ARTICLE 1 Short Title and Definitions
Section 1. Short title. This chapter shall be known as the "Canal
Law."
Definitions. The following terms when used in this chapter,
unless otherwise expressly stated or unless the context or subject
matter requires otherwise, shall have the following meanings:
1. "New York State Canal System", "Canal System" or "Barge Canal
System" shall each mean all the canals, canal lands, feeder canals,
reservoirs, canal terminals and canal terminal lands of the state as
hereinafter defined. All general references herein to "canal" shall be
deemed to mean the New York state canal system.
2. "Canals" shall mean the channel and adjacent state-owned banks of
the inland waterways of the state constructed, improved, or designated
by authority of the legislature as canals and shall include canalized
rivers and lakes, canal water supply reservoirs, canal water supply
feeder channels and all appertaining structures necessary for the proper
maintenance and operation of the canals.
3. "Canal Terminal" or "Barge Canal Terminal" shall each mean the
facilities which have been constructed or acquired under authority of
the legislature in connection with the canal system for loading,
unloading, and/or temporarily storing commodities transported upon the
canals and shall include docks, dock walls, bulkheads, wharves, piers,
slips, basins, harbors, grain elevators, buildings, equipment, tracks
and roadways together with the lands now owned or as may hereafter be
acquired by the state for the proper maintenance and operation of the
canal terminals.
4. "Erie Canal" shall mean the portion of the canal system connecting
the Hudson river at Albany with the Niagara river at Buffalo, and for
the purposes of article thirteen-A of this chapter and section
ninety-two-u of the state finance law and subdivision ten of section
three hundred fifty-one of the public authorities law, shall be deemed
to include the historic Erie Canal and its western terminus in the city
of Buffalo and historic lock number 1 in the city of Albany.
5. "Oswego Canal" shall mean the portion of the canal system
connecting the Erie canal at Three Rivers with Lake Ontario at Oswego.
6. "Champlain Canal" shall mean the portion of the canal system
connecting the easterly end of the Erie canal at Waterford with Lake
Champlain at Whitehall.
7. "Cayuga and Seneca Canals" shall mean the portions of the canal
system connecting the Erie canal at a point near Montezuma with Cayuga
and Seneca lakes and through Cayuga lake and Cayuga inlet to the
southerly side of State Street in the city of Ithaca and through Seneca
lake with Montour Falls.
8. "Canal Lands" shall mean all lands and waters forming a part of the
canal system title to which was originally vested in the state, acquired
by the state or which may in the future be acquired by the state for
canal purposes.
9. "Blue Line" shall mean the boundary of canal lands owned by the
state previous to the approval of chapter one hundred forty-seven, laws
of nineteen hundred three.
10. "Old Canal Lands" shall mean canal lands lying within the blue
line.
11. "Barge Canal Lands" shall mean canal lands acquired subsequent to
the approval of chapter one hundred forty-seven, laws of nineteen
hundred three, except barge canal terminal lands acquired under the
provisions of chapter seven hundred forty-six, laws of nineteen hundred
eleven, and acts amendatory thereto.
12. "Canal Terminal Lands" or "Barge Canal Terminal Lands" shall each
mean canal lands acquired under the provisions of chapter seven hundred
forty-six, laws of nineteen hundred eleven, and amendatory laws.
13. "Permit" shall mean a revocable agreement granting temporary
occupancy or use of lands or structures of the canal system.
14. "Float" shall mean every boat, vessel, raft or floating thing
navigated on the canals or moved thereupon under the direction of some
person having the charge thereof.
15. "Master" shall mean every person having for the time the charge,
control or direction of any float.
16. "Person" shall mean an individual, partnership, corporation or
association.
17. "Great Lakes-Hudson River waterway" shall mean that section of the
Erie canal from Waterford to Three Rivers Point and the Oswego canal
thence to the port of Oswego as such waterway was designated by acts of
congress authorizing the federal aid improvement project for the Great
Lakes-Hudson River waterway.
18. "Authority" shall mean the power authority of the state of New
York, a body corporate and politic constituting a political subdivision
of the state created and constituted pursuant to title one of article
five of the public authorities law.
19. "Adirondack park" shall have the same meaning as set forth in
section 9-0101 of the environmental conservation law.
20. "Commission" shall mean the canal recreationway commission created
pursuant to section one hundred thirty-eight-a of this chapter.
21. "Corporation" and "canal corporation" shall mean the New York
state canal corporation, a public benefit corporation created pursuant
to chapter seven hundred sixty-six of the laws of nineteen hundred
ninety-two and continued and reconstituted as a subsidiary corporation
of the power authority of the state of New York pursuant to subdivision
one of section one thousand five-b of the public authorities law.
22. "Canal fund" shall mean the New York state canal system
development fund established pursuant to section ninety-two-u of the
state finance law.
23. "Canalway trail" shall mean any multi-use recreational trail
located on lands under the jurisdiction of the corporation. The exact
boundaries and location of such trail and any portions or sections
thereof shall be determined by the corporation except that the
boundaries and location of such trail shall be determined in such a
manner that no portion thereof shall be within the Adirondack Park.
24. "Thruway authority" shall mean the New York state thruway
authority, a body corporate and politic constituting a public
corporation created and constituted pursuant to title nine of article
two of the public authorities law.
ARTICLE 1-A Transfer to Power Authority of the State of New York
Transfer of powers and duties relating to canals and canal lands
to the power authority of the state of New York. The powers and duties
of the thruway authority relating to the New York state canal system as
set forth in articles one through and including fourteen, except article
seven, of this chapter, and except properties in use on the effective
date of this article in support of highway maintenance, equipment
management and traffic signal operations of the department of
transportation, heretofore transferred by the commissioner of
transportation to the thruway authority, are hereby transferred to and
merged with the authority, to be exercised by the authority directly or
through the canal corporation on behalf of the people of the state of
New York. In addition, the commissioner of transportation and the chair
of the authority or his or her designee may, in their discretion, enter
into an agreement or agreements transferring the powers and duties of
the commissioner of transportation relating to any or all of the bridges
and highways as set forth in article seven of this chapter, to be
exercised by the authority directly or through the canal corporation on
behalf of the people of the state of New York, and, as determined to be
feasible and advisable by the authority's trustees, shall enter into an
agreement or agreements directly or through the canal corporation for
the financing, construction, reconstruction or improvement of lift and
movable bridges on the canal system. Such powers shall be in addition to
other powers enumerated in title one of article five of the public
authorities law. All of the provisions of title one of article five of
such law which are not inconsistent with this chapter shall apply to the
actions and duties of the authority pursuant to this chapter. The
authority shall be deemed to be the state in exercising the powers and
duties transferred pursuant to this section but for no other purposes.
Transfer of canal lands and other assets. 1. The jurisdiction of
the thruway authority over the New York state canal system and over all
state assets, equipment and property, both tangible and intangible,
owned or used in connection with the planning, development,
construction, reconstruction, maintenance and operation of the New York
state canal system, as set forth in articles one through and including
fourteen, except article seven, of this chapter, and except properties
in use on the effective date of this article in support of highway
maintenance, equipment management and traffic signal operations of the
department of transportation, heretofore transferred by the commissioner
of transportation to the thruway authority, are hereby transferred
without consideration to the authority, to be held by the authority in
the name of the people of the state of New York. In addition the
commissioner of transportation and the chair of the authority or his or
her designee may, in their discretion, enter into an agreement or
agreements transferring jurisdiction over any or all of the bridges and
highways set forth in article seven of this chapter, and any or all
state assets, equipment and property, both tangible and intangible,
owned or used in connection with the planning, development,
construction, reconstruction, maintenance and operation of such bridges
and highways, which shall be transferred without consideration to the
authority, to be held by the authority through the corporation in the
name of the people of the state of New York. Any other rights and
obligations resulting from or arising out of the planning, development,
construction, reconstruction, operation or maintenance of the New York
state canal system shall be deemed assigned to and shall be exercised by
the authority through the corporation, except that the authority may
designate the chair of the thruway authority to be its agent for the
operation and maintenance of the New York state canal system, provided
that such designation shall have no force or effect after January first,
two thousand seventeen. Such canal system shall remain the property of
the state and under its management and control as exercised by and
through the authority, through the corporation which shall be deemed to
be the state for the purposes of such management and control of the
canals but for no other purposes.
2. The department of transportation and thruway authority shall
deliver to the authority all books, policies, procedures, papers, plans,
maps, records, equipment and property of such department pertaining to
the functions transferred pursuant to this article.
3. All rules, regulations, acts, determinations, orders and decisions
of the commissioner of transportation, department of transportation, or
thruway authority pertaining to the functions transferred pursuant to
this article in force at the time of such transfer shall continue in
force and effect as rules, regulations, acts, determinations, orders and
decisions of the authority and corporation until duly modified or
abrogated by such authority or corporation.
4. Any business or other matters undertaken or commenced by the
thruway authority, including executed contracts, permits and other
agreements, but excluding bonds, notes or other evidences of
indebtedness, pertaining to or connected with the powers, duties and
obligations transferred pursuant to this article, and in effect on the
effective date of the transfer of such matters from the thruway
authority to the authority provided for in this article, shall, except
as otherwise agreed by the authority and the thruway authority, be
conducted and completed by the authority through the corporation in the
same manner and under the same terms and conditions and with the same
effect as if conducted and completed by the thruway authority, provided
that nothing in this subdivision shall be deemed to require the
authority to take any action in a manner that would in its judgment be
inconsistent with the provisions of any bond or note resolution or any
other contract with the holders of the authority's bonds, notes or other
obligations.
5. No existing rights or remedies of the state, authority, thruway
authority, or canal corporation shall be lost, impaired or affected by
reason of this article.
6. (a) No action or proceeding pending on the effective date of the
transfer of powers, duties and obligations from the thruway authority to
the authority brought by or against the thruway authority, the
commissioner of transportation, the corporation, the department of
transportation or the authority shall be affected by this article. Any
liability arising out of any act or omission occurring prior to the
effective date of the transfer of the powers, duties and obligations
from the thruway authority to the authority, of the officers, employees
or agents of the thruway authority, the department of transportation, or
any other agency of the state, other than the authority, in the
performance of their obligations or duties under the canal law, any
other law of the state or any federal law, or pursuant to a contract
entered into prior to the effective date of such transfer, shall remain
a liability of the thruway authority, the department of transportation
or such other agency of the state and not of the authority.
(b) Notwithstanding any provision to the contrary contained in
paragraph (a) of this subdivision, the state shall indemnify and hold
harmless the thruway authority, the corporation and the authority for
any and all claims, damages, or liabilities, whether or not caused by
negligence, including civil and criminal fines, arising out of or
relating to any generation, processing, handling, transportation,
storage, treatment, or disposal of solid or hazardous wastes in the
canal system by any person or entity other than the thruway authority or
the authority occurring prior to August third, nineteen hundred
ninety-two. Such indemnification shall extend to, without limitation,
any releases into land, water or air, including but not limited to
releases as defined under the federal comprehensive environmental
response compensation and liability act of nineteen hundred eighty,
occurring or existing prior to August third, nineteen hundred
ninety-two; provided that the thruway authority, the corporation and the
authority shall cooperate in the investigation and remediation of
hazardous waste and other environmental problems.
(c) Notwithstanding any provision to the contrary contained in
paragraph (a) of this subdivision, the thruway authority shall indemnify
and hold harmless the corporation and the authority for any and all
claims, damages, or liabilities, whether or not caused by negligence,
including civil and criminal fines, arising out of or relating to any
generation, processing, handling, transportation, storage, treatment, or
disposal of solid or hazardous wastes in the canal system by any person
or entity other than the authority occurring after August third,
nineteen hundred ninety-two and no later than the effective date of the
transfer of powers, duties and obligations from the thruway authority to
the authority. Such indemnification shall extend to, without limitation,
any releases into land, water or air, including but not limited to
releases as defined under the federal comprehensive environmental
response compensation and liability act of nineteen hundred eighty,
occurring or existing prior to the effective date of the transfer of
powers, duties and obligations from the thruway authority to the
authority; provided that the corporation and the authority shall
cooperate in the investigation and remediation of hazardous waste and
other environmental problems.
(d) Except as otherwise provided in this chapter, the thruway
authority shall retain all liabilities, whether or not caused by
negligence, arising out of any acts or omissions occurring on or after
August third, nineteen hundred ninety-two, in connection with its
powers, duties and obligations with respect to the corporation. The
authority and the state shall not be held liable in connection with any
liabilities arising out of such acts or omissions.
7. Notwithstanding any provision of law to the contrary, in connection
with the transfer of jurisdiction of the corporation to the authority
and the assumption of management of the corporation as a subsidiary
corporation of the authority pursuant to the chapter of the laws of two
thousand sixteen which added this subdivision, the thruway authority
shall have the power to fulfill any existing agreements or obligations,
make any agreements, receive, retain or pay any funds, deemed necessary
and in the public interest to effectuate the provisions and intent of
this chapter, including but not limited to, the entering into any
agreements with the corporation, the authority and any other federal,
state, municipal or other entities, and to receive funds from the
federal emergency management agency or the state, to fulfill the thruway
authority's existing financial or other obligations arising from its
jurisdiction over the canal system and the corporation.
ARTICLE 2 Powers of the Canal Corporation
General powers and duties of the corporation relating to
canals. The corporation shall:
1. Have general supervision of the canal system and its operating
personnel and enforce the faithful administration and observance of the
canal law.
2. Appoint and remove all officers and employees in the administration
of canal matters in conformity with the provisions of title nine of
article two of the public authorities law.
3. Provide for all engineering services required in the improvement,
maintenance and repair of the canal system.
4. Cause surveys, maps, plans, specifications and estimates to be made
for the improvement, maintenance and repair of the canal system.
5. Cause plans, specifications and estimates covering canal contracts
to be prepared.
6. Cause inspections of the canal system to be made annually.
7. Determine the boundaries of the districts of the canal system and
change such boundaries when it deems it expedient.
8. Keep and maintain in good condition the canals, canal terminals and
corporation equipment used in the maintenance and repair of the canal
system.
9. Prescribe rules and regulations not inconsistent with law relating
to the navigation, protection and maintenance of the canal system and
enforce such rules and regulations by prescribing fines, penalties or
forfeitures not to exceed one hundred dollars for each offense.
9-a. Undertake lock improvements designed to attract tourists to the
locks and surrounding communities. Such improvements may include, but
not be limited to, comfort stations, information kiosks, picnic tables
and grills, docking facilities, lock beautification, campsites,
telephone service, and trash collection and removal facilities.
10. Enforce compliance with laws, rules and regulations relating to
posting of limited loads and clearances on all bridges over the canal
system under the jurisdiction of the department of transportation
pursuant to section six and article seven of this chapter.
11. Compile statistics relating to the canal system and the traffic
thereon and collect such other information in regard thereto as it shall
deem expedient.
12. Make an annual report to the legislature, covering the calendar
year, on the trade and tonnage handled, on the condition of the canals
and the work and improvements connected therewith.
13. Cause a record to be made and filed on January first, in the
corporation of all expenditures during the previous fiscal year from
moneys appropriated for the canal system.
14. Permit boat owners operating upon the canal system to use state
drydocks while making emergency repairs to their vessels.
15. Grant leases and issue revocable permits pursuant to this chapter.
16. Cause to be removed from canal lands any encroachments which in
its judgment are detrimental.
