§ 94 — Performance of work; division of expenses; accounting; claims for damages; valuation

§ 94. Performance of work; division of expenses; accounting; claims\nfor damages; valuation. 1. Whenever under section eighty-nine a new\nrailroad is constructed across an existing highway, the expense of\ncrossing above or below the grade of the highway including any expense\nincurred in altering or changing the highway under a determination of\nthe commissioner of transportation shall be paid entirely by the\nrailroad corporation.\n 2. Whenever under section ninety a new street, avenue, highway or road\nor new portion or additional lane of a street, avenue, highway or road\nis constructed across an existing railroad, the railroad corporation\nshall pay one-half and the municipal corporation having jurisdiction\nover such street, avenue, highway, or road or new portion or additional\nlane of a street, avenue, highway or road shall pay the remaining\none-half. However, where such new street, avenue, highway or road or new\nportion or additional lane of a street, avenue, highway or road crosses\na navigable stream or water adjacent to or near an existing railroad,\nwhich crossing of such navigable stream or water by a bridge or tunnel\nnecessarily increases the height above or the depth below the crossing\nof such railroad or the length of the approaches to such bridge or\ntunnel, the railroad corporation shall pay such part or portion of the\nexpense of making such crossing above or below the grade of the railroad\nas may be agreed to between the railroad corporation and the municipal\ncorporation having jurisdiction over such street, avenue, highway or\nroad or new portion or additional lane of a street, avenue, highway or\nroad, and such municipal corporation shall bear and pay the remaining\npart of such expense. In case of the failure or inability of the\nrailroad corporation and the municipal corporation to agree upon the\npart or portion of such expense to be paid by the railroad corporation,\nthe railroad corporation shall pay such part or portion of the expense\nof making such crossing above or below the grade of the railroad as the\ncommissioner of transportation shall, after a hearing on at least ten\ndays' notice to the railroad corporation, fix and determine, which shall\nbe one-half of the cost as estimated of a bridge or structure and its\napproaches that would be required if such navigable stream or water did\nnot so intervene as to affect the height or depth of such bridge or\nstructure or the length of the approaches thereto to carry such street,\navenue, highway or road or new portion or additional lane of such\nstreet, avenue, highway or road across such railroad, and the municipal\ncorporation shall bear and pay the remaining part of such expense.\n 3. Whenever a change is made to an existing crossing other than a\nchange made to an existing structure in accordance with the provisions\nof section ninety-one, fifty per centum of the expense thereof shall be\nborne by the railroad corporation and twenty-five per centum by the\nmunicipal corporation and twenty-five per centum by the state; except\nthat whenever an existing crossing other than an existing structure in\nwhich a change is made under section ninety-one, is located wholly or\npartly within an incorporated village having not to exceed twelve\nhundred inhabitants, the portion of expense herein required to be borne\nby the municipal corporation shall be borne by the town or towns in\nwhich such crossing is situated. The expense of every change made in an\nexisting structure in accordance with and ordered pursuant to the\nprovisions of section ninety-one shall be borne eighty-five per centum\nby the state, and fifteen per centum by the municipal corporation.\nProvided, however, that a county may contribute funds to a city, town or\nvillage towards its fifteen per centum share of the cost of\nreconstructing a railroad bridge whether or not the road, of which the\nbridge is a part is under the jurisdiction of a city, village, town or\ncounty and regardless of who performs the work.\n 4. Whenever in carrying out sections ninety or ninety-one, two or more\nlines of steam surface railroad, owned and operated by different\ncorporations cross a highway at a point where a change in grade is made,\neach corporation shall pay such proportion of fifty per centum of the\nexpense thereof as shall be determined by the commissioner of\ntransportation.\n 4-a. If moneys of the federal government are or may reasonably be\nexpected to be available for the purposes of this subdivision, the\ncommissioner of transportation is authorized to use such moneys to\nimplement this subdivision. Within and to the extent of funds\nappropriated by the Legislature for the state's share of the cost, the\ncommissioner of transportation may authorize or direct a railroad\ncorporation or the department of transportation to install grade\ncrossing facilities and appurtenances, which shall include but not be\nlimited to protective devices and crossing surfaces, the cost of which\nincluding all accessories, labor and material shall be borne not more\nthan ten per centum by the state and ninety per centum or more with use\nof the federal moneys. Installations so authorized or directed shall be\ncompleted by the department of transportation or the railroad\ncorporation or corporations involved. Upon approval by the commissioner\nof transportation of the completed project by the railroad corporation\nor corporations, reimbursement of the state and federal shares of the\ncost thereof shall be effected by the comptroller upon vouchers approved\nby the commissioner. Whenever in carrying out the provisions of this\nsubdivision, two or more lines of railroad owned and operated by\ndifferent corporations cross a highway at a point where such\ninstallation is made, each corporation or the department of\ntransportation shall perform such portion of the work as shall be\ndetermined by the commissioner of transportation. Such crossing\nfacilities and appurtenances shall be maintained and operated by and at\nthe expense of the railroad corporation or corporations. In the event\nthat state funds appropriated for the purposes of this subdivision are\ninadequate or are fully committed or exhausted, the authority herein\ncontained shall not be deemed to restrict, limit or supersede the\nauthority of the commissioner of transportation to order such\ninstallations under and pursuant to subdivision one of section\nfifty-three of this chapter.