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Signed Contracts_Mercy Medical Center for Security Services AgreementMasterpiece on the Mississippi TO: Michael C. Van Milligen City Manager FR: Mark M. Dalsing Chief of Police MFMORANDUM "-, July 25, 2013 RE: Mercy Hospital Overtime Request & General Overtime Discussion INTRODUCTION This memo will address a request from Mercy Hospital to employ off-duty, sworn personnel to work in their Emergency Room, and general discussion on overtime rates. BACKGROUND Earlier this year, administrative staff from Mercy Hospital contacted Lt. Scott Baxter about having off-duty, sworn personnel work on an overtime basis in the Emergency Room (ER) due to recurring issues with patients and patients' families. A meeting was held on March 29th to discuss the issue. The potential staffing would generally be Thursday, Friday, Saturday and Sunday evenings; holidays and holiday eves; and generally approximately 8:00pm to 4:00am. Additional hours and days could be identified later. Mercy indicated that they would have a pay rate comparable to the Mystique Casino wage. The rate of pay would also include a 5% administrative fee for our staff's time administering the account. Officer responsibilities would include general security in the ER and the ER waiting area. These officers would not be tasked with calls for service at the hospital unless the offense happened in the hospital. An example of this, a person assaulted in bar and transported to the hospital would require an on duty officer respond and investigate, but the extra duty officer would investigate a situation where a nurse is assaulted in the hospital itself. One of our initial concerns was the ability to staff all of the requested hours as officers already have many opportunities for extra work. Because of this, I contacted Travis Kramer, the Dubuque Police Protective Association (DPPA) President at the time, and asked him to poll the officers' willingness to work this type of overtime. The results showed a general willingness to staff most of the hours. I also made an inquiry with Sheriff Vrotsos about his staff working hours we don't cover, and he expressed an 1 interest. The results of the poll and the Sheriff's comments were presented to Mercy staff, and they advised that they wished to proceed. Mercy's legal representatives drew up a Business Associate Agreement and a Services Agreement. Both were submitted to the City Attorney's Office and Assistant City Attorneys Maureen Quann and Crenna Brumwell made corrections and revisions and negotiated a mutually acceptable agreement with Mercy. Once the final documents are completed, Mercy will be seeking to move forward with the plan. GENERAL OVERTIME DISCUSSION Currently Mystique pays $36 an hour for police coverage, plus a 5% administrative fee. The Mystique has routinely adjusted the rate and it is currently under review by Mystique's administration. In recent history the rate has been as follows: Date Adjusted Mystique OT Rate 12/01/99 $30.00 07/01/03 $32.50 07/01/05 $33.50 01/01/07 $34.50 07/01/08 $35.00 12/01/08 $35.50 01/01/11 $36.00 The rate has traditionally been set to be comparable to the base time and a half rate of an officer. Sworn personnel of any rank are allowed to work the Mystique overtime, however any officer wishing to work the overtime accepts the rate regardless of rank or longevity. The current time and a half overtime rates are as follows: Rank Time and a Half OT Rate Officer at Entry Level Step OT Rate $36.30/hr. Officer at Top Step OT Rate $40.32/hr. Corporal at Top Step OT Rate $45.09/hr. Lieutenant at Top Step OT Rate $57.21/hr. Current Mystique Set OT Rate $36.00 /hr. plus 5% Admin Fee As you can see from the above, the overtime base rate has exceeded the rate of pay at the Mystique and for this reason we have asked Mystique to revisit the rate. As other businesses or organizations request officers to work off duty, they are given a standard rate of $33.50 (plus 5% admin fee) which was established some time ago. This rate was initiated in cooperation with the Dubuque Police Protective Association (DPPA). The City and DPPA came about this rate as one that was close to overtime rates, but reasonable enough so as not to have the work assignments go to another agency. Businesses are informed that they can also elect to pay the actual time and a half pay rate of the officers based on their rank, and this may increase the odds that the 2 officers will sign up for the duty, as there is plenty of overtime available for officers and they often choose it based on the pay rate. All overtime notices show whether the officers will be working for a set rate of pay or their actual time and a half rate, and they can choose which they wish to work. All businesses/organizations pay the 5% administrative fee and have done so for many years. Requests for off duty officers for extra duty assignments generally come in through administrative clerical staff and are then reviewed and approved by me, Assistant Chief Tobin or Staff Bureau Captain Scott Crabill prior to being posted. The exceptions to the above are events hosted by the Dubuque Community School District such as sporting events. These are at a set rate based on the event and