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AGREEMENT REGARDING SOFTWARE LICENSING AND IMPLEMENTATION,
AND ONGOING SUPPORT AND MANAGEMENT SERVICES
THIS AGREEMENT is made and entered into effective as of this 1st day of
December, 1998, by and between RAILCAR MANAGEMENT, INC. ("RMI"), a Georgia
corporation, and FLORIDA EAST COAST INDUSTRIES, INC. ("FEC"), a Florida
corporation.
W I T N E S S E T H
WHEREAS, RMI has developed railroad application software ("RS/4000",
"ISS/4000" and "AXIS", collectively the "Software"), which is described in
Exhibit A hereto, and RMI wishes to provide services using the Software to
railroads in North America; and
WHEREAS, FEC desires that RMI provide such services and other computer
related services to FEC, and RMI wishes to provide such services to FEC;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and accepted, the
parties agree as follows:
1. SYSTEM IMPLEMENTATION SERVICES. On December 1, 1998, or as soon as
practicable thereafter, RMI and FEC will begin the System Implementation
Services as described in this Section 1, and said services shall continue until
(i) the System Implementation Services are fully performed as hereinafter
provided, or (ii) termination occurs as specified in Section 5 hereof.
(a) Description. The System Implementation Services have two phases: (1)
System Enhancement and Interface Build, and (2) System Implementation and
Training. The first phase, System Enhancement and Interface Build, includes
making enhancements to the Software and developing certain system
interfaces. The enhancements and interfaces to be developed during this
phase are shown in Exhibit F hereto. During the System Implementation and
Training phase, RMI and FEC will install the Software at FEC, train the
system users and begin "Initial Production Operation" (as defined herein).
The "System Implementation Services" are defined in Exhibit B hereto.
(b) Initial Production Operation. The parties agree to jointly work towards
"Initial Production Operation" of the Software at FEC, and acknowledge that
the duties defined in this Section 1 require the mutual cooperation, support
and efforts of both parties. "Initial Production Operation" is defined as
the capability for actual use of the Software in a production environment
for FEC with reasonably substantial completeness of the functionality
specified in both Exhibit A and Exhibit F. Accordingly, RMI and FEC promise
and agree to cooperate and perform all duties, tasks, and services required
herein in a timely manner using their best efforts and acting in good faith.
(c) Ownership. FEC agrees that all materials developed pursuant to this
Section 1 including, but not limited to, any software and related
documentation which may be developed specifically for FEC through the
efforts of RMI's employees or its agents (whether or not compensated) in
cooperation with FEC shall be the exclusive property of RMI, and FEC shall
have no interest therein except as expressly licensed as herein provided.
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RMI may, at its discretion, require FEC's agents and employees participating
in the System Implementation Services and otherwise involved with the
Software to execute a statement (reasonably satisfactory to FEC)
acknowledging RMI's ownership rights as described in this Paragraph (c).
2. ONGOING SERVICES; LICENSE. Commencing on December 1, 1998, or as soon as
practicable thereafter, RMI shall provide, and FEC hereby accepts, I/T
Management Services, Support Services and Consulting Services (collectively the
"Ongoing Services") as defined in this Section 2. Subject to the termination
provisions of Section 5 hereof, the initial term of this Agreement with respect
to the Ongoing Services as stipulated herein shall be for sixty (60) months. At
the end of the initial term and each extension term, the term shall be
automatically extended for an additional period of twelve (12) months
("extension term") unless notice of cancellation is given by either party at
least sixty (60) days prior to the end of the initial term or any subsequent
extension term.
(a) I/T Management Services. RMI's I/T Management Services hereunder will
provide certain management and coordination of FEC's information technology
function on an ongoing basis for the following areas and as specified by the
parties hereto from time-to-time: data center, computer applications, vendor
oversight, system interfaces, information technology personnel, and year
2000 issues. The "I/T Management Services" are described in Exhibit C
hereto.
(b) Support Services. RMI will provide Support Services to FEC to maintain
the Software, provide certain changes and new releases to the Software, and
provide telephone support to users of the Software on an ongoing basis.
Additionally, RMI may provide certain enhancements and on-site support for
the Software as mutually agreed upon by RMI and FEC. The "Support Services"
are described in Exhibit G hereto.
(c) Consulting Services. During the term of the Ongoing Services as set
forth above, RMI may provide additional services (herein referred to as
"Consulting Services") as mutually agreed upon by RMI and FEC on a
project-by-project basis.
(d) License. RMI hereby grants to FEC, during the term of this Section 2 and
subject to the terms and conditions of this Agreement (including, without
limitation, the termination provisions contained in Section 5 hereof), a
non-exclusive, non-assignable, non-transferable and world-wide right and
license to use the Software (including any source code) for its own internal
operational purposes. FEC shall be deemed to own only the magnetic or other
physical media on which the Software is originally or subsequently recorded
or fixed, but an express condition of this license is that at no time shall
FEC acquire any ownership of the Software recorded on the original media
copies or subsequent copies of the Software, regardless of the form or media
in or on which the original and other copies may subsequently exist. This
license is not a sale of FEC's copy of the Software or any subsequent copy.
At the time of delivery of the Software and any enhancements, a copy of the
source code will be delivered therewith.
3. JOINT EFFORT. The parties agree that the duties defined in Section 1 and
Section 2 require the mutual cooperation, support and efforts of all parties.
Accordingly, RMI and FEC promise and agree to cooperate and perform all duties,
tasks, and services required herein in a timely manner using their best efforts
and acting in good faith. In the event that any of the personnel of any party
assigned to perform duties hereunder becomes unable to perform the tasks
anticipated by this Agreement by reason of death, prolonged sickness, disability
or otherwise, the assigning party will as promptly as practicable (and in no
event more than thirty (30) days from the
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beginning of such inability to perform) replace such personnel.
During the term of Section 1 or Section 2, the following additional provisions
shall apply:
(a) RMI will assign certain of its qualified personnel to the tasks
described herein on a full-time or part-time basis, at the offices of RMI or
FEC or both, as deemed reasonably necessary by RMI. The personnel of RMI so
assigned will be chosen solely by RMI and, except as specifically provided,
may be replaced or reassigned at RMI's sole discretion. Such personnel shall
be and remain the employees or independent contractors of RMI, subject to
the supervision and discipline of RMI alone; they shall not be the
employees, servants or agents of FEC for any purpose and neither RMI nor FEC
shall make any representation to any person to the contrary. RMI will have
the sole responsibility for payment and administration of their wages,
salaries and other compensation, employment taxes and tax deductions, fringe
benefits, workers' compensation coverage and all other incidents of the
employer-employee and principal/agent relationship without exception.
(b) In the event of misconduct or unsatisfactory performance, FEC may
request replacement of personnel assigned by RMI to this project. Such
requests will not be unreasonably denied.
(c) FEC agrees to make available, at no cost to RMI, reasonable access to
all management, supervisory and other FEC personnel, as RMI may reasonably
require to perform its duties hereunder in a timely fashion.
