MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (this "Agreement") is dated as of the 14th day of
August, 1996, by and among CareMatrix of Massachusetts, Inc., a Delaware
corporation, with its principal place of business at 000 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000 ("Manager"), and Cambridge House Associates General
Partnership, a New York general partnership, with its principal place of
business at c/o Chancellor of Ossining, Inc. 000 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Owner").
WHEREAS, the Owner is the owner and operator of Cambridge House on the
Xxxxxx, a one hundred twenty-two (122) unit seniors housing facility to be
located in Ossining, New York (the "Facility");
WHEREAS, the Owner determined that the hiring of a management company to
provide day-to-day management of the Facility was necessary for the efficient
operation of the Facility;
WHEREAS, the Manager has represented that it is experienced in the
management of similar health care facilities, is knowledgeable as to the state
and federal requirements governing the licensure, operation, accreditation and
reimbursement of health care facilities and that the owners and employees of
Manager are qualified health care professionals;
WHEREAS, based upon the Manager's representations set forth herein, the
Owner has determined that the hiring of the Manager is cost-effective and
consistent with the Owner's desire to provide high quality care to the residents
at the Facility at the lowest cost;
WHEREAS, the Owner has determined that the services provided by Manager
will augment the services provided by it and the employees of the Facility so as
to increase productivity;
WHEREAS, the Owner has determined that the hiring of the Manager on the
terms and conditions hereinafter set forth will not prevent the Owner from
exercising ultimate control over the policies and operations of the Facility;
and
WHEREAS, the Manager is willing to manage the day-to-day operations of the
Facility on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. General Duties. The Owner engages the Manager to manage and supervise
the Facility with the objective of providing quality care and services to
residents of the Facility and to carry out the general duties with respect to
the Facility under the general supervision and direction of the Owner which
include, but are not limited to, the following:
Supervise on behalf of the Owner, the performance of all such
administrative functions as may be necessary in the management of the Facility;
select, hire (or contract with), train, supervise, monitor the performance of
and discipline, promote, terminate or fire (subject to the rights of the Owner
under Section 2.1 of this Agreement to approve the hiring, disciplining and
termination of the Executive Director, the Assistant Administrator and Director
of Resident Services) all personnel involved in the administration and
day-to-day operation of the Facility, including, without limitation, management,
resident assistance and other related personnel, custodial, food service,
cleaning, maintenance and other operational personnel, and secretarial or
bookkeeping personnel, each of whom, other than the Executive Director (as
hereinafter defined), shall be employees of the Owner; supervise the accounting,
billing, purchasing and xxxx payment functions for the Facility; establish
systems of accounts and supervise the maintenance of ledgers and other primary
accounting records by the personnel of the Facility; supervise the financial
affairs of the Facility; establish and supervise the implementation of operating
and capital budgets, including those required to establish reimbursement rates,
if any, with respect to state or federal entitlement programs as well as
self-pay rates; prepare and maintain true, complete and accurate records
necessary for the preparation of such operating budgets; determine which items
of cost and expense properly relate to resident care; establish and administer
financial controls over the operation of the Facility, develop and establish
financial standards and norms by which the income, costs and operations of the
Facility may be evaluated; serve as advisor and consultant in connection with
policy decisions to be made by the Owner; furnish reports to the Owner as the
Owner may reasonably request and provide the Owner with economic and statistical
data in connection with or relative to the operations of the Facility; represent
the Facility in its day-to-day dealings with regulatory and rate-setting
authorities (including preparation and submission of reports for reimbursement),
creditors, residents, personnel, agents for collection, and insurers; act as
agent for the Owner in disbursing or collecting the funds of the Facility and in
paying the debts and fulfilling the obligations of the Facility; coordinate and
supervise a marketing plan for the Facility to insure that the Facility obtains
full occupancy as soon as possible and, after the Facility has achieved full
occupancy, assist in the development of an annual marketing plan and budget to
maintain the resident census at a proper level; and do all other things
necessary or proper for the daily operation and management of the Facility,
including everything necessary to ensure compliance with all applicable local,
state and federal laws governing or applicable to senior housing facilities. In
addition, in order to plan for future operations and to establish long range
policies and goals for the Facility, the Manager will, under the general
supervision of the Owner, meet on at least a monthly basis with Owner's
representatives and the Executive Director to review financial and operational
statistics of the Facility. The Executive Director also will attend monthly
regional administrator meetings and educational programs.
