Florida Senate - 2009 COMMITTEE AMENDMENT
Bill No. CS for SB 1212
Barcode 315976
LEGISLATIVE ACTION
Senate . House
Comm: UNFAV .
04/20/2009 .
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The Committee on Transportation and Economic Development
Appropriations (Dockery) recommended the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Section 341.301, Florida Statutes, is amended to
6 read:
7 341.301 Definitions; ss. 341.302-341.303 ss. 341.302 and
8 341.303.—As used in ss. 341.302-341.303 ss. 341.302 and 341.303,
9 the term:
10 (1) “Branch line continuance project” means a project that
11 involves branch line rehabilitation, new connecting track, rail
12 banking, and other similar types of projects, including those
13 specifically identified in the federal Railroad Revitalization
14 and Regulatory Reform Act of 1976, and subsequent amendments to
15 that act.
16 (2) “Intercity rail transportation system” means the
17 network of railroad facilities used or available for interstate
18 and intrastate passenger and freight operations by railroads,
19 whether or not on a schedule or whether or not restricted.
20 (3) “Rail programs” means those programs administered by
21 the state or other governmental entities which involve projects
22 affecting the movement of people or goods by rail lines that
23 have been or will be constructed to serve freight or passenger
24 markets within a city or between cities.
25 (4) “Rail service development project” means a project
26 undertaken by a public agency to determine whether a new or
27 innovative technique or measure can be utilized to improve or
28 expand rail service. The duration of the project funding shall
29 be limited according to the type of project and in no case shall
30 exceed 3 years. Rail service development projects include those
31 projects and other actions undertaken to enhance railroad
32 operating efficiency or increased rail service, including
33 measures that result in improved speed profiles, operations, or
34 technological applications that lead to reductions in operating
35 costs and increases in productivity or service.
36 (5) “Railroad” or “rail system” means any common carrier
37 fixed-guideway transportation system such as the conventional
38 steel rail-supported, steel-wheeled system. The term does not
39 include a high-speed rail line developed by the Department of
40 Transportation pursuant to ss. 341.8201-341.842.
41 (6) “Railroad capital improvement project” means a project
42 identified by the rail component of the Florida Transportation
43 Plan, which project involves the leasing, acquisition, design,
44 construction, reconstruction, or improvement to the existing
45 intercity rail transportation system or future segments thereof,
46 including such items as locomotives and other rolling stock,
47 tracks, terminals, and rights-of-way for the continuance or
48 expansion of rail service as necessary to ensure the continued
49 effectiveness of the state’s rail facilities and systems in
50 meeting mobility and industrial development needs.
51 (7) “Train” means any locomotive engine that is powered by
52 diesel fuel, electricity, or other means, with or without cars
53 coupled thereto, and operated upon a railroad track or any other
54 form of fixed guideway, except that the term does not include a
55 light rail vehicle such as a streetcar or people mover.
56 (8) “Commuter rail passenger” or “passengers” means all
57 persons, ticketed or unticketed, using the commuter rail service
58 on a department-owned rail corridor:
59 (a) On board trains, locomotives, rail cars, or rail
60 equipment employed in commuter rail service or entraining and
61 detraining therefrom;
62 (b) On or about the rail corridor for any purpose related
63 to the commuter rail service, including, parking, inquiring
64 about commuter rail service, or purchasing tickets therefor, and
65 coming to, waiting for, leaving from, or observing trains,
66 locomotives, rail cars, or rail equipment; or
67 (c) Meeting, assisting, or in the company of any person
68 described in paragraph (a) or paragraph (b).
69 (9) “Commuter rail service” means the transportation of
70 commuter rail passengers and other passengers by rail pursuant
71 to a rail program provided by the department or any other
72 governmental entities.
73 (10) “Rail corridor invitee” means all persons who are on
74 or about a department-owned rail corridor:
75 (a) For any purpose related to any ancillary development
76 thereon; or
77 (b) Meeting, assisting, or in the company of any person
78 described in paragraph (a).
