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OPERATING
AGREEMENT between THE RHODE ISLAND
DEPARTMENT OF TRANSPORTATION and OLD COLONY & NEWPORT RAILWAY AGREEMENT made this ___________ day of _________ 2004, 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 nonexclusive use of the Newport Secondary Line (NSL) by OCNRR. Agreement is for two (2) years, beginning ________, 2004 and expiring on ______, 2006. WHEREAS, the Newport Secondary Line (NSL) is 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 )NSL) by Rhode Island Department of Transportation (RIDOT) by agreement dated 3-24-99 and any subsequent operating agreements(s).NDT has the exclusive right to operate a dinner train type of operation that includes food, entertainment and beverages (alcohol and non-alcohol) upon the NSL.NDT shall have the exclusive authority to qualify all crews, dispatching of trains and the establishment of the operation rules and practices for both the NDT and OCNRR operations upon the NSL. WHEREAS, the Old Colony & Newport Railway is a Rhode Island not for profit 501 (C) 3 corporation which operate a regularly scheduled scenic train on the Newport Secondary Line, WHEREAS, OCNRR is a Rhode Island not for profit 501 C (3) corporation and may be allowed to operate a nonexclusive volunteer sight seeing train service that shall not include the sale of food, beverages (alcohol and non-alcohol) and entertainment upon the NSL and in accordance with this operating agreement. All other uses are reserved to RIDOT. 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 Train (NDT), WHEREAS, in the interests of safety, efficiency and growth, RIDOT wishes to coordinate the NDT and OCNRR use of and maintenance of the NSL, WHEREAS, RIDOT will enter into two separate operating agreements with the OCNRR and the NDT to delineate the use, control, and maintenance of the NSL, THEREFORE, the parties agree as follows: I. OPERATIONS: Operations will conform to the Rules set forth:
1.
"Rules
for the governance of the Operating Department Newport Secondary RR" - 3rd Edition
dated March 1st, 2004, The OCNRR remains under the operational
jurisdiction[i] of
the Superintendent of Railroad Operations[ii] All of the Old Colony & Newport Railway crew will be properly F.R.A. trained and certified[iii] by the OCNRR prior to performing their assigned duties without direct supervision. Proof of the annual F.R.A. certificates shall be submitted to RIDOT and NDT.
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: 1. NDT
shall dispatch trains in accordance with the published timetables (see exhibit
A and B). 2. All
scheduling shall be coordinated between the NDT and OCNRR on an annual basis. 3. Proposed
time tables for the next operating season shall be exchanged between the
parties on or before January 1st of each year of this agreement. 4. In the
event that there is a conflict between NDT and OCNRR with the operating
schedules, as set forth in the published timetables or charter operations, the
NDT shall have operational priority on the track. 5. OCNRR
shall load and unload passengers from the platform at the Depot at 19 America
Avenue, Newport, Rhode Island,
provided, however, the parties may mutually agree to load and unload
passengers at other locations to be designated. 6. The ‘spotting’ of railroad car(s) at the depot will not deny OCNRR access to passenger platforms 2 and 3 7. The OCNRR will not operate on Easter Sunday, Mother’s Day, and Father’s Day. III. TRAINING and QUALIFICATION: Each operating entity shall be responsible, in accordance with FRA rules, to train and certify the their crews.These include engineers, brakeman, conductors, and other operating members. Proof of annual F.R.A. certificates shall be submitted to RIDOT. 1. In the best interests of the RIDOT, the Newport Secondary Line, and the operating entities, the entities may enter into joint training sessions. 2. The OCNRR, where minors are involved as crew members, 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 It is the OCNRR’s intention to help RIDOT, and the Newport Dinner Train, with the engineering and planning oftrack and signal maintenance on the Newport Secondary Line, where resources exist.