The Manager further agrees that it will:
(i) perform its duties and responsibilities hereunder in compliance with
all applicable laws;
(ii) supervise and direct the management and operation of the Facility,
exercising the degree of care used by an experienced management company, given
the financial resources available to the Facility, the location of the Facility,
the restrictions of applicable laws, and other existing circumstances; and
(iii) consult with the Owner and keep the Owner advised as to all major
policy and business matters relating to the Facility.
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2. Specific Duties. Without limiting the generality of the foregoing, the
Manager shall have the following specific duties:
2.1 Employees. The Manager shall recruit, evaluate, select, and hire
a qualified and properly licensed Executive Director who shall be responsible
for the functional operation of the Facility and supervision of personnel at the
Facility on a day-to-day basis, as well as all resident assistance, custodial,
food service, cleaning, maintenance, secretarial and bookkeeping personnel for
the day-to-day operations of the Facility. The Executive Director shall be the
employee of the Manager and all such other personnel shall be employees of the
Owner, and the Owner shall retain full responsibility for payment of wages,
salaries and other compensation and benefits for such other employees (excluding
the Executive Director). The Manager shall, subject to approval by the Owner,
establish necessary and desirable personnel policies and procedures, wage
structures and staff schedules. The Manager, subject to approval by Owner, shall
have authority to hire, discipline, promote and discharge employees of the Owner
who participate in the day-to-day operation and administration of the Facility.
Both the Manager and the Owner must approve the hiring and/or firing of the
Executive Director, Assistant Administrator and the Director of Resident
Services, which approval shall not be unreasonably withheld or delayed. The
Manager shall: (i) maintain or cause to be maintained payroll records and
prepare weekly and monthly payrolls, withholding taxes and Social Security
taxes; (ii) prepare and submit all required state and federal tax or benefit
returns required with respect to employees, including, without limitation, the
returns required by FICA, FUTA and all applicable unemployment compensation
laws; (iii) maintain in force all required levels of workers' compensation
insurance; and (iv) prepare and submit to the Owner any certificates of payroll
expenses as may be reasonably requested. The Manager shall not be liable to any
employee of the Facility for wages, salaries and other compensation and
benefits, or to the Owner, unless the Manager was specifically required to
obtain the approval of the Owner before committing to a salary or benefit and
such approval was not obtained. The Manager shall not be liable to the Owner or
others for any action or omission on the part of any employee of the Owner of
the Facility, unless the employee was acting under the express direction of the
Manager or unless such employee was following an express policy or procedure of
the Manager and such direction, policy or procedure is subsequently determined
to be the result of gross negligence. The Manager shall provide the Owner with
quarterly reports of all hiring, disciplinary actions, promotions and firings at
the Facility for the month.
2.2 Purchasing. The Manager shall purchase, for the account of the
Owner, all necessary foodstuffs, supplies, materials, appliances, tools and
equipment necessary for the operation of the Facility. The Manager shall arrange
contracts on behalf of the Owner for electricity, gas, telephone, cable
television and any other utility or service necessary for the operation of the
Facility. The Manager shall, on behalf of the Owner, contract for and supervise
the making of any necessary repairs, alterations, and improvements to the
Facility; provided that in the case of any capital expenditure, alteration or
improvement, the cost of which exceeds Ten Thousand ($10,000) Dollars, the
Manager shall obtain the prior written approval of the Owner; and provided
further, that no such prior written approval shall be required if the
expenditure is made under circumstances reasonably requiring emergency action
(so long as the Manager attempts to notify the Owner on a concurrent basis). The
Manager shall prepare and submit to
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the Owner any certificates of purchasing expenses incurred for the Facility as
may be reasonably requested.
2.3 Collection of Accounts. The Manager shall supervise the Facility
bookkeeping personnel which shall prepare and submit bills and collect for the
account of the Owner any and all moneys owing to the Owner from residents.
