Section 94. Performance of work; division of expenses; accounting; claims for damages; valuation

1. Whenever  under  section  eighty-nine  a  new
  railroad  is  constructed  across  an  existing  highway, the expense of
  crossing above or below the grade of the highway including  any  expense
  incurred  in  altering  or changing the highway under a determination of
  the commissioner  of  transportation  shall  be  paid  entirely  by  the
  railroad corporation.
    2. Whenever under section ninety a new street, avenue, highway or road
  or  new  portion or additional lane of a street, avenue, highway or road
  is constructed across an existing  railroad,  the  railroad  corporation
  shall  pay  one-half  and  the municipal corporation having jurisdiction
  over such street, avenue, highway, or road or new portion or  additional
  lane  of  a  street,  avenue,  highway  or  road shall pay the remaining
  one-half. However, where such new street, avenue, highway or road or new
  portion or additional lane of a street, avenue, highway or road  crosses
  a  navigable  stream  or water adjacent to or near an existing railroad,
  which crossing of such navigable stream or water by a bridge  or  tunnel
  necessarily  increases  the height above or the depth below the crossing
  of such railroad or the length of  the  approaches  to  such  bridge  or
  tunnel,  the  railroad corporation shall pay such part or portion of the
  expense of making such crossing above or below the grade of the railroad
  as may be agreed to between the railroad corporation and  the  municipal
  corporation  having  jurisdiction  over  such street, avenue, highway or
  road or new portion or additional lane of a street, avenue,  highway  or
  road,  and  such  municipal corporation shall bear and pay the remaining
  part of such expense. In  case  of  the  failure  or  inability  of  the
  railroad  corporation  and  the  municipal corporation to agree upon the
  part or portion of such expense to be paid by the railroad  corporation,
  the  railroad  corporation shall pay such part or portion of the expense
  of making such crossing above or below the grade of the railroad as  the
  commissioner  of  transportation  shall, after a hearing on at least ten
  days' notice to the railroad corporation, fix and determine, which shall
  be one-half of the cost as estimated of a bridge or  structure  and  its
  approaches  that would be required if such navigable stream or water did
  not so intervene as to affect the height or  depth  of  such  bridge  or
  structure  or the length of the approaches thereto to carry such street,
  avenue, highway or road or  new  portion  or  additional  lane  of  such
  street,  avenue, highway or road across such railroad, and the municipal
  corporation shall bear and pay the remaining part of such expense.
    3. Whenever a change is made to an  existing  crossing  other  than  a
  change  made  to an existing structure in accordance with the provisions
  of section ninety-one, fifty per centum of the expense thereof shall  be
  borne  by  the  railroad  corporation  and twenty-five per centum by the
  municipal corporation and twenty-five per centum by  the  state;  except
  that  whenever  an existing crossing other than an existing structure in
  which a change is made under section ninety-one, is  located  wholly  or
  partly  within  an  incorporated  village  having  not  to exceed twelve
  hundred inhabitants, the portion of expense herein required to be  borne
  by  the  municipal  corporation  shall  be borne by the town or towns in
  which such crossing is situated. The expense of every change made in  an
  existing  structure  in  accordance  with  and  ordered  pursuant to the
  provisions of section ninety-one shall be borne eighty-five  per  centum
  by  the  state,  and  fifteen  per  centum by the municipal corporation.
  Provided, however, that a county may contribute funds to a city, town or
  village  towards  its  fifteen  per  centum  share  of   the   cost   of
  reconstructing  a  railroad bridge whether or not the road, of which the
  bridge is a part is under the jurisdiction of a city, village,  town  or
  county and regardless of who performs the work.

