint such monitor within ninety days of the effective

date of this subdivision or as soon thereafter as is practicable. After

such appointment, the inspector general may only remove the monitor for

violations of law.

(b) The reasonable and necessary expenses incurred by the monitor

while performing their official duties shall be paid by the industrial

development agency and the funding corporation, in such proportions as

the state inspector general shall verify and determine are attributable

to each entity's matters. The state inspector general shall determine

and verify: (i) the reasonable and necessary expenses incurred by the

monitor in the performance of duties under this section; (ii) any

reasonable and necessary expenses and costs, including but not limited

to attorneys' fees and litigation costs, incurred by the monitor or the

office of the state inspector general in connection with the

appointment, retention, administration, oversight, defense,

indemnification, representation, enforcement or continuation of the

monitor; and (iii) the proportion of such expenses and costs

attributable to the industrial development agency and the funding

corporation. The obligation to pay pursuant to this paragraph shall

apply to all such expenses and costs incurred on and after the date the

monitor was first appointed pursuant to paragraph (a) of this

subdivision, whether or not previously invoiced, noticed or demanded.

Not later than thirty days after the effective date of the chapter

amending the laws of two thousand twenty-six that amended this

paragraph, each such entity shall pay all unpaid amounts determined and

verified by the state inspector general pursuant to this paragraph;

provided, however, that if the state inspector general provides written

notice of any additional amount due after such date, such amount shall

be paid within thirty days after receipt of such notice. For each state

fiscal year thereafter, each such entity shall pay any amount determined

and verified by the state inspector general pursuant to this paragraph

not later than thirty days after receipt of written notice from the

state inspector general of the amount due. Notwithstanding any other

provision of law to the contrary, if the industrial development agency

or the funding corporation fails to pay any amount required to be paid

pursuant to this paragraph by the applicable date required by this

paragraph, any contract or financial assistance entered into or proposed

to be entered into on or after such applicable date by such industrial

development agency or funding corporation shall not be legally binding

or effective and may not be reconsidered until the state inspector

general certifies in writing that all amounts required to be paid by

such agency or corporation pursuant to this paragraph, including all

unpaid amounts incurred before the effective date of the chapter of the

laws of two thousand twenty-six that amended this paragraph, have been

paid in full; provided, however, that nothing in this sentence shall

affect the validity of any contract or financial assistance entered into

before such applicable date. Notice of any suspension of the industrial

development agency or funding corporation's ability to enter contracts

or provide financial assistance pursuant to this section shall be

publicly posted both on the website of the state inspector general, and

on the website or websites of the industrial development agency or

funding corporation. Any action taken in violation of this paragraph

shall be void and shall not be legally binding or effective.

Notwithstanding any other provision of law, while acting within the

scope of their authority, the monitor shall not be subject to any

liability resulting from carrying out any of the powers expressly given

in this section, and the monitor shall be entitled to defense and

indemnification by the industrial development agency and the funding

corporation.

(c) The monitor shall be entitled to attend all meetings of the

industrial development agency and the funding corporation, including

executive sessions; provided however, such monitor shall not be

considered for purposes of establishing a quorum of the board, provided

further that the monitor may be excused from executive sessions when

proposed, pending or current litigation involving the monitor or the

office of the state inspector general are being discussed. The

industrial development agency shall cooperate with any monitor with

access, within forty-eight hours of such request from the monitor, to

any necessary documents and records of the industrial development agency

including but not limited to databases and planning documents, financial

assistance agreements, and contracts consistent with all applicable

state and federal statutes. The monitor shall provide a copy of such

request for any document or record to the industrial development agency

board.

(d) The board shall provide the monitor with copies of any meeting

agendas and all resolutions and motions on such agenda for each board

meeting no later than seventy-two hours prior to such board meeting. If

a proposed resolution or motion is for the purpose of approving a

contract or any financial assistance for a project, the board clerk

shall provide the monitor with copies of the proposed contract or

financial assistance language at least seven days prior to such meeting.

(e) In the event the monitor is not provided with copies of proposed

resolutions or motions seventy-two hours prior to a board meeting or in

the case of a proposed motion or resolution for the purpose of approving

a contract or financial assistance, seven days prior to the next board

meeting, the monitor may, at their discretion, remove an item including

board resolutions or motions, from consideration by the board at such

meeting. Upon failure of the board to provide proposed resolutions or

motions as required by this section, the monitor shall provide notice of

failure to the board. An item removed from consideration by the monitor

may not be reconsidered by the board until the next board meeting.

