N.Y. Public Authorities Law § 1005-d: Sharing employees, services and resources; indemnity and defense

§ 1005-d. Sharing employees, services and resources; indemnity and

defense. 1. For the purposes of this section, the following words and

terms shall have the following meanings unless the context indicates

another meaning or intent:

(a) "Department" means the department of transportation.

2. A shared services agreement may be executed between the department

and the authority, canal corporation, or both of them, only for an

emergency situation or extreme weather conditions, to share employees,

services or resources as deemed appropriate including, but not limited

to, for the performance of work and activities by the department on the

facilities and property under the jurisdiction of the authority or canal

corporation, and for the performance of work and activities by the

authority or canal corporation on the facilities and property under the

jurisdiction of the department. Such agreement or any project undertaken

pursuant to such an agreement shall not be deemed to impair the rights

of bondholders and may provide for, but not be limited to, the

management, supervision and direction of such employees' performance of

such services. Such agreement shall provide that the term shall not be

longer than ten days. All shared employees shall remain employees of

their respective employers and all applicable collectively bargained

agreements shall remain in effect for the entire length of the shared

services agreement. Further, such shared services agreement shall not

amend, repeal or replace the terms of any agreement that is collectively

negotiated between an employer and an employee organization, including

an agreement or interest arbitration award made pursuant to article

fourteen of the civil service law.

3. The authority shall defend any unit, entity, officer or employee of

the department, using the forces of the department of law pursuant to

subdivision eleven of this section in any action, proceeding, claim,

demand or the prosecution of any appeal arising from or occasioned by

the acts or omissions to act in the performance of the functions of the

authority or canal corporation pursuant to a shared services agreement.

4. Defense pursuant to subdivision three of this section shall be

conditioned upon the full cooperation of the department.

5. The authority shall indemnify and hold harmless any unit, entity,

officer or employee of the department in the amount of any judgment

obtained against the department or in the amount of any settlement the

department enters into with the consent of the authority for any and all

claims, damages or liabilities arising from or occasioned by the acts or

omissions to act of the authority or canal corporation pursuant to a

shared services agreement; provided, however, that the act or omission

from which such judgment or settlement arose occurred while the

authority or canal corporation was acting within the scope of its

functions pursuant to a shared services agreement. No such settlement of

any such action, proceeding, claim or demand shall be made without the

approval of the authority's board of trustees or its designee.

6. Any claim or proceeding commenced against any unit, entity, officer

or employee of the authority or canal corporation that arises pursuant

to any shared services agreement 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 authority or canal corporation, or to impair, alter, limit, modify,

abrogate or restrict 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.

7. (a) The state shall defend any unit, entity, officer or employee of

the authority and canal corporation using the forces of the department

of law in any action, proceeding, claim, demand or the prosecution of

any appeal arising from or occasioned by the acts or omissions to act in

the performance of the functions of the department pursuant to a shared

services agreement.

(b) Defense pursuant to paragraph (a) of this subdivision shall be

conditioned upon the full cooperation of the authority and canal

corporation.

(c) The state shall indemnify and hold harmless any unit, entity,

officer or employee of the authority or canal corporation in the amount

of any judgment obtained against the authority or canal corporation in

the amount of any settlement the authority or canal corporation enters

into with the consent of the state for any and all claims, damages or

liabilities arising from or occasioned by the acts or omissions to act

on behalf of the department pursuant to a shared services agreement,

provided, however, that the act or omission from which such judgment or

settlement arose occurred while the department was acting within the

scope of its functions pursuant to a shared services agreement. Any such

settlement shall be executed pursuant to section twenty-a of the court

of claims act.

(d) Any claim or proceeding commenced against any unit, entity,

officer or employee of the department pursuant to any shared services

agreement 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 department, or to impair,

alter, limit, modify, abrogate or restrict 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.

(e) Any payment made pursuant to this subdivision or any monies paid

for a claim against or settlement with the department, authority or

canal corporation pursuant to this subdivision and pursuant to a shared

services agreement shall be paid from appropriations for payment by the

state pursuant to the court of claims act.

8. This section shall not in any way affect the obligation of any

claimant to give notice to the state, authority, or canal corporation

under section ten and section eleven of the court of claims act or any

other provision of law provided, however, that notice served upon the

state, authority, or canal corporation who is a party to the shared

services agreement shall be valid notice on all parties to the

agreement, when such claim arises out of such shared services agreement.

The state, authority and canal corporation shall notify each other when

they receive a notice of claim, notice of intention to make a claim or a

claim arising out of such agreement.

9. The provisions of this section shall not be construed to impair,

alter, limit or modify the rights and obligations of any insurer under

any insurance agreement.

10. Notwithstanding any other provision of law, when employed pursuant

to a shared services agreement, employees of the authority, canal

corporation and department shall be deemed employees of all such

entities and the state for purposes of the workers' compensation law.

11. At the request of the authority or canal corporation, services and

assistance and legal services for the authority or canal corporation

shall be performed by forces or officers of the department and the

department of law respectively, and all other state officers,

departments, boards, divisions and commissions shall render services

within their respective functions.

12. The authority shall prepare and submit to the governor, the

temporary president of the senate, the speaker of the assembly, the

attorney general, and the comptroller on or before the first day of

February of each year, a report detailing each specific instance of

resource sharing between the department, the authority, and the canal

corporation undertaken pursuant to this section during the preceding

calendar year.