SECOND ASSIGNMENT OF AND AMENDMENT TO
THE PROFESSIONAL SERVICES AGREEMENT
FOR RADIATION THERAPY SERVICES
BETWEEN
USCC HEALTHCARE MANAGEMENT CORPORATION,
RADIATION ONCOLOGY MEDICAL GROUP, INC.
USCC MEDICAL GROUP-CA, INC.
USCMC-USCC PARTNERSHIP
AND
THE PERMANENTE MEDICAL GROUP, INC.
THIS SECOND ASSIGNMENT OF AND AMENDMENT TO AGREEMENT ("Second Assignment and
Amendment") is made and entered into as of April 1, 2001, by and between The
Permanente Medical Group, Inc., a California professional medical corporation
("TPMG"), Radiation Oncology Medical Group, a California professional medical
corporation ("ROMG"), USCC Health Care Management Corporation, a California
corporation ("USCC"), USCC Medical Group-CA, Inc., a California professional
medical corporation ("USCCMG-CA"), The USCMC-USCC Partnership, a partnership
between US Cancer Management Corporation and USCC ("PARTNERSHIP") and AuSam
Medical Group, Inc., a California professional medical corporation ("AUSAM").
I. BACKGROUND
A. USCC, ROMG, and TPMG have heretofore entered into an agreement
effective August 1, 1999, for the provision of radiation therapy Services for
Members (the "Agreement").
B. USCC, ROMG, TPMG, USCCMG-CA and PARTNERSHIP executed an Assignment and
Amendment to the Agreement on August 1, 2000, (the "First Assignment and
Amendment") in which the parties made two separate assignments of and amendments
to the Agreement. Those two assignments and amendments related to:
1. Assignment and Amendment #1 - Stockton Center
2. Assignment and Amendment #2 - San Xxxxxx, Santa Xxxx, and
Future Centers
C. The parties hereto desire to amend the Agreement in the manner
hereinafter set forth.
NOW THEREFORE, in consideration of the mutual promises set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
II. GENERAL AGREEMENTS
A. EFFECTIVE DATE. Effective April 1, 2001, except as otherwise
specifically noted below, the Agreement is amended as set forth below.
B. PRESERVATION OF TERMS. All other terms and conditions of the Agreement
are to remain the same.
C. ROMG RIGHTS AND DUTIES. In accordance with this Second Assignment and
Amendment, the parties understand and agree that ROMG will no longer retain any
rights, obligations or duties under the Agreement after August 1, 2001, except
as may have arisen prior to that date.
Amendment to the Radiation Therapy Services Agreement
TPMG, USCC, USCCMGCA, ROMG, AUSAM, USCC-USCMC Partnership
D. BINDING ON SUCCESSORS. The terms of this Second Assignment and
Amendment shall be binding on the parties' successors and assigns.
E. COUNTERPARTS. This Second Assignment and Amendment may be executed in
two or more counterparts, each constituting an original and all taken together
constituting one and the same document.
F. DESIGNATION. The parties agree that, hereinafter, all references in the
Agreement to ROMG shall now also refer to AUSAM as it pertains to obligations
and privileges of the parties for their respective centers. The term
"Contractor" shall jointly and separately refer to USCC, PARTNERSHIP, ROMG,
AUSAM and USCCMG-CA.
III. ASSIGNMENT AND AMENDMENT #3 - HAYWARD CENTER
A. THE RECITALS OF THE AGREEMENT ARE AMENDED AS FOLLOWS:
1. SECTION L is added as follows: "L. AUSAM is a California
professional medical corporation that provides outpatient radiation
oncology services. AUSAM's TIN number is: 00-0000000 and its California
Corporation number is 2334027."
2. SECTION M is added as follows: "M. USCC, ROMG and TPMG desire
to have AUSAM provide Services at the East Bay Regional Cancer Center
("Hayward Center"). At this time, ROMG desires to assign its rights,
interest and obligations under the Agreement related to the Hayward
Center to AUSAM."
B. THE TERMS OF THE AGREEMENT ARE ASSIGNED AND AMENDED AS FOLLOWS:
1. ASSIGNMENT. ROMG hereby assigns and transfers to AUSAM all
right, title and interest in and to the Agreement related to the
Hayward Center, effective August 1, 2001.
2. ACCEPTANCE OF ASSIGNMENT. AUSAM hereby accepts assignment and
transfer of all right, title and interest in and to the Agreement, and
expressly assumes all of the rights, liabilities (beginning August 1,
2001) and responsibilities of ROMG under the Agreement pertaining to
the Hayward Center and agrees to perform and be bound by all terms,
conditions and obligations of the Agreement for Services AUSAM provides
at the Hayward Center.
