EXHIBIT (10)(i)
CONFIDENTIAL TREATMENT
AGREEMENT FOR IN-HOSPITAL DIALYSIS SERVICES
THIS AGREEMENT is made and entered into this 15th day of August, 1997 by
and between CARLISLE HOSPITAL (hereinafter "Hospital"), a licensed care,
non-profit Pennsylvania corporation located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, and DIALYSIS SERVICES OF PENNSYLVANIA, INC. - CARLISLE
(hereinafter "Provider"), a Pennsylvania corporation located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
#▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
1. INDEPENDENT CONTRACTOR RELATIONSHIP. The relationship between Hospital and
Provider hereunder is, and shall remain, one of independent contractor.
Nothing in this Agreement shall constitute the parties as joint venture's,
partners, employees or acting as other than independent contractors; nor is
either party agent of or for the other, nor has the right to bind the other
party or make promises or representations on behalf of the other. Each
party agrees to be responsible only for the acts of its own agents or
employees, when acting within the scope of their agency or employment in
performing this Agreement. Hospital and its employees shall have no claim
against Provider and Provider and its employees shall have no claim against
Hospital for vacation pay, sick leave, retirement benefits, social
security, workers compensation, disability or unemployment insurance
benefits, or employee benefits of any kind.
Provider shall employ its own means and methods and exercise its own
professional judgment in the performance of the services it is to render
hereunder and Hospital shall have no right of control or direction with
respect to such means or services. Provider shall use due care to provide
high quality professional treatment in connection with the services to be
provided hereunder.
2. SERVICES. In-Hospital Dialysis Services (hereinafter referred to as
"Services") shall be interpreted to include and be limited to the
performance of inpatient hemodialysis services, acute and chronic,
peritoneal dialysis (CAPD and CCPD, start up only), continuous
Arteriovenous Hemofiltration, and administration of streptokinase
(urokinase) for the purpose of declotting hemodialysis catheters. The
Services shall be performed by Provider under this Agreement at Hospital's
principal place of business, Carlisle Hospital, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, unless otherwise agreed to by the parties hereto.
A. During the term of this Agreement, in addition to the services,
Provider shall provide the following:
(1) All non-disposable equipment necessary for and specific to the
performance of Services, and routine maintenance and repair of
same.
(2) All disposable supplies for and specific to the performance of
Services, including artificial kidneys, blood tubing and
dialysate concentrate, but excluding subclavian and femoral
access catheters.
(3) All initial training of patient care staff to the extent deemed
necessary by both parties for the provision of quality
Services.
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(4) Ongoing continuing education and quality assurance activities
mutually agreed upon to ensure that the proper quality of
patient care is maintained.
(5) Training and education, hospital - or unit-wide in a mutually
agreed upon manner as deemed appropriate by Hospital.
B. During the term of this Agreement, Hospital shall provide the
following:
(1) Designated, adequate, sanitary and reasonable space within
Hospital premises sufficient for equipment, supply storage, and
for the performance of Services.
(2) Any equipment non-specific to any of the Services which may be
deemed necessary in particular instances (e.g., I.V. pumps,
portable cardiac monitor), along with any disposable supplies
for Hospital's patients.
(3) Pharmaceutical and intravenous products necessary for the
provisions of Services, to include all priming and replacement
fluids, blood products, drugs and medications for topical,
oral, sublingual, subcutaneous, intramuscular or intravenous
use.
(4) Continued supply of utilities, linen, building maintenance and
housekeeping for all of its premises. Such utilities will
include suitable standard water connections and drains as
necessary for the use of Services equipment.
(5) Adequate supply of potable water and routine dialysate and
water cultures in accordance with AMMI standards.
(6) Plumbing fittings suitable for the connection of Provider
medical and Services equipment.
(7) Adequate parking free of charge to Provider personnel assigned
to work at Hospital with identification badges/cards, if
necessary, to insure easy and immediate access of Provider
staff and personnel to Hospital.
3. EMPLOYEES. Provider will provide the following staff members for provision
of Services as appropriate to this Agreement.
