Memorandum of Understanding dated as of the 1st day of September, 2008
AMONG:
The
(“RHCOC”)
and
(“MBT”)
and
The
Corporation of the Town of
(“Town of
and
The
Corporation of the Town of
(“Town of
and
The
(the “Region”)
WHEREAS the parties to this Memorandum of Understanding
(the “MOU”) have a mutual interest in facilitating efficient transportation,
relieving traffic congestion and planning for transportation demand management
in Richmond Hill and Markham;
AND WHEREAS the parties wish to join together to perform the
functions of a transportation management association;
AND WHEREAS the parties have recognized the need for
cooperation with each other, with other transportation management associations
in the Greater Toronto Area (“GTA”) and other transportation agencies, such as,
The Greater Toronto Transportation Authority, operating as “Metrolinx”, as well
as other organizations and stakeholders that have a mutual interest in
facilitating efficient transportation, relieving traffic congestion and
planning for transportation management in the GTA;
AND WHEREAS the appropriate model for delivery of effective
transportation management services in Richmond Hill and Markham may change over
time and the parties hereto shall review this MOU and the model described
herein for delivering transportation management program services on an ongoing
basis;
AND WHEREAS RHCOC and MBT are the appropriate organizations to lead the
initiative to deliver transportation management programs on behalf of
THE PARTIES HERETO AGREE AS
FOLLOWS:
Purpose – Transportation
Management
1.
The purpose
of this MOU is to deliver a program with a mandate to promote and support
sustainable transportation solutions and to improve mobility and accessibility within
the geographic area of
2.
This
program is herein referred to as “Smart
Commute 404-7”. In implementing the
Smart Commute 404-7 program, RHCOC and MBT shall develop transportation demand
management solutions within the geographic area of
3.
Such
transportation demand management solutions may include programs involving
transit incentives, carpooling, vanpooling and ridematching, bicycling and
walking, flexible work hours or alternative work hours, telecommuting, parking
demand management, and subsidies, marketing, education and promotions, and
promotion of intelligent transportation systems, vehicle sharing, on-site
amenities or other solutions to facilitate effective transportation management.
4.
Smart
Commute 404-7 shall operate cooperatively with other transportation demand
management programs in the GTA such as, but not limited to partnerships with
other Smart Commute transportation management associations and Metrolinx.
5.
Smart
Commute 404-7 will work with municipal governments and other agencies to
explore opportunities to expand commuter options programs beyond the
business-based services to include community and school-based programs where
possible.
Roles and Responsibilities of the Parties
The
6.
Smart
Commute 404-7 shall be a joint program between RHCOC and MBT.
7.
RHCOC shall
promote and ensure the delivery of Smart Commute 404-7 programs within the
geographic area of
8.
Management of the Smart Commute 404-7 by RHCOC and MBT shall be
undertaken jointly through the offices of the Chief Executive Officer (“CEO”) of
both RHCOC and MBT, as may be delegated to the Manager of Smart Commute 404-7,
as provided in the Section of this MOU entitled “Staffing and Administration
Support”.
9.
The CEOs of
RHCOC and MBT shall ensure that the planning, financial and program reporting
obligations to the other parties set out in this MOU are met.
10.
The CEOs of
RHCOC and MBT shall ensure that the Manager develops a business plan that will
help move Smart Commute 404-7 towards self-sustainability within a reasonable
time period.
11.
The CEOs of
RHCOC and MBT or as they may delegate such responsibility to the Manager of Smart Commute 404-7 from time to time, shall be
the principal spokespersons for Smart Commute 404-7.
12.
RHCOC shall
indemnify and hold harmless MBT from any liability, claims, actions, applications
or lawsuits arising from RHCOC’s management of Smart Commute 404-7 programs in
the geographic area in and around
The Town of
13.
The Town of
14.
The Town of
15.
The Region
has committed $60,000 for 2008 to pay for transportation management services
provided by Smart Commute 404-7. Future
yearly financial commitments by the Region are subject to approval by the
Regional Council of The Regional Municipality of York.
16.
All monies provided
pursuant to paragraphs 13, 14 and 15 of this MOU shall be deposited to the
Smart Commute 404-7 bank account.
17.