3. AUSAM REPRESENTATIONS AND WARRANTIES. AUSAM represents and
warrants that it (a) has the authority to execute this Second
Assignment and Amendment, and (b) has assumed all obligations and
liabilities of ROMG relating to the Hayward Center arising under or
related to the Agreement arising on or after August 1, 2001.
4. ROMG REPRESENTATIONS AND WARRANTIES. ROMG represents and
warrants that it has acquired tail insurance coverage for liabilities
arising prior to August 1, 2001, in amounts equivalent to not less than
the minimum insurance coverage required of ROMG under the Agreement
prior to assignment, and satisfactory to TPMG. ROMG represents and
warrants that it shall maintain such tail insurance in full force and
effect for a period of ten (10) years following the effective date of
this Second Assignment and Amendment. ROMG shall provide adequate
evidence of such insurance to TPMG upon TPMG's request at any time.
5. TPMG CONSENT. TPMG hereby consents to the assignment of rights
and assumption of duties described in this Article III.
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Amendment to the Radiation Therapy Services Agreement
TPMG, USCC, USCCMGCA, ROMG, AUSAM, USCC-USCMC Partnership
6. NOTICES. The parties hereby agree that all notices regarding
the Hayward Center required under the Agreement to be directed to ROMG
shall henceforth be directed to AUSAM at the following address:
AUSAM Medical Group, Inc.
c/o US Cancer Care
000 Xxxxxxx Xxxxxx Xx., #000
Xxxxxx Xxxxx, XX 00000
7. PAYMENT BY KP. The parties acknowledge and agree that all
payments due and owing from KP to ROMG pursuant to the Agreement for
the Hayward Center shall, for Services on or after August 1, 2001, be
made to AUSAM, provided, however, that disputes involving KP's payment
(a) to ROMG of amounts owing to AUSAM, or (b) to AUSAM of amounts owing
to ROMG, shall be resolved between ROMG and AUSAM without liability on
the part of KP.
IV. ASSIGNMENT AND AMENDMENT #4 -
FRESNO, SAN XXXXXX, SANTA XXXX, AND FUTURE CENTERS
A. THE RECITALS TO THE AGREEMENT ARE FURTHER AMENDED AS FOLLOWS:
SECTION N is added as follows: "N. The parties acknowledge that
PARTNERSHIP and TPMG are currently planning to develop new Service
centers in the Santa Xxxx and Fresno areas. Further, development of a
Service center in the San Xxxxxx area has been suspended as of April 1,
2001. At this time, ROMG desires to assign its interest and obligations
under the Agreement and the First and Second Assignments and
Amendments, as related to the Service centers that the parties desire
to develop in the future, including but not limited to the currently
planned Santa Xxxx and Fresno Centers, to USCCMG-CA. This assignment
relieves ROMG of any and all future interest or obligation in the
Agreement."
B. THE TERMS OF THE AGREEMENT ARE FURTHER ASSIGNED AND AMENDED AS FOLLOWS:
1. ASSIGNMENT. ROMG hereby assigns and transfers all right, title
and interest in and to the Agreement for Services provided at the Santa
Xxxx and Fresno Centers and such future centers that the parties
develop, to USCCMG-CA, effective as of April 1, 2001.
2. ACCEPTANCE OF ASSIGNMENT. USCCMG-CA hereby accepts assignment
and transfer of all right, title and interest in and to the Agreement,
and expressly assumes and agrees to perform and be bound by all terms,
conditions and obligations of ROMG under the Agreement for Services
provided at the Santa Xxxx and Fresno Centers and such future centers
as the parties may develop.
3. USCCMG-CA REPRESENTATIONS AND WARRANTIES. USCCMG-CA represents
and warrants that it (a) has the authority to execute this Second
Assignment and Amendment, and (b) has assumed all obligations and
liabilities of ROMG arising from the Santa Xxxx and Fresno Centers and
such future Centers that the parties may develop under or related to
the Agreement arising on or after April 1, 2001.
4. ROMG REPRESENTATIONS AND WARRANTIES. ROMG represents and
warrants that no Services were provided under the Agreement as part of
the Santa Xxxx and Fresno Centers before April 1, 2001, and, thus, no
tail insurance for prior periods is required.
5. TPMG CONSENT. TPMG hereby consents to the assignment of rights
and assumption of duties described in this Article IV of the Second
Assignment and Amendment.