17. Cause to be acquired lands necessary for canal purposes and cause
to be abandoned such canal lands as are no longer necessary or useful
for canal purposes. The commissioner of environmental conservation shall
be given notice of any lands located within the Adirondack park which
are no longer necessary or useful for canal purposes and which are to be
abandoned, and shall be given sixty days within which to request the
transfer of such lands. Such lands for which such a request has been
made shall be transferred to the department of environmental
conservation.
18. Accept available federal aid money for the construction,
reconstruction, improvement, restoration, repair, operation, maintenance
or rehabilitation of any section, appurtenances or facility of the Barge
canal system.
19. Investigate all matters relating to the administration and
operation of the canal system and its personnel.
20. Either absolutely, or on such conditions as it prescribes, remit
fines imposed, if in its judgment such action is expedient.
21. Administer, operate and maintain the state-owned hydroelectric
power plants on the Mohawk river at Crescent and Vischer Ferry.
22. When an emergency arises endangering life or the canal system,
seize any lands, equipment or supplies necessary to avert such damage.
23. Prepare an inventory sufficient for planning purposes which
includes at least: (a) a general description of all state-owned property
which comprises the canal system, and where appropriate other
state-owned property contiguous to the canal system, specifying present
use and facilities for public use, including but not limited to parks
and recreation facilities; (b) a description of significant freshwater
wetlands and lands which possess significance for wildlife management,
recreation or natural resource protection purposes within the canal
system; and (c) significant municipal and privately-owned facilities
which serve users of the canal system. Such inventory shall be provided
to the commission no later than July thirty-first, nineteen hundred
ninety-three.
24. Prepare on an annual basis a detailed five-year capital plan for
the maintenance and improvement of canal infrastructure. Such plan shall
set system-wide goals and objectives for capital spending and,
commencing January first, nineteen hundred ninety-five, describe the
compatibility of such plan to the canal recreationway plan approved
pursuant to section one hundred thirty-eight-c of this chapter. Such
plan shall include but not be limited to such capital project categories
as locks, canal bridges, channels, shorelines, dams, guard gates, and
other structures necessary for safe and successful operation of the
canal system. The plan shall also include a detailed schedule of all
capital projects which the authority intends to undertake within the
next five years and shall provide the following information for each
such capital project: (a) a description of the project; (b) an
indication of the category into which the project has been classified in
the capital plan; (c) the estimated total cost of the project and
expenditures by year for such project; (d) the actual disbursements by
project for the prior year; and (e) the estimated dates of project
initiation and completion. The plan shall also include a statement of
the mix of financing methods to be used by the authority for financing
the capital plan. The capital plan shall be submitted to the governor,
the temporary president of the senate and the speaker of the assembly on
the first day of January of each year commencing in nineteen hundred
ninety-three.
25. Prepare, in consultation with the department of environmental
conservation: (a) a survey of canal lands in the Adirondack park; and
(b) a study of canal lands in the Adirondack park subject to permits,
including the identification of any structures or activities that are
not allowed by law or by such permits. Such survey and study shall be
completed and submitted to the commission no later than January first,
nineteen hundred ninety-four.
26. Perform such other acts as in its judgment constitute a duty
required to efficiently administer the canal system.
Adopt-a-trail program. 1. The corporation may develop and
implement an adopt-a-trail program, the purposes of which may be to
reduce and remove litter and debris and to enhance the appearance and
maintenance of the canalway trail and related facilities, as needed.
Such program may include, but not be limited to:
(a) coordinating the services of volunteers and/or volunteer
organizations (i) to reduce the amount of litter and debris on sections
of the canalway trail; and (ii) to enhance the appearance and
maintenance of the canalway trail through activities that may include,
but not be limited to, brush clearing, lawn maintenance, tree trimming,
plantings, installation, repair and/or replacement of benches, kiosks,
picnic tables and shelters; and (iii) to enhance recreational
opportunities; and
(b) providing and installing signs identifying those volunteers and/or
volunteer organizations adopting particular sections of the canalway
trail.
2. Notwithstanding any inconsistent provision of law, the corporation,
authority, and commission, including any members, officers or employees
thereof, shall not be liable for damages suffered by any persons and/or
organizations resulting from any actions or activities of such
volunteers and/or volunteer organizations.
ARTICLE 3 Canal Engineering
Preparation contract, plans and estimates. The corporation shall
make surveys and prepare plans and specifications for work in connection
with the improvement, maintenance or repair of the canal system to be
performed under contract. It shall ascertain with all practical accuracy
the quantity and quality of all materials to be used and all other items
of work to be included in the contract and shall make a detailed
estimate of the cost of the same. The quantities contained in such
estimate shall be used in determining the cost of the work according to
the different proposals received.
Supervision of contracts. The corporation shall provide for
field supervision over improvement, maintenance or repair work on the
canal system that is done under contract. The corporation shall assign
such engineers, inspectors and other engineering employees as may be
necessary for control over the execution of the work embraced in the
contract. Such corporation shall cause the preparation and approval of
the estimates of the work accomplished, materials delivered, or other
items embodied in the contract and the certificate of the amount of
payment which may be due under the terms of the contract or legal
modifications of the same. Upon the completion of any contract the
corporation shall cause the preparation and approval of a certificate of
acceptance, stating that the work has been well and faithfully performed
in accordance with the terms and conditions of the contract and all
legal modifications thereof.
Record of measurements. The corporation shall require every
engineer employed on canal engineering to enter in permanent field books
a complete record of all surveys, field measurements and construction
notes. These books shall be filed in the corporation and shall be
available for public inspection under such conditions as the corporation
may establish.
Making and recording maps. There shall be kept on file in the
office of the corporation complete maps of every canal now or hereafter
to be built on which the boundaries of every parcel of land to which the
state shall have a separate title shall be designated and the names of
the former owner and date of each title entered. All such maps
heretofore approved by the commissioner of transportation or the
corporation, or certified by such commissioner, corporation or by the
state engineer or hereafter approved by the corporation to be correct,
shall be presumptive evidence of the truth of the facts therein stated
and of the ownership by the state of the lands therein described. Every
such map when completed shall be approved and certified to as correct by
the corporation. The original of said map shall be filed in the office
of the corporation and copies thereof duly signed and certified as
aforesaid shall be filed in the office of the department of state. Any
such maps filed in the office of the clerk of a county in which such
lands are located or in the office in such county where conveyances are
required by law to be recorded shall constitute evidence to all persons
of the state's title to and ownership in said lands. A transcript of
such maps certified as correct by the officer with whom such map or maps
shall be filed, shall be received as presumptive evidence of the state's
title to the canal lands as of the date designated on such maps in all
judicial or legal proceedings.
Making and recording of "Blue Line" maps. The commissioner of
transportation shall cause the preparation of maps of the Erie, Oswego,
Champlain and the Cayuga and Seneca canals as they existed prior to and
independent of lands appropriated for barge canal purposes and of all
lands belonging to the state adjacent thereto or connected therewith,
and there shall be designated on such maps the boundaries of the lands
to which the state holds title, and so far as possible the names of the
owners of the adjoining lands. Every map when completed shall be
approved and certified to as correct by the commissioner of
transportation and be certified to as correct by the chief engineer. The
original of said map shall be filed in the office of the corporation and
copies thereof, duly signed and certified as aforesaid, shall be filed
in the office of the department of state. Each of said maps so filed
shall be regarded as an original copy. A blue or white print copy of
such map or portion of such map or maps as related or applies to any
particular county of the state shall be transmitted to and filed in the
office of the clerk of such county, or in the office in such county
wherein conveyances are required by law to be recorded and such filing
shall constitute a notice to all persons of the state's title to and
ownership of said lands. A transcript of such maps certified as correct
by the officer with whom such map or maps shall be filed shall be
received as presumptive evidence of the state's title to the canal lands
as of the date designated on such maps in all judicial or legal
proceedings.
ARTICLE 4 Canal Contracts
Contracts for improvement, maintenance or repair of the canal
system. Upon the completion and final approval of the plans and
specifications for the improvement, maintenance or repair to the canal
system, contracts therefor shall be executed as provided herein.
1. Advertising for proposals. The corporation shall advertise for
proposals in accordance with plans and specifications prepared by it for
such improvement, maintenance or repair of the canal system as the
corporation deems it expedient to have performed by contract. The
advertisement shall be limited to a brief description of the work
proposed to be done, with an announcement stating where the maps, plans
and specifications may be seen, the terms and conditions under which the
proposals will be received, the time and place where the same will be
opened, the amount of the draft or certified check to accompany the
proposal, and such other matters as the corporation may deem advisable
to include therein. Such advertisement shall be published at least once
in each week for two successive weeks in a newspaper published at the
county seat of the county in which such canal work is to be performed
and in such other newspapers as the corporation may designate. If no
newspaper is published at such county seat, then the publication of the
advertisement shall be in such newspaper or newspapers within the county
as the corporation may select. If no newspaper is published in the
county, the publication of the advertisement shall be in such newspaper
or newspapers in an adjoining county as may be selected by the
corporation. Failure of such newspaper, published in such county or
adjoining county, to publish such advertisement as provided in this
subdivision or as directed by the corporation shall not invalidate the
publication of advertisement for proposals provided such advertisement
is published in another newspaper or trade publication, which will be
most likely to give adequate notice to contractors of the work
contemplated and of the invitation to submit proposals therefor, at
least once in each week for any two successive weeks preceding the date
on which proposals described in such advertisement are to be received
and opened.
2. Proposals. Each proposal shall specify the correct gross sum for
which the work will be performed and shall also include the amount to be
charged for each item specified on the proposal estimate sheet. The
corporation may prescribe and furnish forms for the submission of such
proposals and may prescribe the manner of submitting the same which
shall not be inconsistent herewith. Accompanying each proposal there
shall be a certified check or bank cashier's check for the amount of the
bid deposit, to be fixed by the corporation and specified in the
advertisement for proposals. The checks of the two low bidders shall be
deposited by the corporation in a special account. Provided, however,
that if prior to or upon receipt of said checks by the corporation a
bidder who is one of the two low bidders shall have duly filed a bond as
hereinafter provided, the corporation shall forthwith return to said
bidder his aforesaid check without depositing the same. If alternate
proposals are taken, the checks of the two low bidders of all alternate
proposals shall be deposited. All checks other than those of the two low
bidders shall be returned promptly by the corporation. Notwithstanding
the provisions of any general or special law, the money represented by
the checks of the two low bidders shall be paid from the special account
when the contractor has duly executed and delivered to the corporation
the contract and the bond or bonds required by law for the performance
of the work of a public improvement for the state of New York, or upon
the rejection of all bids. The low bidder, in the discretion of the
corporation, and the second low bidder, as a matter of right, may at any
time after the opening of the respective proposals, file with the
corporation a bond, the principal amount of which shall at least equal
the amount of the respective bidder's check, theretofore deposited with
his proposal, in the form prescribed by the corporation, with sufficient
sureties, to be approved by the corporation, conditioned that the said
bidder will execute a contract and furnish such performance or other
bonds as may be required by law in accordance with the terms of the
bidder's said proposal. If a bidder complies with the aforesaid
provisions, the corporation shall forthwith return the money represented
by the check of such bidder.
In case the bidder to whom the contract shall be awarded shall fail to
execute such contract and bond, the moneys represented by such check
shall be regarded as liquidated damages and shall be forfeited to the
state and shall be deposited by the corporation with the commissioner of
taxation and finance to the credit of the general fund. The gross sums
indicated on the proposals when opened shall be publicly read. The
corporation shall keep the bids for the several items of the proposals
confidential until an award of the contract is made, after which the
proposals shall be subject at all reasonable times to public inspection.
3. Award of contract. The contract for the improvement, maintenance or
repair of any part of the canal system shall be awarded to the lowest
responsible bidder, as will best promote the public interest. No
contract shall be awarded to a bidder other than the lowest responsible
bidder without the written approval of the comptroller. The lowest bid
shall be deemed to be that which specifically states the lowest gross
sum for which the entire work will be performed, including all the items
specified in the estimate therefor. The lowest bid shall be determined
by the corporation on the basis of the gross sum for which the entire
work will be performed, arrived at by a correct computation of all the
items specified in the estimate therefor at the unit prices contained in
the bid.
4. Rejection of proposals. The corporation may reject any or all
proposals and may advertise for new proposals as provided in this
section, if, in its opinion, the best interest of the state and the
corporation will thereby be promoted.
5. Form of contract. The corporation shall prescribe the form of
contract and may include therein such matters the corporation may deem
advantageous to the state and the corporation.
6. Bond of contractor. Each contractor before entering into a contract
for such improvement, maintenance or repair of the canal system shall
execute a bond in the form prescribed by the corporation, with
sufficient sureties, to be approved by the corporation, on condition
that it will perform the work in accordance with the terms of the
contract and the plans and specifications, and that it will commence and
complete the work within the time prescribed in the contract. The bond
shall also provide against any direct or indirect damages that shall be
suffered or claimed on account of such construction or improvement
during the time thereof, and until the work is finally accepted.
7. Payments on contracts, state taxes. The contract shall provide for
partial payments as the work progresses as hereinafter provided:
(a) Ten per centum shall be retained from each progress payment or
estimate until the contract work is fifty per centum completed, after
which no further moneys shall be retained from any progress payments or
estimates paid thereafter, and when the entire contract work has been
completed and accepted, the corporation shall, pending the payment of
the final estimate, pay not to exceed fifty per centum of the amount of
the retained percentage.
(b) Whenever in the judgment of the corporation the withholding of the
retained percentage on account of the closing of the working season
would be an injustice to the contractor, the corporation may, provided
the district engineer certifies that the essential items in the contract
have been completed in accordance with the terms of the contract and the
provisions of this chapter, direct the district engineer to include in
the final account such uncompleted items and pay therefor at the item
prices in the contract upon the contractor depositing with the
corporation securities equal to double the value of such uncompleted
work. The deposit may be used by the corporation to complete the
uncompleted portion of the contract and shall be returned to the
contractor if it completes the uncompleted portion within a specified
number of working days after it has been notified to proceed with the
work.
(c) No certificates approving or authorizing a partial or final
payment shall be made by the corporation until it is satisfied that all
laborers employed on the work have been paid for their services for the
last payroll period preceding the said partial or final payment. The
corporation may, if it deems necessary, require an affidavit to such
effect from the contractor or it may depend on any other source which it
deems proper for such information.
(d) Contracts in force at the date of the enactment of this
subdivision may, in the discretion of the corporation, be amended to
provide for the withholding and the payments contemplated by the
provisions of paragraph (a) of this subdivision, if the surety or
sureties upon the performance and labor and material bonds given by a
contractor upon any such contract shall consent in writing thereto.
(e) No such certificate authorizing or approving the first partial
payment or any final payment to a foreign contractor shall be made
unless such contractor shall furnish satisfactory proof that all taxes
due the commissioner of taxation and finance by such contractor under
the provisions of or pursuant to a law enacted pursuant to the authority
of article nine, nine-A, twelve-A, twenty-one, twenty-two, twenty-eight,
twenty-nine or thirty of the tax law have been paid. The certificate of
the commissioner of taxation and finance to the effect that all such
taxes have been paid shall be, for purpose of this paragraph, conclusive
proof of the payment of such taxes. The term "foreign contractor" as
used in this subdivision means, in the case of an individual, a person
who is not a resident of this state, in the case of a partnership, one
having one or more partners not a resident of this state, and in the
case of a corporation, one not organized under the laws of this state.
