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1.
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Definitions
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(a)
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·'Lessee and Lessor" shall have the meaning set forth in the first paragraph of this Agreement.
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(b)
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"Mobilization Services" shall mean those services described in Section 3 of this Agreement.
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(c)
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"Host Railroad" National Railroad Passenger Corporation (AMTRAK).
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(d)
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"LVRE" shall have the meaning set forth in the first paragraph of this Agreement.
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(e)
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"LVRE Equipment" shall mean the rolling stock used in the operation of Service, including all different classes of passenger cars (which may include business, corporate cars), all of which is listed in Exhibit A hereto.
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(f)
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"FELA" shall mean the Federal Employers Liability Act. 45 U.S.C. §51, et seq.
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(g)
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"FRA" shall mean the Federal Railroad Administration.
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(h)
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"Mobilization Schedule" shall mean that schedule set forth in Exhibit B.
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(i)
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"Party" shall mean either XREE or LVRE.
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(j)
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"Parties" shall mean XREE and LVRE collectively.
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(k)
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"Qualified" shall mean that a person has satisfied all legally required training and certification requirements for a position and possesses the background, skills and experience necessary to fulfill the duties of a job to which that person is assigned in the Service.
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(I)
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"T&E Crew" shall mean one (1) locomotive engineer and one (1) conductor provided by Amtrak for operation of Service trains if the scheduled operating time from the departure at the initial station of Los Angeles, Ca.to the arrival at the final station of Las Vegas, NV (or vice versa).
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2.
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Grant of License
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2.1
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The Intellectual Property Rights under the Agreement.
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2.2
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Scope
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2.2.1
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XREE shall only use the Intellectual Property Rights under the Agreement in its own normal business operations. Without LVRE's consent, XREE shall not use the Intellectual Property Rights under the Agreement for any other purpose or when providing services to any third party.
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2.2.2
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The License in this Agreement is effective in the United States of America territory where LVRE has granted XREE a specific territory ("Licensed Territory").XREE agrees that it will not make, or authorize, any direct or indirect use of the Intellectual Property Rights under the Agreement in any regions other than the Licensed Territory.
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2.3
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XREE's confirmation
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2.4
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Prohibitions
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2.4.1
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commit any act which affects the rights of LVRE in relation to any of the Intellectual Property Rights Under the Agreement; or
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2.4.2
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apply for the registration of any of the Intellectual Property Rights under the Agreement or any similar intellectual property right in any country or region in the world.
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3.
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XREE Services to be provided and responsibilities undertaken
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(a)
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Coordinate Train and Engine Crews.
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(b)
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Mobilization Services.
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(c)
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Managerial Control
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(d)
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Conduct of Employees
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(e)
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Control of Alcohol and Drug Use
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4.
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Obligations of LVRE
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(a)
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Equipment for Operation of Service
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(i)
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LVRE shall be solely responsible for the provision of the LVRE Equipment for the Service.
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(ii)
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Throughout the term of this Agreement, LVRE shall be solely responsible for:
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a.
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Complying with FRA and Amtrak Standard Maintenance Procedures in order to assure that the passenger coaches to be used in Service will comply with private car mechanical standards, including compliance with the requirement that the passenger coaches have a current PC-1 annual inspection and PC-5 clearance inspection.
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b.
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Obtaining any required FRA approvals of the LVRE Equipment to be used in Service, and for the performance of all FRA inspections (except for the "set and release test" and the "running brake test" which will be performed by the T&E Crew), test trains, and completion of operating, maintenance and safety plans, including but not limited to, those requirements mandated by 49 CFR Parts 223, 229, 238 and 239.
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c.
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Inspecting and maintaining the LVRE Equipment incompliance with all applicable federal, state and local laws, rules and regulations, including, but not limited to, the Americans with Disabilities Act.
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d.
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LVRE Equipment familiarity, inspection and maintenance training in compliance with all applicable federal , state or local laws, rules and regulations, including emergency evacuation training, of all personnel assigned to the Service, including, as applicable, the Amtrak T&E Crews.
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(iii)
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In the event an applicable federal, state or local law or regulation is enacted or promulgated after the effective date of this Agreement that requires modifications or upgrades to the LVRE Equipment, LVRE shall be solely responsible for complying with such requirements.
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(iv)
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XREE and LVRE shall each have the unilateral right to remove from service any unit of LVRE Equipment for safety-related defects.
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(b)
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Train Personnel Other than T&E Crews
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(i)
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XREE shall be solely responsible for providing qualified train personnel other than the T&E Crews.
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(ii)
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XREE shall be solely responsible for baggage handling, passenger announcements, passenger boarding and detraining, and deployment of ADA ramps and stairs as may be required at all stations served by Service.
