Senate Bill sb0460c1

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    Florida Senate - 2005                            CS for SB 460

    By the Committee on Transportation; and Senator Sebesta





    596-1833-05

  1                      A bill to be entitled

  2         An act relating to transportation; amending s.

  3         332.007, F.S.; giving the Department of

  4         Transportation the discretion to fund certain

  5         eligible aviation planning projects to be

  6         performed by not-for-profit organizations

  7         representing a majority of public airports;

  8         amending s. 337.11, F.S.; adding written work

  9         orders to the type of documents covered by the

10         Department of Transportation's contracting

11         laws; specifying changes to surety bondholder's

12         liability under certain circumstances; creating

13         s. 337.195, F.S.; providing presumptions

14         relating to liability in certain actions

15         against the Department of Transportation;

16         limiting liability, in certain circumstances,

17         of contractors and engineers doing work for

18         that department; amending s. 339.64, F.S.;

19         directing the Florida Transportation Commission

20         to include as part of its annual work program

21         review an assessment of the department's

22         progress on the Strategic Intermodal System;

23         requiring an annual report; directing the

24         department to coordinate with federal,

25         regional, and local entities for transportation

26         planning that impacts military installations;

27         requiring the Strategic Intermodal System Plan

28         to include an assessment of the impacts of

29         proposed projects on military installations;

30         adding a military representative to the

31         Governor's appointees to the Strategic

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    Florida Senate - 2005                            CS for SB 460
    596-1833-05




 1         Intermodal Transportation Advisory Council;

 2         deleting obsolete provisions; providing an

 3         effective date.

 4  

 5  Be It Enacted by the Legislature of the State of Florida:

 6  

 7         Section 1.  Subsection (10) is added to section

 8  332.007, Florida Statutes, to read:

 9         332.007  Administration and financing of aviation and

10  airport programs and projects; state plan.--

11         (10)  The department may also fund eligible projects

12  performed by not-for-profit organizations that represent a

13  majority of public airports in this state. Eligible projects

14  may include activities associated with aviation master

15  planning, professional education, safety and security

16  planning, enhancing economic development and efficiency at

17  airports in this state, or other planning efforts to improve

18  the viability of airports in this state.

19         Section 2.  Subsection (8) of section 337.11, Florida

20  Statutes, is amended to read:

21         337.11  Contracting authority of department; bids;

22  emergency repairs, supplemental agreements, and change orders;

23  combined design and construction contracts; progress payments;

24  records; requirements of vehicle registration.--

25         (8)(a)  The department shall permit the use of written

26  supplemental agreements, written work orders pursuant to a

27  contingency pay item or contingency supplemental agreement,

28  and written change orders to any contract entered into by the

29  department.  Any supplemental agreement shall be reduced to

30  written contract form, approved by the contractor's surety,

31  and executed by the contractor and the department.  Any

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    Florida Senate - 2005                            CS for SB 460
    596-1833-05




 1  supplemental agreement modifying any item in the original

 2  contract must be approved by the head of the department, or

 3  his or her designee, and executed by the appropriate person

 4  designated by him or her. Any surety issuing a bond under s.

 5  337.18 shall be fully liable under such surety bond to the

 6  full extent of any modified contract amount up to and

 7  including 25 percent over the original contract amount and

 8  without regard to the fact that the surety was not aware of or

 9  did not approve such modifications. However, if modifications

10  of the original contract amount cumulatively result in

11  modifications of the contract amount in excess of 25 percent

12  of the original contract amount, the surety's approval shall

13  be required to bind the surety under the bond on that portion

14  in excess of 25 percent of the original contract amount.

