EXHIBIT 10.55
POSITRON EMISSION TOMOGRAPHY (PET) SERVICES
OFFICE, EQUIPMENT AND PERSONNEL LEASE AGREEMENT
THIS PET SERVICES OFFICE, EQUIPMENT AND PERSONNEL LEASE AGREEMENT (this
"AGREEMENT") is made and entered into as of the 1st day of October, 2001, by and
between RADIOLOGY REGIONAL CENTER, P.A., a Florida professional corporation
("Lessor") and 21st CENTURY ONCOLOGY, INC., a Florida corporation, for itself
and its subsidiaries and affiliates (collectively, "LESSEE").
WITNESSETH:
WHEREAS, Lessee is in the business of offering radiation therapy
services to patients through qualified radiation therapists employed by or
contracted to Lessee, and, in order to be able also to offer positron emission
tomography ("PET") diagnostic services to its patients, Lessee desires to lease,
and Lessor has agreed to lease to Lessee, upon the terms and conditions
specified in this Agreement:
(A) a portion of the improved real property located at 0000-X
Xxxxxxx Xx., Xxxx Xxxxx, Xxx Xxxxxx, Xxxxxxx, as more
particularly described on the floor plan attached hereto and
made a part hereof as Exhibit A (the "PREMISES");
(B) certain PET diagnostic equipment and related supplies located
in the Premises, as well as ancillary equipment, provisions
and attachments necessary for the effective and proper
provision of PET diagnostic services to patients in the
Premises, including, without limitation, furniture, fixtures,
and office equipment, as more particularly described on the
list attached hereto and made a part hereof as Exhibit B
(collectively, the "EQUIPMENT"); and
(C) the services of: (1) a physician who is certified or otherwise
qualified to supervise nuclear medicine radiology services,
including PET diagnostic services, (2) one or more radiologic
technologist(s) who are qualified to operate PET diagnostic
equipment, and (3) other support employees, all of who are
employed or contracted by Lessor, as more particularly
described on the list attached hereto and made a part hereof
as Exhibit C (collectively, the "PERSONNEL"),
the Premises, Equipment and Personnel are sometimes collectively referred to in
this Agreement as the "PET SERVICES" and the Premises so utilized are sometimes
referred to as the "PET CENTER"); AND
WHEREAS, Lessor and Lessee have entered into this Agreement on the good
faith belief that: (1) the PET Services leased hereunder do not exceed that
which is reasonable and necessary for the legitimate business purposes of this
Agreement, and (2) this Agreement and the PET Services to be provided hereunder
are in compliance with all applicable state and federal laws.
NOW, THEREFORE, in consideration of the foregoing premises, which are
hereby incorporated into this Agreement as an integral part hereof and not as
mere recitals hereto, and the
mutual covenants, terms, conditions and agreements hereafter provided, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties mutually agree as follows:
1. TERM. The term of this Agreement shall commence on the 1st day
of October, 2001 (the "STARTING DATE"), and, unless sooner terminated as
provided in Section 9 below, shall continue until 12:00 a.m. on the second
anniversary of the Starting Date. This Agreement may be terminated by either
party at the end of the first year by delivering to the other party written
notice of termination at least thirty (30) days prior to the end of that first
year. Upon the expiration of the initial term hereof or any renewal term, this
Agreement shall automatically renew for an additional one (1) year term,
commencing on the applicable anniversary of the Starting Date, unless either
party delivers written notice of non-renewal to the other party at least thirty
(30) days prior to the end of the original term of this Agreement or any renewal
term thereafter. All of the terms and conditions contained herein shall apply
during any renewal term.
2. LEASE OF PET SERVICES. During the initial term and any renewal
term of this Agreement, Lessor shall lease the PET Services to Lessee, on an
exclusive basis during the one-hour incremental time periods described on the
list attached hereto and made a part hereof as Exhibit D (each such one-hour
period being referred to herein as a "SCHEDULED TIME"), on the following terms
and conditions:
(a) PREMISES. Lessor hereby leases the Premises to
Lessee, and Lessee hereby agrees to lease the Premises from Lessor, for
the performance by Lessee of PET diagnostic services for its patients
during each Scheduled Time. Lessor reserves the right to rearrange the
interior space plan of the Premises to utilize the space in a more
efficient manner; provided that such actions do not unreasonably
interfere with Lessee's use of the Premises for the provision of PET
diagnostic services during each Scheduled Time. Lessee shall use the
Premises only in connection with its private practice and shall have no
right to use, alter, repair or augment the Premises without prior
written consent of Lessor, which approval may be withheld in Lessor's
sole discretion.
(b) EQUIPMENT. Lessor hereby leases the Equipment to
Lessee, and Lessee hereby agrees to lease the Equipment from Lessor,
during each Scheduled Time. Lessor reserves the right to rearrange the
Equipment within the Premises to utilize the space in a more efficient
manner; provided that such actions do not unreasonably interfere with
Lessee's use of the Equipment for the provision of PET diagnostic
services during each Scheduled Time. Lessee shall use the Equipment and
provide PET diagnostic services only in connection with its private
practice and in accordance with reasonable utilization, quality, safety
and maintenance policies and procedures established from time to time
by Lessor. Furthermore, Lessee shall have no right to use, alter,
repair, augment or remove the Equipment from the Premises without prior
written consent of Lessor, which approval may be withheld in Lessor's
sole discretion.
