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HomeMy WebLinkAboutAlcoholic Beverages Division - I-Pledge-9/21/2015Nease returI this copy tot City Clerk & FInaflCe Dept. 115 MulbecrY St. WaterlOO, IA 50103 ALCOI-IOLIC BEVERAGES Terry E. Brans!ad .Governorof!owa DIVISION (ftp Reynolde L!eutanant Governor Stale el owa Stephon Larson AdmlnistratorABD August 26, 2015 Dear -PLEDGE Partner, The Iowa Alcoholic Beverages ljivlsion (ABD) invites your departrnent to participate in the I -PLEDGE program for fiscal year 2016 (July 1, 2015 - June 30, 2016). The benefft of a partnership between ARD and Iaw enforcemerit agencies is evidenced by the 92% statewide compliance rate obtalned by tobacco retailers in FY2015. In order to be an l-PLED6E 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 provlded. A copy of the executed agreement will be returned to your offlce. t s important to remember that ABD is required to conduct one (1) compliance check of each tobacco, alternative nicotine and vapor product retalier during FY2016, with a repeat check of any business that falis 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 valor products are age -restricted according to owa Code 453A.2, and therefore included as part of the IPLEDGE program. Attempts to purchase alternative nicoline and vapor products may be conducted at any retailer that selis these products. Details and examples of these age -restricted products will be ncluded in the enforcernent handbook, The necessary materials to carry out the agreement will he sent to the contact person specified in Section 13.10 of the 28E Agreemerit, In the mearitimo, contact Investigator GUI Missman at 5153143654 or rnyself at 515.281.7434, with questions regarding the enclosed agreenient, If you prefer, you may also emalliapledge©iowabd.com. Sirtcerely, Jessica Ekman Tobacco Program Coordinator l9lBSEHuIsIzey Road Ankeny, iowa 50021-3941PH515.2017403 A Division or tilo Deparhnent af Commerce FAX 515.261.73B5 TOLL FREE 866.IowaABD WWW.towaABD.coni 28E AGREEMENT FOR TOBACCO, ALTERNATIVE NICOTINE AND VAPOR PRODUCT ENFORCEMENT SCIIEDUILE 3 TfflS AGREEMENT is made and entered into on this day of 'HT) k»e v 2015 by and between the Iowa Alcobolic Beverages Division ("ABD"), and the Waterloo Police Deparcment (The "Departme-nt"). The parUes agree as foliows: SECTION 1. JDENTITY 01? TFIF PARTIES. 1.1 Iowa ABD. The ABD is authorized puusuant to Iowa Code Chapter 142A and a Memorandum of Understanding with the Iowa Department of Pubile Health to provide enforeernent for Iowa's tobacco, alternative nicotine and vapor produet laws, The ABD's addi'ess is: 1918 SE Hulsizer Road, Ankeny, Iowa 50021. 1.2 Departinent. The DepartLnent aperates a duly recognized Iowa law enforcement agency. The Departrnent's address is: Waterloo Police Departmcnt 715 Mulberry Street, Waterloo, Iowa 50703 SECTION 2. PU]ItPOSE. The parties have entered into this Agreement for the purpose of providing and funding tobacco, alternative nicothie and vapor product enforeement activities in compliance with Iowa Code § 453A.2, SECTION 3. TERM. The term of the Agreement shall be froin the aforementioned date through June 30, 2016, irnless earlier terminated in accordance with the terms of the Agreenent. SECTION 4. FILING Pursuaut to Iowa ode § 28E.g, the ABD shall elecfronically file the Agreement with the Iowa Secretary of State, after tlie parties have executed the agreement. SECTION 5. RESPONSIBILITIES OF THE PAR nJiS. 5.1 Resronsjbj1ities of the Department. 5.1.1 Local Tobacco, Alternative Nicotine and Vapor Produet Enforeement. The Department shall provide tobacco, alternalive nicotine and vapor produet enforcement of Iowa Code Chapter 453A. 5.1.2 Complianee Cheeks. "Compliance checlOE" mean activity to enforce Iowa Code § 453A.2 within the jurisdiction of the Depatiment. Conipliance checks also may iuciude enforcement of § 453A.2 within additional jurisdictions upon agreement of the Parties. ABD shall make available to the Department the location of each 1 tobacco, alternative nicotine and vapor product permit holder subject to a compliauce check by the Department at https:/Itobacco.iowaabd.eoml. The Department shall perform one (1) compliance check of each tobacco, alternative nicotine and vapor produet perniit holder within the jurisdiction of the Department