\n 5. In carrying out sections eighty-nine, ninety and ninety-one the\ncommissioner of transportation shall cause to be prepared or may direct\nthe municipal corporation or the railroad corporation to prepare plans,\nspecifications and estimates of cost for the work. Plans, specifications\nand estimates of cost for the work prepared by the municipal corporation\nor the railroad corporation shall be submitted to the commissioner of\ntransportation for his approval. The work shall be performed by the\nmunicipal corporation, the railroad corporation or the department of\ntransportation as the commissioner of transportation shall direct. In\nall cases, except where the entire expense is paid by the railroad\ncorporation, the expense of construction shall be paid in the first\ninstance by the party directed by the commissioner of transportation to\nprogress the work and the expense of acquiring lands, rights or\neasements shall be paid in the first instance by the party directed by\nthe commissioner of transportation, or otherwise required by this\nchapter, to acquire such lands, rights or easements. When a municipal\ncorporation or railroad corporation has been directed or authorized to\ntake competitive bids for all or a portion of the work, it shall, prior\nto the award of a contract therefor, submit to the commissioner of\ntransportation a tabulation of bids received, together with a\nrecommendation for award, and if he concurs with the recommendation, he\nshall approve such award and submit the tabulation and recommendation to\nthe state comptroller for his approval. If the commissioner of\ntransportation does not concur with such recommendation or determines\nthat the bids are excessive, he may require that the work be rebid.\nWork which the municipal corporation or the railroad corporation is\ndirected to perform shall be subject to the supervision and approval of\nthe commissioner of transportation. All work performed by the department\nof transportation, the municipal corporation or their agents upon or\naffecting railroad property, right of way or facilities shall be subject\nto the supervision and approval of the railroad corporation. No work\nupon or affecting railroad property, right of way or facilities shall be\nperformed without the approval of the railroad corporation. The\ncommissioner of transportation may employ temporarily such experts and\nengineers as may be necessary properly to supervise any work that may be\nundertaken under sections eighty-nine, ninety and ninety-one, the\nexpenses thereof to be paid by the comptroller upon the requisition and\ncertificate of the commissioner of transportation and included in the\ncost of the project and finally apportioned in the manner provided in\nthis section. Upon the completion of work undertaken pursuant to section\neighty-nine, ninety or ninety-one, the commissioner of transportation\nshall cause the same to be inspected and if he approves, accept the work\nand make an order certifying its completion.\n 6. Upon the completion of the work and its approval by the\ncommissioner of transportation an accounting shall be had between the\nrailroad corporation and the municipal corporation or the commissioner\nof transportation of the amount expended by each with interest, and if\nit shall appear that the railroad corporation or the municipal\ncorporation or the commissioner of transportation has expended more than\nits or his proportion of the expense of the crossing as herein provided\na settlement shall be forthwith made in accordance with this section. At\nany time after the work has commenced the commissioner of transportation\nmay, upon its own motion or upon the petition of the railroad\ncorporation or of any municipality interested, make an order for an\nintermediate settlement and direct payments to be made in connection\ntherewith as in this section provided for a final accounting. All items\nof expenditures shall be verified under oath. In case of a dispute\nbetween the railroad corporation and the municipal corporation as to the\namount expended which dispute does not involve the nature or character\nof the work performed, any judge of the supreme court in the judicial\ndistrict in which the municipality or the state or county highway is\nsituated may appoint a referee to take testimony as to the amount\nexpended, and the confirmation of the report of the referee shall be\nfinal. In the event of the failure or refusal of the railroad\ncorporation to pay its proportion of the expense, the same with interest\nfrom the date of such accounting may be levied and assessed upon the\nrailroad corporation and collected in the same manner that taxes and\nassessments are now collected by the municipal corporations within which\nthe work is done; and in the event of failure or refusal of the\nmunicipal corporation to pay its proportion of the expense an action may\nbe maintained by the railroad corporation for the collection of the same\nwith interest from the date of such accounting, or the railroad\ncorporation may offset such amount with interest against any taxes\nlevied or assessed against it or its property by such municipal\ncorporation.