Florida Senate - 2009                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1212
       
       
       
       
       
       
                                Barcode 939008                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: RS            .                                
                  04/15/2009           .                                
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       The Committee on Transportation and Economic Development
       Appropriations (Storms) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3  
    4         Delete everything after the enacting clause
    5  and insert:
    6         Section 1. Section 341.301, Florida Statutes, is amended to
    7  read:
    8         341.301 Definitions; ss. 341.302-341.303 ss. 341.302 and
    9  341.303.—As used in ss. 341.302-341.303 ss. 341.302 and 341.303,
   10  the term:
   11         (1) “Branch line continuance project” means a project that
   12  involves branch line rehabilitation, new connecting track, rail
   13  banking, and other similar types of projects, including those
   14  specifically identified in the federal Railroad Revitalization
   15  and Regulatory Reform Act of 1976, and subsequent amendments to
   16  that act.
   17         (2) “Intercity rail transportation system” means the
   18  network of railroad facilities used or available for interstate
   19  and intrastate passenger and freight operations by railroads,
   20  whether or not on a schedule or whether or not restricted.
   21         (3) “Rail programs” means those programs administered by
   22  the state or other governmental entities which involve projects
   23  affecting the movement of people or goods by rail lines that
   24  have been or will be constructed to serve freight or passenger
   25  markets within a city or between cities.
   26         (4) “Rail service development project” means a project
   27  undertaken by a public agency to determine whether a new or
   28  innovative technique or measure can be utilized to improve or
   29  expand rail service. The duration of the project funding shall
   30  be limited according to the type of project and in no case shall
   31  exceed 3 years. Rail service development projects include those
   32  projects and other actions undertaken to enhance railroad
   33  operating efficiency or increased rail service, including
   34  measures that result in improved speed profiles, operations, or
   35  technological applications that lead to reductions in operating
   36  costs and increases in productivity or service.
   37         (5) “Railroad” or “rail system” means any common carrier
   38  fixed-guideway transportation system such as the conventional
   39  steel rail-supported, steel-wheeled system. The term does not
   40  include a high-speed rail line developed by the Department of
   41  Transportation pursuant to ss. 341.8201-341.842.
   42         (6) “Railroad capital improvement project” means a project
   43  identified by the rail component of the Florida Transportation
   44  Plan, which project involves the leasing, acquisition, design,
   45  construction, reconstruction, or improvement to the existing
   46  intercity rail transportation system or future segments thereof,
   47  including such items as locomotives and other rolling stock,
   48  tracks, terminals, and rights-of-way for the continuance or
   49  expansion of rail service as necessary to ensure the continued
   50  effectiveness of the state’s rail facilities and systems in
   51  meeting mobility and industrial development needs.
   52         (7) “Train” means any locomotive engine that is powered by
   53  diesel fuel, electricity, or other means, with or without cars
   54  coupled thereto, and operated upon a railroad track or any other
   55  form of fixed guideway, except that the term does not include a
   56  light rail vehicle such as a streetcar or people mover.
   57         (8)“Commuter rail passenger” or “passengers” means all
   58  persons, ticketed or unticketed, using the commuter rail service
   59  on a department-owned rail corridor:
   60         (a)On board trains, locomotives, rail cars, or rail
   61  equipment employed in commuter rail service or entraining and
   62  detraining therefrom;
   63         (b)On or about the rail corridor for any purpose related
   64  to the commuter rail service, including, parking, inquiring
   65  about commuter rail service, or purchasing tickets therefor, and
   66  coming to, waiting for, leaving from, or observing trains,
   67  locomotives, rail cars, or rail equipment; or
   68         (c)Meeting, assisting, or in the company of any person
   69  described in paragraph (a) or paragraph (b).
   70         (9)“Commuter rail service” means the transportation of
   71  commuter rail passengers and other passengers by rail pursuant
   72  to a rail program provided by the department or any other
   73  governmental entities.
   74         (10)“Rail corridor invitee” means all persons who are on
   75  or about a department-owned rail corridor:
   76         (a)For any purpose related to any ancillary development
   77  thereon; or
   78         (b)Meeting, assisting, or in the company of any person
   79  described in paragraph (a).