(d) FEC, with the assistance of RMI, will provide to RMI all data of FEC
reasonably required by RMI to perform its duties pursuant to this Agreement.
(e) RMI and FEC acknowledge and agree that RMI is an independent contractor
to FEC providing personnel and services to accomplish those tasks and
services set forth in this Agreement.
4. PRICE AND PAYMENT
(a) System Implementation Services. In consideration of the performance of
the System Implementation Services described in Section 1, FEC agrees and
promises to pay RMI fees in accordance with the "Implementation Services
Fees" shown in Exhibit E hereto.
(b) Management Services Fees. FEC agrees to pay RMI fees for the I/T
Management Services and Support Services rendered by RMI hereunder as
described in Section 2 monthly in advance in accordance with the fee
schedule set forth in Exhibit E (the "Management Services Fees"). RMI may
change the Management Services Fee schedule each April 1 during the term to
reflect any increase or decrease from the previous calendar year in the
"Employment Cost Index" for compensation, private industry white-collar
workers, as published by the United States Department of Labor, Bureau of
Labor Statistics (or any reasonably comparable successor or alternative
index). FEC shall be notified of any changes in the Management Services Fees
at least 30 days prior to effectuation of such changes; provided, however,
there shall be no increase in such fees payable during the first twelve (12)
months under this Agreement.
(c) Consulting Services Fees. RMI will provide its Consulting Services to
FEC on such terms and conditions as mutually agreed upon between the
parties.
(d) Payment Terms.
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(i) FEC agrees to pay the fees as indicated above, as well as all fees
then in effect for all other services requested by FEC in writing and
provided by RMI in addition to services set forth herein (RMI's fees for
additional services are shown in Exhibit E), at the time specified
herein, or if not specified, within thirty (30) days of receipt of RMI's
invoice.
(ii) FEC will be responsible for and reimburse RMI for or pay directly
all reasonable travel, long distance telephone, living and out-of-pocket
expenses incurred by RMI personnel in providing services under this
Agreement. This does not include travel and living expenses incurred by
RMI employees designated as full time residents of Jacksonville, Florida
while in Jacksonville or St. Augustine, Florida.
(iii) A late charge of one and one-half percent (1-1/2%) per month may,
at the discretion of RMI, be due and payable on any amount not received
by RMI by the prescribed due date.
5. TERMINATION
Section 1 of this Agreement shall terminate at the end of its respective term as
provided for in such section, without affecting the validity or continuing
effectiveness of the remainder of this Agreement.
With regard to the entire Agreement, this Agreement shall continue in full force
and effect until terminated as follows:
(a) If both Section 1 and Section 2 of this Agreement have terminated as
provided therein, then the entire Agreement shall terminate; or
(b) In the event either party makes a general assignment for the benefit of
creditors or files a voluntary petition in bankruptcy or petitions for
reorganization or arrangement under the bankruptcy laws, or if a petition in
bankruptcy is filed against either party, or if a receiver or trustee is
appointed for all or any part of the property and assets of either party,
the other party may terminate this Agreement; or
(c) Either party (the "Nondefaulting Party") may terminate this Agreement if
it reasonably determines in good faith that the other party has failed to
comply with any of the terms and conditions of this Agreement (including,
without limitation, non-payment) and has failed to cure such failure within
sixty (60) days after receiving written notice from the Nondefaulting Party
describing such failure in reasonable detail; or
(d) Should FEC desire to discontinue the Ongoing Services and Section 2 of
this Agreement, FEC may at any time, upon prior written notice to RMI of at
least ninety (90) days, terminate this Agreement by paying RMI the "Adjusted
Termination Fee" as shown in Exhibit D hereof at the time such notice is
given.
If termination under this Section 5: (i) is pursuant to Section 5(a) hereof, or
(ii) is pursuant to Section 5(b) or Section 5(c) hereof and is not initiated by
RMI, or (iii) is pursuant to Section 5(d) hereof and all Adjusted Termination
Fees are paid by FEC to RMI, then FEC may request within thirty (30) days
following such termination, and RMI shall grant immediately upon such request, a
perpetual, fully-paid, non-assignable, non-transferable, world-wide and
non-exclusive right and license to use the Software AS IS, solely for its own
internal operational purposes (the "License"), with no further liability,
warranty or obligation whatsoever on the part of RMI (including, without
limitation any obligation to render services with respect to or to update the
Software),
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and FEC may, at its option, receive the source code for the Software,
all subject to all conditions set forth in Sections 6, 7 (provided that all
obligations with respect to confidential information that is not a trade secret
shall continue in full force and effect until two (2) years after the
termination of the License), 9 and 10 hereof.
All obligations of either party accrued through termination, in whole or in
part, for any reason whatsoever, shall survive such termination. Upon
termination of this Agreement, except as otherwise provided herein, FEC shall
through its best efforts and to the best of its knowledge, destroy (if directed
by RMI) or return any trade secrets or confidential information of RMI in FEC's
possession.
6. OWNERSHIP. FEC agrees that all software and related documentation, whether
existing or developed pursuant to this Agreement, including, but not limited to,
any custom software and related documentation which may be developed
specifically for FEC through the efforts of RMI's employees or its agents
(whether or not compensated) in cooperation with FEC shall become a part of the
Software for all purposes under this Agreement and be the exclusive property of
RMI, and FEC shall have no interest therein except as expressly provided for
herein. The term "Software" as used in this Agreement shall include all such
software and related documentation developed pursuant to this Agreement.
7. CONFIDENTIALITY.
(a) FEC acknowledges and agrees that the Software and Ongoing Services
include and will include proprietary "trade secrets" and confidential
information of RMI, developed at substantial effort and cost to RMI, the use
and disclosure of which must be continuously controlled. FEC also
acknowledges that RMI may disclose to FEC other proprietary "trade secrets"
and other confidential information of RMI pertaining to the use, operation,
development and technical specifications of the Software and Ongoing
Services. FEC and its employees, agents and representatives shall maintain
the confidentiality of such trade secrets and confidential information of
RMI using any and all reasonable measures. Except as expressly permitted in
this Agreement, FEC and its employees, agents and representatives shall not
use for their own benefit, publish or otherwise disclose to others any of
such trade secrets and confidential information. The provisions of this
Paragraph shall remain in full force and effect with respect to any trade
secrets of RMI so long as such information disclosed by RMI to FEC remains a
trade secret; and with respect to any information disclosed by RMI to FEC
which is confidential information but not a trade secret, this Paragraph
shall continue in full force and effect until two (2) years after the
termination of this Agreement.
(b) RMI acknowledges and agrees that all business and financial information,
development plans and strategies, data and sources of data, names of and
personnel information about FEC, its customers and suppliers, are and will
be proprietary "trade secrets" and confidential information of FEC,
developed at substantial effort and cost to FEC, the use and disclosure of
which must be continuously controlled. RMI also acknowledges that FEC may
disclose to RMI other proprietary "trade secrets" and confidential
information of FEC. RMI shall maintain the confidentiality of all
proprietary information of FEC using any and all reasonable measures. Except
as expressly permitted in this Agreement, RMI shall not use for its own
benefit, publish or otherwise disclose to others any of such trade secrets
and confidential information. The provisions of this Paragraph shall remain
in full force and effect with respect to any trade secrets of FEC so long as
such information disclosed by FEC to RMI remains a trade secret; and with
respect to any information disclosed by FEC to RMI which is confidential
information but not a trade secret, this Paragraph shall continue in full
force and effect until two (2) years after the termination of this
Agreement.
