HOST COMMUNITIES

STANDING COMMITTEE MEETING

Monday, March 3, 2008 – 12:00 p.m.

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 (Via Teleconference)

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

1.0          Call to Order

Chairman Granto called the Host Communities Standing Committee meeting to order at 12:20 p.m. 

2.0          Roll Call

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

3.0          Pledge of Allegiance

Chairman Granto led the pledge of Allegiance.

4.            Standing Committee Protocol

Chairman Granto stated that the members have Mr. Widger’s draft of the Protocol that should encompass all changes.  He asked that the members review the document in preparation to approve it, at which time Mr. Widger will do a final draft and then there will be a final vote at the March 24^th meeting.  Mr. Granto asked that each member provide their input at this time:

Mr. Daly of NYPA:  Under Committee Procedures - General, 1^st paragraph, add “including banking arrangements and procedures” after (b) amendment of this Protocol. Mr. Widger asked how banking arrangements is different from amending the rest of the protocol.  Mr. Daly stated Mr. Chase strongly wanted the banking arrangements and procedures separated here as a third exclusion to the majority voting process.  As it is already part of the protocol, it would make more sense to just say “including the banking arrangements and procedures.”  Mr. Widger stated the question this raises is why some other part of the protocol isn’t included in that statement.  As far as making reference to the banking procedures, Mr. Widger stated it does no harm, it is one of the things that might be amended and the “amendment to the Protocol” would include that.  Mr. Burgasser asked if when they decide they are going to select a bank, which is exactly what NYPA said is part of the banking procedures, they will have to do it pursuant to the way the protocol is amended.  Mr. Burgasser would oppose this change.  Mr. Fluskey stated he agreed with Mr. Widger, that it will raise the question of why other items are not spelled out.  Mr. Granto stated he will hold this suggestion in abeyance.

Mr. Daly referred to page 7, Section Amendment of Protocol. The location of this section is in the middle of “Dispute Resolution Process.” He proposed that it go under the Committee Procedures as a second subsection under General on page 4.  Mr. Widger explained that it is intended to be co-equal to the other subheadings under Committee Procedures, not intended to be a heading under the Consistency Determination.  Mr. Fluskey suggested that if the intent of the amendment to the Protocol applies to the entire protocol, why not put it at the end of the entire document.  Mr. Daly and Mr. Widger agreed.  The section will be moved to the end of the document.

Mr. Daly stated that Effective Period language came from the dispute resolution process; not all of the committee procedures.  The original language read “this provision shall be effective upon…”  It was suggested to change the language and name of the section to Consistency Determination.  Mr. Widger stated he will work with it to include Effective Period and Consistency Determination so there will not be any confusion about it implying anything else.

Mr. Daly referred to the Sponsorship and Funding of Proposed Projects section, second paragraph, sentence beginning with “The County of Niagara’s Authority…”   He stated that it appears to refer to the Consistency Determination and it should not.  It prevents each member from ever voting against the other.  Mr. Granto stated that the idea was that because the County encompasses all our jurisdictions, not have them outweigh the host community. 

After a lengthy discussion, it was agreed to revise the sentence in this same section, beginning with “The Authority of …. “  to “The authority of any of the other six (6) Host Communities to object shall not apply to a County-sponsored project located with their individual boundaries, providing it complies with all applicable Local, State and Federal Laws and municipal regulations if any.

Mr. Daly referred to page 15, under Banking Arrangements and Procedures, number 4, insert “in interest-bearing” before Clearing Account. 

Mr. Daly stated that his understanding is that logistically money will go into an account and then immediately move it into 7 separate accounts and then pay the account back for administrative charges, because there will be no interest gained in the clearing account if the money is removed immediately.  Mr. Daly asked if they would achieve the same thing if, in the banking resolution, it states what the various entities’ signing authority will be on the clearing account, versus having seven separate accounts. Mr. Burgasser stated that one thing that can’t be achieved is keeping track of the interest earned.  Initially, when the money is put into the account it will already have interest-earned from the previous account it was in and that interest can stay there. 