   80         (11)“Rail corridor” means a linear contiguous strip of
   81  real property that is used for rail service. The term includes
   82  the corridor and structures essential to railroad operations,
   83  including the land, structures, improvements, rights-of-way,
   84  easements, rail lines, rail beds, guideway structures, switches,
   85  yards, parking facilities, power relays, switching houses, rail
   86  stations, ancillary development, and any other facilities or
   87  equipment used for the purposes of construction, operation, or
   88  maintenance of a railroad that provides rail service.
   89         (12)“Railroad operations” means the use of the rail
   90  corridor to conduct commuter rail service, intercity rail
   91  passenger service, or freight rail service.
   92         (13)“Ancillary development” includes any lessee or
   93  licensee of the department, including other governmental
   94  entities, vendors, retailers, restaurateurs, or contract service
   95  providers, within a department-owned rail corridor, except for
   96  providers of commuter rail service, intercity rail passenger
   97  service, or freight rail service.
   98         (14)“Governmental entity” or “entities” has the same
   99  meaning as provided in s. 11.45, including a “public agency” as
  100  defined in s. 163.01.
  101         Section 2. Section 341.302, Florida Statutes, is amended to
  102  read:
  103         341.302 Rail program, duties and responsibilities of the
  104  department.—The department, in conjunction with other
  105  governmental entities units and the private sector, shall
  106  develop and implement a rail program of statewide application
  107  designed to ensure the proper maintenance, safety,
  108  revitalization, and expansion of the rail system to assure its
  109  continued and increased availability to respond to statewide
  110  mobility needs. Within the resources provided pursuant to
  111  chapter 216, and as authorized under federal law Title 49 C.F.R.
  112  part 212, the department shall:
  113         (1) Provide the overall leadership, coordination, and
  114  financial and technical assistance necessary to assure the
  115  effective responses of the state’s rail system to current and
  116  anticipated mobility needs.
  117         (2) Promote and facilitate the implementation of advanced
  118  rail systems, including high-speed rail and magnetic levitation
  119  systems.
  120         (3) Develop and periodically update the rail system plan,
  121  on the basis of an analysis of statewide transportation needs.
  122         (a) The plan may contain detailed regional components,
  123  consistent with regional transportation plans, as needed to
  124  ensure connectivity within the state’s regions, and it shall be
  125  consistent with the Florida Transportation Plan developed
  126  pursuant to s. 339.155. The rail system plan shall include an
  127  identification of priorities, programs, and funding levels
  128  required to meet statewide and regional needs. The rail system
  129  plan shall be developed in a manner that will assure the maximum
  130  use of existing facilities and the optimum integration and
  131  coordination of the various modes of transportation, public and
  132  private, in the most cost-effective manner possible. The rail
  133  system plan shall be updated at least every 5 2 years and
  134  include plans for both passenger rail service and freight rail
  135  service, accompanied by a report to the Legislature regarding
  136  the status of the plan.
  137         (b)In recognition of the department’s role in the
  138  enhancement of the state’s rail system to improve freight and
  139  passenger mobility, the department shall:
  140         1.Continue to work closely with all affected communities,
  141  including, but not limited to, the City of Lakeland, the City of
  142  Plant City, and Polk County, to identify and address anticipated
  143  impacts associated with an increase in freight rail traffic;
  144         2.In coordination with the affected local governments and
  145  CSX Transportation, Inc., finalize all viable alternatives from
  146  the department’s Rail Traffic Evaluation Study to identify and
  147  develop an alternative route for through-freight rail traffic
  148  moving through Central Florida, including Polk and Hillsborough
  149  Counties. Following the completion of the department’s
  150  alternative rail traffic evaluation, the department shall begin
  151  a project development and environmental study that must be
  152  reviewed and approved by appropriate federal agencies so that a
  153  preferred alternative can be identified which minimizes the
  154  impacts associated with freight rail movements along the
  155  corridor. This preferred alternative shall become the basis for
  156  future development of this freight rail corridor and shall be
  157  prioritized for funding in the department’s work program no
  158  later than 10 years following commencement of construction of
  159  the CSX Integrated Logistics Center; and
  160         3.Provide technical assistance to a coalition of local
  161  governments in Central Florida, including the counties of
  162  Brevard, Citrus, Hernando, Hillsborough, Lake, Marion, Orange,
  163  Osceola, Pasco, Pinellas, Polk, Manatee, Sarasota, Seminole,
  164  Sumter, and Volusia, and the municipalities within those
  165  counties, to develop a regional rail system plan that addresses
  166  passenger and freight opportunities in the region, is consistent
  167  with the Florida Rail System Plan, and incorporates appropriate
  168  elements of the Tampa Bay Area Regional Authority Master Plan,
  169  the Metroplan Orlando Regional Transit System Concept Plan,
  170  including the Sunrail project, and the Florida Department of
  171  Transportation Alternate Rail Traffic Evaluation.
  172         (4) As part of the work program of the department,
  173  formulate a specific program of projects and financing to
  174  respond to identified railroad needs.
