§ 349-C — Design, construction, and payment of costs

New York § 349-C

• Jurisdiction: New York
• Law HAY: Highway
• Art. 12-B: State Arterial Highways Passing Through Cities

Text

§ 349-c. Design, construction, and payment of costs. 1.\nNotwithstanding the provisions of any general, special or local law, the\ncommissioner of transportation is authorized and empowered to prepare\ndesigns, plans, specifications and estimates for the construction,\nreconstruction or improvement (1) of any extension or continuation of\nany highway or route which is now or which shall hereafter be authorized\nby section three hundred forty-one of this chapter, upon any public\nstreet or streets in any city outside of the city of New York, which are\nnow or which shall hereafter be designated in this article, and (2) of\nany existing or proposed main routes or thoroughfares in the city of New\nYork; all of which are designated in this article. Such designs, plans,\nspecifications and estimates may be prepared (a) by the department of\ntransportation; (b) by any city herein named, if the preparation of such\ndesigns, plans, specifications and estimates are authorized in advance\nby the commissioner of transportation and then upon such terms and\nconditions as may be agreed by and between such city and the\ncommissioner of transportation; (c) subject to the approval of the\ndirector of the budget, by the employment of private engineers or\nengineering firms; or (d) by a combination of such methods. The\ncommissioner of transportation may, in his discretion, provide or direct\nthat there be provided in such designs, plans, specifications and\nestimates, such roadside and landscape development, including such\nsanitary and other facilities as may be deemed reasonably necessary to\naccommodate the public; provided however that such development is within\nthe bounds of any property acquired for purposes connected with the\nhighway system of the state of New York pursuant to this chapter, and\nany adjacent publicly owned or controlled recreational areas of limited\nsize and with provision for convenient and safe access thereto by\npedestrian and vehicular traffic. All references hereinafter contained\nin this article to the construction of facilities and appurtenances of\nstate highways, or to a section or sections of the arterial system, may\nbe deemed to include the development and facilities mentioned in this\nparagraph.\n 2. With relation to any city named in this article, but not including\nthe city of New York:\n 2.1. The commissioner is authorized to provide in such designs, plans,\nspecifications and estimates, for bridges, culverts, drainage,\nshoulders, gutters, curbs, sidewalks and any other facilities and\nappurtenances as he may determine.\n 2.2. The commissioner shall construct, reconstruct or improve such\nextensions or continuations, including said facilities and\nappurtenances, in the same manner as other state highways, facilities\nand appurtenances are constructed, reconstructed and improved pursuant\nto this chapter. After designs, plans and specifications thereof have\nbeen completed and approved by the city and the commissioner, the city\nmay, however, elect to construct such section or sections and acquire\nproperty therefor at its own expense in the manner provided by the city\ncharter or otherwise. For all the purposes of this section, the\njurisdiction of the commissioner shall extend over the entire property\naffected by the provisions hereof, as such jurisdiction has been\nobtained, or as such jurisdiction may hereafter be obtained pursuant to\nthe provisions of this chapter. Such sidewalks, facilities and\nappurtenances shall be maintained or shall be continued to be\nmaintained, as the case may be, by the city in which they are located,\nor by the agency or unit owning or having control and jurisdiction\nthereof.\n 2.3. The governing body of any city named in section three hundred\nforty-nine-e of this article may apply to the commissioner for a change\nin such designation of a public street or streets within the boundaries\nof such city, and the commissioner may grant such application, and in\ncase such application is granted, the additional costs and expenses of\nthe acquisition of property and legal damages caused thereby, and the\nadditional costs and expenses of construction, reconstruction or\nimprovement of the public street or streets as requested in such\napplication shall, pursuant to written agreement, be paid by such city\nto the state. The monies so required shall be raised by tax or pursuant\nto the local finance law or in accordance with any local charter or law,\nas the case may be, and such funds shall be deposited and be subject to\nrequisition in the manner as herein provided in case a greater width or\ndifferent type of construction is desired by such city.