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(c) The obligations under this Section shall not apply to any information
which the party who received it from the other can establish: (i) has
rightfully entered the public domain; (ii) was independently developed by
such party prior to receiving it from the other party; or (iii) has been
rightfully received from a third party without an obligation to keep it
confidential.
(d) The provisions of this Section shall survive any termination of this
Agreement, in whole or in part, for any reason whatsoever.
8. WARRANTY.
THE FOLLOWING WARRANTIES ARE THE SOLE AND EXCLUSIVE WARRANTIES OF RMI HEREUNDER.
ANY AND ALL OTHER CONDITIONS OR WARRANTIES WHATSOEVER, ORAL OR WRITTEN, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY
IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, ARE HEREBY EXCLUDED AND DISCLAIMED.
(a) With respect to the Ongoing Services provided herein, it will be the
responsibility of FEC, and FEC hereby agrees, to verify the accuracy of the
inputted data contained in the system. The sole and exclusive remedy of FEC
for any defect or imperfection in a report, record or other accounting, or
for breach of warranty or other breach of this Agreement with respect to the
Software or Ongoing Services (including year 2000 compliance as set forth in
Section 8(c) below) shall be, at RMI's option, (1) the correction of the
defect or imperfection (provided RMI is notified of the defect or
imperfection within 30 days of the date the report, record or other
accounting was generated) or the cure of the breach, or (2) refund of the
charges paid for the report, record or matter in question for the month or
months affected by the defect or imperfection or breach. In no event shall
RMI's liability pursuant to this Agreement for any claim arising hereunder
exceed the amount paid by FEC hereunder during the six month period
preceding the claim.
(b) Commencing upon completion of the System Implementation Services and
continuing for six (6) months thereafter, RMI warrants: that the Software
will perform substantially in accordance with functional specifications on
the specified operating environment as set forth in Exhibit A hereto; that
all units of the Software will be fit for the ordinary purposes for which
such software is used; that the Software will be of average and even kind
and quality within each unit and among all units; and that the Software
units will conform to any sample of such software tested and approved by
FEC. RMI's entire liability and FEC's sole and exclusive remedy in the event
the Software fails to perform as warranted shall be the best efforts by RMI
to correct program defects by repair or replacement.
(c) RMI warrants that the Software will operate correctly with regard to
year 2000 operation, meaning that the Software will provide reasonably
correct operation of its material functionality in comparing dates,
calculating dates and sorting or sequencing dates before, during and after
December 31, 1999. RMI will perform a "Y2K Software Test" of the Software
within 60 days following Initial Production Operation at a date and time to
be mutually agreed upon by RMI and FEC. The Y2K Software Test, using
sufficient test data and accessing all major Software functionality, will
demonstrate the capability of the Software to comply with the above
definition. Should the initial or any subsequent Y2K Software Test fail,
then RMI shall use its best efforts to make the necessary modifications to
the Software to correct such failure, and then perform the Y2K Software Test
again at a mutually agreeable date and
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time. This process shall continue until the Y2K Software Test is
successfully completed. RMI and FEC hereby agree that the successful
completion of the Y2K Software Test shall fully satisfy all of RMI's
warranties regarding year 2000 compliance of the Software, and RMI shall
have no further obligation or liability of any kind with respect thereto.
(d) RMI warrants that it has the full corporate power and authority and
right to grant the usage to the Software (and any sublicenses related
thereto) as herein provided and that the Software does not infringe any
United States or international copyright, patent, trade secret or trademark
rights or other proprietary rights of any third parties. RMI shall
indemnify, defend and hold FEC harmless from any and all losses,
liabilities, judgments, awards and costs, including attorneys' fees, arising
out of or related to any claim or cause of action which may be made by any
third person or entity against FEC for violation or infringement of a
patent, pending patent application, trade secret, copyright, trademark,
license or proprietary right with respect to the Software. If the Software
should become the subject of a successful claim of infringement of a trade
secret, trademark, copyright or patent, RMI's entire liability and FEC's
sole and exclusive remedies shall be for RMI, at its option, to use its best
efforts to procure for FEC the right to continue using the Software, or to
replace it or modify it to make it noninfringing, and for RMI to be
responsible for payment of any judgment or costs awarded in a suit or
proceeding asserting a successful infringement claim.
(e) RMI's warranties as set forth above are the only warranties made with
respect to the Software and services provided hereunder and, except as
otherwise may be agreed to by the parties in writing, will not be enlarged,
diminished or affected by, and no obligation or liability will arise or grow
out of, the rendering of technical programming or other advice or service in
connection with the Software licensed to FEC or otherwise hereunder. RMI
shall not be obligated under these warranties to correct defects (a) unless
FEC has allowed RMI to install all corrections for the Software from RMI a
reasonable time in advance of encountering the defect, (b) attributable to
improper or incorrect usage or operation of the Software, (c) caused by
FEC's alteration, modification, enhancement or conversion of the Software,
or (d) arising from hardware related problems or third party software
problems.
9. LIMITATION ON CONSEQUENTIAL DAMAGES.
IN NO EVENT EXCEPT FOR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE AND UNDER NO
CIRCUMSTANCES WILL RMI BE LIABLE TO FEC OR ANY OTHER PERSON OR ENTITY FOR ANY
SPECIAL, COLLATERAL, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF
ANY NATURE OR KIND WHATSOEVER, WHETHER BY REASON OF INDEMNIFICATION OR
OTHERWISE, IN CONNECTION WITH OR ARISING BY REASON OF: (i) THE PROVISION OF THE
SOFTWARE, SERVICES AND RELATED DOCUMENTATION, OR (ii) RMI'S (AND ITS AGENTS',
EMPLOYEES' AND REPRESENTATIVES') PERFORMANCE OR FAILURE TO PERFORM HEREUNDER
(AND ANY ACTS OCCURRING IN CONNECTION THEREWITH) OR THE BREACH OF ANY WARRANTY
OR BREACH OF ANY OF THE PROVISIONS OF THIS AGREEMENT, OR (iii) YEAR 2000 ISSUES,
OR (iv) ANY IMPERFECTION OR DEFECT IN THE SOFTWARE OR SERVICES OR RELATED
DOCUMENTATION, OR IN ANY REPORT, DOCUMENT OR ACCOUNTING GENERATED IN CONNECTION
WITH THE SERVICES, REGARDLESS OF WHETHER BASED IN TORT OR IN CONTRACT.
The provisions of this Section 9 shall survive any termination of this
Agreement, in whole or in part, for any reason whatsoever.