  175         (5) Provide technical and financial assistance to units of
  176  local government to address identified rail transportation
  177  needs.
  178         (6) Secure and administer federal grants, loans, and
  179  apportionments for rail projects within this state when
  180  necessary to further the statewide program.
  181         (7) Develop and administer state standards concerning the
  182  safety and performance of rail systems, hazardous material
  183  handling, and operations. Such standards shall be developed
  184  jointly with representatives of affected rail systems, with full
  185  consideration given to nationwide industry norms, and shall
  186  define the minimum acceptable standards for safety and
  187  performance.
  188         (8) Conduct, at a minimum, inspections of track and rolling
  189  stock; train signals and related equipment; hazardous materials
  190  transportation, including the loading, unloading, and labeling
  191  of hazardous materials at shippers’, receivers’, and transfer
  192  points; and train operating practices to determine adherence to
  193  state and federal standards. Department personnel may enforce
  194  any safety regulation issued under the Federal Government’s
  195  preemptive authority over interstate commerce.
  196         (9) Assess penalties, in accordance with the applicable
  197  federal regulations, for the failure to adhere to the state
  198  standards.
  199         (10) Administer rail operating and construction programs,
  200  which programs shall include the regulation of maximum train
  201  operating speeds, the opening and closing of public grade
  202  crossings, the construction and rehabilitation of public grade
  203  crossings, and the installation of traffic control devices at
  204  public grade crossings, the administering of the programs by the
  205  department including participation in the cost of the programs.
  206         (11) Coordinate and facilitate the relocation of railroads
  207  from congested urban areas to nonurban areas when relocation has
  208  been determined feasible and desirable from the standpoint of
  209  safety, operational efficiency, and economics.
  210         (12) Implement a program of branch line continuance
  211  projects when an analysis of the industrial and economic
  212  potential of the line indicates that public involvement is
  213  required to preserve essential rail service and facilities.
  214         (13) Provide new rail service and equipment when:
  215         (a) Pursuant to the transportation planning process, a
  216  public need has been determined to exist;
  217         (b) The cost of providing such service does not exceed the
  218  sum of revenues from fares charged to users, services purchased
  219  by other public agencies, local fund participation, and specific
  220  legislative appropriation for this purpose; and
  221         (c) Service cannot be reasonably provided by other
  222  governmental or privately owned rail systems.
  223  
  224         The department may own, lease, and otherwise encumber
  225  facilities, equipment, and appurtenances thereto, as necessary
  226  to provide new rail services; or the department may provide such
  227  service by contracts with privately owned service providers.
  228         (14) Furnish required emergency rail transportation service
  229  if no other private or public rail transportation operation is
  230  available to supply the required service and such service is
  231  clearly in the best interest of the people in the communities
  232  being served. Such emergency service may be furnished through
  233  contractual arrangement, actual operation of state-owned
  234  equipment and facilities, or any other means determined
  235  appropriate by the secretary.
  236         (15) Assist in the development and implementation of
  237  marketing programs for rail services and of information systems
  238  directed toward assisting rail systems users.
  239         (16) Conduct research into innovative or potentially
  240  effective rail technologies and methods and maintain expertise
  241  in state-of-the-art rail developments.
  242         (17)In conjunction with the acquisition, ownership,
  243  construction, operation, maintenance, and management of a rail
  244  corridor, have the authority to:
  245         (a)Assume the obligation by contract to forever protect,
  246  defend, and indemnify and hold harmless the freight rail
  247  operator, or its successors, from whom the department has
  248  acquired a real property interest in the rail corridor, and that
  249  freight rail operator’s officers, agents, and employees, from
  250  and against any liability, cost, and expense, including, but not
  251  limited to, commuter rail passengers, and rail corridor
  252  invitees, regardless of whether the loss, damage, destruction,
  253  injury, or death giving rise to any such liability, cost, or
  254  expense is caused in whole or in part by the fault, failure,
  255  negligence, misconduct, nonfeasance, or misfeasance of such
  256  freight rail operator, its successors, or its officers, agents,
  257  and employees, or any other person or persons whomsoever,
  258  provided that such assumption of liability of the department by
  259  contract shall not in any instance exceed the following
  260  parameters of allocation of risk:
  261         1.The department may be solely responsible for any loss,
  262  injury, or damage to commuter rail passengers, or rail corridor
  263  invitees, regardless of circumstances or cause, subject to
  264  subparagraphs 2., 3., and 4.