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(c)
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Train Movements Other Than Scheduled Movements
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(d)
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Maintenance of Equipment
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(i)
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XREE shall retain all records and reports concerning inspection, maintenance and cleaning of the LVRE Equipment for a period of three (3) years following termination of this Agreement (except for those records that may require longer retention periods for regulatory compliance, in which case LVRE shall retain such records in accordance with such regulatory requirements) and shall make those available upon request.
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(ii)
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XREE shall ensure that all personnel assigned to the maintenance function are Qualified.
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(iii)
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XREE shall assure that all LVRE Equipment operated on trains in Service is maintained in a safe and reliable condition, that such LVRE Equipment complies at all times with Standard Maintenance Procedures and all applicable FRA, Association of American Railroads, and accepted industry standards , and that any LVRE Equipment not compliant with these standards will not be used in Service.
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(e)
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Storage of Equipment
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(i)
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XREE shall be solely responsible for providing safe storage of the LVRE Equipment (including ADA ramps and stairs) when not in use in Service.
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(ii)
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LVRE shall be solely responsible for securing the LVRE Equipment (including ADA ramps and stairs) when not in use in Service.
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(f)
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Coordination with Host Railroad
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(g)
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Provision of Food and Beverage Service
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(h)
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Substitute Service
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(i)
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Stations and/or Infrastructure Improvements
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5.
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Schedule of Service Operations
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(a)
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The initial schedules for the operation of the Service are attached hereto as Exhibit
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6.
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Risk of Liability
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(a)
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LVRE agrees to defend, indemnify and hold harmless XREE, including their respective officers, agents , employees, and subsidiaries and other third parties to the extent XREE is obligated to indemnify or hold harmless such third parties, irrespective of negligence or fault of LVRE .or such third parties, for all damage or liability for personal injury or death to any person, or damage to any property (including property of LVRE and loss of use or revenue) which would not have been incurred but for the existence of Service; provided, however, that LVRE shall have no responsibility to indemnify XREE for XREE's liability under the Employers' Liability Act (FELA) for injury or death to LVRE employees engaged directly in the operation of Service. The risk of injury or death and of FELA claims by such XREE employees is assumed by LVRE and LVRE agrees to defend, indemnify and hold harmless XREE against any FELA claims with respect to injury or death of such employees to the extent such claims are not covered by LVRE's railroad liability insurance coverage. Compensation for such risk is included in the amounts and rates agreed upon by the Parties in this Agreement.
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(b)
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Where claims are made against XREE and LVRE arising out of the same incident, the Parties shall cooperate fully and shall make all of the investigative and claims information available to each other. Any claim for indemnification by XREE or LVRE shall not be made a part of any litigation brought by a third party arising out of any claim against XREE and/or LVRE. If a dispute arises concerning the scope of XREE's or LVRE's indemnity obligations pursuant to this Section 6, such dispute shall be resolved separately pursuant to Section 11 of this Agreement.
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(c)
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LVRE agrees to defend, indemnify and hold harmless XREE including their respective officers, agents, employees, and subsidiaries and other third parties to the extent XREE is obligated to indemnify or hold harmless such third parties, irrespective of negligence or fault of LVRE ,any third parties, from and against any action, suit or other proceeding based upon a claim that the Service infringes any patent, copyright , royalty, trademark or service mark or other third party proprietary right, or involves the wrongful use of any trade secret or confidential information.
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(d)
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Neither Party shall be liable to the other Party, whether by way of indemnity or restitution or in contract or in tort (including negligence). for any indirect or consequential loss or damages or loss of revenue, loss of profit, loss of use, loss of production, or loss of contract.
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(e)
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The indemnity provisions set forth above shall survive termination of this Agreement for any reason.
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7.
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Insurance and Payment
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(a)
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Liability Insurance
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(b)
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Property Insurance
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(c)
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LVRE shall procure and maintain for the duration of this Agreement workers' compensation insurance in compliance with applicable statutory requirement and Employer's Liability Coverage in the amount of $2,000,000 per occurrence. Such insurance shall contain a waiver of subrogation in favor of XREE. LVRE shall provide satisfactory proof that it has taken out for the period covered by this Agreement full compensation insurance for all persons employed directly by LVRE to carry out the work contemplated under this Agreement all in accordance with applicable laws, rules and regulations. Further, LVRE shall require all subcontractors to obtain and maintain, for the duration of this Agreement, workers' compensation of the same type and limits as specified herein.
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8.
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Compensation
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(a)
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Payment to LVRE. In consideration for the rights and licenses granted by LVRE to XREE under this Agreement XREE shall pay to LVRE a non-refundable, creditable fee in the sum of $1,000 due and payable no later than 7 business days after the execution of said Agreement.
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(b)
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Royalties to LVRE. XREE shall pay LVRE royalties based on each train run from Las Vegas to Los Angeles roundtrip. Said royalties shall be a sum equal to 5% of the operating income from the train operations which shall be calculated pre corporate overhead.