8. Contingencies and extra work. Whenever the corporation determines
that from any unforeseen cause the terms of any contract should be
altered to provide for contingencies or extra work, it may, if funds are
available for payment of the cost thereof, issue an order on contract
therefor to the contractor, a copy of which shall be filed with the
director of the budget and the state comptroller. The estimated
expenditure pursuant to the order on contract shall not increase the
total amount of the primary contract until the estimated expenditure
shall have been approved by the corporation and a duplicate of such
approval shall have been filed with the comptroller. No such extra work
shall be commenced or undertaken until the corporation has issued an
order on contract as herein provided.
When such order on contract provides for similar items of work or
materials which increase or decrease the itemized quantity provided for
in the primary contract, the price to be paid therefor shall not exceed
the unit bid price in the primary contract for such items. Agreed prices
for new items of work or materials may be incorporated in the order on
contract as the corporation may deem them to be just and fair and
beneficial to the state, including the corporation.
Whenever the corporation also determines that in the cases herein
provided it is impracticable for it to ascertain in advance the just and
fair prices to be paid by the state for new items of work or materials,
the order on contract therefor may provide for performance of the work
and the furnishing of the materials and equipment, in which event the
contractor shall keep and shall make available at all times to the
corporation such accounting records, data and procedure as may be
required by the corporation.
Patented materials or articles. In the improvement, maintenance,
or repair of the canal system, no patented material or article or any
other material or article shall be specified, contracted for, or
purchased, except under such circumstances that there can be fair and
reasonable opportunity for competition, the conditions to secure which,
shall be prescribed by the corporation.
Performance of contracts. The performance of every contract for
the improvement, maintenance or repair of the canal system shall be
under the supervision and control of the corporation, and it shall be
its duty to see that every such contract is performed in accordance with
the provisions of the contract and with the plans and specifications
forming a part thereof. If the corporation shall determine that the work
upon any contract for the improvement, maintenance or repair of the
canal system is not being performed according to the contract or for the
best interest of the state, including the corporation, the execution of
the work by the contractor may be temporarily suspended by the
corporation, who may then proceed with the work under its own direction
in such manner as will accord with the contract specifications and be
for the best interest of the state including the corporation,; or it may
terminate the contractor's employment under the contract while it is in
progress, and thereupon, proceed with the work, in affirmance of the
contract, by contract negotiated or publicly let, by the use of its own
forces, by calling upon the surety to complete the work in accordance
with the plans and specifications or by a combination of any such
methods; or it may cancel the contract and readvertise and relet the
work as provided in section thirty of this article. Any excess in the
cost of completing the contract beyond the price for which it was
originally awarded shall be charged to and paid by the contractor
failing to perform the work or by such contractor's surety. Where the
estimate for the completion of a cancelled contract is in excess of the
balance of the amount originally set aside by the state including the
corporation, to provide for the improvement, maintenance or repair of
the canal system, or a part thereof, together with any amount otherwise
provided, the corporation is authorized to set aside from any funds
available for the improvement, maintenance or repair of the canal
system, or a part thereof, an additional sum equal to such excess and to
pay such excess in the first instance, pending recovery of excess cost
from the defaulting contractor and surety, as provided in this section.
Every contract for the improvement, maintenance or repair of the canal
system, or a part thereof, shall reserve to the corporation the right to
suspend or cancel the contract as above provided, and to complete the
work thereunder by contract negotiated or publicly let or by the use of
its own forces, or affirm the contract and thereupon to complete the
work thereunder according to any of the methods above provided as the
corporation may determine.
Acceptance of work. Upon the completion of the improvement,
maintenance or repair of any part of the canal system under a contract
let, as provided in this article, the corporation shall cause the same
to be inspected, and upon the filing in the office of the corporation of
a certificate stating that the work has been well and faithfully
performed, in accordance with the terms of the contract, and all legal
modifications thereof, the work shall be deemed accepted and
certificates for final payment on the contract executed.
Exemption of materials or equipment from execution. All
materials or equipment furnished or partly procured on a defaulted
contract with the corporation, shall be exempt from execution, but the
corporation shall pay the moneys due for such material or equipment to
any judgment creditor of the contractor under whose execution such
materials or equipment might otherwise have been sold, on production to
it of due proof that such execution would have so attached, and such
payments shall be valid payments on the contract.
Certain federal aid improvements. This article shall not impair
nor affect provisions of chapter six hundred eighty-eight of the laws of
nineteen hundred thirty-four which authorize and direct compliance with
the federal laws, rules, regulations and conditions which govern
contracts and expenditures for the canal improvements authorized or
prosecuted by or under such chapter, with financial aid from the federal
government; and this article shall apply to such improvements and to
contracts therefor only in so far as it is consistent with such
provisions.
ARTICLE 5 Acquisition of Property For the Canal System
Acquisition of property. 1. The acquisition of property
necessary for purposes of the improvement, use, maintenance, control,
management or repair of the canal system, shall be pursuant to the
provisions of the eminent domain procedure law by the corporation or by
the commissioner of transportation at the request of the corporation.
2. The commissioner of transportation or the corporation as the case
may be, shall cause to be prepared an accurate acquisition map of any
property which he or it may deem necessary for purposes connected with
the canal system or of any property in and to which he or it may deem
the acquisition or exercise of an easement, interest or right to be
necessary for such purposes, indicating and describing in each case the
particular easement, interest or right. On the approval of such map by
the commissioner of transportation or the corporation as the case may
be, he or it shall acquire such property, easements, interests or rights
pursuant to the provisions of the eminent domain procedure law.
3. If the corporation shall determine, prior to the filing of such
copy of the map in the office of the county clerk or register as
aforesaid, that changes, alterations or modifications of such map as
filed in the main office of the corporation should be made, the
corporation shall, subject to the provisions of article two of the
eminent domain procedure law, if applicable, direct the preparation of
an amended map, either by preparing a new map or by making changes on
the original tracing of such map, with a notation indicating such
changes. On the approval of such amended map by the corporation, it
shall be filed in the main office of the corporation in the same manner
as the original map was filed, and the amended map shall thereupon in
all respects and for all purposes supersede the map previously filed.
4. If the corporation shall determine, prior to the filing of such
copy of the map in the office of the county clerk or register as
aforesaid, that such map should be withdrawn, the corporation shall file
a certificate of withdrawal in the offices of the corporation and
department of law. Upon the filing of such certificate of withdrawal,
the map to which it refers shall be canceled and all rights thereunder
shall cease and terminate.
5. The commissioner of transportation or the corporation as the case
may be, shall deliver to the attorney general a copy of such acquisition
map whereupon it shall be the duty of the attorney general to advise and
certify to the commissioner of transportation or the corporation the
names of the owners of the property, easements, interests or rights
described in the said acquisition map, including the owners of any
right, title or interest therein pursuant to the requirements of section
four hundred three of the eminent domain procedure law.
6. If, at or after the vesting of title to such property in the people
of the state of New York as provided for in the eminent domain procedure
law, the commissioner of transportation or the corporation as the case
may be shall deem it necessary to cause the removal of an owner or other
occupant from such property it may cause such owner or other occupant to
be removed therefrom by proceeding in accordance with section four
hundred five of the eminent domain procedure law. The proceedings shall
be brought in the name of the commissioner of transportation or the
corporation as agent of the state. If any person proceeded against shall
contest the petition by an answer, the attorney general shall be
notified, and he thereafter shall represent the petitioner in the
proceedings. No execution shall issue for costs, if any awarded against
the state, the commissioner of transportation or the corporation, but
they shall be part of the costs of the acquisition and be paid in like
manner. Proceedings may be brought separately against one or more of the
owners or other occupants of a property, or one proceeding may be
brought against all or several of the owners or other occupants of any
or all property within the territorial jurisdiction of the same justice
or judge; and judgment shall be given for immediate removal of persons
defaulting in appearance or in answering, or withdrawing their answers,
if any, without awaiting the trial or decision of issues raised by
contestants, if any.
7. Upon making any agreement provided for in section three hundred
four of the eminent domain procedure law, the commissioner of
transportation or the corporation as the case may be shall deliver to
the comptroller such agreement and a certificate stating the amount due
such owner or owners thereunder on account of such appropriation of his
or their property and the amounts so fixed shall be paid pursuant to all
relevant provisions of the public authorities law, the eminent domain
procedure law and the state finance law.
8. Application for reimbursement of incidental expenses as provided in
section seven hundred two of the eminent domain procedure law shall be
made to the corporation upon forms prescribed by the corporation and
shall be accompanied by such information and evidence as the corporation
may require. Upon approval of such application, the corporation shall
deliver a copy thereof, to the comptroller together with a certificate
stating the amount due thereof, and the amount so fixed shall be paid
out of funds available for the acquisition of property under this
section.
9. The corporation shall establish and may from time to time amend
rules and regulations authorizing the payment of actual reasonable and
necessary moving expenses of occupants of property acquired pursuant to
this section; of actual direct losses of tangible personal property as a
result of moving or discontinuing a business or farm operation, but not
exceeding an amount equal to the reasonable expenses that would have
been required to relocate such property, as determined by the
corporation; and actual reasonable expenses in searching for a
replacement business or farm; or in hardship cases for the advance
payment of such expenses and losses. For the purposes of making payment
of such expenses and losses only the term "business" means any lawful
activity conducted primarily for assisting in the purchase, sale,
resale, manufacture, processing or marketing of products, commodities,
personal property or services by the erection and maintenance of an
outdoor advertising display or displays, whether or not such display or
displays are located on the premises on which any of the above
activities are conducted. Such rules and regulations may further define
the terms used in this subdivision. In lieu of such actual reasonable
and necessary moving expenses, any such displaced owner or tenant of
residential property may elect to accept a moving expense allowance,
plus a dislocation allowance, determined in accordance with a schedule
prepared by the corporation and made a part of such rules and
regulations. In lieu of such actual reasonable and necessary moving
expenses, any such displaced owner or tenant of commercial property who
relocates or discontinues his business or farm operation may elect to
accept a fixed relocation payment in an amount equal to the average
annual net earnings of the business or farm operation, except that such
payment shall be not less than two thousand five hundred dollars nor
more than ten thousand dollars. In the case of a business, no such fixed
relocation payment shall be made unless the corporation finds and
determines that the business cannot be relocated without a substantial
loss of its existing patronage, and that the business is not part of a
commercial enterprise having at least one other establishment, which is
not being acquired by the state or the United States, which is engaged
in the same or similar business. In the case of a business which is to
be discontinued but for which the findings and determinations set forth
above cannot be made, the corporation may prepare an estimate of what
the actual reasonable and necessary moving expenses, exclusive of any
storage charges, would be if the business were to be relocated and enter
into an agreed settlement with the owner of such business for an amount
not to exceed such estimate in lieu of such actual reasonable and
necessary moving expenses. Application for payment under this
subdivision shall be made to the corporation upon forms prescribed by it
and shall be accompanied by such information and evidence as the
corporation may require. Upon approval of such application, the
corporation shall deliver a copy thereof to the comptroller together
with a certificate stating the amount due thereunder, and the amount so
fixed shall be paid out of the state treasury after audit by the
comptroller from moneys appropriated for the acquisition of property
under this section. As used in this subdivision the term "commercial
property" shall include property owned by an individual, family,
partnership, corporation, association or a nonprofit organization and
includes a farm operation. As used in this subdivision the term
"business" means any lawful activity, except a farm operation, conducted
primarily for the purchase, sale, lease and rental of personal and real
property, and for the manufacture, processing or marketing of products,
commodities, or any other personal property; for the sale of services to
the public; or by a nonprofit organization.
10. Authorization is hereby given for the reimbursement to the person
or other entity entitled thereto, as determined by the corporation, of
an amount, separately computed and stated, representing the following
incidental expenses to the owner of property acquired pursuant to this
section:
(a) Any recording fees, transfer taxes and other similar expenses in
connection with the acquisition of the property by the state, including
the corporation, or in connection with the transfer of the property to
the state, including the corporation; and
(b) Any penalty costs, incurred by the owner of property acquired by
the state, including the corporation, for prepayment of any pre-existing
recorded mortgage entered into in good faith encumbering such property.
In the event that there shall be a final judgment by a court of
competent jurisdiction that the commissioner of transportation or the
corporation as the case may be, was not legally authorized to acquire
property, or a portion of such property, pursuant to this section; or
the commissioner or the corporation denies that there was any taking of
property, makes no offer to settle the value of the claim for such
property and there shall be a final judgment by a court of competent
jurisdiction that the commissioner or the corporation did in fact take
such property; or the procedure to acquire such property is abandoned by
the commissioner or the corporation; authorization is hereby given for
the reimbursement to the person or other entity entitled thereto, as
determined by the commissioner or the corporation, of an amount,
separately computed and stated, for reasonable costs, disbursements and
expenses, including reasonable attorney, appraisal and engineering fees,
actually incurred by such person or other entity because of the
acquisition procedure.
Application for either of such reimbursements shall be made to the
corporation upon forms prescribed by it and shall be accompanied by such
information and evidence as the corporation may require. Upon approval
of such application, the corporation shall deliver a copy thereof to the
comptroller together with a certificate stating the amount due
thereunder, and the amount so fixed shall be paid out of funds available
for this purpose.
11. Authorization is hereby given to the corporation to make
supplemental relocation payments, separately computed and stated, to
displaced owners and tenants of residential property acquired pursuant
to this section who are entitled thereto, as determined by such
corporation. The corporation may establish and from time to time amend
rules and regulations providing for such supplemental relocation
payments. Such rules and regulations may further define the terms used
in this subdivision. In the case of property acquired pursuant to this
section which is improved by a dwelling actually owned and occupied by
the displaced owner for not less than one hundred eighty days
immediately prior to initiation of negotiations for the acquisition of
such property, such payment to such owner shall not exceed fifteen
thousand dollars. Such payment shall be the amount, if any, which, when
added to the acquisition payment equals the average price, established
by the corporation on a class, group or individual basis, required to
obtain a comparable replacement dwelling that is decent, safe and
sanitary to accommodate the displaced owner, reasonably accessible to
public services and places of employment and available on the private
market, but in no event shall such payment exceed the difference between
acquisition payment and the actual purchase price of the replacement
dwelling. Such payment shall include an amount which will compensate
such displaced owner for any increased interest costs which such person
is required to pay for financing the acquisition of any such comparable
replacement dwelling. Such amount shall be paid only if the dwelling
acquired pursuant to this section was encumbered by a bona fide mortgage
which was a valid lien on such dwelling for not less than one hundred
eighty days prior to the initiation of negotiations for the acquisition
of such dwelling. Such amount shall be equal to the excess in the
aggregate interest and other debt service costs of that amount of the
principal of the mortgage on the replacement dwelling which is equal to
the unpaid balance of the mortgage on the acquired dwelling, over the
remaining term of the mortgage on the acquired dwelling, reduced to
discounted present value. The discount rate shall be the prevailing
interest rate paid on savings deposits by commercial banks in the
general area in which the replacement dwelling is located. Any such
mortgage interest differential payment shall, notwithstanding the
provisions of section twenty-six-b of the general construction law, be
in lieu of and in full satisfaction of the requirements of such section.