  265         2.When only one train is involved in an incident, the
  266  department may be solely responsible for any loss, injury, or
  267  damage if the train is a department train or other train
  268  pursuant to subparagraph 3. In an instance when only a freight
  269  rail operator train is involved, the freight rail operator is
  270  solely responsible for any loss, injury, or damage, except for
  271  commuter rail passengers and rail corridor invitees, and the
  272  freight rail operator is solely responsible for its property,
  273  all of its people, all rail crossings, and people who are
  274  neither commuter rail passengers or rail corridor invitees in
  275  any instance when its train is involved in an incident.
  276         3.For the purposes of this subsection, any train involved
  277  in an incident that is neither the department’s train nor the
  278  freight rail operator’s train, hereinafter referred to in this
  279  subsection as an “other train,” for the purposes of allocating
  280  liability.
  281         4.When more than one train is involved in an incident:
  282         a.If only a department train and freight rail operator’s
  283  train, or only another train as described in subparagraph 3. and
  284  a freight rail operator’s train, are involved in an incident,
  285  the department may be responsible for its property and all of
  286  its people, all commuter rail passengers, and rail corridor
  287  invitees, but only if the freight rail operator is responsible
  288  for its property and all of its people, and the department and
  289  the freight rail operator share responsibility one-half each as
  290  to third parties outside the rail corridor who incur loss,
  291  injury, or damage as a result of the incident.
  292         b.If a department train, a freight rail operator train,
  293  and any other train are involved in an incident, the allocation
  294  of liability between the department and the freight rail
  295  operator, regardless of whether the other train is treated as a
  296  department train, shall remain one-half each as to third parties
  297  outside the rail corridor who incur loss, injury, or damage as a
  298  result of the incident; the involvement of any other train shall
  299  not alter the sharing of equal responsibility as to third
  300  parties outside the rail corridor who incur loss, injury, or
  301  damage as a result of the incident; and, if the owner, operator,
  302  or insurer of the other train makes any payment to injured third
  303  parties outside the rail corridor who incur loss, injury, or
  304  damage as a result of the incident, the allocation of credit
  305  between the department and the freight rail operator as to such
  306  payment shall not in any case reduce the freight rail operator’s
  307  third-party-sharing allocation of one-half under this paragraph
  308  to less than one-third of the total third party liability.
  309         5.Any such contractual duty to protect, defend, indemnify,
  310  and hold harmless such a freight rail operator shall expressly
  311  include a specific cap on the amount of the contractual duty,
  312  which amount shall not exceed $200 million without prior
  313  legislative approval; require the department to purchase
  314  liability insurance and establish a self-insurance retention
  315  fund in the amount of the specific cap established under this
  316  paragraph; provided that no such contractual duty shall in any
  317  case be effective nor otherwise extend the department’s
  318  liability in scope and effect beyond the contractual liability
  319  insurance and self-insurance retention fund required pursuant to
  320  this paragraph; and provided that the freight rail operator’s
  321  compensation to the department for future use of the
  322  department’s rail corridor shall include a monetary contribution
  323  to the cost of such liability coverage for the sole benefit of
  324  the freight rail operator.
  325         (b)Purchase liability insurance, which amount shall not
  326  exceed $200 million, and establish a self-insurance retention
  327  fund for the purpose of paying the deductible limit established
  328  in the insurance policies it may obtain, including coverage for
  329  the department, any freight rail operator as described in
  330  paragraph (a), commuter rail service providers, governmental
  331  entities, or ancillary development; however, the insureds shall
  332  pay a reasonable monetary contribution to the cost of such
  333  liability coverage for the sole benefit of the insured. Such
  334  insurance and self-insurance retention fund may provide coverage
  335  for all damages, including, but not limited to, compensatory and
  336  special, and be maintained to provide an adequate fund to cover
  337  claims and liabilities for loss, injury, or damage arising out
  338  of or connected with the ownership, operation, maintenance, and
  339  management of a rail corridor.
