November 18, 2024 - 6:00 PM - Board of Commissioners Agenda Packet

10 PUBLIC NOTICE OF JOHNSTON COUNTY BOARD MEETING November 18 , 2024 6 00 pm The Johnston County Board of Commissioners will meet in Regular Session on Monday , November 18 , 2024 at 6 00 pm or as soon thereafter as possible in the Commissioners Meeting Room located in the Johnston County Courthouse at 207 E Johnston Street , Smithfield , NC The purpose of the meeting is to transact business as presented during the meeting Auxiliary aids for the handicapped will be made available upon reasonable notice Citizens that would like to address the Board for Public Comment but have concerns with physically attending the meeting , may email those comments to Clerk to the Board Dana Cuddington at danacuddington @ johnstonnccom The meeting will also be livestreamed through YouTube at https wwwyoutubecom jocogovnc 1 Approval Discussion of Agenda 2 Consent Agenda Items 5 3 Public Comments 4 Parks , Greenways & Open Space – Regional Park Engineering Contract 27 5 Johnston Soil and Water Conservation District – Farmland Preservation Grant 6 Public Utilities – Memorandum of Agreement – Johnston Co and Town of Clayton 78 7 Public Utilities – CJCRWWTF SCADA Improvements 84 8 County Commissioner District 3 Appointment 9 Manager Reports and Comments 10 Board Reports and Comments 11 Closed Session If Requested Page 1 of 87PageNovember 18 , 2024 6 00 pm 1 Approval Discussion of Agenda 2 Consent Agenda Items Note All items on the Consent Agenda are considered to be routine and may be enacted by one motion The items have been reviewed by the County Manager and are recommended for approval If a Commissioner requests discussion on an item , upon a motion , the item will be removed from the Consent Agenda A Approval of Minutes – October 21 , 2024 – 6 00 pm B 2023 State Appropriations Act Directed Grants Staff submits four grant project ordinances for the 2023 State Appropriations Act directed grants These grants are for Radios for Water Rescue Teams in the amount of 222,750 , Fire Departments and Non - Profits in the amount of 385,000 , the Bentonville Battlefield State Historic Site in the amount of 700,000 and the Moccasin Creek Service District in the amount of 250,000 All four grants have been accepted budgeted by the Board but recent guidance requires the grants to be accounted for in special revenue funds thus requiring these ordinances See ordinances C Health Department – AthenaHealth Agreement The Johnston County Public Health Department provides primary care , behavioral health , and mandated public health services to the residents of Johnston County The move to value - based delivery of health care requires more focus on coordination of care across settings and quality data metrics Payment for services is more dependent on outcomes and our agency needs to have a robust system to meet this changing healthcare landscape The Health Department had demonstrations by four electronic health records EHR vendors prior to choosing AthenaHealth and negotiated the best rate for the service with the assistance of our Finance Director and County Attorney Staff requests approval to enter into a contract with AthenaHealth as the EHR service provider for the health department Funding for implementation is in the current budget See contract D Budget Revisions • Finance – 1,592,00400 – To appropriate Opioid Settlement Funds for Fiscal Year 2024 - 25 The budget was included in the budget presentation for the current fiscal year but inadvertently omitted from the formal budget ordinance • LEO Separation – 7,89300 – To appropriate Fund Balance in the LEO Separation Fund to cover additional LEO Retirement expenses • Sheriff – 53,75506 – To move revenues into appropriate expenditure line items 3 Public Comments Page 2 of 87Page4 Parks , Greenways & Open Space – Regional Park Engineering Contract Approval Johnston County Parks and Open Space request approval to enter into a contract with Balfour Beatty Construction , LLC to complete engineering of the Johnston County Regional Park This contract obligates 344,766 and sets the cost of construction of Phase I not to exceed 3,000,000 Phase I will include two 2 basketball courts , four 4 pickleball courts , retention pond including accessible fishing dock , rough grading of site , driveway connections , parking layout and base layer of parking , and all underground utilities Engineering drawings will include rough grading and road alignments Scope of work for rough grading , utilities , and parking will be adjusted in accordance with available budget funds See contract 5 Johnston Soil and Water Conservation District – Farmland Preservation Grant Johnston Soil and Water Conservation District prepared a grant application in the spring of this year to the USDAs Regional Conservation Partnership Program RCPP The request was for 12 million for Conservation Easement purchase to protect Johnston County farmlands Johnston County Commissioners supported the grant request by offering a letter of support with a county fund commitment of 600,000 for each of the first three years of the five - year project Conservation District Director , Greg Walker has been informed by the USDA that Johnston Soil and Water Conservation District has received a verbal confirmation of the 12 million grant Mr Walker and staff will be working with the USDA in the coming months to prepare necessary work plans and agreements in order to bring these funds online for Johnston County County fund commitment was a vital part of the success in the grant award The county and federal funds will allow Johnston County to be much more competitive in securing additional State funds for farmland protection County funds will be used to match federal funds to purchase conservation easements as well as assisting with closing related costs 6 Public Utilities – Memorandum of Agreement between Johnston County and the Town of Clayton – Johnston County Long Range Water Supply Program County staff worked with Town of Clayton staff to develop a proposed Memorandum of Agreement related to the future Lower Neuse Water Supply Based on current projections , the Town of Clayton anticipates water supply needs equating to approximately 50 of the Lower Neuse Water Supply The proposed agreement indicates that both parties pledge to work together in partnership to achieve the goal of successfully bringing Phase 1 of the Lower Neuse Water Supply online by 2030 Phase 1 will include a 12 MGD water treatment plant , raw water intake and transmission main , quarry development and finished water mains The MOA outlines each party’s commitment to Stage 1 of the project Stage 1 includes • Owner’s Advisor Agreement – Project Development o Project administration o Permitting management o Project delivery plan o Project definition and preliminary engineering raw water model , treatability study , and basis of design report o Preliminary stakeholder communication o Analysis of treatment and transmission capacity as it relates to ownership , operation and initial capital • Installation & Maintenance of USGS Gauge at Richardson Bridge Road • Additional Preliminary Engineering pipeline routing , hydraulic evaluations • Field Evaluations survey , SUE , geotechnical and Environmental Surveys for o Intake Raw Water Pump Station Page 3 of 87Pageo Water treatment facilities o Raw and finished water pipelines The proposed agreement includes the following provisions • The County shall serve as the lead agency fiscal and contracting agent • Cost sharing shall be proportional to the capacity share currently , 50 each • The County will invoice the Town for their share of the costs as the County incurs project costs • The parties may enter into future