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HomeMy WebLinkAboutLEG 15-21Report to Council Report Number: LEG 15-21 Date: September 27, 2021 From: Paul Bigioni Director, Corporate Services & City Solicitor Subject: Automatic Speed Enforcement (ASE) Prosecutions - General Retainer Agreement -Prosecution Services with the Region of Durham -File: L-2000 Recommendation: 1.That the attached General Retainer Agreement for Prosecution Services between TheCorporation of the City of Pickering and The Regional Municipality of Durham beapproved (Attachment No. 1 to this Report); 2.That the Mayor and City Clerk be authorized to execute said General Retainer Agreement for Prosecution Services, subject to minor revisions agreeable to the Director, Corporate Services & City Solicitor; and 3.That appropriate City of Pickering officials be authorized to take the actions necessary toimplement the recommendations in this report. Executive Summary: Pursuant to Report ENG 05-21 dated March 1, 2021, City Council authorized the implementation of automated speed enforcement (“ASE”) on City roads in Pickering. The prosecution of ASE infractions will be handled in the Provincial Court system. The Regional Municipality of Durham (the “Region”) has legal and paralegal staff that are trained and experienced in ASE prosecution and have sufficient capacity to handle Pickering’s ASE caseload. The attached General Retainer Agreement for Prosecution Services provides for the City to retain the Region’s staff to prosecute ASE infractions as directed by City staff. Financial Implications: The City would be billed $140.00 per hour for prosecution services under the General Retainer Agreement for Prosecution Services. This is a reasonable rate, and it is the same rate charged by the City’s current Prosecutor for by-law and other statutory infractions. The General Retainer Agreement for Prosecution Services also contains a fee cap provision, so the effective hourly rate paid by the City may be even lower if the City generates a high volume of prosecution work on an annual basis. The fee charged by the Region includes the personnel costs associated with one prosecutor, a proportionate allocation of personnel costs for a prosecution assistant, and a proportionate allocation of the administrative expenses (such as computer and other office equipment). Applicable taxes and disbursements will be paid by the City in addition to the fee. Typical disbursements include postage, photocopying, long distance charges, government or court fees, process servers’ fees, document compilation and binding. LEG 15-21 September 27, 2021 Subject: General Retainer Agreement for Prosecution Services Page 2 Discussion: Pursuant to Report ENG 05-21 dated March 1, 2021, City Council authorized the implementation of automated speed enforcement (“ASE”) on City roads in Pickering. To date, two ASE mobile speed enforcement cameras have been installed. These cameras will soon be calibrated and tested, after which they will go into operation. The City must now prepare itself to administer the prosecution of ASE infractions in the Provincial Court system. The Regional Municipality of Durham (the “Region”) has legal and paralegal staff that are trained and experienced in ASE prosecution. The Region’s prosecution staff have sufficient capacity to handle Pickering’s ASE caseload. The attached General Retainer Agreement for Prosecution Services provides for the City to retain the Region’s staff to prosecute ASE infractions as directed by City staff. The prosecution of non-ASE offences such as Zoning By-law and Building Code violations will continue to be handled by Rhonda M. Bishop , Court Services Agent. The General Retainer Agreement for Prosecution Services has been negotiated by City staff and is in acceptable form. City staff recommend that it be approved by Council and executed by the City. Attachment: 1.General Retainer Agreement for Prosecution Services Prepared/Approved By: Original Signed By: Paul Bigioni Director, Corporate Services & City Solicitor PB:ks Recommended for the consideration of Pickering City Council Marisa Carpino, M.A. Chief Administrative Officer Original Signed By: Attachment No. 1 to Report LEG 15-21 GENERAL RETAINER AGREEMENT FOR PROSECUTION SERVICES THE CORPORATION OF THE CITY OF PICKERING (THE “LOCAL MUNICIPALITY”) AND REGIONAL MUNICIPALITY OF DURHAM, CORPORATE SERVICES - LEGAL SERVICES (“RMD”) Scope of Retainer: The Local Municipality hereby retains RMD to undertake the following legal services (the “Prosecution Services”) on its behalf: (i)RMD will prosecute by-law infractions appropriate statutory infractions within the jurisdiction of the Local Municipality and related prosecutions as directed by and on behalf of the Local Municipality; and (ii)RMD will provide services for such other matters related to prosecuting by-laws as described in the terms and conditions below. Where it is not be feasible to use RMD for Prosecution Services or when sufficient resources are not available the Local Municipality will either take on the work directly or will retain, manage and pay for any services provided by outside legal counsel, paralegal or prosecution services, and such external services shall not be covered under the terms of this retainer. Engage Services: In consultation with the Local Municipality, RMD will render such services, take such proceedings, employ such agents, counsel, experts or services as may be appropriate, and to expend such disbursements as RMD may deem reasonably necessary in order to properly provide its legal advice and services as further particularized in the terms and conditions below for the Prosecution Services. Disbursements: Typical disbursements may include postage, photocopying, long distance charges, government or court fees, process servers’ fees, title searching fees, document compilation and binding, and any other amount charged by third parties. Reasonable disbursements do not fall under the retainer cap amount. Legal Fees: The Local