Florida Senate - 2009                             CS for SB 1212
       
       
       
       By the Committee on Judiciary; and Senators Constantine,
       Gardiner, Baker, Haridopolos, and Altman
       
       
       
       590-02696-09                                          20091212c1
    1                        A bill to be entitled                      
    2         An act relating to public transit; amending s.
    3         341.301, F.S.; providing definitions relating to
    4         commuter rail service, rail corridors, and railroad
    5         operation for purposes of the rail program within the
    6         Department of Transportation; amending s. 341.302,
    7         F.S.; revising certain citations; revising the time
    8         period within which the department must revise the
    9         rail system plan and requiring a report; providing
   10         additional duties for the department relating to a
   11         regional rail system plan; authorizing the department
   12         to assume certain liability on a rail corridor;
   13         authorizing the department to indemnify and hold
   14         harmless a railroad company when the department
   15         acquires a rail corridor from the company; providing
   16         allocation of risk; providing a specific cap on the
   17         amount of the contractual duty for such
   18         indemnification; authorizing the department to
   19         purchase and provide insurance in relation to rail
   20         corridors; authorizing marketing and promotional
   21         expenses; extending provisions to other governmental
   22         entities providing commuter rail service on public
   23         right-of-way; providing an effective date.
   24  
   25  Be It Enacted by the Legislature of the State of Florida:
   26  
   27         Section 1. Section 341.301, Florida Statutes, is amended to
   28  read:
   29         341.301 Definitions; ss. 341.302-341.303 ss. 341.302 and
   30  341.303.—As used in ss. 341.302-341.303 ss. 341.302 and 341.303,
   31  the term:
   32         (1) “Branch line continuance project” means a project that
   33  involves branch line rehabilitation, new connecting track, rail
   34  banking, and other similar types of projects, including those
   35  specifically identified in the federal Railroad Revitalization
   36  and Regulatory Reform Act of 1976, and subsequent amendments to
   37  that act.
   38         (2) “Intercity rail transportation system” means the
   39  network of railroad facilities used or available for interstate
   40  and intrastate passenger and freight operations by railroads,
   41  whether or not on a schedule or whether or not restricted.
   42         (3) “Rail programs” means those programs administered by
   43  the state or other governmental entities which involve projects
   44  affecting the movement of people or goods by rail lines that
   45  have been or will be constructed to serve freight or passenger
   46  markets within a city or between cities.
   47         (4) “Rail service development project” means a project
   48  undertaken by a public agency to determine whether a new or
   49  innovative technique or measure can be utilized to improve or
   50  expand rail service. The duration of the project funding shall
   51  be limited according to the type of project and in no case shall
   52  exceed 3 years. Rail service development projects include those
   53  projects and other actions undertaken to enhance railroad
   54  operating efficiency or increased rail service, including
   55  measures that result in improved speed profiles, operations, or
   56  technological applications that lead to reductions in operating
   57  costs and increases in productivity or service.
   58         (5) “Railroad” or “rail system” means any common carrier
   59  fixed-guideway transportation system such as the conventional
   60  steel rail-supported, steel-wheeled system. The term does not
   61  include a high-speed rail line developed by the Department of
   62  Transportation pursuant to ss. 341.8201-341.842.
   63         (6) “Railroad capital improvement project” means a project
   64  identified by the rail component of the Florida Transportation
   65  Plan, which project involves the leasing, acquisition, design,
   66  construction, reconstruction, or improvement to the existing
   67  intercity rail transportation system or future segments thereof,
   68  including such items as locomotives and other rolling stock,
   69  tracks, terminals, and rights-of-way for the continuance or
   70  expansion of rail service as necessary to ensure the continued
   71  effectiveness of the state’s rail facilities and systems in
   72  meeting mobility and industrial development needs.
   73         (7) “Train” means any locomotive engine that is powered by
   74  diesel fuel, electricity, or other means, with or without cars
   75  coupled thereto, and operated upon a railroad track or any other
   76  form of fixed guideway, except that the term does not include a
   77  light rail vehicle such as a streetcar or people mover.