Such payment shall include reasonable expenses incurred by such
displaced owner for evidence of title, recording fees and other closing
costs incident to the purchase of the replacement dwelling, but not
including prepaid expenses. Such payment shall be made only to a
displaced owner who purchases and occupies a replacement dwelling which
is decent, safe and sanitary within one year subsequent to the date on
which he is required to move from the dwelling acquired pursuant to this
section or the date on which he receives from the state final payment of
all costs of the acquired dwelling, whichever occurs later, except
advance payment of such amount may be made in hardship cases. In the
case of property acquired pursuant to this section from which an
individual or family, not otherwise eligible to receive a payment
pursuant to the above provisions of this subdivision, is displaced from
any dwelling thereon which has been actually and lawfully occupied by
such individual or family for not less than ninety days immediately
prior to the initiation of negotiations for the acquisition of such
property, such payment to such individual or family shall not exceed
four thousand dollars. Such payment shall be the amount which is
necessary to enable such individual or family to lease or rent for a
period not to exceed four years, a decent, safe and sanitary dwelling of
standards adequate to accommodate such individual or family in areas not
generally less desirable in regard to public utilities and public and
commercial facilities and reasonably accessible to his place of
employment, but shall not exceed four thousand dollars, or to make the
down payment, including reasonable expenses incurred by such individual
or family for evidence of title, recording fees, and other closing costs
incident to the purchase of the replacement dwelling, but not including
prepaid expenses, on the purchase of a decent, safe and sanitary
dwelling of standards adequate to accommodate such individual or family
in areas not generally less desirable in regard to public utilities and
public and commercial facilities, but shall not exceed four thousand
dollars, except if such amount exceeds two thousand dollars, such person
must equally match any such amount in excess of two thousand dollars, in
making the down payment. Such payments may be made in installments as
determined by the corporation. Application for payment under this
subdivision shall be made to the corporation upon forms prescribed by
such corporation and shall be accompanied by such information and
evidence as the corporation may require. Upon approval of such
application, the corporation shall deliver a copy thereof to the
comptroller, together with a certificate stating the amount due
thereunder, and the amount so fixed shall be paid out of funds available
for such purpose.
12. The owner of any property, easements, interests or rights
appropriated, may present to the court of claims a claim for the value
of such property appropriated and for legal damages as provided by law
for the filing of claims with the court of claims. Payment of such
awards and judgments of the court of claims shall be made in the manner
now prescribed by law.
13. If the work of improvement, maintenance, control, management or
repair of the canal system causes damage to property not acquired as
above provided, the state shall be liable therefor, but this provision
shall not be deemed to create any liability not already existing by
statute. Claims for such damage may be adjusted by the corporation, if
the amounts thereof can be agreed upon with the persons making such
claims, and any amount so agreed upon shall be paid as a part of the
cost of such improvement, maintenance, control, management or repair as
prescribed by this section. If the amount of any such claim is not
agreed upon, such claim may be presented pursuant to the eminent domain
procedure law to the court of claims which is hereby authorized to hear
such claim and determine if the amount of such claim or any part thereof
is a legal claim against the state, and, if it so determines, to make an
award and enter judgment thereon against the state, provided, however,
that such claim is filed with the court of claims within three years
after the accrual of such claim.
14. Notwithstanding any other provision of this section, the
corporation or the commissioner of transportation at the request of the
corporation shall have the power to acquire by grant or purchase, in the
name of the people of the state of New York, any property which he or
the corporation deems necessary for any of the purposes provided for in
this section, and payment therefor, if any, shall be made in the manner
prescribed in this section for the payment of adjusted appropriation
claims, provided, however, that no real property shall be so acquired
unless the title thereto shall be approved by the attorney general.
15. The expense of the acquisition of property, including the cost of
making surveys, preparing descriptions and maps of property to be
acquired, and of administrative duties in connection therewith, serving
notices of appropriation, publication, making appraisals and agreements
and of searches ordered and examinations and readings and approval of
titles made by the attorney general, and expenses incurred by the
corporation or the commissioner of transportation at the request of the
corporation and attorney general in proceedings for the removal of
owners or occupants, shall be deemed a part of the cost of operation of
the respective offices where such employees are engaged or of the
department having charge of such matters and shall be paid from moneys
appropriated for the operation of such offices. If a special fund has
been set up to provide for the acquisition of property, then such
expense involved may be made payable from such fund.
16. Notwithstanding the provisions of any general, special or local
law, the corporation or the commissioner of transportation at the
request of the corporation, his or its officers, agents or contractors
when engaged on work connected with the canal system, as described in
subdivision one of this section, may, pursuant to the provisions of the
eminent domain procedure law, enter upon any property for the purpose of
making surveys, test pits, test borings, or other investigations and
also for temporary occupancy during construction. Claims for any damage
caused by such entry, work or occupation not exceeding two thousand five
hundred dollars may be adjusted by agreement by the corporation or the
commissioner of transportation at the request of the corporation with
the owner of the property affected as determined by him or such
corporation by reasonable investigation without appropriating such
property. Upon making any such adjustment and agreement, the corporation
or the commissioner of transportation shall deliver to the comptroller
such agreement and a certificate stating the amount due such owner and
the amount so fixed shall be paid out of the funds available for such
purpose.
17. If the corporation shall determine subsequent to the acquisition
of a temporary easement right in property and subsequent to the filing
of a description and map of such property in the office of the county
clerk or register, as aforesaid, that the purposes for which such
easement right was acquired have been accomplished and that the use and
occupancy of said property for canal purposes are no longer necessary,
and that, therefore, the term of such easement should be further
limited, or if the appropriation of such easement was for an indefinite
period, that such period should be fixed and determined, or that the
period of such easement has by its terms expired, the corporation shall
make its certificate that the use and occupancy of such property for
canal purposes are no longer necessary, that the property in which such
easement right was acquired is surrendered back to the affected owner of
said property and that such easement right is thereupon terminated,
released and extinguished. The corporation shall cause a copy of such
certificate to be filed in the office of the department of state. Upon
the filing of such certificate in the office of the department of state
all rights acquired by the state in such property shall cease and
determine. The corporation shall cause a copy of such certificate
together with notice of the filing thereof in the office of the
department of state to be mailed to the owner or owners of the property
affected, as certified by the attorney general, if the place of
residence of such owner or owners is known or can be ascertained by a
reasonable effort. A further copy of such certificate and notice of
filing shall be filed in the office of the recording officer of each
county wherein the property affected is situated. On the filing of such
certificate and notice with such officer it shall be the duty of such
officer to record same in the books used for recording deeds in the
office of such officer.
18. Notwithstanding any other provision of this section, the
corporation shall have the power to acquire by grant or purchase, in the
name of the people of the state of New York, any property which it deems
necessary for any of the purposes provided for in this section and may
also acquire for such purposes from the Palisades interstate park
commission, in the name of the people of the state of New York, such
lands and such easements, licenses, permits and other rights over lands
as the said commission is authorized to grant, sell, exchange or convey.
When the acquisition by appropriation, grant or purchase of property
deemed necessary for canal purposes would result in substantial
consequential damages to the owner's remaining property, due to loss of
access, severance or control of access, the corporation, for and on
behalf of the people of the state of New York, may acquire by purchase
or grant all or any portion of such remaining property. Payment
therefor, if any, shall be made in the manner prescribed in this section
for the payment of adjusted appropriation claims, provided, however,
that no real property shall be so acquired unless the title thereto
shall be approved by the attorney general.
Acquisition of cemeteries. Whenever in the judgment of the
corporation, it is necessary for the purposes of improving, maintaining
or repairing the canal system, to appropriate any property occupied by
graves, burial places, cemeteries or other places of interment of human
remains, the corporation may acquire such property in the manner and by
the method prescribed by this article. It shall cause the removal of all
such remains to any other cemetery or burial place, whether private or
public, as the board of trustees or governing body of such burial place
or burial ground shall designate. All removals and transportation of
such human remains shall be done in accordance with the provisions of
the public health law. Whenever any person or persons legally entitled
to direct as to the disposition of any human remains exhumed or to be
exhumed from any cemetery, burial place or graves as herein provided,
desires to remove the same for reinterment to any burial plot or
cemetery not within the same county from which such remains were
exhumed, such person or persons so entitled to designate such other
burial place or plot shall be permitted to remove such exhumed remains
from such county subject to the written consent of the corporation and
provisions of the public health law, but no portion of the expense of
such transportation or burial in another county shall be borne by the
state or the corporation.
Removal of encroachments. The corporation is authorized to cause
to be removed from canal property any building, part of a building or
structure erected, placed, maintained or otherwise occupying such canal
property, if, in its opinion, the removal is necessary for the
improvement, use, maintenance, control, management, repair or operation
of the canal system. It shall be the duty of any person owning or
maintaining such a building, part of a building or structure to remove
the same within thirty days from the service by the corporation upon
said person of a notice ordering its removal. Upon the failure of the
person so ordered to remove the building, part of a building or
structure, the corporation may, without liability on the part of the
state or the corporation, take whatever action it may deem necessary to
cause the removal. Service of the order of removal must be personal if
the person to be served can be found within the state. If the
corporation shall not be able to serve such notice or cause the same to
be served on the said person within the state after making a reasonable
effort so to do, service may be made by attaching such notice to the
said building, part of a building or structure.
Exchange of property. In order to facilitate the acquisition of
property as defined in this article, and which, in the judgment of the
corporation, will be in the public interest and necessary for canal
purposes, payment for such property may be made by means of an exchange
therefor of property found to be no longer necessary or useful as a part
of the barge canal system, or as an aid to navigation thereon, or for
barge canal terminal purposes. The property to be so acquired shall be
of at least equal value to that of such property to be exchanged. The
corporation is authorized and empowered to enter into an agreement with
the owner or owners of such property to be so acquired, upon such terms
and conditions as to such corporation shall seem appropriate and proper
to accomplish such purpose.
In all such cases, the property so to be exchanged shall first be
declared abandoned by official order of the corporation which order
shall set forth the benefits to be obtained by such exchange. In such
abandonment it shall be unnecessary to conform to the provisions for
abandonment made in section fifty-one of this chapter. The agreement and
the title to the property to be acquired shall be subject to the
approval of the attorney-general. Upon the approval of title by the
attorney-general, the corporation is authorized and empowered to execute
in the name of the people of the state of New York, a quit-claim deed to
effectuate such exchange, which shall be subject to the approval of the
attorney-general. The deed so executed, before becoming effective, shall
be recorded in the office of the secretary of state. Compensation on
account of excess value if any, of the lands so acquired shall be
adjusted and paid in the manner provided by section forty of this
article, as in the case of property taken by appropriation.
When applied. The provisions of this chapter shall not affect
any proceeding or appropriation now pending for the acquisition of any
property for the purposes of the canal system of the state of New York,
and any such proceeding or appropriation shall be continued to
termination pursuant to the statute under which such proceeding or
appropriation was instituted.
ARTICLE 6 Abandonment of Canal Lands
Authority to abandon canal lands. 1. Authority is hereby
conferred upon the corporation to abandon any portion of barge canal
lands, barge canal terminal lands, or old canal lands and appertaining
structures constituting the canal system prior to the barge canal
improvement, which have or may become no longer necessary or useful as a
part of the barge canal system, as an aid to navigation thereon, or for
barge canal terminal purposes. This authority, however, shall not
include the abandonment of a barge canal terminal unless such terminal
has been by a special act of the legislature previously determined to
have become no longer necessary or useful as a part of the barge canal
system, as an aid to navigation thereon, or for barge canal terminal
purposes.
2. Abandonments authorized pursuant to this section shall be subject
to the provisions of subdivision seventeen of section ten of this
chapter.
Method of abandonment. Prior to the exercising of such authority
of abandonment, however, the corporation shall cause a notice of any
proposed abandonment to be transmitted to the commission and to be
published once each week for three successive weeks in a newspaper
published in the county wherein such lands are located, except that such
publication shall appear in a newspaper published in the municipality or
locality wherein such lands are located when there is a newspaper
published in such municipality or locality. Such notice shall describe
the lands proposed to be abandoned with sufficient certainty to identify
them and invite interested parties to file written statements either
supporting or opposing the proposed abandonment. Upon the expiration of
the period of publishing said notice, when it is the case that the
assessment for such lands proposed for abandonment is equal to or
greater than fifty thousand dollars, the corporation shall hold a
hearing at which evidence or further information may be submitted. A
record shall be made of all evidence submitted at such hearing. If no
hearing shall appear to the corporation to be warranted or subsequent to
such hearing, should one be held, the corporation may in its discretion
declare such lands abandoned for the purposes of the canal system. The
corporation shall thereupon issue an official order abandoning the lands
for canal purposes together with a map and description of the lands
abandoned and dispose of any portion of canal lands so abandoned. Any
money realized from the sale of such land shall be deposited into the
canal fund.
When applied. Notwithstanding the provisions of any existing
general or special acts, the procedure in abandonment of canal lands
shall hereafter be in accordance with the provisions set forth in this
chapter.
Sale of abandoned lands for railroad bridges. Whenever any canal
lands, as defined in article one of this chapter, are required in
connection with any railroad bridge which has been or which is to be
constructed, reconstructed or raised by or for a railroad corporation
over that portion of the barge canal, which has been or which will be
improved by the use of moneys allotted or to be allotted to the state by
the federal government in accordance with chapter six hundred
eighty-eight of the laws of nineteen hundred thirty-four, the
corporation may issue an official order abandoning the lands for canal
purposes. Upon a written request by the railroad corporation, and
notwithstanding the provisions of any general or special law, the
corporation is authorized to grant and convey such land to said railroad
corporation for and on behalf of the people of the state of New York for
the purposes mentioned and for a nominal or other consideration and upon
such terms and conditions which he shall deem to be beneficial to the
state. Such instrument of grant and conveyance shall become effective
when it is recorded in the office of the secretary of state. Any moneys
realized from the sale of such land shall be deposited into the canal
fund.
Abandonment and sale of hydropower easements; agreements with
hydropower developers. 1. Notwithstanding subdivision two of section
three or section fifty of the public lands law or section fifty,
fifty-one or fifty-two of this article, upon request of a person
licensed under Part I of the Federal Power Act (16 USC § 791a-823a) to
develop and operate a hydropower project at a site on the barge canal
system, the corporation may adopt an order abandoning a hydropower
easement in barge canal system lands and waters which are within the
boundaries of such federally licensed project, upon finding the property
rights under such easement to be no longer necessary or useful as a part
of the barge canal system, as an aid to navigation thereon, or for barge
canal terminal purposes. Upon adoption of such order, and with the
approval of the governor, the corporation may sell and convey such
easement at private sale to such licensed developer. Such hydropower
easements shall be sold for a price to be determined by the corporation
taking into consideration the value of obligations to be assumed by such
licensed developer, the value of the rights granted to such developer to
use canal system lands, waters and facilities for hydropower project
purposes and any other appropriate factors.
2. Any hydropower easement abandoned, sold and conveyed pursuant to
subdivision one of this section shall be limited as follows:
(a) The easement shall convey only those rights necessary and
convenient for the development and generation of hydropower pursuant to
the provisions of the applicable federal hydropower license and only
within the boundaries of the hydropower project as licensed.
(b) The easement shall be subservient to the fee retained by the
state.
(c) The easement shall not give the owner the right to interfere with,
either by act or omission, the management and control by the state,
through the corporation, of the barge canal system.
(d) The easement shall provide that it shall revert to the state under
terms and conditions to be determined by the corporation in the event
that the site ceases to be used for purposes of hydropower development
and generation.