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Amendment to the Radiation Therapy Services Agreement
TPMG, USCC, USCCMGCA, ROMG, AUSAM, USCC-USCMC Partnership
6. NOTICES. The parties hereby agree that all notices regarding
the Fresno, Santa Xxxx or future centers required under the Agreement
to be directed to ROMG shall henceforth be directed to USCCMG-CA at the
following address:
USCCMG-CA
c/o US CancerCare
000 Xxxxxxx Xxxxxx Xx., #000
Xxxxxx Xxxxx, XX 00000
7. PAYMENT BY KP. The parties acknowledge and agree that all
payments due and owing from KP to ROMG pursuant to the Agreement for
the Santa Xxxx and Fresno Centers and such future Centers that the
parties develop shall hereinafter be made to USCCMG-CA, provided,
however, that disputes involving KP's payment (a) to ROMG of amounts
owing to USCCMG-CA, or (b) to USCCMG-CA of amounts owing to ROMG, shall
be resolved between ROMG and USCCMG-CA without liability on the part of
KP.
8. ASSUMPTION OF COSTS AND EXPENSES RELATING TO THE SAN XXXXXX
CENTER. In the event any party has incurred expenses or costs in
preparation for or anticipation of the opening of the San Xxxxxx
Center, each party, including without limitation ROMG and TPMG, agrees
to absorb its own expenses and costs. Further, all parties agree to
waive their rights to recover any such costs or expenses from any other
party by virtue of the decision to suspend development of the San
Xxxxxx Center.
9. ASSUMPTION OF COSTS AND EXPENSES RELATING TO THE SANTA XXXX
AND FRESNO CENTERS. In the event ROMG has incurred any expenses or
costs in preparation for or anticipation of the opening of the Santa
Xxxx or Fresno Centers, ROMG agrees to absorb its own expenses and
costs.
10. WAIVER OF INTEREST IN FUTURE DEVELOPMENT. ROMG hereby waives
and abandons any right, title or interest it may have under law or the
Agreement to the development or operation of the Santa Xxxx Center, the
Fresno Center, and any other future center, if ever such development
and operation may occur.
V. ADDITIONAL AMENDMENTS
A. SECTION 3.1 (B)(FOUND IN THE FIRST ASSIGNMENT AND AMENDMENT) IS AMENDED
AS FOLLOWS (ADDITIONS INDICATED BY UNDERLINING, DELETIONS INDICATED BY
STRIKEOVER):
"(b) Each year during the term of this Agreement, Contractor shall
determine the projected annual budget ("Projected Budget") for
facilities where Services are provided to Members pursuant to this
Agreement. The Projected Budget for each such facility for the first
year of this Agreement is set forth in Exhibit 3. Thereafter,
Contractor shall submit the Projected Budget for each facility to TPMG
for approval no later than three (3) month(s) prior to the anniversary
date of the opening of each such facility. The parties shall agree in
writing to the opening date of each facility covered under this
Agreement for purposes of establishing the annual Projected Budget for
each such facility location for the following budget period ("Budget
Year"). The Projected Budget for each facility shall set forth
CONFIDENTIAL TERMS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. The Projected Budget for each such
facility shall also set forth CONFIDENTIAL TERMS HAVE BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION at the
relevant facility for the Budget Year. CONFIDENTIAL TERMS HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION shall be agreed upon no later than one (1) month prior to
the beginning of the applicable Budget Year. If for any Budget Year the
parties are unable to agree upon the Projected Budget for any facility,
the matter shall be resolved pursuant to Article 8. Until such time as
the matter is so resolved, the Projected Budget for such facility shall
be the Projected Budget for such facility for the immediately preceding
Budget Year."
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Amendment to the Radiation Therapy Services Agreement
TPMG, USCC, USCCMGCA, ROMG, AUSAM, USCC-USCMC Partnership
B. SECTION 3.1 (D) (FOUND IN THE BODY OF THE AGREEMENT) IS AMENDED AS
FOLLOWS (ADDITIONS INDICATED BY UNDERLINING, DELETIONS INDICATED BY STRIKEOVER):
"(d) Within sixty (60) days of the end of the Budget Year for each
facility, CONFIDENTIAL TERMS HAVE BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION along with any supporting
documentation requested by CONFIDENTIAL TERMS HAVE BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION,
regardless of when the invoice for Services related to any such case
was paid (including the payment for a course of treatment which
overlaps the end of one Budget Year and the beginning of the next).
CONFIDENTIAL TERMS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION TPMG shall retain the right to
CONFIDENTIAL TERMS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION with the consent of USCC of
CONFIDENTIAL TERMS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION by or on behalf of USCC.
CONFIDENTIAL TERMS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION USCC's normal business hours and
upon prior notice to USCC."
