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HomeMy WebLinkAboutCAO 05-11 Report To Executive Committee I KERI Report Number: CAO 05-11 Date: February 14, 2011 33 From: Debbie Shields City Clerk Subject: Ministry of the Attorney General Opt-In Agreement File: A2200-001-11 Recommendation: 1. That Report CAO 05-11 regarding the execution of a revised Opt-In Agreement, included as Attachment 1, for the collection of parking fines be received for information; and 2. That the Mayor and Clerk be authorized to execute the attached Opt-In Agreement between the Ministry of the Attorney General and the City of Pickering to replace the existing Opt-In Agreement. Executive Summary: The City of Pickering entered into an Opt-In Agreement with the Ministry of the Attorney General in 1999, which permitted the collection and retention of all City of Pickering parking fines. Based on an amendment to the Provincial Offences Act, a new agreement has been prepared continuing with the previous arrangement, while clarifying minor operational and legal developments in parking .fine enforcement. Financial Implications: The City's ability to collect and retain all parking fines will remain the same. Sustainability Implications: There are no sustainability implications. Background: The City of Pickering was previously designated under s.13 of the Provincial Offences Act (POA) Regulation 949 as authorized to collect and retain parking fines. The Ministry of the Attorney General has, until now, asked municipalities to obtain this designation in order to collect their own parking fines. Municipalities were also asked to enter into agreements with the Ministry governing this arrangement. Effective December 15, 2010, the POA was amended to eliminate the regulatory designations. As agreements are still required, an updated agreement has been Report CAO 05-11 February 12, 2011 Subject: Ministry of the Attorney General 34 Opt-In Agreement Page 2 provided to reflect the recent operational and legal developments in parking fine enforcement that have occurred since the original agreement was made. The three key changes in the new agreement are as follows: 1. The new agreement better reflects the City's role as an opted-in municipality in enforcing local justice matters by incorporating relevant provisions of the Provincial Offences Act Transfer Agreement memorandum of understanding (MOU) between the Ministry and the Regional Municipality of Durham, including the principles of transfer enumerated in Article 2. A copy of this MOU is available from the clerk of the Regional Municipality of Durham. 2. Paragraph 13.3 of the new agreement requires that the City send the Ministry renewal and replacement certificates of insurance as may be necessary. 3. Paragraph 14 would prevent the Ministry from terminating the opt-in relationship due to a breach of the contract unless it has first informed the City of its concerns and given a reasonable amount of time to address them. The agreement has been reviewed by Paul Bigioni, the City's legal counsel, with minor changes made and included into the agreement. The Ministry of the Attorney General has requested that two copies of the attached agreement be executed and returned with a certified copy of the authorizing Council Resolution. Attachment: 1. Opt-In Agreement between City of Pickering and Ministry of the Attorney General Prepared By: Approved/Endorsed By: Kimberly Thompson, CMM I, CPSO Debbie Shields Manager, By-law Enforcement Services City Clerk Copy: Chief Administrative Officer I CORP0227-07/01 revised 3 6 ATTi0.CHMENT# TC REPORT#k CP~ 0 0 5- t 1 OPT-IN AGREEMENT THIS AGREEMENT made as of the date the Agreement is signed by both of the parties. BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the Ministry of the Attorney General (the "Ministry") OF THE FIRST PART - and - City of Pickering (the "Municipality") OF THE SECOND PART 37 1.0 Definitions .............................................................................................................2 2.0 Term ......................................................................................................................3 3.0 Services ................................................................................................................3 4.0 Municipal Service Responsibilities ........................................................................4 5.0 Ministry Service Responsibilities ...........................................................................4 6.0 Reports .................................................................................................................4 7.0 Records and Audit .................................................................................................5 8.0 Confidentiality ........................................................................................................5 9.0 