2023 New York Laws › HAY - Highway › Article 12-B - State Arterial Highways Passing Through Cities › 349-C - Design, Construction, and Payment of Costs.

§   349-c.   Design,   construction,   and   payment   of   costs.  1.
Notwithstanding the provisions of any general, special or local law, the
commissioner of transportation is authorized and  empowered  to  prepare
designs,  plans,  specifications  and  estimates  for  the construction,
reconstruction or improvement (1) of any extension  or  continuation  of
any highway or route which is now or which shall hereafter be authorized
by  section  three  hundred  forty-one  of this chapter, upon any public
street or streets in any city outside of the city of New York, which are
now or which shall hereafter be designated in this article, and  (2)  of
any existing or proposed main routes or thoroughfares in the city of New
York;  all of which are designated in this article. Such designs, plans,
specifications and estimates may be prepared (a) by  the  department  of
transportation; (b) by any city herein named, if the preparation of such
designs,  plans,  specifications and estimates are authorized in advance
by the commissioner of transportation  and  then  upon  such  terms  and
conditions   as  may  be  agreed  by  and  between  such  city  and  the
commissioner of transportation; (c)  subject  to  the  approval  of  the
director  of  the  budget,  by  the  employment  of private engineers or
engineering firms;  or  (d)  by  a  combination  of  such  methods.  The
commissioner of transportation may, in his discretion, provide or direct
that  there  be  provided  in  such  designs,  plans, specifications and
estimates, such  roadside  and  landscape  development,  including  such
sanitary  and  other facilities as may be deemed reasonably necessary to
accommodate the public; provided however that such development is within
the bounds of any property acquired  for  purposes  connected  with  the
highway  system  of  the state of New York pursuant to this chapter, and
any adjacent publicly owned or controlled recreational areas of  limited
size  and  with  provision  for  convenient  and  safe access thereto by
pedestrian and vehicular traffic. All references  hereinafter  contained
in  this  article to the construction of facilities and appurtenances of
state highways, or to a section or sections of the arterial system,  may
be  deemed  to  include the development and facilities mentioned in this
paragraph.
2. With relation to any city named in this article, but not  including
the city of New York:
2.1. The commissioner is authorized to provide in such designs, plans,
specifications   and   estimates,   for   bridges,  culverts,  drainage,
shoulders, gutters,  curbs,  sidewalks  and  any  other  facilities  and
appurtenances as he may determine.
2.2.  The  commissioner  shall  construct, reconstruct or improve such
extensions   or   continuations,   including   said    facilities    and
appurtenances,  in  the  same manner as other state highways, facilities
and appurtenances are constructed, reconstructed and  improved  pursuant
to  this  chapter.  After designs, plans and specifications thereof have
been completed and approved by the city and the commissioner,  the  city
may,  however,  elect  to construct such section or sections and acquire
property therefor at its own expense in the manner provided by the  city
charter  or  otherwise.  For  all  the  purposes  of  this  section, the
jurisdiction of the commissioner shall extend over the  entire  property
affected  by  the  provisions  hereof,  as  such  jurisdiction  has been
obtained, or as such jurisdiction may hereafter be obtained pursuant  to
the   provisions   of  this  chapter.  Such  sidewalks,  facilities  and
appurtenances  shall  be  maintained  or  shall  be  continued   to   be
maintained,  as  the case may be, by the city in which they are located,
or by the agency or unit  owning  or  having  control  and  jurisdiction
thereof.
2.3.  The  governing  body  of any city named in section three hundred
forty-nine-e of this article may apply to the commissioner for a  change

in  such designation of a public street or streets within the boundaries
of such city, and the commissioner may grant such  application,  and  in
case  such  application is granted, the additional costs and expenses of
the  acquisition  of  property and legal damages caused thereby, and the
additional  costs  and  expenses  of  construction,  reconstruction   or
improvement  of  the  public  street  or  streets  as  requested in such
application shall, pursuant to written agreement, be paid by  such  city
to  the state. The monies so required shall be raised by tax or pursuant
to the local finance law or in accordance with any local charter or law,
as the case may be, and such funds shall be deposited and be subject  to
requisition  in the manner as herein provided in case a greater width or
different type of construction is desired by such city.