do not include the administrative fee. Football games are a set rate of $102 per game and basketball games are $85 per game. If a game goes long, the district is billed at a set overtime rate. All sworn Dubuque Police Department personnel are generally allowed to work any overtime that is reimbursed by an outside business/organization. Internally funded overtime is generally not available to supervisors. In the case of reimbursed overtime, there are sometimes initial restrictions such as allowing non-supervisors the first opportunity to sign for the overtime, but generally there is an abundance of overtime to work. Officers working the overtime agree in advance to work at the event's pre- established rate. CONCLUSION & RECOMMENDATION Based on Mercy's request, the types of issues they are experiencing, and the apparent willingness of our officers to work the overtime, I would be supportive of entering into an agreement with Mercy Hospital to have off-duty Dubuque Police Department staff work in the ER on an overtime basis, and have all billing and officer payments be processed through our administrative offices. Based on a prior conversation with you, I would recommend that we also set our "standard" off-duty overtime rate as the Mystique rate, currently $36/hr. but also currently under review for an increase. This rate would be given to all potential businesses and organizations as the "standard" rate and would increase as the Mystique reviews and raises the rate in the future. All would continue to pay the 5% administrative fee. I consulted with the DPPA and they are supportive of raising the current "standard" $33.50 rate to a rate equal to the Mystique rate, and would like to see the Mystique rate continue to rise until it is on par with the time and a half rate of a top step Patrol Officer. Businesses would still have the option of paying the actual time and a half rate of the individual officers who work the event, in order to have a better chance of filling the spots. 3 The Dubuque Community School District rates would not change until such time as we negotiate a new rate. ACTION REQUESTED Review and approval of entering into an agreement with Mercy Hospital to provide off duty officers for security; and establishing a "standard" overtime rate as the same rate as the Mystique Casino, with the exception of negotiated rates with the Dubuque Community School District or other businesses /organizations wishing to pay the actual overtime rates of the officers who work the events. 4 SECURITY SERVICES AGREEMENT BETWEEN MERCY MEDICAL CENTER ® DUBUQUE AND THE CITY OF DUBUQUE, IOWA This S9 ices Agreement ( "Agreement "), dated for reference purposes the / day of ; 2013, is entered into by and between Mercy Medical Center Dubuque, an operating division of Mercy Health Services, Iowa Corp., a Delaware nonprofit corporation ( "Mercy ") and the City of Dubuque, Iowa, through its Police Department ( "Contractor "). SECTION 1. CONTRACTOR DUTIES. A. Contractor shall provide Mercy with the services ( "Services ") set forth in Exhibit A. B. In providing Services covered by this Agreement, Contractor shall: 1. Expend reasonable efforts for the benefit of Mercy by engaging in activities to maintain and improve Mercy's standing in the community; 2. Cooperate in good faith with Mercy (during and after the term of this Agreement or any renewal or extension thereof) to the extent allowable by law, in the defense of any litigation arising from or related to Services; 3. Document, in a timely manner, all Services provided under this Agreement. Such documentation shall be on forms and in formats specified or approved from time to time by Mercy; and 4. Act in good faith and in the best interests of Mercy and its patients. C. Contractor Personnel Qualifications. Contractor shall ensure that all employees, agents, and subcontractors or other persons or entities which provide any items or services on behalf of, or at the direction of Contractor under this Agreement ( "Personnel ") have and maintain all the skills, experience, and qualifications necessary to provide the Services, including any required training, registration, certification, or licensure. 1. Removal of Personnel. Contractor shall, at all times, have the affirmative obligation to ensure that Services are provided only by qualified and experienced Personnel. Mercy shall have the right to request the immediate removal from Mercy of any individual Personnel with /for cause upon written notice to Contractor. The timing for replacement at Mercy of Personnel shall be mutually determined in order to ensure continuation of key activities and minimize potential impacts on the Services and applicable engagement schedules. Contractor is solely responsible for all costs related to the removal from Mercy with /for cause or replacement from Mercy with /for cause of Personnel. Removal from Mercy of Personnel with /for cause is an internal matter of Contractor and Contractor remains responsible for all matters associated with recruiting, hiring, employment, compensation, benefits, insurance, promotion, discipline, discharge, and work environment of each Personnel. If Mercy requests removal of Personnel from Mercy without cause, all costs arising from and related to the removal from Mercy and replacement at Mercy of such Personnel will be the financial responsibility of Mercy. 