79 (11) “Rail corridor” means a linear contiguous strip of
80 real property that is used for rail service. The term includes
81 the corridor and structures essential to railroad operations,
82 including the land, structures, improvements, rights-of-way,
83 easements, rail lines, rail beds, guideway structures, switches,
84 parking facilities, power relays, switching houses, rail
85 stations, ancillary development, and any other facilities or
86 equipment used for the purposes of construction, operation, or
87 maintenance of a railroad that provides rail service.
88 (12) “Railroad operations” means the use of the rail
89 corridor to conduct commuter rail service, intercity rail
90 passenger service, or freight rail service.
91 (13) “Ancillary development” includes any lessee or
92 licensee of the department, including other governmental
93 entities, vendors, retailers, restaurateurs, or contract service
94 providers, within a department-owned rail corridor, except for
95 providers of commuter rail service, intercity rail passenger
96 service, or freight rail service.
97 (14) “Governmental entity” or “entities” has the same
98 meaning as provided in s. 11.45, including a “public agency” as
99 defined in s. 163.01.
100 Section 2. Section 341.302, Florida Statutes, is amended to
101 read:
102 341.302 Rail program, duties and responsibilities of the
103 department.—The department, in conjunction with other
104 governmental entities units and the private sector, shall
105 develop and implement a rail program of statewide application
106 designed to ensure the proper maintenance, safety,
107 revitalization, and expansion of the rail system to assure its
108 continued and increased availability to respond to statewide
109 mobility needs. Within the resources provided pursuant to
110 chapter 216, and as authorized under federal law Title 49 C.F.R.
111 part 212, the department shall:
112 (1) Provide the overall leadership, coordination, and
113 financial and technical assistance necessary to assure the
114 effective responses of the state’s rail system to current and
115 anticipated mobility needs.
116 (2) Promote and facilitate the implementation of advanced
117 rail systems, including high-speed rail and magnetic levitation
118 systems.
119 (3) Develop and periodically update the rail system plan,
120 on the basis of an analysis of statewide transportation needs.
121 (a) The plan may contain detailed regional components,
122 consistent with regional transportation plans, as needed to
123 ensure connectivity within the state’s regions, and it shall be
124 consistent with the Florida Transportation Plan developed
125 pursuant to s. 339.155. The rail system plan shall include an
126 identification of priorities, programs, and funding levels
127 required to meet statewide and regional needs. The rail system
128 plan shall be developed in a manner that will assure the maximum
129 use of existing facilities and the optimum integration and
130 coordination of the various modes of transportation, public and
131 private, in the most cost-effective manner possible. The rail
132 system plan shall be updated at least every 5 2 years and
133 include plans for both passenger rail service and freight rail
134 service, accompanied by a report to the Legislature regarding
135 the status of the plan.
136 (b) In recognition of the department’s role in the
137 enhancement of the state’s rail system to improve freight and
138 passenger mobility, the department shall:
139 1. Continue to work closely with all affected communities,
140 including, but not limited to, the City of Lakeland, the City of
141 Plant City, and Polk County, to identify and address anticipated
142 impacts associated with an increase in freight rail traffic;
143 2. In coordination with the affected local governments and
144 CSX Transportation, Inc., finalize all viable alternatives from
145 the department’s Rail Traffic Evaluation Study to identify and
146 develop an alternative route for through-freight rail traffic
147 moving through Central Florida, including Polk and Hillsborough
148 Counties. Following the completion of the department’s
149 alternative rail traffic evaluation, the department shall begin
150 a project development and environmental study that must be
151 reviewed and approved by appropriate federal agencies so that a
152 preferred alternative can be identified which minimizes the
153 impacts associated with freight rail movements along the
154 corridor. This preferred alternative shall become the basis for
155 future development of this freight rail corridor and shall be
156 prioritized for funding in the department’s work program no
157 later than 10 years following commencement of construction of
158 the CSX Integrated Logistics Center; and
159 3. Provide technical assistance to a coalition of local
160 governments in Central Florida, including the counties of
161 Brevard, Citrus, Hernando, Hillsborough, Lake, Marion, Orange,
162 Osceola, Pasco, Pinellas, Polk, Manatee, Sarasota, Seminole,
163 Sumter, and Volusia, and the municipalities within those
164 counties, to develop a regional rail system plan that addresses
165 passenger and freight opportunities in the region, is consistent
166 with the Florida Rail System Plan, and incorporates appropriate
167 elements of the Tampa Bay Area Regional Authority Master Plan,
168 the Metroplan Orlando Regional Transit System Concept Plan,
169 including the Sunrail project, and the Florida Department of
170 Transportation Alternate Rail Traffic Evaluation.
171 (4) As part of the work program of the department,
172 formulate a specific program of projects and financing to
173 respond to identified railroad needs.