V. PAYMENT OF RENT In compensation for the rights and privileges under this Agreement, OCNRR hereby agrees and covenants to pay the RIDOT as rent during the Term hereof, 10% of its Gross Revenue.[iv] “Gross Revenue” means
all sales made and services rendered at the Premises from the OCNRR service. VI. FINANCIAL STATEMENTS a) Annual Statements: Throughout the Term of this Agreement the OCNRR will submit to RIDOT within one hundred twenty (120) days of the close of the 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, the OCNRR will submit to RIDOT a balance sheet as at the end of the previous calendar month and statement of income and cash flows for such month and with supplemental schedules sufficient to permit RIDOT to verify by audit (compiled by a certified public accountant). < [v] VII. RECORDS OCNRR will keep adequate and accurate accounting books and records for the Term, sufficient to document all Gross Revenue. The State will 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 same does not interfere with the conduct of OCNRR ’s business. All records will be maintained and no books or records as herein provided will be destroyed during the Term 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 the 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. The parties [RIDOT and OCNRR] may amend this agreement in writing. The term of this agreement will be two years beginning on November 19, 2004 and expiring at midnight on the same date in 2006. Upon the expiration of the two (2) year term of this Operating Agreement, OCNRR will automatically become a month-to-month tendency until negotiated otherwise. In the event of a disagreement and conflict between OCNRR and the NDT, or between OCNRR and RIDOT over any provisions(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 bunding upon all parties and that final decision shall not be appealable . Notices will be given to the following:
32 Ocean View Avenue Tiverton, RI 02878
RIDOT c/o David Sasso Real Estate Division Two Capitol Hill Providence RI 02903-1124
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 the NDT and the State of Rhode Island and the Department of Transportation as named additional insured to the insurance policies. OCNRR shall hold harmless the NDT and State of Rhode Island and the Department of Transportation from any and all legal causes of actions resulting from OCNRR actions. 1. OCNRR will have fully self-contained sewage system(s) for lavatory facilities. 2. No sewage waste mater or ‘gray water’ will be disposed of on the facilities. 3. Waste oil will be temporarily stored at Melville at the Temporary Oil Storage site.
The OCNRR will 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. 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. The OCNRR shall not bring any additional equipment onto the
NSL, or any other RIDOT property unless authorized in writing by the Director
of the Department of Transportation, or his designee; OCNRR is authorized to initiate restoration of the ‘MWR’ siding [mile marker 5.5] in order to eventually relocate its inventory. OCNRR shall have one (1) year from the commencement date of this Operating Agreement to restore “MWR” siding [mile marker 5.5] and relocate their locomotive, train cars, and any and all inventory.[vi] None of the existing sidings, operational or
non-operational, will be removed without the consent of the parties, which approval will not be unreasonably
withheld. If future expansion of the Newport Dinner Train requires
more siding space,the parties agree to
discuss the options with RIDOT and develop a plan to find adequate siding space
to enable the OCNRR to continue it’s operation. Any disputes will be settled by the RIDOT.Any such decisions by the Director shall be final. OCNRR shall be responsible for the electricity, track inspections, and crossing inspections for the months of January thru March. Copies of inspection reports shall be forwarded to the NDT
and RIDOT, for their files. IN WITNESS WHEREOF, we have hereunto set our hand on this ___________day of November, 2004 __________________________ ____________________________ Donald G. Elbert, Jr. Executive Director National Railroad Foundation & Museum, Inc. d/b/a Old Colony & Newport Railway __________________________ ____________________________ James Capaldi P.E. Director of RIDOT Old Colony & Newport Railway will be allowed to run its
regularly scheduled services every Sunday at 11:45 am and 1:45 pm.
except on Easter Sunday, Mother’s
Day, and Father’s Day, as well as, June 12th and 19th. Winter Runs
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, RI.
Charters and Special Events
Old Colony & Newport Railway
will be allowed to run charters and/ or special events during the months of
January thru March.The charters and / or
special events shall be site seeing / historical train service that shall not
include the sale of food, beverages, (alcohol and non-alcohol), and
entertainment.[vii] During the remaining months of the
year, the OCNRR will 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. Scheduled Charters
The following 2005 – 2006 charters
have already been scheduled for the OCNRR:
* no parking required at depot |
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EndNotes [i] Operational jurisdiction would need to be further defined. [ii] Superintendent of Railroad Operations is not herein defined but is assumed to be a NDT employee. [iii] ‘Proper F.R.A. training and certification’ would need to be further defined. [iv] Payment of 10% of gross revenues to RIDOT is a new requirement. Prior to this time, OCNRR ‘compensated the State of Rhode Island by providing approximately 500 hours per year of ‘Maintenance of Way’ services, including, but not limited to maintenance of the Depot and surrounding properties, cleaning of the railway, regularly clearing the over growth of brush, maintenance of signals, and installation of ties. [v] The cost of a Certified Public Accountant creating a monthly statement will be a significant, added expense. [vi] This would take 2 to 3 years and would put an additional financial burden on OCNRR of approximately $30,000. [vii] The only ‘entertainment ’ that OCNRR regularly provides is the ‘Balloon Man’ for the children. |