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9.
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Disruption of Service
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10.
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Term and Termination
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(a)
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The term of this Agreement shall be from January 15, 2016 through January 14, 2046.
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(b)
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In case of a material breach by either Party of its obligations pursuant to this Agreement, and unless the Party in breach remedies such non-compliance within ten (10) days of receipt of a written notice from the non-breaching Party, the other Party may immediately terminate this Agreement. No delay or omission by a Party in the exercise of any right to terminate this Agreement or to submit an issue for resolution as provided in Section 11will impair any such power or remedy, nor will it alter or affect the rights of either Party.
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(c)
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Upon termination of this Agreement , all rights and obligations of the Parties hereunder will terminate except as otherwise stated herein and except for rights and obligations, whether determined, contingent or otherwise, which arose prior to or as a result of such termination.
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11.
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Dispute Resolution
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(a)
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In the event of a dispute by the Parties over any issue arising under or related to this Agreement. either Party may proceed with binding arbitration in the following manner:
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(i)
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The Party wishing to initiate arbitration shall notify the other in writing of its desire to submit the matter to arbitration. Such notice shall contain a statement of the issues and shall designate one arbitrator.
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(ii)
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Within fifteen (15) days of such notice, the other Party shall respond in writing by designating a second arbitrator.
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(iii)
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Within fifteen (15) days of designation of the second arbitrator, the two arbitrators designated as aforesaid shall appoint a third arbitrator to serve as chairman. If the two arbitrators so designated fail to appoint a third arbitrator within the time provided herein, or if a Party fails to appoint an arbitrator within the time provided for herein, either Party may request the Chief Judge of the United States District Court for the district in which the said Party's principal office is located to appoint an additional arbitrator.
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(iv)
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The arbitrators shall promptly hear and decide the issues submitted to them in accordance with the rules for commercial arbitration of the American Arbitration Association, giving to both Parties reasonable notice of the time and place of hearing.
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(v)
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The arbitrators, or a majority of them, shall promptly render their decision and award in writing to the Parties.
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(vi)
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Any arbitration award rendered hereunder shall be final and binding upon the Parties. Judgment upon any such arbitration award may be entered in any United States District Court having jurisdiction over the Parties.
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(vii)
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Each Party shall bear its own costs and expenses of arbitration including the cost of any expenses of the arbitrator designated by or for it. The fees of the chairman and any other remaining expenses of the arbitrators shall be borne equally by the Parties.
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(viii)
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The Parties agree that every reasonable effort shall be made to obtain the prompt resolution of disputes which are submitted to arbitration pursuant to this Agreement. The Parties further specifically agree that neither Party shall be entitled to delay the arbitration process significantly by insisting on the application of extensive procedural steps or other actions which cannot clearly be expected to improve the ability of the arbitrators to render a prompt, reasonable and fair decision and agree further that reasonable discovery requests shall not be barred by the foregoing.
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(b)
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In the event of a dispute arising under or related to an invoice or request seeking payment of any kind under this Agreement the Party disputing that amount shall timely pay any undisputed amount of the invoice or requested fee, charge or cost.
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(i)
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In the event of such a dispute only the disputed portion of the invoice and/or request for payment shall be subject to the dispute resolution process under this Agreement.
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(ii)
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The Party disputing an amount set forth in an invoice shall not be required to pay the disputed amount pending resolution of the process described in this Section; however, the undisputed amount shall be paid in accordance with the ordinary payment terms of this Agreement. Payment of or receipt of the undisputed amount may not be construed to be any admission by either Party regarding any matter arising from the disputed amount. Further, payment of or receipt of the undisputed amount does not preclude recovery of any or the entire amount paid if it is subsequently determined that a dispute exists as to the paid portion.
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(c)
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Pending resolution of a dispute as set forth under this Section 11, the Parties shall proceed diligently with the performance of this Agreement in accordance with its terms.
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13.
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Compliance with Laws
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(a)
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It is qualified to do business in the States of Delaware and Nevada and that it will take such action as, from time to time hereafter, may be necessary to remain so qualified;
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(b)
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It shall comply with all federal, state and local laws regulations and ordinances applicable to its activities and obligations under this Agreement and for operation of the Service; and
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(c)
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It shall obtain, at its expense, all licenses, permits, insurance, and governmental approvals, if any, necessary to the performance of its obligations under this Agreement and for operation of the Service.
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14.
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Notices
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| If to XREE: |
X Rail Enterprises, Inc. 3651 Lindell Road, 0482 Las Vegas, NV 89103 Attention: Wayne Bailey
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15.
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Confidential Information
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16.
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Assignment
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18.
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Governing Law
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19.
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Amendments
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