C. SECTIONS 3.1 (B THROUGH E) ARE SUSPENDED PERTAINING TO THE STOCKTON,
FRESNO AND SANTA XXXX CENTERS, AS NOTED BELOW:
The parties agree that with respect to the Stockton Center (for two
budget years, 2/28/01 through 2/28/03), the Fresno Center (for two
budget years from opening) and the Santa Xxxx Center (for two budget
years from opening) the provisions of these Sections CONFIDENTIAL TERMS
HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION for the length of time noted above for the respective
Center. In their stead, the budgets for each of these facilities now
provide for CONFIDENTIAL TERMS HAVE BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION This suspension does not
relieve USCC, PARTNERSHIP and USCCMG-CA of their other duties in these
Sections related to budget preparation and review/oversight of such
budget with TPMG. However, to the extent that CONFIDENTIAL TERMS HAVE
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION
D. EXHIBIT 3 IS MODIFIED AS FOLLOWS:
1. Exhibit 3A (Hayward) is amended to add the attached Exhibit
3A-1 to address budget and rates for the Hayward Center effective
August 1, 2000.
2. Exhibit 3B (Stockton), Exhibit 3C (San Xxxxxx), and Exhibit 3D
(Santa Xxxx) are hereby deleted and replaced by the attached Exhibit 3B
(Stockton), Exhibit 3C (Fresno), and Exhibit 3D (Santa Xxxx).
E. SECTION 3.2 IS HEREBY DELETED AND REPLACED WITH THE FOLLOWING:
3.2 PAYMENT OF COMPENSATION. In accordance with the provisions of
Section 3 and Exhibit 3 of this Agreement, TPMG shall pay Contractor
for Covered Services rendered to Members. Contractor shall accept such
amounts paid by TPMG and any Copayments Contractor is directed to
collect, as payment in full. Emergency Services must be Approved
Emergency Claims (pursuant to Section 2.3) and other Services must be
Authorized Services (pursuant to Section 2.4) as a condition for
payment. Payment for Covered Services shall be made within thirty (30)
working days of receipt of a properly submitted and undisputed invoice
as described in Exhibit 4, or within such other time frame as may be
required by applicable federal or state laws, rules or regulations.
Both parties shall use reasonable efforts to resolve disputes regarding
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Amendment to the Radiation Therapy Services Agreement
TPMG, USCC, USCCMGCA, ROMG, AUSAM, USCC-USCMC Partnership
invoices in accordance with Section 8.1. Upon resolution of the
dispute, the invoice shall be paid within thirty (30) working days of
the date of resolution. Interest and penalties on any late payments
will be paid as required of Health Plan by law.
F. SECTION 4.1 IS HEREBY DELETED AND REPLACED WITH THE FOLLOWING:
"4.1 TERM. This Agreement will begin on the effective date
(specific to each Center), and will continue in effect for three (3)
years for the Hayward and Stockton Centers and five (5) years for the
Santa Xxxx and Fresno Centers, and such future Centers as the parties
may develop. This Agreement will thereafter automatically renew for
each Center for successive five (5)-year terms based upon each Center's
initial effective date, unless terminated in accord with Sections 4.2,
4.3, or 4.4, below. Further, if any party desires to allow the
Agreement as it relates to any particular center to expire at the end
of the initial or any subsequent term for that specific center, the
party shall give written notice of such intent to the other party at
least One Hundred Eighty (180) days prior to the end of that term."
G. SECTION 4.2 IS HEREBY AMENDED AS FOLLOWS (ADDITIONS INDICATED BY
UNDERLINING, DELETIONS INDICATED BY STRIKEOVER):
"4.2 WITHOUT CAUSE TERMINATION. This Agreement may be terminated,
either in whole or in part as it relates to a particular center, at any
time for any reason or for no reason by TPMG upon at least ninety (90)
days' prior written notice to the other parties, subject to the
provisions of Section 4.6. In the event of termination under this
Section, TPMG shall pay USCC or PARTNERSHIP the Termination Amount
listed in Exhibit 3 for each year remaining under the current term for
each facility to which the termination applies (prorated as appropriate
for partial years based on the Budget Year for each such facility).
This payment does not apply to a termination under any other provision
of this Agreement, including but not limited to any termination of the
Agreement under Sections 4.3, 4.4 or 4.5 or to an expiration at the end
of the term, or any extension thereof."
H. SECTION 4.3(A) IS HEREBY AMENDED AS FOLLOWS (ADDITIONS INDICATED BY
UNDERLINING, DELETIONS INDICATED BY STRIKEOVER):
"4.3 IMMEDIATE TERMINATION.
