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A bill to be entitled

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An act relating to rail corridors; amending s. 341.301,

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F.S.; defining the terms "commuter rail service" and "rail

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corridor" for purposes of the rail program within the

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Department of Transportation; amending s. 341.302, F.S.;

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authorizing the department to purchase and provide

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insurance in relation to rail corridors; authorizing the

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department to assume all liability on a rail corridor;

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authorizing the department to indemnify and hold harmless

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a railroad company when the department acquires a rail

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corridor from the company; extending provisions to other

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governmental entities providing commuter rail service on

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public right-of-way; amending s. 768.28, F.S.; expanding

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the list of entities considered agents of the state;

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providing an effective date.

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

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     Section 1.  Subsections (8) and (9) are added to section

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341.301, Florida Statutes, to read:

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     341.301  Definitions; ss. 341.302 and 341.303.--As used in

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ss. 341.302 and 341.303, the term:

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     (8) "Commuter rail service" means the transportation of

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commuters and other passengers by rail pursuant to a rail program

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provided by the state or other governmental entity.

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     (9) "Rail corridor" means a linear contiguous strip of real

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estate that is used for rail service. The term includes the

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corridor and structures essential to the operation of a railroad,

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including the land, structures, improvements, rights-of-way,

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easements, rail lines, rail beds, guideway structures, switches,

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yards, parking facilities, power relays, switching houses, rail

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stations, and any other facilities or equipment used for the

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purposes of construction, operation, or maintenance of a railroad

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that provides rail service.

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     Section 2.  Section 341.302, Florida Statutes, is amended to

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read:

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     341.302  Rail program, duties and responsibilities of the

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department.--The department, in conjunction with other

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governmental units and the private sector, shall develop and

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implement a rail program of statewide application designed to

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ensure the proper maintenance, safety, revitalization, and

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expansion of the rail system to assure its continued and

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increased availability to respond to statewide mobility needs.

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Within the resources provided pursuant to chapter 216, and as

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authorized under federal law Title 49 C.F.R. part 212, the

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department shall:

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     (1)  Provide the overall leadership, coordination, and

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financial and technical assistance necessary to assure the

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effective responses of the state's rail system to current and

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anticipated mobility needs.

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     (2)  Promote and facilitate the implementation of advanced

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rail systems, including high-speed rail and magnetic levitation

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systems.

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     (3)  Develop and periodically update the rail system plan,

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on the basis of an analysis of statewide transportation needs.

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The plan shall be consistent with the Florida Transportation Plan

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developed pursuant to s. 339.155. The rail system plan shall

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include an identification of priorities, programs, and funding

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levels required to meet statewide needs. The rail system plan

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shall be developed in a manner that will assure the maximum use

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of existing facilities and the optimum integration and

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coordination of the various modes of transportation, public and

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private, in the most cost-effective manner possible. The rail

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system plan shall be updated at least every 2 years and include

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plans for both passenger rail service and freight rail service.

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     (4)  As part of the work program of the department,

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formulate a specific program of projects and financing to respond

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to identified railroad needs.

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     (5)  Provide technical and financial assistance to units of

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local government to address identified rail transportation needs.

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     (6)  Secure and administer federal grants, loans, and

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apportionments for rail projects within this state when necessary

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to further the statewide program.

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     (7)  Develop and administer state standards concerning the

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safety and performance of rail systems, hazardous material

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handling, and operations. Such standards shall be developed

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jointly with representatives of affected rail systems, with full

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consideration given to nationwide industry norms, and shall

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define the minimum acceptable standards for safety and

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performance.

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     (8)  Conduct, at a minimum, inspections of track and rolling

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stock; train signals and related equipment; hazardous materials

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transportation, including the loading, unloading, and labeling of

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hazardous materials at shippers', receivers', and transfer

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points; and train operating practices to determine adherence to

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state and federal standards. Department personnel may enforce any

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safety regulation issued under the Federal Government's

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preemptive authority over interstate commerce.

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     (9)  Assess penalties, in accordance with the applicable

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federal regulations, for the failure to adhere to the state

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standards.

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     (10)  Administer rail operating and construction programs,

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which programs shall include the regulation of maximum train

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operating speeds, the opening and closing of public grade

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crossings, the construction and rehabilitation of public grade

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crossings, and the installation of traffic control devices at

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public grade crossings, the administering of the programs by the

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department including participation in the cost of the programs.

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     (11)  Coordinate and facilitate the relocation of railroads

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from congested urban areas to nonurban areas when relocation has

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been determined feasible and desirable from the standpoint of

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safety, operational efficiency, and economics.

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     (12)  Implement a program of branch line continuance

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projects when an analysis of the industrial and economic

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potential of the line indicates that public involvement is

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required to preserve essential rail service and facilities.

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     (13)  Provide new rail service and equipment when:

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     (a)  Pursuant to the transportation planning process, a

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public need has been determined to exist;

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     (b)  The cost of providing such service does not exceed the

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sum of revenues from fares charged to users, services purchased

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by other public agencies, local fund participation, and specific

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legislative appropriation for this purpose; and

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     (c)  Service cannot be reasonably provided by other

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governmental or privately owned rail systems.

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The department may own, lease, and otherwise encumber facilities,

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equipment, and appurtenances thereto, as necessary to provide new

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rail services; or the department may provide such service by

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contracts with privately owned service providers.