(c) PERSONNEL. Lessor shall lease to Lessee, and Lessee
shall lease from Lessor, such Personnel as are deemed necessary by
Lessor and Lessee to perform PET diagnostic services, and related
supervisory and administrative services during each Scheduled Time. The
Personnel who will operate the Equipment shall be properly licensed,
certified, and/or
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qualified, as applicable, to operate the Equipment. Lessor and Lessee
shall consult with each other in determining the number and
classification of the Personnel required by Lessee hereunder, and,
while Lessor shall have authority and responsibility for providing the
Personnel to Lessee (including recruiting, hiring, compensating,
disciplining and firing) and for establishing the terms and conditions
of the employment by Lessor of each of such Personnel, Lessee shall
supervise the Personnel with respect to the actual provision of PET
diagnostic services. In addition, Lessor shall be solely responsible
for paying or withholding all relevant taxes arising from the
compensation of the Personnel, and Lessor shall be solely responsible
for all other governmental requirements applicable to Lessor and each
of the Personnel arising out of his or her employment relationship with
Lessor. The Personnel shall have no claim under this Agreement, or
otherwise, against Lessee for any salary or other compensation,
including, without limitation, workers compensation, unemployment
compensation, vacation pay, sick leave, retirement benefits, Social
Security benefits, disability insurance benefits, unemployment
insurance benefits, professional liability insurance or any other
employee benefits, all of which shall be the sole responsibility of
Lessor. In connection with the foregoing, the parties acknowledge that
Lessee shall enter into one or more employment or independent
contractor agreement(s) with the physician(s) who will supervise the
Personnel leased hereunder, the terms of such document to be negotiated
between Lessee and the applicable physician, and Lessee agrees that it
will inform Lessor of the rate of compensation payable to the
physician, and the dates of payment, under each such employment or
independent contractor agreement.
(D) SUPPLIES. Lessor shall provide all supplies
associated with PET diagnostic services. With respect to certain
supplies related to the provision of PET diagnostic services. Lessor
shall be entitled to charge Lessee a per use fee, in addition to the
Rent (as hereinafter specified), for which Lessor shall xxxx Lessee
monthly for amounts used by Lessee during the previous month. Any such
"supply exception" shall be more particularly described on the list
attached hereto and made a part hereof as Exhibit D.
(E) UTILITIES, During the term of this Agreement, Lessor
shall provide necessary utilities and other services, including,
without limitation, heat, water, gas, electricity, air conditioning,
and telephone necessary for the purposes of Lessee. The cost of
providing such utilities shall be borne by Lessor.
(F) EXCLUSIVE USE; COMMON AREAS. During each Scheduled
Time, Lessee shall have exclusive use for its patients of the portion
of the Premises and the Equipment that is utilized only for PET
diagnostic services, and Lessee shall have the right to shared use of
the common areas of the Premises (including but not limited to the
parking lot, waiting rooms, bathrooms and hallways), and of the
Equipment that is located in the common areas of the Premises
(including but not limited to the waiting rooms, bathrooms and
hallways), during each Scheduled Time. In addition, Lessee shall have
exclusive use of the Personnel who are involved solely in the provision
of PET diagnostic services, and Lessee shall have the right to shared
use of supervisor) and administrative Personnel, during each Scheduled
Time. Lessor shall not allow any other person to schedule or provide
PET diagnostic services utilizing the Premises, Equipment or Personnel
during the Scheduled Times. Notwithstanding the foregoing. Lessor
reserves the right to lease or license use of the Premises. Equipment
and Personnel to other third parties during time periods other than the
Scheduled Times, provided
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same does not unreasonably interfere with Lessee's use of the Premises,
Equipment and Personnel and its performance of PET diagnostic services
during the Scheduled Times. In addition, Lessor shall be entitled to
use (or lease or license to other persons) at all times all other parts
of the improved real property which contains the Premises, provided
same does not unreasonably interfere with Lessee's use of the Premises,
Equipment and Personnel and its performance of PET diagnostic services
during the Scheduled Times.
(g) MAINTENANCE, REPLACEMENT AND REPAIR; AVAILABILITY OF
PET SERVICES. Lessor shall, throughout the term of this Agreement, at
Lessor's sole cost and expense: (i) maintain the Premises and the
Equipment in good condition and proper working order; (ii) perform or
cause to be performed all routine maintenance, replacements and repairs
with respect to the Premises and the Equipment, (iii) promptly replace
or cause to be replaced all parts of the Equipment which may from time
to time become worn our, lost, destroyed, or damaged beyond repair or
permanently rendered unfit for any reason whatsoever; and (iv) make
attachments to or alter the Equipment, in a safe and proper fashion, as
is necessary for using the Equipment and/or treating persons in
connection with the use of the Equipment. If Lessee is unable to use to
Premises and/or the Equipment, or if the Personnel are not available to
provide services to Lessee in accordance with the terms of this
Agreement, during any Scheduled Time, then and in that event, Lessor
shall have the right to substitute an equal number of one-hour periods
at other times, in which event Rent (as hereinafter defined) shall
continue to be paid by Lessee. If Lessor is unable or unwilling to
provide an equal number of substitute one-hour period(s), then Rent (as
hereinafter defined) will cease and xxxxx during any Scheduled Time
during which the Premises or the Equipment are unusable for Lessee's
intended purpose, or during which Personnel are not available to
provide services to Lessee in accordance with the terms of this
Agreement.
(h) ALTERATIONS. Lessee shall not make or permit any
changes or alterations to the Premises or Equipment without Lessor's
prior written consent, except for alterations or upgrades of the
Equipment required by the manufacturer for public safety or for
compliance with the manufacturer's published specifications for such
Equipment to the extent such alterations or upgrades are not made by
Lessor; provided, that in no event shall Lessee be obligated to make
any alterations, upgrades, repairs or replacements to the Equipment.
The costs of any alterations or upgrade costs made by Lessee as
provided above shall be promptly reimbursed by Lessor to Lessee. All
accessories, replacements, parts and substitutions for, or which are
added or attached to, the Equipment shall become the property of Lessor
and be within the definition of Equipment, and subject to this
Agreement.