\n 2.4. A state highway may be constructed or reconstructed through any\nsuch city, of such width and type of construction as the commissioner of\ntransportation shall deem proper, unless a greater width or different\ntype of construction is desired by such city, in which case the\ngoverning body of such city may apply to the commissioner to provide the\nwidth and type of construction desired. The commissioner may grant such\napplication, if he deems the filing of such application to be timely,\nand the additional costs and expenses of such width and type of\nconstruction, or either of them, shall, pursuant to written agreement,\nbe paid by such city to the state. Whenever the commissioner shall have\ngranted such an application the designs, plans, specifications and\nestimates of cost, together with an estimate showing the additional\ncosts and expenses to be borne by such city, to provide for the greater\nwidth or different type of construction or both, shall be submitted to\nthe governing body of such city which, if it approves such designs,\nplans, specifications and estimate of cost, shall by resolution\nappropriate the funds necessary to provide for the portion of the costs\nand expenses of construction to be borne by such city. Such funds shall,\nprior to the advertisement for bids for or including the said greater\nwidth or different type of construction, be deposited by such city with\nthe state comptroller subject to the draft or requisition of the\ncommissioner, and a certified copy of such resolution shall be filed\nwith the state comptroller and with the commissioner. The monies so\nrequired shall be raised by tax or pursuant to the local finance law or\nin accordance with any local charter or law, as the case may be. Upon\nthe completion of a highway within such city where a portion of the\ncosts and expenses are borne by the city the commissioner shall transmit\nto the governing body of such city a statement showing the actual costs\nand expenses of the additional width or changed construction including a\nproportionate charge for engineering, and shall notify the city clerk\nthat he will accept the work within twenty days from the date of such\nnotice, unless protest in writing against the acceptance shall be filed\nby such clerk with the commissioner. In case a protest is filed the\ncommissioner shall hear the same and if it is sustained the commissioner\nshall delay the acceptance of the highway or section thereof until the\nsame be properly completed. If no protest is filed the highway or\nsection thereof shall at the expiration of the said twenty days be\ndeemed finally completed and accepted on behalf of such city and the\nstate. The provisions of any general or special laws relative to the\npavement or improvement of streets and the assessment and payment of the\ncost thereof shall apply, as far as may be, to such additional\nconstruction and the assessment and payment of the cost thereof, except\nthat the provisions of any general or local act affecting the pavement\nor improvement of streets or avenues in any such city and requiring the\nowners, or any of the owners, of the frontage on a street to consent to\nthe improvement or pavement thereof, or requiring a hearing to be given\nto the persons whose premises are subject to assessment, upon the\nquestion of doing such paving or making such improvement shall not apply\nto the portion of the improvement or pavement of a state highway the\nexpense for which is required to be paid by such city to the state.\n 2.5. Whenever the commissioner deems it necessary to acquire property\nfor the purpose of widening any such designated street, he shall,\ntransmit the plans generally describing the proposed location for said\nstreet to the governing body of such city in which such designated\nstreet or any portion thereof is located. The governing body of such\ncity, after the receipt of such plans may conduct a public hearing or\nhearings upon such notice as such governing body shall deem reasonable,\nbut not less than ten days, to the commissioner and to such other party\nor parties deemed by said governing body to be interested in the\nproject. In any event and within sixty days or within such other period\nof time as may be provided by the provisions of the charter of such\ncity, after the receipt of such plans, the said governing body shall, by\nresolution, duly adopted by its members, approve, disapprove or\nrecommend modifications in such plans as the public interest shall\nrequire. Within ten days after the adoption of the resolution, the clerk\nof such governing body shall mail a certified copy thereof to the\ncommissioner. The commissioner shall not proceed with the designs, plans\nand specifications unless such city in which such designated street or\nportion thereof is located approves the plans generally describing the\nproposed location. Before filing the description and the original\ntracing of any map, or proceeding with the acquisition of such property\nor the work of construction, reconstruction or improvement, the\ncommissioner shall transmit the designs, plans and specifications for\nthe construction, reconstruction or improvement of the extension or\ncontinuation upon said street to the governing body of such city in\nwhich such designated street or any portion thereof is located. The\ngoverning body of such city, after the receipt of such designs, plans\nand specifications, may conduct a public hearing or hearings upon such\nnotice as such governing body shall deem reasonable, but not less than\nten days, to the commissioner and to such other party or parties deemed\nby said governing body to be interested in the project. In any event and\nwithin sixty days or within such other period of time as may be provided\nby the provisions of the charter of such city, after the receipt of the\ndesigns, plans, and specifications, the said governing body shall, by\nresolution, duly adopted by its members, approve, disapprove or\nrecommend modifications in such designs, plans and specifications as the\npublic interest shall require. Within ten days after the