Exhibit 10.89


 


RADIATION
THERAPY SERVICES AGREEMENT


 


This RADIATION THERAPY SERVICES AGREEMENT (“Agreement”),
effective as of February 1, 2007 (“Effective
Date”), is entered into by and between Roger Williams Radiation Therapy, LLC, a Rhode Island limited liability
company (“RWR”) and Massachusetts
Oncology Services, P.C., a Massachusetts company (“Contractor”).


 


RECITALS:


 


WHEREAS, RWR operates
an Outpatient Ambulatory Care Facility providing radiation therapy treatment at
50 Maude Street, Providence, RI, 02908, and wishes to arrange for certain
specialized services of Contractor to be available as necessary to patients of
RWR; and


 


WHEREAS, Contractor is
equipped and has the professional expertise to provide such specialized
services as required by RWR and are willing to do so on the terms set forth in
this Agreement;


 


NOW,
THEREFORE, in consideration of the mutual promises and
covenants herein contained, the parties agree as follows:


 


AGREEMENT:


 


1.                         Contractor
Obligations.


 


a.                         Contractor
shall provide or arrange for the provision of the physician services of one or
more duly licensed radiation oncologists who shall be assigned to RWR (the “Physicians”). The services shall be
provided to RWR out-patients as ordered by the patients’ responsible physicians
as agreed to by RWR and Contractor but no more than for 5 days per week, and on
an emergency on-call basis 24 hours per day, 7 days per week. In the event RWR
needs services for more than as noted above, it shall be on such terms as
mutually agreed to by the parties. Contractor shall supervise and be solely
responsible for the services of the Physicians and Contractor shall be solely
responsible for the payment of all compensation and fringe benefits to
Physicians. Contractor also shall be responsible for all employment taxes,
unemployment compensation, worker’s compensation, and other similar benefits
for Physicians.


 


2.                         Contractor
Qualifications and Representations.


 


a.                         Contractor
represents that the Physicians: (a) are currently licensed and qualified
to practice medicine in the State of Rhode Island and shall at all times
maintain such licenses to practice medicine in such State without restriction; (b) have
a current Drug Enforcement Agency (“DEA”) registration, which enables
Physicians to prescribe all


 


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controlled substances and
shall at all times maintain such registration without restriction; (c) are
board certified and will maintain such status without restriction; and (d) will
have staff privileges at Hospital.


 


3.                         RWR
Obligations.


 


a.                         RWR shall
provide such facilities, equipment, supplies, utilities, administrative and
support staff, and other support services, as they shall deem to be reasonably
necessary and appropriate for Physicians to perform its duties and
responsibilities hereunder.


 


b.                        RWR shall
provide such non-physician personnel, as determined by RWR in consultation with
Contractor, to support the professional services of Contractor to RWR.


 


4.                         Billing and
Compensation.


 


a.                         Billing. Contractor
agrees that during the term of this Agreement, Contractor shall not bill to or
collect from any patient or third party payor any amount for services rendered
hereunder. Contractor hereby irrevocably assigns and grants to RWR the right to
bill to and collect from patients and/or third-party payors for all services
rendered by Physicians hereunder.


 


b.                        Compensation
for Physician Services. RWR shall pay Contractor for the services
provided pursuant to Section I (a) of this Agreement the amount of
Physicians’ salary, bonus and fringe benefits each month.


 


5.                         Confidentiality.


 


Each party, during the term
of this Agreement, will acquire information concerning the other’s business
practice (“Confidential Information”). The Confidential Information of a party
is and shall remain the sole and exclusive property of that party. Neither
party, nor any of its physicians, employees or agents, may at any time during
the initial or any renewal terms of the Agreement or after the termination of
this Agreement for a period of 5 years, for any reason whatsoever, with or
without cause, directly or indirectly, use for any purpose or disclose or
distribute to any person, corporation, partnership, sole proprietorship,
governmental agency, organization, joint venture or other entity, any of the
other party’s Confidential Information.