A. A Services Coordinator qualified to perform and teach all Services
procedures.
B. A Dialysis Technician qualified to perform equipment and machinery
maintenance and repair or a manufacture repair agreement.
C. Dialysis staff qualified to perform hemodialysis and/or to undergo
training for the performance of hemodialysis and other Services
procedures covered by this Agreement, including a dialysis R.N. as
primary care giver ("Primary Care Giver"), L.P.N.s or technicians who
will support and work under the supervision of the Primary Care Giver.
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All employees of Provider will comply with those federal, state and local
policies, laws, rules and regulations governing their practice and subject
to the last paragraph of Section 1 hereof, will comply with Hospital rules
and regulations governing conduct and practice within Hospital premises;
provided Hospital advises Provider of such rules and regulations thirty
(30) days in advance, and such rules and regulations are not in conflict
with Provider's judgment of good professional medical treatment
particularly providing the Services; provided, if such rules and
regulations are in conflict, then Provider will notify the Hospital within
fifteen (15) days of receipt of any such Hospital rules and regulations.
4. FEES AND BILLING.
A. Fees and rates to be paid to Provider for Services are as set forth in
Schedule of Fees, Schedule A attached. The Schedule of Fees shall not
be changed without the mutual written consent of the Hospital and
Provider.
B. Billing and Services information will be submitted by Provider to
Hospital on a current basis so that Hospital can ▇▇▇▇ its patients,
Medicare, Medicaid, or other third-party payor on a current basis.
Hospital patient charges shall be billed solely by Hospital.
C. Provider shall submit an invoice for Services rendered during each
month by the fifth (5th) day of the next immediate successive month.
Hospital shall remit payment to Provider for Services within thirty
(30) days of billing.
D. Payments due Provider as provided for herein shall not be dependent
upon or subject to Hospital patient ▇▇▇▇▇▇▇▇, patient payments,
insurance charges, or collection by Hospital of any charges, but
rather such obligation for payment to Provider by Hospital for
Services in accordance with this Agreement shall remain the obligation
of Hospital to Provider in accordance with the billing procedure as
set forth herein.
E. Provider agrees to make available to the Secretary of Health and Human
Services ("HHS"), the Comptroller General of the Government Accounting
Office ("GAO"), Hospital and Intermediary, or their authorized
representatives, all contracts, books, documents and records that are
necessary to verify the nature and extent of the costs for providing
the Services hereunder for a period of four (4) years after the
furnishing of Services. In addition, Provider hereby agrees, if
Services are to be provided by subcontract with a related
organization, to require by contract that such subcontractor make
available to the HHS, GAO, Hospital and Intermediary, or their
authorized representatives, all contracts, books, documents, and
records that are necessary to certify the nature and extent of the
costs thereunder for a period of four (4) years after the furnishing
of Services thereunder. This Section 4E is included pursuant to and
is governed by the requirements of Public Law 96-499, Sec. 952 (Sec.
1861(v)(i) of the Social Security Act) and the
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regulations promulgated thereunder. No attorney-client or other legal
privilege will be deemed to have been waived by Hospital or Provider
by virtue of this Agreement.
5. HOSPITAL'S RESPONSIBILITY.
A. GENERAL OPERATIONS AND PATIENT CARE. Hospital shall be responsible
for its entire operations, procedures and patients and shall comply
with all rules, regulations and standards of the federal, state and
local government authorities and agencies governing the operation of
Hospital and the care of its patients, none of which shall be the
responsibility nor assumed by Provider or its personnel.
B. PATIENT CARE. Responsibility for all patients of Hospital, including
patients in need of Services, which shall include but not be limited
to their diagnosis, care, medical condition and treatment, shall be
solely that of Hospital and Hospital's physicians and other authorized
Hospital personnel, and during such time that the Provider personnel
are used to perform Services treatments to the Hospital's patients
pursuant to this Agreement, Hospital will have a Licensed Registered
Nurse on the floor of the Hospital where such Services treatments are
performed.
