EXHIBIT 10.52.1
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the "Agreement") is made as of the 31st day of
March, 2001 (the "Effective Date"), by and between THREE RIVERS DIALYSIS
SERVICES, LLC, a Delaware limited liability company (the "Company"), and DMN OF
INDIANA CORPORATION, an Indiana corporation ("DMN").
BACKGROUND
DMN and its parent corporation, Renal Care Group, Inc. ("RCG"), are engaged
in the business of owning, operating, and managing dialysis centers. The Company
intends to develop and will thereafter own and operate an outpatient dialysis
center in Van Wert, Ohio at the location listed on Exhibit A, as such exhibit
may be amended from time to time to list accurately all outpatient centers
operated or maintained by the Company, including newly acquired or built
outpatient dialysis centers (the "Centers"). The Company desires that DMN, as
"General Manager," manage the operations of the Centers pursuant to this
Agreement, and DMN is willing to serve as General Manager under the terms set
forth in this Agreement. The Company further desires that DMN have
responsibility for the acquisition, development, construction and equipping of
the Centers under the terms set forth in this Agreement. Therefore, the Company
and DMN agree as follows:
ARTICLE I.
AUTHORITY OF THE PARTIES
1.1 Policy Formulation. DMN shall formulate general administrative and
operational policies for the Company and its Centers, which shall be subject to
approval by the Managers of the Company (the "Managers") as set forth in the
Three Rivers Dialysis Services, LLC Limited Liability Company Agreement (the
"Joint Venture Agreement"). Upon approval by the Managers, DMN shall implement
and carry out such policies, in the manner specified in this Agreement. In no
event shall DMN establish or adopt any policy or procedure that directly affects
the provision of medical care to patients without the prior written approval of
the Managers.
1.2 Grant of Day-to-Day Management Authority. Subject to the limitations
set forth in this Agreement, the Company hereby grants and delegates to DMN the
authority to supervise and manage the day-to-day operations of the Company and
the Centers and to perform the other specific functions set out in this
Agreement.
1.3 Grant of Development Authority. Subject to the limitations set forth in
this Agreement, the Company hereby grants and delegates to DMN the authority to
supervise and manage the location, acquisition, design, construction and/or
development of the Center and any new centers that the Company determines to
acquire or develop ("New Centers") and to perform the other specific functions
set out in this Agreement with respect to the development of the Center and any
New Centers. RCG will prepare, among other things, a capital budget for each
Center, which shall be reviewed by the Managers and the Medical Director (as
defined below) and approved by the Managers. The development services to be
provided by DMN are described more fully in Exhibit C.
1.4 Ultimate Control. The Company shall at all times exercise ultimate
authority and control over the business of the Company, including authority and
responsibility regarding the powers, duties and responsibilities vested in the
Company with respect to the Centers by applicable law and regulations. Without
limiting this authority, the Managers shall retain authority to approve, in
advance,
(a) all decisions and actions of the Company that are outside the ordinary
course of the Company's business; (b) site selection for New Centers; (c)
selection and replacement of the Administrator; and (d) any Budget (as defined
below) or any significant modifications to any Budget.
1.5 Relationship of the Parties. This Agreement reflects the appointment of
DMN as the General Manager of the Company and its Centers. Nothing in this
Agreement shall be construed to render either party the employer or employee of
the other, agent or principal of the other, or joint venturer or partner of the
other. Neither party shall have the right to bind the other party, to exercise
control of the other party, or to conduct the other party's business, except as
expressly set forth in this Agreement.
ARTICLE II.
ON-SITE MANAGEMENT PERSONNEL
2.1 Appointment of Administrator. DMN shall appoint an administrator for
the Centers (the "Administrator"), who shall be an employee of DMN or a
corporate subsidiary of RCG. DMN shall permit the Medical Director to interview
and comment upon any prospective administrator prior to engaging him or her as
Administrator under this Agreement, and DMN shall consider in good faith the
comments of the Medical Director concerning such prospective administrator.