2. Compliance Concerns. Personnel shall be familiar with the performance standards of this Agreement, as well as the risk areas of fraud and abuse. Contractor shall require its Personnel to report any compliance concerns immediately to Mercy's principle contact. SECTION 2. COMPENSATION. A. Mercy shall pay Contractor the amounts set forth in Exhibit B for the Services provided. B. Payment for the Services under this Agreement is due within forty -five (45) days of Mercy's receipt of Contractor's invoice. C. In the event that Mercy reasonably disputes any amount which appears on an invoice issued by Contractor pursuant to this Agreement, Mercy shall not be required to pay that portion of said amount which Mercy reasonably disputes until the dispute is resolved. Such nonpayment by Mercy shall not constitute a breach of Mercy's obligations of payment to Contractor and the parties shall work together in good faith to resolve the dispute within thirty (30) days. SECTION 3. COOPERATION. Mercy shall cooperate with Contractor in the performance of the Services, providing Contractor with reasonable facilities and timely access to appropriate data, information, and personnel of Mercy. Mercy will provide on- site Contractor personnel with suitable office space, adequate computer resources, telephone, copying, and other standard office equipment and support, which may be necessary in connection with Contractor's performance of the Services. All such property, regardless of its physical location or use, will be deemed to be in the care, custody, and control of Mercy. SECTION 4. TERM AND TERMINATION. A. Term. This Agreement shall commence on August 1, 2013 ( "Effective Date ") and shall remain in effect for a term of three (3) years ( "Term "). The Parties may, by mutual written agreement, agree to renew this Agreement for a period of two (2) years. B. Termination. 1. Termination by Either Party. This Agreement may be terminated with or without cause by either party on ninety (90) days written notice. 2. Termination for Material Breach. For a material breach of this Agreement for which a shorter correction period is not specified, this Agreement may be terminated by either party upon thirty (30) days prior written notice to the other party; provided, however, that if the material breach is cured within such thirty (30) day period, the termination notice shall be of no force and effect. Notwithstanding the foregoing, in the event of multiple material breaches of the same nature, this Agreement may be terminated by either party upon ten (10) days prior written notice. 3. Either party may terminate this Agreement immediately upon written notice to the other party if such other party becomes excluded, debarred or otherwise ineligible to participate in any governmental program. C. Post Termination Obligations /Effect of Termination. Contractor will cooperate with Mercy in the orderly completion and /or transfer of applicable Services and return of all Mercy data, including any work in progress. Mercy shall compensate Contractor for Services performed prior to termination based on the percentage of the Services that have been completed. SECTION 5. COMPLIANCE WITH LAWS AND REGULATIONS. A. Compliance with Laws. The parties shall comply with all applicable federal and state laws, rules, and regulations, including, but not limited to, those relating to environmental matters, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health /safety, and motor vehicle safety. The parties have obtained or will obtain all permits, licenses, and other authorizations necessary for it to commence and continue its performance under this Agreement. B. Exclusion from Governmental Programs. The parties warrant that they, including their Personnel, are not excluded from participating in the Medicare or Medicaid program and are not ineligible to participate in any governmental program. Both parties are responsible for regularly screening their Personnel against the United States Department of Health and Human Services /Office of Inspector General List of Excluded Individuals /Entities. Either party shall immediately notify the other in the event either party becomes debarred or suspended from any governmental program during the term of this Agreement. C. Tax Exempt Status. Contractor acknowledges that Mercy is a tax - exempt entity and the products and /or Services purchased by Mercy are generally not subject to tax. Contractor acknowledges that Mercy has made a copy of its Certificate of Exemption available to Contractor. Contractor and Contractor Personnel may not use any Mercy facility or property for any unauthorized purpose and will not act in any way that might jeopardize Mercy's tax - exempt status. D. On -site Policy. On -site Contractor Personnel shall comply with all requirements for on -site vendors, including (a) registration and sign -in procedures; (b) identification badges; (c) executing confidentiality statements; (d) participation in any required training; (e) parking regulations; and (f) vaccinations. Contractor Personnel shall follow and adhere to additional Mercy policies and