2.4 Bookkeeping. The Manager shall establish and maintain a record
and bookkeeping system for the operation and conduct of business of the Facility
in accordance with generally accepted accounting principles consistently
applied. Books and records at the Facility may be maintained by an employee of
the Owner under the supervision of the Manager. Full books of account with
entries of all receipts and expenditures related to the operation of the
Facility shall be maintained at the offices of the Manager and shall at all
times during normal business hours be open for inspection by representatives of
the Owner. The Manager shall be responsible for filing all local, state and
federal tax returns relating to the operation of the Facility, with the
exception of corporate income tax and pension returns, and shall be responsible
for penalties, interest, and audit costs arising out of late, inaccurate, or
incomplete filings or the Manager's failure to file such tax returns provided,
however, that the Owner makes available sufficient funds for payment of any
taxes due and any information needed to complete such returns on a timely
basis).
2.5 Financial Reports. The Manager shall furnish to the Owner the
following financial reports:
(a) as soon as possible and not later than thirty (30) days after the
close of each calendar month, a balance sheet as of the end of the month and a
statement of income and retained earnings for the month and for the
year-to-date, together with a comparison to the budget and a detailed statement
of receipts, disbursements, accounts payable and accounts receivable as of the
end of such monthly period; provided, however, that the computer services
charges connected with the preparation of such information shall not be an
expense of the Owner;
(b) as soon as possible, and not later than sixty (60) days after the
close of each fiscal year, a year-end compilation report, including a balance
sheet as of the end of such year and a statement of income and retained
earnings; and
(c) such other and further reports or calculations as may be required
under any financing terms in accordance with the deadlines set forth in any
financing agreements encumbering the Facility (any such financing agreement or
agreements are collectively referred to herein as a "Financing Agreement").
2.6 Residents. In accordance with the provisions of all applicable
state and federal statutes, as amended from time to time, the Manager shall use
its best efforts to maintain the resident census at the Facility in such numbers
and in such a manner as, in the Manager's judgment, will tend to maintain the
financial stability of the Facility and will comply with the covenants in any
Financing Agreement.
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2.7 Budgets. The Manager shall prepare and submit for approval by the
Owner the following: (a) as soon as possible and not later than thirty (30) days
before the close of each fiscal year, or on such earlier date as may be required
under any Financing Agreement, a detailed written capital and operating budget
for the next succeeding fiscal year, broken down by month and showing projected
expenditures and projected revenues for such budget period; and (b) such other
budgets as may be reasonably required of the Owner under any Financing Agreement
or by regulatory authorities showing, inter alia, projected ordinary and
extraordinary expenditures and protected revenues for such budget period.
2.8 Insurance. The Manager shall obtain, at the Owner's expense, on
behalf of the Owner and with the Owner's prior approval, all necessary
liability, fire and extended coverage, workers' compensation, and malpractice
insurance covering the Facility, its equipment, the employees of the Owner, and
the employees of Manager, if any, who relate to the operations of the Facility,
which policies of insurance shall name the Owner and the Manager as coinsured
and which policies shall comply with the terms of any Financing Agreement. The
Owner shall bear the expense of the above with respect to the Owner's employees,
equipment and the Facility. The Manager shall bear the expense of the above with
respect to the Manager's employees, if any. Such insurance shall be written by a
responsible insurance company or companies reasonably satisfactory to the Owner
in kinds and amounts and a certificate of insurance shall by provided to the
Owner. The Owner shall retain the right to designate any insurance agent or
agency of its choice through which such insurance shall be obtained.
2.9 Technical and Professional Services. The Manager may, with the
prior approval of the Owner and at the Owner's expense, secure such engineering,
legal, and other specialized technical and professional services as may be
necessary to advise or represent the Owner in connection with any matter
involving or arising out of the ownership and operation of the Facility or the
conduct of affairs of the Facility.