(i) DELIVERABLES. Lessor shall ensure that the
appropriate Personnel will provide transcribed reports of diagnostic
findings relating to PET diagnostic services rendered during each
Scheduled Time within two (2) business days after completion of the
procedure.
(j) SUBORDINATION TO LENDERS AND MAIN LEASE. The rights
and obligations of Lessee in this Agreement are subject and subordinate
to the provisions and obligations contained in any financing, security
interest, mortgage, lien or other encumbrance that Lessor may, in its
reasonable discretion, place upon the Premises and/or the Equipment
through an unaffiliated third party. In addition, Lessor and Lessee
hereby acknowledge that Lessor's
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rights to occupy and use the Premises derive from Lessor's lease, as
tenant, of the Premises (such primary lease being referred to herein as
the "MASTER LEASE"), and Lessee's rights to occupy and use the
Premises thus constitute a sublease. As such, Lessee's rights and
obligations under this Agreement are hereby deemed to be subject and
subordinate to all terms, covenants and provisions of the Master Lease,
and Lessee hereby agrees to comply with and perform the tenant's
obligations under the Master Lease, to the extent that the provisions
of the Master Lease are applicable to the Premises and Lessor notifies
Lessee in writing of the tenant's obligations. In this regard. Lessor
shall, with respect to this Agreement, have all of the rights of the
landlord under the Master Lease, as set forth in the paragraphs of the
Master Lease, all of such terms being incorporated herein by reference.
Lessor agrees to take all reasonable steps necessary to comply with the
terms of the Master Lease and to compel the landlord under the Master
Lease to perform its obligations under the Master Lease. In connection
with the foregoing, it is expressly understood by Lessee that any
violation of the Master Lease shall be deemed to be a material breach
of this Agreement.
3. RENT. Lessee hereby agrees to pay to Lessor during the term of
this Agreement, as consideration for leasing of the Premises, Equipment and
Personnel, the payment for each Scheduled Time (the "RENT") specified on Exhibit
D attached hereto and made a part hereof, plus any applicable sales tax. Lessee
shall pay the Rent owed to Lessor under this Agreement, at the address of Lessor
as indicated in this Agreement, on the first day of each calendar month. If Rent
is not paid within ten (10) days of each monthly due date, then Lessor shall
impose a late fee equal to five percent (5%) of the amount of the past due Rent
payment. The parties further acknowledge and agree that the Rent is consistent
with fair market value and is not based on the volume or value of any referrals
or other business generated between the parties.
4. REPRESENTATIONS AND COVENANTS OF LESSEE. Lessee hereby makes
the following representations, warranties and covenants to Lessor, each of which
is material and is being relied upon by Lessor, and each of which shall be true
as of the date hereof and shall continue to be true throughout the term of this
Agreement.
(a) LESSEE'S CORPORATE STATUS. Lessee is a corporation
duly organized and validly existing under the laws of the State of
Florida.
(b) AUTHORIZATION. The execution and delivery of this
Agreement and the performance of this Agreement by Lessee have been
duly authorized by all necessary action by Lessee, and this Agreement
is legally valid and binding against Lessee in accordance with its
terms.
(c) INFORMATION FROM THE LESSEE. Any and all factual
information furnished or to be furnished by Lessee to Lessor,
including, but not limited to, any reports, shall be true and accurate
in all material respects as of the date of which such information is
furnished.
(d) SUBLEASES. Lessee acknowledges all Equipment Premises
and Personnel provided to it by Lessor pursuant to this Agreement are
exclusively for us of Lessee in conducting PET diagnostic services on
Lessee's patients and shall not be subleased by Lessee to any
individual, group or entity for any purpose, without the prior written
consent of Lessor,
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which consent may be withheld or withdrawn at Lessor's discretion.
(e) NO ENCUMBRANCES. Lessee agrees that it will not
encumber, pledge, hypothecate or otherwise assign its rights under this
Agreement as collateral for any obligation to a third party.
Furthermore, Lessee acknowledges and agrees that title to the Equipment
shall remain with Lessor, subject to the interests of any third-party
lessor of the Equipment and any other party to whom Lessor grants a
security interest in the Equipment. In this regard, Lessee agrees to
take no action that it knows or reasonably should know would have the
likely effect of encumbering Lessor's title or interest in the
Equipment.
(f) PROTECTION OF LESSOR'S NUCLEAR MATERIALS LICENSE(S).
Lessee hereby acknowledges that Lessor maintains all appropriate
licenses to handle and use nuclear materials in the improved real
property which contains the Premises, and Lessee hereby agrees that it
will take no action that it knows or reasonably should know would
likely have a material adverse effect on Lessor's nuclear materials
license(s).
(g) LESSEE'S PERSONNEL RECORDS. Lessee shall maintain an
up-to-date personnel file with documentation of the following
credentials of medical personnel, and this information will be
available to Lessor upon its request:
(i) medical licenses;
(ii) medical board certifications;
(iii) malpractice insurance;
(iv) DEA certification; and
(v) no fault/compensation rating.
5. REPRESENTATIONS AND COVENANTS OF LESSOR. Lessor hereby makes
the following representations, warranties, and covenants to Lessee, each of
which is material and is being relied upon by Lessee, and each of which shall be
true as of date hereof.
(a) LESSOR'S STATUS. Lessor is a professional corporation
duly organized and validly existing under the laws of the State of
Florida.
(b) AUTHORIZATION. The execution and delivery of this
Agreements and the performance of this Agreement by Lessor have been
duly authorized by all necessary action by Lessor, and this Agreement
is legally valid and binding against Lessor in accordance with its
terms.