thiring the terin of the Agreenient. Please note that alternative nicotine and vapor products ait age -restricted pursuant to Iowa Code § 453A.2, and are therefore ineluded 111 the I -PLEDGE prograin. Attempts to purchase alternative nieotine and vapor products may be conducted at any retailer that selLs these produets. The Department shall not begin to c�nduct any retailer coinpliance checks until October 1,2015. The compllanee check shall be completed and submitted for reimbursement to ABD by February 15, 2016. Th Department should try to eomplete a complianee check of all seasonal businesses such as golf courses, marinas and bali shops before the businesses elose for the 2015 business year, but not before October 1, 2015. The Department shall eonduct a second eomplianee check on any retaiter that is found to be uon-compliant during the first inspeetion, The second compliance cheek 011 the non-eompliant retailer shall be completed and entered no later than May 15, 2016. Clerks that fail compliance ehecks shall be ticketed eriminaily, The Departrnent shaJl, withb seven (7) business days, notify the retail owner or rnnnager of any violation. Within seventy-t-wo (72) hours of the Departrnent issning a citation for a violation of Iowa Code § 453A.2(1) to a per.wit-holder or employee of a permitho1der, the Department must notify the Ioeal permitissuing authority that issued the tobaeeo, alternative nieotine and vapor product permit to [he retailer where the offemse was comnthced. 1± the Department fails to complete and submit reimbursement for compliance eheeks to A]3D by February 15, 2016, ABD will eonsult with the Deparement to establlsh a plan for completing the remaining compliance eheeks. In the event that the Department fails to exeeute the agreed upon plan, the Department agrees that ABD may authorize the Iowa State Patrol or other law enforcernent ageney to eonduct any remahuing comptiance checks, 5.1.3 Youth Volunteers. Utilization of youth volunteers is strongly eneouraged where feasible, Tlie Department may eompensate the youth involved in the compliance eheeks in a manner consistent with Section 6. lCeep in rnind that the federal govemment (SYNAR) will not allow ninors undcr thc agc of sixteen (16) to be used to conduet cornpliance cheeks. Please eusure that the offieers assigned to conduet the eompJiance eheeks do not worlc with a youth younger than age 16. 2 5.1.4 Routine Enforcement. 1» addiiion to conducting comptiance checks, the Department agrees to regularly enforce youth tobacco, alternative nicotine and vapor product laws by tieketing youth offenders, 5.1.5 Civil Proceedings. The Department shail cooperate with city, county and state prosecutors if civil pennit proceedings are initiated against a tobaceo, alternative nicotine and vapor produet pernit holder. The Department shall also cooperate ii proceedings against cited elerks and rninors. Cooperation shall include, but not be liniited to, sharing investigative reports and copies oI' issued eitations, as weU as providing witness statements and testimony. 5.1.6 Compliance Reporta The Departinent shall provide monthly reports to the ABD in the manner preseribed by the ABD. 5.1.7 Misedllaneous. The Department shall be responsible for tlie day-to-day administration of its tobacco, alternative nicotine and vapor produet enforcement activities. The Department shall provide all office space, equiprnent and personnel necessary to conduct tobaeeo, alternative nicotine and vapor product enforcernent activities ander the Agreernent. The Deparirnent is solely responsible for the selection, hiring, disciplining, firing and eornpensation of its officers. 5.2 Responsibilities of the A]3D. 5.2.1 Enforcernent Guidance. The ABD shall provide guidance on tobaceo, altemative nicotine and vapor product enforcement to the Department, if needed, and cooperale with the Department in the pedormance of the Agreement. 5,2.4 Payment. The ABD shall pay the Department in the maimer described in Section 6. 5.2.5 Cooperation. If ABD be]ieves that any officer of the Depaitment fails to perform duties 111 a manner that is consistent with the Agreemeut, the ABD shall nolify the Department. The Departinent shall then take such action as necessary to investigate and, if approptiate, discipline or reassign the officer away from tobacco, alternative nicotine and vapor product enforcernent activities. The AB)) shnll have no authority to diseipline or reassign an officer, except that the ABI) shall have the authority to stipulate that a particular officer not be assigned to provide services under the Agreement. 