N.Y. Transportation Law § 225: Performance of work

§ 225. Performance of work. 1. Except for work on the railroad tracks

or other railroad facilities performed by railroad company forces at the

direction of the commissioner and elimination work which the

commissioner determines shall be accomplished by use of departmental

forces, equipment and materials purchased therefor, all highway-railroad

grade crossing elimination work shall be performed by contract in the

same manner as provided for state highways in article three of the

highway law, including public advertisement for proposals. A certified

copy of any contract awarded by the commissioner shall be filed with the

railroad company affected thereby.

2. All work performed by contract shall be carried out under the

direct supervision of the commissioner, except that all work performed

by contract upon or affecting railroad property, right of way or

facilities shall be subject to the approval of and joint supervision by

the railroad company affected by the elimination. No work upon or

affecting railroad property, right of way or facilities shall be

progressed without the approval of the railroad company. All work of the

elimination project shall be under the general supervision of the

commissioner. Upon completion of the work under a contract let, as

provided in this article, the commissioner shall cause the same to be

inspected and if he approves, accept the work. The commissioner shall

make an order certifying the completion of the contract, together with

all other incidental work necessary in carrying out the elimination

project to make available a completed project ready for public use.

3. A railroad company who has been directed by the commissioner to

prepare plans and estimates of cost for work on the railroad tracks or

other railroad facilities is authorized to receive competitive bids for

all or a portion of the work which it has been directed to perform by

railroad company forces provided such contract work has been previously

approved by the commissioner. Prior to the award of such a contract, a

tabulation of bids received, together with a recommendation for award,

shall be submitted to the commissioner who, if he concurs with the

recommendation, shall approve such award and submit the tabulation and

the recommendation to the comptroller for his approval.

4. Prior to the approval of the plans, estimates of cost and award of

contract for any construction work on an elimination project where the

railroad company has been directed by the commissioner to perform work

on the railroad tracks or other railroad facilities, the state

industrial commissioner shall upon the request of the commissioner

determine and furnish to said commissioner the schedule of minimum wages

to be paid to the several classes of workmen, laborers and mechanics to

be employed upon such work. Such schedule wages shall be annexed to and

form a part of the specifications for such work and shall be

incorporated in any contract therefor.

5. If during the progress of the work, it shall appear to the

commissioner that a change in plans or a modification of such contract

is necessary or desirable, he shall cause to be prepared the necessary

revised plan and an estimate of cost thereof or a modification of such

contract. The commissioner shall determine whether he or the railroad

company shall perform the work or cause the same to be performed or

modify the contract to include the work, at prices not to exceed those

stated in such approved estimate. If during the progress of the work, it

shall appear to the railroad company bearing a part of the cost of the

elimination work, that a change in plans or a modification of such

contract is or might be necessary, such railroad company may submit to

the commissioner revised plans and an estimate of the cost thereof or a

proposed modification of such contract, and if the commissioner shall

determine that such change in plans or modification of contract is

necessary or desirable, he shall approve such revised plans or modified

contracts, and may approve such estimate or require a new estimate. If

the commissioner approves such estimate or a new estimate, he shall

determine whether he or the railroad company shall perform the work or

cause the same to be performed or modify the contract to include the

work, at prices not to exceed those stated in such approved estimate.

If the cost of any elimination shall be increased as the result of any

such change in plans or modification of contract, such increased cost

shall be audited and paid as prescribed in this article. If during the

progress of the work, it shall appear to the commissioner or such

railroad company, that extra work is necessary but not so substantial or

material as to necessitate a change in plans or modification of such

contract, such extra work may be performed or caused to be performed by

the commissioner with the approval of such railroad company or by such

railroad company with the approval of the commissioner.

6. Claims on account of a change in plans or for extra work may be

adjusted by the commissioner if the amount 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 elimination as prescribed by this

article. If the amount of any such claim is not agreed upon, but is paid

by the railroad company affected thereby, such railroad company may

present same to the court of claims, which shall 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 six months after the

acceptance by the commissioner of the final agreement of the completed

elimination project contract. The amount of any such judgment of the

court of claims shall be paid out of the state treasury from moneys

appropriated for purposes connected with elimination of grade crossing

projects; and, if necessary, the comptroller shall revise or supplement

his determination, as prescribed by this article, relative to times,

amounts, and manner of repayments to the state by such railroad company.

The comptroller shall also adjust his accounts in order to provide for

the payment to the state of the part of such judgment chargeable to any

railroad company or municipality.