agreements Staff recommends approval of the attached MOU , and we respectfully request the Board’s consideration See memo and MOA 7 Public Utilities – CJCRWWTF SCADA Improvements The County received bids on October 31 , 2024 for the Central Johnston County Regional Wastewater Treatment Facility CJCRWWTF SCADA Improvements project The County received two 2 bids , after completing the re - advertisement process Please refer to the attached summary tabulation of bids Dellinger , Inc of Monroe , NC submitted the lowest responsive bid in the amount of 3,076,53900 Dellinger , Inc is properly licensed and experienced in the type of construction involved and appears to have the financial , labor and equipment resources required to complete the construction within the stipulated contract completion time Staff proposes a revised project budget , as follows Existing Revised Technical Services 378,60000 300,00000 Construction 3,674,00000 3,076,53900 Contingency 367,40000 153,82100 Cost of Revenue Bond Issuance 37,62665 000 Total Project Cost 4,457,62665 3,530,36000 County ARPA Funds 2,421,00000 3,530,36000 Water Sewer Revenue Bonds 2,036,62665 000 Total Project Funds 4,457,62665 3,530,36000 Staff recommends award of the CJCRWWTF SCADA Improvements project to Dellinger , Inc in the amount of 3,076,53900 , approval of the project budget and approval of the capital project ordinance See memo , bid tabulation and capital project ordinance 8 County Commissioner District 3 Appointment 9 Manager Reports and Comments 10 Board Reports and Comments 11 Closed Session If Requested Page 4 of 87PagePage pageNumber5Page 5 of 87PagePage pageNumber6Page 6 of 87PagePage pageNumber7Page 7 of 87PagePage pageNumber8Page 8 of 87PagePage pageNumber9Service Proposal Presented to Johnston County Public Health Department Presented by Darren Gillman Sales Executive - MGI athenahealth , Inc dgillman @ athenahealthcom Prepared for Marilyn Pearson Medical Director Johnston County Public Health Department 517 N Brightleaf Blvd Smithfield , NC 27577 - 4407 marilynpearson @ johnstonnccom 919 989 - 5212 Presented on 5 30 2024 Valid if accepted by 11 30 2024 Proposal Number Q - 280195 - 1 - Page 1 of 15 Page 9 of 87Page0What You Told Us About Your Organization Specialties Served Family Practice Annual Collections 2,339,60800 Number of Providers 15 Annual Visit Volume 24,081 athenaOne athenaOne Base Service Fee 710 of Collections Client Minimum Fee per Month 6,92100 Deposit Deposit 8,57500 Onboarding Service Fees and Scope Scope Fees Implementation and Configuration Services Number of Locations Assessed Onsite 2 Location s Training Person Days 10 Day s 13,04600 Go - live Support Person Days 21 Day s 27,39600 Total Onboarding Service Fees 40,44200 Consulting Services Fees and Scope Fees Advisory - Data View Analytics Consulting 20,00000 For reference purposes , the scope of the project outlining the Advisory - Data View Analytics Consulting Services described in this Proposal as of the date hereof is attached hereto as Attachment A The parties acknowledge that scope of the project may be modified by mutual agreement as the project needs change and or develop Proposal Number Q - 280195 - 1 - Page 2 of 15 Page 10 of 87Page1Additional Terms 1 By executing this Proposal , each Party agrees and intends that the terms contained in the Agreement , including this Proposal and the applicable Service Description s , related to the content and manner of a request for access , exchange , or use of electronic health information as defined at 45 CFR § 171102 , including any and all terms related to fees , reflect the Parties ’ mutual agreement in an arms ’ length transaction without any coercion and meet the “ content ” and “ manner requested ” conditions of the Content and Manner Exception set forth at 45 CFR § 171301 2 For each of the first three months following your first Go - Live Date , you will be invoiced monthly and shall pay the Service Fee set forth above Beginning in the fourth month following your first Go - Live Date and for each month thereafter , you will be invoiced monthly and shall pay the greater of 1 the Service Fee set forth above , or 2 the Client Minimum Fee set forth above adjusted , as applicable , in accordance with the Monthly Minimum Ramp Schedule set forth above 3 Notwithstanding anything to the contrary in the Agreement , not more than once per year following the two - year anniversary of Client’s first Go - Live Date , Athena may , following provision of notice to Client , automatically increase Client’s then - current service fee for the athenaOne Services set forth in this Proposal by no more than CPI CPI shall mean the US City Average December to December percent for All Urban Consumers CPI - U 4 You will be invoiced monthly and pay the Service Fees set forth above 5 Athena will refund the full Deposit amount set forth above in the form of a credit or series of credits applied prospectively to Clients invoices contingent upon Clients first Go - Live Date occurring within 6 months following the Effective Date of the Agreement 6 You will be invoiced and shall pay the Onboarding Service Fees set forth above in the month after your initial Go - Live Date 7 You will be invoiced and shall pay the Consulting Service Fees set forth above in the month after your initial Go - Live Date 8 Travel and expenses are not included in the fees listed above You will be responsible for paying all travel and expenses Athena agrees to comply with its then - current travel and expense policy upon request 9 Any work outside of the Onboarding type or scope , including phasing of the product roll - out or switching from Offsite to Onsite Onboarding , will require a change order and will result in additional fees 10 Credit card processing services will require the Client to complete an Elavon Merchant Agreement credit application via athenahealth , and applicable Elavon fees for credit card transactions will apply 11 Athena shall appoint Athena employees to provide the training , onboarding and go - live support who are suitably skilled , experienced and qualified to perform those services Athena will ensure that at least one person providing training , onboarding , go - live support and consulting services has provided such services in connection with at least two prior implementations of the athenaOne Services In the event of a good faith issue compromising the effectiveness of one or more Athena employees , Client may request that Athena provide a replacement and Athena will give timely and good faith consideration to the request 12 Any additional Onsite Training and or Onsite Go - Live Support will be billed at 1,95000 per Person Day , and any additional Offsite Training and or Offsite Go - Live Support will be billed at 1,30000 per Person Day 13 Provided that Client i executes the Agreement on or before 11 30 2024 12 00 00 AM , ii has its first kick - off date within four 4 weeks of the Effective Date , and iii goes live on the athenaOne suite of services within six 6 months of the Effective Date , the Parties agree that the Onboarding Service Fees set forth above shall be reduced by 331 14 Provided Client i executes the Agreement on or before 11 30 2024 12 00 00 AM , ii has its first kick - off date within four 4 weeks of the Effective Date , and iii goes live on the athenaOne suite of services within six 6 months of the Effective Date , the Parties agree that the Consulting Services Fees set forth above shall be reduced by 331 15 See the athenaOne Base Service Description for more information on standard onboarding activities , Consulting Services and the process to request additional services 16 The athenaOne Services covered in this Proposal may be subject to a discount