N.Y. Highway Law § 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.