\n 7. In the event of the appropriation made by the state in any one year\nbeing insufficient to pay the state's proportion of the expense of any\nchange that may be ordered the first payment from the appropriation of\nthe succeeding year shall be on account of said change, and no payment\nshall be made on account of any subsequent change that may be ordered,\nnor shall any subsequent change be ordered, until the obligation of the\nstate on account of the first named change in grade has been fully\ndischarged, unless the same shall be provided for by an additional\nappropriation to be made by the legislature. The state's proportion of\nthe expense of changing any existing grade crossing or the structure of\nany existing crossing above or below grade shall be paid from the state\ntreasury on the audit and warrant of the comptroller, to which shall be\nappended the certificate of the commissioner of transportation to the\neffect that the work has been properly performed and a statement showing\nthe situation of the crossing or structure that has been changed, the\ntotal cost and the proportionate expense thereof; and the money shall be\npaid in whole or in part to the railroad corporation or to the municipal\ncorporation as the commissioner of transportation may direct, subject,\nhowever, to the rights of the respective parties as they appear from the\naccounting or intermediate accounting to be had as hereinbefore provided\nfor.\n 8. No claim for damages to property on account of the change or\nelimination of any crossing or change in structure or approaches under\nthis article shall be allowed unless notice of such claim is filed with\nthe commissioner of transportation within six months after completion of\nthe work necessary for such change or elimination.\n 9. Upon the acquisition of any railroad by the public, under the right\nof eminent domain or by and under any statute providing for the\nacquisition, use or operation thereof, any and all sums of money paid\nand contributed by the state or any political subdivision thereof toward\nthe expense of constructing new crossings as in this article provided,\nshall be credited, allowed and deducted in determining the value of such\nproperty or the basis of computing or allowing compensation therefor.\n 10. In carrying out sections eighty-nine, ninety, and ninety-one, if a\nrailroad corporation, state department, agency or commission, public\nauthority or municipal corporation in which the work is located, desires\nto make or cause to have made changes or additions which in the opinion\nof the commissioner of transportation are not necessary to accomplish\nthe work, such changes or additions may be embodied in an order\ncontaining findings specifying such changes or additions. Such order\nshall state an estimated cost of such desired changes or additions and\nthe portions therefore chargeable respectively to the railroad\ncorporation or state department, agency or commission, public authority\nor municipal corporation. Before any contract is let the state\ndepartment, agency or commission, public authority or municipal\ncorporation shall certify to the commissioner of transportation that the\nnecessary funds are available.\n 11. Notwithstanding any conflicting provisions of this chapter, a\nrailroad and a municipal corporation having jurisdiction may mutually\nagree as to the allocation of their proportion of the expenses of:\nconstruction and reconstruction of a new street, avenue, highway or road\nor new portion or additional lane of a street, avenue, highway or road,\nor county highway or county road deviating from the line of an existing\nstreet, avenue, highway or road to be constructed at, above, or below\ngrade, across a steam surface railroad, including the cost of the\ninstallation of automatic flashing light signals with automatic gates or\nautomatic flashing light signals alone and all accessories,\nappurtenances and circuits; or the alteration in the manner which a\nrailroad crosses or is crossed by a street, avenue, highway or road at,\nabove, or below grade, including, its approaches, the method of\ncrossing, the location of the crossing, a change in the existing\nstructure by which such crossing is made, the closing and discontinuance\nof a crossing and the diversion of the travel thereon to another street,\navenue, highway, road or crossing, or if not practicable to change such\ncrossing from grade, below grade or above grade or to close or\ndiscontinue the same, the opening of an additional crossing for the\npartial diversion of travel from the grade, below grade or above grade\ncrossing, and including the cost of the installation, alteration or\nrelocation of automatic flashing light signals with automatic gates or\nautomatic flashing light signals alone, and all accessories,\nappurtenances and circuits, whether in connection with such construction\nor otherwise.\n The agreement shall not be entered into until a public hearing has\nbeen held by the governing body of the municipal corporation involved.\nNotice of the hearing shall be published at least once in at least one\nnewspaper having a general circulation within the municipal corporation.\nThe notice shall specify the time when and the place where the hearing\nwill be held, and describe in general terms the proposed agreement. The\nfirst publication shall be at least ten days prior to the day specified\nfor the hearing.\n