    4. Whenever in carrying out sections ninety or ninety-one, two or more
  lines  of  steam  surface  railroad,  owned  and  operated  by different
  corporations cross a highway at a point where a change in grade is made,
  each corporation shall pay such proportion of fifty per  centum  of  the
  expense   thereof   as  shall  be  determined  by  the  commissioner  of
  transportation.
    4-a. If moneys of the federal government  are  or  may  reasonably  be
  expected  to  be  available  for  the  purposes of this subdivision, the
  commissioner of transportation is  authorized  to  use  such  moneys  to
  implement   this   subdivision.  Within  and  to  the  extent  of  funds
  appropriated by the Legislature for the state's share of the  cost,  the
  commissioner  of  transportation  may  authorize  or  direct  a railroad
  corporation  or  the  department  of  transportation  to  install  grade
  crossing  facilities  and  appurtenances, which shall include but not be
  limited to protective devices and crossing surfaces, the cost  of  which
  including  all  accessories,  labor and material shall be borne not more
  than ten per centum by the state and ninety per centum or more with  use
  of  the federal moneys. Installations so authorized or directed shall be
  completed  by  the  department  of  transportation   or   the   railroad
  corporation  or corporations involved. Upon approval by the commissioner
  of transportation of the completed project by the  railroad  corporation
  or  corporations,  reimbursement  of the state and federal shares of the
  cost thereof shall be effected by the comptroller upon vouchers approved
  by the commissioner. Whenever in carrying out  the  provisions  of  this
  subdivision,  two  or  more  lines  of  railroad  owned  and operated by
  different  corporations  cross  a  highway  at  a   point   where   such
  installation   is   made,   each   corporation   or  the  department  of
  transportation shall perform such  portion  of  the  work  as  shall  be
  determined   by   the  commissioner  of  transportation.  Such  crossing
  facilities and appurtenances shall be maintained and operated by and  at
  the  expense  of the railroad corporation or corporations.  In the event
  that state funds appropriated for the purposes of this  subdivision  are
  inadequate  or  are  fully  committed or exhausted, the authority herein
  contained shall not be  deemed  to  restrict,  limit  or  supersede  the
  authority   of   the   commissioner  of  transportation  to  order  such
  installations  under  and  pursuant  to  subdivision  one   of   section
  fifty-three of this chapter.
    5.  In  carrying  out  sections eighty-nine, ninety and ninety-one the
  commissioner of transportation shall cause to be prepared or may  direct
  the  municipal corporation or the railroad corporation to prepare plans,
  specifications and estimates of cost for the work. Plans, specifications
  and estimates of cost for the work prepared by the municipal corporation
  or the railroad corporation shall be submitted to  the  commissioner  of
  transportation  for  his  approval.  The  work shall be performed by the
  municipal corporation, the railroad corporation  or  the  department  of
  transportation  as  the  commissioner of transportation shall direct. In
  all cases, except where the entire  expense  is  paid  by  the  railroad
  corporation,  the  expense  of  construction  shall be paid in the first
  instance by the party directed by the commissioner of transportation  to
  progress  the  work  and  the  expense  of  acquiring  lands,  rights or
  easements shall be paid in the first instance by the party  directed  by
  the  commissioner  of  transportation,  or  otherwise  required  by this
  chapter, to acquire such lands, rights or easements.  When  a  municipal
  corporation  or  railroad corporation has been directed or authorized to
  take competitive bids for all or a portion of the work, it shall,  prior
  to  the  award  of  a  contract  therefor, submit to the commissioner of
  transportation  a  tabulation  of  bids  received,   together   with   a
  recommendation  for award, and if he concurs with the recommendation, he

  shall approve such award and submit the tabulation and recommendation to
  the  state  comptroller  for  his  approval.  If  the  commissioner   of
  transportation  does  not  concur with such recommendation or determines
  that  the  bids  are  excessive,  he may require that the work be rebid.
  Work which the municipal corporation  or  the  railroad  corporation  is
  directed  to perform shall be subject to the supervision and approval of
  the commissioner of transportation. All work performed by the department
  of transportation, the municipal corporation or  their  agents  upon  or
  affecting railroad property, right of way or facilities shall be subject
  to  the  supervision  and approval of the railroad corporation.  No work
  upon or affecting railroad property, right of way or facilities shall be
  performed without  the  approval  of  the  railroad  corporation.    The
  commissioner  of  transportation may employ temporarily such experts and
  engineers as may be necessary properly to supervise any work that may be
  undertaken  under  sections  eighty-nine,  ninety  and  ninety-one,  the
  expenses  thereof to be paid by the comptroller upon the requisition and
  certificate of the commissioner of transportation and  included  in  the
  cost  of  the  project and finally apportioned in the manner provided in
  this section. Upon the completion of work undertaken pursuant to section
  eighty-nine, ninety or ninety-one, the  commissioner  of  transportation
  shall cause the same to be inspected and if he approves, accept the work
  and make an order certifying its completion.
    6.   Upon  the  completion  of  the  work  and  its  approval  by  the
  commissioner of transportation an accounting shall be  had  between  the
  railroad  corporation  and the municipal corporation or the commissioner
  of transportation of the amount expended by each with interest,  and  if
  it   shall  appear  that  the  railroad  corporation  or  the  municipal
  corporation or the commissioner of transportation has expended more than
  its or his proportion of the expense of the crossing as herein  provided
  a settlement shall be forthwith made in accordance with this section. At
  any time after the work has commenced the commissioner of transportation
  may,  upon  its  own  motion  or  upon  the  petition  of  the  railroad
  corporation or of any municipality interested,  make  an  order  for  an
  intermediate  settlement  and  direct  payments to be made in connection
  therewith as in this section provided for a final accounting. All  items
  of  expenditures  shall  be  verified  under  oath. In case of a dispute
  between the railroad corporation and the municipal corporation as to the
  amount expended which dispute does not involve the nature  or  character
  of  the  work  performed, any judge of the supreme court in the judicial
  district in which the municipality or the state  or  county  highway  is
  situated  may  appoint  a  referee  to  take  testimony as to the amount
  expended, and the confirmation of the report of  the  referee  shall  be
  final.  In  the  event  of  the  failure  or  refusal  of  the  railroad
  corporation to pay its proportion of the expense, the same with interest
  from the date of such accounting may be levied  and  assessed  upon  the
  railroad  corporation  and  collected  in the same manner that taxes and
  assessments are now collected by the municipal corporations within which
  the work is done; and  in  the  event  of  failure  or  refusal  of  the
  municipal corporation to pay its proportion of the expense an action may
  be maintained by the railroad corporation for the collection of the same
  with  interest  from  the  date  of  such  accounting,  or  the railroad
  corporation may offset such  amount  with  interest  against  any  taxes
  levied  or  assessed  against  it  or  its  property  by  such municipal
  corporation.
    7. In the event of the appropriation made by the state in any one year
  being insufficient to pay the state's proportion of the expense  of  any
  change  that  may be ordered the first payment from the appropriation of
  the succeeding year shall be on account of said change, and  no  payment

