HOST COMMUNITIES

STANDING COMMITTEE MEETING

Friday, October 19, 2007

Niagara County Department of Economic Development

6311 Inducon Corporate Drive

Sanborn, New York 14132

Staff Present:

Charles Miller, President, NPC

Mary Melloni, Recording Secretary                                                        

Stan Widger, Esq., NPC Counsel, Nixon Peabody 

Samuel M. Ferraro, Executive Director/Commissioner - Niagara County Center for                                                                                                                                                                          Economic Development

1.0          Call to Order

Mr. Ross called the meeting to order at 12:12 p.m.

2.0          Roll Call

Ms. Melloni called the roll; a quorum was established.

3.0          Pledge of Allegiance

                The Pledge of Allegiance was recited.

4.0          Approval of Minutes

                4.1          October 3, 2007

The minutes of the October 3, 2007 meeting are not completed at this time. No action was taken.

5.0          Host Communities Standing Committee Report

It was indicated that there was no report prepared at this time.

6.0          Standing Committee Protocol

Mr. Widger indicated that the members have a draft of the Standing Committee Protocol which includes a clean version and a red-line version.  The changes are all of the changes through the September 5^th Draft of the protocol and are intended to account for the discussion of the last meeting on October 3, 2007, which focused largely on the issue of consensus decision making.  Other changes are intended to align the two protocols – the generic that has been worked on by the representatives of the various Standing Committees under the NYPA auspices, and this Committee’s protocol.  There are some issues that have not been thoroughly discussed previously; therefore it is not necessarily reflective of agreement by all members.  Mr. Widger indicated that they tried to incorporate all of the comments.  He suggested that it is open for initial comments on the overall document, policy concerns, or others and then it can be reviewed page by page.

Mr. Kahn stated that on page 4, Committee Procedures, he found that they are difficult to understand in their current format.  He stated that categorizing them [i.e., a) b) c), etc.] so that years from now when the document is referred to they may have a 2.b) situation, etc. depending on the circumstances.  He indicated that the second sentence is very confusing and could be explained in more detail. 

Mr. Widger agreed.  Further discussion was held on how Committee Procedures could be better detailed. 

Mr. Burgasser indicated that a) has to do with consistency and b) has to do with the funding and the level of funding and the last paragraph before “Chairpersons” handles b) and c) and a) is handled by the paragraphs before that for the consistency part.  He suggested crossing out almost the whole paragraph and just saying “except for those set forth below, all decisions are made by a majority vote.”  Mr. Widger stated that paragraph 1 deals with basic issues, so the exclusions are intended to pick up everything that follows that paragraph.  If it is broken down into individual numbered/lettered subdivisions, then it can read “for matters other than those addressed in paragraphs…”  Mr. Widger stated that it could include the rules for decision-making, and that would end the general section and everything else would relate to determinations of consistency, eligibility for funding and then actual granting of funding.

6.0          Standing Committee Protocol  (Continued…)

Mr. Massaro suggested starting discussion on the consistency issue.  He stated that he had suggested some alternatives that Mr. Widger included in the plan:  “if both the Chairperson and NYPA’s representative are in agreement that it is consistent with the Plan, then a majority of the total membership would be necessary (5).  If one or both the Chairperson and NYPA representative disagree, then it would be necessary for three-quarters or 6 of the total complement of the body to pass.”  Mr. Massaro stated that breaking that down further, if one disagrees and one agrees (Chairperson and NYPA Rep), then all that will be necessary to pass is five plus the one who agrees that it is consistent.  If both disagree on the situation, then six (6) votes are necessary (the remaining six members) to pass.

