HomeMy WebLinkAbout28E Agreement - Tobacco Enforcement - 8.28.2006 /R
TomccoENFoRCEMENT
SCHEDULE III
THIS AGREEMENT is made and entered into on this 1st day of
August 2006 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 1A 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, 2007, 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
5.1.2 Compliance Checks. The Department shall perform one compliance check
of each tobacco permit holder, and a second compliance check on each
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of the Agreement. The first compliant e check shall be completed and
submitted for reimbursement to ABD by April 15, 2007. The second
compliance.check shall be completed and submitted for reimbursement to
ABD by June 1, 2007. 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. The second compliance check shall be
conducted in a timely manner, but shall not occur until retailers have been
notified if they were found to be non-compliant during the first check and
passage of a reasonable amount of time. Within seventy-two (72) hours of a
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 permit to the
retailer where the offense was committed.
5.1.3 Retail EmQloyee 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, 2006 through June 30,
2007. ABD shall pay a flat fee of$100 to the Department for each class they
instruct.
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, if requested, the
Department shall provide this data to the Iowa Department of Public Health
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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 PartnershipThe Department shall fully cooperate with, and
.
�e an aCtr'vc pa tici ant i t, ttici i6Cai - obac%o��C6nlnrilnicy partneri hip. '
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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.
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.
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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
,.. constT:turPc..the .full and. cyclk.'.s,:`.ce._remunerat;-n._Lyr the compl;a,nce checks Fer: . _
example, compensation of youth participants is the sole responsibility�of tete
Department and is to be paid from the flat fee payment.
6.2 Eligible Claims. Compliance checks that were conducted on or after July 18, 2006,
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.
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.
SECTION 7. ADMINISTRATION OF AGREEMENT. The ABD and the Department
shall jointly administer the Agreement.
SECTION 8. 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.
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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 parry in default of its
obligations under the Agreement:
lv.c.1 railure toobserve=ani perfacirt ariy cavenan condition oi-obltgat oh crearei
by the Agreement;
10.2.2 Failure to make substantial and timely progress toward performance of the
Agreement;
10.2.3 Failure of the parry'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 parry 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 parry 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.
In either event, the non-defaulting parry 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,judgtuents 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.
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SECTION 12. CONTACT PERSON.
12.1 Contact Person. At the time of execution of the Agreement, each party shall
__desi_gnate,in writing, a Contact Person to scrve pinta) t e.Pxpiration 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.
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 Toint 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
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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 notice below) at the address cf the
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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: Nicole Gehl
Operations Manager
Iowa Alcoholic Beverages Division
1918 SE Hulsizer Road_
Ankeny, Iowa 50021
_515-281-7461
Email: Gehl@IowaABD.com
If to Department: Chief Thomas Jennings
Waterloo Police Department
715 Mulberry Street
Waterloo, IA 50703
319.291.4339
E-mail: frank.krogh@waterloo-ia.org
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 parry
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:
u 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
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Agreement constitutes a legal, valid and binding obligation upon itself
2 inT accordance with its terms.
13.15 -Successor£--in kntereset- -.11-the-teres, provisions and conditions of the-A 0--rPPD1ent
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.
INV
ITNESS E in consideration of the mutual covenants set forth
above and for other god a v able consideration, the receipt, adequacy and legal
sufficiency of which are ere c owledged, the parties have entered into the Agreement
and have caused their a or' ed representatives to execute the Agreement.
IOWA ALCOH LI VE DMSION DEPARTMENT
By: By:
DING, Aifirninistrator
ess: Witness:
N CO E GEHL, Operations Manager
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