Mr. Burgasser asked Mr. Widger if he checked with the State Comptroller’s office regarding having NYPA as a signatory on the individual member’s accounts.  Mr. Widger stated that their initial reaction was that it did not seem like it would be a problem, however, he referred Mr. Widger to their legal department and that person has not contacted him yet.  Mr. Widger will follow up with him.   Mr. Burgasser stated that there was a question regarding if dividing up the money will give a lower interest rate.  A voice mail he received stated that they checked the method of doing this and $500,000 is a breaking point; money market is the best way to go.  It seems to indicate that over or under $500,000 may make a difference in the interest rate. Mr. Burgasser stated that one account will create some problems with determining interest rates for each entity.  It was recommended to keep it with the seven accounts and the members agreed.

Mr. Burgasser suggested in the first sentence of number 3, after “…its specified share”, adding “of administrative costs and expenses,”  Number 6 was revised to read ”Each of eight (8) members of the Standing Committee shall be authorized signatories for their individual Fund Accounts together with NYPA.”

Mr. Daly stated that in the Settlement Agreement, Section 7.5 identifies annual reports.  He asked if those annual reports could be submitted to an independent auditor every three years.  Mr. Daly stated the Committee is better served by an independent audit of the fund, and every three years seems to make sense.  Mr. Granto stated that NYPA is welcome to do an independent general audit whenever they feel it is necessary. 

Mr. Daly stated that under the Dispute Resolution Process, paragraph (c), please hold this revision until NYPA can review what the Commercial Rules of the American Arbitration Association entail.

Niagara Wheatfield – Hapeman:  No Comments

City of Niagara Falls – Mayor Dyster:  Mayor Dyster stated that his concerns were on Page 9 and those have been addressed. 

Town of Niagara:  No Comments.

Town of Lewiston – Mr. Fluskey:  Mr. Fluskey stated that in making comments he does not mean to imply that even if they are suggested, he would recommend them for the Protocol.  Mr. Fluskey stated that the Protocol has gone a long way from the Host Community Agreement and that has caused him concern.  He stated that he believes everyone agrees in adopting the Protocols none of them have given up any rights or obligations they have under the Host Community Agreement.  The Protocols do not in any way trump the Host Community Agreement or in any way govern.  He stated he feels this should be put in at the end of the Protocol.  Mr. Massaro asked if that means the Host Community consensus for consistency will override everything the group has been working on for five months.   Mr. Fluskey stated that his understanding is that the Protocols were designed to implement the Host Community projects.  If they don’t and Lewiston is waiving its rights to the Host Community Agreement, they cannot do it.  Mr. Fluskey stated that effort to achieve consensus means unanimity, then why is everyone agreeing to the Protocol if it is a document that trumps existing rights that can only be amended by unanimity. 

Mr. Burgasser stated that he understands that what Lewiston is saying is that they are willing to try the 2 year consistency and then there will be a concerted effort to achieve consensus to change the Protocols.  Mr. Burgasser stated that he is not willing to give up the rights under the Host Community Agreement either, but he is willing to put them off for that two-year period on that one particular item.

Mayor Dyster said that his understanding is also that nothing in the Protocol overturns anything in the Settlement Agreement, but the language in 7.3 of the Settlement Agreement was not going to be adequate, therefore, you developed the Protocols.

Mr. Fluskey stated that they have gone from a document that is relatively clear, to Protocols that are basically written in stone.  He stated that he is concerned that if there is a problem in the future, the group is giving up their right to go to court to get your money. 

A further discussion ensued and Chairman Granto stated that it was agreed previously that they are going to move along and approve projects for the next two years based on the language in 7.3 of the Host Community Settlement Agreement. 

Mr. Fluskey referred to Page 5, Paragraph (b).  Because paragraph (c) deals with “selection” of arbitrators as opposed to dispute resolution, after the last sentence in paragraph (b), insert the last sentence in (c).  Mr. Widger suggested adding this to the end of paragraph (a).  It was agreed this would be okay.

It was agreed that the following statement would be inserted at the end of and be made a part of paragraph (a) on Page 5: “Final notice of arbitration within 15 business days of final determination date; within 30 calendar days thereafter must choose arbitration panel.”

