Florida Senate - 2009 COMMITTEE AMENDMENT Bill No. CS for SB 1212 Barcode 141322 LEGISLATIVE ACTION Senate . House Comm: FC . 04/15/2009 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Transportation and Economic Development Appropriations (Dockery) recommended the following: 1 Senate Amendment to Amendment (356220) (with title 2 amendment) 3 4 Delete lines 246 - 360 5 and insert: 6 7 (17)(a) In conjunction with the acquisition, ownership, 8 construction, operation, maintenance, and management of a rail 9 corridor, have the authority to: 10 1. Assume the obligation by contract to forever protect, 11 defend, indemnify, and hold harmless the freight rail operator, 12 or its successors, from whom the department has acquired a real 13 property interest in the rail corridor, and that freight rail 14 operator’s officers, agents, and employees, from and against any 15 liability, cost, and expense, including, but not limited to, 16 commuter rail passengers, rail corridor invitees, and 17 trespassers in the rail corridor, regardless of whether the 18 loss, damage, destruction, injury, or death giving rise to any 19 such liability, cost, or expense is caused in whole or in part, 20 and to whatever nature or degree, by the fault, failure, 21 negligence, misconduct, nonfeasance, or misfeasance of such 22 freight rail operator, its successors, or its officers, agents, 23 and employees, or any other person or persons whomsoever, 24 provided that such assumption of liability of the department by 25 contract shall not in any instance exceed the following 26 parameters of allocation of risk: 27 a. The department may be solely responsible for any loss, 28 injury, or damage to commuter rail passengers, rail corridor 29 invitees, or trespassers, regardless of circumstances or cause, 30 subject to subparagraphs 2., 3., and 4. 31 b. When only one train is involved in an incident, the 32 department may be solely responsible for any loss, injury, or 33 damage if the train is a department train or other train 34 pursuant to subparagraph 3., but in an instance when only a 35 freight rail operator train is involved, the freight rail 36 operator is solely responsible for any loss, injury, or damage, 37 except for commuter rail passengers, rail corridor invitees, and 38 trespassers, and the freight rail operator is solely responsible 39 for its property and all of its people in any instance when its 40 train is involved in an incident. 41 c. For the purposes of this subsection, any train involved 42 in an incident that is neither the department’s train nor the 43 freight rail operator’s train, hereinafter referred to in this 44 subsection as an “other train,” may be treated as a department 45 train, solely for purposes of any allocation of liability 46 between the department and the freight rail operator only, but 47 only if the department and the freight rail operator share 48 responsibility equally as to third parties outside the rail 49 corridor who incur loss, injury, or damage as a result of any 50 incident involving both a department train and a freight rail 51 operator train, and the allocation as between the department and 52 the freight rail operator, regardless of whether the other train 53 is treated as a department train, shall remain one-half each as 54 to third parties outside the rail corridor who incur loss, 55 injury, or damage as a result of the incident. The involvement 56 of any other train shall not alter the sharing of equal 57 responsibility as to third parties outside the rail corridor who 58 incur loss, injury, or damage as a result of the incident. 59 d. When more than one train is involved in an incident: 60 (I) If only a department train and freight rail operator’s 61 train, or only another train as described in subparagraph 3. and 62 a freight rail operator’s train, are involved in an incident, 63 the department may be responsible for its property and all of 64 its people, all commuter rail passengers, rail corridor 65 invitees, and trespassers, but only if the freight rail operator 66 is responsible for its property and all of its people, and the 67 department and the freight rail operator each share one-half 68 responsibility as to third parties outside the rail corridor who 69 incur loss, injury, or damage as a result of the incident. 70 (II) If a department train, a freight rail operator train, 71 and any other train are involved in an incident, the allocation 72 of liability between the department and the freight rail 73 operator, regardless of whether the other train is treated as a 74 department train, shall remain one-half each as to third parties 75 outside the rail corridor who incur loss, injury, or damage as a 76 result of the incident. The involvement of any other train shall 77 not alter the sharing of equal responsibility as to third 78 parties outside the rail corridor who incur loss, injury, or 79 damage as a result of the incident, and, if the owner, operator, 80 or insurer of the other train makes any payment to injured third 81 parties outside the rail corridor who incur loss, injury, or 82 damage as a result of the incident, the allocation of credit 83 between the department and the freight rail operator as to such 84 payment shall not in any case reduce the freight rail operator’s 85 third-party-sharing allocation of one-half under this paragraph 86 to less than one-third of the total third-party liability. 87 e. Any such contractual duty to protect, defend, indemnify, 88 and hold harmless such a freight rail operator shall expressly 89 include a specific cap on the amount of the contractual duty, 90 which amount shall not exceed $200 million without prior 91 legislative approval, and the department shall purchase 92 liability insurance and establish a self-insurance retention 93 fund in the amount of the specific cap established under this 94 subparagraph, provided that: 95 (I) No such contractual duty shall in any case be effective 96 or otherwise extend the department’s liability in scope and 97 effect beyond the contractual liability insurance and self 98 insurance retention fund required pursuant to this paragraph; 99 and 100 (II) The freight rail operator’s compensation to the 101 department for future use of the department’s rail corridor 102 shall include a monetary contribution to the cost of such 103 liability coverage for the sole benefit of the freight rail 104 operator. 105 2. Purchase liability insurance, which amount shall not 106 exceed $200 million, and establish a self-insurance retention 107 fund for the purpose of paying the deductible limit established 108 in the insurance policies it may obtain, including coverage for 109 the department, any freight rail operator as described in 110 paragraph (a), commuter rail service providers, governmental 111 entities, or ancillary development. The insureds shall pay a 112 reasonable monetary contribution to the cost of such liability 113 coverage for the sole benefit of the insured. Such insurance and 114 self-insurance retention fund may provide coverage for all 115 damages, including, but not limited to, compensatory, special, 116 and exemplary, and be maintained to provide an adequate fund to 117 cover claims and liabilities for loss, injury, or damage arising 118 out of or connected with the ownership, operation, maintenance, 119 and management of a rail corridor. 120 3. Incur expenses for the purchase of advertisements, 121 marketing, and promotional items. 122 (b) Notwithstanding any other provision of this section, 123 the department may not have an obligation to indemnify a freight 124 rail operator or third party until the commuter rail is 125 operating in the rail corridor. 126 127 ================= T I T L E A M E N D M E N T ================ 128 And the title is amended as follows: 129 Delete line 464 130 and insert: 131 expenses; providing that an obligation to indemnify a freight 132 rail operator or third party may not exist until the commuter 133 rail is operating in the rail corridor; extending provisions to 134 other governmental