   78         (8)“Commuter rail passenger” or “passengers” means all
   79  persons, ticketed or unticketed, using the commuter rail service
   80  on a department-owned rail corridor:
   81         (a)On board trains, locomotives, rail cars, or rail
   82  equipment employed in commuter rail service or entraining and
   83  detraining therefrom;
   84         (b)On or about the rail corridor for any purpose related
   85  to the commuter rail service, including, parking, inquiring
   86  about commuter rail service, or purchasing tickets therefor, and
   87  coming to, waiting for, leaving from, or observing trains,
   88  locomotives, rail cars, or rail equipment; or
   89         (c)Meeting, assisting, or in the company of any person
   90  described in paragraph (a) or paragraph (b).
   91         (9)“Commuter rail service” means the transportation of
   92  commuter rail passengers and other passengers by rail pursuant
   93  to a rail program provided by the department or any other
   94  governmental entities.
   95         (10)“Rail corridor invitee” means all persons who are on
   96  or about a department-owned rail corridor:
   97         (a)For any purpose related to any ancillary development
   98  thereon; or
   99         (b)Meeting, assisting, or in the company of any person
  100  described in paragraph (a).
  101         (11)“Rail corridor” means a linear contiguous strip of
  102  real property that is used for rail service. The term includes
  103  the corridor and structures essential to railroad operations,
  104  including the land, structures, improvements, rights-of-way,
  105  easements, rail lines, rail beds, guideway structures, switches,
  106  yards, parking facilities, power relays, switching houses, rail
  107  stations, ancillary development, and any other facilities or
  108  equipment used for the purposes of construction, operation, or
  109  maintenance of a railroad that provides rail service.
  110         (12)“Railroad operations” means the use of the rail
  111  corridor to conduct commuter rail service, intercity rail
  112  passenger service, or freight rail service.
  113         (13)“Ancillary development” includes any lessee or
  114  licensee of the department, including other governmental
  115  entities, vendors, retailers, restaurateurs, or contract service
  116  providers, within a department-owned rail corridor, except for
  117  providers of commuter rail service, intercity rail passenger
  118  service, or freight rail service.
  119         (14)“Governmental entity” or “entities” has the same
  120  meaning as provided in s. 11.45, including a “public agency” as
  121  defined in s. 163.01.
  122         Section 2. Section 341.302, Florida Statutes, is amended to
  123  read:
  124         341.302 Rail program, duties and responsibilities of the
  125  department.—The department, in conjunction with other
  126  governmental entities units and the private sector, shall
  127  develop and implement a rail program of statewide application
  128  designed to ensure the proper maintenance, safety,
  129  revitalization, and expansion of the rail system to assure its
  130  continued and increased availability to respond to statewide
  131  mobility needs. Within the resources provided pursuant to
  132  chapter 216, and as authorized under federal law Title 49 C.F.R.
  133  part 212, the department shall:
  134         (1) Provide the overall leadership, coordination, and
  135  financial and technical assistance necessary to assure the
  136  effective responses of the state’s rail system to current and
  137  anticipated mobility needs.
  138         (2) Promote and facilitate the implementation of advanced
  139  rail systems, including high-speed rail and magnetic levitation
  140  systems.
  141         (3) Develop and periodically update the rail system plan,
  142  on the basis of an analysis of statewide transportation needs.
  143         (a) The plan may contain detailed regional components,
  144  consistent with regional transportation plans, as needed to
  145  ensure connectivity within the state’s regions, and it shall be
  146  consistent with the Florida Transportation Plan developed
  147  pursuant to s. 339.155. The rail system plan shall include an
  148  identification of priorities, programs, and funding levels
  149  required to meet statewide and regional needs. The rail system
  150  plan shall be developed in a manner that will assure the maximum
  151  use of existing facilities and the optimum integration and
  152  coordination of the various modes of transportation, public and
  153  private, in the most cost-effective manner possible. The rail
  154  system plan shall be updated at least every 5 2 years and
  155  include plans for both passenger rail service and freight rail
  156  service, accompanied by a report to the Legislature regarding
  157  the status of the plan.