adoption of the\nresolution, the clerk of such governing body shall mail a certified copy\nthereof to the commissioner. The form of the resolution shall be\nprescribed by the commissioner. In case such governing body shall\ndisapprove the designs, plans and specifications, without proposing\nmodifications, the commissioner may, in his discretion, prepare and\nsubmit to such governing body for approval other designs, plans and\nspecifications, for the construction, reconstruction or improvement of\nthe extension or continuation within the bounds of such city, or in his\ndiscretion he may proceed with the work of construction, reconstruction\nor improvement within and confined to the existing width of the pavement\nof said designated street in the affected location. In case such\ngoverning body shall disapprove the designs, plans and specifications,\nand shall recommend modifications, the commissioner may approve the\ndesigns, plans and specifications, so modified, or recommend other\nmodifications for approval, and said extension or continuation shall be\nconstructed, reconstructed or improved in accordance with such designs,\nplans and specifications, as finally approved. When the designs, plans\nand specifications for construction, reconstruction or improvement of an\nextension or continuation as aforesaid have finally been approved as\nhereunder provided, no resolution thereafter adopted by the governing\nbody of such city shall rescind, annul or modify such prior resolution\neither directly or indirectly, excepting upon the advice and with the\nconsent of the commissioner. Upon the failure or omission of the\ngoverning body of any such city to act within the time and manner herein\nrequired the said designs, plans and specifications shall be deemed to\nbe approved so far as such governing body is concerned.\n 2.6. Any property which is deemed by the commissioner to be necessary\nto carry out the provisions of this section, shall be acquired by him\npursuant to the eminent domain procedure law and applicable provisions\nof section thirty of this chapter, except that the function of the board\nof supervisors as to approval of controlled access shall be exercised by\nthe governing body of the city. The costs and expenses of such\nacquisition of property and any liability incurred by reason thereof,\nincluding legal damages caused by such acquisition and by the work of\nconstructing, reconstructing or improving such extensions and\ncontinuations, including legal damages caused by such work of\nconstruction, reconstruction or improving, all as provided in section\nthirty of this chapter, shall be paid by the state, provided however,\nthat with respect to any such acquisition made on or before March\nthirty-first, nineteen hundred sixty-five only, such costs and expenses\nshall be paid by the state in the first instance and shall be borne as\nfollows: fifty per centum by the state and fifty per centum by such city\naffected thereby.\n 2.6-a. Whenever the commissioner determines that any property\nheretofore or hereafter acquired pursuant to the provisions of this\nsection is no longer necessary for any of the purposes for which it was\nacquired, he may, subject to compliance with section four hundred six of\nthe eminent domain procedure law and notwithstanding the provisions of\nany general, special, or local law, dispose of such property by sale or\nexchange upon terms beneficial to the state; provided, however, that on\nhighways where access is not controlled, such disposal of such property\nshall not thereby deprive an abutting owner of frontage on such highway\nimmediately in front of his abutting land. If any such sale or exchange\nbe made to or with a person who was the owner of property appropriated\nfor such highway, the consideration therefor may be, in whole or in\npart, a release by such former owner of any claim he may have against\nthe state by reason of such appropriation of his property. In order to\ncarry any such sale or exchange into effect the commissioner is hereby\nauthorized to execute and deliver for and on behalf and in the name of\nthe people of the state of New York and under his official seal a\nquitclaim deed of such property. Such deed shall be prepared by the\nattorney general and before delivery thereof shall be approved by him as\nto form and manner of execution. The total amount of the consideration\npassing to the state for any such conveyance shall be apportioned\nbetween the state and the city in which such highway is located in the\nsame ratio in which the costs and expenses of the acquisition of such\nproperty was borne by the state and such city and the amount thereof\napportioned to such city and exceeding any amount owing from such city\nto the state pursuant to the provisions of this section shall be paid to\nsuch city out of monies appropriated for the construction,\nreconstruction or improvement of state highways. The amount of\nconsideration paid in cash for any conveyance hereinabove authorized\nshall be paid into the state treasury and credited to the capital\nconstruction funds.