Section 94 - Performance of work; division of expenses; accounting; claims for damages; valuation1. 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.