Amendment
Bill No. CS/CS/HB 1399

Amendment No. 498529

CHAMBER ACTION
Senate		House
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1	Representative Homan offered the following:
2
3	Amendment
4	Remove lines 2354-2637 and insert:
5	Section 38.  Subsections (8) through (15) are added to
6	section 341.301, Florida Statutes, to read:
7	341.301  Definitions; ss. 341.302 and 341.303.--As used in
8	ss. 341.302 and 341.303, the term:
9	(8)  "Commuter rail passenger or passengers" means and
10	includes any and all persons, ticketed or unticketed, using the
11	commuter rail service on a department-owned rail corridor:
12	(a)  On board trains, locomotives, rail cars, or rail
13	equipment employed in commuter rail service or entraining and
14	detraining therefrom;
15	(b)  On or about the rail corridor for any purpose related
16	to the commuter rail service, including, without limitation,
17	parking, inquiring about commuter rail service or purchasing
18	tickets therefor and coming to, waiting for, leaving from, or
19	observing trains, locomotives, rail cars, or rail equipment; or
20	(c)  Meeting, assisting, or in the company of any person
21	described in paragraph (a) or paragraph (b).
22	(9)  "Commuter rail service" means the transportation of
23	commuter rail passengers and other passengers by rail pursuant
24	to a rail program provided by the department or any other
25	governmental entities.
26	(10)  "Rail corridor invitee" means and includes any and
27	all persons who are on or about a department-owned rail
28	corridor:
29	(a)  For any purpose related to any ancillary development
30	thereon; or
31	(b)  Meeting, assisting, or in the company of any person
32	described in paragraph (a).
33	(11)  "Rail corridor" means a linear contiguous strip of
34	real property that is used for rail service. The term includes
35	the corridor and structures essential to the operation of a
36	railroad, including the land, structures, improvements, rights-
37	of-way, easements, rail lines, rail beds, guideway structures,
38	switches, yards, parking facilities, power relays, switching
39	houses, rail stations, ancillary development, and any other
40	facilities or equipment used for the purposes of construction,
41	operation, or maintenance of a railroad that provides rail
42	service.
43	(12)  "Railroad operations" means the use of the rail
44	corridor to conduct commuter rail service, intercity rail
45	passenger service, or freight rail service.
46	(13)  "Ancillary development" includes any lessee or
47	licensee of the department, including, but not limited to, other
48	governmental entities, vendors, retailers, restaurateurs, or
49	contract service providers, within a department-owned rail
50	corridor, except for providers of commuter rail service,
51	intercity rail passenger service, or freight rail service.
52	(14)  "Governmental entity or entities" means as defined in
53	s. 11.45, including a "public agency" as defined in s. 163.01.
54	(15)  "Private party train" means any train involved in an
55	incident that is neither the department's train nor the freight
56	rail operator's train.
57	Section 39.  Section 341.302, Florida Statutes, is amended
58	to read:
59	341.302  Rail program, duties and responsibilities of the
60	department.--The department, in conjunction with other
61	governmental entities units and the private sector, shall
62	develop and implement a rail program of statewide application
63	designed to ensure the proper maintenance, safety,
64	revitalization, and expansion of the rail system to assure its
65	continued and increased availability to respond to statewide
66	mobility needs. Within the resources provided pursuant to
67	chapter 216, and as authorized under federal law Title 49 C.F.R.
68	part 212, the department shall:
69	(1)  Provide the overall leadership, coordination, and
70	financial and technical assistance necessary to assure the
71	effective responses of the state's rail system to current and
72	anticipated mobility needs.
73	(2)  Promote and facilitate the implementation of advanced
74	rail systems, including high-speed rail and magnetic levitation
75	systems.
76	(3)  Develop and periodically update the rail system plan,
77	on the basis of an analysis of statewide transportation needs.
78	The plan shall be consistent with the Florida Transportation
79	Plan developed pursuant to s. 339.155. The rail system plan
80	shall include an identification of priorities, programs, and
81	funding levels required to meet statewide needs. The rail system
82	plan shall be developed in a manner that will assure the maximum
83	use of existing facilities and the optimum integration and
84	coordination of the various modes of transportation, public and
85	private, in the most cost-effective manner possible. The rail
86	system plan shall be updated at least every 2 years and include
87	plans for both passenger rail service and freight rail service.
88	(4)  As part of the work program of the department,
89	formulate a specific program of projects and financing to
90	respond to identified railroad needs.
91	(5)  Provide technical and financial assistance to units of
92	local government to address identified rail transportation
93	needs.
94	(6)  Secure and administer federal grants, loans, and
95	apportionments for rail projects within this state when
96	necessary to further the statewide program.
97	(7)  Develop and administer state standards concerning the
98	safety and performance of rail systems, hazardous material
99	handling, and operations. Such standards shall be developed
100	jointly with representatives of affected rail systems, with full
101	consideration given to nationwide industry norms, and shall
102	define the minimum acceptable standards for safety and
103	performance.