174 (5) Provide technical and financial assistance to units of
175 local government to address identified rail transportation
176 needs.
177 (6) Secure and administer federal grants, loans, and
178 apportionments for rail projects within this state when
179 necessary to further the statewide program.
180 (7) Develop and administer state standards concerning the
181 safety and performance of rail systems, hazardous material
182 handling, and operations. Such standards shall be developed
183 jointly with representatives of affected rail systems, with full
184 consideration given to nationwide industry norms, and shall
185 define the minimum acceptable standards for safety and
186 performance.
187 (8) Conduct, at a minimum, inspections of track and rolling
188 stock; train signals and related equipment; hazardous materials
189 transportation, including the loading, unloading, and labeling
190 of hazardous materials at shippers’, receivers’, and transfer
191 points; and train operating practices to determine adherence to
192 state and federal standards. Department personnel may enforce
193 any safety regulation issued under the Federal Government’s
194 preemptive authority over interstate commerce.
195 (9) Assess penalties, in accordance with the applicable
196 federal regulations, for the failure to adhere to the state
197 standards.
198 (10) Administer rail operating and construction programs,
199 which programs shall include the regulation of maximum train
200 operating speeds, the opening and closing of public grade
201 crossings, the construction and rehabilitation of public grade
202 crossings, and the installation of traffic control devices at
203 public grade crossings, the administering of the programs by the
204 department including participation in the cost of the programs.
205 (11) Coordinate and facilitate the relocation of railroads
206 from congested urban areas to nonurban areas when relocation has
207 been determined feasible and desirable from the standpoint of
208 safety, operational efficiency, and economics.
209 (12) Implement a program of branch line continuance
210 projects when an analysis of the industrial and economic
211 potential of the line indicates that public involvement is
212 required to preserve essential rail service and facilities.
213 (13) Provide new rail service and equipment when:
214 (a) Pursuant to the transportation planning process, a
215 public need has been determined to exist;
216 (b) The cost of providing such service does not exceed the
217 sum of revenues from fares charged to users, services purchased
218 by other public agencies, local fund participation, and specific
219 legislative appropriation for this purpose; and
220 (c) Service cannot be reasonably provided by other
221 governmental or privately owned rail systems.
222
223 The department may own, lease, and otherwise encumber
224 facilities, equipment, and appurtenances thereto, as necessary
225 to provide new rail services; or the department may provide such
226 service by contracts with privately owned service providers.
227 (14) Furnish required emergency rail transportation service
228 if no other private or public rail transportation operation is
229 available to supply the required service and such service is
230 clearly in the best interest of the people in the communities
231 being served. Such emergency service may be furnished through
232 contractual arrangement, actual operation of state-owned
233 equipment and facilities, or any other means determined
234 appropriate by the secretary.
235 (15) Assist in the development and implementation of
236 marketing programs for rail services and of information systems
237 directed toward assisting rail systems users.
238 (16) Conduct research into innovative or potentially
239 effective rail technologies and methods and maintain expertise
240 in state-of-the-art rail developments.
