Amend Sunrail Deal: This train has too much baggage

[FayeforCure]

Lakelander, your analogy doesn't fly.

Rather think of yourself as a car driver on the road.
While a cop is directing traffic, you still can make a mistake and hit the car in front of you.

You better be insured for liability as the car operator!

[FayeforCure]

Ideally, they should have both, since the systems would serve different demographics.  The light rail line will be shorter, with more stops and a high frequency of service.  It will directly connect DT with the International Drive area.  Sunrail is set up to bring riders in from the surrounding counties with less service frequency.  It will connect DT with city centers in Volusia and Osceola Counties.  For Orlando, it also reduces the amount of daily freight traffic that cuts a city with limited grade separated crossings and major congestion issues in half.  

So, I don't know if it makes much sense to argue them as competing against each other, when they are planning them to complement each other.

Here is a link to information about Orlando's North/South light rail plans: http://www.sunrail.com/nslightrail.asp

Looks like the environmental impact study has been completed for the light rail system, so is it shovel ready for federal stimulus monies?
http://www.sunrail.com/documents/44.pdf

I don't think anyone is arguing that they are competing against each other, though the word out there is that nothing will be considered until the central florida cmmuter rail has been pushed through.

It would behoove Florida to have more pokers in the fire, rather than putting all our eggs in one basket.

[thelakelander]

Lakelander, your analogy doesn't fly.

Rather think of yourself as a car driver on the road.
While a cop is directing traffic, you still can make a mistake and hit the car in front of you.

You better be insured for liability as the car operator!

Do you know of any similar commuter rail deals not under the same liability provision?  Something, we could use as a proper example to follow?

[thelakelander]

Looks like the environmental impact study has been completed for the light rail system, so is it shovel ready for federal stimulus monies?
http://www.sunrail.com/documents/44.pdf

I don't think so, but I'm not sure.  Also, at this point, I'm not sure of what Orlando asked for or was granted from the federal stimulus.

I don't think anyone is arguing that they are competing against each other, though the word out there is that nothing will be considered until the central florida cmmuter rail has been pushed through.

There's nothing stopping locally funded projects from moving forward.  However, if the Sunrail deal dies because the state can't agree with a common commuter rail provision, don't expect to see new federal/state funding for commuter rail systems come on line anytime soon.

It would behoove Florida to have more pokers in the fire, rather than putting all our eggs in one basket.

I agree.  Regardless of what happens with Sunrail, we should be attempting to move forward with Amtrak and other mass transit improvements in Florida.  However, if Sunrail dies, it makes the fight for additional commuter rail across Florida, twice as difficult as it already is today.   If delay causes us to not have proper plans in place by the time Obama leaves office, this may go down as another massive missed opportunity for federal funding to improve rail in Florida.  However, it will build something nice in another state.

[FayeforCure]

I agree.  Regardless of what happens with Sunrail, we should be attempting to move forward with Amtrak and other mass transit improvements in Florida.  However, if Sunrail dies, it makes the fight for additional commuter rail across Florida, twice as difficult as it already is today.   If delay causes us to not have proper plans in place by the time Obama leaves office, this may go down as another massive missed opportunity for federal funding to improve rail in Florida.  However, it will build something nice in another state.

The delay is caused by lack of political will to work out legitimate concerns.

The GAO report was done precisely to look at commuter rail liability arrangements all over the nation. You can check their report for comparisons in the public interest.

Another item of concern is expressed here:

While we respect and commend their goal of
bringing commuter rail to Greater Orlando, we oppose this transaction and future transactions
authorized by SB 1212 that will deprive thousands of our members of their railroad jobs and
benefits.
A review of the transaction documents and responses to public records requests reveals that CSX
and FDOT specifically structured this transaction so as to abolish CSX’s legal obligation to employ
federal railroad workers protected by the collective bargaining, pension and workers compensation
rights afforded them by the federal Railway Labor Act, the federal Employers Liability Act, the
federal Rail Road Retirement Act of 1974 and the federal Interstate Commerce Commission
Termination Act of 1995.