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10. TAXES. FEC shall pay all taxes including, without limitation, sales, use,
personal property or excise taxes, which may be imposed by a taxing authority
with respect to the Software and Ongoing Services and with respect to the use of
the Software and Ongoing Services by FEC, but specifically excluding any tax
based upon RMI's net or gross income, or imposed upon RMI in lieu of such taxes
on net or gross income, as a result of transactions under or the existence of
this Agreement, unless FEC furnishes RMI with a certificate of exemption from
payment of such taxes.
11. FORCE MAJEURE. Neither RMI nor FEC shall be liable to the other party for
any delay or failure to perform (except for the failure to pay any monies owed)
arising out of causes beyond its reasonable control, including but not limited
to riots, epidemics, unusually severe weather, fire, flood, war, acts of the
enemy, no availability of hardware, embargoes or work stoppages, labor disputes
or strikes. RMI and FEC shall notify each other forthwith upon hearing of any
event which may result in any delay or failure to perform.
12. MISCELLANEOUS.
(a) Binding Effect. This Agreement shall inure to the benefit of and shall
be binding upon the parties hereto and their successors and assigns
permitted pursuant to Section 12(c) hereof.
(b) Governing Law. This Agreement shall be deemed to be made in, and in all
respects shall be interpreted, construed and governed by and in accordance
with, the laws of the State of Georgia.
(c) Assignment. Neither party may assign this Agreement or any interest
herein or part hereof without the prior written consent of the other party
except to corporate successors to a party (by way of merger, consolidation,
reorganization or sale of all or substantially all of the assets of a party)
which do not materially diminish the financial status of the party.
(d) Expenses. RMI and FEC shall bear their own respective expenses incurred
in connection with the preparation and execution of this Agreement.
(e) Headings. The Section and Paragraph headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
(f) Notices. All communications provided for hereunder shall be in writing
and shall be delivered in person, sent by confirmed telecopy or private
overnight courier, or deposited in the United States mail, first class,
registered or certified, return receipt requested, with proper postage
prepaid (or deposited with such comparable international mail service as is
then available) and,
(i) If to RMI, addressed to:
Railcar Management, Inc.
Suite 303
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: President
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(ii) If to FEC, addressed to:
Florida East Coast Industries, Inc.
Xxx Xxxxxx Xxxxxx
Xx. Xxxxxxxxx, Xxxxxxx 00000
Attention: President
Notices shall be deemed given when received.
(g) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
(h) Entire Agreement and Waiver. This Agreement embodies the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter. This Agreement may be modified only by a
written instrument signed by each of the parties hereto. No waiver of any
term, provision or condition of this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be, or shall
constitute, a waiver of any other provision hereof, whether or not similar,
nor shall such waiver constitute a continuing waiver, and no waiver shall be
binding unless executed in writing by the party making the waiver.
(i) Severability. The unenforceability or invalidity of any provision or
provisions of this Agreement shall not render any other provision or
provisions herein contained unenforceable or invalid.
(j) Export Laws and Regulation. FEC shall not transfer or use the Software
or System Implementation Services or Ongoing Services or any related
documentation (or any part thereof) outside the United States or Canada
where such transfer or use is prohibited or is regulated by any law or
regulation of the United States of America without the prior approval
required by such law or regulation.
(k) Exhibits. Each and every Exhibit to this Agreement is hereby
incorporated herein and is made an integral part hereof. Any reference
herein to "this Agreement," "herein," "hereunder" or like terms shall
include by reference the terms and provisions contained in any such Exhibit.
(l) Announcement. The cooperative arrangement between RMI and FEC for the
services described herein may be announced by either party only upon the
prior written consent of the other party.
(m) No Agency. This Agreement shall not create a partnership, joint venture,
employment or agency relationship between FEC and RMI. Neither of the
parties shall have the right to incur debts or obligations in the name of
the other party without the express written consent of that party.
IN WITNESS WHEREOF, the parties hereto intending to be legally bound have
caused this Agreement to be executed as of the date and year first above
written.
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FLORIDA EAST COAST INDUSTRIES, INC.
By: _________________________
Title:___________________
Attest: _____________________
Title: _________________
RAILCAR MANAGEMENT, INC.
By: _________________________
Title:___________________
Attest: _____________________
Title: _________________
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EXHIBIT A
This Exhibit A is made a part of that certain AGREEMENT REGARDING SOFTWARE
LICENSING AND IMPLEMENTATION, AND ONGOING SUPPORT AND MANAGEMENT SERVICES
between Railcar Management, Inc. and Florida East Coast Industries, Inc dated as
of the 1st day of December, 1998.
A. RS/4000 PRODUCT DESCRIPTION
YARD & INVENTORY CONTROL
- All main tracks, yards, TOFC/COFC facilities and sidings defined in data
base
- Maintain standing order of cars in a train or on a track
- Inquire on location of any loaded or empty car or container in system
- Produce switch lists/work orders for train crews
- Identify cars or containers containing hazardous commodities or high/wide
loads
- Proper hazardous handling instructions attached to Hazmat cars and
printed on crew work orders
- Inbound EDI consist converted to Inbound Interchange
- Car and Train movements generated between tracks and stations using
"point and shoot" methodology
- Car movement history maintained for demurrage, car hire and management
reporting systems
TRAIN OPERATIONS
- Train blocking and scheduling
- Train consists exchanged between major yards
- Train history maintained
- Automatic Setouts and scheduled downline pickups maintained
- EDI exchange of train consists with connecting carriers
INTERMODAL OPERATIONS
- Complete ramp activity including the capture of in-gate/out-gate
transactions and associated documentation
- Trailer/Container on Flat Car (TOFC/COFC) movement transactions captured
- Relationship of trailer and flat car maintained throughout the system
- Trailer/Container off-rail inventory maintained
- EDI bills of lading accepted from customers
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WAYBILL CONTROL
- Movement waybill attached to all cars/containers
- Repetitive patterns used for entry of originating loads
- Automatic reverse route capability
- Complete compliance with DOT requirements for HAZMAT
- Produce a hard copy waybill
- EDI waybill exchange with connecting carriers
- XXX xxxx of lading received from customers
- Movement waybill becomes revenue waybill
SWITCHING/MISCELLANEOUS BILLING
- Switching or miscellaneous billing automatically generated using
repetitive patterns
- Switching settlements generated against connecting carriers
- Miscellaneous billing generated against online customers
- Payable billing for items such as joint facilities or trackage rights
usage also automatically generated
- Data available for extract to A/R system
DEMURRAGE BILLING
- Uses car movement records generated by system
- Demurrage master for defining multiple tariffs or contracts
- Automatically computes demurrage charges
- Trial run permits allowances and other adjustments
- Prepares final Demurrage Invoice
OTHER FUNCTIONS
- Operator level security/restricted access
- Traffic Reports
- Query capability
B. ISS/4000 PRODUCT DESCRIPTION
AUTOMATIC RATING AND RATE MANAGEMENT
ISS/4000 accepts qualifying EDI 417 transactions from RMI's RS/4000
transportation system. With ISS/4000, the rating process is a robust "Rate
Management System." The structure of the rating data store in ISS/4000 allows
for multiple rates and divisions based on commodity, weight, and other factors.