(f) The monitor shall have the power to review any modification to the

industrial development agency's uniform tax exemption policy required by

section eight hundred seventy-four of this article, contract or

financial assistance proposed for consideration by the industrial

development agency proposed by the board on or after the effective date

of this subdivision; provided however, that all such proposed

modifications to the industrial development agency's uniform tax

exemption policy required by section eight hundred seventy-four of this

article, contracts or agreements shall be provided by the industrial

development agency board to the monitor at least seven days prior to

adoption.

(i) At least seventy-two hours prior to adoption by the board, the

monitor shall advise the board or employees of the industrial

development agency, in writing, of the existence of violations of the

industrial development agency's uniform tax exemption policy required by

section eight hundred seventy-four of this article, actual or potential

conflicts of interest, or violations of law arising from a proposed

contract or financial assistance agreement that the industrial

development agency shall consider before entering into any such contract

or agreement.

(ii) The board shall document for its own records the existence and

resolution of any actual or potential conflict of interest or other

violation identified by the monitor.

(iii) No such contract or agreement may be voted on, approved or

entered into by the industrial development agency unless such actual or

potential conflict of interest or violation has been resolved to the

satisfaction of the monitor, and unless the monitor has advised the

board or employees, in writing, of their approval.

(iv) At least seventy-two hours prior to adoption by the board, the

monitor shall advise the board or employees, in writing, of their

disapproval of any changes to the industrial development agency's

uniform tax exemption policy; provided additionally, that within thirty

days after their appointment, the monitor shall advise such board or

employees, in writing, of their disapproval of any changes to the

industrial development agency's uniform tax exemption policy made by the

board that were made on or after the effective date of this subdivision

until such monitor's appointment. Any such change to the uniform tax

exemption policy disapproved by the monitor shall not be effective, and

shall not be reconsidered by the board for at least ten days or until

the next board meeting; provided, however, that any change to the

uniform tax exemption policy that was made by the board on or after the

effective date of this subdivision until such monitor's appointment that

is disapproved by the monitor shall not affect the validity of any prior

agreement entered into prior to the monitor's appointment.

(v) At least seventy-two hours prior to adoption by the board, the

monitor shall advise the board or employees, in writing, of their

disapproval of any proposed contract or agreement with a project

applying for financial assistance that would permit a deviation from the

industrial development agency's uniform tax exemption policy required by

section eight hundred seventy-four of this article. Any such proposed

contract or financial assistance agreement that would permit a deviation

from such policy shall not be effective, and may not be reconsidered by

the board for at least ten days or until the next board meeting.

(vi) The monitor shall have seventy-two hours after any contract or

financial assistance is approved to review such financial assistance or

contract, and if a violation of policy related to the industrial

development agency's uniform tax exemption policy required by section

eight hundred seventy-four of this article, a conflict of interest, or a

violation of law is identified during such time period, the monitor

shall notify the industrial development agency in writing. Any such

contract or financial assistance so identified by the monitor shall not

be legally binding or effective, and may not be reconsidered by the

board for at least ten days or until the next board meeting.

(g) The board, in consultation with the monitor, shall adopt a

conflict of interest policy, or revise an existing conflict of interest

policy, that complies with all existing applicable laws, rules and

regulations, including article eighteen of this chapter. The conflict of

interest policy shall include, but not be limited to:

(i) a definition of the circumstances that constitute a conflict of

interest;

(ii) procedures for identifying, disclosing and resolving a conflict

of interest to the board;

(iii) a requirement that the person with the conflict of interest not

be present at or participate in board deliberations or votes on the

matter giving rise to such conflict, provided that nothing in this

paragraph shall prohibit the board from requesting that the person with

the conflict of interest present information as background or answer

questions at a board meeting prior to the commencement of deliberations

or voting thereto;

(iv) a prohibition against any attempt by the person with the conflict

to influence improperly the deliberation or voting on the matter giving

rise to such conflict;

(v) compliance with all applicable state laws and regulations; and

(vi) a requirement that the existence and resolution of the conflict

be documented in the board's records, including in the minutes of any

meeting at which the conflict was discussed or voted upon.

(h) The monitor may advise the board and any industrial development

agency officers, employees or agents to undergo any training as deemed

necessary.

(i) (i) The funding corporation shall provide the monitor with copies

of any meeting agendas and all proposed resolutions and motions to be

considered by the board of directors no later than seventy-two hours

prior to such meeting. If a proposed resolution or motion is for the

purpose of authorizing or approving a contract, agreement, financing,

issuance of bonds, notes or other obligations, property transaction, or

project, the funding corporation shall provide the monitor with copies

of the proposed transactional documents and material supporting

documentation at least seven days prior to such meeting.