See attached “Memorandum re Secretary’s Meeting with CSXT â€" Key
Points,” c. 2006. By transferring legal title to the State of Florida, but retaining a permanent freight
rail easement, CSX has crafted this transaction to avoid its legal obligations to employ federal
railroad workers to do critical railroad operations work including, but not limited to, signal
construction and maintenance operations and maintenance-of-way operations.
Numerous negotiation efforts to restructure the railroad labor components of this transaction to
emulate the precedence set by the Tri-Rail transaction have been repeatedly rejected by FDOT
and CSX. FDOT and CSX have made it clear that railroad worker union busting is not just a side
impact of this deal: it is a primary goal.

The Florida AFL-CIO supports mass transit projects and commuter rail that makes sense for
Florida. But the proposal before the legislature is nothing more than a sweetheart deal for a record profitable
freight rail company that includes ridding itself of labor operating costs. It is a deal
neither Florida nor the working families adversely impacted by its terms can afford.

The Florida AFL-CIO stands strongly in opposition to Senate Bill 1212 and will continue to fight for
the impacted railroad workers. We will fight for their jobs, their benefits, their rights and their
dignity.

http://blogs.orlandosentinel.com/news_politics/2009/04/aflcio-reiterates-opposition-to-sunrail.html

[FayeforCure]

Do you know of any similar commuter rail deals not under the same liability provision?  Something, we could use as a proper example to follow?

Here is "How They Do It Up North"

"Think of it this way: A tractor-trailer truck speeding out of control on Route 128, its driver drunk and barely conscious after logging 36 straight hours on the road, slams into a school bus. Who is at fault? Who pays for the damages? Under CSX's view of the world, the truck driver (assuming he lives) and the trucking company would walk away scot-free, with all the damages paid by the state Highway Department."

It is, they added, "an absurd scenario." But it is also "what CSX is asking for with no-fault liability, even in cases of gross negligence or willful misconduct.

"No-fault is bad public policy," they wrote.

McGovern said that, in Massachusetts (as is the case in Florida), CSX "has asserted that this no-fault provision is the industry standard, but that turns out to be incorrect."'NO INDUSTRY STANDARD'A report released two weeks ago by the Government Accountability Office, the independent investigating arm of Congress, "dispels the notion that no-fault liability, even in cases of gross negligence or willful misconduct, is the industry standard. In fact, there is no industry standard."

Furthermore, the report noted that a U.S. Court of Appeals ruled that "it was against public policy to indemnify for gross negligence and willful misconduct because this could undermine rail safety."

Back up North, two of the state's top elected officials see things differently: "Our efforts in Massachusetts should be guided by the simple notion that people and companies are responsible for their own actions."

It is, they said, "just common sense."

If that's the way they do it up North, send a trainload of it to the Southland.

http://www.theledger.com/article/20090405/NEWS/904055008/1398?Title=CSX-Rail-Responsibility-How-They-Do-It-Up-North

[thelakelander]

So in Massachusetts, commuter rail trains run on CSX lines without the liability agreement proposed for Sunrail?

[thelakelander]

CSX/Sun Rail Commuter Train Approval Looks Possible

By Joe Follick
LEDGER TALLAHASSEE BUREAU

An amendment to allow county commissioners to approve a $2 per day car rental surcharge may push the CSX/Sun Rail commuter train in greater Orlando to narrow approval in a key showdown vote on Wednesday.

Sen. Chris Smith, R-Fort Lauderdale, said last week that he needed that amendment, which would dedicate the car rental revenue to local commuter train efforts, before he would vote for the plan. He said South Florida’s SunRail needs the guaranteed revenue to maintain operations. But the governor’s office and others said they would only support the plan if it were subject to voter approval.

In a classic Tallahassee compromise, the amendment tomorrow would allow county commissioners to approve the surcharge with a voter referendum to follow in the next general election.

Smith said today that it appeared the change would be enough to earn his support at a seven-member committee on Wednesday. He was widely viewed as the deciding vote.

The Senate Transportation and Economic Development Committee will consider SB 1212 Wednesday morning. The bill provides the change in law that would create a “no fault” insurance agreement between CSX and the state, leaving each party solely responsible for damages incurred on their equipment, employees and passengers regardless who was at fault.

http://www.theledger.com/article/20090414/NEWS/904149962

[thelakelander]

Some major points of contention on SunRail

By Dan Tracy and Aaron Deslatte | Sentinel Staff Writers
April 15, 2009
CLAIM: Opponents say the $308 million the federal government is supposed to provide isn't guaranteed.