3. The corporation may also enter into agreements with such a licensed
developer regarding the division of maintenance responsibility for
structures, facilities or other property which serve both hydropower
generation and barge canal system purposes and regarding other matters
concerning joint operation at the site. Such agreements may provide for
the payment to the corporation of reasonable compensation for services
rendered by the corporation which assist or otherwise further the
development of hydropower on the barge canal system. In addition, the
corporation, subject to the approval of the director of the budget, may
enter into a written agreement with a licensed developer or operator at
any site concerning the sharing of costs for a major capital improvement
or improvements at such site. Should the contract for such improvement
or improvements be let and awarded by the corporation, the state
comptroller is authorized to receive and accept from the developer or
operator, the sum or sums specified in such agreement and to disburse
the same along with state funds appropriated for the purpose of such
capital improvement or improvements.
4. Any revenue realized from the sale or lease of hydropower easements
shall be deposited into the canal fund.
ARTICLE 6-A Leasing of Canal Lands
Authority to lease land. 1. The corporation is hereby
authorized, after review and comment by the commission as to consistency
with the canal recreationway plan approved pursuant to section one
hundred thirty-eight-c of this chapter and section three hundred
eighty-two of the public authorities law, to enter into leases of canal
lands, canal terminals, and canal terminal lands which are consistent
with the canal recreationway plan. Such review and comment shall be
provided within the time period set forth in the procedures of the
commission established pursuant to section one hundred thirty-eight-b of
this chapter which shall be no more than sixty days.
2. Lands to be leased shall be determined by the corporation to have
no essential purpose for navigation.
3. Leases of canal lands, canal terminals and canal terminal lands
shall be for purposes which are consistent with the New York state canal
recreationway plan approved pursuant to section one hundred
thirty-eight-c of this chapter and section three hundred eighty-two of
the public authorities law.
4. The corporation shall consider fully completed applications for
leases of canal lands, canal terminals and canal terminal lands in such
form and manner as the corporation shall prescribe.
5. Canal lands, canal terminals and canal terminal lands within the
Adirondack park shall not be leased.
6. The corporation shall provide assistance, including reasonable
access to lands, as may be necessary to assist potential applicants in
preparing an application.
7. The corporation may require an applicant for a lease to provide
necessary property surveys, environmental studies, maps and photographs,
site plans and such other documents and studies as the corporation may
determine to be necessary to ascertain the compatibility of proposed
development with the New York state canal recreationway plan and for the
corporation to select a qualified lessee.
8. Revenues realized from the lease of canal lands, canal terminals
and canal terminal lands shall be deposited into the canal fund.
Conditions and terms of leases. Leases for canal lands, canal
terminals and canal terminal lands shall include:
1. the period of time for such leases, provided that the initial term
of such leases may not exceed forty years, and renewals of such leases
may not exceed an additional forty years beyond such initial terms;
2. requirements that the lessee take no actions or construct no
improvements that will interfere with navigation, except that if the
corporation determines that any potential adverse interference with
navigation can be reasonably mitigated, the corporation shall include in
the lease such requirements as may be necessary to effectuate mitigation
of impediments to navigation;
3. proper covenants to assure the payment of adequate consideration
for the interests leased, and to further protect the state and the
corporation as is deemed necessary by the corporation;
4. provisions requiring that payments on the lease shall be paid to
the corporation;
5. provisions relating to public access, where feasible, to lands and
waters of the canal system; provided however that the corporation may
require that public access be restricted in those cases where the
corporation determines that public safety will be served by such
restriction;
6. provisions providing a right of entry for commission and
corporation members and personnel and equipment for canal purposes; and
7. such other terms as the corporation shall determine are necessary
and appropriate for the implementation of this article and the
preservation of the state's interest in the canal system.
Special conditions for leases entered prior to approval of canal
recreationway plan. 1. In the period between the effective date of this
section and the completion of the canal recreationway plan, the
commission shall review and comment on proposed leases with respect to
the consistency of such leases with the provisions of this article.
Where local zoning laws and zoning ordinances are in effect on lands
proposed to be leased or on lands adjacent to those lands proposed to be
leased, during such period the commission shall also review and comment
on proposed leases with respect to the compatibility of such leases, to
the extent practicable, with the requirements of such local zoning laws
and zoning ordinances.
2. In addition to the other applicable provisions of this article, the
corporation shall ensure that: (a) the lease will benefit the canal
system by effectuating the development of the canal as a recreationway;
(b) the lease will foster a canal system characterized by clusters of
development and stretches of undeveloped open space which is conducive
to the preservation of waterfowl, fish and wildlife habitats; and (c)
may encourage the use of historic buildings, sites and districts listed
on or eligible for the state or national registers of historic places.
ARTICLE 7 Bridges and Highways
Alteration of county roads or town highways. Whenever the
commissioner of transportation shall deem it necessary to discontinue or
alter any part of a county road or town highway because of its
interference with the proper location or construction of any work on the
canal system either of improvment, maintance, or repair he shall direct
such discontinuance or alteration to be made and file in the office of
the clerk of the county or town in which such road or highway is
situate, an accurate description of the part of such road or highway so
discontinued and of the one laid out anew. From the time of filing such
description such road or highway shall be considered so altered. The use
of such old road or highway shall not be discontinued until the new road
or highway is declared open for public use by the commissioner of
transportation, and a certificate to such effect filed in the office of
the clerk of the county or town in which said road or highway is
located. Every alteration made on any public road located upon the canal
system before the first day of January, nineteen hundred and thirty-nine
shall be deemed valid in law from the time of such alteration.
Farm and road bridges. The commissioner of transportation is
authorized and required to maintain until April first, nineteen hundred
fifty-four, at public expense farm, road and street bridges over the
canal system, in all places where such bridges were constructed prior to
the twentieth day of April, eighteen hundred thirty-nine, if, in his
opinion, the public convenience requires that they should be continued,
whether heretofore maintained at the expense of the state or of the
counties, towns, villages and cities where they are situate, provided,
however, that commencing on the first day of April, nineteen hundred
fifty-four, and continuing thereafter, the maintenance, repair,
improvement, replacement or closing of any such bridge over any section
of the canal heretofore abandoned or which may hereafter be abandoned
shall be governed by the provisions of the highway law, except that any
such bridges situate in a city shall be maintained, repaired, improved,
replaced or closed in the same manner and subject to the same provisions
of law as apply to other streets and bridges in such city.
Maintenance by state of certain bridges over the canal system.
All highway or pedestrian, lift or movable bridges over the canal system
other than highway bridges connecting parts of a state highway
heretofore constructed as a part of the barge canal improvement shall be
reconstructed, improved, maintained and repaired at the expense of the
state, if in the opinion of the commissioner of transportation, the
public convenience requires such bridges to be maintained where no
alternate crossing has been provided. In the event the commissioner of
transportation determines that any such bridge is no longer required for
the convenience of the public, he shall have power to close, remove or
relocate such bridge. The commissioner of transportation shall have the
supervision and direction of such reconstruction, improvement,
maintenance, repair, closing, removing or relocation. All bridges over
the canal system other than lift, movable, pedestrian or state highway
bridges heretofore constructed as part of the barge canal improvement
shall be reconstructed, improved, maintained and repaired at the expense
of the state under the supervision and direction of the commissioner of
transportation, if, in his opinion, the public convenience requires that
each such bridge shall be continued as a bridge for highway traffic. In
the event the commissioner of transportation is requested by any
municipality to reconstruct or improve any such bridge, he is hereby
empowered to do so, provided, however, that prior to such reconstruction
or improvement the municipality enters into a written agreement that
such bridge thereafter shall become a part of the highway system or
systems which it may connect and the maintenance, repair, improvement,
replacement or closing of any such bridge shall be governed by the
provisions of the highway law, except that any such bridges situate in a
city shall be maintained, repaired, improved, replaced or closed in the
same manner and subject to the provisions of any special law which may
apply or to the same provisions of law as apply to other streets and
bridges in such city or in the case of such bridges situate in a
village, such bridges shall be maintained, repaired, improved, replaced
or closed in the same manner and subject to the same provisions of law
as apply to other streets and bridges in such village. Any bridge over
the New York state canal system or abandoned part thereof which joins
parts of a state highway shall be under the jurisdiction of the
commissioner of transportation and deemed to be part of the state
highway system and such bridges shall be constructed, reconstructed,
improved, maintained, repaired, closed or relocated pursuant to the
provisions of the highway law and the cost of such work shall be paid
from moneys available for construction, reconstruction, improvement,
maintenance or repair of state highways.
Maintenance by state of alteration to certain highway bridges
not state owned. When in the canalization of a natural waterway to form
a part of the canal system it has been or may be necessary to alter an
existing highway bridge spanning the canalized portion of the waterway,
the maintenance and repair of the additional or new part or parts of
such bridge structure which may have been or may be necessary in
altering the bridge to meet the requirements of navigation, shall be an
obligation of the state. The commissioner of transportation shall have
supervision and direction over such maintenance or repairs, the cost of
which shall be defrayed from moneys appropriated for the improvement,
maintenance and repair of the canal system.
Commutation for bridges. The commissioner of transportation may
commute with owners and claimants of bridges over any canal, by paying
such owner or claimant such sum in lieu of a bridge as may be agreed on
between the claimant and the commissioner of transportation. If, in the
opinion of the commissioner of transportation, a bridge should not be
rebuilt, and the amount to be paid be not agreed upon, the bridge shall
not be built, but the damages sustained by such owner by being deprived
of such bridge and which the state under all the circumstances ought of
right to pay, shall be ascertained in the same manner as damages for the
appropriation of real property, for the use of the canal and paid by the
commissioner of transportation, on the approval of the attorney-general.
If the damages claimed are for the deprivation of a bridge which the
claimant had before constructed or maintained, the circumstance of his
being equitably bound to contribute proportionately toward the
construction and maintenance of an enlarged bridge shall be taken into
consideration and a proper amount of that account shall be set off
against any damage to which the claimant might otherwise be entitled.
Private road in lieu of farm bridges. If the commissioner of
transportation cannot agree with the owner of a farm bridge spanning a
canal as to the amount of commutation in any case where he is of the
opinion that the state should erect such bridge, and the commissioner of
transportation determines that a private road through adjoining lands
will sufficiently accommodate such owner, and that the same can be laid
out with economy to the state, he may take the necessary action to lay
out a private road for the accommodation of the owner, in the manner
prescribed by law for laying out private roads and pay to the owner of
the lands through which the same is laid out, the damages assessed.
Restrictions on the construction of farm and road bridges. A
person shall not be entitled to demand a farm bridge across a canal or
feeder where the necessity of convenience of such bridge shall have
arisen from the division or acquisition of property subsequent to the
location of such canal or feeder. A street or road bridge shall not be
constructed by the commissioner of transportation over a canal or
feeder, except upon such streets or roads as were laid out, worked or
used, previously to the construction of the canal or feeder, by which
such street or road is obstructed; and when bridges are constructed or
reconstructed upon any such streets or roads, the cost to the state
shall in no case be more than is required to preserve in a safe and
substantial manner the continuity of such streets or roads so as not to
unnecessarily impair their usefulness. When a bridge of a more costly
nature is desired by the local authorities of a city, town or village
within whose corporate limits a bridge is to be built or rebuilt, the
commissioner of transportation, on presentation to him by such local
authorities of plans and specifications for such bridge and approval
thereof by him shall estimate and determine the proportion of the cost,
which, in order to preserve the continuity of such streets and roads,
the state ought equitably to pay, and file such estimate and
determination in his office and a duplicate thereof in the office of the
clerk of such city, town or village. If a private road or public highway
is laid out by legal authority in such direction as to require the
erection of a new bridge over a canal for the accommodation of the road,
such bridge shall be so constructed and forever maintained at the
expense of the town, village or city in which it shall be situated.
Construction of bridges by municipal corporations. The common
council of any city may provide by ordinance for the erection of a lift,
hoist or swing bridge over a canal at any street in such city, on plans
and specifications approved by the commissioner of transportation. If
the commissioner of transportation shall consent to such erection he
shall file such consent with the clerk of such common council. Such
bridge shall be built, operated and maintained under the supervision and
control of the commissioner of transportation, but at the expense of
such city or of the property adjudged by the common council to be so
benefited.
Bridges spanning canal channels. 1. When a bridge spanning the
Oswego canal or that portion of the Erie canal between the Hudson river
and its junction with the Oswego canal, is to be reconstructed, or a new
bridge is to be built over such sections of the canal system, such
reconstructed or new bridge shall be so built as to provide a clear
passageway between the bottom clearance line of the bridge, if of the
fixed type, or the bottom clearance line when raised, if of the movable
type, and the surface of the water at its highest navigable stage of not
less than twenty feet. When a bridge spanning the Champlain canal, the
Cayuga and Seneca canals, or that portion of the Erie canal westerly of
Three Rivers is to be reconstructed or a new bridge is to be built over
such sections of the canal system, such reconstructed or new bridge
shall be so built as to provide a clear passageway between the bottom
clearance line of the bridge, if of the fixed type, or the bottom
clearance line when raised, if of the movable type, and the surface of
the water at its highest navigable stage, of not less than fifteen and
one-half feet. The commissioner of transportation may, however, if in
his judgment the additional cost is not unreasonable, require that such
bridges be reconstructed or constructed to provide a clearance of not
less than twenty feet or that the substructure of such bridge be so
constructed that the superstructure may be raised to provide a clearance
of twenty feet without rebuilding the foundation of said substructure.
2. The provisions of subdivision one of this section shall not apply
to the reconstruction of the State Street bridge, Seneca Street bridge
and the Buffalo Street bridge, all over the Cayuga inlet in the city of
Ithaca, county of Tompkins.
Damages caused by excessive loads. The commissioner of
transportation shall cause, where required, the posting of all bridges
under his jurisdiction located on the canal system in conformity with
the provisions of the vehicle and traffic law. Upon all such bridges
incapable of safely carrying legal loads as prescribed in such law or
where the overhead clearance is less than the legal height of fourteen
feet, the commissioner of transportation shall have displayed on both
ends of such bridge signs stating the safe carrying capacity and legal
clearance of such structure, all in accordance with the provisions of
section three hundred eighty-five of the vehicle and traffic law. No
person shall cause to be transported over such a bridge a vehicle whose
load is in excess of that shown upon the posted sign or whose height is
in excess of the legal clearance as shown on such posted sign. Any
person violating the above provisions shall be subject to the penalties
imposed under section three hundred eighty-five of the vehicle and
traffic law and in addition thereto shall be liable for all damages to
such structure resulting from violation of such law. The commissioner of
transportation is hereby authorized and directed to proceed, on behalf
of the people of the state, to cause to be recovered, by the
attorney-general in an appropriate action in any court of competent
jurisdiction, the amount of damages sustained and expenses incurred by
the state in consequence of such violation.
Changes in bridges and highways on or over canals and canal
lands. The commissioner of transportation shall notify the corporation
as to any changes planned for the bridges and highways on or over canals
and canal lands which may have an impact on canal operations.
ARTICLE 8 Canal Navigation
Cargo statement. The master of any float shall furnish the
corporation or its representative a true statement of the quantity and
description of the lading of such float, specifying the place from which
it departed and to which it is destined. Any master who refuses to
comply with any provision of this section shall forfeit to the people of
the state a penalty not to exceed one hundred dollars, which shall be
paid into the canal fund.
