§ 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.