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