Additionally, the
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automatic rate selection logic has been enhanced to increase the probability
that the system will automatically select the correct rate. If the system is
unable to select the correct rate, it will narrow the choices, and interactively
display them to the user. These features result in a system that can
automatically rate a high percentage of waybills, with little or no human
intervention, for railroad cars as well as intermodal equipment.
FREIGHT BILLING
ISS/4000 contains full featured Freight Billing modules. This includes an
improved audit trail of all changes made to a waybill and the ability to issue
Correction and Credit Bills.
ISS PROCESSING
[ ] create and send revenue waybills to ISS in EDI 426 format
[ ] exchange other EDI message within the scope of ISS processing,
including 426 revenue waybills, functional acknowledgements, CISS
(Central ISS) report requests, and report responses
[ ] send status inquiries and status responses
[ ] import transportation waybills in EDI 417 format
[ ] print or view responses from CISS (864)
CASH APPLICATION
All freight bills generated by ISS/4000 will be posted to the Cash Application
module. As payments are received, they are easily posted, and up to six levels
of aging can then be tracked by the system. The Cash Application module supports
the issuance of various customer statements, including Past Due notices.
TRIAL BALANCE
The Trial Balance maintains a detailed history of all transactions that affect
the freight revenue that is ultimately posted to the General Ledger. This
includes automatic updates from the rating process, any corrections made through
re-rating, adjustments made from within the Cash Application module, ISS and
abstract interline settlements, as well as manual adjustments.
This file can be used to produce revenue estimates and various Trial Balance
reports sorted by road and/or type of traffic. A complete audit trail of
original and adjusting entries can be maintained historically for any period of
time.
C. AXIS PRODUCT DESCRIPTION
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AXIS combines the data from all RMI products (IRCS, RS/4000, ISS/PC, ISS/4000,
and Car Hire Payable Accounting) into a centralized "Data Warehouse." The AXIS
database has the ability to store historical data for one railroad or multiple
railroads, making it possible to analyze traffic patterns over multiple
properties. The combination of a well designed relational database, and modern
data manipulation tools, allows users of AXIS to perform "what if" analysis on a
number of variables that impact a railroad's performance.
AXIS can provide the foundation for a corporate-wide management information
system. Much more than a historical reporting tool, AXIS provides a module for
Budget Analysis.
Utilizing Client/Server technology to store the data on a file server, access to
the AXIS database is provided to multiple management users through a
Windows-based graphical front-end. AXIS requires a Windows NT File Server
running Microsoft SQL Server, with client PC's running Windows 95 or Windows NT.
In case of any conflict between this Exhibit and the body of this Agreement as
it relates solely to the product descriptions, this Exhibit is controlling and
not expanded by the body of the Agreement.
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EXHIBIT B
This Exhibit B is made a part of that certain AGREEMENT REGARDING SOFTWARE
LICENSING AND IMPLEMENTATION, AND ONGOING SUPPORT AND MANAGEMENT SERVICES
between Railcar Management, Inc. and Florida East Coast Industries, Inc dated as
of the 1st day of December, 1998.
SYSTEM IMPLEMENTATION SERVICES DESCRIPTION
The System Implementation Services are logically divided into two phases: (1)
System Enhancement and Interface Build, and (2) System Implementation and
Training.
1. SYSTEM ENHANCEMENT AND INTERFACE BUILD
RMI will design, code and test the development projects listed in Exhibit F
attached hereto. The functionality provided by these development projects will
be delivered by RMI as part of the Software during this phase, and are included
in the definition of "Initial Production Operation".
FEC personnel may design, program, and/or test certain additional portions of
the Software as mutually agreed to by RMI and FEC.
2. SYSTEM IMPLEMENTATION AND TRAINING
During the System Implementation and Training phase, RMI and FEC will perform
the following tasks:
- RMI, with assistance from FEC, will develop the "Implementation Plan"
which will specify the tasks and responsibilities necessary to implement
the Software in production operation at FEC.
- Based upon data and information supplied by FEC, RMI shall determine
the additional computer hardware, if any, (including any and all
communications hardware and software, systems software, physical
planning requirements, and similar items) required at FEC's location to
support processing for the Software as contemplated under this
Agreement. FEC shall be responsible for the acquisition, at FEC's
expense, and timely installation of said hardware in its offices in
Jacksonville, Florida.
- RMI shall assist FEC in determining the computer hardware (including
any and all communications hardware and software, systems software,
physical planning requirements, and similar items) required at FEC's
locations to support the Software as contemplated under this Agreement.
FEC shall be responsible for the acquisition, at FEC's expense, and
timely installation of said equipment in its offices.
- FEC, with the assistance of RMI, shall: (A) establish the data
communications required to operate the Software for the service
contemplated herein, (B) input the initial data records required to
establish the various master and other files required for processing
operation, and (C) verify the communications and data correctness and
completeness.
- RMI shall deliver the current version of the Software to FEC, and FEC
shall install said Software on computer systems at FEC's offices. RMI,
with assistance from FEC, shall verify the correctness and
B.1
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completeness of the current version of the Software.
- RMI will assist FEC in defining and building master files for the
Software.
- RMI will provide user training to be performed as mutually determined
by RMI and FEC, and assist FEC in the effort to execute the
Implementation Plan to implement the Software.
- FEC, with the assistance of RMI, shall perform such system testing and
parallel operation of the Software as is reasonably necessary to verify
that RMI is ready to begin the Ongoing Services specified in Section 2
hereof.
In case of any conflict between this Exhibit and the body of this Agreement as
it relates solely to the System Implementation Services description, this
Exhibit is controlling and not expanded by the body of the Agreement.
B.2
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EXHIBIT C
This Exhibit C is made a part of that certain AGREEMENT REGARDING SOFTWARE
LICENSING AND IMPLEMENTATION, AND ONGOING SUPPORT AND MANAGEMENT SERVICES
between Railcar Management, Inc. and Florida East Coast Industries, Inc dated
as of the 1st day of December, 1998.
MANAGEMENT SERVICES DESCRIPTION
In general, RMI will provide, using reasonable business efforts, ongoing
management, coordination and general oversight of FEC Information Technology
(I/T) requirements. This includes the following areas:
- Current FEC day-to-day I/T management issues
- Transportation System Software (RS/4000, ISS/4000 and AXIS)
- System Interfaces to Ramp System (OASIS), Digicon Train Control,
X. X. Xxxxxxx
- FEC I/T personnel (including coordination with RMI I/T personnel)
- FEC Data Center and general I/T infrastructure
- Budget management (annual preparation and ongoing management)
- Availability, back up and recovery plans
- Vendor management (all I/T related vendor/suppliers to FEC)
- Strategic I/T planning
- Management and coordination of the Y2K Software Test as herein defined.
Additionally, RMI shall manage and coordinate FEC's efforts relating to
FEC's overall year 2000 compliance, solely with respect to computer
hardware and software systems managed by RMI, by providing management
of identification, remediation and testing related to said compliance.