and or warranty as described in this Proposal Number Q - 280195 - 1 Page 4 of 7 Page 11 of 87Page2Proposal , which are intended to be structured consistent with the discount or warranty regulatory safe harbor , as applicable , to the federal antikickback statute set forth in 42 CFR 1001952 h and g , respectively , and other applicable laws and regulations To the extent that the value of any discount or warranty item is known as of the Effective Date , that discount warranty value is detailed in this Proposal and in the Additional Services section of the initial sales invoice To the extent that the value of any discount or warranty is not known as of the Effective Date , Athena will provide to Client documentation of the calculation of the value of the discount warranty identifying the specific goods or services purchased to which the discount warranty will be applied at the time the discount warranty is credited , earned , or redeemed If the discount includes supplying one or more goods or services without charge or at a reduced charge in connection with the purchase of other goods or services , Client represents and warrants that to the extent any goods or services included in the transaction are reimbursed by a Federal health care program in whole or in part , they are all reimbursed by the same Federal healthcare program using the same methodology If applicable , Client must fully and accurately report the discount warranty in its applicable cost report s filed with the US Department of Health and Human Services HHS or applicable State agency In addition , Client must provide , upon request of HHS or applicable State agency , information regarding the discount or warranty in accordance with the safe harbor regulations Proposal Number Q - 280195 - 1 Page 5 of 7 Page 12 of 87Page3Attachment A This Proposal outlines Consulting Services tasks and deliverables that will be performed by Athena and Client during the term of this Proposal I DESCRIPTION OF SERVICES This section articulates expectations of Athena and Client over the course of the engagement a Objectives This engagement is designed to meet the following objectives i Enable client to resolve current reporting issues and enhance current strategy ii Embed knowledge and expertise within Client’s staff iii Evaluate needs and requirements for data , reporting and tools b Activities Engagement Activities will be identified and prioritized by Client , and may include but are not limited to i Provide education , mentoring and assistance with the Data View data model ii Troubleshoot existing queries and co - develop new queries to pull data related to current and ongoing reporting needs iii Assist with data mapping , report development , and validation c Client Responsibilities For Athena to meet the objectives listed above , Client is responsible for the following i Provide a list of key stakeholders and job titles prior to the kickoff of the project ii Articulate any considerations at the practice that may impact the project eg , key stakeholder transitions , political challenges , upcoming expansion iii Designate the following management personnel to the project a Project Sponsor b Executive Sponsor to oversee governance of the project iv Provide appropriate personnel to complete any assigned tasks in a timely manner and or address any escalations during the project v Ensure that key management personnel and designated staff make themselves available for meetings and decision - making as reasonably requested vi Provide Athena with feedback , as reasonably requested by Athena d Deliverables Deliverables will be identified and prioritized by Client , and may include but are not limited to i Delivery and facilitation of working sessions with the client to achieve the objectives ii Identification of relevant Key Performance Indicators and reporting to be leveraged Proposal Number Q - 280195 - 1 Page 6 of 7 Page 13 of 87Page4e Change Order In order to change the terms of this Proposal , the Client Project or Executive Sponsor or Athena Project Sponsor as applicable shall submit a written request to the other contact person specifying the proposed changes Athena will notify Client of any estimated additional fees and or changes to the timeline In all cases , the Parties will enter a written amendment to this Proposal detailing the agreed upon changes and additional fees if any II RESOURCE EXPECTATIONS – CLIENT & ATHENA The Consultant s will be named for the duration of the engagement Athena reserves the right to change the resource at any time during the scope of the engagement , subject to compliance with Paragraph 10 of the Additional Terms To the extent practicable , Athena will provide 30 days advance notice to Client of any reassignment III SERVICE PROPOSAL TERM The term of this Proposal is effective upon countersignature of this Proposal by Athena Athena will complete the Consulting Services following the engagement start date specified by Athena at the kickoff Fees set forth above are cumulative and will be added to relevant athenaOne invoices Client will be invoiced for Services set forth above Client shall pay the Consulting Services Fees in accordance with the terms of the Agreement Athena employees providing Consulting Services are subject to Athena’s employment benefits including Athena’s holiday schedule and paid time off Proposal Number Q - 280195 - 1 Page 7 of 7 Page 14 of 87Page5ATHENAHEALTH MASTER SERVICES AGREEMENT Upon execution by Client and countersignature by an authorized Athena representative , this document will become effective as a binding agreement between the Parties as of the Effective Date Section 1 Defined Terms “ Client Data ” means all data and information of Client “ Agreement ” means this Master Services Agreement , Exhibit provided by Client or its Authorized Users to Athena , or A , the Third Party Terms , each Proposal , and each Service provided to Athena from third parties at Client’s direction , Description , each of which is incorporated by reference herein including through athenaOne Client Data includes Client’s “ Applicable Law ” means all federal , state , and local laws and Confidential Information but does not include Client PHI regulations , including those relating to kickbacks , consumer “ Client PHI ” means PHI that Athena receives from or on protection , fraud and abuse , confidentiality including HIPAA , behalf of Client or creates on behalf of Client Use and Medicaid , and Medicare , in each case to the extent directly disclosure of Client PHI is governed by the terms of Exhibit A applicable to the respective Party’s performance of its “ Collections ” means all sums received by Client for any obligations under this Agreement health care items or services furnished by Client to patients if “ Athena ” is athenahealth , Inc and its majority - owned a such sums are posted in athenaOne , or b if athenaOne subsidiaries , 80 Guest Street , Boston , MA 02135 ; Tel Services have been used to schedule such health care or to bill , 6174021000 ; Fax 6174021099 track , or follow up on such sums Collections include co - pays , “ Athena Property ” means athenaOne , athenaOne Services , withhold returns , surplus distributions , bonus payments , athenaOne Content , Materials , Service Descriptions , Athena’s incentive program payments , revenue sharing , capitation and Confidential Information , proprietary methods , templates , other managed care payments , cost report settlements , wrap - spreadsheets , databases and other electronic tools created or around payments , and all sums processed using Athena’s credit owned by Athena , and all data and information in athenaOne card processing services Collections do not include payments that