(a) Each party to this Agreement shall immediately notify
TPMG and TPMG may immediately suspend this Agreement as it relates to
that party in the event there is a material adverse change in any
insurance coverage required of that party hereunder, other than a
cancellation, non-renewal, expiration or failure to obtain coverage. If
the party does not provide adequate insurance coverage within thirty
(30) days of the material adverse change, TPMG may terminate this
Agreement as it relates to that party immediately. Each party shall
immediately notify TPMG and this Agreement will terminate as it relates
to that party without further action of the any parties if such
insurance coverage is canceled, not renewed or expires, or if that
party fails to obtain any insurance coverage as required by this
Agreement. If this Agreement terminates without further action of the
parties, the effective date of termination shall be the date of the
occurrence of such event or, at TPMG's option, such other date as
determined by TPMG in its sole discretion."
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Amendment to the Radiation Therapy Services Agreement
TPMG, USCC, USCCMGCA, ROMG, AUSAM, USCC-USCMC Partnership
I. SECTION 4.3(C) IS HEREBY AMENDED AS FOLLOWS (ADDITIONS INDICATED BY
UNDERLINING, DELETIONS INDICATED BY STRIKEOVER):
"4.3 IMMEDIATE TERMINATION.
"(c) Each party to this Agreement shall notify TPMG and TPMG
may terminate this Agreement or the Agreement as it relates to that
party immediately upon written notice to Contractor any party to this
Agreement files a petition in or for bankruptcy, reorganization or an
arrangement with creditors; makes a general assignment for the benefit
of creditors; is adjudged bankrupt; is unable to pay debts as they
become due; has a trustee, receiver or other custodian appointed on its
behalf, or has a case or proceeding commenced against it under any
bankruptcy or insolvency law."
J. SECTION 9.5 IS HEREBY DELETED AND REPLACED WITH THE FOLLOWING:
"9.5 ASSIGNMENT. Subject to the provisions related to successors
set forth below, neither this Agreement nor any duties or obligations
under this Agreement may be assigned or subcontracted by USCC,
PARTNERSHIP, AUSAM and/or USCCMG-CA without the prior written consent
of TPMG. TPMG agrees that such consent shall not be unreasonably
withheld. CONFIDENTIAL TERMS HAVE BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION Any material change of
ownership or control of USCC, PARTNERSHIP, AUSAM and/or USCCMG-CA shall
be deemed an assignment of this Agreement requiring the prior written
consent of TPMG. If Department of Health Services' ("DHS") or a
Medi-Cal Plan's approval is required by law or Health Plan Medi-Cal
Contracts, assignment or delegation of this Agreement shall be void
unless prior written approval is obtained from DHS and/or such Medi-Cal
Plan."
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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Amendment to the Radiation Therapy Services Agreement
TPMG, USCC, USCCMGCA, ROMG, AUSAM, USCC-USCMC Partnership
IN WITNESS WHEREOF, the parties have caused this Second Assignment and
Amendment to be executed by their respective duly authorized
representatives as of the dates set forth below.
THE PERMANENTE MEDICAL GROUP, INC. RADIATION ONCOLOGY MEDICAL GROUP, INC.
By: /s/ Xxxxxx Xxxxxx, MD By: /s/ Xxxxx Xxxxxx
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Xxxxxx Xxxxxx, M.D. Name: Xxxxx Xxxxxx, M.D.
TPMG Associate Executive Director -----------------------
Title: President
-----------------------
Date: 8/29/01 Date: 8/16/01
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Reviewed By: /s/ Xxxxxxx Xxxxxxxxxx USCC HEALTH CARE MANAGEMENT CORP.
----------------------------------------
Xxxxxxxx Xxxxxxxxxx, Administrator By: /s/ Xxxxxxx Xxxxxxxxx
Med. Svcs. Planning & Contracting Support -------------------------
Name: Xxxxxxx Xxxxxxxxx
------------------------
Date:9/5/01 Title: President
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Date: 8/28/01
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USCC MEDICAL GROUP-CA, INC.
By: /s/ Xxxxx Xxxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxxx
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Title: President
-----------------------
Date: 8/21/01
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USCMC-USCC PARTNERSHIP
By: /s/ W. Xxxxx Xxxxx
--------------------------
Name: W. Xxxxx Xxxxx
------------------------
Title: CEO
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Date: 8/20/01
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AUSAM MEDICAL GROUP, INC.
By: /s/ Xxxxxx X. Au
--------------------------
Name: Xxxxxx X. Au, M.D.
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Title: President
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Date: 8/17/01
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