5.2.6 Insuranee, Benefits and Coinpensation. The ABO shnll not provide for, nor pay, any eruployment costs of the Depariment's officers ineluding, but not limited to, worker's compensation, unemployment insurance, healtb hisurance, Life insurance and any other benefits or compensation, nor make any payrofl payments with respect to the Depnrtment's offieers. The ABD shall have no liability whatsoever for all sueh employment costs 01' other expenses relating to, or for the benefit of, the Department's offieers. 3 SECTION 6. PAYMINT TO DEPARTMENT. 6.1 Mcthod of Pavrnent. Jn consideratiou for providillg the services required by the Agreement, the Depai Lrnent shall be paid on a fint fee basis of fifty dollars ($50) per reported coinpliance check, The flat fee payment for each eompliance check constitutes ihe full and exelusive rernureration for the complianee checks. Por example, compensation of yonth parilaipants is the sole responsibility of the Departmeit and is to he paid froin the fint fee payment. 6.2 Eligible Claims. Compliance cheeks that are eondueted on or after October 1, 2015 are e]igible for payment provided that the results are reported in accordance with Section 5. Aiy eornpliance checks that were funded by a nondeparbnenta1 entity are not eligible for payment. 6.3 Alloeations. The costs of the seryices referred to in Section 6.1 shall be allocated as foflows: 6.3.1 Sole Activity. Money paid to the Departnient, pursoant to the Agreeinent, shall be used to fund overtinie of ftffl- or part-time peace officer positions solely for tobacco, alternative nicotine and vapor product enforcernent activities described 111 the Agreement. Money also shall be used for compensation, if any, of youth partieipants. In addition, the Departrnent may usa money paid pursuant to the Agreement for reasonable Departinent expenditures, inclnding, but not limited to, officer Iraining and equipment, provided that such expenditures do not impair the Departrnent's abihty to perform tobacco, alternative nicotine and vapor product euforcement activities. 6.3.2 Payment in Arrears. The ABD may pay all approved invoices in arrears and in eonforrnance with Iowa Code § 8A.514. The ABJD, consistenl with Iowa Code § 8A.514, may pay in less than the specified time period. Paynent by the AJ3D in fewer than sixty (60) days, however, does not eonstitute an implied waiver of that Code section. SECTION 7. AI)MINTSII(ATXON OF AG1IEEMENT. The ABD and the Department shall jointly administer the Agreement. SECTION 8. NO SEPARATE ADIVIINTSTRATIVE ENTITY. No new or separate legaJ or administrative entity is created by the Agreernent. SECTION 9. NO PROPERTY ACQUIRED. The ABD and the Department, in connectioi with the perforuiance of the Agreement, shall acquire no real orpersonal property. 4 SECTION 10. TERMINATION. 10.1 Terniinatiou For Convenience. Foliowing thiFty (30) days wuitten noUce, either party may terininale the Agreement, in wbole or in part, for convernence without the payrnent of any penalty or incurring any further obligation to the non-terrninating party. Foilowing termination for convenienee, the non -terminating party shall be entitled to eornpensation, upon subinission of invoices and proper proof of claim, for services provided irnder the Agreernent to the terminating party up to and thcluding the date of terrnination. 10.2 Termkafion for Cause. The occurrenee of any one or more of the followthg events shall eonstitute cause for any party to deelare another party 111 defanit of its obligations ander the Agreement; 10.2.1 Failure to observe and perform any covenant, eondition or obligation created by the Agreement; 10.2.2 Failure to make substantial and tiniely progress toward performance of the Agreenient; 10.2.3 Failure of the party's work product and services to conform with any specifications noted herein; 10.2.4 Thfringement of any patent, trademark, eopyright, trade dress or any other intellectual property right. 