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This entry was published on 2017-12-01
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SECTION 1005-D
Sharing employees, services and resources; indemnity and defense
Public Authorities (PBA) CHAPTER 43-A, ARTICLE 5, TITLE 1
§ 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.