Compensation and benefits to be paid to and on behalf of the Administrator shall
be competitive with similarly situated administrators and shall be set forth in
the Budget. DMN shall be responsible for ensuring that the Administrator
performs fully under the terms of this Agreement, and DMN shall be liable to the
Company for any breaches of any duties, responsibilities, representations,
warranties or covenants of the Administrator.
2.2 Administrator Responsibilities. The Administrator shall have general
day-to-day responsibility for managing the Centers, except with respect to
matters over which the Medical Director has authority (as more fully described
in Section 4.1 below). The Administrator will consult with the Medical Director
of each Center regarding staffing, budgeting, purchasing of medical supplies and
equipment, and other matters having clinical significance. The Administrator may
perform other duties that DMN deems appropriate that do not interfere with the
performance of the Administrator's duties under this Agreement.
2.3 Reimbursement of Costs of Administrator. DMN shall be reimbursed by the
Company, as part of DMN's direct operating costs for managing the Company and
the Centers and/or the development costs of the New Centers, for all costs
associated with providing the Administrator as required by this Agreement,
including salary and benefit packages for the Administrator. DMN shall invoice
the Company for such costs every two weeks, and the Company shall make payment
to DMN within five business days after its receipt of such invoice.
2.4 Other Personnel. DMN shall employ and supervise all other personnel
reasonably necessary to perform its duties under this Agreement to operate the
Centers, and in its discretion may remove, reassign or relocate such other
personnel as it deems appropriate. The Company shall reimburse DMN, as part of
DMN's direct operating and/or development costs for the Centers, for all costs
(including wages, salaries and benefits) associated with providing local
personnel and independent contractors assigned to and performing services at the
Centers. DMN shall invoice the Company for such costs every two weeks, and the
Company shall make payment to DMN within five business days after the Company's
receives of such invoice. To the extent such services are performed by personnel
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located at DMN's or RCG's corporate or regional offices, the costs associated
with providing such personnel will be included in the Management Fee (as defined
below).
2.5 Responsibility for Personnel. In no event will the employees of any of
DMN, RCG or any subsidiary of RCG be deemed employees of the Company, and, as
such, no employee of DMN, RCG or any subsidiary of RCG shall be entitled to any
employee benefits including vacation pay, sick leave, retirement benefits,
Social Security, workers' compensation, or disability or unemployment insurance
benefits that may be provided or made available to the Company's employees, if
any. The terms of this Section 2.5 shall take precedence over any inconsistent
terms that may be found in the policies or other documents of the Company as
presently existing or as amended.
ARTICLE III.
ADMINISTRATIVE SERVICES
3.1 General Responsibilities and Services. DMN shall perform the services
described in this Article III and all related functions as reasonably necessary
for the effective management of the Centers, including, without limitation, the
services listed on attached Exhibit B. To facilitate the performance of these
services, the Company appoints DMN as its true and lawful attorney-in-fact to
(a) xxxx and collect all charges and reimbursements for services, devices and
supplies rendered by the Centers, as contemplated by Section 3.4 of this
Agreement; (b) take possession of and endorse in the name of the Company all
cash, notes, checks, money orders, insurance payments and any other instruments
received as payment of changes of the Centers and accounts receivable; (c)
deposit all collections into depository accounts and make withdrawals from such
accounts, as contemplated by Sections 3.5 and 3.6 below; (d) with the prior
written consent of the Managers, place accounts for collection, institute legal
action for the recovery of accounts, and settle and compromise claims; and (e)
incur obligations and enter into agreements on behalf of the Company, as
contemplated and limited by Section 3.8 below.
3.2 Annual Operating and Capital Budget. Not later than November 15 of each
calendar year, DMN shall prepare and present to the Managers and the Medical
Director a proposed annual operating and capital budget for the Company (the
"Budget") for the following calendar year. The Company and the Medical Director
shall have 30 days in which to review the Budget and any material objections or
necessary changes to the Budget shall be in writing. DMN shall promptly respond
to any objections and requested changes, after which the Company shall approve
the Budget.
