THE CORPORATION OF THE MUNICIPALITY OF STRATHROY-CARADOC
BYLAW NO. 87-19
A BY-LAW TO AUTHORIZE THE EXECUTION OF A GENERAL SERVICE
AGREEMENT BETWEEN THE CORPORATION OF THE MUNICIPALITY OF
STRATHROY-CARADOC AND ALL SAINTS CATHOLIC CEMETERY BOARD.
WHEREAS Council deems it expedient to enter into a General Service Agreement
with All Saints Catholic Cemetery Board;
NOW THEREFORE BE IT ENACTED BY THE COUNCIL OF THE CORPORATION OF
THE MUNICIPALITY OF STRATHROY-CARADOC AS FOLLOWS:
1. THAT: the Mayor and the Clerk be authorized to execute on behalf of the
Corporation of the Municipality of Strathroy-Caradoc a General Service
Agreement with All Saints Catholic Cemetery Board; and
2. THAT: this By-law shall come into force and take effect upon the date of its final
passing in Open Council.
Read a FIRST, SECOND AND THIRD TIME AND FINALLY PASSED IN OPEN
COUNCIL this 18
th
day of November, 2019.
_________________________ ___________________________
Mayor Clerk
GENERAL SERVICE AGREEMENT
THIS AGREEMENT is dated for reference the ___day of November, 2019.
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF STRATHROY-CARADOC (the
“Municipality”) with the following specified address and fax number:
52 Frank Street, Strathroy, Ontario N7G 2R4
519 245 1105
519 245 6353
AND:
ALL SAINTS CATHOLIC CEMETERY BOARD, as represented by Diane Thuss (the
“Cemetery”) with the following specified address and fax number:
All Saints Parish, 124 Front Street E., Strathroy, Ontario N7G 1Y9
519 245 0644 Ph.
519 660 2921 Fax
The Cemetery wishes to retain the Municipality to provide the Services specified in Schedule C
and, in consideration for the remuneration set out in the Municipality’s most recent Schedule of
Fees By-law, the Municipality has agreed to provide those Services, on the terms and conditions
set out in this Agreement.
As a result, the Cemetery and the Municipality agree as follows:
1 DEFINITIONS
General
1.1 In this Agreement, unless the context otherwise requires:
(a) “Business Day” means a day, other than a Saturday or Sunday, on which Provincial
government offices are open for normal business in Ontario;
(b) “Services” means the services described in Schedule C;
(c) “Term” means the term of the Agreement described in Schedule A subject to that
term ending earlier in accordance with this Agreement.
Meaning of “record”
1.2 The definition of “record” in the Archives and Recordkeeping Act, 2006 is incorporated
into this Agreement and “records” will bear a corresponding meaning.
2 SERVICES
Provision of Services
2.1 The Municipality shall provide the Services in accordance with this Agreement.
Term
2.2 Regardless of the date of execution or delivery of this Agreement, the Municipality shall
provide the Services during the Term.
Supply of Various Items
2.3 Unless the parties otherwise agree in writing, the Municipality shall supply all labour,
materials, equipment, tools, facilities, approvals and licenses necessary or advisable to
perform the Municipality’s obligations under this Agreement.
Standard of Care
2.4 Unless otherwise specified in this Agreement, the Municipality must perform the Services
to a standard of care, skill and diligence maintained by persons providing, on a
commercial basis, services similar to the Services.
Standards in Relation to Persons Performing Services
2.5 The Municipality must ensure that all persons employed or retained to perform the
Services are qualified and competent to perform them and are properly trained.
Instructions by Cemetery
2.6 The Cemetery may from time to time give the Municipality reasonable instructions (in
writing or otherwise) as to the performance of the Services. The Municipality may
consider those instructions and the manner in which such instructions may be carried out.
Confirmation of Non-Written Instructions
2.7 If the Cemetery provides an instruction under section 2.6 other than in writing, the
Municipality may request that the instruction be confirmed by the Cemetery in writing,
which request the Cemetery must comply with as soon as it is reasonably practicable to
do so.
Effectiveness of Non-Written Instructions
2.8 Requesting written confirmation of an instruction under section 2.7 does not relieve the
Municipality from complying with the instruction at the time the instruction was given.
Applicable Laws
2.9 In the performance of the Municipality’s obligations under this Agreement, the Municipality
must comply with all applicable laws.
