Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-04-03

liability OF the city.
lie stated il was largely a question Of
fact, but II he could get the facts he
would give an opinion.
THE RESULT
Of that attempt to get facts is shown
N the communication he addressed TO
the city council az its next meeting.
To the Honorable Mayor and City
Council of the City of Fort Worth:
Gentlemen AT the last meeting Of
YOUR honorable body. held Feb Is. 1899,
the Following resolution was referred to
BE Il resolved That the city attorney
De requested to advise this council what
- the proper course TO be pursued hv
NE council IN pending settlement with
mcArthur Bros as 90 allowing any
part of the 10 per cent held back under
contract
(Sgned.)
NICKS. MES AND DRAKE.
This resolution could be answered In
q sentence, to-wit IL Is the duty of the
clty council TO carry out the letter and
~; SILL OF said contract which Is plain IN
Us PROVISIONS, so far as Its legal meaning
IS concerned
II is presumed that the city council
desires TO know its legal OBLIGATIONS TO
Macarthur Bros. under said contract. Ia
50 Tar as Il applies to the issues now
to. '''0'
The contract contains the following
payment clause. to-wit:
And the said party Of the first part
THE city of Fort WORTH in considera-
uQn OF the foregoing, hereby binds and
oDhgales itself TO pay said party of the
second part the said sums of money
herein before set out, as follows towif.
payments to be made monthly on month
~ estimates to be furnished by the SUI
perintendent or engineer In charge, who
shall be appointed by the party of the
nrst part on the amount pro ratio of
the entire work done, and material dis.
trlbutcd nc the time said estimates shall
DE allowed, with 10 per cent deducted
theretrom az the first meeting of the
city council Of the party of the first part
after each estimate Is made, aud said
10 per cent deducted MS aforesaid shall
not be paid until said work Is finally
commeted according to said plans and
specifications and proposals, and accepted
py the superintendent or engineer In
charge. All moneys then due for the
work hereinbefore set forth shall then be
paid.
My construction Of the above payment
clause rs that when the work Is done
according TO the plans and specihca-
tons II Is the duty Of the superintend-
ent or engineer Ia charge to receive and
accept II ami the council shall forthwith
pay all moneys due under the contract
There Is u clause IN the contract which
reads rs follows
II is further mutually understood ana
agreed that In the event any dispute
shall arise concerning the erection and
CONSTRUCTION OF the waterwOrks cOhtem-
plated or the material to be furnished.
or estimates under the same, the deci-
sion of the superintendent or engineer in
charge shall be final and conclusive.
With view of finding out the facts in
fafsNf 90. -.
had been done and completed according
TO the plans and specification, / address
ed the following questions to Captain
"A. w. ScOble, superintendent of the city
waterworks; w. H. HOwes, construc-
ton engineer under the contract; H. III.
Kerr, city engineer, and other questions
TO Il. ). tombstone, city auditor:
1. Has the work under the waterworbs
contract been completed by Macarthur
Bros, according to the plans and specih-
catiOnsg
2. How much Of the work has been
estimated by the city engineer and APP
proved 10y the city councill
q. How much work rcuains 70 be es-
timatedg
!. What work, II any have tho CON
tractors 70 perform under the contract?
.. Are the pipe lines ready for test?
q. Has test of the pipe line boon
madei If not, why not2
T. If you say no test has been made
of the pipe lines, what amount Of money
viii be sufficient to test the same, and
repair probable breaEages and leaks2
$. What delay, If any, ia, the work,
was. caused by the city, its agents or
employosi
o. Can the city use the new system.
built by Macarthur Bros; if not, why
not?
10 On what date were plans furnish
ed for the pump house, to the contract
IL. On what date was the pump house
ready for the erection of the engines
aisd when did The erection Of said engines
begihI
annexed and made part hereof.
The question referred to me incident
ally affects the penalty or forfeiture
clause in said contract.
The clause is set out in full In the
opinion, but diyested of legal yerbiago
themselves liable for damages in the
sum of $50 per day If the work is not
completed within one year from the
signiitg of the contract A clause also
provides that the contractors shall not
be liable for any delay beyond their
reasonable contract. q
Another clause provides for the for
fixture of 500 per day IL the pump
house aud engine foundations are not
ready for the erection Of the pumping
engines within seven months after the
plans for said house and foundations
are furnished, and another that guards
the contractors against any liabilities for
delays beyond their reasonable control.
The city attorney then reasons:
My construction Of the forfeiture clause
is 10 the effect that the clause inter
lined about exemption for delays be-
yond the reasonable control of the con-
tractorsj reduced the forfeiture clause
TO a penalty clause, depending wholly on
a question of facts as to the amount or
delay over and above that which wars
beyond the reasonable control of tho
parties of the scc0rd part and such de-
lay as may have been caused by the
city, 10 that extent the contractors would
be liable 20 the city of Fort Worth.
Ia the specifications Of the pipe line,
the contractors agreed that said pipe
line should stand q test Of a pressure of
12o pounds for twenty-fcur hours, but
learn from City Engineer Kerr, that
on acccountt of certain concessions made
TO the contractors, they, by letter 10 said
engineer agreed that 100 pounds should
be substituted for the 125 pounds.
The answers Of Engineer Kerr and
Construction Engineer Halves differ ma
teIially, as 70 what amount Of work has
been done and completed according 20 the
contract. In fact, the answers Of City
Engineer Kerr are So evasive and indef-
mite upon questions Of fact submitted to