3.3 Regulatory Compliance. DMN shall apply for and maintain, on behalf of
and in the name of the Company, and with the Company's cooperation and
assistance, all state and federal licenses, permits, certifications and
approvals required in connection with the management and operation of the
Centers, including an End Stage Renal Dialysis Medicare provider number ("ESRD
Number"), except that the Company shall be solely responsible for any required
Certificates of Need. If requested by the Company, DMN shall also apply for and
maintain on behalf of and in the name of the Company, and with the Company's
cooperation and assistance, accreditation by the Joint Commission on
Accreditation of Healthcare Organizations ("JCAHO") for the Centers. RCG shall
prepare and submit on behalf of the Company all necessary reports and filings,
including cost and utilization reports, supporting data and other material
required in connection with applicable federal and state reimbursement programs
and other third-party payment contracts and programs in which the Company may
from time to time participate. In addition, RCG shall use commercially
reasonable efforts consistent with the operation of its other dialysis
facilities to cause the Company to be in compliance with all local, state and
federal laws and regulations of agencies having jurisdiction over the Company or
operations of the Centers and to comply
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with requirements of payors if the failure to comply with such laws would have a
material adverse effect on the Company.
3.4 Billing and Collection of Accounts. DMN shall design, implement and
maintain a billing and collection system appropriate for the Centers'
operations. The system shall require that all bills be issued under the
applicable Center's ESRD Number.
3.5 Deposits. DMN shall promptly deposit all funds it receives on behalf of
the Company in accounts with banks or other depository institutions. Any
investment of funds of the Company other than in such accounts must be approved
in advance by the Manager.
3.6 Payment of Expenses. Subject to the approved Budget, DMN shall pay, or
reimburse itself out of the accounts described in Section 3.5, all operating
expenses of the Centers. Operating expenses of the Centers shall include, but
not be limited to: the fees payable under this Agreement, payroll (wages,
salaries and benefits) and expenses relating to personnel working at the
Centers; lease payments for the Centers; the cost of utilities, maintenance and
supplies (both medical and nonmedical) for the Centers; equipment (both medical
and non-medical, including computer hardware) for the Centers; and other direct
variable and fixed expenses incurred by DMN in the operation of the Centers that
are not included as part of the Management Fee. The expenses included in the
Management Fee are the expenses incurred in performing the services set forth on
the attached Exhibit B. Each annual Budget shall identify by job description or
position personnel working at the Centers or local administrative offices of the
Company whose compensation and benefits (or a portion thereof) will be operating
expenses of the Centers. The Company shall also reimburse DMN for any direct
expenses incurred in the design, construction and development of New Centers,
which expenses were incurred in accordance with the capital budget.
3.7 Accounting Records and Reports. DMN shall implement and maintain an
accounting system appropriate and adequate for the needs of the Company and
shall provide to the Company, on or before the last business day of each month,
monthly unaudited financial statements for the prior month for each Center.
These financial statements shall be prepared on an accrual basis in accordance
with generally accepted accounting principles consistently applied. Within 90
days after the end of each fiscal year of the Company, DMN will provide to the
members in the Company such financial information necessary to permit them to
prepare their tax returns, and within 120 days after the end of each fiscal year
of the Company, DMN will provide to the Partners in the Company unaudited
financial statements for the prior fiscal year prepared in accordance with
generally accepted accounting principles, which financial statements include a
comparison of actual performance to Budget. In addition, the Managers may, at
any time upon reasonable advance notice to DMN, and the members in the Company
may, to the extent permitted under the Joint Venture Agreement, inspect the
books and records of the Company.
3.8 Ancillary and Other Agreements. On behalf of the Company, and subject
to the restrictions contained in the Joint Venture Agreement, DMN shall
negotiate and enter into agreements as DMN reasonably deems necessary or
advisable for the provision to the Centers of utilities, concessions, supplies
and non-physician services that are not provided directly by DMN under this
Agreement.
3.9 Notification of Complaints. DMN shall notify the members in the Company
within a reasonable time following any inquiry, notice or claim alleging any
material deficiency or violation of local, state or federal law, ordinance or
regulation. DMN also shall notify the Managers and the Medical Director of any
claims or complaints by patients, providers, employees or contractors pertaining
to the operation of the Centers or the use of their assets that could reasonably
be expected either to damage the reputation of the Company or to subject the
Company to substantial monetary liability.
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ARTICLE IV.