Athena compiles , sorts , integrates , normalizes , analyzes , for Client administrative services not performed using maps , processes , selectively aggregates or combines with athenaOne or athenaOne Services Any amounts refunded to or multiple disparate data sources , for comparison , benchmarking taken back by any payer during the term of this Agreement in or other lawful purposes , as well as improvements , additions , regard to sums qualified as Collections during that time will be modifications , interfaces , and derivative works prepared from treated as negative adjustments to Client’s Collections in the or relating to any of the foregoing , and any and all tangible and month in which such refunds or takebacks occur intangible works of authorship , copyrights , patents , “ Confidential Information ” means information that is trademarks , trade secrets and trade dress , and all intellectual disclosed by one Party to the other and that the receiving Party property rights in any of the foregoing For the avoidance of knows is confidential to the disclosing Party or that is of such a doubt , Client owns Client Data and Client PHI nature that someone familiar with the type of business of the “ athenaOne ” means the platforms , including the disclosing Party would reasonably understand is confidential to athenaOne ® multi - user platform , made available to Client or it Confidential Information includes financial and other its Authorized Users , or used to provide athenaOne Services , business information of either Party With respect to Athena , together with athenaOne Functionality and associated Confidential Information includes athenaOne Functionality , databases athenaOne Content , Materials , the terms of this Agreement , “ athenaOne Content ” means any data made available by and each Service Description , and in each case , any visual Athena as part of any athenaOne Services and all documents , reproduction thereof Notwithstanding the foregoing , formats , forms , functions , and screens for organizing or Confidential Information does not include PHI or information presenting that data that the receiving Party can demonstrate a is in the public “ athenaOne Functionality ” means the software domain or is generally publicly known through no improper functionality of athenaOne that enables system access and use action or inaction by the receiving Party ; b was rightfully in “ athenaOne Services ” means the services provided by the receiving Party’s possession or known by it prior to receipt Athena under this Agreement , including access to and use of from the disclosing Party ; c is rightfully disclosed without athenaOne by Client and the provision of athenaOne Content restriction to the receiving Party by a third party without and Materials through athenaOne violation of obligation to the disclosing Party ; or d is “ Authorized Users ” means those users a who are independently developed for the receiving Party by third designated by Client in athenaOne and who are i employees parties without use of the Confidential Information of the of Client , or ii other individuals , corporations , or entities that disclosing Party are not , and are not affiliated with , competitors of Athena , and “ Effective Date ” means the date this document is have a valid HIPAA business associate agreement or other countersigned by Athena agreement with Client , and b who have been granted access Force Majeure Event ” means , with respect to a Party , any to athenaOne by Client in its exercise of reasonable discretion event or circumstance , whether or not foreseeable , that was not relating to the receipt of athenaOne Services hereunder by caused by that Party and any consequences of that event or Client , and c from whom Client has obtained reasonable circumstance assurances that they will comply with the access and use and “ Go - Live Date ” has the meaning set forth in the applicable confidentiality terms in this Agreement Service Description “ Billable Provider ” means a physician or licensed or “ HIPAA ” means the Health Insurance Portability and specially trained non - physician who is credentialed with Accountability Act of 1996 and associated regulations , as may payers , linked to Client’s organization , and performs health be amended from time to time services for Client’s customers “ Materials ” means all instructions , manuals , specifications , “ Client ” is use full legal name Johnston County Public and training Athena provides in connection with any Health Department athenaOne Services Address 517 N Brightleaf Blvd , Smithfield , NC 27577 - “ Notice ” is defined in Section 13 of this Agreement 4407 “ Party ” means Athena or Client “ Parties ” means Athena and Tel 919 989 - 5212 Client Fax 919 989 - 5279 “ PHI ” means protected health information as that term is Client Tax ID 56 - 6000311 used under HIPAA E - mail marilynpearson @ johnstonnccom “ Privacy Rule ” means the privacy standards in 45 CFR Part 160 and Part 164 , subparts A and E MSA 20231 Page 1 of 8 Page 15 of 87Page6breaches the warranty in Section 8 b iv herein In the event of a Proposal means Athena Proposal # Q - 280195 - 1 unique violation of any System and Service Access and Use Provision in identifier and each Athena Proposal entered into by the Section 4 , prior to termination of this Agreement , permission to Parties after the Effective Date and incorporated herein by access or use athenaOne will first be suspended upon such reference violation or breach , and Athena will notify Client of such “ Security Rule ” means the Security Standards in 45 CFR suspension as soon as reasonably practicable Any Notice of Part 160 and Part 164 , subparts A and C suspension to Client shall constitute a Notice of breach under “ Security Standards ” means the athenahealth Statement of Section 3 c i , except that the cure period for such breach will be Security Standards attached hereto as Exhibit B , as the same five business days To the extent reasonably feasible under the may be periodically updated by Athena from time to time For circumstances , any suspension will be reasonably tailored to the the avoidance of doubt , Exhibit B is current as of the Effective violation , and the Parties shall cooperate in good faith with Date , but Athena has the permanent and unrestricted right to respect to correcting or remedying such circumstances so as to revise such Exhibit from time to time , subject to the terms of avoid or minimize 1 suspension of access to Client ; and 2 this Agreement damage , loss or other adverse effect on Athena “ Service Description ” means each document periodically e Notwithstanding anything to the contrary set forth in this updated by Athena that contains a description of athenaOne Agreement , beginning on or around the 15 - month anniversary of Services Client’s first Go - Live Date and no more frequently than every 24 “ Third Party Items ” means the third party products and months thereafter each such date , a “ Review Date ” , Athena services accessible through athenaOne may review Client’s information actually recorded in athenaOne “ Third Party Terms ” means the pass - through terms and such actual data information on any Review Date , the “ Actual conditions set forth at http wwwathenahealthcom tpt Client Metrics ” against any Client information set forth in applicable to Client’s access to and use of certain Third Party this Agreement , including , but not limited to , Client size , type , Items specialty , configuration , annual volume of Client claims or visits , Section 2 Athena Services and Payment annual Collections , or payer mix any such Client information , a Athena shall provide athenaOne Services as described in “ Stated Client Metrics ” If , upon