\n 2.7. If any such property shall be so acquired on or before March\nthirty-first, nineteen hundred sixty-five, in any such city for the\npurpose of this section, before such property shall be so acquired in\nsuch city for the purpose of this section, the commissioner shall\ntransmit to the governing body of such city an estimate showing the\nproportionate costs and expenses of such acquisition as such costs and\nexpenses are specified in section thirty of this chapter, whereupon and\nwithin ninety days after the transmittal of said estimate such city\nshall (a) by resolution, appropriate the funds shown in said estimate,\n(b) deposit such funds with the state comptroller subject to the draft\nor requisition of the commissioner, and (c) file a copy of the\nresolution with the state comptroller and with the commissioner. Upon\nthe completion of a highway within such city where a portion of the\ncosts and expenses of the acquisition of the property are borne by the\ncity, the commissioner shall transmit to the governing body of such city\na statement showing the actual costs and expenses of such acquisition as\nhereinbefore mentioned, and shall notify the city clerk of the amount\ndue from or to be returned to the city, as the case may be. Any sum due\nthe state shall be paid by such city within sixty days after the date of\nthe transmittal of said statement and the funds therefor shall be raised\nby tax or pursuant to the local finance law, or in accordance with any\nlocal charter or law, as the case may be. If it is determined by\nresolution of the governing body of such city that the financial\ncondition of such city would be adversely affected by the payment in one\nlump sum of the full amount of its share of the costs and expenses of\nright of way acquisition, the commissioner, subject to the approval of\nthe director of the budget, and such city acting through the mayor or\nother administrative head thereof, pursuant to the aforesaid resolution\nof the governing body of such city, are authorized to enter into a\nwritten agreement extending the repayment by the city of its share of\nsuch right of way costs and expenses advanced by the state in the first\ninstance, by providing for such repayment to be made by equal annual\ninstallments without interest, payable by such city to the state\ncomptroller on or before April first of each year and in no event shall\nsuch period of repayment to the state exceed the term of ten years\nprovided however, that during the term of repayment any such city may\nelect to pay the balance owing to the state in full or make such\nadditional payment or payments and at such time or times as it may so\npropose. The director of the budget shall not approve the extension of\nrepayment to the state by such city of its share of any additional right\nof way costs and expenses advanced by the state in the first instance\nuntil such time as the state comptroller shall certify to the director\nof the budget that all monies previously owed to the state by such city\nin accordance with the provisions of this article have been paid in\nfull. Whenever such city shall fail to make an installment payment due\nin accordance with the provisions of such repayment agreement, the state\ncomptroller thereupon shall cause to be withheld from state-collected,\nlocally-shared taxes or state aid whichever he shall determine and to\nwhich such city would otherwise be entitled, a sum sufficient to\nreimburse the state for the amount due and owing the state in accordance\nwith such repayment agreement. Such monies so withheld shall be credited\nby the state comptroller against the amount payable to the state by such\ncity in accordance with the provision of such repayment agreement.\n 3. With relation to the city of New York:\n 3.1. For convenience of design, acquisition of property and for\npurposes of construction, reconstruction or improvement, such state\narterial system in the city of New York (hereinafter called "city")\nshall be divided into such sections as may be agreed by and between the\ncommissioner and the city planning commission. Funds that are now or\nthat shall hereafter be made available to pay the costs and expenses of\ndesign, acquisition of property, and construction of the uncompleted\nportions of such system, may be used to pay the said costs and expenses\nin connection with a section or sections of such system as agreed from\ntime to time by the city and the commissioner. The city may elect in\nadvance to prepare designs, plans, specifications and estimates of cost\nfor any such section or sections of such system, as hereinafter\nprovided.\n 3.2. Notwithstanding the provisions of any general, special or local\nlaw, designs, plans, specifications and estimates of cost for the\nuncompleted portions of the system may be prepared wholly or partly by\nthe commissioner or by the appropriate city agency if the said\ncommissioner shall approve or, subject to the approval of the director\nof the budget, by private architectural or engineering firms selected by\nthe said commissioner. The preparation of any such designs, plans,\nspecifications and estimates of cost by the city shall be undertaken\nonly when specifically authorized in advance by the commissioner. The\ncosts and expenses thereof shall be paid out of funds now or hereafter\navailable for such purposes. Such designs, plans, specifications and\nestimates of costs shall require the approval of the city in the manner\nprovided by the city charter and administrative code. The appropriate\ncity department or agency may prepare designs, plans, specifications and\nestimates of cost at the cost and expense of the city for any part of\nsuch system which such city elects to construct at its own expense.