DUTIES OF THE COMPANY
4.1 Medical Practice and Medical Directors. DMN shall not be responsible
for the provision of physician care to patients of the Centers. Each Center
shall have a medical director (the "Medical Director"), who shall supervise all
professional medical services performed in the Center(s) for which the Medical
Director is responsible. The Medical Director shall also undertake overall
coordination of utilization review, quality assurance and related functions as
directed by the Company. The Medical Director shall also consult with the
Administrator on a regular basis regarding staffing, budgeting, purchasing of
medical supplies and equipment and other matters of clinical significance. The
Medical Director may perform other duties as the Company deems appropriate that
do not interfere with the performance of the Medical Director's duties under the
applicable medical director agreement.
4.2 Data and Information. The Company and DMN shall provide to each other,
without charge, such necessary and relevant data and information in the
possession of such party as shall be reasonably required or requested by the
other party in order to enable it to perform its duties under this Agreement.
4.3 Cooperation with DMN. The Company shall cooperate with DMN to
facilitate DMN's efficient performance of its management responsibilities under
this Agreement
4.4 Patient Records. All patient medical records shall be and remain the
sole property of the Company and shall be maintained at the Centers.
Notwithstanding the foregoing, the Company shall, subject to applicable laws
relating to disclosure of patient records, at all times during the term of this
Agreement, make available to DMN any medical records determined by DMN to be
necessary to perform its services and carry out its responsibilities under this
Agreement. DMN and the Company shall jointly implement procedures to preserve
the confidentiality of patient medical records and shall cooperate in compiling
data regarding patient treatment costs and outcomes. So long as the use of the
compiled data is not prohibited by applicable laws, DMN and RCG will have the
non-exclusive right to use, develop and license such compiled data to third
parties.
ARTICLE V.
COMPENSATION TO DMN
5.1 Compensation. In consideration of the services to the Company to be
provided by DMN pursuant to this Agreement, and in addition to the reimbursement
of any costs or expenses as contemplated by this Agreement, the Company will pay
DMN, as a reimbursement of indirect expenses and overhead associated with
providing services under this Agreement, a management fee equal to six percent
(6%) of the Net Revenues of the Centers (the "Management Fee"). The services for
which RCG will be compensated pursuant to the Management Fee are those described
in Exhibit B and Exhibit C. Each year's estimated Management Fee shall be
contained in the Budget. For purposes hereof, the term "Net Revenues" means all
gross revenues of the Centers, determined in accordance with generally accepted
accounting principles, minus contract allowances, bad debts and charity care.
The Company acknowledges and agrees that the fees to be paid to DMN under this
Agreement resulted from arms-length negotiations between DMN and the members of
the Company other than DMN and constitute fair and equitable consideration for
the services to be provided by DMN.
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5.2 Manner of Payment. The Management Fee shall be paid monthly on or
before the tenth business day of each month. DMN may reimburse itself for the
Management Fee, as contemplated by Section 3.5 of this Agreement.
ARTICLE VI.
OWNERSHIP OF WORK PRODUCT
All operating procedures, protocols, information systems, operating data,
computer data bases, reports and other non-public proprietary business systems
or information owned by DMN or RCG and used in the performance of services
hereunder are and shall be and remain the exclusive property of DMN or RCG, as
appropriate. DMN hereby grants the Company a non-exclusive license to use such
DMN proprietary business systems and information until such time as neither DMN
nor any affiliate of RCG is a member in the Company.
ARTICLE VII.
INSURANCE AND INDEMNIFICATION
7.1 Indemnification. Each party (the "Indemnifying Party") shall indemnify,
save and hold harmless the other party (the "Indemnified Party") from and
against any and all judgments, damages, costs and expenses, including reasonable
attorney's fees, paid or incurred by the Indemnified Party and arising out of
the breach of this Agreement or negligent acts or omissions, intentional
misconduct, or unlawful acts of Indemnifying Party. Indemnified Party shall
promptly notify Indemnifying Party of any claim, demand or action, or any
incident of which Indemnified Party has actual or constructive knowledge, which
may reasonably result in a claim, demand or action, and for which Indemnified
Party will look to Indemnifying Party for indemnification under this Section. In
addition, Indemnified Party, its managers, directors, officers, employees and
servants, shall cooperate fully with Indemnifying Party in Indemnifying Party's
investigation and review of any such claim, demand, action or incident and shall
not enter into any admissions, agreements or settlements that may affect the
rights of Indemnified Party or Indemnifying Party without the prior written
consent of Indemnifying Party. Indemnifying Party shall have the right, in its
sole discretion, to assume the defense of Indemnified Party in any such claim,
action or proceeding.