such review , Athena each applicable Service Description The Parties shall perform reasonably determines that any of the Stated Client Metrics is their respective obligations as set forth in this Agreement materially inaccurate , incomplete , or varies by at least 15 from b Client shall pay Athena the fees and expenses as set forth the Actual Client Metrics , Athena may require Client to agree to in this Agreement Athena may impose a late charge equal to additional or alternative terms or pricing ; provided , that if the the lesser of i 1 ½ , or ii the highest rate permitted by Parties cannot reach mutual agreement after good faith Applicable Law , each month on all amounts that are not subject discussion as to such alternative terms or pricing , either Party to a bona fide dispute and are overdue beyond 10 days , but this may terminate this Agreement upon 30 days ’ Notice to the other charge will not waive or extend any obligation of Client to Party Before seeking to impose any requirement of additional make payments when due or alternative terms or pricing , Athena shall provide Notice of c If Athena is required by Applicable Law , legal process , or the grounds for such determination and all supporting government action to produce information or personnel as documentation to Client for review and assessment witnesses with respect to the athenaOne Services provided to f Client may terminate this Agreement upon 15 days Notice Client or this Agreement , Client shall reimburse Athena for to Athena if any revision by Athena of a Service Description any professional time , fees , and expenses including materially and adversely affects the athenaOne Service that it reasonable external and internal legal costs incurred to receives , provided that such Notice must be provided within 60 respond to the request , unless Athena is a party to the days after Client is first informed of such revision proceeding or the subject of the investigation g Upon termination of this Agreement or any athenaOne Section 3 Term and Termination Service for any reason , Client shall pay to Athena all amounts a This Agreement will have a term of one year from the due hereunder for all services rendered through the date of Effective Date and will automatically extend for additional termination in accordance with the terms of this Agreement consecutive one - year terms unless terminated as set forth Section 4 System and Service Access and Use below a Clients access to athenaOne is provided by Athena solely b Either Party may terminate this Agreement or any to facilitate Clients access to athenaOne Services Subject to athenaOne Services at any time , with or without cause , by compliance with the terms and conditions of this Agreement providing the other Party with no less than 90 days ’ Notice Athena grants to Client and its Authorized Users a right to c Either Party may terminate this Agreement effective upon access and use athenaOne on a limited , non - exclusive , non - Notice to the other Party if i the other Party defaults in transferable basis and only during the term of this Agreement , performance of any material provision of this Agreement and Client shall access athenaOne only i through its Authorized such default is not cured within 30 days following Notice Users acting within the scope of their service for Client ; ii on describing the specific default 10 days in the event of failure to Athena’s servers or as otherwise authorized by Athena ; iii for pay amounts owed that are not subject to a bona fide dispute ; the internal use of Client ; and iv from and within the United ii the other Party violates Applicable Law ; iii the other Party States If Client is live on the athenaCollector Service , Client files a voluntary petition in bankruptcy or an involuntary shall not use , directly or indirectly , any patient service - related petition is filed against it ; iv the other Party is adjudged billing system or method other than athenaOne and the bankrupt ; v a court assumes jurisdiction of the assets of the athenaOne Services , including cash billing systems , unless other Party under a federal reorganization act or other statute ; Client A uses a different tax identification number for claims vi a trustee or receiver is appointed by a court for all or a submitted through a different billing system , or B agrees to substantial portion of the assets of the other Party ; vii the use Athena’s mixed remittance process with respect to such other Party becomes insolvent , suspends business or ceases to claims conduct its business in the ordinary course ; or viii the other b Client shall ensure that each Authorized User complies Party makes an assignment of its assets for the benefit of its with the terms of this Agreement as well as Applicable Law creditors Termination of this Agreement by Athena for Client’s Client shall terminate any Authorized User’s access to failure to pay amounts owed will not constitute irreparable athenaOne i when such person no longer meets the definition harm to Client of “ Authorized User ; ” ii if conduct by such Authorized User d Athena may terminate this Agreement for cause effective breaches any term of this Agreement ; or iii upon such upon Notice if Client i violates any System and Service Access Authorized User’s indictment , arrest , or conviction of any and Use provision in Section 4 herein , or ii has breached or Page 2 of 8 MSA 20231 Page 16 of 87Page7crime related to claims or other transactions , financial worldwide , transferable , sub - licensable , irrevocable , perpetual relationships , or financial dealings in connection with health license to commercialize , use and incorporate such Feedback into care , and Client shall immediately inform Athena of any its software , services or systems or use as it otherwise deems such indictment , arrest , or conviction Client is responsible necessary or desirable in its business , and c will not enable for all acts and omissions of any Authorized User in Client to claim any interest in or ownership of Athena Property connection with such Authorized User’s access and use of As between Athena and Client , Client retains all right , title and athenaOne Athena may restrict , suspend , or terminate an ownership interest in and to Client Data Client hereby grants to Authorized User’s access to athenaOne if Athena determines Athena a fully - paid up , worldwide , sub - licensable , perpetual , in its reasonable discretion that such access has an adverse right and license to Client Data for the purpose of creating effect on Athena or any of its clients Athena Property c Client shall require Authorized Users to protect their Section 7 Compliance passwords and log in credentials Client is responsible for a Each Party shall comply with Applicable Law Client is solely any use of data , information , or services obtained through responsible for compliance with all legal and regulatory athenaOne by Authorized Users Except as expressly requirements with respect to Clients use of athenaOne and permitted under this Agreement , Client shall not and shall athenaOne Services cause its Authorized Users not to i access or use Athena b The Parties agree that i any fees charged or amounts paid Property in connection with the provision of any services to hereunder are not intended to be an inducement or payment , third parties ; ii resell , rent , license , lease , provide service either directly or indirectly , for the referral of patients or bureau or timeshare services , transfer , encumber , copy , furnishing of other healthcare services to Client or any third distribute , publish , exhibit , transmit or otherwise make party , and ii neither Party will enter into any agreements or available to