3 PAYMENT
Fees and Expenses
3.1 If the Municipality complies with this Agreement, then the Cemetery must pay to the
Municipality at the times and on the conditions set out in Schedule A:
(a) the fees described in the Municipality’s most recent Schedule of Fees By-law;
(b) the expenses, if any, described in that Schedule if they are supported, where
applicable, by proper receipts and, in the Municipality’s opinion, are necessarily
incurred by the Municipality in providing the Services;
(c) any applicable taxes payable by the Cemetery under law or agreement with the
relevant taxation authorities on the fees and expenses described in paragraphs (a)
and (b); and
(d) any additional fees, including labour and equipment, as referenced in Schedule
“C” and paragraph 5 of this Agreement.
Statements of Accounts
3.2 In order to obtain payment of any fees and expenses under this Agreement, the
Municipality must submit to the Cemetery a written statement of account in a form
satisfactory to the Cemetery upon completion of the Services.
Currency
3.5 Unless otherwise specified in this Agreement, all references to money are in Canadian
dollars.
4 REPRESENTATIONS AND WARRANTIES
4.1 As at the date this Agreement is executed and delivered by, or on behalf of, the parties,
the Municipality represents and warrants to the Cemetery as follows:
(a) except to the extent the Municipality has previously disclosed otherwise in writing to
the Cemetery,
(i) all information, statements, documents and reports furnished or submitted by
the Municipality to the Cemetery in connection with this Agreement are in all
material respects true and correct,
(ii) the Municipality has sufficient trained staff, facilities, materials, appropriate
equipment and approved subcontractual or other agreements in place and
available to enable the Municipality to fully perform the Services; and
(iii) the Municipality holds all permits, licenses, approvals and statutory
authorities issued by any government or government agency that are
necessary for the performance of the Municipality’s obligations under this
Agreement.
5 MAINTENANCE OF CEMETERY
5.1 The Cemetery shall insure that the lands comprising the Cemetery are well maintained
such that the Municipality may deliver the services in as efficient a manner as possible
contemplating the safety of the Municipality’s employees and equipment.
5.2 In the event the Municipality is required to undertake any work beyond the Services
described in Schedule “C”, the Municipality shall provide the Cemetery with an estimate
of the cost of the additional work at the hourly rate referenced in Schedule “C”. Any
additional equipment deemed necessary by the Municipality in order to deliver the Service
shall be invoiced separately.
5.3 The Cemetery acknowledges that its practices and policies with respect to landscaping
and grave embellishments may create difficulties for the Municipality to provide the
Services and that additional costs may be incurred by the Municipality in order to provide
the Services. The Cemetery shall be advised of any additional costs at the first opportunity
and such costs shall be invoiced to the Cemetery in the manner prescribed in this
Agreement.
6 INDEMNITY AND INSURANCE
Indemnity
6.1 The Municipality must indemnify and save harmless the Cemetery and the Cemetery’s
employees and agents from any loss, claim (including any claim of infringement of third-
party intellectual property rights), damage award, action, cause of action, cost or expense
that the Cemetery or any of the Cemetery’s employees or agents may sustain, incur,
suffer or be put to at any time, either before or after this Agreement ends, (each a “Loss”)
to the extent the Loss is directly or indirectly caused or contributed to by:
(a) any act or omission by the Municipality or by any of the Municipality’s agents,
employees, officers, directors or contractors in connection with this Agreement; or
(b) any representation or warranty of the Municipality being or becoming untrue or
incorrect.
Insurance
6.2 The Cemetery must comply with the Insurance Schedule attached as Schedule B.
7 FORCE MAJEURE
Definitions relating to force majeure
7.1 In this section and sections 10.2 and 10.3:
(a) “Event of Force Majeure” means one of the following events:
(i) a natural disaster, fire, flood, storm, epidemic or power failure,
(ii) a war (declared and undeclared), insurrection or act of terrorism or piracy,
(iii) a strike (including illegal work stoppage or slowdown) or lockout, or
(iv) a freight embargo
if the event prevents a party from performing the party’s obligations in accordance
with this Agreement and is beyond the reasonable control of that party; and
(b) “Affected Party” means a party prevented from performing the party’s obligations
in accordance with this Agreement by an Event of Force Majeure.
Consequence of Event of Force Majeure
7.2 An Affected Party is not liable to the other party for any failure or delay in the performance
of the Affected Party’s obligations under this Agreement resulting from an Event of Force
Majeure and any time periods for the performance of such obligations are automatically
extended for the duration of the Event of Force Majeure provided that the Affected Party
complies with the requirements of section 10.3.
Duties of Affected Party
7.3 An Affected Party must promptly notify the other party in writing upon the occurrence of
the Event of Force Majeure and make all reasonable efforts to prevent, control or limit the
effect of the Event of Force Majeure so as to resume compliance with the Affected Party’s
obligations under this Agreement as soon as possible.