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     (14)  Furnish required emergency rail transportation service

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if no other private or public rail transportation operation is

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available to supply the required service and such service is

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clearly in the best interest of the people in the communities

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being served. Such emergency service may be furnished through

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contractual arrangement, actual operation of state-owned

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equipment and facilities, or any other means determined

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appropriate by the secretary.

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     (15)  Assist in the development and implementation of

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marketing programs for rail services and of information systems

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directed toward assisting rail systems users.

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     (16)  Conduct research into innovative or potentially

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effective rail technologies and methods and maintain expertise in

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state-of-the-art rail developments.

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     (17) In conjunction with the acquisition, ownership,

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construction, operation, maintenance, and management of a rail

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corridor, have the authority to:

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     (a) Purchase liability insurance that the department may be

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contractually obligated to provide as to uses of the rail

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corridor or that the department determines to be in the public

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interest and necessary, and establish a self-insurance retention

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fund for the purpose of paying the deductible limit established

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in its insurance policies. Such insurance and self-insurance

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retention fund may provide coverage for all damages, including,

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but not limited to, compensatory, special, and exemplary, and may

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be maintained to provide an adequate fund to cover claims and

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liabilities for loss, damage, injury, or death arising out of or

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connected with the ownership, operation, maintenance, or

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management of a rail corridor. Neither the purchase of insurance

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nor the establishment of a self-insurance retention fund shall be

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deemed to be a waiver of any defense of sovereign immunity for

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torts nor deemed to increase the limits of the department's

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liability for torts. The requirements of s. 287.022(1) do not

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apply to the purchase of any insurance under this paragraph.

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     (b) Assume by contract any or all liability for the death,

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injury, or loss to any person resulting from fault, failure,

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negligence, misconduct, nonfeasance, or misfeasance, whether in

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whole or in part and to whatever nature or degree caused by the

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department or by others, and to allocate by contract other

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liabilities within the rail corridor resulting from fault,

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failure, negligence, misconduct, nonfeasance, or misfeasance,

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whether in whole or in part and to whatever nature or degree

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caused by the department or by others, in lieu of a determination

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of comparative fault on an incident-by-incident basis. Entering

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into such contractual agreement does not waive the sovereign

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immunity for torts of the department or otherwise alter the

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requirements of s. 768.28.

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     (c) Assume by contract to forever protect, defend,

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indemnify, and hold harmless a railroad company, or its

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successors, from whom the department has acquired a rail

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corridor, and its officers, agents, and employees, from and

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against any liability, cost, or expense contractually assumed by

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the department or contractually apportioned to it, regardless of

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whether the loss, damage, destruction, injury, or death giving

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rise to any such liability, cost, or expense is caused in whole

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or in part and to whatever nature or degree by the fault,

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failure, negligence, misconduct, nonfeasance, or misfeasance of

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such railroad company, or its successors, or its or their

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officers, agents, and employees, or any other person or persons

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whomsoever.

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     1. However, any such contractual duty to protect, defend,

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indemnify, and hold harmless shall:

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     a. Include a specific cap on the amount of such duty;

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     b. Require the department to purchase liability insurance

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and establish a self-insurance retention fund as authorized under

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paragraph (a); and

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     c. Expressly provide that any such contractually assumed

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duty shall in no case be effective or otherwise extend in scope

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and effect beyond the contractually required liability insurance

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and self-insurance retention fund.

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     2. In no event shall the liability of the department to

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forever protect, defend, indemnify, and hold harmless such

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railroad company, or its successors, and its officers, agents,

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and employees pursuant to this paragraph extend beyond the

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contractually required liability insurance purchased and self-

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insurance retention fund established for that purpose, and any

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contractual agreement otherwise is void and unenforceable except

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as expressly authorized in this subsection. In addition, any

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agreement pursuant to this paragraph does not waive or modify the

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sovereign immunity of the department for tort, does not alter the

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requirements of s. 768.28, may not be deemed a waiver of any

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defense of sovereign immunity for tort on account of the

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department having purchased insurance or established a self-

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retention fund, does not increase the limits of the department's

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tort liability as a result of purchasing insurance or

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establishing a self-insurance retention fund, and does not create

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any third-party rights whatsoever.

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     (d) Incur expenses for the purchase of advertisements,

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marketing, and promotional items.

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This subsection applies and inures fully to any other

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governmental entity providing commuter rail service and

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constructing, operating, maintaining, or managing a rail corridor

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on publicly owned right-of-way under contract with the department

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or by designation from the department.

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     (18)(17) Exercise such other functions, powers, and duties

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in connection with the rail system plan as are necessary to

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develop a safe, efficient, and effective statewide transportation

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system.

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     Section 3.  Paragraph (d) of subsection (10) of section

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768.28, Florida Statutes, is amended to read:

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     768.28  Waiver of sovereign immunity in tort actions;

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recovery limits; limitation on attorney fees; statute of

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limitations; exclusions; indemnification; risk management

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programs.--

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     (10)

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     (d)  For the purposes of this section, operators,

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dispatchers, and providers of security for rail services and rail

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facility maintenance providers in the South Florida Rail

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Corridor, the Central Florida Rail Corridor, or any publicly

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owned rail corridor, or any of their employees or agents,

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performing such services under contract with and on behalf of the

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same, South Florida Regional Transportation Authority or the

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Department of Transportation, or any other governmental entity

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under contract with or designated by the Department of

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Transportation shall be considered agents of the state while

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acting within the scope of and pursuant to guidelines established

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in the said contract or by rule.

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     Section 4.  This act shall take effect July 1, 2008.