7.2 Defense of Third Party Claims. If the Indemnifying Party assumes the
defense of a claim by a third party, the Indemnified Party shall have the right
to employ separate counsel in any such claim, but the fees and expenses of the
Indemnified Party's counsel shall be at the expense of the Indemnified Party,
unless (a) employment of such counsel and payment of the resulting fees and
expenses has been specifically authorized in writing by the Indemnifying Party,
or (b) in the reasonable judgment of such independent counsel, employment of
such counsel is necessary because the claim or defense for which such counsel is
employed is inconsistent or in conflict with the claims or defenses of the
Indemnifying Party, or (c) the Indemnified Party has reasonably concluded, based
on advice of counsel, that there may be claims or defenses available to it that
are different from or in addition to those available to the Indemnifying Party.
In the cases described in (a) through (c) above, such fees and expenses will be
borne by the Indemnifying Party.
7.3 Professional Liability Insurance. The Company and each physician that
provides services at or through the Centers shall maintain professional
liability insurance with policy limits of at least $200,000 per occurrence and
$600,000 in the aggregate per year and an umbrella policy in the amount of
$10,000,000. The Company shall provide DMN with certificates or other evidence
of said
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coverage and will promptly notify DMN of any cancellation or significant change
30 days prior to such cancellation or significant change. If such coverage is
written on a claims made form, then the Company shall maintain the coverage for
a period of no less than five years following termination of this Agreement or,
if earlier terminated, the Company shall procure and maintain full tail coverage
that provides the same coverage as the terminated policy.
7.4 Other Insurance. DMN, on behalf of and at the expense of the Company,
shall obtain
(a) fire and extended coverage insurance with respect to the Centers
and their contents, and
(b) general liability insurance coverage with policy limits of at
least $1,000,000 per occurrence and $3,000,000 in the aggregate per year with
respect to the Company's ownership of the Centers. DMN and RCG shall be named as
additional insureds under the general liability policy.
ARTICLE VIII.
TERM AND TERMINATION
8.1 Term. This Agreement shall commence on the date of its execution, and
shall continue until the tenth anniversary of the commencement of operations at
the first Center opened by the Company, unless terminated earlier by mutual
agreement, by dissolution of the Company or in accordance with this Article.
9.2 Causes for the Company Termination. The Company may terminate this
Agreement prior to its expiration for "cause" under any of the following
conditions relative to the duties or responsibilities to be performed hereunder:
(i) conviction of DMN or any of its employees (in his or her capacity as an
employee of DMN) of a felony related to the operation of the business of the
Company; (ii) suspension or revocation of the licenses or authorizations
required to be maintained by DMN or any of its applicable employees or
involuntary termination from Medicare or Medicaid programs available to the
Company; (iii) the issuance of a trial court civil judgment against DMN or any
of its employees (in his or her capacity as an employee of DMN) for negligence,
fraud or acts of theft or embezzlement against, or in connection with the
business of, the Company; (iv) material breach of any terms, provisions,
representations or warranties set forth in this Agreement by DMN; or (v) failure
by DMN of any representation warranty to be true and correct in all material
respects when made, or deemed to be made; provided that no such termination
shall occur unless the Company notifies DMN of the breach in writing and DMN
does not cure or commence good faith efforts to cure the breach within 30 days
after written notice of the breach and diligently pursue the cure to completion.
The parties recognize that the Centers may from time to time receive notice of
deficiencies in compliance with various health care rules and regulations, and
DMN shall be given the maximum time allowable under the law and regulations in
which to correct any such deficiencies before the Company shall be permitted to
take any action to terminate this Agreement.