procedures applicable to the provision of the Services which have been communicated to Contractor, either electronically or in writing. E. Medicare Records Access Requirements. If this Agreement is subject to the Medicare statutes and regulations governing access to books and records of subcontractors, then for a minimum of four (4) years after the expiration of this Agreement, Contractor shall retain and allow the authorized representatives of Mercy, the Comptroller General, and the Department of Health and Human Services access to this Agreement and to the books, records, and other documents of Contractor that are necessary to verify the nature and costs paid to Contractor pursuant to this Agreement. If Contractor carries out any duties of this Agreement by means of a subcontractor, including any organization related by ownership or control with Contractor, and the cost or value of which is ten thousand dollars ($10,000.00) or more over a twelve (12) month period, then Contractor shall require the subcontractor to comply with the provisions of this Section. In the event that either party receives a request for access, the parties agree to promptly notify the other. F. Nondiscrimination. Both parties agree that in the performance of their duties and obligations under this Agreement, they will not discriminate against any person or entity because of race, color, religion, sex, national origin, weight, height, or any other characteristic protected from discrimination as set forth in applicable laws and regulations. G. Good Standing. Each party warrants that it is a legally organized entity in good standing under the laws of the state of its organization and, where required, in good standing under the laws of the State of Iowa. SECTION 6. CONFIDENTIALITY. A. Confidentiality. Each party acknowledges and agrees that: (i) it may access, use, disclose, or duplicate Confidential Information only in accordance with the provisions of this Agreement or, if either party is subject thereto, in compliance with the Freedom of Information Act (FOIA), the Iowa Open Records Act, and all applicable local, state or federal open records laws; (ii) will maintain all Confidential Information in confidence unless required to comply with FOIA, the Iowa Open Records Act, or any applicable local, state, or federal open records laws and restrict access to those employees or agents whose duties reasonably require access to such Confidential Information; and (iii) it will take all commercially reasonable precautions necessary to safeguard the confidentiality of the other party's Confidential Information, including, at a minimum, those precautions taken by a party to protect its own Confidential Information of a similar nature, which will in no event be less than a commercially reasonable degree of care. Obligations of confidentiality survive termination or expiration of this Agreement for any reason. 1. Definition of Confidential Information. For purposes of this Agreement, Confidential Information shall be defined as including any and all information (i) related to patients or employees; (ii) protected by rights embodied in copyrights, patents, trade secrets, and any other intellectual property rights of a party; (iii) about Mercy that is not known to the general public, including any information regarding the business, personnel, and operations of Mercy obtained during the course of Contractor's work or association with Mercy; (iv) non - public information that belongs or relates to third parties to whom Mercy has an obligation of confidentiality, including other vendors and business associates; and (v) conveyed under this Agreement that is identified in writing as confidential at the time of its conveyance or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. 2. Limited Uses of Confidential Information. Each party shall have the right to use the other's Confidential Information for its internal analysis and to disclose such information to third party consultants who assist in the performance of such analyses pursuant to a confidentiality agreement. 3. Agreement Confidentiality. Except for internal business purposes and in accordance with any applicable open records laws, including but not limited to the Iowa Open Records Act, the existence of this Agreement and its terms are confidential. Contractor may not make any public statement, including a press release, customer list, or advertisement, describing Mercy's relationship with Contractor or Mercy's endorsement of Contractor without written notice to Mercy. Mercy acknowledges that Contractor must comply with the Iowa Open Records Act and any applicable open records laws. However, Contractor will provide notice to Mercy prior to any disclosure in compliance with applicable open records laws so that Mercy may seek an injunction in an attempt to block such disclosure. B. Open Records Laws. Regardless of any of the obligations set forth in this Section or Agreement, Mercy acknowledges that Contractor is a governmental entity subject to all applicable open records laws. In the event that a request for information is made of Contractor under any applicable open records laws, and it is deemed that Contractor must comply, such compliance will not be deemed