  158         (b)In recognition of the department’s role in the
  159  enhancement of the state’s rail system to improve freight and
  160  passenger mobility, the department shall:
  161         1.Continue to work closely with all affected communities,
  162  including, but not limited to, the City of Lakeland, the City of
  163  Plant City, and Polk County, to identify and address anticipated
  164  impacts associated with an increase in freight rail traffic;
  165         2.In coordination with the affected local governments and
  166  CSX Transportation, Inc., finalize all viable alternatives from
  167  the department’s Rail Traffic Evaluation Study to identify and
  168  develop an alternative route for through-freight rail traffic
  169  moving through Central Florida, including Polk and Hillsborough
  170  Counties. Following the completion of the department’s
  171  alternative rail traffic evaluation, the department shall begin
  172  a project development and environmental study that must be
  173  reviewed and approved by appropriate federal agencies so that a
  174  preferred alternative can be identified which minimizes the
  175  impacts associated with freight rail movements along the
  176  corridor. This preferred alternative shall become the basis for
  177  future development of this freight rail corridor and shall be
  178  prioritized for funding in the department’s work program no
  179  later than 10 years from commencement of construction of the CSX
  180  Integrated Logistics Center; and
  181         3.Provide technical assistance to a coalition of local
  182  governments in Central Florida, including the counties of
  183  Brevard, Citrus, Hernando, Hillsborough, Lake, Marion, Orange,
  184  Osceola, Pasco, Pinellas, Polk, Manatee, Sarasota, Seminole,
  185  Sumter, and Volusia, and the municipalities within those
  186  counties, to develop a regional rail system plan that addresses
  187  passenger and freight opportunities in the region, is consistent
  188  with the Florida Rail System Plan, and incorporates appropriate
  189  elements of the Tampa Bay Area Regional Authority Master Plan,
  190  the Metroplan Orlando Regional Transit System Concept Plan,
  191  including the Sunrail project, and the Florida Department of
  192  Transportation Alternate Rail Traffic Evaluation.
  193         (4) As part of the work program of the department,
  194  formulate a specific program of projects and financing to
  195  respond to identified railroad needs.
  196         (5) Provide technical and financial assistance to units of
  197  local government to address identified rail transportation
  198  needs.
  199         (6) Secure and administer federal grants, loans, and
  200  apportionments for rail projects within this state when
  201  necessary to further the statewide program.
  202         (7) Develop and administer state standards concerning the
  203  safety and performance of rail systems, hazardous material
  204  handling, and operations. Such standards shall be developed
  205  jointly with representatives of affected rail systems, with full
  206  consideration given to nationwide industry norms, and shall
  207  define the minimum acceptable standards for safety and
  208  performance.
  209         (8) Conduct, at a minimum, inspections of track and rolling
  210  stock; train signals and related equipment; hazardous materials
  211  transportation, including the loading, unloading, and labeling
  212  of hazardous materials at shippers’, receivers’, and transfer
  213  points; and train operating practices to determine adherence to
  214  state and federal standards. Department personnel may enforce
  215  any safety regulation issued under the Federal Government’s
  216  preemptive authority over interstate commerce.
  217         (9) Assess penalties, in accordance with the applicable
  218  federal regulations, for the failure to adhere to the state
  219  standards.
  220         (10) Administer rail operating and construction programs,
  221  which programs shall include the regulation of maximum train
  222  operating speeds, the opening and closing of public grade
  223  crossings, the construction and rehabilitation of public grade
  224  crossings, and the installation of traffic control devices at
  225  public grade crossings, the administering of the programs by the
  226  department including participation in the cost of the programs.
  227         (11) Coordinate and facilitate the relocation of railroads
  228  from congested urban areas to nonurban areas when relocation has
  229  been determined feasible and desirable from the standpoint of
  230  safety, operational efficiency, and economics.
  231         (12) Implement a program of branch line continuance
  232  projects when an analysis of the industrial and economic
  233  potential of the line indicates that public involvement is
  234  required to preserve essential rail service and facilities.