2.4. A state highway may be constructed or reconstructed  through  any
such city, of such width and type of construction as the commissioner of
transportation  shall  deem  proper, unless a greater width or different
type of construction  is  desired  by  such  city,  in  which  case  the
governing body of such city may apply to the commissioner to provide the
width  and type of construction desired. The commissioner may grant such
application, if he deems the filing of such application  to  be  timely,
and  the  additional  costs  and  expenses  of  such  width  and type of
construction, or either of them, shall, pursuant to  written  agreement,
be  paid by such city to the state. Whenever the commissioner shall have
granted such an  application  the  designs,  plans,  specifications  and
estimates  of  cost,  together  with  an estimate showing the additional
costs and expenses to be borne by such city, to provide for the  greater
width  or  different type of construction or both, shall be submitted to
the governing body of such city which,  if  it  approves  such  designs,
plans,   specifications  and  estimate  of  cost,  shall  by  resolution
appropriate the funds necessary to provide for the portion of the  costs
and expenses of construction to be borne by such city. Such funds shall,
prior  to  the  advertisement for bids for or including the said greater
width or different type of construction, be deposited by such city  with
the  state  comptroller  subject  to  the  draft  or  requisition of the
commissioner, and a certified copy of such  resolution  shall  be  filed
with  the  state  comptroller  and  with the commissioner. The monies so
required shall be raised by tax or pursuant to the local finance law  or
in  accordance  with  any local charter or law, as the case may be. Upon
the completion of a highway within such city  where  a  portion  of  the
costs and expenses are borne by the city the commissioner shall transmit
to  the governing body of such city a statement showing the actual costs
and expenses of the additional width or changed construction including a
proportionate charge for engineering, and shall notify  the  city  clerk
that  he  will  accept the work within twenty days from the date of such
notice, unless protest in writing against the acceptance shall be  filed
by  such  clerk  with  the  commissioner. In case a protest is filed the
commissioner shall hear the same and if it is sustained the commissioner
shall delay the acceptance of the highway or section thereof  until  the
same  be  properly  completed.  If  no  protest  is filed the highway or
section thereof shall at the expiration  of  the  said  twenty  days  be
deemed  finally  completed  and  accepted on behalf of such city and the
state. The provisions of any general or special  laws  relative  to  the
pavement or improvement of streets and the assessment and payment of the
cost  thereof  shall  apply,  as  far  as  may  be,  to  such additional
construction and the assessment and payment of the cost thereof,  except
that  the  provisions of any general or local act affecting the pavement
or improvement of streets or avenues in any such city and requiring  the
owners,  or any of the owners, of the frontage on a street to consent to
the improvement or pavement thereof, or requiring a hearing to be  given

to  the  persons  whose  premises  are  subject  to assessment, upon the
question of doing such paving or making such improvement shall not apply
to the portion of the improvement or pavement of  a  state  highway  the
expense for which is required to be paid by such city to the state.