a breach of this Agreement by the Contractor. Contractor will provide notice to Mercy of any such request and will not object to any legal efforts made by Mercy to block such disclosure. C. Security. Each party must establish and maintain commercially reasonable security practices, including administrative, physical, and technical safeguards, designed to ensure the following: (a) security and confidentiality of Confidential Information whenever possible, but except when disclosure of such records is required under any applicable open records laws; (b) protection against anticipated threats or hazards to the security or integrity of Confidential Information; and (c) protection against the unauthorized access or use of Confidential Information. Contractor will immediately notify Mercy of any security breach involving its Confidential Information, including any actual or suspected theft, accidental disclosure, or loss of any Confidential Information and /or any unauthorized intrusions into the facilities or secure systems which contain Confidential Information. Such notice shall include a detailed description of the security breach, including the nature of the Confidential Information disclosed and the corrective action Contractor has taken to prevent further security breaches. SECTION 7. INSURANCE AND INDEMNIFICATION. A. Indemnification by Contractor. Contractor shall indemnify and hold harmless Mercy and its affiliates, employees, agents, directors, and officers, against any and all liability arising out of Contractor's failure to comply with the terms or conditions of this Agreement or for injury, loss, claims, or damages arising from the Contractor's negligence in performing under or in any way connected with this Agreement. B. Indemnification by Mercy. Mercy shall indemnify and hold harmless Contractor and its affiliates, employees, agents, directors, and officers, against any and all liability arising out of Mercy's failure to comply with the terms or conditions of this Agreement or for injury, loss, claims, or damages arising from Mercy's negligence in performing under or in any way connected with this Agreement. C. Both Parties Have Responsibility. If both parties have an obligation to the other under the foregoing provisions, tort comparative fault principles shall be applied to allocate payment between the parties. D. Insurance. Contractor shall maintain in force, at Contractor's sole cost and expense, general liability insurance, covering bodily and personal injury, property damage, and contractual liability, in a minimum amount of One Million Dollars ($1,000,000.00) per claim and Five Million Dollars ($5,000,000.00) in the annual aggregate. 2. Mercy shall maintain, through its captive self insurance program, in force, at Mercy's sole cost and expense, general liability insurance, covering bodily and personal injury, property damage, and contractual liability, in a minimum amount of One Million Dollars ($1,000,000.00) per claim and Three Million Dollars ($3,000,000.00) in the annual aggregate. Additionally, Mercy shall maintain its umbrella policy. E. Proof of Insurance. 1. Contractor shall furnish to Mercy the certificates of insurance required under this Agreement, updated annually to maintain compliance with the terms of this Agreement. Said certificates shall note that the issuer shall endeavor to provide thirty (30) days prior written notice to Mercy in the event of policy cancellation. Contractor shall maintain such coverage in full force and effect during the term of this Agreement and, if not occurrence form coverage, for a period of five (5) years thereafter. SECTION 8. MISCELLANEOUS. A. Independent Contractors. At all times hereunder, the parties shall be independent contractors. Neither Contractor, nor Contractor's Personnel, shall be deemed to be agents or employees of Mercy. This Agreement is not intended to establish a partnership, joint venture, employer - employee, or joint employer relationship. Contractor is responsible for all salaries, payroll taxes, and other taxes, benefits, fees, and other charges or insurance required by any federal, state, and local law, statute, or regulation (including, but not limited to, unemployment taxes, and all similar taxes, payments, and any penalties and fines relating thereto), attributable to each of its Personnel. Neither Contractor nor any Contractor Personnel shall have any power or authority to bind Mercy to contractual or other obligations. B. Access to Audit. Contractor shall permit Mercy or its agents access to conduct periodic audits of its records relating to Contractor's compliance with the terms of this Agreement, including without limitation, use of Mercy data, invoices, volume reports, and discounts. The audits shall be conducted upon reasonable advance notice during regular business hours and in such a manner as not to unduly interfere with Contractor's operations. C. Notices. Notice shall be given in writing and shall be effective upon depositing the notice in first -class mail or certified mail, return receipt requested, at the addresses below or upon actual receipt by the other party. Either party may change the address to which notices are to be sent by notice given in accordance with the