HomeMy WebLinkAboutIowa Alcaholic Beverages Divisions and Waterloo PD-9/21/2015August 26, 2015
Please return this copy to:
City Clerk & Finance Dept.
715 Mulberry St.
Waterloo, IA 50703
ALCOHOLIC
BEVERAGES Terry E. Branstad Govemoroflowa
DIVISION Kim Reynolds Lieutenant Governor
State of Iowa Stephen Larson Administrator ABD
Dear I -PLEDGE Partner,
The Iowa Alcoholic Beverages Division (ABD) invites your department to participate In the 1 -PLEDGE
program for fiscal year 2016 (July 1, 2015 -- June 30, 2016). The benefit of a partnership between ABD
and law enforcement agencies Is evidenced by the 92% statewide compliance rate obtained by tobacco
retailers in FY2015.
In order to be an I -PLEDGE partner in fiscal year 2016, you must sign and return the enclosed 28E
Agreement. After reviewing the agreement and verifying the contact information for your department,
please sign the agreement with a witness on the last page and return it in the self-addressed envelope
provided. A copy of the executed agreement will be returned to your office.
It is important to remember that ABD is required to conduct one (1) compliance check of each tobacco,
alternative nicotine and vapor product retailer during FY2016, with a repeat check of any business that
fails the first compliance check. Section 5.1.2 of the 28E Agreement details the dates by which
compliance checks need to be performed.
Keep in mind that alternative nicotine and vapor products are age -restricted according to Iowa Code §
453A.2, and therefore included as part of the I -PLEDGE program. Attempts to purchase alternative
nicotine and vapor products may be conducted at any retailer that sells these products. Details and
examples of these age -restricted products will be included in the enforcement handbook.
The necessary materials to carry out the agreement will be sent to the contact person specified in
Section 13.10 of the 28E Agreement. In the meantime, contact Investigator Bill Missman at
515,314.3654 or myself at 515.281.7434, with questions regarding the enclosed agreement. If you
prefer, you may also email iapledl;e@iowabd.com.
Sincerely,
Jessica Ekman
Tobacco Program Coordinator
A Division of the Department of Commerce 11918 SE Hulsizer Road Ankeny, Iowa 50021-3941 PH 515.281.7400
FAX 515.281.7385 TOLL FREE 866.IowaABD WWW.IowaABD.com
28E AGREEMENT FOR
TOBACCO, ALTERNATIVE NICOTINE AND
VAPOR PRODUCT ENFORCEMENT
SC.HYDULE 3
1st
MIS AGREEMENT is made and entered into on this 2 - day of
b-e , 2015 by and between the Iowa Alcoholic Beverages
Division ("ABD"), and the Waterloo Police Department
(The "Department"). The parties agree as follows:
SECTION 1. IDENTITY OF nit PARTIES.
1.1 Iowa ABD. The ABD is authorized pursuant to Iowa Code Chapter 142A and a
Memorandum of Understanding with the Iowa Department of Public Health to provide
enforcement for Iowa's tobacco, alternative nicotine and vapor product laws. The ABD's
address is: 1918 SE Hulsizer Road, Ankeny, Iowa 50021.
L2 Department. The Department operates a duly recognized Iowa law enforcement agency.
The Department's address is:
Waterloo Police Department
715 Mulberry Street, Waterloo, Iowa 50703
SECTION 2. PURPOSE. The parties have entered into this Agreement for the purpose of
providing and funding tobacco, alternative nicotine and vapor product enforcement activities in
compliance with Iowa Code § 453A,2,
SECTION 3. TERM. The term of the Agreement shall be from the aforementioned date
through June 30, 2016, unless earlier terminated in accordance with the terms of the Agreement.
SECTION 4. FILING. Pursuant to Iowa Code § 28E.8, the ABD shall electronically file the
Agreement with the Iowa Secretary of State, after the parties have executed the agreement.
SECTION 5. RESPONSIBILITIES OF THE PARTIES.
5.1 Responsibilities of the Department.
5.1.1 Local Tobacco, Alternative Nicotine and Vapor Product Enforcement. The
Department shall provide tobacco, alternative nicotine and vapor product
enforcement of Iowa Code Chapter 453A.
5.1.2 Compliance Checks. "Compliance checks" mean activity to enforce Iowa Code §
453A.2 within the jurisdiction of the Department. Compliance checks also may
include enforcement of § 453A.2 within additional jurisdictions upon agreement
of the Parties. ABD shall make available to the Department the location of each
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tobacco, alternative nicotine and vapor product permit holder subject to a
compliance check by the Department at https://tobacco.iowaabd.com/.
The Department shall perform one (1) compliance check of each tobacco,
alternative nicotine and vapor product permit holder within the jurisdiction
of the Department during the term of the Agreement. Please note that
alternative nicotine and vapor products are age -restricted pursuant to Iowa
Code § 453A.2, and are therefore included in the I -PLEDGE program.
Attempts to purchase alternative nicotine and vapor products may be
conducted at any retailer that sells these products.
The Department shall not begin to conduct any retailer
compliance checks until October 1, 2015.
The compliance check shall be completed and submitted for reimbursement to
ABD by February 15, 2016. The Department should try to complete a
compliance check of all seasonal businesses such as golf courses, marinas and
bait shops before the businesses close for the 2015 business year, but not before
October 1, 2015.
The Department shall conduct a second compliance check on any retailer that is
found to be non-compliant during the first inspection. The second compliance
check on the non-compliant retailer shall be completed and entered no later than
May 15, 2016.
Clerks that fail compliance checks shall be ticketed criminally.
The Department shall, within seven (7) business days, notify the retail owner or
manager of any violation. Within seventy-two (72) hours of the Department
issuing a citation for a violation of Iowa Code § 453A.2(1) to a permit -holder or
employee of a permit -holder, the Department must notify the local permit -issuing
authority that issued the tobacco, alternative nicotine and vapor product permit to
the retailer where the offense was committed.
If the Department fails to complete and submit reimbursement for compliance
checks to ABD by February 15, 2016, ABD will consult with the Department to
establish a plan for completing the remaining compliance checks. In the
event that the Department fails to execute the agreed upon plan, the
Department agrees that ABD may authorize the Iowa State Patrol or other law
enforcement agency to conduct any remaining compliance checks.
5.1.3 Youth Volunteers. Utilization of youth volunteers is strongly encouraged where
feasible. The Department may compensate the youth involved in the compliance
checks in a manner consistent with Section 6. Keep in mind that the federal
government (SYNAR) will not allow minors under the age of sixteen (16) to be
used to conduct compliance checks. Please ensure that the officers assigned to
conduct the compliance checks do not work with a youth younger than age 16.
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5.1.4 Routine Enforcement. In addition to conducting compliance checks, the
Department agrees to regularly enforce youth tobacco, alternative nicotine and
vapor product laws by ticketing youth offenders.
5.1.5 Civil Proceedings. The Department shall cooperate with city, county and state
prosecutors if civil permit proceedings are initiated against a tobacco, alternative
nicotine and vapor product permit holder. The Department shall also cooperate in
proceedings against cited clerks and minors. Cooperation shall include, but not be
limited to, sharing investigative reports and copies of issued citations, as well as
providing witness statements and testimony.
5.1.6 Compliance Reports. The Department shall provide monthly reports to the ABD
in the manner prescribed by the ABD.
5.1.7 Miscellaneous. The Department shall be responsible for the day-to-day
administration of its tobacco, alternative nicotine and vapor product enforcement
activities. The Department shall provide all office space, equipment and personnel
necessary to conduct tobacco, alternative nicotine and vapor product enforcement
activities under the Agreement. The Department is solely responsible for the
selection, hiring, disciplining, firing and compensation of its officers.
5.2 Responsibilities of the ABD.
5.2.1 Enforcement Guidance. The ABD shall provide guidance on tobacco,
alternative nicotine and vapor product enforcement to the Department, if needed,
and cooperate with the Department in the performance of the Agreement.
5.2.4 Payment. The ABD shall pay the Department in the manner described in Section
6.
5.2.5 Cooperation. If ABD believes that any officer of the Department fails to perform
duties in a manner that is consistent with the Agreement, the ABD shall notify the
Department. The Department shall then take such action as necessary to
investigate and, if appropriate, discipline or reassign the officer away from
tobacco, alternative nicotine and vapor product enforcement activities. The ABD
shall have no authority to discipline or reassign an officer, except that the ABD
shall have the authority to stipulate that a particular officer not be assigned to
provide services under the Agreement.
5.2.6 Insurance, Benefits and Compensation. The ABD shall not provide for, nor
pay, any employment costs of the Department's officers including, but not limited
to, worker's compensation, unemployment insurance, health insurance, life
insurance and any other benefits or compensation, nor make any payroll payments
with respect to the Department's officers. The ABD shall have no liability
whatsoever for all such employment costs or other expenses relating to, or for the
benefit of, the Department's officers.
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SECTION 6. PAYMENT TO DEPARTMENT.
6.1 Method of Payment. In consideration for providing the services required by the
Agreement, the Department shall be paid on a flat fee basis of fifty dollars ($50) per
reported compliance check. The flat fee payment for each compliance check constitutes
the full and exclusive remuneration for the compliance checks. For example,
compensation of youth participants is the sole responsibility of the Department and is to
be paid from the flat fee payment.
6.2 Eligible Claims. Compliance checks that are conducted on or after October 1, 2015 are
eligible for payment provided that the results are reported in accordance with Section 5.
Any compliance checks that were funded by a non -departmental entity are not eligible for
payment.
6.3 Allocations. The costs of the services referred to in Section 6.1 shall be allocated as
follows:
6.3.1 Sole Activity. Money paid to the Department, pursuant to the Agreement, shall
be used to fund overtime of full- or part-time peace officer positions solely for
tobacco, alternative nicotine and vapor product enforcement activities described
in the Agreement. Money also shall be used for compensation, if any, of youth
participants. In addition, the Department may use money paid pursuant to the
Agreement for reasonable Department expenditures, including, but not limited to,
officer training and equipment, provided that such expenditures do not impair the
Department's ability to perform tobacco, alternative nicotine and vapor product
enforcement activities.
6.3.2 Payment in Arrears. The ABD may pay all approved invoices in arrears and in
conformance with Iowa Code § 8A.514. The ABD, consistent with Iowa Code §
8A.514, may pay in less than the specified time period. Payment by the ABD in
fewer than sixty (60) days, however, does not constitute an implied waiver of that
Code section.
SECTION 7. ADMINISTRATION OF AGREEMENT. The ABD and the Department shall
jointly administer the Agreement.
SECTION S. NO SEPARATE ADMINIS'1'RATIVE ENTITY. No new or separate legal or
administrative entity is created by the Agreement.
SECTION 9. NO PROPERTY ACQUIRED. The ABD and the Department, in connection
with the performance of the Agreement, shall acquire no real or personal property.
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SECTION 10. '.C.H R IINATION.
10.1 Termination For Convenience. Following thirty (30) days written notice, either party
may terminate the Agreement, in whole or in part, for convenience without the payment
of any penalty or incurring any further obligation to the non -terminating party.
Following termination for convenience, the non -terminating party shall be entitled to
compensation, upon submission of invoices and proper proof of claim, for services
provided under the Agreement to the terminating party up to and including the date of
termination.
10.2 Termination for Cause. The occurrence of any one or more of the following events
shall constitute cause for any party to declare another party in default of its obligations
under the Agreement:
10.2.1 Failure to observe and perform any covenant, condition or obligation created by
the Agreement;
10.22 Failure to make substantial and timely progress toward performance of the
Agreement;
10.2.3 Failure of the party's work product and services to conform with any
specifications noted herein;
10.2.4 Infringement of any patent, trademark, copyright, trade dress or any other
intellectual property right,
10.3 Notice of Default. If there occurs a default event under Section 10,2, the non -defaulting
party shall provide written notice to the defaulting party requesting that the breach or
noncompliance be immediately remedied. In the event that the breach or noncompliance
continues to be evidenced ten days beyond the date specified in the written notice, the
non -defaulting party may either:
10.3.1 Immediately terminate the Agreement without additional written notice; or,
103.2 Enforce the terms and conditions of the Agreement and seek any available legal
or equitable remedies.
In either event, the non -defaulting party may seek damages as a result of the breach or
failure to comply with the terms of the Agreement.
SECTION 11. INDEMNIFICATION.
11.1 By ABD. Consistent with Article VII, Section 1 of the Iowa Constitution and Iowa Code
Chapter 669, ABD agrees to defend and indemnify the Department and hold it harmless
against any and all liabilities, damages, settlements, judgments, costs and expenses,
including reasonable attorney's fees of counsel required to defend the Department,
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related to or arising out of ABD's negligent or wrongful acts or omissions in the
performance of the Agreement.
11.2 By the Department. Consistent with Article VII, Section 1 of the Iowa Constitution and
Iowa Code Chapter 670, the Department agrees to defend and indemnify and hold the
State of Iowa and ABD harmless from any and all liabilities, damages, settlements,
judgments, costs and expenses, including reasonable governmental attorney's fees and
the costs and expenses of attorney fees of other counsel required to defend the ABD,
related to or arising from any negligent or wrongful acts or omissions of the Department
in the performance of this Agreement.
SECTION 12. CONTACT PERSON.
12.1 Contact Person. At the time of execution of the Agreement, each party shall designate,
in writing, a Contact Person to serve until the expiration of the Agreement or the
designation of a substitute Contact Person. During the term of the Agreement, each
Contact Person shall be available to meet, as otherwise mutually agreed, to plan the
services being provided under the Agreement.
SECTION 13. CONTRACT ADMINISTRATION.
13.1 Amendments. The Agreement may be amended in writing from time to time by mutual
consent of the parties. All amendments to the Agreement must be fully executed by the
parties.
13.2 Third Party Beneficiaries. There are no third party beneficiaries to the Agreement. The
Agreement is intended only to benefit ABD and the Department.
13.3 Choice of Law and Foram. The terms and provisions of the Agreement shall be
construed in accordance with the laws of the State of Iowa. Any and all litigation or
actions commenced in connection with the Agreement shall be broug -it in Des Moines,
Iowa, in Polk County District Court for the State of Iowa. This provision shall not be
construed as waiving any immunity to suit or liability that may be available to the State
of Ibwa, ABD or the Department.
13.4 Assignment and Delegation. The Agreement may not be assigned, transferred or
conveyed in whole or in part without the prior written consent of the other party,
13.5 Integration. The Agreement represents the entire Agreement between the parties and
neither party is relying on any representation that may have been made which is not
included in the Agreement.
13.6 Headings or Captions. The paragraph headings or captions are for identification
purposes only and do not limit nor construe the contents of the paragraphs.
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13.7 Not a Joint Venture. Nothing in the Agreement shall be construed as creating or
constituting the relationship of a partnership, joint venture, association of any kind or
agent and principal relationship between the parties. Each partyshall be deemed an
independent contractor acting toward the expected mutual benefits. No party, unless
otherwise specifically provided for herein, has the authority to enter into any contract or
create an obligation or liability on behalf of, in the name of, or binding upon the other
party to the Agreement.
13.8 Supersedes Former Agreements. The Agreement supersedes all prior Agreements
between ABD and the Department for the services provided in connection with the
Agreement.
13.9 Waiver. Except as specifically provided for in a waiver signed by duly authorized
representatives of ABD and the Department, failure by any party at any time to require
performance by the other party or to claim a breach of any provision of the Agreement
shall not be construed as affecting any subsequent breach or the right to require
performance with respect thereto or to claim a breach with respect thereto.
13.10 Notices. Notices under the Agreement shall be in writing and delivered to the
representative of the party to receive notice (identified below) at the address of the party
to receive notice as it appears below or as otherwise provided for by proper notice here
under. This person shall be the Contact Person. The effective date for any notice under
the Agreement shall be the date of delivery of such notice (not the date of mailing) which
may be effected by certified U.S. Mail return receipt requested with postage prepaid
thereon or by recognized overnight delivery service, such as Federal Express or UPS.
Failure to accept "receipt" shall constitute delivery.
If to ABD: Jessica Ekman
If to Department:
Tobacco Program Coordinator
Iowa Alcoholic Beverages Division
1918 SE Hulsizer Road
Ankeny, Iowa 50021
515-281-7434
Email: ekman@IowaABD.com
Sgt. Brian Hoelscher
Waterloo Police Department
715 Mulberry Street
Waterloo, Iowa 50703
Email:
13.11 Cuxnulative Rights. The various rights, powers, options, elections and remedies of
any party provided in the Agreement, shall be construed as cumulative and not one of
them is exclusive of the others or exclusive of any rights, remedies or priorities allowed
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any party by law, and shall in no way affect or impair the right of any party to pursue
any other equitable or legal remedy to which any party may be entitled as long as any
default remains in any way un -remedied, unsatisfied or un -discharged,
13.12 Severability. If any provision of the Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, such determination shall not affect the
validity or enforceability of any other part or provision of the Agreement.
13.13 Time is of the Essence. Time is of the essence with respect to the performance of the
terms of the Agreement.
13.14 Authorization. Each party to the Agreement represents and warrants to the other that:
13.14.1 It has the right, power and authority to enter into and perform its obligations
under the Agreement.
13.14.2 It has taken all requisite action (corporate, statutory or otherwise) to approve
execution, delivery and performance of the Agreement, and the Agreement
constitutes a legal, valid and binding obligation upon itself in accordance
with its terms,
13.15 Successors in Interest. All the terms, provisions and conditions of the Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective
successors, assigns and legal representatives.
13.16 Record Retention and Access. The Department shall maintain books, records and
documents which sufficiently and properly document and calculate all charges billed to
ABD throughout the term of the Agreement for a period of at least three (3) years
following the date of final payment or completion of any required audit, whichever is
later. The Department shall permit the Auditor of the State of Iowa or any authorized
representative of the State and where federal funds are involved, the Comptroller General
of the United States or any other authorized representative of the United States
government, to access and examine, audit, excerpt and transcribe any directly pertinent
books, documents, papers, electronic or optically stored and created records or other
records of the Department relating to orders, invoices, or payments or any other
documentation or materials pertaining to the Agreement. The Department shall not
impose a charge for audit or examination of the books and records.
13.17 Additional Provisions. The parties agree that any Addendum, Rider or Exhibit, attached
hereto by the parties, shall be deemed incorporated herein by reference.
13.18 Further Assurances and Corrective Instruments. The parties agree that they shall,
from time to time, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such supplements hereto and such further instruments as
may reasonably be required for carrying out the expressed intention of the Agreement.
SECTION 14. EXECUTION.
IN WITNESS WHEREOF, in consideration of the mutual covenants set forth above and for
other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are
hereby acknowledged, the parties have entered into the Agreement and have caused their duly
authorized representatives to execute the Agreement.
By Alcoholic Beverages Division
Stephen Larson, Administrator Date
By Law Enforcement Agency
Department Official Date
Department Witness Date
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