15         (b)  Supplemental agreements and written work orders

16  pursuant to a contingency pay item or contingency supplemental

17  agreement shall be used to clarify the plans and

18  specifications of a contract; to provide for major quantity

19  differences which result in the contractor's work effort

20  exceeding the original contract amount by more than 5 percent;

21  to provide for unforeseen work, grade changes, or alterations

22  in plans which could not reasonably have been contemplated or

23  foreseen in the original plans and specifications; to change

24  the limits of construction to meet field conditions; to

25  provide a safe and functional connection to an existing

26  pavement; to settle contract claims; and to make the project

27  functionally operational in accordance with the intent of the

28  original contract. Supplemental agreements may be used to

29  expand the physical limits of a project only to the extent

30  necessary to make the project functionally operational in

31  accordance with the intent of the original contract. The cost

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    Florida Senate - 2005                            CS for SB 460
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 1  of any such agreement extending the physical limits of a

 2  project shall not exceed $100,000 or 10 percent of the

 3  original contract price, whichever is greater.

 4         (c)  Written change orders may be issued by the

 5  department and accepted by the contractor covering minor

 6  changes in the plans, specifications, or quantities of work

 7  within the scope of a contract, when prices for the items of

 8  work affected are previously established in the contract, but

 9  in no event may such change orders extend the physical limits

10  of the work.

11         (d)  For the purpose of this section, the term

12  "physical limits" means the length or width of any project and

13  specifically includes drainage facilities not running parallel

14  to the project.  The length and width of temporary connections

15  affected by such supplemental agreements shall be established

16  in accordance with current engineering practice.

17         (e)  Upon completion and final inspection of the

18  contract work, the department may accept the improvement if it

19  is in substantial compliance with the plans, specifications,

20  special provisions, proposals, and contract and if a proper

21  adjustment in the contract price is made.

22         (f)  Any supplemental agreement or change order in

23  violation of this section is null and void and unenforceable

24  for payment.

25         Section 3.  Section 337.195, Florida Statutes, is

26  created to read:

27         337.195  Limits on liability.--

28         (1)  In a civil action for the death of or injury to a

29  person, or for damage to property, against the Department of

30  Transportation or its agents, consultants, or contractors for

31  work performed on a highway, road, street, bridge, or other

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    Florida Senate - 2005                            CS for SB 460
    596-1833-05




 1  transportation facility when the death, injury, or damage

 2  resulted from a motor vehicle crash within a construction zone

 3  in which the driver of one of the vehicles was under the

 4  influence of alcoholic beverages as set forth in s. 316.193,

 5  under the influence of any chemical substance as set forth in

 6  s. 877.111, or illegally under the influence of any substance

 7  controlled under chapter 893 to the extent that her or his

 8  normal faculties were impaired or operated a vehicle at an

 9  unlawful speed as prohibited in s. 316.183 or engaged in

10  reckless driving as prohibited in s. 316.192, it is presumed

11  that the driver's operation of the vehicle was the sole

12  proximate cause of the death, injury, or damage.

13         (2)  A contractor who constructs or repairs a highway,

14  road, street, bridge or other transportation facility for the

15  Department of Transportation is not liable to a claimant for

16  personal injury, property damage, or death arising from the

17  performance of the construction or repair if, at the time of

18  the personal injury, property damage, or death, the contractor

19  is in compliance with contract documents material to the

20  condition that was the proximate cause of the personal injury,

21  property damage, or death.

22         (3)  In all cases involving personal injury, property

23  damage, or death, a person or entity who contracts to prepare

24  or provide engineering plans for the construction or repair of

25  a highway, road, street, bridge, or other transportation

26  facility for the Department of Transportation is not liable to

27  a claimant for personal injury, property damage, or death

28  arising from the preparation of such engineering plans if the

29  engineer prepared such engineering plans using that degree of

30  care and skill ordinarily exercised by other engineers in the

31  field under similar conditions, and similar localities, and

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    Florida Senate - 2005                            CS for SB 460
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 1  with due regard for acceptable engineering standards and

 2  principles. Nothing herein shall be interpreted or construed

 3  to alter or affect any claim of the Department of

 4  Transportation against such engineer or engineering firm.

 5         Section 4.  Section 339.64, Florida Statutes, is

 6  amended to read:

 7         339.64  Strategic Intermodal System Plan.--

 8         (1)  The department shall develop, in cooperation with

 9  metropolitan planning organizations, regional planning

10  councils, local governments, the Statewide Intermodal

11  Transportation Advisory Council and other transportation

12  providers, a Strategic Intermodal System Plan. The plan shall

13  be consistent with the Florida Transportation Plan developed

14  pursuant to s. 339.155 and shall be updated at least once

15  every 5 years, subsequent to updates of the Florida

16  Transportation Plan.

17         (2)  In association with the continued development of

18  the initial Strategic Intermodal System Plan and other

19  transportation plans, the Florida Transportation Commission,

20  as part of its work program review process, shall conduct an

21  annual assessment of the progress that the department and its

22  transportation partners have made in realizing the goals of

23  economic development, improved mobility, and increased

24  intermodal connectivity need for an improved philosophical

25  approach to regional and intermodal input in the planning for

26  and governing of the Strategic Intermodal System and other

27  transportation systems. The Florida Transportation Commission

28  shall coordinate with the department, the Statewide Intermodal

29  Transportation Advisory Council, and other appropriate

30  entities when developing this assessment. The Florida

31  Transportation Commission shall deliver a report to the

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    Florida Senate - 2005                            CS for SB 460
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 1  Governor and Legislature no later than 14 days after the

 2  regular session begins by December 15, 2003, with

 3  recommendations as necessary to fully implement the Strategic

 4  Intermodal System.

 5         (3)(a)  During the development of updates to the

 6  Strategic Intermodal System Plan and the development of all

 7  subsequent updates, the department shall provide metropolitan

 8  planning organizations, regional planning councils, local

 9  governments, transportation providers, affected public

10  agencies, and citizens with an opportunity to participate in

11  and comment on the development of the proposed plan or update.

12         (b)  The department also shall coordinate with federal,

13  regional, and local partners the planning for the Strategic

14  Highway Network and the Strategic Rail Corridor Network

15  transportation facilities that either are included in the

16  Strategic Intermodal System or that provide a direct

17  connection between military installations and the Strategic

18  Intermodal System. In addition, the department shall

19  coordinate with regional and local partners to determine

20  whether the road and other transportation infrastructure that

21  connect military installations to the Strategic Intermodal

22  System, the Strategic Highway Network, or the Strategic Rail

23  Corridor are regionally significant and should be included in

24  the Strategic Intermodal System Plan.

25         (4)  The Strategic Intermodal System Plan shall include

26  the following:

27         (a)  A needs assessment.

28         (b)  A project prioritization process.

29         (c)  A map of facilities designated as Strategic

30  Intermodal System facilities; and facilities that are emerging

31  in importance that are likely to become part of the system in

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    Florida Senate - 2005                            CS for SB 460
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 1  the future; and planned facilities that will meet the

 2  established criteria.

 3         (d)  A finance plan based on reasonable projections of

 4  anticipated revenues, including both 10-year and 20-year

 5  cost-feasible components.

 6         (e)  An assessment of the impacts of proposed

 7  improvements to Strategic Intermodal System corridors on

 8  military installations that are either located directly on the

 9  Strategic Intermodal System or located on the Strategic

10  Highway Network or Strategic Rail Corridor Network.

11         (5)  STATEWIDE INTERMODAL TRANSPORTATION ADVISORY

12  COUNCIL.--

13         (a)  The Statewide Intermodal Transportation Advisory

14  Council is created to advise and make recommendations to the

15  Legislature and the department on policies, planning, and

16  funding of intermodal transportation projects. The council's

17  responsibilities shall include:

18         1.  Advising the department on the policies, planning,

19  and implementation of strategies related to intermodal

20  transportation.

21         2.  Providing advice and recommendations to the

22  Legislature on funding for projects to move goods and people

23  in the most efficient and effective manner for the State of

24  Florida.

25         (b)  MEMBERSHIP.--Members of the Statewide Intermodal

26  Transportation Advisory Council shall consist of the

27  following:

28         1.  Six Five intermodal industry representatives

29  selected by the Governor as follows:

30  

31  

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    Florida Senate - 2005                            CS for SB 460
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 1         a.  One representative from an airport involved in the

 2  movement of freight and people from their airport facility to

 3  another transportation mode.