IN ADDITION TO ANY OTHER LIMITATION ON LIABILITY SET FORTH IN THE
AGREEMENT, THE PARTIES AGREE THAT THE MAXIMUM LIABILITY OF RMI WITH
RESPECT TO THE YEAR 2000 MATTERS DESCRIBED HEREIN, WHETHER ARISING IN
CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE PORTION OF THE
PREVIOUSLY PAID MANAGEMENT SERVICES FEES ALLOCABLE TO YEAR 2000
MATTERS, WHICH THE PARTIES ACKNOWLEDGE AND AGREE SHALL EQUAL 10% OF
SAID FEES.
RMI will appoint a senior manager experienced in data center management,
information technology, RMI's Software products and their operation, personnel
management and budget preparation and management. This manager will be resident
in Jacksonville, Florida and the work location will be the offices at the
current FEC data center in Jacksonville, Florida.
Specifically, there are five major areas of work effort for RMI as it relates to
FEC's I/T requirements: (1) General Management, (2) Data Center Management, (3)
Applications Management and (4) I/T Personnel Management. (5)The fifth area is
participating in an 18 month project called FEC First. This project provides the
modification and implementation of the RMI Software and building the system
interfaces required.
C.1
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(1) GENERAL MANAGEMENT:
RMI will be responsible for the development of an annual I/T Operations Plan and
an I/T Budget Plan, and the reasonable business efforts adherence to both. This
will include monthly reporting on progress toward accomplishing the annual plans
as well as data center operations statistics, major accomplishments and issues.
This also includes progress reports on the FEC First Project.
(2) DATA CENTER MANAGEMENT:
RMI will be responsible, on a reasonable business efforts basis, for day-to-day
operations including establishing and documenting standard operating procedures,
production schedule management and physical facilities management. This also
includes hardware management, capacity planning, network management, systems
availability, and back-up and recovery plans. In addition, RMI will establish
the appropriate help desk operation and coordinate FEC/RMI data center(s)
management and manage all I/T vendor relationships.
(3) FEC APPLICATIONS MANAGEMENT:
RMI will perform a current applications inventory audit to determine: (i) the
applications that remain (peer systems) after the Software is implemented, (ii)
the applications replaced by the Software, and (iii) the applications that will
not be used. RMI will, on a reasonable business efforts basis, develop a plan
for each major peer system for a maintenance and enhancement schedule, and
personnel and budget requirements.
RMI will also manage, on a reasonable business efforts basis, ongoing
application development at FEC including the following tasks: translate FEC user
requests into I/T projects, quantify and prioritize the projects, gain FEC/RMI
concurrence and sequence projects into overall plans.
(4) I/T PERSONNEL MANAGEMENT:
This area will require a great deal of cooperation between FEC and RMI senior
management, as some personnel resources will remain FEC employees, some will be
independent contractors, as well as some vendor/suppliers will continue to have
direct agreements with FEC. These personnel will be taking day-to-day and
overall work direction from RMI.
RMI, on a reasonable business efforts basis, will direct and coordinate all
personnel-related resources related to I/T at FEC. RMI will combine the current
FEC personnel, contractors and RMI personnel into one logical work team for the
first year of the contract. During that year, RMI and FEC will determine the
appropriate placement/ownership (FEC or RMI) of the current and future
resources, be they FEC, RMI or contracting/consulting resources. This includes
the management of all vendors associated with FEC I/T such as ARCO, IBM, ICS,
OA, etc.
Notwithstanding anything in this Exhibit C or this Agreement to the contrary,
FEC agrees to indemnify and hold harmless, on an after-tax basis, RMI and its
agents and employees from and against any and all claims, liabilities, losses,
actions and expenses (including attorney fees) suffered or incurred by RMI
arising out of, or relating to, FEC's employees and independent contractors or
relationships between FEC and its employees and independent contractors
including, without limitation, payroll taxes, workers'
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compensation, unemployment, discrimination claims of any kind and wrongful
termination claims.
(5) FEC FIRST PROJECT MANAGEMENT:
This project involves the replacement of the current FEC transportation
management system with the RMI Software and connecting those products to the
OASIS ramp management products from Optimization Alternatives. RMI will oversee
the implementation of both. A great deal of teamwork and coordination will be
required from between RMI and FEC Management and all parties involved. RMI is
responsible for that coordination.
RMI, on a reasonable business efforts basis, will be responsible to understand
and document affected applications and develop an implementation plan for the
following areas; hardware requirements, data file conversions, application
staging plan, application testing and quality assurance, capacity and systems
testing and cut-over plan. In addition, RMI, on a reasonable business efforts
basis, will ensure all applications are provided for after the implementation as
well as the ongoing maintenance and enhancement schedule for the RMI and OA
products.
In case of any conflict between this Exhibit and the body of this Agreement as
it relates solely to the Management Services description, this Exhibit is
controlling and not expanded by the body of the Agreement.
C.3
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EXHIBIT D
This Exhibit D is made a part of that certain AGREEMENT REGARDING SOFTWARE
LICENSING AND IMPLEMENTATION, AND ONGOING SUPPORT AND MANAGEMENT SERVICES
between Railcar Management, Inc. and Florida East Coast Industries, Inc dated as
of the 1st day of December, 1998.
ADJUSTED TERMINATION FEE
The Adjusted Termination Fee shall be computed from the following table:
TERMINATION DATE AMOUNT
---------------- ------
On or before 1/1/00 $ 1,216,719
On or before 1/1/01 $ 978,957
On or before 1/1/02 $ 757,111
On or before 1/1/03 $ 518,304
On or before 11/30/03 $ 258,389
D.1
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EXHIBIT E
This Exhibit E is made a part of that certain AGREEMENT REGARDING SOFTWARE
LICENSING AND IMPLEMENTATION, AND ONGOING SUPPORT AND MANAGEMENT SERVICES
between Railcar Management, Inc. and Florida East Coast Industries, Inc dated as
of the 1st day of December, 1998.
IMPLEMENTATION SERVICES FEES
RMI will perform the System Enhancement and Interface Build services described
herein for a fixed fee of Eight Hundred Sixty-Two Thousand Five Hundred Dollars
($ 862,500) U.S. Dollars. RMI will invoice FEC, and FEC will pay RMI, in
accordance with the following schedule:
- $ 287,500 upon execution of this Agreement
- $ 287,500 on January 15, 1999
- $ 287,500 on "Initial Production Operation" (as defined in the Agreement)
RMI will perform the System Implementation and Training services described
herein for a fixed fee of Two Hundred Fifty Thousand Dollars ($250,000) U.S.
Dollars. RMI will invoice FEC, and FEC will pay RMI, in accordance with the
following schedule:
- $ 125,000 on February 15, 1999
- $ 125,000 upon completion of the services
Additionally, RMI and FEC hereby agree to the following incentive payments:
1. SYSTEM MODIFICATIONS. Should RMI complete development of all enhancements
specified in Exhibit F hereto (excluding the "OASIS Interface" modification)
and the Software is ready for Initial Production Operation (as defined
herein) on or before April 30, 1999, then FEC shall pay RMI an additional
incentive payment as follows:
If on or before April 15, 1999, $100,000, or
If on or before April 30, 1999, $50,000.