Non-Assignment ....................................................................................................6 10.0 Non-Agency ..........................................................................................................6 11.0 Indemnity ..............................................................................................................6 12.0 Liability .....................................................................................:............................6 13.0 Insurance ..............................................................................................................6 14.0 Termination With or Without Cause ......................................................................7 15.0 Notice and Communication ...................................................................................8 16..0 Waiver ...................................................................................................................9 17.0 Appendices ........................................10 18.0 Entire Agreement ................................................................................................10 19.0 Survival ...............................................................................................................10 20.0 Remedies ............................................................................................................11 APPENDIX "A": Electronic Format for Plate Denial Requests APPENDIX "B": Reports 1 38 WHEREAS the Municipality wishes to collect and enforce its own parking fines; AND WHEREAS the Ministry, through the Defaulted Fines Control Centre, has sole authority to direct Plate Denials where a fine is in default; THEREFORE, IN CONSIDERATION of this Agreement's mutual provisions, the parties agree as follows: 1.0 DEFINITIONS 1.1 Definitions. In the Agreement the following words shall have the following meanings: "Agreement" means this agreement entered into between the Ministry and the Municipality, all appendices to this agreement and any instrument amending this agreement. "Applicable Law" includes the Auditor General Act, the Freedom of Information and Protection of Privacy Act, the Municipal Freedom of Information and Protection of Privacy Act, the Provincial Offences Act and its regulations and any other statute, regulation, common law rule, order, judgment, or requirement having the force of law and applicable to the Agreement. "Business Day" means any working day, Monday to Friday inclusive, but excluding the holidays described in section 88 of the Legislation Act. "Court" means the court in the Regional Municipality of Durham Court Service Area. "MTO" means the Ministry of Transportation. "Municipal Partner" means the Regional Municipality of Durham. "Plate Denial" means refusal by the Registrar of Motor Vehicles to validate or issue a vehicle permit to an individual who has defaulted on a fine for a parking infraction. "Plate Denial Request" means a request for Plate Denial transmitted electronically in the form contained in Appendix "A". 2 3Q "Policies" includes, but is not limited to: (a) all policies, procedures, standards, rules, guidelines and directives that apply to the collection and enforcement of parking fines, as issued by the Ministry any time after the Agreement and as amended from time to time; (b) the Ministry's Provincial Offences Act Write-Off Directive and Operating Guidelines and any other policies, procedures, standards, rules, guidelines and directives issued by the Ministry before the Agreement that the Ministry provides to the Municipality; and (c) any provisions of the MOU between the Ministry and the Municipal Partner, including any of the principles of transfer enumerated in Article 2, that are relevant to the Agreement and that are not expressly governed by an Article of the Agreement. "Reports" means the reports described in Appendix "B". 1.2 Number and headings. In the Agreement, words in the singular include the plural, and vice-versa. The headings in the Agreement are for convenience of reference only and do not form part of the Agreement and in no manner modify, interpret or construe the Agreement. 1.3 References to Applicable Law. All references to Applicable Law are ambulatory and apply as amended from time to time. 2.0 TERM 2.1 The Agreement Commences. The term of this Agreement shall commence on the date that this agreement is signed by both of the parties. 2.2 Duration. The Agreement shall continue as an agreement of indefinite duration until terminated in accordance with paragraph 14. 3.0 SERVICES 3.1 Fine enforcement. The Ministry and the Municipality mutually undertake, on and subject to the terms set out in the Agreement, to collect and enforce fines for parking infractions by facilitating Plate Denials. 