2.10 Marketing. The Manager shall agree to coordinate and supervise
the agreed upon marketing plan for the Facility during the fill-up phase (the
"Marketing Plan"). Monthly statistical census analysis reports will be generated
by the Manager and delivered to the Owner. The Manager will recommend
adjustments in the Marketing Plan as needed to achieve full occupancy. For
purposes of this Agreement, the Facility will be considered to have achieved
full occupancy when ninety percent (90%) of its units have been occupied for a
continuous ninety (90) day period. The Manager will assist the management staff
in the continued development and coordination of advertising and promotional
materials, internal and external public relations programs, sales and staff
development programs, and customer satisfaction programs. The Manager shall
assist the Facility's management staff to develop a yearly Marketing Plan and
budget based upon the Facility's yearly census program and image.
2.11 Administrative. The Manager shall recommend the establishment
of, and implement and supervise procedures to provide staff review of all
operational areas, which status shall be reviewed in regularly scheduled
quarterly meetings and at other meetings as may be deemed necessary or desirable
by the Owner.
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2.12 Plant and Maintenance.
(i) attention shall be given to preventive maintenance (this
item may be provided by outside parties if economically feasible) and, to the
extent deemed feasible by the Manager and the Owner, the services of regular
Facility maintenance employees shall be used; and
(ii) the Manager shall make recommendations to the Owner
regarding entering into contracts with qualified independent contractors for the
maintenance and repair of air conditioning systems and laundry equipment and for
extraordinary repairs beyond the capability of regular Facility maintenance
employees.
3. Management Fee
Base Management Fee. As compensation for the services to be rendered by the
Manager during the term of this Agreement, the Manager shall pay itself, at its
principal office given below (or at such other place as the Manager may from
time to time designate in writing), and at the times hereinafter specified, a
monthly management fee (the "Management Fee") during the terms of this Agreement
equal to five percent (5%) of Net Revenues. The Management Fee will be paid in
arrears and shall be due and payable on or before the fifteenth (15th) day of
each month following the month in which services were rendered.
"Net Revenues" as used herein shall mean Gross Revenues (defined below)
less contractual adjustments for uncollectible accounts.
"Gross Revenues" as used herein shall mean and include all revenues
received or receivable from or by reason of the operation of the Facility,
including, without limitation, all revenue of the Facility for or on account of
any and all goods provided and services rendered or activities during the period
from the date of this Agreement and thereafter, the gross dollar amount of all
such xxxxxxxx by the Facility to or on behalf of residents directly or
indirectly connected with the Facility or the provision of all such goods and
services.
4. Expenses.
4.1 Manager Expenses. The Manager shall bear the following expenses
incurred by it in the management of the business and properties of the Facility:
(a) Salary and expenses (including, without limitation, payroll
taxes, costs of employee benefit plans, travel, insurance, and fidelity bonds)
of all personnel employed by the Manager (other than the Executive Director) to
carry out all responsibilities detailed above.
(b) Salary and expenses (including, without limitation, payroll
taxes, cost of employee benefit plans, travel, insurance and fidelity bonds) of
financial and accounting personnel employed by the Manager to maintain
accounting books and records of the Facility, except as provided below.
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4.2 Owner Expenses. Except as otherwise expressly provided herein,
the Owner shall bear all of the expenses of operating and financing the Facility
and rendering resident services not assumed by the Manager, and without limiting
the generality of the foregoing, it is specifically agreed that the following
expenses of the Facility shall not be borne by the Manager:
(a) Fees and expenses of the Executive Director and independent
professional persons expressly retained by the Owner, or retained by the Manager
for the account of the Owner with the prior permission of the Owner, for any
purpose; salary, other compensation or benefits and expenses of administrative,
medical, resident assistance and other health care personnel; custodial, food
service, cleaning, maintenance, operational, secretarial and bookkeeping
personnel employed to administer the day-to-day operations of the Facility and
to perform health care and related services in the day-to-day operations of the
Facility's business.
(b) Principal, interest and discounts on indebtedness incurred
or assumed by the Owner.
(c) Taxes, imposts, levies or other charges on the existence,
operation, receipts, income or property of the Owner, provided, however, that
all interest and penalties incurred as a result of the Manager's failure to
timely file all returns which the Manager is required to file pursuant to this
Agreement, or to make timely payment of all taxes, levies, imposts, or other
charges, to the extent that sufficient funds were available to the Manager as of
the date such payments were due, shall be the responsibility of the Manager.
