Exhibit 10.61


 


RADIATION THERAPY SERVICES AGREEMENT


 


This RADIATION THERAPY SERVICES AGREEMENT (“Agreement”),
effective as of January 1, 2010 (“Effective Date”), is entered into by and
between South County Radiation Therapy, LLC, a Rhode Island limited liability
company (“SCR”) and Massachusetts Oncology Services, P.C., a Massachusetts
professional corporation (“Contractor”).


 


RECITALS:


 


WHEREAS, SCR operates
an Outpatient Ambulatory Care Facility providing radiation therapy treatment at
142 Kenyon Avenue, Wakefteld, RI, 02879, and wishes to arrange for certain
specialized services of Contractor to be available as necessary to patients of
SCR;


 


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


 


WHEREAS, SCR and
Contractor confirm that the arrangement contemplated herein has been in effect
for the last several years.


 


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


 


1.                         Contractor Obligations.


 


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 SCR (the “Physicians”).
The services shall be provided to SCR out-patients as ordered by the patients’
responsible physicians as agreed to by SCR 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 SCR 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.


 


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 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 South County
Hospital.


 


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3.                         SCR Obligations.


 


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


 


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 SCR 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. SCR shall pay Contractor for the services
provided pursuant to Section l(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 term of this Agreement or after the termination of this Agreement, 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.


 


Contractor shall cause
Physicians to (a) act in accordance with the reasonable rules and regulations
and any reasonably and medically sound policies and procedures of SCR, 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 Oncology, LLC or its affiliates; (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


 


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with all third party payor
agreements that South County Hospital will be providing services under, if
applicable.


 


During the term of this
Agreement, Contractor will immediately give notice to SCR (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.


 


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


 


8.                         Term and Termination.


 


The term of this Agreement
shall be for two (2) years commencing on the Effective Date. 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 first anniversary of the Effective
Date, the parties shall not enter into a subsequent agreement relating to the
same services on different terms until the expiration of the one (1) year
anniversary of the Effective Date. Either party may terminate this Agreement
without cause upon sixty (60) days prior written notice to the other party.


 


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


 


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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 SCR in the event that Contractor has violated any such
statutory or regulatory requirements, and the nature of such violation, to
enable SCR to take prompt corrective action. Contractor agrees that SCR shall
have the right to automatically terminate this Agreement in the event
Contractor fails to comply with this provision.


 


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


 


12.                   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.


 


13.                   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).


 


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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
13(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.


 


14.                   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.


 


15.                   Payments are Fair Market Value.


 


The parties agree that
payments made by SCR 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 SCR intend such payments solely as compensation for the services
and items.


 


16.                   Access to Records.


 


To the extent required by
Section 1861(v)(l)(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, documents and records
of Contractor to the extent that such books, documents and records are
necessary to certify the nature and extent of South County Hospital’s costs for
Services provided by Contractor hereunder.


 


17.                   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


 


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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 SCR:

  	
   

  	
  2270 Colonial Boulevard

  
	
   

  	
   

  	
  Fort Myers, FL 33907

  Attn: Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
  If to Contractor:

  	
   

  	
  2270 Colonial Boulevard

  
	
   

  	
   

  	
  Fort Myers, FL 33907

  Attn: Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
  With copy to:

  	
   

  	
  1010 Northern Boulevard,
  Suite 314

  
	
   

  	
   

  	
  Great Neck, NY 11021

  Attn: Executive Vice President and General Counsel

  



 


18.                   Applicable Law.


 


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


 


19.                   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.


 


20.                   Amendment.


 


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


 


21.                   Entire Agreement.  This Agreement represents
the entire agreement of the parties as to the subject matter hereof and all
prior or contemporaneous oral or written communications, understandings, or
agreements between the parties with respect to such subject matters are hereby
superseded in their entirety.


 


22.                   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.


 


23.                   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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24.                   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.


 


25.                   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:

  	
   

  	
  SOUTH
  COUNTY RADIATION THERAPY,

  LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Debra J. Guild

  	
   

  	
  By:

  	
  /s/ Kerrin E. Gillespie

  
	
  Name:

  	
  Debra J. Guild

  	
   

  	
  Name:

  	
  Kerrin E. Gillespie

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MASSACHUSETTS
  ONCOLOGY SERVICES,

  P.C.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Debra J. Guild

  	
   

  	
  By:

  	
  /s/ Jeffrey Pakrosnis

  
	
  Name:

  	
  Debra J. Guild

  	
   

  	
  Name:

  	
  Jeffrey Pakrosnis

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Treasurer

  



 


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