(c) INFORMATION FROM LESSOR. Any and all factual
information furnished or to be furnished by Lessor to Lessee,
including, bin not limited to, any reports, shall be true and accurate
in all material respects as of the date on which such information is
furnished.
(d) TECHNOLOGISTS. All Personnel who are radiologic
technologists providing PET diagnostic services pursuant to this
Agreement shall be employed by Lessor, and shall, if required by law,
be duly licensed and registered and in good standing to engage in their
specialty in the State of Florida. Except as otherwise provided herein,
Lessor shall make all
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final decisions concerning hiring and firing of such technologists,
subject to consultation with Lessee. Lessor, however, agrees to consult
with Lessee concerning the number of technologists required to staff
the PET Center.
(e) LESSOR'S NUCLEAR MATERIALS LICENSEES). Lessor hereby
acknowledges that it maintains all appropriate licenses to handle and
use nuclear materials in the improved real property which contains the
Premises.
(e) LESSOR'S PERSONNEL RECORDS. Lessor shall maintain an
up-to-date personnel file with documentation of the following
credentials of medical personnel and radiologic technologists included
in the Personnel, and this information will be available to Lessee upon
its request:
(i) medical or other professional licenses or
registrations;
(ii) medical board certifications;
(iii) nuclear medicine licenses;
(iv) malpractice insurance;
(v) DEA certification; and
(vi) no fault/compensation rating.
(f) LESSOR'S CONSENT. Lessor agrees that all consents
which are required for Lessee's use and occupancy of the Premises in
accordance with the terms of this Agreement and in accordance with all
laws, statutes, and ordinances shall be provided to Lessee in order to
carry out the terms and the purpose of this Agreement, and shall be
conclusively presumed to have been given unless written notice to the
contrary is received by Lessor within thirty (30) days of any written
request for same by Lessee. Except as specifically indicated to the
contrary, in all instances in this Agreement where consent of the
Lessor is required. Lessor shall not unreasonably withhold, condition
or delay such consents.
6. COMPLIANCE WITH LAWS AND REGULATIONS. Lessee and Lessor, in
the performance of their respective obligations hereunder, shall comply with all
applicable laws and regulations, and shall take all actions deemed prudent to
ensure that the conduct of the PET Center (including the operation of the
Equipment) is in compliance with the rules of any accrediting or regulatory
body, agency or authority having jurisdiction over the PET Center. Lessee and
Lessor represent and warrant that they have reviewed all relevant federal and
state health care fraud and abuse and similar laws and regulations, and that
they are and shall remain throughout the term of this Agreement fully compliant
with all of the relevant requirements of such laws and regulations, as they may
be amended from time to time.
7. RESPONSIBILITY FOR MEDICAL PRACTICE.
(a) RESPONSIBILITY FOR PROFESSIONAL CONDUCT. Lessee shall
be and remain full} responsible for the professional conduct of its
medical practice at the PET Center, provided however, that Lessee shall
have no responsibility for the conduct of any other medical practice
that may be conducted from time to time on the improved real property
which contains the Premises.
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(b) SCHEDULING, VERIFICATION AND BILLING. Lessee shall be
responsible for ensuring that all PET diagnostic tests scheduled for
its patients are scheduled during the Scheduled Times, for establishing
medical necessity, and for completion of and compliance with any
insurance or managed care plan pre-authorization/pre-certification
process(es). Lessee also shall be responsible for ensuring patients'
eligibility for health plans that do not require pre-authorization/pre-
certification. Lessee shall be responsible for all coding and billing
of all PET diagnostic services rendered during the Scheduled Times, and
Lessor neither warrants nor guarantees Lessee's ability to obtain or
collect reimbursement for such services.
(c) PATIENT RECORDS. Lessor (or its designee) shall be
entitled to the continued use of any information (other than medical
records of Lessee's patients) obtained by it during the course of this
Agreement without restriction, and such records shall not be removed
from the PET Center by Lessee, provided, however, that all medical
records of Lessee's patients may be removed and retained off-site by
Lessee. Lessor acknowledges and agrees that all patients of Lessee who
receive services at the PET Center during the Scheduled Times are
patients of Lessee, all patient records relating to services provided
to Lessee's patients shall at all times be the property of Lessee,
except for patient records related to the professional services
provided by Lessor or its affiliates, and Lessor shall not have access
to Lessee's patient records except to the extent necessary to undertake
its duties hereunder.
(d) MANAGED CARE PROVISION. Lessee agrees that Lessee
shall not provide technical PET diagnostic services to any managed care
entity for any patients other than those patients under the direct care
of physicians who are employed or contracted by Lessee.
8. INSURANCE.
(a) MALPRACTICE INSURANCE. Lessor shall obtain and
maintain at it's own expense professional liability insurance
(including malpractice insurance), for each physician employed or
contracted by Lessee with respect to the provision of PET diagnostic
services at the PET Center in the minimum amount of $1,000,000 Dollars
for each occurrence and $3,000,000 Dollars in the aggregate. Lessor
shall, as soon as practicable prior to the commencement of occupancy by
Lessee of the PET Center, and from time to time thereafter, furnish
appropriate evidence to Lessee of the existence of such insurance with
an insurance company licensed in the State of Florida.
(b) GENERAL LIABILITY AND CASUALTY INSURANCE. Lessor
shall obtain and maintain at it's own expense general liability and
casualty insurance with respect to the Premises and the Equipment. The
amount of the insurance shall be determined in the reasonable judgment
of the Lessor. Further, Lessor shall obtain and maintain at it's own
expense comprehensive public liability insurance against claims for
bodily injury, death and/or property damage arising out of the use.
ownership, possession, operation or condition of the PET Center,
together with such other insurance as may be required by law or
reasonably determined by Lessor.