Registry of canal floats. The owner of every commercial float to
be navigated on the canal system shall make application to the
corporation for a New York state certificate of registry. The
application shall be in form prescribed by the corporation and shall
contain such information as the corporation may deem essential for full
and complete identification of the float and the owner thereof. It shall
be signed by the owner if an individual, or by an officer of a company,
partnership or corporation if so owned. Upon receipt of an application
in proper form, the corporation shall assign a state registry number and
issue to the owner a certificate of New York state registry, a copy of
which shall be entered in the records of its office.
Change of ownership, name or hailing place. Should the
ownership, name or hailing place of a float change after state registry,
the owner of the float shall make new application in form similar to
that required for original registry and upon receipt of such application
the corporation shall issue a new state certificate of registry and
record the same in its office. The owner or owners of a commercial float
found navigating the canal system, the ownership, name or hailing place
of which shall have been changed without proper application for
re-registry to the corporation, shall, upon due proof thereof be subject
to a penalty to the people of the state of New York not to exceed one
hundred dollars recoverable by the attorney general in an action in any
court of competent jurisdiction.
Registered owner to be advised of assessments and penalties. The
corporation shall advise the person whose name appears on the latest
application for registry on file in its office of any assessments,
penalties or other charges levied against a float or its crew for acts
or omissions occurring while the float is on the canal system. Should
the registered owner fail to make prompt payment of such assessments,
penalties or charges, the corporation may refuse clearance to the float
and action shall be instigated as provided under section eighty-three of
this article.
List of registered floats to be prepared. The corporation shall
make a list of all floats to which New York state certificates of
registry have been issued. This list shall be corrected at least once in
each calendar year and a copy of such corrected list shall be filed in
the office of each of the district engineers having supervision over
portions of the canal system. The list shall be filed in the office of
the corporation and shall be available to public inspection within
regular office hours.
Clearance and ownership. Every commercial float shall have a
clearance. Clearances may be obtained at such places along the canal
system and at such other points as the corporation may direct. No
clearance shall be granted to any commercial float unless the person
authorized to issue such clearance has evidence that such float is duly
registered in the office of the corporation. Each float shall have a
separate clearance and no part of the cargo shall be cleared to a place
beyond which the float is cleared. The corporation may, in its
discretion, refuse to issue a clearance for a vessel against whose
registered owner there is an unpaid penalty involving such vessel for
the violation of rules and regulations adopted pursuant to this chapter.
Regulations with respect to clearance. No commercial float shall
proceed beyond the place to which it is cleared, nor unload any of its
cargo, before or after its arrival, at the place from which such
articles are cleared, nor proceed beyond such place until the master
thereof delivers the clearance of such float or articles to the person
designated by the corporation to receive the same, at the place for
which they are cleared. If there is no canal official at such place,
then to the canal official whose office shall be passed by the float in
the order of its voyage, and receive permission from such canal official
to proceed to the place to which it is cleared.
Copy of clearance. The corporation, or its representative
issuing a clearance or with whom a clearance is filed, shall, when
requested, furnish a copy thereof, with any additional cargo entered
thereupon and the several indorsements, if any, which copy shall have
the same validity and effect as the original clearance of which it is a
copy.
Assignment of berths for loading or unloading. The corporation
or its representative may assign berths to all floats while loading or
unloading at any landing place upon a canal and determine disputes
concerning same. The corporation, shall, as to any of the locks,
terminals or mooring places of the canal system used by floats, regulate
and station such floats for the best interest of navigation. The
corporation may determine how far and in what instances masters and
other persons having charge of any float shall accommodate each other in
their respective anchorages. If any master or other person having
control of any float within the limits of such waters shall neglect or
refuse to obey the directions of the corporation, or its representative,
in any such matters within its authority, or shall resist or oppose the
corporation in the execution of the said duties, such person shall be
liable to a penalty not to exceed one hundred dollars, recoverable by
the corporation in any court of competent jurisdiction, and payable into
the canal fund.
Floating elevators. Any person owning or leasing, in whole or in
part, any floating elevator used for loading grain, coal, sand, or other
material, shall, upon application to and in the discretion of the
corporation, be assigned a place for and permitted to keep said floating
elevator in the waters of the canal system of this state, at such point
as may be most convenient for and for such period of time as may be
necessary for the transaction of the business of loading or unloading
grain, coal, sand, or other material, shipped or to be shipped on the
canals; provided, however, that such floating elevator shall cause no
obstruction to the free and uninterrupted use of the canal system by
floats navigating thereon. While such elevators are in operation, they
shall be equipped with such device or devices as the corporation may
determine to prevent the material being loaded or unloaded from such
float, from falling into such waters.
Supplying deficiencies of water. Whenever the navigation of any
part of the canal system is endangered by reason of a deficiency of
water, the corporation shall, without delay, supply such deficiency. For
that purpose it shall resume the temporary use of all the surplus water
leased, licensed or withdrawn under revocable permit from the part of
the canal system where such deficiency exists. If there still be a
deficiency of water, it may enter upon and use all lands, streams and
waters which, in its judgment, may be necessary or proper to be used to
procure a temporary supply of water for such part of the canal system.
The corporation may enter into an agreement with the owner or owners of
any property used for such temporary purpose under this section covering
the amount of damage sustained. Such agreement when approved by the
attorney-general shall become an obligation of the corporation and paid
from moneys available therefor. In case no agreement is consummated the
amount of damages sustained may be determined as provided in section one
hundred twenty of this chapter. No damages shall be allowed in any case
for resuming the use of any surplus water which has been withdrawn under
lease, license or revocable permit.
Deposit of refuse in navigable waters. It shall be unlawful to
throw from or otherwise deposit, either from or out of any float or from
the shore, wharf, manufacturing establishment or mill of any kind,
refuse or other matter of any description, into any of the waters of the
canal system or into any waters dredged at public expense and used for
canal purposes. Every person that shall violate the provisions of this
section shall be subject to damages to the amount as will compensate the
corporation for the expenses involved in restoring such waters to its
useful condition to meet the needs of canal navigation. It shall also be
unlawful for any person to obstruct the navigation of a canal by the
improper mooring, management or conduct of a float, or by placing any
obstruction on the banks thereof.
Seizure of obstruction. The corporation may cause to be seized
and removed any object, article, float or sunken thing found within the
limits of the canal system not under the care or charge of any person.
It shall sell or offer for sale all seized objects, articles, floats or
sunken things either before or after their removal, as it deems
essential for maintenance of the canal system. The sale shall be at
public auction after giving ten days' written notice of such proposed
sale conspicuously posted at two public places in the city or town where
such object, article, float or sunken thing is found unless before the
time of such sale the owner thereof appears and claims same and pays to
the corporation the cost and expense which has been incurred by it in
connection with the seizure, removal and proposed sale. The owner
thereof shall be liable for the cost and expense of such seizure,
removal and sale of the said object, article, float or sunken thing
which cost and expense may be recovered by the attorney-general in an
appropriate action or proceeding brought in the name of the people of
the state in any court of competent jurisdiction. The avails of such
sale shall be accounted for by the corporation to the department of
taxation and finance which may on the application of the owner and upon
due proof of ownership pay over such proceeds to him after deducting all
costs, expenses and reasonable charges of the seizure, removal and sale
thereof. Whenever in the opinion of the corporation the navigation or
operation of any part of the canal system is interrupted or endangered,
the corporation may cause to be cut up, destroyed or otherwise removed
any object, article, float or sunken thing in or partly in the waters of
the canal system which may, in its judgment, be causing such
interruption or damage. The corporation may enter into an agreement with
the owner or owners of any property so cut up, destroyed, or otherwise
removed, covering the amount of damage sustained. Such agreement when
approved by the attorney-general shall become an obligation of the
corporation and paid from moneys available therefor. In case no
agreement is consummated, the amount of damages sustained may be
determined as provided in section one hundred twenty of this chapter.
Liability of float for penalty, detention and sale thereof.
Every penalty and forfeiture prescribed by this chapter against the
owner, master or other person having charge of any float, when incurred,
shall be chargeable on such float, and an action for the recovery
thereof may be brought against any person in the possession or having
charge thereof at the time when it is commenced; and any court or
judicial officer issuing the process for the commencement of such an
action, may, by a clause to be inserted therein, direct the officer
executing the same, to detain such float or its appurtenances until
action is determined or until adequate security is given for the payment
of any judgment recoverable. If such security be given, or the defendant
in the action prevail, such court or officer shall order the boat or
other float and property detained to be released. If no such security be
given and a judgment be recovered for such penalty or forfeiture, and
not immediately paid, an execution shall be issued under which the
property so detained may be sold in like manner as if the judgment had
been obtained against the owner thereof.
Damage caused by termination of canal navigation. No part of the
canal system of the state which was improved pursuant to chapter seven
hundred ten of the laws of nineteen hundred seven and the acts
supplemental thereto and amendatory thereof, shall be abandoned or
navigation thereof permanently closed, nor shall the state cede or
transfer ownership, jurisdiction or control thereof to the United States
pursuant to authority conferred by constitutional amendment, until the
expiration of one year after the corporation shall have been authorized
and empowered by law to cause a notice of intention to take such action
to be published once in each month during such year in at least one
newspaper published in each county adjacent to the part of such canal
system affected by such notice. Each person, who, at the time of the
first publication of such notice, is the owner of a commercial float
registered pursuant to the provisions of this chapter, which, at the
close of navigation in such year, shall have been actually engaged in
the navigation of the part of such canal system so abandoned, closed,
ceded or transferred, or so relinquished to the jurisdiction or control
of the United States, may present a claim for damages against the state
including the corporation to a court of competent jurisdiction, which
court shall hear and determine the liability of the corporation
therefor; and, if the court shall find that such person has suffered or
sustained damages by reason of such abandonment, closing, ceding,
transfer, or relinquishment which the corporation, in right and justice,
or in law or equity, is obligated to pay, such damages shall constitute
a valid and legal claim against the corporation, and the corporation
shall be deemed liable therefor, and the court may make an award to such
person and render a judgment in his favor against the corporation in
such sums as it shall find to be just and equitable. It is declared to
be the purpose of this section to encourage and induce the construction
of boats for use upon such canal system and their operation thereon and
to protect from loss, financial investments made in such construction
and operation caused by an abrupt, permanent termination of navigation,
or the creation of conditions, which would result in the impairment,
limitation or destruction of navigation of such canal system by such
floats.
Rules and regulations. The corporation shall prescribe and
enforce rules and regulations, not inconsistent with law, governing
navigation on the canals and for the use of the terminals connected with
the canals and for the use of all other property of the corporation
under the corporation's control and maintained as a part of the canal
system. The corporation shall provide rules and regulations for the
government of all employees under its control, engaged in the
improvement, repair and maintenance of the canals. It shall cause such
rules and regulations to be printed and a copy filed in the office of
the department of state and a sufficient number distributed to the
various district engineers and other field officers to be kept in their
respective offices for public inspection.
ARTICLE 9 Canal Accounts
Record of operating expenses. The corporation shall keep an
accurate account of all moneys appropriated by the legislature for the
improvement, maintenance, repair and operation of the canal system and
shall cause to be prepared and filed in the office of the corporation on
or about January first of each year, a statement showing all such moneys
appropriated and how expended during the preceding fiscal year. The
corporation shall keep an accurate account of the recoveries made in all
actions brought by it or at its direction, for the recovery of penalties
or damages under authority of this chapter and of the cost and expenses
thereof and pay into the canal fund the amount of all such recoveries
and account for the same with the department of audit and control.
Tonnage statistics. The corporation shall collect and compile
accurate records of the tonnage transported on the canals during each
season of navigation. Such data, together with all other necessary
information relative to canal transportation shall be arranged in
convenient form and furnished to those interested. The corporation shall
publish from time to time such data and information as, in its opinion,
will promote and encourage commerce on the canals.
Annual report. The corporation shall during the month of January
make a report to the legislature covering the activities of the
corporation with respect to the canal system for the preceding calendar
year ending December thirty-first, including therein details as to the
tonnage transported upon the canals of the state, the condition of the
canals, and the work and improvements connected therewith; the several
amounts of moneys appropriated and expended during the preceding fiscal
year and submit recommendations of such measures in relation to the
canals as, in its judgment, the public interest requires.
ARTICLE 10 Permits
Granting revocable permits. The corporation is hereby
authorized, in its discretion, to issue revocable permits granting
certain limited privileges therein, whenever the same can be done
without detriment to canal navigation or damage to the banks or other
structures thereof. It shall prescribe the terms and conditions by which
such revocable permits may be issued for the temporary use of canal
lands or structures and for the diversion of canal waters for sanitary,
farm purposes, or industrial use. It may also issue permits, as it shall
deem to be advantageous to the corporation, to any person, firm or
corporation, to cut, gather and haul away ice from the canals. Whenever
any space and facilities are available at any canal terminal and when no
detriment or injury to canal traffic or delay in handling same would
result, the corporation may issue a revocable permit for the temporary
and restricted use or occupancy, of such canal terminal and the
facilities thereof, pursuant to the rules and regulations which it may
prescribe. All permits heretofore granted by the corporation and not
canceled, are hereby legalized and confirmed and made effectual and
valid in accordance with the terms and conditions in said permit as
fully as if this chapter had been in force on the date of issuance of
such permit. No liability of any kind shall attach to or rest upon the
state, including the corporation, for any damage on account of the
granting or revocation of any permit. Existing permit holders within the
Adirondack park in compliance with the terms of permits which have been
properly issued pursuant to law shall continue to be afforded permits at
least until the first day of June, nineteen hundred ninety-four, unless
such permit holders fail to apply for permit renewal within six months
of the expiration of such existing or former permit or permits, or by
the first day of August, nineteen hundred ninety-three, whichever is
later; provided, however, that no additional development right or rights
may be included in any permit renewed prior to the first day of June,
nineteen hundred ninety-five. Any revenue realized from the issuance of
such permits shall be deposited into the canal fund.
Railroads operating over canals. The corporation shall have a
general supervisory power over so much of any railroad as passes over
any canal or feeder belonging to the state or approaches within ten rods
thereof, so far as may be necessary to preserve the free and perfect use
of such canals or feeders, or for making any repairs, improvements or
alterations thereupon. No railroad corporation shall construct its
railroad over or at any place within ten rods of any canal or feeder
belonging to the state, unless it submits to the corporation a map, plan
and profile of such canal or feeder and of the route designated for its
railroad, exhibiting distinctly and accurately the relation of each to
the other at all the places within the limits of ten rods thereof, and
obtains the written permission of the corporation for the construction
of such railroad, with such conditions, directions and instructions as
in its judgment the free and perfect use of any such canal or feeder may
require.
Whenever any street railroad shall cross over any bridge spanning a
canal, or canal feeder, the company owning, maintaining and operating
the same, shall be deemed liable for and shall pay all damages that may
occur or arise, either to the state or to persons, by reason of its
laying and maintaining its tracks or rail over, upon and across any such
bridge, or by reason of the operation of its cars over the same; and any
such company shall, upon demand of the corporation, make any repairs to
such structure to insure the continued safety thereof, as shall have
been rendered necessary by reason of such use of said structure by said
company. Any company maintaining or operating a street railroad over,
upon and across any such bridge shall indemnify the state including the
corporation against any and all loss, damages or claims for damages for
injuries to persons or property of passengers which shall be incurred by
or made against such state by reason of the operation of such railroad
over any such bridge, and the or corporation may, in its discretion,
require any company so maintaining or operating a street railroad to
furnish a bond, with sureties to be approved by it to indemnify the
state including the corporation from all such loss, damage or claim. All
such permits heretofore or hereafter granted shall be revocable whenever
the free and perfect use of any such canal or feeder may so require, or
if such railroad company shall fail to make any such repairs when
required by the corporation. The railroad company using or occupying any
bridge over the same shall, within a reasonable time after the service
upon it, by the corporation of a written notice of such revocation, or
to make such repairs, remove at its own cost and expense, its railroad
from such bridge and from the limits of ten rods of said canal or
feeder.