Mr. Daly stated that NYPA appreciates the effort Mr. Widger made to include some of their comments.  He feels there is still a great deal of work that needs to be done.  The draft as they see it still has two issues that were not resolved for NYPA.  Mr. Daly stated that the critical issue that was identified back in September still has not been addressed to their understanding.  With respect to consistency and the consensus issue, NYPA will reserve its rights to insure that it meets all of its statutory and contractual obligations.  He stated that they believe the settlement agreement binds the use of Greenway funds to projects that are found to be consistent with the Greenway Plan, consistent with State and Federal laws and regulations, and supported by a consensus of the Standing Committee.  He stated that NYPA will abide by their statutory requirements and the settlement agreement and will support use of these public dollars which are make up the settlement dollars on projects that are found to be consistent with the Greenway Plan.  He stated that everyone agreed that the NYPA funds would be spent on projects that are consistent with the Plan, their settlement partners expect it, their trustees expect it, the public expects it, and he believes firmly Western New York deserves it.  Any effort to allocate the Greenway funds to projects that are not consistent with the plan cannot be support by NYPA.  The second issue being the funding mechanism, Mr. Daly stated that the draft protocols address it but NYPA believes, consistent with the settlement agreement (Section 7.2) NYPA will establish that Host Community Greenway Fund and make its annual payment into that fund.  The Fund committee would then disburse dollars to approved projects that are found to be consistent with the Greenway Plan.  Mr. Daly stated that there is no disputing that the Greenway Fund is available through the Host Communities to draw upon for projects that are approved by this committee and NYPA believes that the disbursement of funds from that would be what would be considered the ministerial act at that point.  NYPA thinks that a single fund has benefits for reasons that have been discussed publicly in this committee and the general protocol committee meetings.  It will provide consistency, meeting accounting requirements, record keeping and auditing requirements.    Mr. Daly stated that going forward the format of having this large body meeting, having Mr. Widger redo the protocols and come back and not move ahead, may not serve the committee going forward.  NYPA proposes having a small group of people who are empowered to reach a settlement considering the fact that time is of the essence.  Mr. Chase stated that Mr. Daly has addressed their concerns clearly.

Mr. Burgasser stated that since the discussions at the last meeting leaned toward putting in the use of the declaratory judgment and going to three-quarters vote he is assuming that NYPA did not agree with that. 

6.0          Standing Committee Protocol  (Continued…)

Mr. Chase stated that the document is a step forward and Mr. Widger did a good job trying to reconcile comments from a number of people.  But he stated, he and Mr. Daly have discussed this approach at the highest level of the NYPA and by “highest level” he means exactly that.  He explained that they are going to be supportive of projects that are found to be consistent with the Greenway Plan, but will also insure that the dollars are spent according to the Settlement Agreement and are not going to fund things outside of the agreement or that are inconsistent with the plan or not in accordance with State and Federal regulations and this comes from the highest level of the NYPA.  Mr. Chase stated that they have stated from the beginning that their critical interest is insuring that projects that are funded are consistent with the plans and going to a straight vote, even if the Chairman and NYPA Rep both agree that it is inconsistent, having that overridden by a vote – NYPA will never sign off on that.  That is their position from the beginning.

Mr. Burgasser stated he is appreciative that they did bring that information back to NYPA for consideration. However, if they strive for consensus NYPA has the possibility of taking $3 million a year for 50 years that the Host Communities and taxpayers in the County would never see.  Mr. Chase stated that if the projects are clearly consistent with the Greenway Plan then NYPA will step aside. 

Mr. Newlin stated that what everyone agrees on is that any project that is submitted to receive funding should be consistent with the Greenway Project.  The members of the NPC feel that if you analyze the Host Community Agreement, consistency is determined by this Standing Committee.  Mr. Chase disagreed and stated it is in the settlement agreement that this Committee does not determine consistency.  Mr. Newlin asked who, in NYPA’s opinion, determines consistency with the Greenway.  Mr. Daly stated the Standing Committee does according to the general protocols. 

Mr. Burgasser stated that the reason for the request for a small committee to meet is because the position NYPA is at right now also gives everyone at this table the right to make that decision; everyone in the room has a veto (equal right) not to have any project move forward.  Therefore, Mr. Burgasser stated, he sees the meeting of the committee would be to develop a way for all of the members to agree and find a way that is different than a majority vote—and he asked if this is what NYPA wants.  Mr. Chase stated that they feel that a smaller group of representatives of the Standing committee who are empowered to make decisions and negotiate the protocols might be a better approach to getting to something they can agree to so they can start spending the money which will be available by October 30. 

Mr. Burgasser stated that a meeting was already held where there were only a few people from the Niagara Power Coalition involved and Mr. Widger was given direction to draft according to his understanding of the committee voting.  He came up with the language and then it was not the same understanding as to what was agreed to at the meeting, so is this meeting of a small committee going to allow them to move forward. 

6.0          Standing Committee Protocol  (Continued…)

Mayor Anello stated that politics could play a part in the NYPA; the pressure for an answer of yes or not could come from some political pressure in the future and unfortunately that is never made public.

Mr. Kahn stated that it appears there is distrust on the part of NYPA with the other 7 entities.  He suggested trying to live with the protocols that the Host Community has drawn up for a period of approximately two or three years with a sunset clause that if it is not working it could be renegotiated.  Mr. Chase asked if the HC would consider the opposite; that the committees try to make all decisions based on consensus and if it does not work renegotiate. 

Mr. Newlin stated that NYPA signed off on language that said a concerted effort at consensus will be made. 