 4         b.  One individual representing a fixed-route,

 5  local-government transit system.

 6         c.  One representative from an intercity bus company

 7  providing regularly scheduled bus travel as determined by

 8  federal regulations.

 9         d.  One representative from a spaceport.

10         e.  One representative from intermodal trucking

11  companies.

12         f.  One representative having command responsibilities

13  of a major military installation.

14         2.  Three intermodal industry representatives selected

15  by the President of the Senate as follows:

16         a.  One representative from major-line railroads.

17         b.  One representative from seaports listed in s.

18  311.09(1) from the Atlantic Coast.

19         c.  One representative from an airport involved in the

20  movement of freight and people from their airport facility to

21  another transportation mode.

22         3.  Three intermodal industry representatives selected

23  by the Speaker of the House of Representatives as follows:

24         a.  One representative from short-line railroads.

25         b.  One representative from seaports listed in s.

26  311.09(1) from the Gulf Coast.

27         c.  One representative from intermodal trucking

28  companies. In no event may this representative be employed by

29  the same company that employs the intermodal trucking company

30  representative selected by the Governor.

31  

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    Florida Senate - 2005                            CS for SB 460
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 1         (c)  Initial appointments to the council must be made

 2  no later than 30 days after the effective date of this

 3  section.

 4         1.  The initial appointments made by the President of

 5  the Senate and the Speaker of the House of Representatives

 6  shall serve terms concurrent with those of the respective

 7  appointing officer. Beginning January 15, 2005, and for all

 8  subsequent appointments, council members appointed by the

 9  President of the Senate and the Speaker of the House of

10  Representatives shall serve 2-year terms, concurrent with the

11  term of the respective appointing officer.

12         2.  The initial appointees, and all subsequent

13  appointees, made by the Governor shall serve 2-year terms.

14         3.  Vacancies on the council shall be filled in the

15  same manner as the initial appointments.

16         (d)  Each member of the council shall be allowed one

17  vote. The council shall select a chair from among its

18  membership. Meetings shall be held at the call of the chair,

19  but not less frequently than quarterly. The members of the

20  council shall be reimbursed for per diem and travel expenses

21  as provided in s. 112.061.

22         (e)  The department shall provide administrative staff

23  support and shall ensure that council meetings are

24  electronically recorded. Such recordings and all documents

25  received, prepared for, or used by the council in conducting

26  its business shall be preserved pursuant to chapters 119 and

27  257.

28         Section 5.  This act shall take effect upon becoming a

29  law.

30  

31  

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    Florida Senate - 2005                            CS for SB 460
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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 460

 3                                 

 4  The CS provides the Florida Department of Transportation the
    authority to fund a number of aviation activities conducted by
 5  the Secure Airports for Florida's Economy Council or other
    not-for-profit organizations. Eligible activities include
 6  master planning, professional education, safety and security
    planning, and economic development and efficiency
 7  enhancements.

 8  The CS allows supplemental agreements and written work orders
    for up to 25% above the original contract amount to proceed
 9  without approval of the surety. The surety's approval is
    required for cumulative modifications in excess of 25% of the
10  original contract amount.

11  The CS limits the liability of the Florida Department of
    Transportation's construction and maintenance contractors
12  performing services for the Florida Department of
    Transportation when they are in compliance with contract
13  documents. The CS limits the liability of the Florida
    Department of Transportation's contracted design engineers
14  when they use that degree of care and skill ordinarily
    exercised by other engineers in the field. Further, in
15  lawsuits against the Florida Department of Transportation or
    its agents, a driver's actions are presumed to be the
16  proximate cause of the incident if the driver was under the
    influence of drugs or alcohol, or speeding, or reckless at the
17  time of the incident.

18  The CS updates obsolete language relating to the development
    of the initial Strategic Intermodal System Plan and requires
19  coordination with the inclusion of military interests in
    development of the Strategic Intermodal System Plan.
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