  235         (13) Provide new rail service and equipment when:
  236         (a) Pursuant to the transportation planning process, a
  237  public need has been determined to exist;
  238         (b) The cost of providing such service does not exceed the
  239  sum of revenues from fares charged to users, services purchased
  240  by other public agencies, local fund participation, and specific
  241  legislative appropriation for this purpose; and
  242         (c) Service cannot be reasonably provided by other
  243  governmental or privately owned rail systems.
  244  
  245  The department may own, lease, and otherwise encumber
  246  facilities, equipment, and appurtenances thereto, as necessary
  247  to provide new rail services; or the department may provide such
  248  service by contracts with privately owned service providers.
  249         (14) Furnish required emergency rail transportation service
  250  if no other private or public rail transportation operation is
  251  available to supply the required service and such service is
  252  clearly in the best interest of the people in the communities
  253  being served. Such emergency service may be furnished through
  254  contractual arrangement, actual operation of state-owned
  255  equipment and facilities, or any other means determined
  256  appropriate by the secretary.
  257         (15) Assist in the development and implementation of
  258  marketing programs for rail services and of information systems
  259  directed toward assisting rail systems users.
  260         (16) Conduct research into innovative or potentially
  261  effective rail technologies and methods and maintain expertise
  262  in state-of-the-art rail developments.
  263         (17)In conjunction with the acquisition, ownership,
  264  construction, operation, maintenance, and management of a rail
  265  corridor, have the authority to:
  266         (a)Assume the obligation by contract to forever protect,
  267  defend, and indemnify and hold harmless the freight rail
  268  operator, or its successors, from whom the department has
  269  acquired a real property interest in the rail corridor, and that
  270  freight rail operator’s officers, agents, and employees, from
  271  and against any liability, cost, and expense, including, but not
  272  limited to, commuter rail passengers, rail corridor invitees,
  273  and trespassers in the rail corridor, regardless of whether the
  274  loss, damage, destruction, injury, or death giving rise to any
  275  such liability, cost, or expense is caused in whole or in part
  276  and to whatever nature or degree by the fault, failure,
  277  negligence, misconduct, nonfeasance, or misfeasance of such
  278  freight rail operator, its successors, or its officers, agents,
  279  and employees, or any other person or persons whomsoever,
  280  provided that such assumption of liability of the department by
  281  contract shall not in any instance exceed the following
  282  parameters of allocation of risk:
  283         1.The department may be solely responsible for any loss,
  284  injury, or damage to commuter rail passengers, rail corridor
  285  invitees, or trespassers, regardless of circumstances or cause,
  286  subject to subparagraphs 2., 3., and 4.
  287         2.When only one train is involved in an incident, the
  288  department may be solely responsible for any loss, injury, or
  289  damage if the train is a department train or other train
  290  pursuant to subparagraph 3., but only if in an instance when
  291  only a freight rail operator train is involved, the freight rail
  292  operator is solely responsible for any loss, injury, or damage,
  293  except for commuter rail passengers, rail corridor invitees, and
  294  trespassers, and the freight rail operator is solely responsible
  295  for its property and all of its people in any instance when its
  296  train is involved in an incident.
  297         3.For the purposes of this subsection, any train involved
  298  in an incident that is neither the department’s train nor the
  299  freight rail operator’s train, hereinafter referred to in this
  300  subsection as an “other train,” may be treated as a department
  301  train, solely for purposes of any allocation of liability
  302  between the department and the freight rail operator only, but
  303  only if the department and the freight rail operator share
  304  responsibility equally as to third parties outside the rail
  305  corridor who incur loss, injury, or damage as a result of any
  306  incident involving both a department train and a freight rail
  307  operator train, and the allocation as between the department and
  308  the freight rail operator, regardless of whether the other train
  309  is treated as a department train, shall remain one-half each as
  310  to third parties outside the rail corridor who incur loss,
  311  injury, or damage as a result of the incident, and the
  312  involvement of any other train shall not alter the sharing of
  313  equal responsibility as to third parties outside the rail
  314  corridor who incur loss, injury, or damage as a result of the
  315  incident.
