The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1901-11-30

since the making OF tne cohtiaSe, S'
advise against forfeiture upon the srouno
that the progress being made did not m
oicate completion within the stipulatea
time. unless there was found to De gross
breach of faith upon the part nt the con
tractor, because, first, the contract CON
templates the possibility of decays, AMI
provides a penalty of five hundred dollars
a day therefor, the total OF whlch PEN
atty may be deducted from the price 20
be paid to the contractor; second, because
the courts would not look with favor upon
such a proceeding; third, because le
would probably be impossible to find
work of the kind and magnitude OF the
one under consideration that was COM
pieted within the time specified in the
contract. In eliminating two OF the nam
ed grounds of forfeiture and restricting
the scope of the others, have not reach
ed conclusions which are, to my mind, pc
vond a doubt; but consider it the part OF
prudence to so advise you that If you de-
,ermine TO take action in the premises
you may proceed upon grounds winch VIII
not involve the city in protracted htiga-
ton
If since the date of the supplemental
contract. the contractor has, in the opln-
himself within the other grounds OF for-
feiture the power is given to your en-
gineer to certify that the contractor is
wilfully violating any of the terms, COW
enants and agreements of the contract,
or is not executing the contract in good
faith" or that said work is being un-
necessarily or unreasonably delayed"
Your action must be based upon such
70 Tr111C
the~ result of his professional Judgment,
uninfiuenced by the direction of either
party to the contract. If it is made, you
can proceed under the quoted section-
You should, as a matter OF precaulioh,
first give hearing to the contractor. anu
then determine whether the city Will pro-
ceed to award another contract Tor the
completion of the work. You may do TINS
or you may give the contractor notlce
that you viii take this course if the work
is not proceeded with to the satisfaction
of your Board
If your final judgment shall be TO
award a new contract, the quoted specl-
fication provides you with power to re-
let the contract" In doing this, you
must proceed in all things as If the. con-
tract was an original one, advertising for
bids taking bonds for faithful perform
ance &c. Such a contract would have
TO receive the concurrence of the Boaro
of Finance and the approval OF tne
Mayor In this case, as in the orlginal
contract, your Board and the Board OF
Finance really act only in an advisory
capacity to the Mayor. The law gives
him the absolute power of veto. There
is one exception to the course here m
dicated. If at the time the contractor
is directed to cease work, it should be
found that the contract is impossible OF
performance, the city would not be bound
to attempt the completion of It,
Your second question Isl
..Second-The effect of mortgage upon
the ownership of works when completed,
if the works are completed by the city
as a result of such default"
The works can be completed only
through contract providing that they
shall be accepted by the city only after
they have been thoroughly tested. The
citv cannot complete the works, and this
contract was Intentionally SO drawn that
tbe city of Jersey City cannot pay dol
lar for water until it is delivered, nor
dollar on account of the plant until II mas
been thoroughly tested and accepted.
This was my understanding OF lis terms
when I indorrsed approval of its FORM
and a restudy of it convices me that there
is not any loophole for escape from TINS
proposition The contractor must denver
the plant free and clear of all mortgages
or other liens. The lien of any mortgage
made by the present contractor anu
covering the, plant as constructed at the
time of forfeiture would be easily settieo'
in case of dispute, by the Court of Chan
Gerry. in a way to avoid difficulty IN the
completion of the second contract.
ssFour-If, through inability to complete
the water works by the time stipulated
fhe contractor shall endeavor to provloe
in the interim supply of water derived
from source other than that contracted
for. will the city be compelled to accept
and nay for some on million gallon
basis. or does the power remain with the
civ to demand and enforce the entering
into Of new agreement for payment
therefor?"
The contract does not provide for any
.nnply of water except from the source
and works contracted for. If any con-
tract of any kind suggested in this in
QulrY Is enltTeu iItos 1lo ec1AA4@
wholly within the direction of the eity's
officers.
Your third and fourth questions are as
follows, and as they involve the Same
legal point, will be considered together:-
"Third-The East Jersey Water Com
many having served notice on the city
that. in october, 1902, said company
would cease to supply the city with water
under the present temporary contract,
what recourse, if any, beyond the Hqui-
dated damage of five hundred dollars per
day. for non-completion, could be had
against the contractor now engaged IN
building the new water works."
Fifth-The city. when the contract was
awarded. averaged a daily consumption
of thitrv million gallons, and having fore
seen four per cent annual increase in said
consumption, and the contract providing
for an initial capacity Of fifty million gal
Ions daily, whereby the city chad the con-
tract been completed on time) would have
had surplus of from fifteen to eighteen
million gallons daily in excess of its PROB
able requirements, would the city, during
the entire period of delay and until the
said works have been completed, have
the legal and equitable right to insist that
for over and above a fair approximate
gallonage (based on the figures above
quoted and on time fixed in contract for
the completion of the works. any further