2.5.  Whenever the commissioner deems it necessary to acquire property
for the purpose of  widening  any  such  designated  street,  he  shall,
transmit  the  plans generally describing the proposed location for said
street to the governing body of  such  city  in  which  such  designated
street  or  any  portion  thereof is located. The governing body of such
city, after the receipt of such plans may conduct a  public  hearing  or
hearings  upon such notice as such governing body shall deem reasonable,
but not less than ten days, to the commissioner and to such other  party
or  parties  deemed  by  said  governing  body  to  be interested in the
project. In any event and within sixty days or within such other  period
of  time  as  may  be  provided by the provisions of the charter of such
city, after the receipt of such plans, the said governing body shall, by
resolution,  duly  adopted  by  its  members,  approve,  disapprove   or
recommend  modifications  in  such  plans  as  the public interest shall
require. Within ten days after the adoption of the resolution, the clerk
of such governing body shall  mail  a  certified  copy  thereof  to  the
commissioner. The commissioner shall not proceed with the designs, plans
and  specifications  unless such city in which such designated street or
portion thereof is located approves the plans generally  describing  the
proposed  location.  Before  filing  the  description  and  the original
tracing of any map, or proceeding with the acquisition of such  property
or   the  work  of  construction,  reconstruction  or  improvement,  the
commissioner shall transmit the designs, plans  and  specifications  for
the  construction,  reconstruction  or  improvement  of the extension or
continuation upon said street to the governing  body  of  such  city  in
which  such  designated  street  or  any portion thereof is located. The
governing body of such city, after the receipt of  such  designs,  plans
and  specifications,  may conduct a public hearing or hearings upon such
notice as such governing body shall deem reasonable, but not  less  than
ten  days, to the commissioner and to such other party or parties deemed
by said governing body to be interested in the project. In any event and
within sixty days or within such other period of time as may be provided
by the provisions of the charter of such city, after the receipt of  the
designs,  plans,  and  specifications, the said governing body shall, by
resolution,  duly  adopted  by  its  members,  approve,  disapprove   or
recommend modifications in such designs, plans and specifications as the
public interest shall require. Within ten days after the adoption of the
resolution, the clerk of such governing body shall mail a certified copy
thereof  to  the  commissioner.  The  form  of  the  resolution shall be
prescribed by the  commissioner.  In  case  such  governing  body  shall
disapprove  the  designs,  plans  and  specifications, without proposing
modifications, the commissioner may,  in  his  discretion,  prepare  and
submit  to  such  governing  body  for approval other designs, plans and
specifications, for the construction, reconstruction or  improvement  of
the  extension or continuation within the bounds of such city, or in his
discretion he may proceed with the work of construction,  reconstruction
or improvement within and confined to the existing width of the pavement
of  said  designated  street  in  the  affected  location.  In case such
governing body shall disapprove the designs, plans  and  specifications,
and  shall  recommend  modifications,  the  commissioner may approve the
designs, plans and  specifications,  so  modified,  or  recommend  other
modifications  for approval, and said extension or continuation shall be
constructed, reconstructed or improved in accordance with such  designs,
plans  and  specifications, as finally approved. When the designs, plans

and specifications for construction, reconstruction or improvement of an
extension or continuation as aforesaid have  finally  been  approved  as
hereunder  provided,  no  resolution thereafter adopted by the governing
body  of  such city shall rescind, annul or modify such prior resolution
either directly or indirectly, excepting upon the advice  and  with  the
consent  of  the  commissioner.  Upon  the  failure  or  omission of the
governing body of any such city to act within the time and manner herein
required the said designs, plans and specifications shall be  deemed  to
be approved so far as such governing body is concerned.
2.6.  Any property which is deemed by the commissioner to be necessary
to carry out the provisions of this section, shall be  acquired  by  him
pursuant  to  the eminent domain procedure law and applicable provisions
of section thirty of this chapter, except that the function of the board
of supervisors as to approval of controlled access shall be exercised by
the governing  body  of  the  city.  The  costs  and  expenses  of  such
acquisition  of  property  and any liability incurred by reason thereof,
including legal damages caused by such acquisition and by  the  work  of
constructing,   reconstructing   or   improving   such   extensions  and
continuations,  including  legal  damages  caused  by   such   work   of
construction,  reconstruction  or  improving, all as provided in section
thirty of this chapter, shall be paid by the  state,  provided  however,
that  with  respect  to  any  such  acquisition  made on or before March
thirty-first, nineteen hundred sixty-five only, such costs and  expenses
shall  be  paid by the state in the first instance and shall be borne as
follows: fifty per centum by the state and fifty per centum by such city
affected thereby.