If said development is not complete on or before April 30, 1999, then RMI
shall pay FEC the sum of $1,000 per day (up to a maximum of sixty (60) days)
for each day beyond April 30, 1999 until said development is complete.
2. OASIS INTERFACE. Should RMI complete development of the "OASIS Interface"
modification specified in Exhibit F hereto and said enhancement is ready for
Initial Production Operation (as defined herein) on or before April 30,
1999, then FEC shall pay RMI an additional incentive payment as follows:
If on or before April 15, 1999, $100,000, or
If on or before April 30, 1999, $50,000.
If said development is not complete on or before April 30, 1999, then RMI
shall pay FEC the sum of $1,000 per day (up to a maximum of sixty (60) days)
for each day beyond April 30, 1999 until said development is complete.
E.1
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MANAGEMENT SERVICES FEES
The Management Services Fees are as follows:
- $134,750 per month from 12/1/98 through 1/31/00 (14 months)
- $122,500 per month from 2/1/00 through 11/30/03 (46 months)
E.2
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EXHIBIT F
This Exhibit F is made a part of that certain AGREEMENT REGARDING SOFTWARE
LICENSING AND IMPLEMENTATION, AND ONGOING SUPPORT AND MANAGEMENT SERVICES
between Railcar Management, Inc. and Florida East Coast Industries, Inc dated as
of the 1st day of December, 1998.
SOFTWARE ENHANCEMENT AND INTERFACE LIST
A. OASIS INTERFACE/INTERMODAL ENHANCEMENTS
Involves the over-all concept of replacing the RIMS interface with an OASIS
interface. Enhancements are:
1. TEMPORARY INTERFACE TO RIMS
RMI will build a temporary interface to the RIMS system. Given the extremely
short life of this requirement, the interface will contain only the minimal
functions necessary to run the ramp and railroad until the OASIS system is
installed.
2. RS/4000 WILL EXCHANGE RAMPING INFORMATION FROM OASIS
RMI will accept a ramping event from OASIS. This event would update inventory
and history in RS/4000.
3. SYNCHRONIZED INTERMODAL INVENTORY
This involves maintaining the inventory of trailers/containers, railcars and
chassis in both systems. RMI will be sending a track list of cars to OASIS for
ramping and de-ramping. Events will occur in OASIS that influence RS/4000's
inventory as well as movement history for reporting.
4. ENHANCED INTERMODAL INVENTORY REPORTS
Many reports currently in use in RIMS will be re-written in either OASIS or
RS/4000. Some of these include reports similar to the Online Inventory report,
customs reports, and equipment disposition reports.
5. BAD ORDER TRAILER/CONTAINER REPORTING
This enhancement will result in bad order information being maintained in both
OASIS and RS/4000. RS/4000 will pass the bad order information along with the
equipment as it moves over the railroad. The initial effort is to expand the
databases to record and pass this information. Automated notification for bad
order equipment to customers or the maintenance department is a separate phase.
6. ENHANCED CREDIT CHECKS/CREDIT HOLD
F.1
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This enhancement involves using the customer master to determine if a piece of
equipment is on hold due to credit problems. Checks will be made when
trailers/containers move both in and out gate. Equipment on hold will be marked
in inventory and a message written to a new "on hold" queue for further work.
7. RAIL/INTERMODAL NOTIFICATIONS
This area involves automatically faxing notifications to the consignee or
drayage firms based on certain events. These events would either be fed via
OASIS or car/train movements in RS/4000. The customer master will be expanded to
determine which type of notification via fax is required.
8. ENHANCED CHASSIS INVENTORY
OASIS provides a method of maintaining a chassis inventory. RS/4000 will pass
and receive chassis info in conjunction with OASIS.
9. SWITCHING/DETENTION INTERFACE FOR INTERMODAL
This interface involves passing information from OASIS up to RS/4000 for the
purpose of preparing detention and miscellaneous charges. A separate item is
listed in this document to cover the actual modifications necessary to handle
the billing in these new areas.
B. RAIL YARD/TRAIN OPERATION ENHANCEMENTS
1. ADDITIONAL SWITCHLISTS AND TRAINLISTS
Several new switchlists and/or minor changes to existing switchlists and
trainlists will be added to the base RS/4000 system
2. RAILCAR NOTIFICATION ENHANCEMENTS
This enhancement provides for automatically faxing notifications to the
consignee for arrivals or constructive placement, similar to the notifications
for intermodal. The customer master would possibly be expanded to determine
which type of autofax is required. Also needed for railcars.
3. DIGICON INTERFACE
FEC using a Train Control system that requires information from RS/4000. Digicon
will send RS/4000 a request for info and RS/4000 will in turn send back train
info such as tonnage, length, and number of cars and crew.
4. EDI TRAIN CHECK
This concept involves adding some checks to trains and consists so that
hazardous edits are more stringent. Units that fail the checks go to an error
queue.
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C. MISCELLANEOUS BILLING
1. ENHANCE MISCELLANEOUS BILLING TO HANDLE INTERMODAL BILLING
Involves enhancing the incidental billing module to xxxx for several new types
of charges generated by intermodal moves. OASIS will pass along information such
as flips, in-gate and out-gate must be passed to the RS/4000 incidental billing
module in such a manner that charges can be generated. In addition, the
movements will be passed in such a way that detention can be generated. These
charges include:
FEC chassis charges
Flips
Detention
Delays
Turn Arounds
Volume Billing
Container in yard billing
2. MODIFY DEMURRAGE BILLING FILE TO ENCOMPASS DETENTION
Involves enhancing the demurrage module to calculate detention for intermodal
equipment. Both the charges file and the master will be enhanced
3. ADD A "MISSING CHARGE QUEUE" FILE
Recognize movements that meet criteria for generating a charge. The charges go
to a suspense file for user review.
4. ADD JDE INTERFACE FOR MISCELLANEOUS BILLING
In conjunction with Freight Billing, the charges generated would be interfaced
to XX Xxxxxxx.
5. ENHANCE DEMURRAGE TO DO GROUP BILLING BY PARENT COMPANY
This enhancement will provide the ability to group demurrage invoices together
where multiple rail-served centers are owned by a parent company.
6. ENHANCE RS/4000 TO HANDLE FEC HAULAGE
Involves the over-all concept of replacing the Haulage billing module with a new
method of recognizing and calculating intermodal and rail haulage moves. In
summary, the new inbound blocking table would be used to automatically recognize
haulage moves. Haulage moves would then be invoiced using the Incidental Billing
module. TRAIN II would be modified to properly account for haulage interfaces
with the industry.
7. MODIFY INCIDENTAL CHARGE MASTER FOR HAULAGE
Expand the incidental charge master to account for items such as billing by
hitch and minimums for intermodal.