Municipality shall promptly pay to RMD its legal fees for Prosecution Services rendered based upon the applicable hourly rate, as further particularized in the terms and conditions below. Retainer Cap and Annual Reconciliation: This retainer with RMD is on a proportional cost recovery basis. Once full cost recovery has been achieved by RMD through billings to the Local Municipality and all other participating local municipalities in Durham Region (collectively, the “Participating Local Municipalities”), the retainer cap will be applied, and no further service invoices for that calendar year will be sent by RMD (except for the annual reconciliation). The annual retainer cap is set at $120,000 provided that there are other Participating Local Municipalities, with each year commencing on January 1st. Otherwise, the retainer cap will be set at $40,000. This amount includes the personnel costs associated with one prosecutor, a proportionate allocation of personnel costs for a prosecution assistant, and a proportionate allocation of the administrative expenses (which include computer and other office equipment). However, the retainer cap does not include disbursement charges, applicable taxes, or interest on over-due accounts. The retainer cap and hourly fee amounts may be negotiated at the time of renewal of this agreement. The Local Municipality will be billed on an hourly basis for Prosecution Services directly in accordance with its usage of those services until the retainer cap is reached. The Local Municipality will not be billed for Prosecution Services above the retainer cap. Disbursements will continue to be billed as they are incurred. In each calendar year that the retainer cap is reached, an annual reconciliation will be carried out to allocate the proportionate amounts of the retainer cap to each of the Participating Local Municipalities. RMD will continue to track Prosecution Services provided to the Participating Local Municipalities throughout the entire year to support the annual reconciliation. The Participating Local Municipalities will confirm to RMD their agreement with the annual reconciliation, and RMD will reconcile rebate payments to or invoice payments from the Participating Local Municipalities accordingly. The Local Municipality acknowledges that RMD will be required to make available the dockets of each of the Participating Local Municipalities to the others as part of the annual reconciliation. RMD undertakes to make reasonable efforts to include only necessary information in the dockets as is required to satisfy each of the Participating Local Municipalities of their proper pro rata proportion of the fees under the retainer cap. The Local Municipality herein accordingly releases RMD from all liability over maintaining the privacy and confidentiality of the contents of the dockets. THE LOCAL MUNICIPALITY ACKNOWLEDGES HAVING READ AND UNDERSTOOD THIS GENERAL RETAINER AGREEMENT (AND THE TERMS AND CONDITIONS ATTACHED HERETO) AND AGREES TO ABIDE BY THE PROVISIONS HEREOF. [SIGNING PAGE FOLLOWS] DATED this _____ day of _________________, 2021. LOCAL MUNICIPALITY: _______________________________ Per: _______________________________ Title: Name: Address: Per: _______________________________ Title: Name: Address: I/We have authority to bind the municipality. REGIONAL MUNICIPALITY OF DURHAM, CORPORATE SERVICES - LEGAL SERVICES DATED this _____ day of _________________, 2020. Per: ______________________________________________ Title: Name: Address: I have authority to bind the regional municipality. RMD’S STANDARD TERMS AND CONDITIONS ATTACHED TO GENERAL RETAINER AGREEMENT Term: The initial term of the retainer will be for 2 years commencing from the date of execution. There is a renewal option which can be exercised by either RMD or the Local Municipality on 90 days written notice prior to expiry of this retainer. The retainer is subject to termination for convenience on 90 days written notice by either party. In the event of a termination for convenience prior to the end of the term, following the next annual reconciliation, the Local Municipality will still be responsible for payment to RMD of their pro-rated proportion of the annual retainer cap amount for its use of Prosecution Services, if applicable. Pricing: RMD will bill for work completed for the Local Municipality in the amount of $140/hour, up to the retainer cap amount. RMD will invoice above the retainer cap amount for any additional services that are not included in the definition of Prosecution Services herein. RMD will make all reasonable efforts to advise the Local Municipality before such extra-billable services are provided. Payment: The Local Municipality agrees to pay RMD’s accounts for reasonable fees, reasonable disbursements and applicable taxes within 60 days after accounts are rendered. In the event of any Local Municipality’s failure to pay any of RMD’s accounts on a timely basis, interest shall be charged commencing 120 days after the accounts are rendered, and payable at the rate 2.5% per annum. Non-payment of RMD’s account on time may result in cessation of services by RMD until accounts are paid up-to-date and shall entitle RMD to terminate this General Retainer Agreement with that Local Municipality with immediate effect upon written notice. Upon such termination, RMD shall be entitled to cease acting for the Local Municipality (including removing itself from the Court record of any proceeding in which RMD had been representing the Local Municipality) at its discretion, forthwith upon written notice to the Local Municipality. Invoicing: RMD will submit accounts to the Local Municipality on a routine quarterly basis, and invoices will include itemized dockets showing the amount of time spent, by whom, and the services performed. It is acknowledged and agreed that RMD will not invoice the Local Municipality for travel time incurred travelling to meetings and destinations outside of RMD headquarters. Final Accounts: Each of RMD’s interim