any third party any Athena Property ; iii derive otherwise make any inducements or payments , either directly or specifications from , reverse engineer , reverse compile , indirectly , for the purpose of referring patients or furnishing disassemble , translate , record , or create derivative works other healthcare services to Client or any third party based on Athena Property ; iv use Athena Property in a c The Parties shall each separately maintain effective manner that delays , impairs , or interferes with system compliance programs consistent with the relevant compliance functionality for others or that compromises the security or guidelines set forth by the Office of the Inspector General of the integrity of any data , equipment , software , or system input Department of Health and Human Services The Parties shall or output , including but not limited to introduction of any cooperate with each other to provide prompt , accurate , and full viruses or malware into athenaOne ; v enter data in responses to any material inquiry or concern of either Party athenaOne that is threatening , harmful , lewd , offensive , related to compliance and to any reasonable request by either defamatory , or that injures or infringes the rights of others ; Party for clarification , documentation , or further information vi apply systems to extract or modify information in concerning Client billing or Client’s provision of , or referrals athenaOne using technology or methods such as those related to , health services for its patients commonly referred to as “ web scraping , ” “ data scraping , ” or d Client agrees that i no payment to or receivable of Client “ screen scraping ; ” vii use Athena Property or any part or or any Billable Provider is or will be assigned to Athena , and aspect thereof for any unlawful purpose or to mislead or Athena is not and will not be deemed to be the beneficiary of harass anyone ; or viii use Athena Property except as any such payment or receivable , and all such payments and specifically permitted under this Agreement Use of or receivables including , but not limited to , checks and electronic access to Athena Property not in accordance with the terms fund transfers will be payable to and will remain the property of this Agreement is strictly prohibited Any violation of this of Client or the Billable Provider ; ii Athena will not endorse Section 4 will cause Athena irreparable and immediate or sign any check or instrument ; iii any lockbox or other harm , and Athena is entitled to injunctive relief to prevent account into which Client payments or receivables are properly such violation deposited will remain in the name of , and under the sole Section 5 Confidential Information Each Party shall ownership and control of , Client or the Billable Provider ; iv exercise reasonable care to hold Confidential Information in Athena will not be a signatory on or have any power to transfer confidence and not use it or disclose it to any other person or or withdraw from any account into which Client or Billable entity , except a as permitted under this Agreement or as Provider payments or receivables from any federally funded reasonably necessary for the performance or enforcement of program are properly deposited ; and v in the event funds are this Agreement ; b as agreed in writing by the other Party ; c deposited in error to Client’s lockbox or other Client account , for the Party’s proper management and administration Client shall promptly repay an amount equal to such deposited provided that it obtains reasonable assurances from all amount as directed by Athena recipients that they will keep the information confidential and e Client shall verify and is solely responsible for the accuracy , use it only for the purpose of its disclosure , and provided completeness , and appropriateness of all information entered further that it is responsible for all acts and omissions of any into or selected in athenaOne or the Third Party Items by it and such recipient in violation of this Section 5 ; or d as required its Authorized Users Notwithstanding the foregoing , Athena by law Any violation of this Section 5 may cause the non - shall be responsible for any inaccuracy in , or corruption of , the violating Party irreparable and immediate harm , and such Client Data transmitted or processed by or through the Party is entitled to injunctive relief to prevent such violation athenaOne Services , solely to the extent any such inaccuracy or Section 6 Usage and Ownership Except for the right to corruption is caused by Athena or its personnel The use Athena Property subject to the terms and conditions professional duty to treat the patient lies solely with Client , and contained herein , this Agreement does not confer on Client a use of information contained in or entered into athenaOne or license in , ownership of , or interest in Athena Property Athena provided through athenaOne Services in no way replaces or developed or acquired Athena Property exclusively at its substitutes for the professional judgment or skill of Client private expense As between the Parties , Athena Property and Client is responsible and liable for the treatment of patients all right , title , and interest in and to it is and will remain the whom Client and its personnel treat in the course of accessing exclusive property of Athena Any ideas , advice , or using athenaOne Services , including responsibility for recommendations , suggestions , enhancement requests , personal injury or loss of life Client represents and warrants to feedback or proposals provided by or on behalf of Client or its Athena that i all data it provides to Athena or that it selects personnel to Athena related to Athena Property “ Feedback ” , in athenaOne , including , but not limited to , codes and a is given to Athena without claim of intellectual property practitioner identifiers , are accurate and in conformity with all right by Client , b by its receipt grants Athena a royalty free , legal requirements ; ii its medical records appropriately MSA 20231 Page 3 of 8 Page 17 of 87Page8support all codes that it enters , selects , or approves ; iii it and shall not assert , and shall cause its affiliates and personnel and its personnel are duly authorized to enter and access not to assert , any claim against Athena with respect to its or their such data ; and iv Athena is duly authorized to receive , use , reliance on any representations , warranties or statements of fact and disclose such data subject to the terms of this not specifically included in this Agreement Agreement Athena is not a health plan or healthcare d Except as expressly provided herein , Athena disclaims provider and it cannot and does not independently review or all representations and warranties of any kind or nature , verify the medical accuracy or completeness of the medical express or implied either in fact or by operation of law , information entered into , or made available to it in , with respect to any service or item provided hereunder athenaOne Use of and access to athenaOne Services , Except as expressly provided herein , Athena Property is including , but not limited to , clinical information in provided “ as is ” Athena does not warrant that Athena athenaOne , is at the sole risk and responsibility of Client , Property will be error - free or will be provided or available Authorized Users , and any practitioner or health care without interruption or meet Client’s business or operational provider or facility using data provided by Athena as part of needs athenaOne Services Athena will not be liable for any action e No claim against Athena of any kind under any or inaction of Client which may give rise to liability