Pipe lines crossing canals. No pipe line shall be constructed
upon or across any of the canals of this state, except by the consent of
and in a manner and upon the terms prescribed by the corporation, unless
constructed upon a fixed bridge across such canal and with the consent
of the person, firm or corporation for whose benefit such bridge is
constructed and maintained, or upon such a bridge over the canal, at the
crossing of a public highway, or street, with the consent of the public
officers having the supervision thereof, or of the municipal authorities
of any village or city within whose limits such bridge may be, nor shall
the pipes of any such corporation be laid through, on or along the banks
of any of the canals of this state, unless such pipes shall be encased
so as to prevent leakage, in such manner as shall be approved by the
corporation.
Tolls for lock and lift bridge passage by vessels and use of
locks and lift bridges. 1. The corporation shall have the power to
impose tolls for the passage through locks and lift bridges by vessels
which are propelled in whole or in part by mechanical power, and to
collect such tolls by the sale of lock and lift bridge passes issued for
such periods of time as the corporation shall determine. Tolls for such
lock and lift bridge passes shall be established by regulation of the
corporation with the advice of the canal recreationway commission and
following no fewer than two public hearings at geographically dispersed
locations on the canal system. In addition, the corporation may provide
by regulation for the sale of lock and lift bridge passes by any other
entity, and may allow a charge for handling by such other entities not
to exceed one dollar for each pass. No tolls shall be imposed or
collected prior to the first day of April, nineteen hundred
ninety-three. Vessels owned by the United States, a state, or
subdivision thereof shall be exempted from the tolls authorized by this
section.
2. The use of locks and lift bridges by pleasure and residential
vessels shall not interfere with the use of locks and lift bridges by
public vessels. Pleasure, residential and public vessels shall have the
same meaning as defined in the navigation law.
3. Revenues realized from the imposition of lock and lift bridge tolls
shall be deposited in the canal fund.
Use of dry docks for repairs. The corporation may grant
permission to owners of vessels operating upon the canals to use the
state dry docks to the extent space is not required for the needs of
canal maintenance vessels, and the corporation shall collect from such
owners equitable charges for the use thereof. All sums collected for
such use shall be paid into the canal fund.
ARTICLE 11 Canal Employees
Canal officers not to be interested in floats, contracts, or
hydraulic works. No public officer or employee connected with the care
or management of the canal system shall be interested in any hydraulic
work dependent upon the canals for a supply of water or in any
commercial float navigating the canals, or directly or indirectly in any
contract on the canals as a contractor, surety or otherwise in his own
name or in the name of any other person or either directly or indirectly
derives any benefit from an expenditure upon the canal system beyond his
established compensation. If any officer or employee shall, at any time
while holding such office or employment, be or become so interested or
derive any such benefit, he shall forfeit his office or position and be
discharged therefrom, and any contract in contravention hereof shall be
void.
Ineligibility to appointment on the canals. No person owning
any hydraulic works dependent upon the canals for their supply of water,
or employed in or connected with any such works, or engaged in
transporting property upon the canals or owning or otherwise interested
in boats navigating the canals, shall be employed upon the canals.
Exemption of canal officers from arrest in civil actions.
Neither the corporation, nor any officer or responsible employee in the
corporation in charge of canal structures or forces thereof, or other
public officer employed upon or in charge of the canal system or part
thereof shall be liable to arrest or to be held to bail in any civil
action for any act done or omitted to be done by it in the exercise of
its official duties, nor be subject to military duty while actually
engaged in their respective employments upon the canal system while the
same is navigable.
Delivery of property on discharge of employees. Every person
employed upon the canal system and occupying any house, office,
building, or land belonging thereto, who is discharged from his
employment or otherwise separated from the service, and the spouse and
family of every such person, shall deliver to the corporation or a
person designated by it, the possession of the premises so occupied and
of all books, papers, matters or other articles and things belonging to
the canal system acquired by virtue of such employment, within seven
days after notice is served for that purpose by the corporation. In case
of a refusal or neglect to make such delivery, any court of competent
jurisdiction in the county where such premises are situate, may, on
application, issue a warrant ordering any peace officer, when acting
pursuant to his special duties, or police officer, with such assistance
as may be necessary, to enter, in the daytime, upon the premises so
occupied and remove therefrom all persons found in possession thereof,
and to take into his custody all books, papers, articles and things
there found belonging to the canal system, and deliver the same to the
corporation or to some person designated by it, and such officer shall
execute such warrant accordingly.
Functions, powers or duties imposed upon officers or employees
by statutory name. Whenever a function, power or duty is imposed upon
the corporation, and an officer or employee, or a group or class thereof
is designated in this chapter by a statutory or specific title or name
to exercise such function or power or perform such duty, the exercise or
performance thereof shall be deemed to be imposed upon the officer or
employee in such corporation who shall be assigned thereto by such
corporation, with the same force and effect, and such corporation may
make such assignment as though no statutory or specific title or name
had been used in this chapter to designate the particular officer or
employee or group or class thereof charged with the exercise of such
function or power, or the performance of such duty.
ARTICLE 12 Damages
Claims for damage generally. There shall be allowed and paid to
every person sustaining damages from the canals or from their use or
management, or resulting or arising from the neglect or conduct of any
officer of the state or the corporation having charge thereof, or
resulting or arising from any accident, or other matter or thing
connected with the canals, the amount of such damages to be ascertained
and determined by the proper action or proceedings before the court of
claims, but no judgment shall be awarded by such court for such damages
in any case unless the facts provided therein make out a case which
would create a legal liability against the state or the corporation,
were the same established in evidence in a court of justice against an
individual or corporation; but the corporation may make settlement of
any such claim in any case where the amount thereof does not exceed the
sum of five hundred dollars but no settlement shall be effective against
the state including the corporation until the same has been approved by
the attorney-general; provided that the provisions of this section shall
not extend to claims arising from damages resulting from the navigation
of canals, and further provided that the provisions herein relating to
damages resulting from navigation of the canals shall control
notwithstanding any contrary or inconsistent provisions of any other
law, general or special. The corporation shall not pay any damages
awarded, or the amount of any commutations agreed on for the
appropriation of land or water, or for the erection of a farm bridge,
until a satisfactory abstract of title and certificate of search as to
encumbrances is furnished, showing the person demanding such damages or
commutations to be legally entitled thereto, which abstract and search
shall be filed in the office of the corporation.
Adjustment of claims of owners of private dams. Whenever the
state including the corporation in the course of the construction of the
improved canals in the rivers or waterways of the state, for the purpose
of obtaining a sufficient depth or supply of water for canal purposes,
has utilized private dams theretofore lawfully constructed or
maintained, in such a manner as to constitute the same an essential part
or portion of the improved canals, the corporation may compromise,
settle and adjust the claims and demands of the owners of any such dams
on such terms and conditions, including the payment to the owners of any
such dams of such sums of money as to it may seem just and proper, and,
by contract or otherwise, make proper provision with respect to the
ownership of and for the maintenance and upkeep of any such dams,
provided, however, that it shall not sell, transfer or convey to any
such owner any right, title or interest in or to the use of any part or
portion of the water impounded by such dams.
ARTICLE 13 Miscellaneous
Operation of hydro-electric plants at Crescent and Vischer
Ferry. The corporation shall have charge of the hydro-electric plants
constructed pursuant to chapter five hundred thirty-two of the laws of
nineteen hundred twenty-two for the development and generation into
electric energy of water power available at the structures known as the
Crescent and Vischer Ferry dams located on the canalized Mohawk river
between the city of Schenectady and the village of Waterford, and shall
exercise the same powers over such structures as it has over other
structures on the canal system. The said structures shall be maintained
and operated as a part of the canal system.
Notwithstanding any general or special law to the contrary, the
corporation, upon the approval of the state comptroller, and the
division of the budget, is authorized to enter into a negotiated
contract for the sale of surplus electricity produced at the Crescent
and Vischer Ferry dams, upon such terms and conditions as are beneficial
to the state including the corporation. Any revenue realized from the
sale of such surplus electricity shall be deposited into the canal fund.
Emergency repairs. When, in the opinion of the corporation, an
emergency exists endangering the canal system the corporation may seize
any lands, equipment, materials or supplies necessary to avert such
damage or to restore the banks or other property which may be threatened
or have been damaged. It may subsequently return or otherwise dispose of
such lands, equipment, materials or supplies so seized which may be no
longer required in such manner and upon such terms as in its judgment
will be for the best interest of the state including the corporation. It
may enter into an agreement with the owner or owners of any property
seized for such emergency repairs under this section covering the amount
of damages sustained. Such agreement, when approved by the
attorney-general, shall become an obligation of the corporation and paid
from moneys available therefor. In case no agreement is consummated, the
amount of damages sustained may be determined as provided in section one
hundred twenty of this chapter.
Investigate matters relating to the canal system; immunity of
witnesses. 1. The corporation may, whenever the corporation shall deem
it necessary, to effectively accomplish the purposes of this chapter,
investigate any or all matters and transactions connected with or
relating to the canal system. The corporation shall hear and take proofs
in regard to any matter pending before it or which it is authorized to
examine or investigate. It shall have power to investigate into the
official conduct of any subordinate officer or employee and shall have
the power to issue subpoenas for and require the attendance of witnesses
and the production of all books and papers relating to any matter under
inquiry. All such subpoenas shall be issued under the hand and seal of
the corporation. A subpoena issued under this section shall be regulated
by the civil practice law and rules. The testimony of witnesses in any
such proceedings shall be under oath and the state officer instituting
the proceedings shall have power to administer oaths. A witness may have
counsel and his examination by such counsel shall be reduced in writing
as part of his deposition.
2. In any investigation under this article, the corporation may confer
immunity in accordance with the provisions of section 50.20 of the
criminal procedure law.
3. All evidence taken under this section shall be filed with the
attorney-general. The expenses incurred in such investigation shall be
paid from the canal fund.
Impose penalties and power to remit. The corporation may, in
its discretion, remit either absolutely, or on such conditions as it
shall prescribe, any forfeiture incurred by a violation of any provision
of this chapter, or any of the rules and regulations established by it,
on the written petition of the person liable for the forfeiture, with
due proof of the facts on which the application for the remission is
founded, which petition and proof and the order thereon shall be filed
and preserved in the office of the department of audit and control.
Actions for penalties. All actions for penalties and
forfeitures imposed in this chapter, or for damages, on behalf of the
state including the corporation, shall be prosecuted in the name of the
corporation, by the corporation, unless otherwise specifically provided.
All money recovered in such actions shall be accounted for and paid into
the canal fund. The imposition or recovery of any such penalty or
forfeiture shall not be a bar to recovery of any damages resulting to
the corporation or any person, because of such violation.
ARTICLE 13-A Canal Recreationway Commission
Canal recreationway commission. 1. There is hereby
established a canal recreationway commission (hereinafter referred to as
the "commission") consisting of the following members:
a. the chairman of the authority, the commissioner of transportation,
the commissioner of the office of parks, recreation and historic
preservation and the commissioner of environmental conservation, or
their representatives;
b. ten individuals involved in canal use, development, preservation or
enhancement and local governments from counties adjacent to or
intersected by the canal system appointed by the governor of whom three
shall be appointed at the recommendation of the temporary president of
the senate and three shall be appointed at the recommendation of the
speaker the assembly. In appointing such members, the governor shall
ensure geographic representation from each of the canal sections
encompassing the canal system, including at least one representative
from counties in which the Erie, Champlain, Cayuga-Seneca, and Oswego
canals are located. In addition, individuals appointed to the
commission shall be broadly representative of the following areas of
interest: preservation of the environment, the operation of tour boats
on the canal, the operation of marinas on the canal, recreational trail
users, hunting and fishing, tourism promotion agencies as defined in
section one hundred sixty-two of the economic development law, historic
preservation, the commercial farming industry and the commercial
shipping industry, provided that with respect to appointment of an
individual representative of the commercial farming industry or
commercial shipping industry, such an individual may reside outside of a
county adjacent to or intersected by the canal system if such person
holds an ownership interest or senior managerial position in a
commercial farming firm or commercial shipping firm, respectively, which
regularly uses the canal system in furtherance of its business; and
c. the commissioner of economic development and the secretary of
state, or their representatives, and a member from each of the regional
planning boards, as established by articles five-G and twelve-B of the
general municipal law, whose region is intersected by the canal shall be
ex-officio, non-voting members of the commission and shall provide
technical expertise and advice to the commission as necessary.
2. The chairperson of the commission shall be the chairman of the
authority. The members of the commission may elect a secretary and other
necessary officers to serve for such a period as the members shall
decide.
3. Members of the commission, except commissioners of a state agency,
chairs of public authorities, the secretary of state, and
representatives of regional planning boards shall serve for a term of
four years and may be reappointed; however, of those members appointed
initially, three such members, one appointed by the governor, one
appointed by the temporary president of the senate and one appointed by
the speaker of the assembly shall be appointed for terms of two years,
and three such members, one appointed by the governor, one appointed by
the temporary president of the senate and one appointed by the speaker
of the assembly shall be appointed for terms of three years.
4. Any member, except a member who is a state official, after notice
and an opportunity to be heard, may be removed by the governor for
neglect of duty or misfeasance in office. Any member, except a member
who is a state official, who fails to attend three consecutive meetings
of the commission, unless excused by formal vote of the commission,
shall be deemed to have vacated his or her position.
5. Any vacancy in the commission shall be filled for the unexpired
term in the same manner as the original appointment.
6. A majority of the voting members of the commission then in office,
at least five of whom are not appointed pursuant to paragraph a of
subdivision one of this section, shall constitute a quorum for the
transaction of any business or the exercise of any power or function of
the commission. An act, determination or decision of the majority of the
members present and entitled to vote during the presence of a quorum
shall be held to be the act, determination or decision of the
commission.
7. The commission shall meet at least quarterly. Special meetings may
be called by its chairperson and shall be called by the chairperson at
the request of a majority of the members of the commission then in
office.
8. Members of the commission shall not receive compensation for their
services as members, but shall be allowed their actual and necessary
expenses incurred in the performance of their duties.
Functions, powers and duties. The commission shall:
1. Develop, maintain and periodically revise a statewide canal
recreationway plan (hereinafter referred to as the "plan") for the canal
system. Such plan shall be developed in accordance with the provisions
of section one hundred thirty-eight-c of this article and shall be
submitted to the authority for its consideration no later than the first
day of June, nineteen hundred ninety-four.