F.3
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8. ADD NEW INTERMODAL EQUIPMENT FILE
Add a new master file to indicate equipment on a unit by car type (May be able
to use existing files and expand those). Used to keep track of hitches per car
type.
9. EXPAND INBOUND BLOCKING TABLE FOR HAULAGE RECOGNITION
Expand the new inbound blocking table to be able to recognize haulage moves.
(Make sure items like interchange road, station, and car type are included in
the decision making process). The inbound blocking table, once it recognizes the
move as haulage, would apply a haulage RWC.
10. TRAIN II INTERFACE
FEC currently uses a TRAIN II reporting file to determine how haulage should be
reported. We need a detailed study in this area to make sure we are handling
this correctly.
11. NEW HAULAGE BILLING REPORTS
A new haulage report will be added to the system to permit reporting to carriers
the haulage is being made for.
D. ISS ENHANCEMENTS
1. ENHANCED RATING
Several enhancements to the rating/auto-rating enhancements including:
1. Ability to auto-rate by price authority
2. Distinguish between through and child revenue rates.
3. Add ability to use new rate based on customer reaching a volume
threshold.
2. ENHANCE REVENUE PROTECTIONS
This involves enhancing both RS/4000 and ISS/4000 so that if certain key fields
are altered in RS/4000 that ISS/4000 is somehow flagged. (For example, weight, #
of cars, route, payment method, etc.) Also, if a waybill is cancelled or deleted
this information must come across.
3. ADD NEW REPORTS
Several new reports to be identified will be required to enable the users to
work with the system. Further analysis required. Also be able to separate
reports by queue so that, for example, error reports will print only for a
specific queue.
4. JDE INTERFACE
An interface to JDE from the freight billing system will be added. This includes
the ability to not print a freight xxxx but still extract it to JDE.
5. PARENT/CHILD RATING ENHANCEMENTS
ISS/4000 will be enhanced to recognize need for and the automatic creation of
child revenue
F.4
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waybills once the parent notification waybill has been generated or received and
rated. Also have need to estimate, for revenue posting to trial balance
purposes, any rated parent notification waybill w/o a revenue child.
6. ENHANCE MISCELLANEOUS BILLING IN ISS
ISS/4000 will be modified so that Miscellaneous Billing coming from CSXT will be
ignored.
7. ISS FILE CONVERSION FROM EXISTING SYSTEM
This area involves converting FEC's current ISS files into an ISS/4000 format to
facilitate transition to the new system. The design calls for capturing all
active waybills currently in settlement cycle at ISS Central. In addition
cancelled or null settled waybills less than one year old unless they have been
re-introduced and settled will be converted.
8. EDI ENHANCEMENTS
RS/4000 will be updated to handle the EDI messages currently in use on FEC that
is not supported by RS/4000. The additional EDI messages will be supported
either through RMI's EDI handler or through the EDI handler currently in use on
FEC.
E. MARKETING/SALES/CUSTOMER SERVICE ENHANCEMENTS
1. MODIFY CUSTOMER MASTER
Provide modifications to the Customer Master to incorporate new features
required for customer service enhancements. This includes the addition of a
"parent/child" relationship. Add sales person assigned to task.
2. ADD "ON HOLD QUEUE" SCREEN
Provide a new screen that shows all units "on hold" for any reason (customs, bad
order, no xxxx). This screen can also be used to look at cars with invalid
Hazmat Bills or No Xxxx loads.
3. TRACING
Provide capability to trace all moves, intermodal or rail. RS/4000 will maintain
intermodal events for combined inventory for customer service personnel.
4. AXIS REPORTS
AXIS will be enhanced to provide FEC specific reports for marketing and sales
personnel.
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EXHIBIT G
This Exhibit G is made a part of that certain AGREEMENT REGARDING SOFTWARE
LICENSING AND IMPLEMENTATION, AND ONGOING SUPPORT AND MANAGEMENT SERVICES
between Railcar Management, Inc. and Florida East Coast Industries, Inc dated as
of the 1st day of December, 1998.
SUPPORT SERVICES DESCRIPTION
Subject to the termination provisions herein, RMI shall provide the following
"Support Services":
(1) Software maintenance. RMI shall use its best efforts to maintain the
Software to operate in conformity with all descriptions and
specifications contained in any documentation or user's manuals
furnished therewith, including all descriptions and specifications for
all improved or modified versions of the Software generally released by
RMI to other users of the Software. RMI shall use its best efforts to
correct, as soon as is reasonably practicable, all errors in the
Software discovered by FEC. In addition, to the extent that the Software
uses such standards, RMI shall use its best efforts to maintain the
Software to reasonably comply on a timely basis with prevailing railroad
industry standards published by the Electronic Data Interchange
Association or any other organization recognized as having authority to
promulgate such standards. RMI shall not be obligated to correct errors
attributable to improper or incorrect usage or operation of the Software
(a) caused by FEC's misuse, alteration, modification or conversion of
the Software, or (b) arising from hardware related problems or third
party software problems.
(2) Changes and New Releases. RMI will provide new releases of the
Software (including documentation updates) on a regular, ongoing basis
as commonly released by RMI to other users of the Software. Special
coding and manual updates for changes made between releases will be
distributed by RMI as RMI reasonably determines is needed.
(3) Telephone Support. RMI will provide reasonable telephone support to
FEC. The term "reasonable telephone support" shall not include efforts
to remedy defects in Software, which efforts shall be provided by RMI
without limitation as to time and at RMI's sole cost. The term
"reasonable telephone support" shall mean the answering of questions
requiring a reasonable amount of time, generally during the same
telephone call, and limited in the sole discretion of RMI to five (5)
hours per month (noncumulative) for all such telephone calls, after
which such services may be billed at RMI's standard hourly service rate
as shown in Exhibit E. Telephone support will be available Monday
through Friday, holidays excluded, from 8:00 A.M. to 6:00 P.M. Eastern
Time. RMI shall maintain a customer service representative on call for
emergency calls outside the normal service hours. All long distance
telephone charges will be borne by FEC.
(4) Enhancements. Enhancements to the Software will be made available
to FEC at then current market prices (as determined by reference to
amounts paid by similar users on similar computer systems). For purposes
of the preceding sentence, "enhancements" to the Software shall mean
future new software modules and major add-on features not part of the
Software as originally installed, and new capabilities or software
programs which are generally released as new or different from the
Software as originally installed; enhancements shall refer to modules or
features that provide new functionality rather than
G.1
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alterations to methodology of existing functionality.
(5) On-Site Support. Subject to availability of RMI personnel, on-site
support services shall be provided by RMI personnel at RMI's standard
per diem rates as shown in Exhibit E plus reimbursement of out-of-pocket
expenses.
(6) Custom Software. Custom software changes are not included as part of
the Support Services described herein. A "custom" software change for
purposes of this Agreement is any change or added function which is not
useful to the general marketplace or is not part of the current Software
version and release.
In case of any conflict between this Exhibit and the body of this Agreement as
it relates solely to the Support Services description, this Exhibit is
controlling and not expanded by the body of the Agreement.
G.2