FACT: There is no federal guarantee for SunRail. But U.S. Rep. John Mica, R- Winter Park, said the only thing standing between SunRail and the federal money is state approval.

"I just need 21 votes in the Senate," Mica said. He and U.S. Rep. Corrine Brown, D-Jacksonville, who chairs the House transportation subcommittee, both promise to obtain the money quickly.

Mica said the money will come in two allotments: $178 million to pay for SunRail's first phase, between DeBary in Volusia County and Sand Lake Road in south Orange County, to open in 2011.

Then he will seek $129 million for the second stage, from DeBary to DeLand to the north and Sand Lake Road to Poinciana in Osceola County in the south. That's scheduled to be running by 2013.

CLAIM: Foes say if the federal money doesn't come, local governments will have to make it up.

FACT: Constantine has inserted language into the bill (SB 1212) saying no state or local money can be spent until the federal funds arrive.

CLAIM: Some foes, such as Sen. Gary Siplin, D-Orlando, say this money could be spent on schools.

FACT: That can't happen. All the money â€" which comes from gasoline taxes and other dedicated sources â€" can be spent only on transportation. Most of it won't even be collected for a few years; it's simply being allocated now.

For example, DOT officials said the $432 million payment to CSX to buy the SunRail tracks, improve other CSX tracks and move a rail yard to Winter Haven will come from basically two sources: $173 million in bonds that are not yet sold, and $259 million from gas and real-estate taxes that will be collected through 2016.

In a two-page finance sheet, DOT says it has only about $34 million in its current budget for the project. DOT will also spend $173 million (down from $214 million) to build bridges over five rail overpasses; two are done, and two are under construction. DOT says it would have to build these projects with or without the CSX deal. All are funded out of the agency's tax collections.

"I don't have that in cash yet," DOT Assistant Secretary Kevin Thibault said.

CLAIM: Supporters say the money being paid to CSX has been allocated to Central Florida's transportation district and can't be diverted to road projects elsewhere.

"Most of it is coming from District 5," Constantine told Senate Democrats on Tuesday.

FACT: Only a sliver of the funding â€" just $51 million of the $432 million being paid to CSX Corp. â€" is coming from District 5 dollars. An additional $380 million is from what the department calls its "strategic intermodal system" funding, comprising fuel taxes and documentary-stamp-tax revenues from real-estate sales. Those dollars could go anywhere in the state.

CLAIM: Opponents say that after lawmakers in 2005 allocated more than $1 billion to be used for "growth management" projects â€" either transit or road construction â€" DOT squirreled away that money and is using it to finance the CSX deal.

Dockery said she plans to show at today's hearing what DOT has done with that money.

FACT: Those growth-management dollars have been committed to transportation projects across the state, including SunRail; a $1.8 billion-and-growing Port of Miami Tunnel project; and a widening of Interstate 595 in Broward County. SunRail is the single largest beneficiary, but DOT couldn't say how much of that money was being devoted to SunRail.

"I'm paying for projects with it," Thibault said. "I have every dollar programmed [committed to projects]."

http://www.orlandosentinel.com/news/local/orl-sunrail-problems-041509,0,7474724.story

[FayeforCure]

So in Massachusetts, commuter rail trains run on CSX lines without the liability agreement proposed for Sunrail?

lakelander, yes, that is what the article seems to indicate.

This is what the GAO found:

In the February report, the GAO found a variety of arrangements. Some were specific about what would and would not be protected. One agreement, for instance, specifically excluded "conduct that is taken with conscious disregard for or indifference to the property or safety or welfare of others."

Many agreements protected freight companies from all liability in commuter accidents. The GAO noted that several courts of law and the Surface Transportation Board have said that practice goes against the public interest.

Oberstar said he planned to have his committee study the issue to try and find a fair way to decide who should be responsible in commuter-freight train accidents.

"Some of these agreements make no exception for cases of gross negligence or willful misconduct," he said. "This is an unacceptable practice."