C. REFERRAL. All patients referred to Provider by Hospital for Services
treatments shall be patients of a physician licensed to practice
medicine in the State of Pennsylvania with a specialty in the field of
nephrology; and such physicians shall be members in good standing of
the medical staff of Hospital or otherwise have Hospital admitting
privileges.
D. BOOKKEEPING. Hospital shall establish and maintain all necessary
books, records and other memorandum with regard to the Services
treatments and shall be responsible for services, including but not
limited to the Services treatments, whether such fees were generated
by services of Provider or Hospital personnel.
6. INSURANCE AND INDEMNIFICATION.
A. During the term of this Agreement, Provider shall obtain and keep in
force property insurance covering all equipment owned or controlled by
it on Hospital premises; and comprehensive general liability insurance
for the space utilized by Provider for rendering Services in an amount
not less than $1,000,000 per occurrence and $3,000,000 in the
aggregate and professional liability insurance (malpractice insurance)
in an amount of $1,000,000/$3,000,000 per claim covering Provider
Services to patients of the Hospital under this Agreement.
B. Hospital represents that it maintains and shall continue to maintain
all appropriate general liability and medical malpractice insurance
adequate in character and amount, with reputable insurance companies
covering its operations and sufficient to protect its interests.
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Upon request, each party will supply the other party with certificates
of insurance evidencing the foregoing coverages.
C. Hospital agrees to indemnify and hold Provider, its officers,
directors, affiliates, shareholders and personnel harmless against any
liability, claim, or action arising by virtue of the negligence or
deliberate act of Hospital, or its physicians, agents, servants,
employees, or other personnel affiliated with it (for purposes of this
indemnification collectively referred to as "Hospital"). This
indemnification includes all obligations, liabilities, actions, suits,
proceedings, demands, assessments, judgments, damages and settlements
as well as costs incidental thereto (including but not limited to
attorney's fees and costs) arising out of any litigation affecting
Provider or its officers, directors, affiliates, shareholders or
personnel, which litigation results from the negligence or deliberate
act(s) of Hospital.
D. Provider agrees to indemnify and hold Hospital, its officers,
directors, affiliates, shareholders and its personnel harmless against
any liability, claim or action arising by virtue of the negligence or
deliberate act of Provider or its agents, servants, employees, or
other personnel affiliated with it (for purposes of this
indemnification collectively referred to as "Provider") in performing
the Services as provided for herein. This indemnification includes
all obligations, liabilities, actions, suits, proceedings, demands,
assessments, judgments, damages and settlements as well as costs
incidental thereto (including but not limited to attorney's fees and
costs) arising out of any litigation affecting Hospital or its
personnel, which litigation results from the negligence or deliberate
act of Provider in performing the Services as provided herein.
7. STANDARDS OF PROFESSIONAL PRACTICE.
A. In the event that any disagreement arises concerning the standards of
professional practice maintained by Provider or the quality of
Services rendered by Provider, such disagreement shall be subject to a
good faith meeting between the parties to resolve such disagreement.
8. MISCELLANEOUS.
A. Subject only to the terms hereof, and during the term hereof, Provider
will have the exclusive right to perform the Services at Hospital as
provided in the Agreement.
B. Provider shall not be liable (except as stated in this sub-paragraph
B) for delays or non-performance of its obligations under this
Agreement if such delays or non-performance are caused by events or
circumstances such as strikes or labor shortages, fires, traffic
conditions or accidents, inability to obtain supplies or equipment,
and governmental acts and regulations which are beyond the control of
Provider. In the event of any such delay or non-performance, however,
Hospital shall have the right to obtain the Services required herein
by or through any other means available to Hospital, and if such delay
or non-performance is not caused,
directly or indirectly, by Hospital or its agents, servants, employees
or representatives, then during any such delay or period of
non-performance that Hospital obtained other services, Provider shall
be liable to Hospital for costs incurred by Hospital in excess of the
fees set forth in the attached Schedule of Fees, provided Hospital
used due diligence to obtain such alternative services at a reasonable
cost.
C. Provider shall establish and maintain all necessary books, records and
other memoranda in accordance with the Hospital's requirements, which
records shall be promptly prepared and shall be the property of the
Hospital.