\n 3.3. Any property which is deemed by the commissioner of\ntransportation to be necessary to carry out the provisions of this\narticle shall be acquired and may be disposed of by him pursuant to\napplicable provisions of the eminent domain procedure law and section\nthirty of this chapter, except that the function of the county\nlegislative body as to approval of controlled access shall be exercised\nby the governing body of the city. Nothing in this section shall,\nhowever, preclude the city from acquiring, subject to the city charter\nand administrative code, all or any part of the property needed for the\nsystem in the event that sufficient state funds are not available and it\nis deemed desirable by the city to acquire title promptly to expedite\ncompletion of all or parts of the system, but no liability shall be\ncreated thereby or deemed to have been assumed by the state in such\nevent.\n 3.4. The state shall proceed with the construction of a section or\nsections of said system after designs, plans, specifications and\nestimates of cost thereof have been completed and approved by the city\nand the commissioner of transportation, and the necessary property has\nbeen acquired. The city may, however, elect to construct such section or\nsections at its own expense in the manner provided by the city charter\nor otherwise. Upon the completion by the state of a section or sections\nof parkways constructed by the state in the city of New York, the\ncommissioner of transportation shall by official order transfer\njurisdiction over the central express artery and adjacent landscape\nareas and over adjacent service roads to the city of New York. All such\nparkways, excepting such service roads shall be maintained by the city\ndepartment of transportation as parkways restricted to pleasure vehicles\nand without access except at designated points, except that the city\ndepartment of transportation may adopt a rule permitting the use of a\nportion of the Grand Central parkway between the Robert F. Kennedy\nbridge and the western leg of the Brooklyn-Queens expressway by single\nunit commercial vehicles having no more than three axles and ten tires.\nParkway service roads shall be open to mixed traffic. Upon the\ncompletion of a section or sections of expressways including incidental\nservice roads constructed by the state in the city of New York, the\ncommissioner of transportation shall transfer jurisdiction to the city\nof New York. The provisions of this article in regard to design and\nconstruction shall apply also to reconstruction of a section or sections\nof the state arterial system.\n 3.5. No change shall be made in the basic plans of the state arterial\nsystem in the city which will affect adversely the integrity of the said\nexpressways and parkways in such system by abandoning or relocating a\nsection or sections or by adding new entrances or exits, or by providing\ncrossings at grade or traffic lights, other than on service roads,\nwithout approval in writing by the commissioner.\n 3.6. Nothing herein contained shall affect the powers and duties of\nthe mayor, the city planning commission and other city departments and\nagencies with respect to the acquisition, construction, reconstruction\nand control of such state arterial system in the city, except as herein\notherwise specifically provided, and nothing contained in this article\nshall be deemed to supersede, change or postpone arrangements by the\nfederal and state governments with the city of New York to expedite the\npost-war arterial improvements within the city with federal, state and\ncity funds made available for this purpose. Nothing herein contained\nshall be construed to alter or in any way change the character and use\nof marginal streets and the rights of the city therein.\n 4. Unless otherwise expressly provided, nothing contained in this\nsection shall be deemed to be a modification, limitation or exclusion of\nany existing, amendatory or supplemental provisions of this chapter or\nof any other statute now or hereafter to be enacted, relating to the\nimprovement, construction, reconstruction or maintenance of any state\nhighway with necessary facilities and appurtenances, with federal aid.\n 5. The costs and expenses of (a) all preliminary work including the\npreparation of designs, maps, plans, specifications and estimates of\ncost; (b) construction, reconstruction or improvement including\nresurfacing or the construction, reconstruction or improvement of any\nsidewalk because of a change of grade; (c) the acquisition of property\nas defined and authorized in section thirty of this chapter; (d)\nreconstruction that is undertaken subsequent to the construction or\nimprovement herein provided, shall all be deemed to be a part of the\ncost of construction and reconstruction of state highways, and shall be\npaid from funds available therefor; and the cost of maintenance and\nrepair as hereinafter provided, shall be paid from funds available for\nmaintenance and repair of highways; all on the audit and warrant of the\nstate comptroller on vouchers approved by the commissioner of\ntransportation. The costs and expenses of reconstruction of any\nstructure that separates highway-railroad grades and, in the discretion\nof the commissioner of transportation, the costs and expenses of the\nelimination of an existing highway-railroad crossing at grade shall,\npursuant to a certificate of availability of funds therefor which shall\nhave been approved by the director of the budget, be deemed to be a part\nof the cost of construction, reconstruction or