Contributions
by the Town of
18.
All funding
provided hereunder by the Town of
19.
The Town of
Advisory Committee
20.
A Committee
shall be established to advise the CEOs in regard to the operation of Smart
Commute 404-7 (the “Committee”).
21.
The Committee shall
include, at least, the following individuals:
·
1
Councillor appointed by the Town of
·
1
Councillor appointed by the Town of
·
5 business
representatives to a maximum of 10 appointed jointly by mutual agreement
between RHCOC and MBT.
22.
The members
of the Committee are herein referred to as the “members”.
23.
The
Committee members shall elect from among them a member to serve as Chair of the
Committee and another member to serve as Vice-Chair. The Chair shall preside over all meetings of
the Committee. In the absence of the
Chair, the Vice-Chair shall preside over Committee meetings. In the absence of both the Chair and the
Vice-Chair, the CEO from either RHCOC or MBT will preside over the meeting.
24.
The Chair
will serve for a period of a maximum of 2 years, at which time the Vice-Chair
will become the Chair and a new Vice-Chair will be appointed by and from the
existing Committee members.
25.
Appointments
to the Committee may be made for a time duration determined by the party or
parties that made the appointment and may be rescinded by such party(ies) with
notice in writing to the other parties.
26.
Prior to
appointing a business representative to the Committee RHCOC and MBT shall seek
nominations from the business communities in the geographic areas of Richmond
Hill and Markham with a goal of achieving equal representation on the
Committee.
27.
A Committee
member shall cease to be a member if he or she provides written notice to the
Chair of the Committee that he or she resigns as a member of the Committee, or
he or she is absent for three consecutive meetings without giving notice.
28.
The
Committee members shall serve without remuneration and no member shall directly
or indirectly receive any profit from his or her position as such, provided
that a member may be paid reasonable expenses incurred by him or her in the
performance of his or her duties as a member.
A member is not precluded from serving Smart Commute 404-7 in any other
capacity and receiving compensation therein as long as the receipt of such
compensation is consistent with the conflict of interest policies of RHCOC and
MBT.
29.
Committee
members shall act in the best interests of Smart Commute 404-7. Every Committee member who is in any way,
whether directly or indirectly, interested in a contract or arrangement or
proposed contract of proposed arrangement with Smart Commute 404-7 shall
declare such interest in writing to the Chair.
The Committee shall then address any conflict of interest in a manner
consistent with the conflict of interest policies of RHCOC and MBT.
30.
Meetings of
the Committee shall take place at a frequency of no less than a maximum
intervals of every four months and determined by RHCOC and MBT. The meeting shall take place at any location
that is convenient for the Committee members.
A Committee member may participate in a Committee meeting by telephone,
email or other manner when attendance in person is not practical.
31.
The Chair
of the Committee shall provide advance notice of all Committee meetings to the
CEO’s at a minimum of one week’s notice.
The CEOs shall be entitled to attend all Committee meetings.
32.
The
Committee may create sub-committees as needed to further develop Smart Commute
404-7 programming initiatives. In this
respect the parties agree to establish a Technical Committee of municipal staff
comprising:
·
1
representative from Town of
·
1
representative from the Region
·
1
representative from Town of
Staffing and Administrative
Support
33.
RHCOC and
MBT may appoint in consultation with the funding partners the services of a
Manager to manage the delivery, implementation and daily operation of Smart
Commute 404-7. The Town of
34.
The Manager
shall report directly to the Chief Executive Officers of RHCOC and MBT.
35.
The CEOs of
both RHCOC and MBT may appoint the services of an Assistant Manager to support
the Manager in the daily operation of Smart Commute 404-7 and to deliver the
Smart Commute programs to the business community. The Assistant Manager shall be selected by
the CEOs of both RHCOC and MBT in cooperation with the Manager of Smart Commute
404-7 and will report to the Manager of Smart Commute 404-7.
36.
RHCOC and MBT may also
retain the services of a Commuter Options Advisor. The Commuter Options Advisor shall focus his
or her efforts on transportation management programs in both the
37.
The
Commuter Options Advisor shall report to the Manager. The decision to retain the services of
Commuter Options Advisor shall be made by the CEOs of both RHCOC and MBT in cooperation
with the Manager of Smart Commute 404-7.