 


6.                         Physician
Conduct.


 


Physicians shall agree that
in the performance of the Physicians’ duties for RWR the Physicians will at all
times (a) act in accordance with the reasonable rules and regulations
and any reasonably and medically sound policies and procedures of RWR, provided
that such rules and regulations shall not prohibit Physicians from
engaging in other independent activities for compensation on a self-employed
basis or for other organizations, including 21st Century


 


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Oncology, Inc. or its
affiliate; (b) comply with all rules and regulations of any federal,
state and local agency applicable to Physicians’ practice under this Agreement;
(c) comply with the standards of any specialty board or nationally
recognized credentialing board or body applicable to Physicians’ specialty; (d) comply
with all ethical requirements of the American and State Medical Associations
applicable to the performance of Physicians’ duties; and (e) comply with
all third party payor agreements that Hospital will be providing services
under, if applicable.


 


During the term of this
Agreement, Contractor will immediately give notice to RWR (a) of any
claim, notice of claim, demand, or suit made against Contractor or Physicians
arising out of or from the provision of professional services; (b) if
Physicians’ license to practice medicine or DEA registration is suspended or
revoked, or Physicians are reprimanded, sanctioned or disciplined by any
licensing or specialty board or by any state or local medical society; (c) if
Physicians are denied membership or reappointment of membership to the medical
staff of any hospital or Physicians’ clinical privileges at any hospital are
suspended, curtailed or revoked; or (d) if Physicians have been terminated
or deselected from participation under any third party payor arrangement.


 


7.                         Medical
Records.


 


Physicians will promptly
complete and maintain, in accordance with reasonable policies and procedures of
RWR, all medical records respecting Physicians’ patient care activities for
RWR, All medical records shall be the sole and exclusive property of RWR and
shall not be removed from its premises or copied except for the legitimate
business purposes of RWR without its express written consent.


 


8.                         Term and
Termination.


 


The term of this Agreement
shall be five (5) years beginning on the Effective Date. In addition, this
Agreement may be terminated “for cause” at anytime (a) by either party if
there is a material breach of a material provision of this Agreement by the
other party and that material breach cannot be cured with sixty (60) days from
the date of written notice of such breach; (b) by either party if the
other party is convicted of a felony; or (c) by either party if the other
party engages in conduct bringing significant discredit to the reputation of
either party. If this Agreement is terminated prior to the expiration of the
initial one (1) year term, the parties shall not enter into a subsequent
agreement relating to the same services on different terms.


 


9.                         Independent
Contractor Relationship.


 


Contractor acknowledges and
agrees that Contractor is an independent contractor and, as such, Physicians
and Contractor personnel are not entitled to participate in any fringe benefit
programs offered by RWR to its employees, including but not limited to medical
malpractice insurance coverage. Contractor further understands and acknowledges
that no other payments, taxes (including payroll and/or employment taxes, such
as FICA, FUTA, federal or state personal income, state disability insurance tax
and state unemployment insurance tax) or fringe benefits of any kind will be
made in compensation for services rendered and that Contractor shall assume sole
and complete responsibility for the payment of any applicable taxes. Contractor
acknowledges that no workers’ compensation insurance has been or will be
obtained by RWR on


 


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account of Contractor.
Contractor shall comply with the State workers’ compensation laws, as
applicable.


 


10.                  Compliance
With Laws.


 


Contractor agrees to act in
compliance with all laws and regulations (including without limitation,
Medicare and Medicaid program requirements as applicable), which relate to
Contractor’s performance of services described in this Agreement. Contractor
agrees to timely notify RWR in the event that Contractor has violated any such
statutory or regulatory requirements, and the nature of such violation, to enable
RWR to take prompt corrective action. Contractor agrees that RWR shall have the
right to automatically terminate this Agreement in the event Contractor fails
to comply with this provision.


 


11.                  Arbitration
of Disputes.


 