improvement of state\nhighways and shall, in cases provided in this subdivision, be paid by\nthe state as part of the cost thereof. Any property that may be required\nin connection with such work of construction or reconstruction, shall be\nacquired by the procedure provided in section thirty of this chapter,\nand the cost and expenses of such acquisition of property as defined in\nthis article shall be paid as provided in this article. The commissioner\nof transportation may make an agreement with a railroad corporation for\nthe performance by such railroad corporation of any work of construction\nor reconstruction of such grade separation structure and necessary\nfacilities and appurtenances and for reimbursement by the state to such\nrailroad corporation for the cost and expense of such work. Such\nagreement may provide that such work may be done by (1) the forces and\nwith the equipment of such railroad corporation, or (2) by such other\nmethod as such commissioner of transportation shall approve, or (3) by a\ncombination of such methods, as such commissioner of transportation may\ndeem to be for the best interests of the state. When a structure which\ncarries a railroad over an arterial highway, or which carries an\narterial highway over a railroad, is completed, the bridge and its\nsupports shall be maintained and repaired by the agency responsible for\nthe maintenance of the highway.\n 6. The costs of all such work of preparing designs, plans,\nspecifications and estimates shall be paid out of funds that are now or\nthat shall hereafter be made available for the construction,\nreconstruction or improvement of state highways, subject to the\nprovisions of this chapter relating to federal aid or to any grants or\ncontributions relating to federal aid, as such provisions, grants or\ncontributions are now or shall hereafter be enacted or be made\navailable; and payment shall be made on the audit and warrant of the\ncomptroller on vouchers approved by the commissioner.\n 7. The commissioner of transportation and any city named in this\narticle, acting through the mayor or other administrative head thereof,\npursuant to a resolution of the governing body of such city except the\ncity of New York, are authorized to enter into a written agreement for\nthe maintenance and repair, under the supervision and subject to the\napproval of the commissioner, of any public street, main route or\nthoroughfare or portion thereof, exclusive of service roads and pavement\non intersecting street bridges, which is within the boundaries of such\ncity and which is now or which shall hereafter be designated in this\narticle and which has been constructed or which shall have been\nconstructed as authorized by articles four and twelve-B of this chapter\nand with grants made available by the federal government pursuant to the\nfederal aid highway act of nineteen hundred forty-four, being public law\nfive hundred twenty-one of the seventy-eighth congress, chapter six\nhundred twenty-six, second session, as approved on the twentieth day of\nDecember, nineteen hundred forty-four. Such agreement may provide that\nthe state shall pay annually to such city a sum to be computed at the\nrate of (a) not more than eighty-five cents per square yard of the\npavement area that is included in the state highway system according to\nthe provisions of this section, and (b) an additional ten cents per\nsquare yard of such pavement area where such pavement area is located on\nany elevated bridge.\n The maintenance and repair, as provided in this section, shall be done\neither by the forces of such city and with its equipment, or by its\ncontractor, or by a combination of these two methods.\n 8. Such agreement for maintenance and repair as authorized by this\nsection, shall include the procedure and method for regulation of street\nopenings, and appropriate provisions for the care, protection and\npatching of the pavement or pavements, and curbs, the care and\nprotection of drainage facilities and structures, the maintenance of\nadjacent roadside and landscaped areas to include the care of trees,\nshrubs and groundcovers and the cutting of grass at specified locations\nand to the extent as shall be deemed by such commissioner of\ntransportation to be for the best interest of the public, control of\nsnow and ice on any such public street, main route or thoroughfare or\nportion thereof included in such agreement, the performance of repairs\nand alterations, and the operation and care of traffic lights,\ndirectional guides and controls, and parking controls. Such maintenance\nand repair, whether done by a city pursuant to an agreement therefor as\nauthorized by this section, or by the state because of the absence of\nsuch agreement, as the case may be, shall not include (a) services of\nlighting, cleaning, sweeping and sprinkling of any such public street,\nmain route or thoroughfare or portion thereof, all of which services are\ndeemed to be the normal maintenance of streets by such city in which\nthey are located, or (b) any work on or in connection with subsurface\ninstallations and structures that are owned and operated by any city,\nincluding sanitary sewers, gas mains, water lines and conduits and\nappurtenances thereto.\n 8-a. (a) Except as provided hereafter the state shall indemnify and\nhold harmless such city for any and all liability for damages for\npersonal injury, injury to property or wrongful death for losses arising\nfrom or occasioned by the manner of performance of the functions under\nany agreement with a city for the maintenance and repair of state\narterial highways pursuant to this section.