(ii) In the event the monitor is not provided with materials within

the time periods required by this paragraph, the monitor may, in their

discretion, remove an item from consideration by the board of directors

at such meeting. An item removed from consideration by the monitor may

not be reconsidered by the board of directors until the next meeting.

(iii) At least seventy-two hours prior to consideration by the board

of directors, the monitor shall advise the funding corporation, in

writing, of the existence of: (A) any actual or potential conflicts of

interest; (B) any violations of the funding corporation's conflict of

interest policy; (C) any violations of section seven hundred fifteen or

section seven hundred fifteen-a of the not-for-profit corporation law;

(D) any failure to comply with the funding corporation's certificate of

incorporation; or (E) any other violations of law arising from a

proposed transaction or project.

(iv) The board of directors shall document for its own records the

existence and resolution of any actual or potential conflict of interest

or other violation identified by the monitor.

(v) No such contract, agreement, financing, issuance, property

transaction, or project may be voted on, approved, authorized, or

entered into by the funding corporation unless such actual or potential

conflict of interest or violation has been resolved to the satisfaction

of the monitor and the monitor has advised the funding corporation, in

writing, of the monitor's approval.

(vi) In determining whether to approve a proposed project or

financing, the monitor may require the funding corporation to

demonstrate that there is a commitment of funds sufficient to finance

the acquisition and construction of the project, taking into

consideration commitments of funds, projections of fees or other

revenues, and security.

** NB Repealed May 3, 2030

** 4. The monitor shall undertake an enhanced review of the budget

decisions and financial assistance agreements of the industrial

development agency.

(a) The board shall annually submit the industrial development

agency's proposed budget for the next succeeding fiscal year to the

monitor no later than forty-five days prior to its adoption. The monitor

shall review the budget to ensure that it, to the greatest extent

possible, is consistent with purposes and necessary activities of the

Orange county industrial development agency, and that it does not

substantially conflict with the long term economic interests of Orange

county and its constituents.

(b) The board shall provide quarterly reports to the monitor and

annual reports to the state inspector general on the operational status

of the industrial development agency. In addition, the monitor shall

provide semi-annual reports to the state inspector general, the

governor, the temporary president of the senate, and the speaker of the

assembly on the fiscal and operational status of the industrial

development agency. Such semi-annual report shall include a summary of

all the contracts that the board entered into throughout the year. All

reports shall be subject to review by the comptroller.

(c) The monitor shall advise the board in the development and revision

of the industrial development agency's goals, implementation of its

priorities and budgetary recommendations.

(d) The monitor may recommend, and the board may consider by vote of a

resolution at the next scheduled meeting of the board, cost saving

measures including, but not limited to, shared service agreements.

(e) Upon receiving a recommendation, in writing, from the monitor, the

board shall consider such recommendation and, within forty-five days of

receiving such recommendation, hold a vote on accepting such

recommendation. Such recommendation shall only be rejected upon at least

five members of the board voting to reject such recommendation. Such

recommendations requiring such a vote shall include, but not be limited

to, recommendations relating to contracts, budget decisions, and

financial assistance agreements.

** NB Repealed May 3, 2030

** 5. The monitor shall, at their discretion, direct the board to

recoup financial assistance, in full or in part, where the recipient of

financial assistance failed to execute and complete the terms of a

contract, agreement or understanding including, but not limited to, job

creation goals and the development of promised facilities or operations.

** NB Repealed May 3, 2030

** 6. The Orange county funding corporation, established by Orange

county resolution number one hundred twenty-five of the year two

thousand ten is a local development corporation established pursuant to

section fourteen hundred eleven of the not-for-profit corporation law.

The funding corporation shall comply with the applicable provisions of

subdivision three of this section, and the monitor shall have the powers

set forth in paragraph (i) of subdivision three of this section with

respect to the funding corporation.

** NB Repealed May 3, 2030

** 7. Notwithstanding any other provision of law to the contrary, the

monitor may commence an action or special proceeding in any court of

competent jurisdiction to enjoin unlawful acts or practices by the

industrial development agency or the funding corporation and to compel

compliance with this section, including the recovery of amounts due to

the monitor for reasonable and necessary expenses and costs, including

but not limited to attorneys' fees and litigation costs, authorized by

this section.

** NB Repealed May 3, 2030

** 8. Nothing in this section shall be construed to abrogate the

duties and responsibilities of the board consistent with applicable

state law and regulations.

** NB Repealed May 3, 2030

* NB Agency expires per §§ 856 and 882