3 40 4.0 MUNICIPAL SERVICE RESPONSIBILITIES 4.1 The Municipality shall: (a) comply with Applicable Law and Policies; (b) remit to the Municipal Partner the amount of court costs remaining after deducting the allowances owing to the Municipality under RRO 1990, Regulation 949. (c) on the written direction of the Ministry, electronically provide such data as the Ministry may reasonably require from time to time, including the Reports; and (d) cause its staff to participate in any training that the Ministry considers appropriate for the purposes of the Agreement. 5.0 MINISTRY SERVICE RESPONSIBILITIES 5.1 The Ministry shall: (a) accept and review the Municipality's Plate Denial Requests; (b) where the Ministry, in its sole discretion, deems it appropriate, forward the Municipality's Plate Denial Requests to MTO; (c) by the twentieth Business Day of the month following the month in which the Ministry receives from MTO monies collected through Plate Denial, remit to the Municipality, (i) the fine amount collected; and (ii) the court costs amount. 6.0 REPORTS 6.1 Reports. The Municipality shall submit to the Ministry the Reports and such other reports and documentation related to the Agreement as the Ministry may request from time to time. 6.2 Preparation and Submission of Reports. The Municipality shall ensure that, (a) All Reports or other requests for documentation are completed to the satisfaction of the Ministry using any forms that may be specified by the Ministry from time to time; and 4 41 (b) the Reports are received by the Ministry on the dates set out in Appendix "B" and at the address provided for the Ministry in paragraph 15.3. 7.0 RECORDS AND AUDIT 7.1 Records. The Municipality shall, during the term of the Agreement and for a period of one year after the date the Agreement is terminated, (a) keep and maintain all financial records, invoices and other financially- related documents relating to the Agreement in a manner consistent with generally accepted accounting principles and clerical practices; (b) keep and maintain all non-financial records relating to the Agreement; (c) permit the Ministry, its agents or the Provincial auditor, upon 48 hours' notice and during the Municipality's normal business hours, to examine, copy or conduct a full or partial audit of accounts, data, books and records related to its performance under the Agreement. 7.2 No control of records. No right conferred upon the Ministry under this Agreement shall be construed so as to give the Ministry any control over the Municipality's records. 8.0 CONFIDENTIALITY 8.1 Confidentiality and disclosure obligations. Each party shall: (a) comply with all Applicable Law; (b) subject to such disclosure as is required by the Agreement and Applicable Law, use its best efforts to: (i) keep secure all records and other documents pertaining to a defendant; (ii) ensure the security and integrity of all records pertaining to the defendant and keep it in a physically secure and separate location, safe from loss, alteration, destruction or intermingling with other records and databases and implement, use and maintain the most appropriate products, tools, measures and procedures to do so; (iii) implement all other specific security measures that in the reasonable opinion of the Ministry are necessary or advisable to improve the adequacy and effectiveness of security and the integrity and records generally. 5 I~ 42 8.2 Contractual information may be disclosed. The parties acknowledge that certain contractual information is liable to be disclosed to the Legislative Assembly or to the Council of the Municipality, or both, and accordingly may become part of the public record. 9.0 NON-ASSIGNMENT 9.1 No Assignment. The Municipality shall not, without the prior express written consent of the Ministry, assign the Agreement or sub-contract any of its obligations under the Agreement. Any assignment is on condition that the assignee undertakes all the Municipality's obligations to the Ministry under the Agreement, and the Municipality shall not be released of its obligations to the Ministry by reason of the assignment. 10.0 NON-AGENCY 10.1 Municipality not Ministry agent. The Municipality, its council members, officers, employees, agents, contractors and volunteers are not, and shall not be deemed to be, officers, employees, agents, partners or joint venturers of or with the Ministry. 11.0 INDEMNITY 11.1 Indemnification. The Municipality shall at all times defend, indemnify and save harmless the Ministry, its officers, employees and agents from and against all claims, demands, losses, costs, damages, actions, suits or other proceedings by whomsoever made, sustained, brought or prosecuted in any manner based upon, occasioned by or attributable to anything done or omitted to be done by the Municipality, its council members, officers, employees, agents, contractors or volunteers in connection with the Agreement or in collecting fines for parking offences. 