9.3 Required Vote for Termination. Any termination of DMN for cause under
this Agreement must be approved by vote of members in the Company holding at
least a majority of the equity interests in the Company, excluding interests
held by DMN or any affiliate of RCG.
9.4 Causes for DMN Termination. DMN may terminate this Agreement prior to
expiration for "cause" under any of the following conditions: (i) the Company's
failure to pay compensation when due hereunder within 10 days following notice
from DMN to the Managers, notifying the Company of its failure to pay; and (ii)
the Company's failure to perform or observe any other obligation, promise or
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covenant made by the Company pursuant to this Agreement; provided that no such
termination under subsection (ii) shall occur unless the Company notifies DMN of
the breach in writing and DMN does not cure or commence good faith efforts to
cure the breach within 30 days after written notice of the breach and diligently
pursue the cure to completion.
9.5 Post-Termination Obligations. If the Company exercises its right to
terminate this Agreement for any of the causes described in Section 9.2 above,
DMN will provide to the Company, at the unanimous request of the Members other
than any affiliate of DMN (including RCG or RCG Indiana LLC), up to six months
of transitional management services for the Company, for which DMN will continue
to be reimbursed for expenses of the Company and to be paid the Management Fee
described in Article V.
ARTICLE X.
MISCELLANEOUS
10.1 Assignment. This Agreement may not be assigned by either party, and
DMN may not delegate its duties under this Agreement, without the prior written
consent of the other party, provided, however, that DMN may assign this
Agreement or delegate its duties to any of its affiliates. Such assignment or
delegation to an affiliate shall not relieve DMN from liability for any breach
of this contract. Nothing in this Agreement shall prevent DMN from
subcontracting for services required at the Centers.
10.2 No Practice of Medicine. Nothing in this Agreement shall be construed
to require or permit the practice of medicine by DMN or any employee of DMN.
10.3 Effect on Successors. This Agreement shall be binding upon,
enforceable by, and inure to the benefit of the parties and their permitted
successors and assigns.
10.4 Further Documents. The parties covenant and agree that they and their
successors and assigns will execute any and all instruments, releases,
assignments and consents which may reasonably be required of them in order to
carry out the provisions of this Agreement. Notwithstanding expiration or
termination of this Agreement, each party shall take such further actions as are
necessary to fulfill its existing obligations, which by their terms require
performance after expiration or termination of this Agreement.
10.5 Entire Agreement. This Agreement, together with the Joint Venture
Agreement, contains the entire agreement between the parties relating to the
subject matter of this Agreement. The terms of this Agreement may be modified or
amended only by a writing signed by all parties. In the event of a conflict
between the terms of this Agreement and the terms of the Joint Venture
Agreement, the terms of the Joint Venture Agreement shall govern.
10.6 Governing Law. This Agreement shall be governed by and construed,
interpreted and enforced pursuant to the laws of the State of Indiana without
giving effect to the conflicts of laws principles thereof, and the Joint Venture
Agreement shall be governed by and construed, interpreted and enforced pursuant
to the laws of the State of Delaware.
10.7 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be effective immediately if delivered in
person or delivered by confirmed facsimile transmission. Notices to the Company
shall be effective only if delivered to all Members of the Company who own five
percent or more of the Membership Interests of the Company. Notices shall be
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effective three days after being mailed by certified or registered mail, postage
prepaid, return receipt requested, to the addresses set forth below (or to such
other address for a party as shall be specified by like notice); provided that a
notice of a change of address shall be effective only upon receipt thereof:
(a) Three Rivers Dialysis Services, LLC
c/o Renal Care Group, Inc.
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Financial Officer and General Counsel
with a copy to all Members who own five percent or more of the
Membership Interests of the Company, to the addresses listed for such Members on
the books of the Company.
(b) DMN of Indiana Corporation
c/o RCG of Indiana, LLC
00000 Xxxxx Xxxxxxxx, #000
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Operating Officer
10.9 No Waiver, The failure of any party to insist at any time upon the
strict observance or performance of any of the provisions of this Agreement
shall not impair any such right or remedy or be construed to be a waiver or
relinquishment. Every right and remedy given by this Agreement to the parties
may be exercised from time to time and as often as may be deemed expedient by
the parties.