(d) Medical supplies and equipment, food, fuel, kitchen and
food service equipment, linens, beds, furniture, clothing and all other supplies
and equipment used in supplying services to residents.
(e) Expenses connected directly or indirectly with the design,
acquisition, disposition or ownership of real and personal property devoted,
used, or consumed in the business of the Facility, including, without
limitation, purchase and/or construction of the land and buildings used for such
purpose, maintenance, repair and improvement of property, all real estate and
personal property taxes assessed, premiums for property and liability insurance
on property owned by the Owner, brokerage commissions, and fees and expenses of
consultants, managers, or agents retained directly by the Owner.
(f) The Management Fee and the Consulting Fee (as defined in
the Consulting Agreement to be executed simultaneously herewith).
(g) Legal fees and related expenses pertaining to the
acquisition, sale, mortgaging or leasing of property, litigation and proceedings
relating to rates and charges at the Facility, any other litigation or
proceedings to which the Owner is a party. However, such fees shall not include
those fees resulting from or arising out of the gross negligence by the Manager
and the Owner shall provide such necessary funds to the Manager within ten (10)
days after receipt of such notice.
In the event that there are insufficient funds available to the Manager to pay
expenses which the Manager is authorized to incur and pay hereunder, including,
without limitation, any taxes to be
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paid on behalf of the Owner by the Manager, the Manager shall promptly notify
the Owner of the amount necessary to cure and the reason for such deficit and
the Owner shall provide such necessary funds to the Manager within ten (10) days
after receipt of such notice.
4.3 Deposit and Disbursement of Funds.
(i) The Manager shall establish and administer the overall rate
structure of the Facility and shall supervise the issuance of bills and the
collection of accounts as the true and lawful attorney-in-fact for the Owner.
The Manager shall take possession of and endorse the name of the Owner on all
notes, checks, money orders, insurance payments, and any other instruments
received in payment of accounts described below.
(ii) The Manager shall establish such accounts for the Facility
in the Owner's name, separate from all other accounts and funds of the Manager,
with a bank or banks whose deposits are insured by the Federal Deposit Insurance
Corporation ("FDIC") or with a savings and loan institution or institutions
whose deposits are insured by the Federal Savings and Loan Insurance Corporation
("FSLIC") as it deems necessary or desirable. The Manager, on behalf of the
Owner, shall use reasonable efforts to collect (using legal counsel approved by
the Owner, if necessary) all sums due and owing to Owner in connection with the
operation of the Facility. The Manager and the Owner shall deposit into such
accounts all monies furnished by the Owner as working funds and all receipts and
monies arising from the operation of the Facility or otherwise received by the
Owner or by the Manager for or on the behalf of the Owner.
(iii) Draws on such accounts may be made by the sole signature
of an authorized representative of the Manager (or by wiring instructions from
such authorized representative of the Manager) and shall be paid to the Manager
to reimburse the Manager for payments made pursuant to this Agreement by the
Manager from its own accounts. The Owner hereby appoints the Manager, for the
term of this Agreement, as the Owner's true and lawful attorney-in-fact to
withdraw, by writing checks against such accounts, funds for reimbursement of
all amounts payable pursuant to this Agreement in connection with the operation
of the Facility. The Owner agrees to execute from time to time any additional
documents required by any bank wherein such documents are held to effectuate all
powers of attorney referred to herein. The Manager shall make disbursements and
payments from such accounts, on behalf and in the name of the Owner, in such
amounts and at such times as are deemed by the Manager to be appropriate or
required in connection with, first, payments required by any Financing
Agreement, and second, payments of ownership, maintenance and operating expenses
of the Facility and the other costs, expenses and expenditures provided for in
this Agreement including the Management Fee.
5. Duty of Manager. The Manager shall render the services called for
hereunder in the utmost good faith and the Manager acknowledges that it is
acting in a fiduciary capacity with respect to the Owner and owes the Owner the
highest duty of care.