12.0 LIABILITY 12.1 Limitation of liability. The Ministry shall not be liable either for any injury or damage (including death) to the Municipality or to the person of its council members, officers, employees, agents, contractors or volunteers or for the loss of or damage to the property of the Municipality, its council members, officers, employees, agents, contractors or volunteers in any manner based upon, occasioned by, or in any way attributable to the Municipality's services under the Agreement. 6 43 13.0 INSURANCE 13.1 Insurance. During the term of the Agreement, the Municipality shall maintain continuously, at its own expense, with insurers acceptable to the Ministry to an inclusive limit of not less than 1 million dollars per occurrence, comprehensive general liability insurance, including coverage for third party bodily injury, personal injury, death and property damage, including loss of use thereof. 13.2 Policy shall contain. The insurance policy referred to in paragraph 13.1 of the Agreement shall include at least the following terms: (a) Her Majesty the Queen in right of Ontario as represented by the Ministry as an additional insured; (b) a clause including liability arising out of contract or agreement. (c) a cross-liability insurance clause endorsement acceptable to the Ministry; (d) a requirement that the insurer give the Ministry 30 Business Days' prior written notice, in the manner set forth in the policy conditions, if a policy is to expire, be changed or be cancelled. 13.3 Certificates of Insurance. The Municipality shall provide the Ministry with proof of the insurance required by the Agreement in the form of a valid certificate of insurance that references the Agreement and confirms the required coverage, on or before the commencement of the Agreement. The Municipality shall provide the Ministry with renewal and replacement certificates as may be necessary. 14.0 TERMINATION WITH OR WITHOUT CAUSE 14.1 Termination without cause. Either party may terminate the Agreement without cause by giving 180 calendar days' written notice to the other party. 14.2 Opportunity to remedy breach. Where the Municipality breaches any of paragraphs 4.0 (Municipal Service Responsibilities), 6.0 (Reports), 7.0 (Records and Audit), 8.0 (Confidentiality), 9.0 (Non-Assignment), 11.0 (Indemnity) or 13.0 (Insurance) of the Agreement, the Ministry may deliver a written notice to the Municipality, setting out the particulars of the breach, and demanding that the Municipality rectify or remedy that breach within a period not to be less than 30 Business Days. 14.3 Failure to remedy breach. Where the Municipality fails to rectify or remedy the breach within the time specified in the notice, the Ministry may terminate the Agreement, (a) immediately, without further warning to the Municipality, or 7 44 (b) upon the expiration of such further period as the Ministry may specify in writing, by giving written notice to that effect. 14.4 Effective date. The effective date of any termination shall be the last calendar day of the notice period. 14.5 Obligations on termination without cause. If the Agreement is terminated by either party, the Ministry shall pay to the Municipality any amount due to the Municipality under the Agreement at the date of termination. 14.6 Rights and obligations on Termination for breach. If the Agreement is terminated pursuant to paragraph 14.3, the Ministry shall recover from the Municipality any damages, costs and expenses incurred by the Ministry as a result of such termination, and the Ministry may set them off against any amount payable by the Ministry to the Municipality under paragraph 14.5 15.0 NOTICE AND COMMUNICATION 15.1 Form. Any written notice or communication shall be: (a) delivered personally or by pre-paid courier, or sent by facsimile, electronic mail, certified or registered mail or postage pre-paid first class mail; and (b) addressed to the other party, as provided in paragraphs 15.3 and 15.4. 15.2 Notices Effective From. All written notices shall be effective: (a) on the date the delivery is made, if the Notice is delivered personally or by pre-paid courier; (b) on the date the transmission is sent, if the Notice is sent by facsimile or electronic mail before 4:30 PM on a Business Day; (c) on the next Business Day after the date the transmission is sent, if the Notice is sent by facsimile or electronic mail after 4:30 PM or on a day that is not a Business Day; (d) the fifth Business Day after the day the Notice was deposited in the mail if the Notice is sent by certified, registered or postage prepaid mail. 8 45 15.3 Contact - General. Except for communication regarding audits, all communication between the parties under the Agreement shall be conducted through the following people: To the Ministry: To the Municipality: Court Services Division The City of Pickering Ministry of the Attorney General Pickering Civic Complex 