10.10 Enforceability; Severability. The invalidity or unenforceability of
any term or provision of this Agreement shall not, unless otherwise specified,
affect the validity or enforceability of any other term or provision. If the
affected term or provision is material and its invalidity or unenforceability
results in a substantial economic detriment to the Company or DMN, the parties
shall negotiate in good faith a resolution which to the maximum extent feasible
preserves to each party the rights and benefits contemplated hereunder.
10.11 Confidentiality. Each party hereto covenants and agrees that it shall
not disclose the terms of this Agreement or any agreement supplementing this
Agreement to third parties, except as and to the extent disclosure is required
by law, or required for the performance of its obligations hereunder or under
related agreements, or as necessary or appropriate in dealing with the
accountants, attorneys and other representatives of the respective parties.
ARTICLE XI.
GOVERNMENTAL APPROVALS
11.1 Access to Books and Records. In accordance with Section 1861(v)(1)(I)
of the Social Security Act, as amended, and the provisions of 42 CFR Section
420.300, et seq., DMN will maintain, and allow the Comptroller General of the
United States, the Department of Health and Human Services, and their duly
authorized representatives access to, DMN's contracts, books, documents and
records until the expiration of four (4) years after the services are furnished
under this Management Agreement, and DMN will also allow such access to
contracts between it and related organizations and related books, documents and
records. To the extent that DMN subcontracts any of its duties hereunder where
the value or cost of the
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service component is $10,000 or more within a 12-month period, DMN will require
a similar access clause in its written subcontracts.
11.2 Termination Upon Government Disapproval. In the event that this
Agreement is disapproved by any governmental body having jurisdiction over the
Company in a final order, and this Agreement is not amended to the satisfaction
of the governmental body within 90 days after the final order was entered, this
Agreement may be terminated by either party upon written notice without
incurring any liability as a result thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THREE RIVERS DIALYSIS SERVICES, LLC
By: Its Manager
Name: /s/ Xxxxxxx X. XxXxxxxx
----------------------------------
Title:
---------------------------------
DMN OF INDIANA CORPORATION
By: /s/ R. Xxxx Xxxxxxx
------------------------------------
Title: Vice President
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EXHIBIT A
LOCATIONS AND DESCRIPTION OF CENTERS
To be completed and initialed as Center sites are identified and approved.
EXHIBIT B
MANAGEMENT SERVICES
- Development and implementation of a business plan
- Executive management and administration, excluding the Administrator of the
Centers and on-site staff required for data collection and entry
- Financial statement preparation
- Supervision for all facility accounting and reporting, consistent with
Medicare requirements
- All budget preparation and planning
- Regulatory compliance monitoring and reporting
- Human resources services, including training programs and consulting
service related to hiring, training, and development of all non-physician
employees, consistent with Medicare requirements
- Payroll and benefits administration
- Computer systems and support, excluding telecommunication changes, computer
hardware and office equipment on-site, and third party software support and
maintenance
- Facility policies and procedures, consistent with Medicare requirements
- Quality assurance programs, consistent with Medicare requirements
- Risk management, excluding costs of coverage
- Patient education programs, customer service programs, and staff support
programs
- Marketing consultation
- Materials management including purchasing (supplies, pharmaceutical,
equipment maintenance)
- Billing and collection of technical and facility fees
- Supervision and management of all records storage, maintenance and security
procedures in compliance with all applicable federal, state and local laws
and regulations, and in accordance with industry standards
- Managed care services and products
- Information systems development and implementation
EXHIBIT C
DEVELOPMENT SERVICES
- Site selection and construction management for the construction,
development and opening of new dialysis centers and programs, including,
but not limited to the following (but excluding the Administrator):
- general facility design and development
- supervision of the preparation of detailed plans and specifications for new
facilities
- the preparation of capital and preliminary operating budgets
- interviewing, selecting and supervising the work of architects, engineers,
consultants, contractors and subcontractors
- selection and implementation of information systems hardware and software
- purchasing furniture, fixtures and equipment
- interior design
- obtaining municipal, state, and federal licenses and approvals
