Exhibit 10.100
MANAGEMENT AGREEMENT
This MANAGEMENT AGREEMENT (the "Agreement") is dated as of the 15 day of
April, 1997, by and among CareMatrix of Massachusetts, Inc ., a Delaware
corporation, with its principal place of business in Needham, Massachusetts
("Manager"), and CCC of New Jersey, Inc. , a Delaware corporation, with its
principal place of business in Needham, Massachusetts (the "Owner").
WHEREAS, the Owner is the owner and operator of a one hundred eighty (180)
bed skilled nursing facility located in Princeton, New Jersey (the "Facility");
WHEREAS, the Owner has determined that the hiring of a management company to
provide day-to-day management of the Facility is 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 patients
at the Facility at the lowest cost;
WHEREAS, the Owner has determined that the services to be provided by the
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, supervise and
operate the Facility with the objective of providing quality care to patients 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 Administrator, and Director of Nursing Services) all
personnel involved in the administration and day-to-day operation of the
Facility, including, without limitation, management, medical, nursing and other
health care personnel, custodial, food service, cleaning, maintenance and other
operational personnel, and secretarial or bookkeeping personnel, each of whom
shall be employees of the Owner; provide centralized 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 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 patient 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, patients,
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 patient
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 the rules and regulations all applicable governmental
agencies, with Medicare and Medicaid requirements applicable to nursing homes,
and with any other local, state, federal or JCAHO requirements governing or
applicable to nursing 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 Administrator to review
financial and operational statistics of the Facility. The Administrator 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, subject to the responsibilities of the Owner as the licensee of
the Facility;
(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.
1.1 Opinion of Counsel. The Manager shall have the duty to consult
with counsel for the Owner whenever questions arise as to the meaning and
interpretation of the phrase "relating to patient care" as such phrase is used
above with reference to the submission of expenses for reimbursement pursuant to
applicable state or federal statutes or regulations relating to entitlement
programs. The Manager shall be entitled to rely upon any such opinion when
rendered by counsel.
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, on behalf of the Owner, a qualified and properly licensed Administrator
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
on-site medical, nursing, custodial, food service, cleaning, maintenance,
secretarial and bookkeeping personnel for the day-to-day operations of the
Facility. The Administrator and all such other personnel shall be employees of
the Owner, and the Owner shall retain full responsibility for payment of their
wages, salaries and other compensation and benefits. 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 Administrator, the Executive Director and the
Director of Nursing Services, which approval shall not be unreasonably withheld
or delayed. The Manager shall: (i) maintain 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, which
policy or procedure is subsequently determined to be incorrect. The Manager
shall provide the Owner with monthly 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 Three Thousand ($3,000) 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 the Owner any certificates of purchasing
expenses incurred for the Facility as may be reasonably requested.
2.3 Collection of Accounts. The Manager shall prepare and submit
bills and collect for the account of the Owner any and all moneys owing to the
Owner, whether from patients or third party payors such as Medicare or Medicaid.
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
and in accordance with all requirements of Medicare and Medicaid or other third
party payors. 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 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).
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;
(c) as soon as possible after the close of the year for rate-setting
purposes and not later than the applicable deadline, a year-end cost report
showing cost and expenditures relating to patient care; such report shall be, in
all respects, in compliance with the requirements of Medicare, Medicaid or any
other third party payor to whom the Owner may be obligated to furnish reports
and in a form suitable for submission to the state or such third party payor;
(d) 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 Patients. 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 patient 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. The Manager shall recommend to the Owner programs for
implementation with third party payors, such as insurers, federal agencies and
state and local agencies, for care of patients with special medical, care, or
rehabilitation needs on a contract basis, all for the purposes of, in the
opinion of the Manager, improving the financial stability of the Facility;
provided, however, that any such agreement providing for any discount of the
Facility's standard rate shall require the Owner's prior written approval.
However, the Manager shall not introduce any additional function or service into
the Facility's program of health care without first obtaining the consent of the
Owner and any regulatory approvals required by law.
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 Certification, Licenses and Accreditation. The Manager shall
prepare on behalf of the Owner all reports and materials, and follow all
procedures necessary, to obtain and/or maintain all federal and state
certificates, licenses and accreditation necessary to maintain the Facility as a
long-term facility and nursing home.
2.9 Liaison with Agencies. To the extent desired by the Owner, the
Manager shall represent the Owner in all formal or informal proceedings before
all state and federal agencies engaged in the regulation, payment, rate-setting,
and/or licensing of long-term care facilities and nursing homes. The Owner
reserves the right to approve all settlements prior to their finalization.
2.10 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.
2.11 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.
2.12 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 licensed beds have been occupied
for a continuous thirty (30) 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.
2.13 Administrative. The Manager shall:
(i) 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 or the
Administrator; and
(ii) provide on-going review and monitoring of all of the
Facility's compliance with applicable regulatory requirements for licensure
reimbursement, which status shall be reviewed in regularly scheduled quarterly
meetings and at other meetings as may be deemed necessary or desirable by the
Owner.
