|RIDOT - OCNRR Operating Agreement|
|The following version of the Operating Agreement was presented to Old Colony & Newport Railway for signature on January 19, 2005. The bold and highlights have been added for emphasis and understanding. The red letters indicate dates that need to be adjusted.|
THE RHODE ISLAND DEPARTMENT OF TRANSPORTATION
OLD COLONY & NEWPORT RAILWAY
This Agreement is made as of this ____ day of 2004, by and between the National Railroad Foundation & Museum, Inc. d/b/a Old Colony & Newport Railway (OCNRR) and the State of Rhode Island Department of Transportation (RIDOT) for the purpose of delineating the non-exclusive use of the Newport Secondary Line (NSL) by OCNRR. The term of this Agreement is for five (5) years, beginning , 2004 and expiring on , 2009.
WHEREAS, the NSL is owned by the State of Rhode Island and located between Mile Post 30.5 at the Goat Island Connector [Gladys Bolhouse Road] in the City of Newport and a point two hundred (200’) feet west of the westerly abutment of the Sakonnet River Railroad Bridge in the Town of Portsmouth;
WHEREAS, Dinner Trains of New England, LLC/Newport Dinner Train (NDT) is the authorized operator of the Newport Secondary Line by RIDOT, by agreement dated 3-24-99 and any subsequent operating agreement;
WHEREAS, Old Colony & Newport Railway is a Rhode Island not-for-profit 501(c)(3) corporation and may be allowed to operate a non-exclusive volunteer sight-seeing train service on the Newport Secondary Line;
WHEREAS, in the interests of safety, efficiency and growth, RIDOT wishes to coordinate the activities of the Old Colony & Newport Railway and other users of the Newport Secondary Track including, but not limited to, Dinner Trains of New England, LLC/Newport Dinner (NDT);
WHEREAS, RIDOT shall enter into two separate operating agreements with OCNRR and NDT to delineate the use, control, and maintenance of the NSL.
NOW, THEREFORE, the parties agree as follows:
conform to the Rules set forth below:
II. SCHEDULING & DISPATCHING
NDT shall have the exclusive authority and responsibility to dispatch all trains and other activities, such as maintenance of way (MOW) operations on the NSL. In addition:
III. TRAINING and QUALIFICATION
Each operating entity shall be responsible to train and certify their crews in accordance with FRA rules. These include engineers, brakeman, conductors, and other operating members. Proof of the annual certification in accordance with FRA requirements shall be submitted to RIDOT and NDT on or before September 30 of each year.
1. In the best interests of RIDOT, the Newport Secondary Line, and the operating entities, the parties may enter into joint training sessions.
2. Where minors are involved as crew members, the OCNRR shall submit to RIDOT and NDT, a permission slip and waiver of liability from the parent or legal guardian of that minor.
IV. MAINTENANCE OF WAY
OCNRR shall cooperate with NDT and RIDOT in the planning and scheduling of track, signal and crossing maintenance and, within the scope of its volunteer resources, assist with such maintenance.
V. PAYMENT OF RENT
In compensation for the rights and privileges under this Agreement, OCNRR hereby agrees and covenants to pay RIDOT monthly, as rent during the Term hereof, 10% of its Gross Revenue.
“Gross Revenue” means all sales made and services rendered at the Premises from OCNRR service.
VI. FINANCIAL STATEMENTS
(a) Annual Statements
Throughout the Term of this Agreement OCNRR shall submit to RIDOT within one hundred twenty (120) days of the close of OCNRR’s fiscal year, Statement of Income together with a Statement of Gross Revenue for such year and with supplemental schedules sufficient to permit RIDOT to verify by audit.
(b) Monthly Statements
Together with its rent payments, OCNRR shall submit to RIDOT at the end of the previous calendar month a Statement of Income and Cash Flows for such month, with supplemental schedules sufficient to permit RIDOT to verify by audit at its discretion and, annually, within one hundred twenty (120) days of the close of its budget year a copy of its federal tax return.
OCNRR shall keep adequate and accurate accounting books and records for the Term, sufficient to document all Gross Revenue. The State shall have the right at any and all reasonable times to examine and audit the books and records of OCNRR, including but not limited to the business’ tax returns to the State of Rhode Island and its Federal income tax returns, so long as the same does not interfere with the conduct of OCNRR’s business. All records shall be maintained and no books or records as herein provided will be destroyed during the Term of this Agreement or for three (3) years after the termination of this Agreement, or any dispute of the parties concerning this Agreement, unless OCNRR has obtained prior written consent of RIDOT to destroy the same.
All communications involving railroad operations and maintenance between NDT and OCNRR shall be conveyed through the OCNRR Director and/or the NDT operator, to the Director of RIDOT or his/her designee.