720 Bay St., 2nd floor One the Esplanade Toronto ON M7A 2S9 Pickering, ON L1V 6K7 Attention: Jeremy Griggs, Senior Attention: Kimberly Thompson, Manager Manager, By-law Enforcement Provincial Offences Act Unit Services, Clerk's Office E-mail: Jeremy.Griggs@ontario.ca E-mail: Fax: (416)-326-2592 kthompson@cityofpickering.com Telephone: (416)-212-4546 Fax: (905)-420-9685 Telephone: (905)-420-4611 15.4 Contacts - Audit. All communication between the parties regarding audits under the Agreement shall be conducted through the following people: To the Ministry: To the Municipality: The City of Pickering Court Services Division Pickering Civic Complex Ministry of the Attorney General One the Esplanade 720 Bay St., 2nd floor Pickering, ON L1V 6K7 Toronto ON M7A 2S9 Attention: Kimberly Thompson, Attention: Nick Perera, Manager, Manager, By-law Enforcement Business Planning & Support Section Services, Clerk's Office E-mail: Nick.Perera@ontario.ca E-mail: Fax: (416) 326-4666 kthompson@cityofpickering.com Telephone: (416) 326-5351 Fax: (905)-420-9685 Telephone: (905)-420-4611 15.5 Change of Contact. Either party may at any time designate personnel different from those indicated above by giving the other party written notice. 16.0 WAIVER 16.1 Form of waiver. Any provision of the Agreement may be waived in whole or in part by a party without prejudice to that party's rights in the event of a breach of any other provision of the Agreement. A waiver shall be binding on the waiving party only if it is in writing and signed by that party. The waiver of any breach of 9 4.6 any provision of the Agreement shall not be taken or held to be a waiver of any further breach of the same provision or any breach, of any other provision. 17.0 APPENDICES 17.1 Appendices. The following are the appendices attached to and forming part of the Agreement: (a) Appendix "A" (Electronic Format for Plate Denial Requests); and (b) Appendix "B" (Reports). 18.0 ENTIRE AGREEMENT 18.1 Entire Agreement. The Agreement constitutes the whole agreement between the parties with respect to the matters dealt with in it, and it rescinds any prior oral or written representations and agreements. 18.2 Modification. Except as described in paragraph 18.3, the Agreement may only be modified by a written agreement duly executed by the Parties. 18.3 Ministry may amend Appendices. The Ministry may, upon giving 30 Business Days' notice to the Municipality, in its sole discretion, amend Appendix "A" or Appendix "B". The amended Appendix shall be deemed to replace the previous Appendix and to be attached to and form part of the Agreement. 18.4 Notice must include. The notice referred to in paragraph 18.3 shall include a copy of the amended Appendix "A" or Appendix "B". 19.0 SURVIVAL 19.1 Survival. The following paragraphs shall survive the termination of the Agreement and any supporting or cross referenced provisions shall continue in full force and effect for a period of one year: 7.0 (Records and Audit), 8.0 (Confidentiality), 11.0 (Indemnity), 12.0 (Liability), 15.0 (Notice and Communication), and 20.0 (Remedies). 10 47 20.0 REMEDIES 20.1 Rights and Remedies Cumulative. The rights and remedies of the parties under the Agreement are cumulative and in addition to, and not in substitution for, any rights and remedies provided by law, equity, and legislation. THE UNDERSIGNED parties have made the Agreement as of the last date written below. Corporation of the City of Pickering Witness Per: Dave Ryan Date Mayor Witness Per: Debbie Shields Date City Clerk HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by the Attorney General Witness Per: Jeremy Griggs Date Senior Manager, POA Unit Criminal/POA Policy and Programs Branch Court Services Division 11 48 APPENDIX A: ELECTRONIC FORMAT FOR PLATE DENIAL REQUESTS Plate Denial Load Summary POA Part II (parking offences) plate denials are submitted by opted-in municipalities to the Ministry of Attorney General, DFCC (Defaulted Fines Control Centre). This specification outlines the layout of the input file and the format of the required fields on that file. File Layout Detail Record Layout - Plate Denial Load ID Field Name Type Field Description Comments D-01 Tran Identifier C 04 Identifies the transaction Value is "PD30" or "PD31" D-02 Administering N 04 Identifies the 4-digit court To be provided by the local Court. Court Office ID that is administering the This field is part of the ICON case Number case number. Mandatory, must be in ICON ICCRTOFC/ICCRTADR table. D-03 Sequence no N 04 Sequence number Always "9999" D-04 Batch date N 06 Batch number Format is YYMMDD D-05 Batch sequence N 05 Batch sequence number Always "09999" number 49 Detail Record Layout - Plate Denial Load ID 7Field Name Type Field Description Comments D-06 Case C 03 3 digit ICON code To be provided by the local Court Jurisdiction indicating jurisdiction This field is a component