6. Relationship of the Parties. The Owner and the Manager are neither
partners nor joint venturers with each other, and nothing herein shall be
construed so as to make them such partners or joint venturers or impose on any
of them any liability as partners or joint venturers.
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All dealings between the Owner and the Manager are at arms length as between
non-related parties.
7. Term and Termination.
7.1 Period of the Term. This Agreement shall continue for an initial
term often (10) years commencing on the date the Facility is opened for
occupancy, and ending on the last day of the calendar month in which the tenth
(10th) anniversary of such opening date occurs(the "Original Expiration Date").
Thereafter, this Agreement shall be renewed automatically for two (2) additional
five (5) year terms unless the Manager sends the Owner written notice no less
than ninety (90) days prior to the then applicable Expiration Date that it does
not wish to have the Agreement renew beyond the then applicable Expiration Date.
As used herein the term "Expiration Date" shall mean the later of the Original
Expiration Date, or the date to which this Agreement has been extended as
provided in this Section 7.1.
7.2 Termination for Cause. Any party may terminate this Agreement for
"cause" be delivering thirty (30) days written notice to the others. "Cause"
shall include, but not be limited to, each of the following:
(i) the violation by any party of any material provision in, or
obligation imposed by, this Agreement which violation shall not have been cured
to the reasonable satisfaction of the other party within thirty (30) days
following the date on which written notice of termination has been received by
the party who has violated a material provision or obligation imposed by this
Agreement;
(ii) any illegal or improper act engaged in by any party in the
operation of the Facility;
(iii) if any party files or has a petition or complaint in
receivership or bankruptcy filed against it which has not been dismissed within
ninety (90) days of such filing; or
(iv) if the Owner is required, pursuant to the terms and
conditions of any Financing Agreement, to terminate this Agreement or to retain
new management for the Facility.
7.3 Termination for Failure to Pay Fee on a Timely Basis. In addition
to the provisions of Section 7.2 above, the Manager may terminate this Agreement
upon thirty (30) days written notice of the Owner's failure to pay the
Management Fee when due unless the Owner cures the payment default within thirty
(30) days after receiving written notice from the Manager.
8. Indemnification. The Owner shall indemnify the Manager and hold it
harmless of, for, and against all costs, claims, damages or expenses, including
reasonable attorney's fees (collectively "Costs"), incurred or suffered by the
Manager and arising out of acts performed within the scope of this Agreement.
Notwithstanding the foregoing, the Owner shall not have any obligation to
indemnify the Manager or hold it harmless of, from, and against Costs incurred
or
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suffered by the Manager as a result of the Manager's fraud, willful misconduct,
or gross negligence, or for Costs incurred or suffered by the Manager as a
result of the Manager's failure to keep true, accurate and complete records or
to obtain any necessary opinion of counsel as required by Section 1.1 of this
Agreement. The Manager shall indemnify the Owner and hold it harmless of, from
and against all Costs incurred or suffered by the Owner as a result of any of
the Manager's fraud, willful misconduct, or gross negligence, or as a result of
the Manager's failure to submit proper reports to the appropriate regulatory
agencies, to keep true, accurate and complete records or to obtain any necessary
opinion of counsel as required by Section 1.1 of this Agreement.
9. Access to Books and Records. As a subcontractor that may be subject to
Section 1861(v)(1)(i) of the Social Security Act (the "Act"), the Manager shall,
upon written request and in accordance with the above-mentioned section of the
Act and regulations promulgated pursuant thereto, make available to the
Comptroller General, the Secretary of Health and Human Services, and their duly
authorized representatives, a copy of this Agreement and access to the Manager's
books, documents, and records necessary to verify the nature and extent of the
costs of services provided to the Owner. Such access will be available until the
expiration of four (4) years after the services to which the costs are related
have been furnished.
The provision of this Section 9 shall apply only if this Agreement is
covered by the Act and such provisions shall become void and shall be of no
further force or effect if, at the time a request is made, this Agreement is not
subject to the Act. The Manager agrees that if it carries out any of the duties
of this Agreement through a subcontract with a related organization which
subcontract has a value or cost of $10,000 or more over a twelve (12) month
period, the Manager will obtain an identical access requirement in such
subcontract.