241 (17) In conjunction with the acquisition, ownership,
242 construction, operation, maintenance, and management of a rail
243 corridor, have the authority to:
244 (a) Assume the obligation by contract to forever protect,
245 defend, and indemnify and hold harmless the freight rail
246 operator, or its successors, from whom the department has
247 acquired a real property interest in the rail corridor, and that
248 freight rail operator’s officers, agents, and employees, from
249 and against any liability, cost, and expense, including, but not
250 limited to, commuter rail passengers, and rail corridor
251 invitees, regardless of whether the loss, damage, destruction,
252 injury, or death giving rise to any such liability, cost, or
253 expense is caused in whole or in part by the fault, failure,
254 negligence, misconduct, nonfeasance, or misfeasance of such
255 freight rail operator, its successors, or its officers, agents,
256 and employees, or any other person or persons whomsoever,
257 provided that such assumption of liability of the department by
258 contract shall not in any instance exceed the following
259 parameters of allocation of risk:
260 1. The department may be solely responsible for any loss,
261 injury, or damage to commuter rail passengers, or rail corridor
262 invitees, regardless of circumstances or cause, subject to
263 subparagraphs 2., 3., and 4.
264 2. When only one train is involved in an incident, the
265 department may be solely responsible for any loss, injury, or
266 damage if the train is a department train or other train
267 pursuant to subparagraph 3. In an instance when only a freight
268 rail operator train is involved, the freight rail operator is
269 solely responsible for any loss, injury, or damage, except for
270 commuter rail passengers and rail corridor invitees, and the
271 freight rail operator is solely responsible for its property,
272 all of its people, all rail crossings, and people who are
273 neither commuter rail passengers or rail corridor invitees in
274 any instance when its train is involved in an incident.
275 3. For the purposes of this subsection, any train involved
276 in an incident that is neither the department’s train nor the
277 freight rail operator’s train, hereinafter referred to in this
278 subsection as an “other train,” for the purposes of allocating
279 liability.
280 4. When more than one train is involved in an incident:
281 a. If only a department train and freight rail operator’s
282 train, or only another train as described in subparagraph 3. and
283 a freight rail operator’s train, are involved in an incident,
284 the department may be responsible for its property and all of
285 its people, all commuter rail passengers, and rail corridor
286 invitees, but only if the freight rail operator is responsible
287 for its property and all of its people, and the department and
288 the freight rail operator share responsibility one-half each as
289 to third parties outside the rail corridor who incur loss,
290 injury, or damage as a result of the incident.
291 b. If a department train, a freight rail operator train,
292 and any other train are involved in an incident, the allocation
293 of liability between the department and the freight rail
294 operator, regardless of whether the other train is treated as a
295 department train, shall remain one-half each as to third parties
296 outside the rail corridor who incur loss, injury, or damage as a
297 result of the incident; the involvement of any other train shall
298 not alter the sharing of equal responsibility as to third
299 parties outside the rail corridor who incur loss, injury, or
300 damage as a result of the incident; and, if the owner, operator,
301 or insurer of the other train makes any payment to injured third
302 parties outside the rail corridor who incur loss, injury, or
303 damage as a result of the incident, the allocation of credit
304 between the department and the freight rail operator as to such
305 payment shall not in any case reduce the freight rail operator’s
306 third-party-sharing allocation of one-half under this paragraph
307 to less than one-third of the total third party liability.
308 5. Any such contractual duty to protect, defend, indemnify,
309 and hold harmless such a freight rail operator shall expressly
310 include a specific cap on the amount of the contractual duty,
311 which amount shall not exceed $200 million without prior
312 legislative approval; require the department to purchase
313 liability insurance and establish a self-insurance retention
314 fund in the amount of the specific cap established under this
315 paragraph; provided that no such contractual duty shall in any
316 case be effective nor otherwise extend the department’s
317 liability in scope and effect beyond the contractual liability
318 insurance and self-insurance retention fund required pursuant to
319 this paragraph; and provided that the freight rail operator’s
320 compensation to the department for future use of the
321 department’s rail corridor shall include a monetary contribution
322 to the cost of such liability coverage for the sole benefit of
323 the freight rail operator.