A discussion was held regarding the meaning of”a concerted effort to reach consensus.”  Mr. Fluskey questioned what the understanding is of this by the group.  Mr. Burgasser stated that it means that for a two year period they are going to try reaching consensus on consistency.  The discussion continued.

After some discussion, Chairman Granto asked Mr. Widger if he wished to change the consensus language.  Mr. Widger stated that it was fine to leave it as it is, because he knows what it is intended to mean.  One or two members are confused; therefore if the remainder of the group is concerned then he could make a change.  Mr. Burgasser stated the County would like to see the language clarifying the meaning.  Mr. Widger stated he would insert:  “for a determination of how a concerted effort to achieve “consensus” can be carried out and the consequences of failure to achieve such consensus….”

Mr. Fluskey stated that on Page 9, Sponsorship and Funding of Proposed Projects, at the end of the first paragraph he would like Stan to add “consistent with Section 7 of the Host Community Settlement Agreement and the NPC by-laws referenced therein.”

Mr. Fluskey referred to page 15, Release of Funds, first paragraph.  He asked if they envision having to submit invoices to receive their money in all cases.  Mr. Widger stated that is intended to cover the one check per year situation, the idea being that if you have 30 invoices from vendors or contractors that comprise the total amount you are getting for the year, the sponsor of the project would submit what amounts to the total amount in your invoice to the HC Standing Committee and that is what the payment would be made against. The remainder of that provision is intended to say that you have to hold on to all your documentation; but you do not have to submit all of those when you submit your single invoice to the committee.  Mr. Fluskey stated that this implies the sponsor will have to front money because they are going to get invoices from contractors and before they can pay them they either will front the money of their own funds or turn invoices over before they get funded.  Mr. Fluskey asked if the members envisioned it this way.  Mr. Widger stated you can submit it by doing a reasonable estimate of what the cost will be based on the individual bids and presumably bill the Standing Committee before you void out the funds.  And as the sponsor receives their own invoices from the contractors and vendors you accumulate them and in the reporting process you will have to indicate that you actually did make expenditures for the money that was received.  

Mr. Newlin stated that this has been reviewed in the past.  He stated the easiest way to do this, unless this organization wants to get into reviewing bills and making payments, is that the project gets approved, once the project is approved the sponsoring entity then takes care of the check writing and submits bi-monthly or quarterly those bills back to the HC Standing Committee as a verification the money is expended properly.  However, to keep coming back to the Committee for each invoice will require more staff.

Mr. Burgasser stated he understood it was agreed that once a project was approved the money would be turned over to the sponsor and the sponsor would be responsible.  That is why the reporting aspects and other items were revised in the protocol.  Mr. Granto stated that this is what everyone understood.

Mr. Fluskey stated it does not read that way and needs to be revised.  Mr. Widger stated that he will clarify it to say what the method is for determining what the prospective funds will be (i.e. bids, estimates).  Mr. Newlin stated it should read whatever funding the project is approved for. 

It was agreed that the paragraph on Page 16, following number 4. will be moved to Release of Funds, as the first paragraph.  This will clarify the misunderstanding that is being discussed.  And, the next sentence will be revised to read “Funds will be released for approved projects within thirty (30) days of qualifying project.”

Mr. Daly asked for clarification regarding the disbursement of checks.  It was explained it is one check per one approved project per year. 

Lewiston Porter:  No comments.  Mr. Rappold stated that on June 27, 2005 every entity signed the Host Community Agreement and the protocols are the procedure and he does not want the procedure to trump the agreement.

Niagara County:  No comments.

Mr. Widger stated that he will prepare a revised version and is asking that anyone who has been taking notes or making comments  and would like to have a couple of people to review the drafts with him.  Mr. Granto requested Rob Daly and Rob Fluskey to be the contacts for this.  He will try to have a draft protocol sent out before the next meeting.

5.0          Other Matters – None.

6.0          Next HCSC Meeting:

                                Date:     Wednesday, March 20, 2008

                                Time:    12 Noon

                The NPC meeting will follow.

8.0          Adjournment

Mr. Newlin made a motion, seconded by Mr. Richards. Motion passed.  Meeting was adjourned at 3:05 p.m.

Respectfully submitted,

__________________________

Mary P. Melloni

Recording Secretary