2.6-a.  Whenever  the  commissioner  determines  that   any   property
heretofore  or  hereafter  acquired  pursuant  to the provisions of this
section is no longer necessary for any of the purposes for which it  was
acquired, he may, subject to compliance with section four hundred six of
the  eminent  domain procedure law and notwithstanding the provisions of
any general, special, or local law, dispose of such property by sale  or
exchange  upon terms beneficial to the state; provided, however, that on
highways where access is not controlled, such disposal of such  property
shall  not thereby deprive an abutting owner of frontage on such highway
immediately in front of his abutting land. If any such sale or  exchange
be  made  to or with a person who was the owner of property appropriated
for such highway, the consideration therefor may  be,  in  whole  or  in
part,  a  release  by such former owner of any claim he may have against
the state by reason of such appropriation of his property. In  order  to
carry  any  such sale or exchange into effect the commissioner is hereby
authorized to execute and deliver for and on behalf and in the  name  of
the  people  of  the  state  of  New  York and under his official seal a
quitclaim deed of such property. Such deed  shall  be  prepared  by  the
attorney general and before delivery thereof shall be approved by him as
to  form  and manner of execution. The total amount of the consideration
passing to the state  for  any  such  conveyance  shall  be  apportioned
between  the  state and the city in which such highway is located in the
same ratio in which the costs and expenses of the  acquisition  of  such
property  was  borne  by  the state and such city and the amount thereof
apportioned to such city and exceeding any amount owing from  such  city
to the state pursuant to the provisions of this section shall be paid to
such   city   out   of   monies   appropriated   for  the  construction,
reconstruction  or  improvement  of  state  highways.  The   amount   of
consideration  paid  in  cash  for any conveyance hereinabove authorized
shall be paid into the  state  treasury  and  credited  to  the  capital
construction funds.
2.7.  If  any  such  property  shall be so acquired on or before March
thirty-first, nineteen hundred sixty-five, in  any  such  city  for  the
purpose  of  this  section, before such property shall be so acquired in
such city for the  purpose  of  this  section,  the  commissioner  shall
transmit  to  the  governing  body  of such city an estimate showing the
proportionate costs and expenses of such acquisition as such  costs  and
expenses  are specified in section thirty of this chapter, whereupon and
within ninety days after the transmittal  of  said  estimate  such  city
shall  (a)  by resolution, appropriate the funds shown in said estimate,
(b) deposit such funds with the state comptroller subject to  the  draft
or  requisition  of  the  commissioner,  and  (c)  file  a  copy  of the
resolution with the state comptroller and with  the  commissioner.  Upon
the  completion  of  a  highway  within such city where a portion of the
costs and expenses of the acquisition of the property are borne  by  the
city, the commissioner shall transmit to the governing body of such city
a statement showing the actual costs and expenses of such acquisition as
hereinbefore  mentioned,  and  shall notify the city clerk of the amount
due from or to be returned to the city, as the case may be. Any sum  due
the state shall be paid by such city within sixty days after the date of
the transmittal of said statement and the funds therefor shall be raised
by  tax  or pursuant to the local finance law, or in accordance with any
local charter or law, as the  case  may  be.  If  it  is  determined  by
resolution  of  the  governing  body  of  such  city  that the financial
condition of such city would be adversely affected by the payment in one
lump sum of the full amount of its share of the costs  and  expenses  of
right  of  way acquisition, the commissioner, subject to the approval of
the director of the budget, and such city acting through  the  mayor  or
other  administrative head thereof, pursuant to the aforesaid resolution
of the governing body of such city,  are  authorized  to  enter  into  a
written  agreement  extending  the repayment by the city of its share of
such right of way costs and expenses advanced by the state in the  first
instance,  by  providing  for  such repayment to be made by equal annual
installments without  interest,  payable  by  such  city  to  the  state
comptroller  on or before April first of each year and in no event shall
such period of repayment to the state  exceed  the  term  of  ten  years
provided  however,  that  during the term of repayment any such city may
elect to pay the balance owing  to  the  state  in  full  or  make  such
additional  payment  or  payments and at such time or times as it may so
propose. The director of the budget shall not approve the  extension  of
repayment to the state by such city of its share of any additional right
of  way  costs  and expenses advanced by the state in the first instance
until such time as the state comptroller shall certify to  the  director
of  the budget that all monies previously owed to the state by such city
in accordance with the provisions of this  article  have  been  paid  in
full.  Whenever  such city shall fail to make an installment payment due
in accordance with the provisions of such repayment agreement, the state
comptroller thereupon shall cause to be withheld  from  state-collected,
locally-shared  taxes  or  state aid whichever he shall determine and to
which such city  would  otherwise  be  entitled,  a  sum  sufficient  to
reimburse the state for the amount due and owing the state in accordance
with such repayment agreement. Such monies so withheld shall be credited
by the state comptroller against the amount payable to the state by such
city in accordance with the provision of such repayment agreement.