under circumstances may be asserted or filed more than one year the federal False Claims Act or any state version thereof after Client knows , or in the exercise of reasonable care should Section 8 Warranties and Limitations know , of any circumstances , whether by act or omission , that may give rise to such claim a Athena warrants to Client that , to Athena’s knowledge , f The remedy of a credit with respect to any “ Minimum Service athenaOne Functionality , when used properly and as Commitment ” described in the applicable Service Description will expressly authorized by Athena , does not infringe any be the sole and exclusive remedy for the acts or omissions of valid patent , registered copyright , or other registered Athena relating to the performance of that Minimum Service intellectual property right under the laws of the United Commitment Notwithstanding any provision in this Agreement States , provided that Athena makes no warranty to the to the contrary , the combined aggregate credit remedy with extent that such infringement results from i use or respect to all Minimum Service Commitments on account of any access of athenaOne by Client in combination with any month is limited to a maximum of 20 of Client’s monthly data , software , or equipment provided by Client or any service fee for that month third party that could have been avoided by use or access g Athenas cumulative , aggregate liability in connection with or of athenaOne without such data , software , or equipment , arising in any way or in any degree from this Agreement , from or ii any breach of an agreement by , or any negligent or athenaOne Services , or otherwise from the acts or omissions of other wrongful act or omission of , Client or any party Athena will not exceed the total amount paid by Client to Athena acting on behalf of Client Athena further warrants to in the 12 months before such claim arose ; provided , however , Client that i Athena will provide the athenaOne such limit shall be increased to 2 times the total amount paid by Services in substantial conformance with the Service Client to Athena in the 12 months before such claim arose for Descriptions ; ii Athena’s personnel will perform the damages arising out of Athena’s w breach of the confidentiality athenaOne Services in a professional and workmanlike obligations contained in Section 5 of this Agreement ; and x manner ; and iii Athena’s personnel performing the breach of the Business Associate Agreement attached hereto as athenaOne Services will be trained and will perform the Exhibit A that results in a Breach of Unsecured PHI as those athenaOne Services all material respects in accordance terms are defined under HIPAA Notwithstanding the foregoing , with the standards of the healthcare information if damages are measured by the cost of medical services provided technology industry Athena represents and warrants or the dollar value of claims submitted , Athenas liability for such that Athena will comply with its security policies and damages will not exceed the service fees attributable to such procedures set forth in the Security Standards , as the services or claims Athena will not be liable for any failure to same may be periodically updated by Athena and provide services , content , or functionality with respect to any incorporated herein claim , statement , or transaction that Athena believes in good faith b Each Party represents and warrants to the other Party arises from , in connection with , or contains inaccurate , that i it has the requisite corporate power and authority misleading , or otherwise improper information Notwithstanding to execute and perform its obligations under this anything to the contrary , Athena will not be liable for indirect , Agreement ; ii the person executing this Agreement on exemplary , punitive , special , incidental , or consequential its behalf has the authority to bind it hereunder and that damages or losses ; additional overhead and payroll ; lost profits or such Party’s execution of this Agreement is not in business opportunities ; loss of data ; or the cost of procurement of violation of such Party’s bylaws , certificate of substitute items or services Client hereby acknowledges that the incorporation or other comparable document ; iii the remedies set forth above are reasonable and will not fail of their execution , delivery , or performance of this Agreement essential purpose will not violate or conflict with , require consent under , or Section 9 Third Party Items As applicable in connection result in any breach or default of A Applicable Law , or with athenaOne Services , Athena hereby grants to Client and B any covenants or agreements by which such Party or its Authorized Users a limited , non - exclusive , non - transferable , any of its assets are bound ; and iv neither it nor any of non - licensable right to access and use the Third Party Items its personnel to its knowledge A has been convicted of through athenaOne during the term of this Agreement Athena any crime arising from claims or other transactions , may modify the Third Party Terms in the event Athena adds or financial relationships , or financial dealings in replaces Third Party Items or as required in connection with connection with health care , or B has been excluded changes to the applicable third party agreements for the Third from any federal or state health care program Party Items Athena agrees to use commercially reasonable c Client represents , warrants , and covenants to Athena that efforts to post the current Third Party Terms on athenaOne i it and its Billable Providers are , and will be , duly licensed and notify Client through an alert on athenaOne when Athena and authorized to provide and bill for the health services they has posted revised Third Party Terms The Third Party Items render ; and ii all athenaOne local rule requests , technical will not be deemed part of Athena Property All rights granted requests , or other requests , waivers , or directives by or on in this Section 9 are solely for Client and its Authorized Users ’ behalf of Client are and shall remain compliant with Applicable use in connection with athenaOne Services and will terminate Law and all applicable payer requirements Client agrees that it on the earlier of expiration or termination of a this has not relied on any representations , warranties , or Agreement , or b the applicable agreement between Athena statements of fact not specifically included in this Agreement , MSA 20231 Page 4 of 8 Page 18 of 87Page9and the licensor of the Third Party Items athenaOne Services , ii the interoperability of the Certified Section 10 Force Majeure athenaOne Services , iii the security of the Certified athenaOne a If a Force Majeure Event prevents a Party from Services , iv relevant information regarding users ’ experience complying with any one or more obligations under this with the Certified athenaOne Services , v Athena’s business Agreement , that inability to comply will not constitute practices related to exchanging electronic health information as breach if i that Party uses reasonable efforts to perform defined at 45 CFR § 171102 , or vi the manner in which a user those obligations ; ii that Partys inability to perform those of the Certified athenaOne Services has used the technology obligations is not due to its failure to A take reasonable A making a disclosure required by law ; measures to protect itself against , or comply with provisions B communicating information about adverse events , of this Agreement that would have protected it against , hazards , and other unsafe conditions to government agencies , events or circumstances of the same type as that Force health care accreditation