Florida Senate - 2009                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1212
       
       
       
       
       
       
                                Barcode 141322                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: FC            .                                
                  04/15/2009           .                                
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       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