3. With relation to the city of New York:
3.1.  For  convenience  of  design,  acquisition  of  property and for
purposes of construction,  reconstruction  or  improvement,  such  state
arterial  system  in  the  city  of New York (hereinafter called "city")
shall be divided into such sections as may be agreed by and between  the

commissioner  and  the  city  planning commission. Funds that are now or
that shall hereafter be made available to pay the costs and expenses  of
design,  acquisition  of  property,  and construction of the uncompleted
portions  of such system, may be used to pay the said costs and expenses
in connection with a section or sections of such system as  agreed  from
time  to  time  by  the city and the commissioner. The city may elect in
advance to prepare designs, plans, specifications and estimates of  cost
for  any  such  section  or  sections  of  such  system,  as hereinafter
provided.
3.2. Notwithstanding the provisions of any general, special  or  local
law,  designs,  plans,  specifications  and  estimates  of  cost for the
uncompleted portions of the system may be prepared wholly or  partly  by
the  commissioner  or  by  the  appropriate  city  agency  if  the  said
commissioner shall approve or, subject to the approval of  the  director
of the budget, by private architectural or engineering firms selected by
the  said  commissioner.  The  preparation  of  any such designs, plans,
specifications and estimates of cost by the  city  shall  be  undertaken
only  when  specifically  authorized in advance by the commissioner. The
costs and expenses thereof shall be paid out of funds now  or  hereafter
available  for  such  purposes.  Such designs, plans, specifications and
estimates of costs shall require the approval of the city in the  manner
provided  by  the  city charter and administrative code. The appropriate
city department or agency may prepare designs, plans, specifications and
estimates of cost at the cost and expense of the city for  any  part  of
such system which such city elects to construct at its own expense.
3.3.   Any   property   which   is   deemed  by  the  commissioner  of
transportation to be necessary to  carry  out  the  provisions  of  this
article  shall  be  acquired  and  may be disposed of by him pursuant to
applicable provisions of the eminent domain procedure  law  and  section
thirty  of  this  chapter,  except  that  the  function  of  the  county
legislative body as to approval of controlled access shall be  exercised
by  the  governing  body  of  the  city.  Nothing in this section shall,
however, preclude the city from acquiring, subject to the  city  charter
and  administrative code, all or any part of the property needed for the
system in the event that sufficient state funds are not available and it
is deemed desirable by the city to acquire title  promptly  to  expedite
completion  of  all  or  parts  of the system, but no liability shall be
created thereby or deemed to have been assumed  by  the  state  in  such
event.
3.4.  The  state  shall  proceed with the construction of a section or
sections  of  said  system  after  designs,  plans,  specifications  and
estimates  of  cost thereof have been completed and approved by the city
and the commissioner of transportation, and the necessary  property  has
been acquired. The city may, however, elect to construct such section or
sections  at  its own expense in the manner provided by the city charter
or otherwise. Upon the completion by the state of a section or  sections
of  parkways  constructed  by  the  state  in  the city of New York, the
commissioner  of  transportation  shall  by  official   order   transfer
jurisdiction  over  the  central  express  artery and adjacent landscape
areas and over adjacent service roads to the city of New York. All  such
parkways,  excepting  such service roads shall be maintained by the city
department of transportation as parkways restricted to pleasure vehicles
and without access except at designated points,  except  that  the  city
department  of  transportation  may adopt a rule permitting the use of a
portion of the Grand Central  parkway  between  the  Robert  F.  Kennedy
bridge  and  the western leg of the Brooklyn-Queens expressway by single
unit commercial vehicles having no more than three axles and ten  tires.
Parkway  service  roads  shall  be  open  to  mixed  traffic.  Upon  the

completion of a section or sections of expressways including  incidental
service  roads  constructed  by  the  state in the city of New York, the
commissioner of transportation shall transfer jurisdiction to  the  city
of  New  York.  The  provisions  of this article in regard to design and
construction shall apply also to reconstruction of a section or sections
of the state arterial system.