324 (b) Purchase liability insurance, which amount shall not
325 exceed $200 million per contract authorized under paragraph (a)
326 and which amount shall be at least equal to the amount of the
327 indemnification obligation for each contract authorized under
328 paragraph (a) and establish a self-insurance retention fund for
329 the purpose of paying the deductible limit established in the
330 insurance policies it may obtain, including coverage for the
331 department, any freight rail operator as described in paragraph
332 (a), commuter rail service providers, governmental entities, or
333 ancillary development; however, the insureds shall pay a
334 reasonable monetary contribution to the cost of such liability
335 coverage for the sole benefit of the insured. Such insurance and
336 self-insurance retention fund may provide coverage for all
337 damages, including, but not limited to, compensatory and
338 special, and be maintained to provide an adequate fund to cover
339 claims and liabilities for loss, injury, or damage arising out
340 of or connected with the ownership, operation, maintenance, and
341 management of a rail corridor.
342
343 Neither the assumption by contract to protect, defend,
344 indemnify, and hold harmless; the purchase of insurance; nor the
345 establishment of a self-insurance retention fund shall be deemed
346 to be a waiver of any defense of sovereign immunity for torts
347 nor deemed to increase the limits of the department’s or the
348 governmental entity’s liability for torts as provided in s.
349 768.28. The provisions of this subsection shall apply and inure
350 fully as to any other governmental entity providing commuter
351 rail service and constructing, operating, maintaining, or
352 managing a rail corridor on publicly owned right-of-way under
353 contract by the governmental entity with the department or a
354 governmental entity designated by the department. The assumption
355 by contract to protect, defend, indemnify, and hold harmless
356 shall take effect whenever the department’s physical and on-site
357 train activities begin.
358 (c) The department shall have no indemnification
359 obligations to any freight rail operator or third party for any
360 exemplary damages awarded against such freight rail operator or
361 third party attributable to the conduct of the freight rail
362 operator or third party.
363 (d) Notwithstanding any other provision in this section,
364 the department shall have no indemnification obligations to any
365 freight rail operator or third party until such time that
366 commuter rail is operating in the rail corridor.
367 (18)(17) Exercise such other functions, powers, and duties
368 in connection with the rail system plan as are necessary to
369 develop a safe, efficient, and effective statewide
370 transportation system.
371 Section 4. (1) The Department of Transportation may not
372 guarantee funding for the operation or maintenance of any
373 commuter rail corridor or system without specific and discreet
374 legislative authorization. The guarantee may not be a part of
375 any other subject matter bill or legislative package.
376 (2) The Department of Transportation may not support any
377 new commuter rail corridor otherwise authorized by the
378 department until federal, state, and local governments have
379 established a dedicated funding source to pay for the corridor
380 and the associated operation and maintenance of a commuter rail
381 system.
382 Section 5. This act shall take effect upon becoming a law.
383
384
385 ================= T I T L E A M E N D M E N T ================
386 And the title is amended as follows:
387
388 Delete everything before the enacting clause
389 and insert:
390 A bill to be entitled
391 An act relating to public transit; amending s.
392 341.301, F.S.; providing definitions relating to
393 commuter rail service, rail corridors, and railroad
394 operation for purposes of the rail program within the
395 Department of Transportation; amending s. 341.302,
396 F.S.; revising certain citations; revising the time
397 period within which the department must revise the
398 rail system plan and requiring a report; providing
399 additional duties for the department relating to a
400 regional rail system plan; authorizing the department
401 to assume certain liability on a rail corridor;
402 authorizing the department to indemnify and hold
403 harmless a railroad company when the department
404 acquires a rail corridor from the company; providing
405 allocation of risk; providing a specific cap on the
406 amount of the contractual duty for such
407 indemnification; authorizing the department to
408 purchase and provide insurance in relation to rail
409 corridors; extending provisions to other governmental
410 entities providing commuter rail service on public
411 right-of-way; designating certain persons as agents of
412 the state while acting within the scope of and
413 pursuant to guidelines established in the contract or
414 by rule; prohibiting the Department of Transportation
415 from guaranteeing funding for the operation or
416 maintenance of any commuter rail corridor or system
417 without specific and discreet legislative
418 authorization; prohibiting the Department of
419 Transportation from supporting any new commuter rail
420 corridor otherwise authorized by the department until
421 federal, state, and local governments have established
422 a dedicated funding source to pay for the corridor and
423 the associated operation and maintenance of a commuter
424 rail system; providing an effective date.