104	(8)  Conduct, at a minimum, inspections of track and
105	rolling stock; train signals and related equipment; hazardous
106	materials transportation, including the loading, unloading, and
107	labeling of hazardous materials at shippers', receivers', and
108	transfer points; and train operating practices to determine
109	adherence to state and federal standards. Department personnel
110	may enforce any safety regulation issued under the Federal
111	Government's preemptive authority over interstate commerce.
112	(9)  Assess penalties, in accordance with the applicable
113	federal regulations, for the failure to adhere to the state
114	standards.
115	(10)  Administer rail operating and construction programs,
116	which programs shall include the regulation of maximum train
117	operating speeds, the opening and closing of public grade
118	crossings, the construction and rehabilitation of public grade
119	crossings, and the installation of traffic control devices at
120	public grade crossings, the administering of the programs by the
121	department including participation in the cost of the programs.
122	(11)  Coordinate and facilitate the relocation of railroads
123	from congested urban areas to nonurban areas when relocation has
124	been determined feasible and desirable from the standpoint of
125	safety, operational efficiency, and economics.
126	(12)  Implement a program of branch line continuance
127	projects when an analysis of the industrial and economic
128	potential of the line indicates that public involvement is
129	required to preserve essential rail service and facilities.
130	(13)  Provide new rail service and equipment when:
131	(a)  Pursuant to the transportation planning process, a
132	public need has been determined to exist;
133	(b)  The cost of providing such service does not exceed the
134	sum of revenues from fares charged to users, services purchased
135	by other public agencies, local fund participation, and specific
136	legislative appropriation for this purpose; and
137	(c)  Service cannot be reasonably provided by other
138	governmental or privately owned rail systems.
139
140	The department may own, lease, and otherwise encumber
141	facilities, equipment, and appurtenances thereto, as necessary
142	to provide new rail services; or the department may provide such
143	service by contracts with privately owned service providers.
144	(14)  Furnish required emergency rail transportation
145	service if no other private or public rail transportation
146	operation is available to supply the required service and such
147	service is clearly in the best interest of the people in the
148	communities being served. Such emergency service may be
149	furnished through contractual arrangement, actual operation of
150	state-owned equipment and facilities, or any other means
151	determined appropriate by the secretary.
152	(15)  Assist in the development and implementation of
153	marketing programs for rail services and of information systems
154	directed toward assisting rail systems users.
155	(16)  Conduct research into innovative or potentially
156	effective rail technologies and methods and maintain expertise
157	in state-of-the-art rail developments.
158	(17)  In conjunction with the acquisition, ownership,
159	construction, operation, maintenance, and management of a rail
160	corridor, have the authority to:
161	(a)  Assume the obligation by contract to forever protect,
162	defend, and indemnify and hold harmless the freight rail
163	operator, or its successors, from whom the department has
164	acquired a real property interest in the rail corridor, and that
165	freight rail operator's officers, agents, and employees, from
166	and against any liability, cost, and expense including, but not
167	limited to, claims arising from an action brought by or on
168	behalf of commuter rail passengers, rail corridor invitees, and
169	trespassers in the rail corridor, regardless of whether the
170	loss, damage, destruction, injury, or death giving rise to any
171	such liability, cost, or expense is caused in whole or in part
172	by the fault, misconduct, nonfeasance, or misfeasance of such
173	freight rail operator, its successors, or its officers, agents,
174	and employees, or any other persons according to the following
175	parameters establishing the of allocation of risk:
176	1.  General department liability.--The department may be
177	solely responsible for any loss, injury, or damage to commuter
178	rail passengers, rail corridor invitees, or trespassers,
179	regardless of circumstances or cause, subject to subparagraphs
180	2. and 3.
181	a.  Private party train.--A private party train may be
182	treated as a department train, solely for purposes of any
183	allocation of liability between the department and the freight
184	rail operator only, if in return for the department's agreement
185	to assume such allocation of liability, the following terms are
186	agreed to:
187	2.  Allocation of liability.--
188	a.  Private party train.--A private party train may be
189	treated as a department train, solely for purposes of any
190	allocation of liability between the department and the freight
191	rail operator only, if, in return for the department's agreement
192	to assume such allocation of liability, the following terms are
193	agreed to:
194	(I)  The freight rail operator and the department share
195	responsibility equally as to third parties outside the rail
196	corridor who incur loss, injury, or damage as a result of any
197	incident involving both a department train and a freight rail
198	operator train; and
199	(II)  Regardless of whether a private party train is
200	treated as a department train, the allocation of liability as
201	between the department and the freight rail operator remains
202	one-half each as to third parties outside the rail corridor who
203	incur loss, injury, or damage as a result of the incident; and
204	b.  Incidents involving a single train.--
205	(I)  For incidents involving a single train that is a
206	department train, the department may be solely responsible for
207	any loss, injury, or damage if, in return for the department's
208	agreement to assume such responsibility, the freight rail
209	operator agrees to be solely responsible for any loss, injury,
210	or damage to its property and all of its people in any instance
211	when its train is involved in a single train incident.