10. Fidelity Bond. The Manager agrees to obtain a fidelity bond, employee
dishonesty insurance policy or other similar coverage, in form and amount
satisfactory to the Owner, covering those employees reasonably required to by
covered by the Owner.
11. Amendments. This Agreement shall not be changed modified, terminated,
or discharged, in whole or in part, except by an instrument in writing signed by
the Owner and the Manager, their respective successors or assigns, or otherwise
as provided herein. Such modifications shall be in writing and signed by the
Owner and the Manager.
12. Governing Law. The provisions of this Agreement shall be governed by,
construed, and interpreted in accordance with the laws of the Commonwealth of
Massachusetts. Any change in any applicable law which has the effect of
rendering any part of this Agreement invalid, illegal, or unenforceable shall
not render the remainder of this Agreement invalid, illegal, or unenforceable,
and the parties hereto agree that in the event that any part of this Agreement
is rendered invalid, illegal, or unenforceable, that they shall negotiate in
good faith to amend any such part of this Agreement so as to comply with any
such law, as amended, and further the respective objectives of the parties
hereto.
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13. Assignment. Neither the Owner nor the Manager will assign its interests
in this Agreement, other than to an affiliate, without the prior written consent
of the other, which consent shall not be unreasonably withheld, delayed or
conditioned.
14. Successors. This Agreement shall be binding upon and inure to the
benefit of the parties and to their respective successors and assigns.
15. Captions. The captions of this Agreement are for convenience and
reference only and in no way define, describe, extend or limit the scope of
intent of this Agreement or the intent of any provision contained in this
Agreement.
16. Notices. Any notice, demand, consent, or other written instrument to be
given or received under this Agreement ("Notice") required or permitted to be
given shall be in writing signed by the party giving such Notice and/or consent
and shall be hand delivered, sent by nationally recognized overnight carrier or
sent, postage prepaid, by Certified or Registered Mail, Return Receipt
Requested, to the other party at the addresses listed below:
As to Manager: CareMatrix of Massachusetts, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, President
cc: CareMatrix of Massachusetts, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, III, Esq.
As to Owner: Cambridge House Associates General Partnership
c/o Chancellor of Ossining, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, III, Esq.
cc: Atlantic on the Xxxxxx, LLC
Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx; Xxxx Xxxxxxx
Any party shall have the right to change the place to which such Notice shall be
sent or delivered by similar notice sent in like manner to all other parties
hereto. All notices sent by certified mail shall be deemed received three (3)
days after the date postmarked. All notices that are hand delivered shall be
deemed received upon delivery to the office or address of the addressee.
17. Property. Trade names, marketing material, marketing ideas and
development material and records developed specifically for and related to this
Facility shall be the property of the Owner. Trade names, ideas and documents,
forms and development material not developed
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specifically for this Facility are to be considered proprietary and will remain
the property of the Manager. All operational forms and documents including, but
not limited to, policy and procedure manuals, operational forms, level of care
determination Systems, management policy books, inspection control manuals, and
nursing management books are and will remain the property of the Manager. All
financial management forms, documents and software systems including, but not
limited to, bookkeeping manuals, financial forms, financial spreadsheets,
database or word processing forms, financial accounting packages and outcome
information systems are and will remain the property of the Manager. Upon
termination of this Agreement, the Owner shall have the option to purchase
operational material belonging to the Manager, except for the financial
accounting packages and outcome information systems, at a mutually agreed upon
price.
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18. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original.
IN WITNESS WHEREOF, the parties have executed this Management Agreement as
of the date first set forth above.
WITNESS: CAREMATRIX OF MASSACHUSETTS, INC.
/s/ [Illegible] By: /s/ Xxxxxx Xxxxxx
--------------------- -----------------------------
Name: Xxxxxx Xxxxxx
Title: Vice Chairman
WITNESS: CAMBRIDGE HOUSE ASSOCIATES
GENERAL PARTNERSHIP
BY: CHANCELLOR OF OSSINING, INC.,
General Partner
/s/ [Illegible] By: /s/ Xxxxx XxXxxxx, III
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Name: Xxxxx XxXxxxx, III
Title: Vice President
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