\n (b) In no event shall the state be obligated to defend or indemnify\nsuch city, in any action, proceeding, claim or demand arising out of the\nactual operation of a vehicle or other equipment while engaged in the\noperation of repair and maintenance under any such agreement, nor any\naction, proceeding, claim or demand arising out of services of lighting,\ncleaning, sweeping and sprinkling any such public street, main route or\nthoroughfare or portions thereof nor any work on or in connection with\nsubsurface installations and structures that are owned and operated by\nany city, including sanitary sewers, gas mains, water lines, and\nconduits, and appurtenances thereto.\n (c) The city shall be entitled to representation by the attorney\ngeneral in any claim described in paragraph (a) of this subdivision,\nprovided, however, that the city shall be entitled to itself defend any\nsuch action, proceeding, claim or demand whenever the attorney general\ndetermines, based upon his investigation and review of the facts and\ncircumstances of the case that representation by the attorney general\nwould be inappropriate, or whenever a court of competent jurisdiction\ndetermines that a conflict of interest exists and that the city is\nentitled to be separately represented. Whenever the municipality is\nentitled to defend the action itself, the state shall reimburse the\nmunicipality for any and all costs and expenses, including, but not\nlimited to, counsel fees and disbursements.\n (d) The state shall indemnify and save harmless such city in the\namount of any judgment obtained against such city in any state or\nfederal court in any claim described in paragraph (a) of this\nsubdivision, or in the amount of any settlement of such claim, or shall\npay such judgment or settlement; provided, however, that the act or\nomission from which such judgment or settlement arose occurred while the\ncity was acting within the scope of its functions for maintenance and\nrepair of state arterial highways; provided, further, that no\nstipulation of settlement of any such action, proceeding, claim or\ndemand shall be made or executed without approval of the attorney\ngeneral and of the commissioner of transportation or his designee.\nPayment of any claim made pursuant to settlement shall not exceed the\nsum of fifty thousand dollars. Nothing herein shall authorize the state\nto indemnify or save harmless with respect to punitive or exemplary\ndamages.\n (e) The duty to defend or indemnify and save harmless prescribed by\nthis subdivision shall be conditioned upon (i) delivery to the attorney\ngeneral or an assistant attorney general at an office of the department\nof law in Albany or New York city and by delivery to the commissioner of\ntransportation or his designee of a copy of any claim, summons,\ncomplaint, process, notice, demand or other pleading within ten days\nafter such city is served with such document and (ii) the full\ncooperation of the city in the defense of such action, proceeding, claim\nor demand and in the defense of any action, proceeding, claim or demand\nagainst the state based upon the same act or omission, and in the\nprosecution of any appeal.\n (f) The benefits of this subdivision shall inure only to such city and\nshall not enlarge or diminish the rights of any other party nor shall\nany provision of this subdivision be construed to effect, alter, or\nrepeal any provision of the workers' compensation law.\n (g) This subdivision shall not in any way affect the obligation of any\nclaimant to give notice to the state under section ten of the court of\nclaims act or any other provision of law.\n (h) The provisions of this subdivision shall not be construed to\nimpair, alter, limit or modify the rights and obligations of any insurer\nunder any insurance agreement.\n (i) Except as otherwise specifically provided in this subdivision, the\nprovisions of this subdivision shall not be construed in any way to\nimpair, alter, limit, modify, abrogate, or restrict any immunity\navailable to or conferred upon any unit, entity, officer, or employee of\nthe state or city of any other level of government, or any right to\ndefense and indemnification provided for any governmental officer or\nemployee by, in accordance with, or by reason of, any other provision of\nstate or federal statutory or common law.\n 9. Whenever the commissioner of transportation shall deem such\nmaintenance and repair by any such city to be inadequate or\nunsatisfactory according to the terms of such agreement, he may, by\nofficial order to be filed in his office, and by filing a certified copy\nthereof in the office of the department of state, cancel said agreement,\nand the payments thereunder provided by the state shall cease and\ndetermine; whereupon the commissioner may carry out such maintenance and\nrepair in the same manner as other state highways are maintained by the\nstate. The official order provided in this subdivision shall become\neffective at the expiration of five days after the commissioner shall\nmail a certified copy thereof to the city clerk or other official who\nperforms related duties in such city. Thereupon, the street, main route\nor thoroughfare or portion thereof described in said official order\nshall be maintained and repaired as provided in this section.\n