9. TERMINATION.
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(a) BY LESSEE. This Agreement may be terminated by the
Lessee at any time upon written notice to Lessor of such termination
after the occurrence of any one of the following events:
(i) Material breach of this Agreement by Lessor
that is not cured or corrected within thirty (30) days after
such written notice from Lessee to Lessor stating the specific
default or breach; or
(ii) Final action by any body having jurisdiction
resulting in the termination of Lessor as a corporate entity,
or the suspension of its corporate charter; or
(iii) If the Lessor shall apply for or consent to
the appointment of a receiver, trustee or liquidator of Lessor
or all or a substantial part of its assets, files a voluntary
petition in bankruptcy, or admits in writing; its inability to
pay its debts as they come due, make a general assignment for
the benefit of creditors or false advantage of any insolvency
law, or if any order, judgment or decree shall be entered by
any court of competent jurisdiction, on the application of
creditor, adjudicating the Lessor as bankrupt or insolvent or
approving of a petition seeking reorganization or Lessor or
appointment of a trust or a receiver' trustee, or liquidator
of Lessor or all or a substantial part of the assets of
Lessor; or
(iv) Lessor's lease of the Premises is terminated
for any reason.
(b) BY LESSOR. This Agreement may be terminated by Lessor
at any time upon written notice to Lessee of such termination after the
occurrence of any one of the following events:
(i) Material breach of this Agreement by Lessee
that is not cured or corrected within thirty (30) days after
such written notice from Lessor to Lessee stating the specific
default or breach; or
(ii) Final action by any body having jurisdiction
resulting in the termination of Lessee as a corporate entity,
or the suspension of its corporate charter; or
(iii) If the Lessee shall apply for or consent to
the appointment of a receiver, trustee or liquidator of Lessee
or all or a substantial past of its assets file a voluntary
petition in bankruptcy, or admit in writing its inability to
pay its debt as they come due. make a general assignment for
the benefit of creditors or take advantage of any insolvency
law. or if any order, judgment or decree shall be entered by
any court of competent jurisdiction on the application of a
creditor, adjudicating the Lessee as bankrupt or insolvent or
approving of a petition seeking reorganization of Lessee or
appointment of a receiver, trustee, or liquidator of Lessee or
all or a substantial part of the assets of Lessee: or
(iv) Lessor's lease of the Premises is terminated
for any reason.
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(c) LESSEE'S CONTINUING OBLIGATIONS. The parties hereto
agree that, in the event of termination of this Agreement by Lessor
pursuant to clause (i) of Section 9(b) hereof, Lessee's obligation to
pay Rent for the remainder of the term of this Agreement pursuant to
the terms of this Agreement shall continue, and Lessee shall remain
liable to pay to Lessor all such amounts owed to Lessor which have
accrued (whether or not invoiced) prior to such termination. This
subsection shall not otherwise limit the remedies available to a party
upon the breach of this Agreement by the other party.
10. INDEMNIFICATION.
(a) INDEMNIFICATION BY LESSEE. Lessee shall indemnify,
hold harmless and defend Lessor, its officers, directors, shareholders
and employees from and against any and all liability, losses, damages,
claims, causes of action and expenses (including reasonable attorneys
fees) whether or not covered by insurance, caused or asserted to have
been caused, directly or indirectly by or as a result of the
performance of Lessee's obligations under this Agreement or the
performance of any intentional acts, negligent acts, or omissions by
any physician employed or contracted by Lessee during the term hereof.
(b) INDEMNIFICATION BY LESSOR. Lessor shall indemnify,
hold harmless and defend Lessee, its officers, directors, shareholders
and employees from and against any and all liability, losses, damages,
claims, causes of action, and expenses (including reasonable attorneys
fees), whether or not covered by insurance, caused or asserted to have
been caused, directly or indirectly, by or as a result of the
performance of Lessor's obligations under the Agreement, or any
intentional acts, negligent acts or omissions by Lessor, and/or its
agents or employees and/or license holders (other than Lessee) during
the term of this Agreement.
(c) LIMITATION ON REMEDIES. Notwithstanding the foregoing
or any other provision of this Agreement to the contrary, Lessor or
Lessee shall not hold the other liable (and neither shall have a claim
for indemnification from the other) for any incidental or consequential
damages, including but not limited to lost profits.
11. CHANGES IN LAW. Either party shall have the right to terminate
this Agreement upon written notice to the other, without liability, if on the
advice of counsel experienced in such matters, such party determines in such
party's reasonable judgment that the terms of this Agreement are more likely
than not to be interpreted to violate an applicable law or regulation, would
jeopardize such party's status as a recipient of governmental or private funds
for the provision of health care services, or would subject the party to risk of
civil or criminal sanctions. Notwithstanding the foregoing, the parties shall
first use reasonable efforts to amend this Agreement to the extent necessary to
conform the potentially volatile terms to the applicable law or regulation, and
if a party determines, in such party's reasonable judgment, that an amendment
will not result in compliance, then such party then may terminate this Agreement
as provided in the first sentence of this Section 11.
12. INDEPENDENT CONTRACTOR. This Agreement is not intended, and
shall not be construed, to create a joint venture, partnership or association as
between Lessor and Lessee. Each party is an independent contractor of the other.
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13. TAXES. Lessee shall pay any sales taxes or other taxes that
are or may be levied by the State of Florida and local or city governments
related to the lease of the PET Services by Lessor to Lessee. Should a similar
or substitute tax be assessed, Lessee authorizes Lessor to add to the amount of
each payment of Rent due hereunder any sales, use or leasing tax that may be
imposed on or measured by such Rent. Lessor shall pay any Public Medical
Assistance Trust Fund ("PMATF") taxes or similar assessments, or other taxes
related to the technical component of PET diagnostic services provided at the
PET Center, that are or may be levied by the State of Florida and local or city
governments. Lessor also shall be responsible, at Lessor's sole cost and
expense, for any and all other taxes payable or required to be collected in
connection with the lease of the Premises, the ownership of the Equipment,
employment of the Personnel or otherwise in connection with this Agreement,
including without limitation, any personal property taxes relating to the
Equipment, Lessor's income taxes, and any tax due in connection with Lessor's
leasing from a third party of the Premises, the Equipment or the Personnel.