9. LEGISLATIVE LIMITATIONS. In the event Medicare, Medicaid, CHAMPUS, or any
third-party payor, or any other federal, state or local laws, rules,
regulations, or interpretations (collectively "Legislation") at any time
during the term of this Agreement prohibit, restrict, or in any way
substantially change the method or amount of reimbursement or payment for
Services under this Agreement, then this Agreement shall, in good faith, be
negotiated for amendment by the parties to provide for payment of
compensation in a manner consistent with any such prohibition, restriction,
or limitation. If the Agreement is not amended prior to the effective date
of such rule, regulation, or interpretation, this Agreement shall terminate
as of the effective date of such Legislation.
10. NOTICE. All notice hereunder shall be sufficiently given and shall be
deemed given when mailed by certified mail, postage prepaid, addressed as
follows:
Hospital: Carlisle Hospital
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
Copy to: Carlisle Hospital.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice
President
Provider: Dialysis Services of Pa, Inc. - Carlisle
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇, Vice President
Copy to: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Either party may, by notice given hereunder, designate any further or
different addresses to which subsequent notices shall be sent.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the law of Pennsylvania.
12. CORPORATE APPROVAL. Hospital and Provider each has all the requisite right,
power, legal capacity and authority, corporate and otherwise, to enter into
this Agreement and to assume and perform their respective obligations
hereunder. The execution and delivery of this Agreement and the
performance by Hospital and Provider of their obligations hereunder have
been duly authorized by their respective Board of Directors and this
Agreement is binding and enforceable upon the parties according to its
terms. The execution, delivery and performance of this Agreement by
Hospital and Provider will not result in any breach of any of the terms of
or constitute a default under, or constitute an event which with notice of
the passage of time or both would constitute a default under, any provision
of any law to which Hospital or Provider is subject, or the articles of
incorporation, By-laws of Hospital and Provider, or any mortgage,
indenture, agreement, instrument, judgment, decree or rule or resolution or
other restriction to which Hospital or Provider is bound. The
representations as contained herein are only made by Hospital and Provider
as to their own corporate acts, articles of incorporation, By-laws and
related agreements and regulations, and neither makes any representations
as to the others acts, articles of incorporation, By-laws, agreements and
regulations.
No action, approval, consent or authorization, including but not limited to
any action, approval or consent of any shareholder, noteholder, or order of
any court or governmental agency, commission, board, bureau, or
instrumentality, otherwise than as specifically provided in this Agreement
is necessary in order to constitute this Agreement as a valid, binding and
enforceable obligation of the parties hereto in accordance with its terms.
13. ARBITRATION. In the event of any dispute of the terms of this Agreement
which the parties cannot resolve themselves, then such dispute shall be
submitted to the American Arbitration Association in Harrisburg,
Pennsylvania or the closest metropolitan area thereto, and proceed and be
conducted in accordance with the then existing rules of the American
Arbitration Association. The arbitration shall be initiated by a written
request of one party served on the other party within thirty (30) days of
the failure to cure or resolve any dispute, and within ten (10) days of the
delivery of the arbitration demand, each party shall select on arbiter, and
those two arbiters shall select a third independent arbiter. The three
arbiters shall hear the dispute and the decision of any two of them shall
be final. The arbiters shall award costs of the arbitration, including
reasonable counsel fees, between the parties as the arbiters deem
appropriate. Any decision made by the arbiters shall be enforceable as a
final binding decision as if it were a final and binding decision of a
court of competent jurisdiction and may be entered in any court having
jurisdiction.
14. ASSIGNMENT. Neither party may assign their rights under this Agreement
without the prior written consent of the other party; provided, however,
that the sale of substantially all of its assets, or any merger,
combination or sale of a controlling interest of such party shall not be
deemed an assignment of such party's interest in this Agreement, provided
the new or succeeding entity remains bound by the terms of this Agreement.
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15. TERM AND TERMINATION.
A. This Agreement shall be effective as of September 15, 1997, and
shall continue in full force and effect for a term of one (1)
year and shall be automatically self-renewing for successive
terms of one (1) year unless terminated as hereinafter
provided.