38.
Administrative
support may also be required for Smart Commute 404-7. The need for administrative support services
shall be determined by the CEOs of both RHCOC and MBT in cooperation with the
Manager of Smart Commute 404-7.
39.
Notwithstanding
the foregoing, no hiring or termination of employees shall be done except by
the CEOs of both the MBT and RHCOC. For greater certainty, the Manager may not
make any staffing changes whatsoever without the consent of the CEOs of both
the MBT and RHCOC.
Financial Management and Program
Reporting Structure
40.
The parties
hereto wish to have full transparency with respect to the operations, books and
records associated with the operation of Smart Commute 404-7. RHCOC and MBT, through the Manager shall maintain books and records that report on the
operation of Smart Commute 404-7 separately from other operations of RHCOC and
MBT.
41.
The CEOs of
both RHCOC and MBT shall ensure that the Manager prepares monthly and annual
financial statements for Smart Commute 404-7.
42.
RHCOC and
MBT shall cause an audit of the financial statements of Smart Commute 404-7 to
be conducted annually by an independent chartered accountant within 6 months of
December 31st, being the fiscal year end of Smart Commute 404-7. The audit and all financial activities are
available for review by the funding partners within 30 days after a written
request, and will include a statement from the Chartered Accountant.
43.
RHCOC and
MBT shall establish and maintain separate banking facilities through which
banking and financial transactions related to Smart Commute 404-7 shall be
conducted. Funding allocated to Smart
Commute 404-7 shall not be co-mingled in any bank accounts not maintained
exclusively for and by Smart Commute 404-7.
RHCOC and MBT may each establish and maintain a separate banking
facility for this purpose.
44.
Two (2)
signing officers as appointed by RHCOC and MBT shall be required on cheques and
other financial instruments issued by RHCOC and MBT, with respect to Smart
Commute 404-7 provided that at least one (1) signature shall be that of the CEO
of RHCOC or the CEO of MBT. The CEO of
RHCOC may not sign a cheque or financial instrument payable to RHCOC. The CEO of MBT may not sign a cheque or
financial instrument payable to MBT.
45.
The RHCOC
and MBT parties hereto may charge staffing costs, administrative and office
expenses, overhead allocation and other charges related to the operation of
Smart Commute 404-7 on a frequency and at such amounts as the parties hereto
agree and as identified in the yearly budget.
The parties shall undertake best efforts to develop effective and
reasonable cost sharing plans and agreements as needed.
46.
RHCOC or
MBT shall be authorized to enter into a contract with respect to Smart Commute
404-7 of up to $1,500.00, and either CEO or his delegate is hereby authorized
to execute the contract. Any contract
with a financial commitment in excess of $1,500 in respect of Smart Commute
404-7 shall not be entered into without prior approval of the CEOs of both
RHCOC and MBT (which CEO or his delegate shall both execute same) unless so
provided in the yearly approved budget.
47.
Operating
expenses do not require further approvals if identified in the yearly budget
and purchased in accordance with the Smart Commute 404-7 Procedure for Request
for Proposal/Quotation – RFP/RFQ and identified in the yearly budget.
48.
The CEOs of
both RHCOC and MBT shall cause the Manager of Smart Commute 404-7 in
conjunction with the CEOs, to prepare an annual business plan and draft budget
for Smart Commute 404-7. Input from the
participating municipalities and the Advisory Committee shall be obtained, and
the annual business plan and budget will require the final endorsement from each
participating local municipality’s Council and each of RHCOC and MBT.
49.
After
approval by RHCOC and MBT, the annual business plan shall be presented to the
Town of
50.
A Strategic
Plan in addition to an annual Business Plan will be undertaken (as needed) and will
provide medium to long-term strategic directions. This Strategic Plan should be aligned with new
terms of Council, when possible.
51.
The annual
business plan shall include the following elements:
·
An
executive summary
·
Smart Commute
404-7 overview
·
Organization
chart, showing Smart Commute 404-7 stakeholders, governance structure, staff
and roles, responsibilities and relationships among them
·
Program
plan, describing the programs to be undertaken by Smart Commute 404-7 and
execution.