The parties shall attempt to
resolve any disputes between them by mediation in a manner to be mutually
agreed upon as to any controversy or claim arising out of or relating to this
agreement or the breach of this agreement. Any such claim or matter which
cannot be resolved by mediation, shall be settled by binding arbitration to be
held in Providence County in Rhode Island under the Code of Ethics and Rules of
Procedure of the American Health Lawyers’ Association, as modified by the
following paragraph of this agreement. The parties shall attempt in good faith
to agree upon an arbitrator who is knowledgeable in matters covered by this
agreement. If the parties are unable to agree upon an arbitrator within 10 days
after the deadline for negotiations has passed, then either party may file a demand
for arbitration with the American Health Lawyers’ Association and arbitration
shall proceed in accordance with the Code of Ethics and Rules of Procedure
of the American Health Lawyers’ Association. The arbitrator shall promptly set
a date for hearing and after consideration of the evidence and arguments of the
parties, render a written decision on the dispute within 21 days after the
hearing. The decision of  the
arbitrator shall include findings of fact and conclusions of law. The decision
of the arbitrator shall be final and binding as to each party and any court
having jurisdiction may enter judgment upon the award. The costs of arbitration
shall be divided equally between the parties. The party against whom the award
is rendered shall pay any monetary award and/or comply with the order of the
arbitrator within 60 days of the entry of judgment on the award. The
non-prevailing party shall be liable for all attorneys’ fees and costs incurred
by the prevailing party should the non-prevailing party fail to comply with the
above 60-day deadline and the prevailing party must bring court action to
collect any award rendered in its favor or to seek other court enforcement of
the arbitrator’s order.


 


12. Insurance.


 


Contractor shall at all
times during the term of this Agreement have in place professional liability
insurance covering the acts and omissions of all Physicians and its other
health care professionals providing services under this Agreement. Contractor
currently carries professional liability insurance covering Contractor and
these individuals in the amount of One Million Dollars ($1,000,000) per
occurrence and Three Million Dollars ($3,000,000) in the aggregate.


 


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Contractor will provide
proof of insurance upon RWR’s request and notify RWR in writing in the event
there is any decrease in the dollar amounts of coverage or material adverse
change in coverage.


 


13.                  Indemnification.


 


Each party shall indemnify,
defend, and hold the other party, its agents, officers, servants, employees and
contractors harmless from and against any and all claims, losses, damages,
liabilities, obligations, deficiencies or injuries of any kind or character
(including, without limitation, attorneys’ fees and reasonable costs of
defense) resulting from or arising out of (i) any inaccuracy and/or breach
of the representations or warranties in this Agreement, (ii) any
non-fulfillment or breach or default in its performance of any of the
respective covenants or agreements made herein or (iii) any act or
omission of the indemnifying party, its agents or employees.


 


14.                  Health Law
Compliance.


 


a.                         Compliance
with Applicable Law.


 


This Agreement is at all
times is to be subject to applicable state, local, and federal law, including
but not limited to the Social Security Act, the rules, regulations and policies
of the U.S. Department of Health and Human Services, all public health and
safety provisions of state law and regulations, and the rules and
regulations of the Rhode Island Department of Health. The parties have entered
into this Agreement with the full intent of it being compliant with applicable
law, rules, and regulations, and any interpretation of this Agreement shall be
consistent therewith. The parties intend this Agreement to comply with the
Personal Services and Management Contracts Safe Harbor to the Medicare and
Medicaid Anti-Fraud and Abuse Statute, which is set forth in 42 C.F.R.
§1001.952 (d).


 


b.                         Invalid
Provisions.


 


In the event any future
final decision of a court of competent jurisdiction, statute, rule, regulation,
or regulatory interpretation is inconsistent or contrary with the terms of this
Agreement or that would cause one or both of the parties to be in violation of
law the parties shall promptly suspend the performance of any unlawful
covenant. The parties shall promptly meet and amend this Agreement,
maintaining, however, the terms and intent of this Agreement to the greatest
extent possible within the requirements of law. For purposes of this Section 14(b),
if the parties are unable to agree upon an amendment within 30 days after a
written request has been made by either party to the other, then either party
may terminate this agreement without further liability upon written notice to
the other.


 


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15.                  No
Obligation or Intent to Refer.


 


Nothing contained in this
Agreement shall be deemed to obligate either party to send or refer patients to
the other party. No payment is based upon or measured by the volume or value of
referrals.


 


16.                  Payments
are Fair Market Value.


 


The parties agree that
payments made by RWR to Contractor hereunder are fair market value
consideration for the items and services provided, and the payments are based
upon arms-length bargaining and the value of similar services in the community.
Contractor and RWR intend such payments solely as compensation for the services
and items.