of the ICON ID. Mandatory, must be in ICON ICJURICD D-07 Case Filing C 02 Identifies the 2-digit year This field is a component of the ICON Year (YY) of when the Case is filed ID. D-08 Young Offender C 01 A value of "Y" indicates This field contains the first digit of the Indicator that offender is classified Ticket/Case number. as a Young Offender. Any This field is a component of the ICON other value indicates that ID. offender is classified as an adult. D-09 Ticket / Case C 07 Identifies the rest of Case For ticketed offences, the ticket number number ticket number would be the same as the ICON case number. This field is a component of the ICON ID. D-10 Case suffix C 03 Indicates co-accused Always "001" D-11 Driver, licence C 15 Driver licence number Optional D-12 Plate no C 10 Vehicle Plate number Mandatory D-13 Convicting N 04 Identifies the 47digit court To be provided by the local Court. Court Office ID that is administering the Mandatory, must be in ICON Number case ICCRTOFC/ICCRTADR table. D-14 Surname of C 35 Surname of the offender Mandatory, must be entered, no Accused leading spaces permitted D-15 First Name of C 12 First name of the offender Mandatory, must be,enter, unless Accused Gender Code is "C" (Company) or "U" (Unknown) D-16 Middle Initials of C 02 Middle initials of the Optional, must not be entered for a Accused offender company D-17 Address of C 25 Street address, consisting Mandatory Accused of street number, street Enter "AU" if unknown or "NFA' if no name, and apartment fixed address number, of the offender. 2 I 50 Detail Record Layout - Plate Denial Load ID Field Name Type Field Description Comments D-18 City of Accused C 25 City of the offender's Mandatory, can be blank only if Address address address is unknown or no fixed address D-19 Province of C 25 Province of the offender's Province required when Driver Licence Accused address or Vehicle Plate entered Address D-20 Postal Code of C 10 Postal code of the Optional Accused offender's address Address D-21 Accused Col Identifies the gender of the "M" - Male, "F" -Female, "C" - Gender Code accused. Company, "U" - Unknown D-22 Offence code C 09 Offence code Always "BLP" D-23 Offence Date N 06 Identifies the date of the Mandatory, must be entered offence in YYMMDD format. D-24 Birth Date of N 06 Identifies the birth date of Optional, can be spaces or zeroes, not Accused the accused in YYMMDD permitted for company format. D-25 Conviction date N 06 Format is YYMMDD D-26 Authorization N 06 Format is YYMMDD date D-27 Outstanding R 7,2 Identifies the amount of Fine Amount the fine that is outstanding in CDN$. D-28 Outstanding R 7,2 Identifies the amount of Cost Amount the cost that is outstanding in CDN$. D-29 Outstanding R 7,2 Identifies the amount of Always zeroes Fee Amount the fee that is outstanding in CDN$. D-30 Total amount R 7,2 Identifies the amount of Fine + Cost + Fees the total that is outstanding in CDN$. D-31 Disbursement id C 04 To be provided by the court D-32 Filler (Define in C 06 Blank space Default to spaces File Format Layout) 3 I 51 Trailer Record Layout - Plate Denial Load ID Field Name Type Field Description Comments TD-01 Tran Identifier C 04 Identifies the transaction Value is "PD98" or "PD99" TD-02 Tran court C 04 Transaction court office Always "9999" office TD-03 Sequence no N 04 Sequence number Always blank TD-04 Batch date N 06 Batch date Format is YYMMDD TD-05 Batch N 05 Batch sequence number Always "09999" sequence no TD-06 Filler C 37 Filler Always blank TD-07 Number of N 07 Total Number of transaction transactions TD-08 Tot fine R 7;2 Total fine amount amount TD-09 Tot cost R 7,2 Total cost amount amount TD-10 Fee amount R 7,2 Fee amount Always zeroes TD-11 Grand total R 7,2 Grand total amount Fine +Cost + Fee amount TD-12 Filler [Define C179 Blank space used or Default value to spaces. in File Format making the record Layout] confirm to a fixed length. Note: Use 50 to window means, If YY is from 50 to 99 year is 1950 to 1999 If YY is from 00 to 49 year is 2000 to 2049 4 APPENDIX B: REPORTS Name of Report Due By Annual Report For each calendar year, June 30 of the subsequent calendar year i Other Reports As required by the Ministry Report Details 1. Annual Report. The Annual Report shall set out, for the calendar year to which it relates, the: (a). number of defaulted fines for parking infractions; (b) value of all fine write-offs; (c) value of all uncollected fines; and (d) number of Plate Denials requested from DFCC. 2. Other Reports. The reports shall contain the details requested by the Ministry, and may include: (a) matters referred to the clerk of the Court for default conviction; (b) conviction information received from the clerk of the Court; (c) the number of parking fines collected over a specified period of time; or (d) the amount of money recovered for each fine, including the amount of any costs or fees. 1 i