10.3 fNotice offlefault. If there occurs a default event under Section 10.2, the nondefauIting party shall provide written notice to the defaulting party requesting that the breach or noneompliance be hnmediately rernedied. In the event that the breach or noncompliance continues to be evidenced ten days beyond the date specified in the written notice, the nou-defaulting party may either: 10.3.1 Immediately terminate the Agreement without adclitional wntten notice; or, 10.3.2 Enforce the terms and conditions of the Agreeinent and seek any available legal or equitabie remedies. 111 either event, the non -defaulting party may seek dawages as a result of the breach or failure to comply with the terms of the Agreement. SECTION 11. INDEMNII?ICATION. 11.1 Bv ABO. Consistent with Article VJ1, Section 1. of the Iowa Constitution and lowe Code Chapter 669, ABD agrees to defend and indeninify the Department and hold it harmless against any aud all liabffihies, damages, setticrnents, judgments, costs and expenses, ineluding reasonable attorney's fees of counsel requ3red to defend the ]Jepartment, 5 related lo or arising out of ABD's negligent or wrongful acts or omissiols in the performance of the Agreernent, 11.2 By the Department. Consistent with Article VJII, Section 1 of the Iowa Constitution and Iowa Code Chapfer 670, tJie Department agrees to defend and indenmify and hold the State of Iowa and ABD harrnless from any and all liabilities, damages, setilemenis, judgments, costs and expenses, including reasonable governmental attorney's fees and the eosts and expenses of attorney fees of other counsel required to defend the ABD, celated to or arising from any negligent or wrongful aets 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 pariy shall designate, in writi.ng, a Contact Person to serve until tbe 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 ADMINISTRATJON. 13.1 Amenthnents. The Agreement may be amended in writing from time to time by mutual consent of the parties. All amendments to the Agreement rnust be fully exeeuted by the parties. 13.2 Tlurd Party Beneticiaries. There are 110 third party beneficiaries to the Agreement. The Agreement is intended only to benefit ABD and the Departrnent. 13.3 Choiee of Law and Forum. The terrns and provisions of the Agreement shall be consftued in nceordance with the laws of the State of Iowa. Any and all htigation or actions coininenced in coni-iection with the Agreement shall be brought in Des Moines, Iowa, in Paik County District Court for the State of Iowa. This provision shall not be construed as waivthg any hnrnunity to suit or liabiity that may be avallable to the State of Ibwa, ABD or the Department. 13.4 Assignment and Delegation. The Agreeinent may not be assigned, transferred or conveyed in whole or in part without the prior written consent of the other party. .13.5 Jntegration. The Agreement represents the entire Agreement between Lhe parties and neither party is relying 011 any representahon that may have been made which is not included in the Agreeinent. 13.6 Headings or Captions. The paragTaph headings or eaptions are for identification purposes only and do not limit nor constrne the eontents of the paragraphs. 6 13.7 Not a Joint Veuture. Nothing in the Agreement shall be consttued as ereating or constituthig the relatiol1ship of a parinership, joint venture, assoeiation of any kthd or agent and principal relaUonship between the parties. Each party shall be deerned an independent contractor acting toward the expected mutual benefits. No party, nnless otherwise speeifically provided for herein, has the authorty to enter into any contraet or ereate an obligation or ilability on behaFf of, in the nanie of, or bincl]ng upon the other. party to the Agreement. 13.8 Supersedes Former Agreements. The Agreenaent supersedes aJl prior Agreements between ABD and the Department for the serviees provided in eonnection with the Agreement. 