B. Either party may terminate this Agreement upon written notice
to the other under any of the following conditions:
(1) Without cause upon ninety (90) days written
notice;
(2) In the event of the dissolution or liquidation of
the party or the filing by either party of a
voluntary petition in bankruptcy, or failure by
either party promptly to remove any execution,
garnishment or attachment of such consequences as
will impair its ability to carry out its
obligations under this Agreement, or the
commission by either party of any act of
bankruptcy, or adjudication of either party as a
bankrupt, or an assignment by either party for the
benefit of its creditors, or the entry by either
party into an agreement of composition with its
creditors, or the approval by a court of competent
jurisdiction of a petition applicable to either
party in any proceeding for its reorganization
instituted under the provisions of the general
bankruptcy act and any similar bankruptcy act
which may hereafter be enacted, upon thirty (30)
days written notice;
(3) If either party assigns or attempts to assign its
obligations under this Agreement (whether
voluntary or involuntary), by operation of law or
otherwise, subject to Section 14 hereof, then and
in any event, continuation of this Agreement shall
require the explicit written approval of both
parties. If both parties do not so approve within
sixty (60) days following the event requiring such
approval, then upon thirty (30) days written
notice; or
(4) In the event that a Certificate of Need is
required under any federal or state law, rule or
regulation for the performance of this Agreement,
or if Hospital's license is terminated or
similarly adversely affected under any federal or
state law, upon thirty (30) days written notice or
by operation of law, whichever first occurs.
16. SEVERABILITY. In the event that any provision of this Agreement is held to
be unenforceable for any reason, the unenforceability of that provision
shall not affect the
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remainder of this Agreement, which shall remain in full force and effect in
accordance with its terms.
17. EXECUTION IN COUNTERPARTS. This Agreement and any amendments hereto may be
executed in multiple counterparts by an appropriate officer of each party
for and on behalf of such party. Each counterpart shall be deemed an
original, but all counterparts together shall constitute one and the same
instrument.
18. CONFIDENTIALITY. This Agreement and its terms and provisions shall be kept
confidential and shall not be disclosed to any other party, nor shall this
Agreement or any part thereof be reproduced or summarized, except to the
extent as required by law.
19. COMPLETE AGREEMENT. This Agreement contains all the mutually agreed upon
terms and no changes may be made without specific written approval by both
parties.
IN WITNESS WHEREOF, Hospital and Provider have duly executed this Agreement
on this day 15th of August, 1997.
CARLISLE HOSPITAL DIALYSIS SERVICES OF PA, - CARLISLE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, PRESIDENT ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, PRESIDENT
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Schedule A
SCHEDULE OF FEES
Charge per Treatment (1)
------------------------
All Inpatient Hemodialysis [ * ]
Continuous Arteriovenous Hemofiltration [ * ]
(CAVH) Set-Up (Excluding Filter)
Peritoneal Dialysis Set Up (excluding
Fluids) (Hospital Staff to monitor
Treatment) [ * ]
Set Up Charge in Lieu of Treatment [ * ]
Administration of Streptokinase (Urokinase) [ * ] (2)
(1) BASED ON NORMAL SERVICE HOURS OF 7:00 A.M. TO 4:00 P.M., MONDAY THROUGH
FRIDAY; SERVICE TREATMENTS AT OTHER TIMES OR ON SATURDAY, SUNDAY OR
HOLIDAYS REQUIRE AN ADDITIONAL [*] PER TREATMENT
(2) COVERS ONE (1) HOUR OF RN TIME; IF PROCEDURE REQUIRES MORE THAN ONE (1)
HOUR, EACH ADDITIONAL 30 MINUTES OR ANY PART THEREOF WILL BE PAID AT THE
RATE OF [*].
ACCEPTED: ACCEPTED:
CARLISLE HOSPITAL DIALYSIS SERVICES OF PA, - CARLISLE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, PRESIDENT ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, PRESIDENT
[*] Confidential portions omitted have been filed separately with the
Securities and Exchange Act.
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