8 DEFAULT AND TERMINATION
8.1 Either party may terminate this Agreement by providing at least 180 days’ notice.
Payment Consequences of Termination
8.2 Unless Schedule B otherwise provides, if the Cemetery terminates this Agreement under
Termination provisions herein:
(a) the Cemetery must, within 30 days of such termination, pay to the Municipality any
unpaid portion of the fees and expenses owing for the services described herein in
Schedule B which corresponds with the portion of the Services that was completed
to the Cemetery’s satisfaction before termination of this Agreement.
Discharge of Liability
8.3 The payment by the Cemetery of the amount described in section 11.5(a) discharges the
Cemetery from all liability to make payments to the Municipality under this Agreement for
the services rendered.
9 DISPUTE RESOLUTION
Dispute Resolution Process
9.1 In the event of any dispute between the parties arising out of or in connection with this
Agreement, the following dispute resolution process will apply unless the parties
otherwise agree in writing:
(a) the parties must initially attempt to resolve the dispute through collaborative
negotiation;
(b) if the dispute is not resolved through collaborative negotiation within 15 Business
Days of the dispute arising, the parties must then attempt to resolve the dispute
through mediation under the rules of the ADR Institute of Canada; and
(c) if the dispute is not resolved through mediation within 30 Business Days of the
commencement of mediation, the dispute must be referred to and finally resolved
by arbitration under the Arbitration Act, 1991, S.O. 1991, c. 17
Location of Arbitration or Mediation
9.2 Unless the parties otherwise agree in writing, an arbitration or mediation under section
9.1 will be held in Strathroy, Ontario.
Costs of Mediation or Arbitration
9.3 Unless the parties otherwise agree in writing or, in the case of an arbitration, the arbitrator
otherwise orders, the parties must share equally the costs of a mediation or arbitration
under section 9.1 other than those costs relating to the production of expert evidence or
representation by counsel.
10 MISCELLANEOUS
Delivery of Notices
10.1 Any notice contemplated by this Agreement, to be effective, must be in writing and
delivered as follows:
(a) by fax to the addressee's fax number specified in this Agreement, in which case it
will be deemed to be received on the day of transmittal unless transmitted after the
normal business hours of the addressee or on a day that is not a Business Day, in
which cases it will be deemed to be received on the next following Business Day;
(b) by hand to the addressee's address specified on the first page of this Agreement,
in which case it will be deemed to be received on the day of its delivery; or
(c) by prepaid post to the addressee's address specified on the first page of this
Agreement, in which case if mailed during any period when normal postal services
prevail, it will be deemed to be received on the fifth Business Day after its mailing.
Change of Address or Fax Number
10.2 Either party may from time to time give notice to the other party of a substitute address or
fax number, which from the date such notice is given will supersede for purposes of
section 10.1 any previous address or fax number specified for the party giving the notice.
Assignment
10.3 The Municipality may assign any of the Municipality’s rights or obligations under this
Agreement without the Cemetery’s prior written consent.
Subcontracting
10.4 The Municipality may subcontract any of the Municipality’s obligations under this
Agreement to any person without the Cemetery’s prior written consent.
Waiver
10.5 A waiver of any term or breach of this Agreement is effective only if it is in writing and
signed by, or on behalf of, the waiving party and is not a waiver of any other term or
breach.
Modifications
10.6 No modification of this Agreement is effective unless it is in writing and signed by, or on
behalf of, the parties.
Entire Agreement
10.7 This Agreement (including any modification of it) constitutes the entire agreement
between the parties as to performance of the Services.
Schedules
10.8 The schedules to this Agreement (including any appendices or other documents attached
to, or incorporated by reference into, those schedules) are part of this Agreement.
Independent Municipality
10.9 In relation to the performance of the Municipality’s obligations under this Agreement, the
Municipality is an independent Municipality and not:
(a) an employee or partner of the Cemetery; or
(b) an agent of the Cemetery except as may be expressly provided for in this
Agreement.
The Cemetery must not act or purport to act contrary to this section.
Personnel not to be Employees of Municipality
10.10 The Cemetery must not do anything that would result in personnel hired or used by the
Cemetery or in relation to providing the Services being considered employees of the
Municipality.
Pertinent Information
10.11 The Cemetery must make available to the Municipality all information in the Cemetery’s
possession which the Cemetery considers pertinent to the performance of the Services.