·
Key
performance indicators consistent with other GTA Smart Commute programs will be
identified.
·
Communications
and marketing plans, describing information flows and program support to Smart
Commute 404-7 stakeholders.
·
Financial
plan, including budgets, financial statements and description of plans to
achieve and manage budgets
·
Schedule,
showing program, communications, financial and administrative milestones
·
Update
status on current programs and effectiveness.
Reporting
to Other Parties
52.
The CEOs or
their respective delegates shall participate and provide input and advice to
Smart Commute 404-7 as required.
53.
RHCOC and
MBT shall provide, through the Manager of Smart Commute 404-7, information on
the progress and performance of the Smart Commute 404-7 programs and services
in accordance with the reporting process of Metrolinx or other funding
partners, as requested.
Proprietary
Information
54.
Operation
of Smart Commute 404-7 may require the sharing of proprietary information
between the parties or stakeholders from time to time. Proprietary information is defined as
information that an affected party or stakeholder claims to be
confidential. Proprietary information
disclosed by one party to the other in writing must be clearly defined and
marked as such. The parties agree to
keep proprietary information confidential unless written permission to the
contrary is obtained from the affected party or stakeholder.
Amendment
and Termination of Memorandum of Understanding
55.
This MOU
shall be effective when signed by the parties hereto. This MOU may be amended or rescinded by
mutual agreement between the parties.
The parties shall review this MOU annually to determine whether it
should be revised, continued or terminated.
56.
Any party
to this MOU may terminate its obligations under this MOU upon ninety (90) days’
written notice to the other parties.
57.
In the
event that any party hereto terminates its obligations under this MOU, the
remaining parties shall meet as soon as possible to determine whether to
thereafter wind up the Smart Commute 404-7 program. Notwithstanding any termination, a party
shall be committed to providing its funding contribution for that calendar
year. Any winding up of the Smart
Commute 404-7 program will be subject to outstanding contractual obligations
and any liabilities for which RHCOC and MBT shall be jointly and severally
liable.
58.
Upon
termination of this agreement any assets of the Smart Commute 404-7 program
will remain with the local municipalities to be dispersed at their discretion.
Dispute
Resolution
59.
If any
party hereto has a dispute related to this MOU or Smart Commute 404-7, the
party shall give written notice to the other parties and to the CEOs of RHCOC
and MBT specifying the nature of the dispute, the relief sought and the basis
for the relief sought. Within fourteen
(14) days of receipt of the notice of the dispute, the parties to the dispute,
in conjunction with any other party that wishes to participate must attempt, in
good faith, to resolve the dispute.
60.
If the
dispute is not resolved within fourteen (14) days, or within such further
period as the parties mutually agree to, then the dispute shall be referred to
an independent mediator who shall assist the parties in resolving the
dispute. The mediation shall be
conducted in accordance with the procedures as agreed to by the parties and the
mediator. Failing consensus, the
mediation shall be conducted in accordance with the procedures as set out by
the mediator. All costs associated with
the mediation are, unless otherwise agreed, to be shared equally between the
parties to the dispute.
General
61.
Nothing in
this MOU shall be construed as authorizing any one of the parties to contract
for or incur any obligation on behalf of or to act as agent for one or more of
the other parties. Nothing in this MOU
shall be construed as establishing a joint venture, partnership or agency
relationship between any of the parties.
62.
The parties
agree to execute and deliver such further documents and assurances or do such
other things as reasonably may be required from time to time by one or more of
the parties to give effect to this MOU.
The parties agree to work together in a spirit of co-operation to
achieve the purpose of this MOU.
THIS MEMORANDUM OF UNDERSTANDING is entered into as of the 1st
day of September, 2008.
The
Per: _______________________________
Leslie
Walker
Chief
Executive Officer
Per: _______________________________
Richard
Cunningham
President
& Chief Executive Officer
The Corporation of the Town of
Per: _______________________________
Dave
Barrow
Mayor
Per: _______________________________
Donna McLarty
Town Clerk
The Corporation of the Town of
Per: _______________________________
Frank Scarpitti
Mayor
Per: _______________________________
Clerk
The
Per: _______________________________
Bryan
Tuckey
Commissioner
of Planning and Development Services