NDT has the exclusive right to operate a dinner-train-type of operation that includes food, entertainment and beverages (alcohol and non-alcohol) upon NSL. OCNRR, as a Rhode Island not-for-profit 501(c) (3) corporation, may operate a non-exclusive volunteer sightseeing train service that shall not include the sale of food, beverages (alcohol and non-alcohol) and entertainment upon NSL and in accordance with this operating agreement. As intended herein, “entertainment” shall not include historical presentations and lectures typical of railroading period 1850 to 1950. All other uses are reserved to RIDOT.
The parties [RIDOT and OCNRR] may amend this agreement in writing.
X . TERM
The term of this agreement shall be five years beginning on ___________, 2004 and expiring at midnight on the same date in 2009. Upon the expiration of the term of this Operating Agreement, OCNRR will automatically become a month-to-month tenancy until negotiated otherwise.
In the event of a disagreement or conflict between OCNRR and NDT, or between OCNRR and RIDOT over any provision(s) of this agreement relating to the operations and maintenance of railroad services, the grieving party shall give notice, in accordance with Section 9 below, and shall submit the disagreement in writing with all appropriate evidence to the Director of the Department of Transportation, or his/her designee, for resolution, which resolution shall become the final legal decision binding upon all parties and that final decision shall not be appealable.
Notices shall be given to the following:
1. OCNRR c/o Donald G. Elbert, Jr.
32 Ocean View Avenue
Tiverton, RI 02878
2. RIDOT c/o David Sasso Real Estate Division
Two Capitol Hill
Providence, RI 02903-1124
3. Dinner Trains of New England c/o Robert J. Andrews
56 Bridge Street
Newport, RI 02840
OCNRR shall maintain liability insurance as provided for under the standard railroad insurance liability policy in amounts of not less than One Million Dollars ($1,000,000) per occurrence.
OCNRR shall include NDT and the State of Rhode Island and the Department of Transportation as named additional insured to the insurance policies.
OCNRR shall hold harmless NDT and the State of Rhode Island and the Department of Transportation from any and all legal causes of actions resulting from OCNRR actions.
XIV. WATER AND SEWAGE DISPOSAL
XV. USE OF THE DEPOT AND PARKING LOT
OCNRR shall continue to pay the costs of utilities at the depot. The Newport depot and the parking lot may be used by either or both operations.
XVI. INDEPENDENT CONTRACTORS
Any independent contractor(s) hired to provide any and all types of services shall sign a waiver of liability against RIDOT and NDT, and/or shall provide a certificate of insurance that includes RIDOT and NDT as insured.
OCNRR shall not bring any additional equipment onto NSL or any other RIDOT property unless authorized in writing by the Director of the Department of Transportation or his designee. OCNRR shall provide insurance coverage for any additional equipment.
a.) RIDOT will provide the funding for the refurbishing and restoration of “MWR” siding [mile marker 5.5] and relocation of the Depot, located in Newport, Rhode Island. RIDOT will coordinate with the State Historic Preservation Officer concerning the refurbishing and restoration of “MWR” siding [mile marker 5.5] and relocation of the Depot.
b.) OCNRR shall have 120 days from the completion date of the refurbishing and restoration of “MWR” siding [mile marker 5.5] to relocate its entire railroad operations, including locomotive(s), train cars, and any and all inventory to said siding. Failure to comply with this provision shall be considered a breach of this agreement.
XIX. TRACK INSPECTIONS, CROSSING INSPECTIONS, ELECTRICITY
OCNRR shall be responsible for the electricity, track inspections, and crossing inspections for the months of January through March during the term of this Agreement.
Copies of inspection reports shall be forwarded to NDT and RIDOT, for their files.
IN WITNESS WHEREOF, we have hereunto set our hand on this day of , 2005.
Capaldi, P.E., Director
Old Colony & Newport Railway Operating Schedule
Old Colony & Newport Railway shall be allowed to run its regularly scheduled services every Sunday at 11:45 a.m. and 1:45 p.m. except on Easter Sunday, Mother’s Day and Father’s Day, as follows:
The regularly scheduled runs start at the Newport depot and extend no further than 5 miles north of the depot to an area near Green Lane in Middletown, Rhode Island.
Charters and Special Events
Old Colony & Newport Railway shall be allowed to run charters and/or special events during the months of January through March. The charters and/or special events shall be sight-seeing/historical train service that shall not include the sale of food, beverages (alcohol and non-alcohol), and entertain-ment. As intended herein, “entertainment” shall not include historical presentations and lectures typical of railroading period 1850 to 1950.
During the remaining months of the year, the OCNRR shall be required to notify the NDT of its intention to operate any charters and/or special events no less than 14 days before the proposed departure.
The following charters have already been scheduled for OCNRR:
* no parking required at depot