Reporter Lindsay Peterson can be reached at (813) 259-7834.

http://www2.tbo.com/content/2009/mar/30/gao-report-queations-rail-agreements/news-breaking/

Why should we burden the tax-payer with the negligence of for-profit industry? It's that kind of wasteful, expensive set up, favoring for-profit industry at public expense that makes a project suspect.

April 15, 2009

SunRail stalls in Senate committee

"But questions have raged in Tallahassee about whether the state should commit to the costs at a time when it faces serious budget problems and whether it should agree to controversial legal liability language that’s required for the sale of the rail corridor by CSX Transportation to happen.

Those questions continued to dominate today, as Senate opponents introduced multiple amendments met to address what they consider to be a badly flawed deal.......

Under the proposal, SunRail would be responsible for any commuter damages inside the rail corridor, regardless of who caused the accident that led to the damages.

SunRail’s responsibility for shielding CSX would be limited to $200 million, and the state would buy that amount of liability insurance.

The liability agreement has proved to be a major stumbling block for SunRail."

"You completely remove the incentive for avoiding negative behavior," said Sen. Ronda Storms, a Republican from Valrico who opposed the bill.

http://www.news-journalonline.com/NewsJournalOnline/breakingnews/sunrail041509.htm

[thelakelander]

So in Massachusetts, commuter rail trains run on CSX lines without the liability agreement proposed for Sunrail?

lakelander, yes, that is what the article seems to indicate.

This is what the GAO found:

In the February report, the GAO found a variety of arrangements. Some were specific about what would and would not be protected. One agreement, for instance, specifically excluded "conduct that is taken with conscious disregard for or indifference to the property or safety or welfare of others."

This does not confirm if CSX has a different arrangement with Mass. or any other state.  It just suggests that there are arrangements out there, which I'm sure there are, depending on a variety of factors that could be different from the Florida deal.  Is there an easy way to further detail the variety of arrangements found by the GAO?  For example, identifying the freight company, state and commuter rail system name.

[FayeforCure]

This does not confirm if CSX has a different arrangement with Mass. or any other state.  It just suggests that there are arrangements out there, which I'm sure there are, depending on a variety of factors that could be different from the Florida deal.  Is there an easy way to further detail the variety of arrangements found by the GAO?  For example, identifying the freight company, state and commuter rail system name.

Whether or not CSX has a different arrangement with Mass. or not is irrelevant, except that their assertion that their preferred indemnity arrangement is a "standard" industry arrangement is patently false. Besides,..... putting the tax payer on the hook for mistakes a private company makes is contrary to being good public stewards of public resources ie tax-payer revenues.

CSX and the DOT have said the agreement is typical of most across the country. Castor questioned that, and she and Oberstar asked the GAO to study rail agreements in other places where commuter and freight trains use the same tracks.

In the February report, the GAO found a variety of arrangements. Some were specific about what would and would not be protected. One agreement, for instance, specifically excluded "conduct that is taken with conscious disregard for or indifference to the property or safety or welfare of others."

and

Furthermore, the report noted that a U.S. Court of Appeals ruled that "it was against public policy to indemnify for gross negligence and willful misconduct because this could undermine rail safety."

I know you are not trying to justify bad public policy,........even if it may have occurred in the past

[thelakelander]

This does not confirm if CSX has a different arrangement with Mass. or any other state.  It just suggests that there are arrangements out there, which I'm sure there are, depending on a variety of factors that could be different from the Florida deal.  Is there an easy way to further detail the variety of arrangements found by the GAO?  For example, identifying the freight company, state and commuter rail system name.

Whether or not CSX has a different arrangement with Mass. or not is irrelevant, except that their assertion that their preferred indemnity arrangement is a "standard" industry arrangement is patently false. Besides,..... putting the tax payer on the hook for mistakes a private company makes is contrary to being good public stewards of public resources ie tax-payer revenues.

After viewing the GAO report list, it does appear to be pretty common.  In fact, its better off than several systems, such as Virginia's VRE, New Mexico's Rail Runner Express, Baltimore's MARC and MBTA's Worcester line, where commuter rail covers all liabilities. 

I know you are not trying to justify bad public policy,........even if it may have occurred in the past.

I'm not justifying bad public policy.  I'm just looking at the entire picture from a holistic viewpoint.  When all of the dominoes are evaluated, killing the entire deal, which also damages other commuter rail plans across the state, over a standard provision when freight is in the driver's seat, just isn't worth it to me.  Especially, with Sunrail in charge of dispatching and day freight traffic being limited.