  340  
  341  Neither the assumption by contract to protect, defend,
  342  indemnify, and hold harmless; the purchase of insurance; nor the
  343  establishment of a self-insurance retention fund shall be deemed
  344  to be a waiver of any defense of sovereign immunity for torts
  345  nor deemed to increase the limits of the department’s or the
  346  governmental entity’s liability for torts as provided in s.
  347  768.28. The provisions of this subsection shall apply and inure
  348  fully as to any other governmental entity providing commuter
  349  rail service and constructing, operating, maintaining, or
  350  managing a rail corridor on publicly owned right-of-way under
  351  contract by the governmental entity with the department or a
  352  governmental entity designated by the department. The assumption
  353  by contract to protect, defend, indemnify, and hold harmless
  354  shall take effect whenever the department’s physical and on-site
  355  train activities begin.
  356         (18)(17) Exercise such other functions, powers, and duties
  357  in connection with the rail system plan as are necessary to
  358  develop a safe, efficient, and effective statewide
  359  transportation system.
  360         Section 3. For the purposes of this act, operators,
  361  dispatchers, and providers of security for rail services and
  362  rail facility maintenance providers in any rail corridor owned
  363  by the Department of Transportation, or any of their employees
  364  or agents, performing such services under contract with and on
  365  behalf of the Department of Transportation, or a governmental
  366  entity that is under contract with the Department of
  367  Transportation to perform such services or a governmental entity
  368  designated by the Department of Transportation, are agents of
  369  the state while acting within the scope of and pursuant to
  370  guidelines established in the contract or by rule. This section
  371  does not designate persons providing contracted operator,
  372  dispatcher, security services, rail facility maintenance, or
  373  other services as employees or agents of the state for the
  374  purposes of the Federal Employers Liability Act, the Federal
  375  Railway Labor Act, or chapter 440, Florida Statutes.
  376         Section 4. (1)The Department of Transportation may not
  377  guarantee funding for the operation or maintenance of any
  378  commuter rail corridor or system without specific and discreet
  379  legislative authorization. The guarantee may not be a part of
  380  any other subject matter bill or legislative package.
  381         (2) The Department of Transportation may not support any
  382  new commuter rail corridor otherwise authorized by the
  383  department until federal, state, and local governments have
  384  established a dedicated funding source to pay for the corridor
  385  and the associated operation and maintenance of a commuter rail
  386  system.
  387         Section 5. This act shall take effect upon becoming a law.
  388  
  389  ================= T I T L E  A M E N D M E N T ================
  390         And the title is amended as follows:
  391         Delete everything before the enacting clause
  392  and insert:
  393                        A bill to be entitled                      
  394         An act relating to public transit; amending s.
  395         341.301, F.S.; providing definitions relating to
  396         commuter rail service, rail corridors, and railroad
  397         operation for purposes of the rail program within the
  398         Department of Transportation; amending s. 341.302,
  399         F.S.; revising certain citations; revising the time
  400         period within which the department must revise the
  401         rail system plan and requiring a report; providing
  402         additional duties for the department relating to a
  403         regional rail system plan; authorizing the department
  404         to assume certain liability on a rail corridor;
  405         authorizing the department to indemnify and hold
  406         harmless a railroad company when the department
  407         acquires a rail corridor from the company; providing
  408         allocation of risk; providing a specific cap on the
  409         amount of the contractual duty for such
  410         indemnification; authorizing the department to
  411         purchase and provide insurance in relation to rail
  412         corridors; extending provisions to other governmental
  413         entities providing commuter rail service on public
  414         right-of-way; designating certain persons as agents of
  415         the state while acting within the scope of and
  416         pursuant to guidelines established in the contract or
  417         by rule; prohibiting the Department of Transportation
  418         from guaranteeing funding for the operation or
  419         maintenance of any commuter rail corridor or system
  420         without specific and discreet legislative
  421         authorization; prohibiting the Department of
  422         Transportation from supporting any new commuter rail
  423         corridor otherwise authorized by the department until
  424         federal, state, and local governments have established
  425         a dedicated funding source to pay for the corridor and
  426         the associated operation and maintenance of a commuter
  427         rail system; providing an effective date.