212	(II)  For incidents involving a single train that is a
213	private party train, the department may be solely responsible
214	for any loss, injury, or damage if, in return for the
215	department's agreement to assume such responsibility, the
216	freight rail operator agrees to be solely responsible for any
217	loss, injury, or damage to its property and all of its people in
218	any instance when its train is involved in a single train
219	incident.
220	c.  Incidents involving two or more trains.--
221	(I)  For incidents involving a department train and the
222	freight rail operator's train or incidents involving a private
223	party train and the freight rail operator's train, the
224	department may be responsible for its property and all of its
225	people, all commuter rail passengers, rail corridor invitees,
226	and trespassers, if, in return for the department's agreement to
227	assume such responsibility, the following terms are agreed to
228	apply in the case of such incidents:
229	(A)  The freight rail operator is to be solely responsible
230	for any loss, injury, or damage to its property and all of its
231	people; and
232	(B)  The department and the freight rail operator share
233	responsibility one-half each as to third parties outside the
234	rail corridor who incur loss, injury, or damage as a result of
235	the incident.
236	(II)  For incidents when a department train, a freight rail
237	operator train ,and any private party train are all involved in
238	an incident, the department may be responsible for its property
239	and all of its people, all commuter rail passengers, rail
240	corridor invitees, and trespassers, if, in return for the
241	department's agreement to assume such responsibility, the
242	following terms are agreed to apply in such incidents:
243	(A)  The freight rail operator is to be solely responsible
244	for any loss, injury, or damage to its property and all of its
245	people;
246	(B)  The allocation of liability between the department and
247	the freight rail operator, regardless of whether the private
248	party train is treated as a department train, shall remain one-
249	half each as to third parties outside the rail corridor who
250	incur loss, injury, or damage as a result of the incident;
251	(C)  The involvement of any private party train shall not
252	alter the sharing of equal responsibility as to third parties
253	outside the rail corridor who incur loss, injury, or damage as a
254	result of the incident; and
255	(D)  In any case in which the owner, operator, or insurer
256	of the private party train makes any payment to injured third
257	parties outside the rail corridor who incur loss, injury, or
258	damage as a result of the incident, the allocation of credit
259	between the department and the freight rail operator as to such
260	payment shall not in any case reduce the freight rail operator's
261	third party sharing allocation of one-half under this paragraph
262	to less than one-third of the total third party liability.
263	3.  Contracts.--Any contract to protect, defend, indemnify,
264	and hold harmless a freight rail operator as provided in this
265	subsection shall expressly provide:
266	a.  For the inclusion of a specific cap on the amount of
267	the contractual duty, which amount shall not exceed $200 million
268	without prior legislative approval;
269	b.  That the department must purchase liability insurance
270	and establish a self-insurance retention fund in the amount of
271	the specific cap established under sub-subparagraph a.;
272	c.  That no contractual duty shall in any case be effective
273	nor otherwise extend the department's liability in scope and
274	effect beyond the contractual liability insurance and self-
275	insurance retention fund required pursuant to this subsection;
276	and
277	d.  That the freight rail operator's compensation to the
278	department for future use of the department's rail corridor must
279	include a monetary contribution to the cost of such liability
280	coverage for the sole benefit of the freight rail operator.
281	(b)  Purchase liability insurance which amount shall not
282	exceed $200 million and establish a self-insurance retention
283	fund for the purpose of paying the deductible limit established
284	in the insurance policies it may obtain, including coverage for
285	the department, any freight rail operator as described in
286	paragraph (a), commuter rail service providers, governmental
287	entities, or ancillary development; however, the insureds shall
288	pay a reasonable monetary contribution to the cost of such
289	liability coverage for the sole benefit of the insured. Such
290	insurance and self-insurance retention fund may provide coverage
291	for all damages, including, but not limited to, compensatory,
292	special, and exemplary, and be maintained to provide an adequate
293	fund to cover claims and liabilities for loss, injury, or damage
294	arising out of or connected with the ownership, operation,
295	maintenance, and management of a rail corridor.
296	(c)  Incur expenses for the purchase of advertisements,
297	marketing, and promotional items.
298
299	Neither the assumption by contract to protect, defend,
300	indemnify, and hold harmless; the purchase of insurance; nor the
301	establishment of a self-insurance retention fund shall be deemed
302	to be a waiver of any defense of sovereign immunity for torts
303	nor deemed to increase the limits of the department's or the
304	governmental entity's liability for torts as provided in s.
305	768.28. The requirements of s. 287.022(1) shall not apply to the
306	purchase of any insurance under this subsection. The provisions
307	of this subsection shall apply and inure fully as to any other
308	governmental entity providing commuter rail service and
309	constructing, operating, maintaining, or managing a rail
310	corridor on publicly owned right-of-way under contract by the
311	governmental entity with the department or a governmental entity
312	designated by the department.
313	(18)(17)  Exercise such other functions, powers, and duties
314	in connection with the rail system plan as are necessary to
315	develop a safe, efficient, and effective statewide
316	transportation system.
317	transportation system.

CODING: Words stricken are deletions; words underlined are additions.