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 changein 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 givento 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, plansand 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 thecommissioner 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; provided further that, contingent upon a fully executed memorandum ofunderstanding between the New York state department of transportation and the New York city department of environmental protection, the city department of transportation may adopt a rule permitting the use of the Korean War Veterans parkway during the remediation of the Brookfield landfill on Staten Island by not more than forty-ton motor vehicles commonly classified as construction trucks owned and/or operated by the department of environmental protection of the city of New York, its agents or contractors for the purpose of the remediation of such landfill, provided that such trucks comply with all other provisions of applicable state and local law. 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. * NB Effective until August 16, 2011 * 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. * NB Effective August 16, 2011 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 containedshall 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 anyaction, 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 ofthe 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.