2.14 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
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 maintenance employees.
3. 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 (5%) percent of Net Revenues (as defined below). The Management
Fee will be paid in equal monthly installments 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
all contractual adjustments for Medicaid and Medicare thereto.
"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 patients directly or indirectly
connected with the Facility or the provision of all such goods and services, and
will include, without limitation, such xxxxxxxx to all governmental payors,
including Medicare and Medicaid, such xxxxxxxx to self-paying patients, and such
xxxxxxxx to all other third-party insurance carriers and the gross dollar amount
billed from non-patient care activity but nevertheless arising from the
operation of the Facility including, but not limited to, all revenues received
or receivable by reason of all rooms, beds and other facilities subleased or
goods sold at the Facility, including, without limitation, all revenues received
from any subletting, licensing or other arrangements with third parties relating
to the possession or use of any part of the Facility.
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) all of personnel employed by the Manager 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.
4.2 Owner Expenses. Except as otherwise expressly provided herein,
the Owner shall bear all of the expenses of operating the Facility and rendering
patient care 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 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, nursing 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) 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 nursing home care and services to patients.
(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.
(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 negligence by the Manager.
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 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.
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 Manager'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 the Owner
in connection with the operation of the Facility, whether from patients, third
party payors or others. 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. 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 of ten (10) years commencing on ____________ (the "Commencement Date"), and
ending on ______________. Thereafter, this Agreement shall be renewed
automatically for three (3) additional five (5) year terms unless the Owner
sends the Manager 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 ___________, or the date to which this Agreement
has been extended as provided in this Section 7.1.
7.2 Termination for Cause. Either party may terminate this Agreement
for "cause" by delivering thirty (30) days written notice to the other. "Cause"
shall include, but not be limited to, each of the following:
(i) the violation by either 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 either party
in the operation of the Facility;
(iii) if either 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 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.
7.4 Termination Arising from Unresolved Dispute. In the event that a
dispute arises between the parties regarding the interpretation of a material
provision of this Agreement or the performance by one of the parties of an
obligation hereunder, and the parties are unable to reach a mutual agreement
regarding the dispute within thirty (30) days of written notice of an unresolved
dispute given by one of the parties to the other, which notice shall describe
the nature of the dispute, any party may elect to terminate this Agreement by
giving one hundred twenty (120) days written notice to the other of its intent
to terminate. Unless the parties reach mutual agreement regarding the matter in
dispute within such one hundred twenty (120) day period, this Agreement shall
terminate on midnight of the one hundred twentieth (120th) day following the
other parties receipt of notice of termination and all obligations due and owing
hereunder shall forever cease, except to the extent that a right or obligation
has accrued prior to the termination date. The right of a party to terminate
this Agreement pursuant to this section shall be in addition to, and not to the
exclusion of, any other remedies, whether at law or in equity, of the parties
hereunder.
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 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 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. 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 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. The Manager agrees to make any reasonable modifications to
the Agreement as may be required by the holder of any Financing Agreement. 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.
13. Assignment. Neither the Owner nor the Manager will assign its interests
in this Agreement 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 Owner: CCC of New Jersey, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, III, Esq.
As to Manager: CareMatrix of Massachusetts, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: President
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 specifically for the 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, and financial accounting packages 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, at a mutually agreed upon price.
18. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original.
19. Delivery of Management Services. Notwithstanding anything contained in
this Agreement to the contrary, with the prior written consent of the Owner
(which consent shall not be unreasonably withheld, delayed or conditioned) the
Manager shall have the right to engage another management company which provides
management services to similar skilled nursing facilities to perform all or a
portion of the Manager's duties and obligations under this Agreement. The Owner
acknowledges and agrees that Vanguard Health Services, Inc. would be an
acceptable management company to provide all or a portion of the services to be
provided by the Manager under this Agreement.
20. Lease Option. The Owner hereby agrees that so long as the Manager is not
in default in the performance of any duty or any obligation hereunder, the
Manager shall have the option to lease the Facility at any time during the term
of this Agreement (including any extension thereof) by providing the Owner with
at least ninety (90) days prior written notice of such election. Within thirty
(30) days after receipt of the Manager's notice to lease, the parties shall
enter into a lease agreement containing mutually agreeable terms and conditions
(the "Lease"), which shall include, without limitation, a ten (10) year initial
term (with three (3) 5-year renewal terms) and rental payments equal to the fair
market value as determined immediately prior to the initial term of the Lease
and immediately prior to any renewal terms.
IN WITNESS WHEREOF, the parties have executed this Management Agreement as
of the date first set forth above.
WITNESS: CAREMATRIX OF
MASSACHUSETTS,
_______________________ By: _____________________________
Name: Name:
Title:
WITNESS: CCC OF NEW JERSEY, INC.
________________________ By: _______________________
Name: Name:
Title:
