HomeMy WebLinkAboutIowa Alcoholic Beverages Division-9/7/201028E AGREEMENT FOR
TOBACCO ENFORCEMENT
SCHEDULE 3
�1,THIS AGREEMENT is made and entered into on this day of
),IC f "V? 112 ',� , 2010 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 THE PARTIES.
1.1 Iowa ABD. The ABD is authorized pursuant to Iowa Code Chapter 142A and a 28E
Agreement with the Iowa Department of Public Health to provide enforcement for Iowa's
tobacco laws. The ABD's address is: 1918 SE HuLsizer Road, Ankeny, Iowa 50021.
1.2 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 enforcement activities in compliance with Iowa Code § 453A.2
(2003).
SECTION 3. TERM. The term of the Agreement shall be from the aforementioned date through
June 30, 2011, unless earlier terminated in accordance with the terms of the Agreement.
SECTION 4. FLUNG. Pursuant to Iowa Code § 28E.8, the ABD shall file the Agreement with
the Iowa Secretary of State and the Department shall file the Agreement with the applicable County
Recorder.
SECTION 5. RESPONSIBILITIES OF THE PARTIES.
5.1 Responsibilities of the Department.
5.1.1 Local Tobacco Enforcement. The Department shall provide tobacco enforcement of
Iowa Code § 453A.
1
5.12 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 tobacco
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 permit
holder within the jurisdiction of the Department during the term of the
Agreement.
The Department shall not conduct any retailer compliance
checks until after October 1, 2010.
The compliance check shall be completed and submitted for reimbursement to ABD
by January 15, 2011. 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 2010 business year, but not before October 1, 2010.
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, 2011.
Clerks that fail compliance checks shall be ticketed criminally.
The Department shall, within seven (7) 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 cigarette or tobacco permit to the retailer where the offense was
committed.
If the Department fails to complete and submit reimbursement for compliance
checks to ABD by January 15, 2011, 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 Retail Employee Training. The Department shall participate in a tobacco
compliance employee training program. The Department shall schedule one (1) I -
Pledge Training Class per month from July 1, 2010 through June 30, 2011. ABD
shall pay a flat fee of $100 to the Department for each class they instruct. The ABD
has entered into a contract to produce an online tobacco training program for
employees of tobacco retailers. It is anticipated that the online training program
will be available in the fall of 2010. Once the online program is in place, the
department will be relieved of its responsibility to conduct employee training
classes as detailed in this section.
2
5.1.4 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. The Department may seek youth
volunteers through the local tobacco community partnership program.
5.1.5 Routine Enforcement. In addition to conducting compliance checks, the
Department agrees to regularly enforce youth smoking laws by ticketing youth
offenders.
5.1.6 Cops -in -Shops. The Department agrees to cooperate with the ABD in conducting
"cops -in -shops," or similar programs designed to deter youth from attempting to
purchase cigarettes or tobacco products.
5.1.7 Civil Proceedings. The Department shall cooperate with city, county and state
prosecutors if civil permit proceedings are initiated against a tobacco permit holder.
The Department shall also cooperate in proceedings against cited Berks 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.
5.1.8 Compliance Reports. The Department shall provide monthly reports to the ABD in
the manner prescribed by the ABD. In addition, if requested, the Department shall
provide this data to the Iowa Department of Public Health for audit or performance
evaluation to meet reporting requirements established by the Iowa Legislature or by
the Office of the Governor of Iowa.
5.1.9 Community Partnership. The Department shall fully cooperate with, and be an
active participant in, their local tobacco community partnership. Community
partnerships are charged with reducing tobacco use by youth and pregnant women,
as well as working to promote compliance by minors and retailers with tobacco sales
laws and ordinances. If a local community partnership does not exist at the time the
Agreement is executed, the Department shall become an active participant within
thirty (30) days of the establishment of a local community partnership.
5.1.10 Miscellaneous. The Department shall be responsible for the day-to-day
administration of their tobacco enforcement activities. The Department shall
provide all office space, equipment and personnel necessary to conduct tobacco
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 enforcement
to the Department, if needed, and cooperate with the Department in the
performance of the Agreement.
5.2.2 Payment. The ABD shall pay the Department in the manner described in Section 6.
3
5.2.3 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 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.
5.2.4 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.
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, 2010 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
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 enforcement
activities.
6.3.2 Payment in Arrears. The ABD may pay all approved invoices in arrears and in
conformance with Iowa Code § 421.40. The ABD, consistent with Iowa Code §
421.40, 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.
4
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.
SECTION 10. TERMINATION.
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;
10.2.2 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,
10.3.2 Enforce the terms and conditions of the Agreement and seek any available legal or
equitable remedies.
5
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 attorneys fees of counsel required to defend the Department, related to or arising
out ofABD'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 Forum. 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 brought 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 Iowa, 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.
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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.
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 party shall 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:
Karen J. Freund
Tobacco Program Manager
Iowa Alcoholic Beverages Division
1918 SE Hulsizer Road
Ankeny, Iowa 50021
515-281-7414
Email: Freund@IowaABD.com
If to Department: Waterloo Police Department
Chief Daniel Trelka
715 Mulberry Street
Waterloo, Iowa 50703
Contact Person: Daniel J. Trelka
Email: trelkad@waterloopolice.com
7
13.11 Cumulative 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 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 unremedied, unsatisfied or undischarged.
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
8
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SCHEDULE 3
QTHIS AGREEMENT is made and entered into on this t r day of
�
()Iwo 19 I€,Y , 2010 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 THE PARTIES.
1.1 Iowa ABD. The ABD is authorized pursuant to Iowa Code Chapter 142A and a 28E
Agreement with the Iowa Department of Public Health to provide enforcement for Iowa's
tobacco laws. The ABD's address is: 1918 SE Hulsizer Road, Ankeny, Iowa 50021.
1.2 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 enforcement activities in compliance with Iowa Code § 453A.2
(2003).
SECTION 3. TERM. The term of the Agreement shall be from the aforementioned date through
June 30, 2011, unless earlier terminated in accordance with the terms of the Agreement.
SECTION 4. FILING. Pursuant to Iowa Code § 28E.8, the ABD shall file the Agreement with
the Iowa Secretary of State and the Department shall file the Agreement with the applicable County
Recorder.
SECTION 5. RESPONSIBILITIES OF THE PARTIES.
5.1 Responsibilities of the Department.
5.1.1 Local Tobacco Enforcement. The Department shall provide tobacco enforcement of
Iowa Code § 453A.
1
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 tobacco
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 permit
holder within the jurisdiction of the Department during the term of the
Agreement.
The Department shall not conduct any retailer compliance
checks until after October 1, 2010.
The compliance check shall be completed and submitted for reimbursement to ABD
by January 15, 2011. The Department should try to complete a compliance check of
all seasonal businesses such as golf courses, marinas and bait shops before the
or Use GUIU buslucss yeau., bul nut. belure Vctober 1, 2UIU.
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
May 15, 2011.
Clerks that fail compliance checks shall be ticketed criminally.
The Department shall, within seven (7) 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 cigarette or tobacco permit to the retailer where the offense was
committed.
If the Department fails to complete and submit reimbursement for compliance
checks to ABD by January 15, 2011, 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 Retail Employee Training The Department shall participate in a tobacco
compliance employee training program. The Department shall schedule one (1) I -
Pledge Training Class per month from July 1, 2010 through June 30, 2011. ABD
shall pay a flat fee of $100 to the Department for each class they instruct. The ABD
has entered into a contract to produce an online tobacco training program for
employees of tobacco retailers. It is anticipated that the online training program
will be available in the fall of 2010. Once the online program is in place, the
department will be relieved of its responsibility to conduct employee training
classes as detailed in this section.
2
5.1.4 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. The Department may seek youth
volunteers through the local tobacco community partnership program.
5.1.5 Routine Enforcement. In addition to conducting compliance checks, the
Department agrees to regularly enforce youth smoking laws by ticketing youth
offenders.
5.1.6 Cops -in -Shops. The Department agrees to cooperate with the ABD in conducting
"cops -in -shops," or similar programs designed to deter youth from attempting to
purchase cigarettes or tobacco products.
5.1.7 Civil Proceedings. The Department shall cooperate with city, county and state
prosecutors if civil permit proceedings are initiated against a tobacco 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.
5.1.8 Compliance Reports. The Department shall provide monthly reports to the ABD in
the manner prescribed by the ABD. In addition, i reque
provide this data to the Iowa Department of Public Health for audit or performance
evaluation to meet reporting requirements established by the Iowa Legislature or by
the Office of the Governor of Iowa.
5.1.9 Community Partnership. The Department shall fully cooperate with, and be an
active participant in, their local tobacco community partnership. Community
partnerships are charged with reducing tobacco use by youth and pregnant women,
as well as working to promote compliance by minors and retailers with tobacco sales
laws and ordinances. If a local community partnership does not exist at the time the
Agreement is executed, the Department shall become an active participant within
thirty (30) days of the establishment of a local community partnership.
5.1.10 Miscellaneous. The Department shall be responsible for the day-to-day
administration of their tobacco enforcement activities. The Department shall
provide all office space, equipment and personnel necessary to conduct tobacco
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 AB
5.2.1 Enforcement Guidance. The ABD shall provide guidance on tobacco enforcement
to the Department, if needed, and cooperate with the Department in the
performance of the Agreement.
5.2.2 Payment. The ABD shall pay the Department in the manner described in Section 6.
3
5.2.3 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 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.
5.2.4 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.
ION 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, 2010 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
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 enforcement
activities.
6.3.2 Payment in Arrears. The ABD may pay all approved invoices in arrears and in
conformance with Iowa Code § 421.40. The ABD, consistent with Iowa Code §
421.40, 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.
4
SECTION 7. ADMINISTRATION OF AGREEMENT. The ABD and the Department shall
jointly administer the Agreement.
SECTION S. NO SEPARATE ADMINISTRATIVE 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.
SECTION 10. TERMINATION.
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;
10.2.2 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,
10.3.2 Enforce the terms and conditions of the Agreement and seek any available legal or
equitable remedies.
5
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 attorneys fees of counsel required to defend the Department, 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 Forum. 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 brought 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 Iowa, 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.
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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.
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 party shall 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:
Karen J. Freund
Tobacco Program Manager
Iowa Alcoholic Beverages Division
1918 SE Hulsizer Road
Ankeny, Iowa 50021
515-281-7414
Email: Freund@IowaABD.com
If to Department: Waterloo Police Department
Chief Daniel Trelka
715 Mulberry Street
Waterloo, Iowa 50703
Contact Person: Daniel J. Trelka
Email: trelkad@waterloopoliceocom
7
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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
Karen Freund, Tobacco Program Mgr Date
By Law Enforcement Agency
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Department Official Date
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Department Witness Date
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