and annual concluding statements of account shall be final and binding, unless the Local Municipality notifies RMD in writing of any dispute with respect to the account within 45 days after it was rendered, but not otherwise. Indemnification: The Local Municipality shall indemnify and save RMD, its prosecutors and employees, harmless from any liability, expense and full indemnity legal costs arising from or in connection with any claim, action, cause of action, suit, legal proceeding, settlement or demand by any third party, unless any such liability, expense or cost arises with respect to the negligence or breach of any duty owed by RMD, its prosecutors or employees to the Local Municipality while providing Prosecution Services pursuant to the General Retainer Agreement. Simultaneous Retainer: Each of the Participating Local Municipalities acknowledges that RMD will act on behalf of each and any of them, unless a direct conflict arises that cannot be resolved, in which RMD will be disqualified from representation of any of the Participating Local Municipalities. Material Conflict: In the event that RMD or the Local Municipality becomes aware of any material conflict which cannot promptly be resolved on consent of the parties, the Local Municipality or RMD shall notify the other party and any of the other Participating Local Municipalities that are involved in the conflict of the existence of any such conflict, whereupon each of the conflicted Participating Local Municipalities will obtain independent legal representation. Office Hours: In providing Prosecution Services to the Local Municipality, RMD’s office hours will be from Monday to Friday, 8:30AM to 4:30PM. Efficient Professional Services: RMD undertakes to render its Prosecution Services on a practical, professional, cost-effective basis and to a high-quality standard. RMD shall comply with the Law Society of Ontario’s Rules of Professional Conduct and applicable legislation, case law and regulations. RMD shall consult with the Local Municipality with respect to major decisions or choices, pertaining to significant alternatives or financial impacts, but RMD shall generally be expected to process the Local Municipality’s Prosecution Services in accordance with efficient standardized procedures. RMD and the Local Municipality agree that RMD will retain prosecutorial discretion in compliance with the common law but that RMD will have regard to the input of the Local Municipality whether to pursue or discontinue prosecution of a matter. Other General Terms and Specifications for Prosecution Services (i) RMD will ensure the that the Local Municipality has access to a designated prosecutor to provide Prosecution Services. (ii) The designated prosecutor will be available by telephone as reasonably required for consultation with the Local Municipality. (iii) All work by the designated prosecutor will be completed in a timely manner, giving priority to the Local Municipality’s work over RMD work. (iv) Work shall be of high quality and in all respects comply with professional standards for a prosecutor of like-skills and experience, and in all respects meet the legal needs and requirements of the Local Municipality for Prosecution Services. (v) RMD may change the designated prosecutor from time to time with notice to the Local Municipality, provided the designated prosecutor at all times meets the specifications set out herein. (vi) RMD is employer for any prosecutors performing work under this General Retainer Agreement. (vii) RMD will provide all required ancillaries, including computer, cell phone, email address, professional fees, professional accreditation requirements, insurance, office supplies, office space and equipment. (viii) RMD will carry out the recruitment, hiring, probation, and termination of staff. (ix) All decisions with respect to employment will be at the sole discretion of the RMD. (x) RMD will be responsible for costs associated with employment liabilities including liability for severance, common law damages for notice, and torts. (xi) RMD will be responsible for performance management of staff. Prosecution Services: The particulars for the Prosecution Services to be provided include: all activities undertaken by the prosecutor and prosecution assistant and other RMD staff as required to carry out a successful prosecution, and will include but is not limited to: client consultations related to a charge; site visits; witness interviews and client meetings; receiving, reviewing and providing appropriate disclosure; resolution discussions with defendants; all court appearances including early resolutions, appearances, motions, trials and appeals; and reporting to clients. Prosecution Services will be provided in accordance with the instructions of the Local Municipality, subject to prosecutorial discretion as provided in the Crown Prosecution Manual Criminal Law Division – Ministry of the Attorney General. Prosecution Services will be provided at all times in a professional, courteous and respectful manner in accordance with the RMD’s applicable policies and standards, and the Rules of Professional Conduct from the Law Society of Ontario. As a value-added service, RMD shall also provide training at no additional cost to Municipal Law Enforcement Officers of the Local Municipality, on relevant topics including collection of evidence, legal document preparation, and trial preparation. The Local Municipality’s Responsibilities will include: (i) to act as the client on all matters related to this retainer; (ii) to provide clear and proper instructions on assigned files; (iii) to provide any feedback to RMD which may be applicable to performance management for RMD staff working under this retainer; (iv) to provide access to staff member witnesses as may be required from time to time; and (v) to provide such resources as may be reasonably required over and above those provided by RMD in order to meet the specifications and requirements of the General Retainer Agreement.