provisions of this Section. Mercy: Mercy Medical Center Attn: President and CEO 250 Mercy Drive Dubuque, Iowa 52001 Contractor: City of Dubuque Police Department Attn: Chief Mark Dalsing 770 Iowa Street Dubuque, IA 52001 D. Notification of Incidents. Contractor agrees to notify Mercy within twenty -four (24) hours after becoming aware of any incidents, occurrences, asserted or unasserted claims, or patient - related causes of action involving Contractor's performance under this Agreement. E. Dispute Resolution. Contractor and Mercy will attempt to settle any claim or controversy arising from this Agreement through negotiation in good faith. The dispute will be escalated to appropriate higher -level managers of the parties, if necessary. Unless either party has issued a notice of termination, the parties will continue to fulfill their obligations under this Agreement while working towards resolution of any dispute. F. Governing Law and Venue. This Agreement shall be governed by and construed under the laws of the State of Iowa without regard for principles of choice of law. Contractor, its successors and assigns, consent to the jurisdiction of Dubuque County, specifically the District Court of Dubuque County, Iowa, with respect to any claims arising under this Agreement. G. Entire Agreement and Amendment. This Agreement, including all exhibits referenced herein, constitutes the entire agreement between the parties concerning the subject matter herein and may not be amended except by an agreement signed by an authorized representative of Mercy and Contractor. H. Waiver. Waiver of any provision(s) of this Agreement is not effective unless the waiver is in writing and signed by the party against whom enforcement of the waiver is sought. Failure to enforce any provision does not constitute a waiver. Enforceability. This Agreement is intended for the benefit of the parties only. There are no third party beneficiaries. J. Subcontractors. Contractor is not permitted to subcontract, in whole or in part, performance of any obligation under this Agreement or to assign this Agreement to any third party without the prior written consent of Mercy. Contractor shall require that all subcontractors comply with the terms of this Agreement, including confidentiality requirements. Contractor remains responsible for the performance of its subcontractors and the acts or omissions of Contractor's subcontractors shall be deemed to be the acts or omissions of Contractor. K. Survivability. Provisions surviving termination or expiration of this Agreement are those which on their face affect rights and obligations after termination or expiration and also include provisions concerning indemnification, confidentiality, warranty, and choice of law. IN WITNESS WHEREOF, the undersigned authorized representatives of the Parties have executed this Agreement, effective as of the Effective Date. MERCY MEDICAL CENTER CITY OF DUBUQUE iij�� By ( C,` IJ 7 et By Name: 7"(it$S�%1,c /43 tGt`1i Name: Title: ( I -/ i Title: Dated: -7%`2.6 //7 Dated: EXHIBIT A ® SERVICES In performing the duties required under this Agreement, Contractor agrees to the Following duties for City of Dubuque Police Officer stationed in the Mercy Emergency Department: 1. Print name legibly in log book and note start time and end time. 2. Obtain Mercy radio and access chip, complete a radio check with the on -duty Mercy Security Officer. 3. Advise Emergency Department Charge Nurse when reporting for duty. 4. Officers will be stationed in the Emergency Department and will provide safety surveillance and intervene appropriately to prevent escalation of behaviors that could cause harm to patients, visitors or staff. 5. Interact with patients, visitors and staff in a manner that is conducive to excellent patient care. Officers will promote an environment that is positive, nonthreatening and safe. 6. Act as a resource to staff members and will role model behaviors that convey professionalism, integrity and safety. 7. In the event of a violent or potentially violent situation, officers will protect patients, visitors and staff in an optimal manner and will obtain assistance as necessary. 8. Collaborate with the care team and Security staff to maximize communication and teamwork in situations in which safety may be threatened. 9. Offer suggestions for improving the safety of patients, visitors and staff members. 10. Respond to situations outside of the Emergency Department when the safety of patients, visitors or staff members is at risk. 11. Support and participate in processes intended to monitor visitor access to the hospital, including the visitor check -in process. 12. Respond to emergency calls as requested, including Dr. Strong (assistance with a potentially violent patient or visitor) and Code Silver (weapon issue). 13. Upon completion of the shift, return radio and access chip to the designated area in the Emergency Department and sign out. EXHIBIT B ® COMPENSATION For services provided under this Agreement, Mercy shall compensate the City of Dubuque an hourly rate of thirty -six dollars ($36.00) plus a five percent (5 %) administrative fee of one dollar eighty cents ($1.80) per hour, totaling thirty seven dollars and eighty cents ($37.80) per hour.