14. RECORDS MAINTENANCE AND RETENTION.
(a) MAINTENANCE AND ACCESS. To the extent applicable and
if and so long as required by law, and subject to applicable law
regarding the privacy and confidentiality of individually identifiable
health information, each party will comply with the requirements of 42
U.S.C. 1395x(I), et seq., and 42 C.F.R. 420.300, et seq.. In this
connection, each party will: (i) keep and maintain detailed records
(including, without limitation, accounts, vouchers, receipts, invoices,
correspondence, memoranda, drawings, and similar data, whether in
written, printed, photocopied or electronic form or format) of all PET
diagnostic services performed and costs incurred by Lessee and all PET
Services leased and costs incurred by Lessor, as the case may be, under
this Agreement; (ii) retain such records throughout the term(s) of this
Agreement and for a four (4) year period following the expiration or
termination of the Agreement, with or without cause; and (iii) permit
such records to be examined by the Secretary of the U.S. Department of
Health and Human Services, the Comptroller General of the United
States, and/or any of the foregoing persons' duly authorized
representatives. Each party also shall permit examination and copying
of such records by any regulatory and health insurance authorities and
reimbursement agents, if such third parties require such examination
and/or copying as a condition for advancing funds to or reimbursing
Lessee or granting permits or approvals to the PET Center. All such
examinations and copying will be upon such terms as Lessor or Lessee,
as the case may be, may reasonably impose and shall be at no cost to
the other party. The provisions set forth in this Section 14(a) will be
included in all contracts for services entered into by Lessee relating
to goods and services provided to it, the cost or value of which is Ten
Thousand Dollars ($10,000.00) or more over a twelve (12) month period,
including, without limitation, contracts for both goods and services in
which the service component is worth Ten Thousand Dollars ($10,000.00)
or more over a twelve (12) month period. In all events, each party will
immediately notify the other party upon the party's receipt of any such
request for examination or copies of such materials and any oilier
books, documents and records, and will provide the other party with
copies of any such materials simultaneously with such examination or
any transmittal of the same in accordance with any such request.
-11-
(b) HIPAA COMPLIANCE. Notwithstanding the provisions of
Section 14(a) above, the disclosure of any information concerning or
relating to any patients of Lessee for whom PET diagnostic services are
rendered will be handled in a manner that is consistent with the
provisions of 42 U.S.C. 1171, et seq., enacted as part of the Health
Insurance Portability and Accountability Act of 1996, and the
regulations promulgated thereunder.
(c) SURVIVAL. The provisions of this Section 14 will
survive the expiration or termination, with or without cause, of this
Agreement.
15. COMPLETE AND ENTIRE AGREEMENT. This Agreement and the Exhibits
hereto constitute the entire agreement between the parties with respect to the
subject matter covered herein, and there are no representations, warranties or
covenants between the parties other than as specified herein. This Agreement
supersedes any and all prior agreements and understandings related to the
subject matter hereof.
16. ASSIGNMENTS. This Agreement may not be assigned by either
party without the prior written consent of the other party, which consent shall
not be unreasonably withheld or delayed. Any attempt to make any assignment in
violation of the provisions hereof shall be null and void.
17. FORCE MAJEURE. If either party's ability to perform its
obligations hereunder is limited or prevented in whole or in part due to act of
God, war, invasion, acts of foreign enemy, hostilities (whether war be declared
or not), strikes and/or industrial disputes, delay on the part of the supplier
or transportation delay, such party, without liability of any kind, shall be
excused, discharged, and released from performance to the extent such
performance is limited, delayed or prevented.
18. WAIVER OF BREACH. No waiver of a breach of any provision of
this Agreement shall be construed to be a waiver of any breach of any other
provisions of this Agreement or of any succeeding breach of any provision of
this Agreement.
19. AMENDMENT OF AGREEMENT. This Agreement shall not be altered or
amended except pursuant to any instrument or writing signed by the party against
whom enforcement is sought.
20. NOTICES. Except as otherwise expressly set forth herein, all
notices, requests, demands, and other communications hereunder shall be in
writing and shall be deemed to have been received when deposited in the United
States mail, certified or registered and with proper postage prepaid, or upon
delivery, when sent by overnight courier, charges prepaid, addressed to the
party for whom intended at such party's address as set forth below:
If to Lessee: Xxxxxx X. Doseretz, M.D.
21st Century Oncology, Inc.
0000 Xxxxxxxx Xxxx.
Xxxx Xxxxx, Xxxxxxx 00000
If to Lessor: Xxxxxxx X. Xxxx, COO
Radiology Regional Center, P.A.
0000 Xxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
-12-
Any person to whom notice or copies of notices maybe given hereunder may from
time to time change said address by written notices as provided herein.
21. CONFIDENTIALITY. Lessor and Lessee hereby agree to maintain in
confidence and agree not to disclose the terms and provisions of this Agreement,
except as such disclosure may be necessary to attorneys, accountants,
consultants, lenders, investors, or regulators, or pursuant to judicial order or
subpoena. In this regard, Lessor and Lessee each agree to use their good faith
efforts to prevent any and all such persons retained by them from disclosing any
information to third parties with regard to this Agreement, other than as such
disclosure may be necessary in connection with the matters expressly set forth
hereinabove.