[thelakelander]

April 15, 2009

SunRail stalls in Senate committee

"But questions have raged in Tallahassee about whether the state should commit to the costs at a time when it faces serious budget problems and whether it should agree to controversial legal liability language that’s required for the sale of the rail corridor by CSX Transportation to happen.

Those questions continued to dominate today, as Senate opponents introduced multiple amendments met to address what they consider to be a badly flawed deal.......

Under the proposal, SunRail would be responsible for any commuter damages inside the rail corridor, regardless of who caused the accident that led to the damages.

SunRail’s responsibility for shielding CSX would be limited to $200 million, and the state would buy that amount of liability insurance.

The liability agreement has proved to be a major stumbling block for SunRail."

"You completely remove the incentive for avoiding negative behavior," said Sen. Ronda Storms, a Republican from Valrico who opposed the bill.

http://www.news-journalonline.com/NewsJournalOnline/breakingnews/sunrail041509.htm

Its funny how the media reports the same event.

SunRail pushed off track -- temporarily
Wednesday, April 15, 2009

TALLAHASSEE (News 13) -- The big vote scheduled for Wednesday in a critical Senate committee on the state's $1.2 billion commuter rail project in Central Florida is being delayed.

But SunRail supporters appear to have made the deal to get the rail through to the Senate floor.

The Senate Transportation and Economic Development Appropriations Committee spent Wednesday morning listening to a slew of amendments to the bill.

Opponents of SunRail, led by Lakeland Sen. Paula Dockery, tried to kill the commuter rail with amendments and substitute language, but in the end, lost their bid with a number of 4 to 3 votes by the committee.

The swing vote came from Sen. Chris Smith of West Palm Beach. Smith wanted a dedicated funding source for South Florida's Tri-Rail, and he got it with the addition of a $2 a day rental car surcharge.

Each county would have to approve that tax by a super-majority vote of the county commission, and then a referendum of voters.

Smith sided with SunRail backers on all the critical votes Wednesday.

But time ran out for the Transportation Appropriations Committee meeting, and chairman Sen. Mike Fasano, R-New Port Richey, said some 73 people had signed up to speak to the committee and they would get their chance.

The committee is expected to meet again Monday, but Fasano said the Senate calendar may be changed and they may meet again on Saturday.
This story is from our Bright House Networks partner, Central Florida News 13.

http://www.baynews9.com/content/36/2009/4/15/460881.html?title=SunRail+pushed+off+track+--+temporarily+

[FayeforCure]

I'm not justifying bad public policy.  I'm just looking at the entire picture from a holistic viewpoint.  When all of the dominoes are evaluated, killing the entire deal, which also damages other commuter rail plans across the state, over a standard provision when freight is in the driver's seat, just isn't worth it to me.  Especially, with Sunrail in charge of dispatching and day freight traffic being limited.

You know, it's too bad the GAO report had to prove that indeed the indemnity arrangement is bad public policy and not standard practice.
There aren't just two options: killing it or passing it.

All along there has been the adjustment option, to make it more public friendly. Admittedly it's a little late in the game, but the issues with the set-up aren't new,...........they've just become more critical in an economy that cannot afford the luxury of give-aways at tax payer expense.

I think it would actually have set a better precedent if the central florida rail deal had been more protective of the taxpayer, thus making other state commuter deals less suspect as well.

Angelica Palank also did not have the chance to speak to lawmakers on Wednesday. Her husband was killed in a 1991 Amtrak crash in South Carolina attributed to CSX's failure to maintain the track. The resulting $63.8 million settlement was paid by taxpayer-funded Amtrak because of a liability agreement.

"I am distraught," she said as the committee room emptied on Wednesday. She said CSX's history of "wantonly and intentionally removing" personnel responsible for safety are "things that our policy makers ought to hear instead of arguing with FDOT, who obviously wants this more than they want their dinner tonight … To not be hearing some of these truths, I think, allows lawmakers to vote from their ivory towers."

http://www.theledger.com/article/20090415/NEWS/904155034/1410?Title=Senators-Delay-Vote-On-Commuter-Rail