3.5. No change shall be made in the basic plans of the state  arterial
system in the city which will affect adversely the integrity of the said
expressways  and  parkways  in such system by abandoning or relocating a
section or sections or by adding new entrances or exits, or by providing
crossings at grade or traffic  lights,  other  than  on  service  roads,
without approval in writing by the commissioner.
3.6.  Nothing  herein  contained shall affect the powers and duties of
the mayor, the city planning commission and other city  departments  and
agencies  with  respect to the acquisition, construction, reconstruction
and control of such state arterial system in the city, except as  herein
otherwise  specifically  provided, and nothing contained in this article
shall be deemed to supersede, change or  postpone  arrangements  by  the
federal  and state governments with the city of New York to expedite the
post-war arterial improvements within the city with federal,  state  and
city  funds  made  available  for this purpose. Nothing herein contained
shall be construed to alter or in any way change the character  and  use
of marginal streets and the rights of the city therein.
4.  Unless  otherwise  expressly  provided,  nothing contained in this
section shall be deemed to be a modification, limitation or exclusion of
any existing, amendatory or supplemental provisions of this  chapter  or
of  any  other  statute  now or hereafter to be enacted, relating to the
improvement, construction, reconstruction or maintenance  of  any  state
highway with necessary facilities and appurtenances, with federal aid.
5.  The  costs  and expenses of (a) all preliminary work including the
preparation of designs, maps, plans,  specifications  and  estimates  of
cost;   (b)   construction,   reconstruction  or  improvement  including
resurfacing or the construction, reconstruction or  improvement  of  any
sidewalk  because  of a change of grade; (c) the acquisition of property
as defined and  authorized  in  section  thirty  of  this  chapter;  (d)
reconstruction  that  is  undertaken  subsequent  to the construction or
improvement herein provided, shall all be deemed to be  a  part  of  the
cost  of construction and reconstruction of state highways, and shall be
paid from funds available therefor; and  the  cost  of  maintenance  and
repair  as  hereinafter provided, shall be paid from funds available for
maintenance and repair of highways; all on the audit and warrant of  the
state   comptroller   on   vouchers  approved  by  the  commissioner  of
transportation.  The  costs  and  expenses  of  reconstruction  of   any
structure  that separates highway-railroad grades and, in the discretion
of the commissioner of transportation, the costs  and  expenses  of  the
elimination  of  an  existing  highway-railroad crossing at grade shall,
pursuant to a certificate of availability of funds therefor which  shall
have been approved by the director of the budget, be deemed to be a part
of  the  cost  of  construction,  reconstruction or improvement of state
highways and shall, in cases provided in this subdivision,  be  paid  by
the state as part of the cost thereof. Any property that may be required
in connection with such work of construction or reconstruction, shall be
acquired  by  the  procedure provided in section thirty of this chapter,
and the cost and expenses of such acquisition of property as defined  in
this article shall be paid as provided in this article. The commissioner
of  transportation may make an agreement with a railroad corporation for
the performance by such railroad corporation of any work of construction
or reconstruction of  such  grade  separation  structure  and  necessary

facilities  and appurtenances and for reimbursement by the state to such
railroad corporation for  the  cost  and  expense  of  such  work.  Such
agreement  may  provide that such work may be done by (1) the forces and
with  the  equipment  of such railroad corporation, or (2) by such other
method as such commissioner of transportation shall approve, or (3) by a
combination of such methods, as such commissioner of transportation  may
deem  to  be for the best interests of the state. When a structure which
carries a railroad  over  an  arterial  highway,  or  which  carries  an
arterial  highway  over  a  railroad,  is  completed, the bridge and its
supports shall be maintained and repaired by the agency responsible  for
the maintenance of the highway.