 


17.                  Access to
Records.


 


To the extent required by Section 1861
(v) (i) (I) of the social Security Act, as amended, and by valid
regulation which is directly applicable to that section, Contractor agrees to
make available upon valid written request from the Secretary of the Department
of Health and Human Services, the Comptroller General, or any other duly
authorized representatives, this Agreement and the books, document and records
of Contractor to the extent that such books, documents and records are
necessary to certify the nature and extent of Hospital’s costs for Services
provided by Contractor hereunder.


 


18.                  Notice.


 


Any notice or other
communication which is required or permitted under this Agreement shall be in
writing and shall be deemed to have been given, delivered, or made, as the case
may be (notwithstanding lack of actual receipt by the addressee) (i) on the
date sent if delivered personally or by cable, telecopy, telegram, telex, or
facsimile (which is confirmed) or (ii) three (3) business days after
having been deposited in the United States mail, certified or registered,
return receipt requested, sufficient postage affixed and prepaid, or (iii) one
(1) business day after having been deposited with a nationally recognized
overnight courier service (such as by way of example, but not limitation, U.S.
Express Mail, Federal Express, or Airborne), to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):


 


	
  If to RWR:

  	
  David Koeninger

  Treasurer

  Roger Williams Radiation Therapy, LLC

  2234 Colonial Blvd.

  Ft. Myers, FL 33907

  



 


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  With a Copy to:

  	
  Stephen D. Zubiago, Esq.

  Nixon Peabody LLP

  One Citizens Plaza

  Providence, RI 02903

  
	
   

  	
   

  
	
  If to Contractor:

  	
  Daniel Dosoretz, M.D.

  Massachusetts Oncology Services, P.C.

  2234 Colonial Boulevard

  Ft. Myers, Florida 33907

  
	
   

  	
   

  
	
  With a Copy to:

  	
  Norton L. Travis, Esq.

  Garfunkel, Wild & Travis, P.C.

  Ill Great Neck Road

  Great Neck, NY 11021

  



 


19. Applicable Law.


 


This Agreement will be
governed by and construed in accordance with the laws of the State of Rhode
Island.


 


20. Authority.


 


The individuals signing
below represent that they have authority to bind their respective organizations
to the terms of this Agreement. The representative of Contractor signing below
also represents that he/she has authority to bind the Physicians to the terms
of this Agreement.


 


21. Amendment.


 


This Agreement can be
amended only by a written agreement signed by both parties.


 


22. Entire Agreement.


 


This Agreement represents
the entire agreement of the parties as to the subject matter hereof.


 


23. Agreement for Benefit of Parties.


 


This Agreement is intended
to be for the exclusive benefit of the parties hereto, and shall not be
construed to create any right of or benefit to any other party whatsoever.


 


24. Waiver of Breach.


 


The waiver by any party
hereto of a breach of this Agreement by another party shall not operate or be
construed as a waiver of any subsequent breach by such other party.


 


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25. Assignment.


 


Neither party may assign
this Agreement without the prior written consent of the other, which consent
shall not be unreasonably withheld; provided, however, that each party hereby
consents to any assignment to any successor of the other due to acquisition,
merger, consolidation or reorganization provided that any such assignment shall
not alter the terms of the Agreement without the written consent of the
non-assigning party.


 


26. Counterparts.


 


This Agreement may be
executed simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.


 


[Remainder
of Page Intentionally Left Blank]


 


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IN WITNESS WHEREOF, the
parties have set their hand as of the Effective Date set forth above.


 


	
  WITNESSES:

  	
   

  	
  ROGER
  WILLIAMS RADIATION THERAPY, LLC:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Authorized Signatory

  	
   

  	
  By: 

  	
  /s/ David Koeninger 

  
	
  Name:

  	
  Authorized Signatory

  	
   

  	
  Name:

  	
  David Koeninger

  
	
   

  	
   

  	
  Title: 

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MASSACHUSETTS
  ONCOLOGY SERVICES, INC:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Authorized Signatory

  	
   

  	
  By: 

  	
  /s/ Daniel E. Dosoretz

  
	
  Name:

  	
  Authorized Signatory

  	
   

  	
  Name:

  	
  Daniel E. Dosoretz, MD

  
	
   

  	
   

  	
  Title: 

  	
  President

  



 


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