  shall  be  made on account of any subsequent change that may be ordered,
  nor shall any subsequent change be ordered, until the obligation of  the
  state  on  account  of  the  first  named change in grade has been fully
  discharged,  unless  the  same  shall  be  provided for by an additional
  appropriation to be made by the legislature. The state's  proportion  of
  the  expense of changing any existing grade crossing or the structure of
  any existing crossing above or below grade shall be paid from the  state
  treasury  on the audit and warrant of the comptroller, to which shall be
  appended the certificate of the commissioner of  transportation  to  the
  effect that the work has been properly performed and a statement showing
  the  situation  of  the crossing or structure that has been changed, the
  total cost and the proportionate expense thereof; and the money shall be
  paid in whole or in part to the railroad corporation or to the municipal
  corporation as the commissioner of transportation may  direct,  subject,
  however, to the rights of the respective parties as they appear from the
  accounting or intermediate accounting to be had as hereinbefore provided
  for.
    8.  No  claim  for  damages  to  property  on account of the change or
  elimination of any crossing or change in structure or  approaches  under
  this  article shall be allowed unless notice of such claim is filed with
  the commissioner of transportation within six months after completion of
  the work necessary for such change or elimination.
    9. Upon the acquisition of any railroad by the public, under the right
  of eminent domain  or  by  and  under  any  statute  providing  for  the
  acquisition,  use  or  operation thereof, any and all sums of money paid
  and contributed by the state or any political subdivision thereof toward
  the expense of constructing new crossings as in this  article  provided,
  shall be credited, allowed and deducted in determining the value of such
  property or the basis of computing or allowing compensation therefor.
    10. In carrying out sections eighty-nine, ninety, and ninety-one, if a
  railroad  corporation,  state  department,  agency or commission, public
  authority or municipal corporation in which the work is located, desires
  to make or cause to have made changes or additions which in the  opinion
  of  the  commissioner  of transportation are not necessary to accomplish
  the work, such  changes  or  additions  may  be  embodied  in  an  order
  containing  findings  specifying  such changes or additions.  Such order
  shall state an estimated cost of such desired changes or  additions  and
  the   portions   therefore   chargeable  respectively  to  the  railroad
  corporation or state department, agency or commission, public  authority
  or   municipal  corporation.  Before  any  contract  is  let  the  state
  department,  agency  or  commission,  public  authority   or   municipal
  corporation shall certify to the commissioner of transportation that the
  necessary funds are available.
    11.  Notwithstanding  any  conflicting  provisions  of this chapter, a
  railroad and a municipal corporation having  jurisdiction  may  mutually
  agree  as  to  the  allocation  of  their proportion of the expenses of:
  construction and reconstruction of a new street, avenue, highway or road
  or new portion or additional lane of a street, avenue, highway or  road,
  or  county highway or county road deviating from the line of an existing
  street, avenue, highway or road to be constructed at,  above,  or  below
  grade,  across  a  steam  surface  railroad,  including  the cost of the
  installation of automatic flashing light signals with automatic gates or
  automatic  flashing   light   signals   alone   and   all   accessories,
  appurtenances  and  circuits;  or  the  alteration in the manner which a
  railroad crosses or is crossed by a street, avenue, highway or road  at,
  above,  or  below  grade,  including,  its  approaches,  the  method  of
  crossing, the location  of  the  crossing,  a  change  in  the  existing
  structure by which such crossing is made, the closing and discontinuance

  of a crossing and the diversion of the travel thereon to another street,
  avenue,  highway, road or crossing, or if not practicable to change such
  crossing from  grade,  below  grade  or  above  grade  or  to  close  or
  discontinue  the  same,  the  opening  of an additional crossing for the
  partial diversion of travel from the grade, below grade or  above  grade
  crossing,  and  including  the  cost  of the installation, alteration or
  relocation of automatic flashing light signals with automatic  gates  or
  automatic   flashing   light   signals   alone,   and  all  accessories,
  appurtenances and circuits, whether in connection with such construction
  or otherwise.
    The agreement shall not be entered into until  a  public  hearing  has
  been  held  by the governing body of the municipal corporation involved.
  Notice of the hearing shall be published at least once in at  least  one
  newspaper having a general circulation within the municipal corporation.
  The  notice  shall specify the time when and the place where the hearing
  will be held, and describe in general terms the proposed agreement.  The
  first publication shall be at least ten days prior to the day  specified
  for the hearing.