6.   The   costs  of  all  such  work  of  preparing  designs,  plans,
specifications and estimates shall be paid out of funds that are now  or
that   shall   hereafter   be   made  available  for  the  construction,
reconstruction  or  improvement  of  state  highways,  subject  to   the
provisions  of  this chapter relating to federal aid or to any grants or
contributions relating to federal aid, as  such  provisions,  grants  or
contributions  are  now  or  shall  hereafter  be  enacted  or  be  made
available; and payment shall be made on the audit  and  warrant  of  the
comptroller on vouchers approved by the commissioner.
7.  The  commissioner  of  transportation  and  any city named in this
article, acting through the mayor or other administrative head  thereof,
pursuant  to  a resolution of the governing body of such city except the
city of New York, are authorized to enter into a written  agreement  for
the  maintenance  and  repair,  under the supervision and subject to the
approval of the commissioner,  of  any  public  street,  main  route  or
thoroughfare or portion thereof, exclusive of service roads and pavement
on  intersecting  street bridges, which is within the boundaries of such
city and which is now or which shall hereafter  be  designated  in  this
article  and  which  has  been  constructed  or  which  shall  have been
constructed as authorized by articles four and twelve-B of this  chapter
and with grants made available by the federal government pursuant to the
federal aid highway act of nineteen hundred forty-four, being public law
five  hundred  twenty-one  of  the  seventy-eighth congress, chapter six
hundred twenty-six, second session, as approved on the twentieth day  of
December,  nineteen  hundred forty-four. Such agreement may provide that
the state shall pay annually to such city a sum to be  computed  at  the
rate  of  (a)  not  more  than  eighty-five cents per square yard of the
pavement area that is included in the state highway system according  to
the  provisions  of  this  section,  and (b) an additional ten cents per
square yard of such pavement area where such pavement area is located on
any elevated bridge.
The maintenance and repair, as provided in this section, shall be done
either by the forces of such city and with  its  equipment,  or  by  its
contractor, or by a combination of these two methods.
8.  Such  agreement  for  maintenance and repair as authorized by this
section, shall include the procedure and method for regulation of street
openings, and  appropriate  provisions  for  the  care,  protection  and
patching  of  the  pavement  or  pavements,  and  curbs,  the  care  and
protection of drainage facilities and  structures,  the  maintenance  of
adjacent  roadside  and  landscaped  areas to include the care of trees,
shrubs and groundcovers and the cutting of grass at specified  locations
and   to  the  extent  as  shall  be  deemed  by  such  commissioner  of
transportation to be for the best interest of  the  public,  control  of
snow  and  ice  on any such public street, main route or thoroughfare or
portion thereof included in such agreement, the performance  of  repairs
and   alterations,  and  the  operation  and  care  of  traffic  lights,
directional guides and controls, and parking controls. Such  maintenance

and  repair, whether done by a city pursuant to an agreement therefor as
authorized by this section, or by the state because of  the  absence  of
such  agreement,  as  the case may be, shall not include (a) services of
lighting,  cleaning,  sweeping and sprinkling of any such public street,
main route or thoroughfare or portion thereof, all of which services are
deemed to be the normal maintenance of streets by  such  city  in  which
they  are  located,  or (b) any work on or in connection with subsurface
installations and structures that are owned and operated  by  any  city,
including  sanitary  sewers,  gas  mains,  water  lines and conduits and
appurtenances thereto.
8-a. (a) Except as provided hereafter the state  shall  indemnify  and
hold  harmless  such  city  for  any  and  all liability for damages for
personal injury, injury to property or wrongful death for losses arising
from or occasioned by the manner of performance of the  functions  under
any  agreement  with  a  city  for  the  maintenance and repair of state
arterial highways pursuant to this section.
(b) In no event shall the state be obligated to  defend  or  indemnify
such city, in any action, proceeding, claim or demand arising out of the
actual  operation  of  a vehicle or other equipment while engaged in the
operation of repair and maintenance under any such  agreement,  nor  any
action, proceeding, claim or demand arising out of services of lighting,
cleaning,  sweeping and sprinkling any such public street, main route or
thoroughfare or portions thereof nor any work on or in  connection  with
subsurface  installations  and structures that are owned and operated by
any city,  including  sanitary  sewers,  gas  mains,  water  lines,  and
conduits, and appurtenances thereto.