Mr. Massaro stated that it appears that part of the problem is the Host Communities because they have reached the highest level of their authority and have not told NYPA whether or not they will ever accept what you are proposing, however, NYPA said today that the highest level of their authority will never accept what is being proposed.  Because of that, Mr. Massaro asked what the purpose of any type of meeting is if this group is firm on trying to confirm how we get a consensus.  The group has to decide whether or not this is a position they will not move off of, as NYPA has indicated, in a positive way. 

Mr. Burgasser stated that in negotiations between the County and NYPA in the past they were able to come up with solutions and new and different ways to resolve some problems to the satisfaction of both parties.  Therefore, on behalf of NYPA Mr. Burgasser supports giving the committee an opportunity.

Mr. Chase stated they are still open to ideas and discussion.  He stated they are still open to ideas and getting a group together where they can look at the issues of the document as a whole and figure something out to bring back to the HC Committee that everyone can live with.

Mr. Newlin stated that when the NPC meet independently after this meeting, the members will consider whether or not to assemble a small committee per NYPA’s suggestion that is authorized to negotiate an agreement. 

Mr. Massaro stated that NYPA has said they will not agree to anything that has to do with a vote and that comes from the highest level of NYPA; if this is the case the group needs to know that.  He also stated that he does not know if any entity can delegate its authority to a small committee to decide.  He asked Mr. Chase if he is open to some procedure which may allow for some type of a vote?

Mr. Chase stated it depends on what it looks like.  Mr. Massaro stated it is a “vote.”  Mr. Chase stated they cannot agree to a vote if something is improper.  Mr. Fluskey stated he understands that if NYPA were to conclude a certain project was inconsistent with the Greenway Plan, it would not get funded and NYPA is not willing to ever back off that position.  Mr. Chase stated they will not support a project that is inconsistent to the Greenway Plan.  Mr. Fluskey stated it would be NYPA’s determination whether or not the other members disagree with that determination.  Mr. Chase stated that if both the Chairman of the Standing Committee and NYPA agree that it is not consistent, both of those entities can be overridden by a vote.

6.0          Standing Committee Protocol  (Continued…)

Mr. Newlin stated that there is a fear that any one member, over the course of 50 years, NYPA, city, town or school district may sometime start flexing a “veto” over reasonable projects and with eight entities at the table over 50 years the likelihood of politics entering the dialogue at some point is high.  Mr. Newlin stated that the Host Community Agreement clearly gives this body the authority to establish consistency. 

Mr. Chase stated the NYPA is open to other ideas; but the one on the table does not work.  If there are other ways of doing it they are open to that.

Mr. Chase stated that with regards to the funds, there is language in the settlement agreement setting the amount of money for each entity; if you only spend a portion of it, then unless that entity agrees to use the remainder on other projects in the community, the remainder will roll over to be available the next year for the same entity.  Mr. Chase stated NYPA is proposing to establish a $3 million Greenway Fund for the Host Communities. 

Mr. Kahn asked what happens if there is no agreement reached by October 31^st.  Mr. Chase stated the $3 million Greenway Fund will be established.  Mr. Burgasser stated that 7.1 states the Host Communities are going to establish that fund, so the committee needs to establish where that fund is going to be and set it up.  Mr. Newlin asked that NYPA review that language.

Mr. Chase stated that in reading the agreement they feel the agreement calls for the establishment of a fund and NYPA will make $3 million payments annually to the fund and they are prepared to establish the fund as they are obligated to do by the end of October of this year and that money will be available to the Host Communities for projects that are consistent with the Greenway.  Mr. Newlin asked if the NYPA could have attorneys and/or accountants meet with HC’s attorneys/accountants to establish the fund.  Mr. Chase stated the intent of that language was to allow the Host communities to figure out who was going to get how much money and that language was agreed to by NYPA to recognize that that is what the HC wanted to do without putting the percentages in the document.  It was not intended for the HC’s to determine what mechanism is used to distribute the monies. 

Mr. Massaro asked if one or more of the Committee will be signatory to the fund, or will it just be NYPA who has control over the disposition of that fund.  Mr. Malone stated they have not thought that far ahead, but NYPA has certain accounting requirements both internally and via the State Comptroller and certain reporting requirements.  The specifics of how the fund will be set up have not been established yet.  Mr. Newlin asked if NYPA to consider working with HC to establish the fund.

7.0          Next Meeting

Not discussed.

8.0          Adjournment

Mr. Massaro made a motion, seconded by Mr. Hapeman, to adjourn the meeting.  Meeting adjourned at 1:20 p.m.

Respectfully submitted,                                                                               Reviewed by,

_____________________________                                            _____________________________

Mary P. Melloni                                                                                                Donald Rappold

Recording Secretary                                                                       Secretary