22. NO REFERRALS REQUIRED. The parties agree that no part of this
Agreement shall be construed to induce or encourage the referral of patients or
the purchase of health care services or supplies. The parties acknowledge that
there is no requirement under this Agreement or any other agreement between them
that any party refer any patients to any health care provider or purchase any
health care goods or services from any source. Additionally, no payment under
this Agreement is in return for the referral of patients or in return for
purchasing or ordering services from either party or any affiliates of either
party. The parties may refer patients to any company or person providing
services and will make such referrals, if any, consistent with professional
medical judgment and the needs and wishes of the relevant patients.
23. MISCELLANEOUS.
(a) GOVERNING LAW; VENUE; TIME OF THE ESSENCE. This
Agreement and the rights of the parties hereunder shall be governed by
and interpreted in accordance with the laws of the State of Florida.
Venue for any action, suit or proceeding, including arbitration arising
out of, under, or in connection with this Agreement shall be brought in
Xxx County, Florida. Time shall be of essence as to all provisions in
this Agreement.
(b) BINDING EFFECT. Except as herein otherwise
specifically provided, this Agreement shall be binding upon and inure
to the benefit of the Lessor, the Lessee and their legal
representatives, administrators, successors and permitted assigns.
(c) ATTORNEYS FEES. In the event that either party must
engage legal counsel to undertake litigation or arbitration to enforce
or interpret its rights or obligations hereunder, the losing party in
such legal proceeding or arbitration, as the case may be, shall pay all
attorneys' fees and other costs of enforcement, including but not
limited to paralegals' fees and out-of-pocket advances and
disbursements.
(d) SEVERABILITY. If any provision of this Agreement is
held to be invalid, illegal or unenforceable, then that provision
shall be reformed to the maximum extent permitted to preserve the
parties' original intent as agreed by the parties; failing which, such
provision shall be severed from this Agreement with the balance of the
Agreement continuing in full force and effect. Such occurrence shall
not have the effect of rendering the provision in question invalid
-13-
in any other jurisdiction or in any other case or circumstance, or of
rendering invalid any other provisions of this Agreement to the extent
that such other provisions are not themselves actually in conflict with
any applicable Law.
(e) FURTHER DOCUMENTATION. Each of the parties hereto
agrees to execute any document or documents that may be requested from
time to time by the other party to implement or complete such party's
obligations pursuant to this Agreement and to otherwise cooperate fully
with such other party in connection with the performance of such
party's obligations hereunder.
(f) ARBITRATION. Any dispute arising under this Agreement
shall be settled by arbitration under the rules and under the auspices
of the American Health Lawyers Association ("AHLA"). All arbitration
proceedings shall be conducted in Xxx county, Florida. The cost of
obtaining such arbitration proceeding, including, without imitation,
fees to AHLA and the selected arbitrators, shall be borne entirely by
the losing party.
(g) RADON GAS. Pursuant to Section 404.056(5), Florida
Statutes, the following disclosure is made: "RADON GAS: Radon is a
naturally occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to persons
who are exposed to it over time. Levels of radon that exceed Federal
and State guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be
obtained from your County health department."
(h) CAPTIONS/INTERPRETATION. Captions contained in this
Agreement are inserted only as a matter of convenience and in no way
define, limit or extend the scope or intent of this Agreement or any
provision thereof. This Agreement shall not be construed more strongly
against any party regardless of who is responsible for its preparation.
(i) COUNTERPARTS. This Agreement may be executed in
several counterparts, and all so executed shall constitute one
Agreement binding on all parties hereto.
[Signature Page Follows]
-14-
IN WITNESS WHEREOF, the parties have executed this PET Services Office,
Equipment and Personnel Lease Agreement the day, month, and year first above
written.
LESSEE: 21st CENTURY ONCOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
Its: /s/ President
RADIOLOGY REGIONAL CENTER, P.A.
LESSOR:
By: /s/ Illegible
Its: Chief Executive Officer
-15-
EXHIBIT B
Equipment
---------
ECAT Exact PET System
Sublimal Dye & Film Imager
Uninterruptible Power Supply
Isolation Transformer
Gantry Air/Water Chiller
Ultrasparc Display Workstation
Kodak Pacs Link Print Connection
Ancillary Medical and Business Equipment
Office Furniture, including desks and chairs utilized by
Personnel, waiting room furniture and furnishings
EXHIBIT C
PERSONNEL
Supervisory Staff
Nuclear Medicine Technologist
Paramedic
Receptionist
Film Library Staff
Courier with vehicle
Schedulers
Transcriptionists
The "qualified physician" mentioned above will be a
radiologist who is appropriately licensed, trained and
certified to provide PET diagnostic services. Lessee will
engage the physician during each Scheduled Time pursuant to a
separate agreement, which will specify the physician's duties,
the time schedule of such engagement and such other matters as
the parties deem appropriate. Lessee will provide Lessor with
written information regarding the compensation paid and to be
paid by Lessee to such physician.
EXHIBIT D
SCHEDULED TIMES AND RENTAL RATES; SUPPLY EXCEPTIONS
SCHEDULED TIMES:
Scheduled Times will be the following hours on the following days each week
[cross out days that are not applicable]:
October 1, 2001 through December 31, 2001
From ___ a.m./p.m. to ___ a.m./p.m. on Monday.
From 8 a.m. to 10 a.m. on Tuesday.
From ___ a.m./p.m. to ___ a.m./p.m. on Wednesday.
From 1 p.m. to 3 p.m. on Thursday.
From ___ a.m./p.m. to ___ a.m./p.m. on Friday.
January 1, 2002 and Thereafter
From 1 p.m. to 2 p.m. on Monday.
From 8 a.m. to 10 a.m. on Tuesday.
From 1 p.m. to 3 p.m. on Wednesday.
From 8 a.m. to 10 a.m. on Thursday.