2. Solicit input from counties intersecting or bordering the canal
system and incorporate it to the greatest degree practicable in the
development of the plan. In order to facilitate such incorporation
commission members representing each of the regional planning boards
shall request from and provide assistance to each county it represents
in the preparation of a county canal plan. Multi-county canal plans may
be requested by the regional planning board representative, as deemed
appropriate, in lieu of individual county canal plans. In a region where
a regional planning board does not exist, the commission shall solicit
county canal plans from each of the chief executive officers of those
counties outside the jurisdiction of a regional planning board. The
commission shall prescribe uniform guidelines concerning the format of
plans to be used by the regional planning board representatives to
assist counties in the preparation of county canal plans. The regional
planning board representative shall encourage the development of county
canal plans that reflect participation by diverse local interests by
seeking advice, to the extent possible, from individuals and
organizations from such counties with an interest in recreation, hunting
and fishing, the environment, canal related tourism businesses, historic
preservation and commercial development along the canal. In order to be
considered in the formulation of the plan, county canal plans must be
submitted to the commission not later than the first day of June,
nineteen hundred ninety-three.
3. Ensure public comment on the plan, including at least three public
hearings on the plan prior to submission of the plan to the authority.
The commission may also hold hearings on other matters it deems
appropriate.
4. If deemed appropriate, request that studies, surveys or analyses be
performed by the corporation, the departments of transportation,
economic development and environmental conservation and/or the office of
parks, recreation and historic preservation to assist in the
development, promotion, marketing and/or preservation of the canal
system or the preparation of the plan. At the request of the commission,
state agencies and public authorities shall cooperate fully and shall
provide requested information in a timely manner.
5. Advise and assist the corporation in carrying out its duties and
obligations related to the canal in the following manner:
a. evaluate and make recommendations for new operational, maintenance
and capital initiatives or projects to enhance the canal;
b. establish criteria and procedures for the review by the commission
for consistency with the canal recreationway plan of abandonments of
canal lands, canal terminals and canal terminal lands, and leases of
canal lands, canal terminals, and canal terminal lands proposed by the
corporation pursuant to article six-A of this chapter; provided,
however, that where local zoning laws and zoning ordinances are in
effect on lands proposed to be leased or on lands adjacent to those
lands proposed to be leased such review shall include, to the extent
practicable, the consideration of the compatibility of such leases with
the requirements of such local zoning laws and zoning ordinances; and
provided further that the commission may determine that certain
categories of leases do not require review;
c. submit to the corporation, the director of the budget and the
chairpersons of the senate finance committee and the assembly ways and
means committee, on the first day of October, nineteen hundred
ninety-two, and on or before the first day of August in each year
thereafter, a budget request for the operations of the commission. Such
request shall include provisions for staff services and other
administrative assistance as deemed necessary by the commission to
perform its functions and meet its responsibilities during the next
calendar year. The corporation shall provide staff services to the
commission and such other administrative assistance as may be necessary
for the commission to carry out its functions, powers and duties;
d. submit to the corporation, the director of the budget and the
chairpersons of the senate finance committee and the assembly ways and
means committee, on the first day of October, nineteen hundred
ninety-two, and on or before the first day of August in each year
thereafter, a budget request for the expenditure of funds available from
the canal fund, for the purposes established by section ninety-two-u of
the state finance law. Submissions made during the initial years shall
give funding priority for expenditures related to the development and/or
promotion of the canal system;
e. undertake a comprehensive study of alternative waterway and canal
toll and fee structures, including but not limited to, a comparative
analysis of other existing waterway and canal systems, the impact of
various toll and fee structures on recreational use, tourism, and
commercial activity; and the revenue implications for each of these
alternatives. The commission shall make recommendations to the authority
by the first day of April, nineteen hundred ninety-three, on appropriate
tolls and fees to be charged for the use of the canal system and shall
provide an update on the implementation of such recommendations by the
first day of April, nineteen hundred ninety-five; and
f. utilize information provided by the authority and other state
agencies and departments, pursuant to section ten of this chapter,
surveying canal lands within the Adirondack park and studying current
land uses, to make recommendations to the authority, no later than the
first day of June, nineteen hundred ninety-four, concerning the future
use of canal lands within the Adirondack park, including but not limited
to the utilization of existing properties under revocable permits; and
the identification of any property not needed for canal purposes that
may be transferred to the department of environmental conservation.
6. Establish committees as it deems appropriate on matters relating to
the commission's functions, powers and duties; such committees shall be
chaired by a commission member but may include persons not members of
the commission who provide expertise of interest specific to the charge
of such committee.
a. the commission shall create a temporary committee which shall
include the commissioner of the department of economic development and
the commissioner of the office of parks, recreation and historic
preservation or their representatives and others with appropriate
expertise to identify opportunities for achieving the economic
development potential of the recreationway and to make recommendations
for specific implementation of these opportunities, including
recommendations for marketing and promotion designed to attract
tourists.
b. the commission shall create a temporary committee, which may
include appropriately accredited professionals, to assess and report to
the authority on issues associated with managing the waters of the canal
system, including issues relating to recreational use, habitats and
flood prone areas.
7. Report on or before March thirty-first of each year commencing
nineteen hundred ninety-four to the corporation, the governor, the
temporary president of the senate and the speaker of the assembly on the
activities of the commission with respect to the functions, powers and
duties established in this section.
Canal recreationway plan. 1. The commission shall, in
accordance with the provisions of section one hundred thirty-eight-b of
this article, formulate a statewide canal recreationway plan for the
canal system that is based upon the inventory prepared pursuant to
subdivision twenty-three of section ten of this chapter and that is
consistent with the land use concepts contained in the state land
acquisition plan prepared pursuant to section 49-0207 of the
environmental conservation law and in the statewide comprehensive
outdoor recreation plan prepared pursuant to section 3.15 of the parks,
recreation and historic preservation law. The plan shall include, but
not be limited to:
a. criteria for uses of the canal system which will effectuate the
goal and objective of developing the canal into a recreationway system;
b. provisions for fostering a canal system characterized by clusters
of development connected by stretches of undeveloped open space in areas
between cities, villages and hamlets which will be conducive to the
preservation of waterfowl, fish and wildlife habitats;
c. provisions for the consideration of environmental resources,
including lands which possess significance for wildlife management,
recreation or natural resource protection purposes and significant
freshwater wetlands;
d. provisions which protect the public interest in such lands and
waters for purposes of commerce, navigation, fishing, hunting, bathing,
recreation and access to the lands and waters of the state, and
otherwise encourage increased public access to the canal through the
establishment of parks, scenic by ways and recreational trails on the
canal system. Such provisions shall ensure the public safety;
e. provisions to protect agricultural uses of canal land and waters;
f. provisions for appropriate development of businesses in appropriate
locations which will support outdoor recreation activities;
g. provisions which give guidance to the authority with respect to
managing water levels in reservoirs to provide water to the canal system
and retain water for recreational purposes;
h. provisions to protect commercial shipping interests on the canal
system; and
i. provisions for the consideration of historic buildings, sites and
districts.
2. The plan shall establish goals and objectives with respect to
implementation, with provision for amendment of the plan to reflect
changing conditions.
3. a. The corporation shall act upon the plan submitted by the
commission within four months after its submission and shall approve
such plan unless it finds that the plan, or any part thereof: (i) is not
financially or operationally feasible; (ii) would violate any federal or
state law, rule or regulation; (iii) violates agreements with
noteholders or bondholders of the authority; (iv) interferes with
existing contracts; or (v) is inconsistent with the findings of the
generic environmental impact statement undertaken pursuant to section
three hundred eighty-two of the public authorities law.
b. In the event that the corporation finds that the plan cannot be
approved in its entirety, it may approve such portions of the plan as it
deems appropriate, and shall recommend changes to the remaining portions
of the plan to the commission. The commission shall then have three
months in which to consider the recommendations of the corporation and
submit a revised plan or portions thereof to the corporation.
c. Upon the approval of the plan or a portion of the plan as provided
in this section, the corporation shall deliver within ten days a copy of
the plan or portion of the plan to the governor, the temporary president
of the senate and the speaker of the assembly, with a dated notice of
such approval.
ARTICLE 13-B Upstate Flood Mitigation Task Force
* § 139. Upstate flood mitigation task force. The upstate flood
mitigation task force, referred to in this article as the "task force",
is hereby established to identify reasonable measures that can be taken
to enhance flood management and mitigation in the upstate flood
mitigation region and to make recommendations and provide grant
assistance with respect to such measures.
* NB Repealed July 1, 2024
* § 139-a. Definitions. When used in this article:
1. "Adaptive measures" means any adjustment, whether passive, reactive
or anticipatory, that may be taken to ameliorate the anticipated adverse
consequences associated with flood events.
2. "Flood control study sector" means a particular aspect of the
natural or built environment, economy, or society that could potentially
be adversely impacted by flood events. Such term includes, but is not
limited to, stream and river banks, locks and dams, wetlands and
waterfront areas, water resources, transportation infrastructure, water
supply and wastewater infrastructure, human health, recreation, tourism,
power generation and business, residential, farm and municipal sectors.
3. "Flood event" means an overflow or inundation that comes from a
river or other body of water, whether caused by rainfall, waterway
operation, dam break, water runoff or other means, and causes or
threatens damage.
4. "Canal system" shall mean the canal waterways, lands and
infrastructure as set out in section two of this chapter.
5. "Upstate flood mitigation region" or "region" shall include a
county through which the Erie Canal passes in whole or in part.
* NB Repealed July 1, 2024
* § 139-b. Task force composition. 1. The task force shall consist of
nine members, including the director of the canal corporation, the
commissioner of transportation, the director of the division of homeland
security and emergency services and the commissioner of environmental
conservation; and five additional members who shall be from outside the
public offices listed in this section and who shall have professional
experience in one of the following fields: hydrology, civil engineering,
climatology, emergency management and soil and water conservation. Three
of the additional members shall be appointed by the governor and one
each of the remaining additional members shall be appointed by the
temporary president of the senate and the speaker of the assembly.
2. The task force chairperson shall be the director of the canal
corporation.
3. The members of the task force shall receive no compensation for
their services, but shall be allowed their actual and necessary expenses
incurred in the performance of their duties.
* NB Repealed July 1, 2024
* § 139-c. Task force duties and powers. The role of the task force
shall include but not be limited to:
1. Conducting an in-depth examination, presented as a public report no
later than July first, two thousand twenty-three, of flood control study
sectors and issues related to floodplain management, debris management,
flood control and flood mitigation in the upstate flood mitigation
region including:
(a) the cost or impact of flooding over the last five years to
agriculture; transportation; land use; public health; insurance;
economic sectors such as tourism, recreation and power generation; as
well as impacts on infrastructure including bridges, low lying roads,
dams, locks, roads, water and wastewater treatment plants and docks;
(b) an assessment of the Erie Canal operation procedures and plans
which may have a direct or indirect impact on flood mitigation and flood
management including, but not limited to debris management,
communication, water management and flood response; and
(c) a listing of adaptive measures, with associated costs, that could
be executed to mitigate flood damages, including but not limited to
feasible floodplain management activities, debris management,
construction of flood control structures, construction of communication
systems and flood mitigation education for public and private
landowners.
2. Establishing an upstate flood mitigation grant program based on the
task force's evaluation pursuant to section one hundred thirty-nine-d of
this article which is subject to appropriations to fund grants within
the upstate flood mitigation region to prevent and mitigate flood damage
within the region. Such program shall work in conjunction with existing
flood assistance grant programs and supplement existing efforts by
providing funds for adaptive measures to mitigate or eliminate a flood
event.
3. Holding public hearings as it deems necessary to solicit relevant
information and gather current research and data related to flooding and
flood mitigation in the region as well as recommendations to fulfill the
purposes of this article. The task force shall consult with the county
offices of emergency management, county soil and water conservation
districts and all other federal, state and local entities it deems
necessary to fulfill the purposes of this article. In determining the
number of public hearings to be held, the task force shall act
diligently in order to meet the timeframe for first cycle awards under
the upstate flood mitigation grant program established within section
one hundred thirty-nine-d of this article.
4. The task force shall have the power to: (a) contract for
professional and technical assistance and advice; (b) contract for and
accept assistance including, but not limited to gifts, grants,
easements, and loans of funds, real property and personal property from
the federal government or any agency or instrumentality of the state, or
from any other public or private source to comply, subject to the
provisions of this article, with the terms and conditions thereof,
subject to the approval of the division of budget; (c) hold public
hearings; and (d) establish an upstate flood mitigation grant program to
be administered by the canal corporation and based on the task force's
evaluation, to fund grants within the upstate flood mitigation region to
prevent and mitigate flood damage within the region.
5. Upon the request of the task force, all executive departments of
the state and the canal corporation shall provide the task force with
such facilities, assistance and data as will enable the task force to
carry out its powers and duties. Additionally, all other agencies of the
state or subdivisions thereof shall, at the request of the chair,
provide the task force with such facilities, assistance, and data as
will enable the task force to carry out its powers and duties.
6. The task force shall meet at least four times at the call of the
chairperson between the effective date of this subdivision and July
first, two thousand twenty-three, and on an annual basis thereafter.
Special meetings may be called by its chairperson and shall be called by
the chairperson at the request of a majority of the members of the task
force then in office.
* NB Repealed July 1, 2024
* § 139-d. Upstate flood mitigation grant program. 1. The task force
shall establish an upstate flood mitigation grant program to be
administered by the canal corporation based on the task force's in-depth
examination of flood control study sectors and issues related to
floodplain management, debris management, flood control and flood
mitigation in the upstate flood mitigation region. Such grant program
shall be subject to appropriations.
2. The task force shall establish the upstate flood mitigation grant
program structure that shall be administered by the canal corporation.
Such program structure shall include, but not be limited to, the
definition of eligible recipients, the definition of eligible projects,
project application process, program maximum project award amounts,
project cost sharing parameters and program funding cycles.
* NB Repealed July 1, 2024
ARTICLE 14 Saving Clause; Laws Repealed
Saving clause. 1. The provisions of this chapter or the repeal
of any statute thereby, shall not affect or impair any act done or right
accrued or acquired, or any liability, penalty, forfeiture or punishment
incurred or defense accrued, or established prior to its enactment. If
any clause, sentence, paragraph or part of this chapter shall, for any
reason, be adjudged by any court of competent jurisdiction to be
invalid, such judgment shall not affect, impair or invalidate the
remainder thereof, but shall be confined in its operation to the clause,
sentence, paragraph or part thereof, directly involved in the
controversy in which such judgment shall have been rendered.
2. Any work or proceeding initiated under any existing law pertaining
to canal matters shall be conducted legally to its termination and
conclusion in the manner, subject to the provisions of and in accordance
with the procedure prescribed by such law. It is the intent that upon
the enactment of this chapter into law all work or proceedings
undertaken thereafter relating to canal matters shall be administered
under the authority and provisions contained in this chapter.
Laws repealed. Chapter thirteen of the laws of nineteen hundred
and nine, entitled "An act relating to canals, constituting chapter five
of the consolidated laws," and all acts amendatory thereof and
supplemental thereto, and chapter sixty, laws of nineteen hundred and
thirty-eight, relating to revocable permits, chapter six hundred
fifty-five, laws of nineteen hundred and thirty-four relating to
terminal facilities and storage, chapter three hundred thirty-eight,
laws of nineteen hundred thirty-four, relating to disposition of
terminals, are hereby repealed, but the repeal of such acts shall not
revive any act or acts repealed by them; and no act or privilege
heretofore granted or acquired and no limitation, restriction,
reservation or obligation heretofore imposed by or under the provisions
of this or any of the acts hereby repealed, shall be impaired,
invalidated or otherwise affected by such repeal.
When to take effect. This act shall take effect immediately.