13.9 Waiver. Exeept as speeifically provided for in a waiver signed by duly authorized representadves of ABD and the Department, failure by any party at any time to require performance by the other party or to claim a breaeh of any provision of the Agreement shall not be constxued as affecting any subsequent breaeh or the right to require performance with respect thereto or to clairn a breach with respeet thereto, 13.10 Notices. Notiees under the Agreement shall be in writing and delivered to the representative of the party to reeeive notiee (identified below) at the addxess of the party to receive notice as 11 appears below or as otherwise provided for by proper notice here under. This person shall be the Contaet Person. The effective date for any notice uuder the Agreement shall be the date of delivery of such notice (not the date of mailing) whieh may be effected by certffied 1J.S. Mali return receipt requested with postage prepaid thereon or by reeognized overnight delivery service, sueh as Federal Bxpress or UPS. Failure to aceept "receipt" shail constitute deiivery. 11 to ABD: Jessica Ekinan 1± to Depariment: Tobaeeo Program Coordinator Iowa Aleoholic Beverages Division 1918 SE Hulsizer Road Ankeny, Iowa 50021 515-281'7434 Emai1 ekiman @IowaABD.com Sgt. Brian Hoelseher Waterloo Poice Department 715 Mulberry Street Waterloo, Iowa 50703 Email: 13.11 Cu.mnlative Rights. The various rights, powers, options, eleetions and remedies of any party provided in the Agreement, shall be eonstrued as cnmulative and not one of them is exelusive of the others or exelusive of any rights, rernedies or priorities allowed 7 any paity by Iaw, and shall in rio way affeet or impair the right of any party to pursne any other equitable or legal remedy lo which any party may be entitled as long as miy default remains in any way un -remedied, unsatisfied or un -discharged. 13.12 Seyerabilitv. 11' any provision of the Agreernent is detennined by a court of competent jurisdietion to be invilid or unenforceable, such deterrninafion shall not affeet the validity or enf'orceability of any other pait or provision of the Agreeinent. 13.13 Time is of the Fssenee. Thne is of the essence with respect to lhe performanee of the terms of the Agreeinent. 13.14 Authorization. Eaeji party to the Agreement represents and warrants to the other that: 13.14.1 It lias the right, power and authodty to enter into and perform its obligations under tlie Agreement. 13.14.2 It has taken all reqnisite action (corporate, statutory or otherwise) to approve execution, delivery and performance of the Agreernent, and the Agreement constitutes a legat, valid and binding obligation upon itself in accordance witli its terms. 13.15 Successors in Interest. All the terms, provisions and conditions of the Agreement shall be binding upon and irn1re to the beoefit 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 wbich sufficiently and properly document and calculate all charges billed to ABD throughout the term of the Agreement for a period of at leasi three (3) yeais followhig ihe date of final payment or completion of any required audit, whichever is laler. The Depariment shall perrnit the Auditor of the State of Iowa or any authorized representative of the State and where fedea1 funds are involved, the Comptroller General of the United States or any other authorized representadve of the United States government, to access and. examine, audit, excerpt and transcribe any directly pertinent books, documents, papers, electronic or optically stored aud created records or other records of the Department relating to orders, invoiees, or payments or any other documentation or materials pertaining to the Agreement. The Depariment shall not impose a charge for audit or exnniination of the books and records. 13.17 Additional Provisions. The parties agree that any Addendum, IRider or Bxhibit, attached hereto by the parties, shall be deemed incorporated herein by reference. 13.18 Further Assurances and Correetive Instruments. The parties agree that they shall, from time to time, execute, aeknowledge and deliver, or eause to be executed, acknowledged ancl deliyered, such supplements hereto and sueh further instruments as may reasonabiy be required for carrying out the expressed intention of the Agreement, 8 SECTION 14. EXECUTION. IN WITNESS WHEREOF, in consideration of the rnutual covenants set forih above and for other good and vuluable consideralion, the receipt, adequaey and legal sufficieney of wlmich are hereby acknowledged, the parLies have entered into the Agreement and have eaused their duly authorized representaiives to execute the Agreement. By AlcohoJic Beverages Division Stephen Larson, Adininistrator Date By Law Enforceinent Agency Department Official Date Department Witness Date 9