  316         4.When more than one train is involved in an incident:
  317         a.If only a department train and freight rail operator’s
  318  train, or only another train as described in subparagraph 3. and
  319  a freight rail operator’s train, are involved in an incident,
  320  the department may be responsible for its property and all of
  321  its people, all commuter rail passengers, rail corridor
  322  invitees, and trespassers, but only if the freight rail operator
  323  is responsible for its property and all of its people, and the
  324  department and the freight rail operator share responsibility
  325  one-half each as to third parties outside the rail corridor who
  326  incur loss, injury, or damage as a result of the incident.
  327         b.If a department train, a freight rail operator train,
  328  and any other train are involved in an incident, the allocation
  329  of liability between the department and the freight rail
  330  operator, regardless of whether the other train is treated as a
  331  department train, shall remain one-half each as to third parties
  332  outside the rail corridor who incur loss, injury, or damage as a
  333  result of the incident; the involvement of any other train shall
  334  not alter the sharing of equal responsibility as to third
  335  parties outside the rail corridor who incur loss, injury, or
  336  damage as a result of the incident; and, if the owner, operator,
  337  or insurer of the other train makes any payment to injured third
  338  parties outside the rail corridor who incur loss, injury, or
  339  damage as a result of the incident, the allocation of credit
  340  between the department and the freight rail operator as to such
  341  payment shall not in any case reduce the freight rail operator’s
  342  third-party-sharing allocation of one-half under this paragraph
  343  to less than one-third of the total third party liability.
  344         5.Any such contractual duty to protect, defend, indemnify,
  345  and hold harmless such a freight rail operator shall expressly
  346  include a specific cap on the amount of the contractual duty,
  347  which amount shall not exceed $200 million without prior
  348  legislative approval; require the department to purchase
  349  liability insurance and establish a self-insurance retention
  350  fund in the amount of the specific cap established under this
  351  paragraph; provided that no such contractual duty shall in any
  352  case be effective nor otherwise extend the department’s
  353  liability in scope and effect beyond the contractual liability
  354  insurance and self-insurance retention fund required pursuant to
  355  this paragraph; and provided that the freight rail operator’s
  356  compensation to the department for future use of the
  357  department’s rail corridor shall include a monetary contribution
  358  to the cost of such liability coverage for the sole benefit of
  359  the freight rail operator.
  360         (b)Purchase liability insurance, which amount shall not
  361  exceed $200 million, and establish a self-insurance retention
  362  fund for the purpose of paying the deductible limit established
  363  in the insurance policies it may obtain, including coverage for
  364  the department, any freight rail operator as described in
  365  paragraph (a), commuter rail service providers, governmental
  366  entities, or ancillary development; however, the insureds shall
  367  pay a reasonable monetary contribution to the cost of such
  368  liability coverage for the sole benefit of the insured. Such
  369  insurance and self-insurance retention fund may provide coverage
  370  for all damages, including, but not limited to, compensatory,
  371  special, and exemplary, and be maintained to provide an adequate
  372  fund to cover claims and liabilities for loss, injury, or damage
  373  arising out of or connected with the ownership, operation,
  374  maintenance, and management of a rail corridor.
  375         (c)Incur expenses for the purchase of advertisements,
  376  marketing, and promotional items.
  377  
  378  Neither the assumption by contract to protect, defend,
  379  indemnify, and hold harmless; the purchase of insurance; nor the
  380  establishment of a self-insurance retention fund shall be deemed
  381  to be a waiver of any defense of sovereign immunity for torts
  382  nor deemed to increase the limits of the department’s or the
  383  governmental entity’s liability for torts as provided in s.
  384  768.28. The requirements of s. 287.022(1) shall not apply to the
  385  purchase of any insurance hereunder. The provisions of this
  386  subsection shall apply and inure fully as to any other
  387  governmental entity providing commuter rail service and
  388  constructing, operating, maintaining, or managing a rail
  389  corridor on publicly owned right-of-way under contract by the
  390  governmental entity with the department or a governmental entity
  391  designated by the department.
  392         (18)(17) Exercise such other functions, powers, and duties
  393  in connection with the rail system plan as are necessary to
  394  develop a safe, efficient, and effective statewide
  395  transportation system.
  396         Section 3. This act shall take effect upon becoming a law.