Conflicts Among Provisions
10.12 Conflicts among provisions of this Agreement will be resolved as follows:
(a) a provision in the body of this Agreement will prevail over any conflicting provision
in, attached to or incorporated by reference into a schedule, unless that conflicting
provision expressly states otherwise; and
(b) a provision in a schedule will prevail over any conflicting provision in a document
attached to or incorporated by reference into a schedule, unless the schedule
expressly states otherwise.
Agreement not Permit nor Fetter
10.13 This Agreement does not operate as a permit, license, approval or other statutory
authority which the Cemetery may be required to obtain from the Municipality or any other
agencies in order to receive the Services.
Remainder not Affected by Invalidity
10.14 If any provision of this Agreement or the application of it to any person or circumstance is
invalid or unenforceable to any extent, the remainder of this Agreement and the application
of such provision to any other person or circumstance will not be affected or impaired and
will be valid and enforceable to the extent permitted by law.
Further Assurances
10.15 Each party must perform the acts, execute and deliver the writings, and give the
assurances as may be reasonably necessary to give full effect to this Agreement.
Additional Terms
10.16 Any additional terms set out in the attached Schedule(s) apply to this Agreement.
Governing Law
10.17 This Agreement is governed by, and is to be interpreted and construed in accordance
with, the laws applicable in Ontario.
11 INTERPRETATION
11.1 In this Agreement:
(a) “includes” and “including” are not intended to be limiting;
(b) unless the context otherwise requires, references to sections by number are to
sections of this Agreement;
(c) the Municipality and the Cemetery are referred to as “the parties” and each of them
as a “party”;
(d) “attached” means attached to this Agreement when used in relation to a schedule;
(e) unless otherwise specified, a reference to a statute by name means the statute of
Ontario by that name, as amended or replaced from time to time;
(f) the headings have been inserted for convenience of reference only and are not
intended to describe, enlarge or restrict the scope or meaning of this Agreement
or any provision of it;
(g) “person” includes an individual, partnership, corporation or legal entity of any
nature; and
(h) unless the context otherwise requires, words expressed in the singular include the
plural and vice versa.
12 EXECUTION AND DELIVERY OF AGREEMENT
12.1 This Agreement may be entered into by a separate copy of this Agreement being
executed by, or on behalf of, each party and that executed copy being delivered to the
other party by a method provided for in section 13.1 or any other method agreed to by the
parties.
The parties have executed this Agreement as follows:
SIGNED on the _____ day of
_______________, 20__ by the
Municipality (or, if not an individual,
on its behalf by its authorized
signatory or signatories):
Signature(s)
Print Name(s)
Print Title(s)
SIGNED on the _____ day of
________________, 20__ on behalf
of the Cemetery by its duly
authorized representative:
Signature
Print Name
Print Title
Schedule A – Term and Payments
1. The Term of this Agreement commences on ________________ and ends on
_______________. This Agreement may be extended with the consent and at the
discretion of the parties.
2. Within 30 days of the Cemetery’s receipt of the Municipality’s written statement of
account delivered in accordance with this Schedule, the Cemetery must pay the
Municipality the fees and expenses (plus all applicable taxes) claimed in the
statement.
Schedule B – Insurance
1. The Cemetery shall maintain:
(a) Commercial General Liability insurance in an amount not less than $2,000,000.00
inclusive per occurrence against bodily injury, personal injury and property damage
and including liability assumed under this Agreement and this insurance must:
(i) include the Municipality as an additional insured,
(ii) be endorsed to provide the Municipality with 30 days’ advance written notice of
cancellation or material change.
Schedule C – Services
1. The services provided by the Municipality to the Cemetery shall be limited to the
following:
INTERMENTS
Burial in Earth
Traditional
Infants
Cremation/Urn
Each additional set of remains placed in same location at same time
Scattering of Ashes
Interment in Columbarium
First Interment in Niche
Second Interment in Niche
OTHER CHARGES
After-Hours: Saturday; Late Arrivals After 4:00 p.m.
Winter Surcharge
Labour @$70.00/hour per staff member required
2. The following services will be provided for the first twelve months of the Agreement
at a cost of $2800 to be adjusted annually:
a. Sunken graves repaired to a reasonable ground level appearance;
b. Minor vegetation removal where necessary to deliver the individual service(s)
contained in this schedule;
c. Post interment seeding and watering.
3. Where the services can not be provided in the usual way due to accumulation of
snow, landscaping, plantings, vegetation, risk of damage to other
monuments/monument landscaping or any other obstacle the Municipality will, at the
first opportunity, advise the Cemetery of the difficulty and the additional costs which
may be incurred before the Services can be provided.