organizations , and patient safety Majeure Event , or B develop and maintain a reasonable organizations ; contingency plan to respond to events or circumstances of C communicating information about cybersecurity threats the same type as that Force Majeure Event ; and iii that and incidents to government agencies ; Party complies with its obligations under Section 10 b D communicating information about information blocking b During a Force Majeure Event , the noncomplying Party and other unlawful practices to government agencies ; or shall use reasonable efforts to limit damages to the other E communicating information about Athena’s failure to Party and to resume its performance under this Agreement comply with a Condition of Certification requirement or other Section 11 Mediation The Parties shall submit any and requirement of 45 CFR Part 170 to the Office of the National all disputes , claims , controversies , or actions based upon , Coordinator for Health IT “ ONC ” or an ONC - Authorized arising out of or relating in any way to this Agreement or Certification Body “ ONC ACB ” any athenaOne Services , including any question regarding b Client shall not disclose Athena Confidential Information the negotiation , execution or performance of this about non - user facing aspects of Certified athenaOne Services Agreement and any conduct related to or arising out of this Client shall not disclose Athena Property or a third party’s Agreement following termination hereof each a “ Dispute ” intellectual property existing in Certified athenaOne Services , in the first instance to JAMS , or its successor , for non - except that Client may publicly display a portion of Certified binding mediation in Boston , Massachusetts Either Party athenaOne Services that is subject to copyright protection where may commence mediation by providing to JAMS and the such display would reasonably constitute “ fair use ” of Certified other Party a written request for mediation , which must set athenaOne Services , as provided by 45 CFR § forth the subject of the 170403 a 2 ii C , and the display concerns one or more of the Dispute , the relief requested , and the factual and legal bases six subject areas set forth in Section 14 a for such relief The Parties shall cooperate with JAMS and c If Client discloses a screenshot or video of Certified with one another in selecting a mediator from the JAMS athenaOne Services which contains Athena Confidential panel of neutrals and in scheduling the mediation Information , Client shall i not alter the screenshots or video , proceedings The Parties shall participate in the mediation except to annotate the screenshots or video or resize the in good faith and equally share the costs of the mediation If screenshots or video ; ii limit the sharing of screenshots to the the Dispute is not resolved through mediation , the Party relevant number of screenshots needed to communicate about seeking relief may pursue all remedies available at law , Certified athenaOne Services regarding one or more of the six subject to the terms of this Agreement Notwithstanding this subject areas set forth in Section 14 a ; and iii limit the sharing Section 11 , either Party may of video to A the relevant amount of video needed to a terminate this Agreement according to its terms , or b communicate about Certified athenaOne Services regarding one seek injunctive relief or more of the six subject areas set forth in Section 14 a , and B Section 12 Choice of Law ; Forum This Agreement only videos that address temporal matters that cannot be and any Dispute will be governed exclusively by , construed communicated through screenshots or other forms of and enforced in accordance with the laws of the communication For the avoidance of doubt , this Agreement shall Commonwealth of Massachusetts , without regard to its not be construed to prohibit or restrict any communication in a conflicts of laws principles The Federal District Court for manner that violates the Condition of Certification set forth at 45 the District of Massachusetts or the business litigation CFR 170403 a For purposes of this Section 14 , “ Certified section of the state superior court of Massachusetts will be athenaOne Services ” means athenaClinicals or athenaClinicals the exclusive venue for any resolution of any Dispute The for Hospitals and Health Systems , as applicable , and associated Parties hereby submit to and consent irrevocably to the workflows certified to ONC or an ONC - ACB as part of the ONC jurisdiction of such courts for these purposes The Parties Health IT Certification Program hereby irrevocably waive any and all right to trial Section 15 Miscellaneous This Agreement constitutes the by jury in any legal proceeding arising out of any entire agreement between the Parties relating to athenaOne Dispute Services and supersedes all prior agreements , understandings , Section 13 Notice Notice under this Agreement means and representations relating to athenaOne Services Except as written notification addressed to the individual signing this otherwise provided herein , no change to this Agreement will be Agreement at the address listed in Section 1 , with a copy to effective or binding unless signed by Client and a duly authorized the notified Party’s legal department that is a delivered by representative of Athena Neither Party may assign this hand ; Agreement or any right under this Agreement , in each case by b sent by traceable nationwide parcel delivery service , operation of law or otherwise , except as otherwise permitted overnight or next business day service ; or c sent by certified hereunder without the prior written consent of the other Party , United States mail Properly mailed Notice will be deemed and any attempt to assign this Agreement or any right under this given 3 days after the date of mailing , and other Notice will be Agreement in breach of the provisions of this Section 15 shall be deemed made when received A Party may change its address null and void The foregoing notwithstanding , either Party may for notice purposes by providing Notice of such change to the assign this Agreement upon Notice to the other Party in other Party connection with a any reorganization , conversion , consolidation Section 14 Certified athenaOne Services or merger of such Party , b any transaction resulting in the a Notwithstanding anything to the contrary in this holders together with their affiliates of a majority of the voting Agreement , Client may make a communication for any of the securities , membership interest or right to appoint a majority of following purposes about i the usability of Certified the members of the board of directors or similar governing body of MSA 20231 Page 5 of 8 Page 19 of 87Page0such Party as of immediately prior to such transaction , holding less than such a majority as of immediately after such transaction , or c any sale , transfer or exclusive license of all or a majority of the assets of such Party that are pertinent to this Agreement or , in each case of a through c whether consummated in one transaction or a series of related transactions For the avoidance of doubt , the assigning Party and the assignee will remain liable jointly and severally for any unperformed obligations under this Agreement or any breach hereof arising prior to the effective date of any assignment of this Agreement This Agreement is binding on the Parties and their successors and permitted assigns The Parties agree that they will not take any action that aims to invalidate this Agreement , or seeks to prohibit the other Party from realizing the benefits of the provisions herein relating to the dispute resolution , choice of law , forum , or liability limitat