(c)  The  city  shall  be  entitled  to representation by the attorney
general in any claim described in paragraph  (a)  of  this  subdivision,
provided,  however, that the city shall be entitled to itself defend any
such action, proceeding, claim or demand whenever the  attorney  general
determines,  based  upon  his  investigation and review of the facts and
circumstances of the case that representation by  the  attorney  general
would  be  inappropriate,  or whenever a court of competent jurisdiction
determines that a conflict of interest  exists  and  that  the  city  is
entitled  to  be  separately  represented.  Whenever the municipality is
entitled to defend the action itself,  the  state  shall  reimburse  the
municipality  for  any  and  all  costs and expenses, including, but not
limited to, counsel fees and disbursements.
(d) The state shall indemnify and  save  harmless  such  city  in  the
amount  of  any  judgment  obtained  against  such  city in any state or
federal  court  in  any  claim  described  in  paragraph  (a)  of   this
subdivision,  or in the amount of any settlement of such claim, or shall
pay such judgment or settlement; provided,  however,  that  the  act  or
omission from which such judgment or settlement arose occurred while the
city  was  acting  within the scope of its functions for maintenance and
repair  of  state  arterial  highways;  provided,   further,   that   no
stipulation  of  settlement  of  any  such  action, proceeding, claim or
demand shall be made  or  executed  without  approval  of  the  attorney
general  and  of  the  commissioner  of  transportation or his designee.
Payment of any claim made pursuant to settlement shall  not  exceed  the
sum  of fifty thousand dollars. Nothing herein shall authorize the state
to indemnify or save harmless with  respect  to  punitive  or  exemplary
damages.
(e)  The  duty  to defend or indemnify and save harmless prescribed by
this subdivision shall be conditioned upon (i) delivery to the  attorney
general  or an assistant attorney general at an office of the department
of law in Albany or New York city and by delivery to the commissioner of
transportation or  his  designee  of  a  copy  of  any  claim,  summons,

complaint,  process,  notice,  demand  or other pleading within ten days
after such  city  is  served  with  such  document  and  (ii)  the  full
cooperation of the city in the defense of such action, proceeding, claim
or  demand and in the defense of any action, proceeding, claim or demand
against the state based upon the  same  act  or  omission,  and  in  the
prosecution of any appeal.
(f) The benefits of this subdivision shall inure only to such city and
shall  not  enlarge  or diminish the rights of any other party nor shall
any provision of this subdivision be  construed  to  effect,  alter,  or
repeal any provision of the workers' compensation law.
(g) This subdivision shall not in any way affect the obligation of any
claimant  to  give notice to the state under section ten of the court of
claims act or any other provision of law.
(h) The provisions of this  subdivision  shall  not  be  construed  to
impair, alter, limit or modify the rights and obligations of any insurer
under any insurance agreement.
(i) Except as otherwise specifically provided in this subdivision, the
provisions  of  this  subdivision  shall  not be construed in any way to
impair,  alter,  limit,  modify,  abrogate,  or  restrict  any  immunity
available to or conferred upon any unit, entity, officer, or employee of
the  state  or  city  of  any other level of government, or any right to
defense and indemnification provided for  any  governmental  officer  or
employee by, in accordance with, or by reason of, any other provision of
state or federal statutory or common law.
9.  Whenever  the  commissioner  of  transportation  shall  deem  such
maintenance  and  repair  by  any  such  city  to   be   inadequate   or
unsatisfactory  according  to  the  terms  of such agreement, he may, by
official order to be filed in his office, and by filing a certified copy
thereof in the office of the department of state, cancel said agreement,
and the payments thereunder  provided  by  the  state  shall  cease  and
determine; whereupon the commissioner may carry out such maintenance and
repair  in the same manner as other state highways are maintained by the
state. The official order provided  in  this  subdivision  shall  become
effective  at  the  expiration of five days after the commissioner shall
mail a certified copy thereof to the city clerk or  other  official  who
performs  related duties in such city. Thereupon, the street, main route
or thoroughfare or portion thereof  described  in  said  official  order
shall be maintained and repaired as provided in this section.