From 8 a.m. to 9 a.m. on Friday.
At the end of each one-ear period during the initial term, and for each
one-year renewal term, if any, the parties will evaluate the Lessee's needs for
the subsequent one-year period, and the number of Scheduled Time may be changed
for the subsequent one-year period, as of the start of the next one-year period
(commencing on the applicable anniversary of the Starting Date).
RENT:
Rent at Eight Hundred Dollars ($800.00) per hour of Schedule Time. Based upon
the Scheduled Times specified above, the aggregate Rent to be paid each month
during the period beginning October 1, 2001 and ending December 31, 2001
Thirteen Thousand Eight Hundred Sixty-Six Dollars and Sixty-Seven Cents
($13,866.67), plus applicable sales tax. For each month thereafter, the
aggregate Rent to be paid will be Twenty Seven Thousand Seven Hundred
Thirty-Three Dollars and Thirty-Three Cents ($27,733.33), plus applicable sales
tax.
SUPPLY EXCEPTIONS:
Billed monthly by Lessor to Lessee, and payable by Lessee within ten (10) days
after receipt of Lessor's invoice, at cost of amount of supply actually used by
Lessee, including:
1 Injectable Radiopharmaceutical Diagnostic Imaging Agent
[Currently X-
00 Xxxxxxxxxxxxxxxxxx (XXX), HCPCS code A4641]
If a supply invoice is not paid within ten (10) days of receipt, then Lessor
shall impose a late fee equal to five percent (5%) of the amount of the past due
supply invoice.
-20-
AMENDMENT 2 TO RRC/21ST CENTURY ONCOLOGY, INC., PET SERVICES, OFFICE,
EQUIPMENT AND PERSONNEL LEASE AGREEMENT - XXXXXXX
THIS AMENDMENT NUMBER 2 IS MADE THIS __TH DAY OF SEPTEMBER, 2003 TO THE
OFFICE, EQUIPMENT AND PERSONNEL LEASE AGREEMENT ("AGREEMENT") ORIGINALLY ENTERED
INTO AS OF OCTOBER 1, 2001, BY AND BETWEEN RADIOLOGY REGIONAL CENTER, P.A.,
("LESSOR") AND 21ST CENTURY ONCOLOGY, INC. ("LESSEE").
WITNESS:
WHEREAS, AGREEMENT CARRIES A RENEWAL TERM SET TO EXPIRE ON SEPTEMBER
30, 2003; AND,
WHEREAS, AGREEMENT HAS BEEN IN FULL FORCE AND EFFECT FOR ONE FULL
YEAR; AND,
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS AND THE
MUTUAL COVENANTS, TERMS AND CONDITIONS, AND AGREEMENTS HEREAFTER PROVIDED, THE
PARTIES MUTUALLY AGREE TO AMEND AND RENEW AGREEMENT AS FOLLOWS:
The term of the Agreement is hereby extended to September 30, 2004.
Rent is $750.00 Seven Hundred Fifty Dollars per hour. Based upon the
scheduled Times specified in Exhibit D, the aggregate Rent to be paid
for each week during the period beginning October 1, 2003 and ending
December 31, 2003, Three Thousand Dollars ($3,000.00), plus applicable
sales tax. For each week from January 1, 2004 through April 30, 2004,
inclusive, Thirty-seven Hundred Fifty Dollars ($3,750.00), plus
applicable sales tax. For each week from May 3, 2004 through September
30, 2004, inclusive, Three Thousand Dollars ($3,000.00), plus
applicable sales tax.
Billed monthly by Lessor to Lessee, and payable by Lessee within ten
(10) days after receipt of Lessor's invoice, at cost of amount of
supply actually used by Lessee, limited to F-18
Fluorodeoxyglucose(FDG).
IN WITNESS WHEREOF, the parties have executed this Amendment the day, month and
year first above written.
LESSEE:
21st CENTURY ONCOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Its:
----------------------------
LESSOR:
RADIOLOGY REGIONAL CENTER, P.A.
By:
----------------------------
Its:
----------------------------
EXHIBIT D
SCHEDULED TIMES AND RENTAL RATES; SUPPLY EXCEPTIONS
SCHEDULED TIMES:
Scheduled Times will be the following hours on the following days each week:
October 1, 2003 through December 31, 2003
From a.m./p.m. to a.m./p.m. on Monday.
From 8:00 a.m./p.m. to 10:00 a.m./p.m. on Tuesday.
From a.m./p.m. to a.m./p.m. on Wednesday
From 1:00 a.m./p.m. to 3:00 a.m./p.m. on Thursday.
From a.m./p.m. to a.m./p.m. on Friday.
January 1, 2004 through April 30, 2004
From a.m./p.m. to a.m./p.m. on Monday.
From 8:00 a.m./p.m. to 10:00 a.m./p.m. on Tuesday.
From a.m./p.m. to a.m./p.m. on Wednesday
From 1:00 a.m./p.m. to 3:00 a.m./p.m. on Thursday.
From 11:00 a.m./p.m. to 12:00 a.m./p.m. on Friday.
May 3, 2004 through September 30, 2004
From a.m./p.m. to a.m./p.m. on Monday.
From 8:00 a.m./p.m. to 10:00 a.m./p.m. on Tuesday.
From a.m./p.m. to a.m./p.m. on Wednesday
From 1:00 a.m./p.m. to 3:00 a.m./p.m. on Thursday.
From a.m./p.m. to a.m./p.m. on Friday.
At the end of each one-year period during the initial term, and for each
one-year renewal term, if any, the parties will evaluate the Lessee's needs for
the subsequent one-year period, and the number of Scheduled Time may be changed
for the subsequent one-year period, as of the start of the next one-year period
(commencing on the applicable anniversary of the Starting Date).
