The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1901-11-30
WATER CONTRACT
Corporation Counsel McDer-
mott Sends a Letter
to the Street and
Water Board.
FIVE QUESTIONS ANSWERED
Power Vested In the City
for Award of a New
Con tract.
ADVISE AGAINST FORFEITURE
Jersey City Not Bound to Com
plete the Present Con-
tract If Mr.. Flynn Is
Told to Stop.

CORPORATION Counsel Allan L. McDer-
mott sent to the Street and Water Board
this morning his answers to the five
questions which the Commissioners asked
him concerning Patrick H. Flynn's con-
tract for new water supply. This Is
his reply
November 2s, 1901
To the Honorable the Board of Street and
Water Commissioners
Gentlemen-Your resolution, approved
by his Honor the Mayor on November
s. asks my opinion upon five ques-
tions concerning the contract heretofore
made with Patrick H. Flynn for a new
water supply for Jersey City, as follows:
'-First-As to the legal liability of the
city to complete and pay for the said
work in case of default by the contrac-
tor.
The following section of the specifica-
tions Incorporated in the contract gov
erns the rights of the parties:-
ABANDONMENT OF CONTRACT.
IF the engineer shall certify that the
contractor has abandoned the work to
be done under the contract, or that the
work is being unnecessarily or unreason-
ably delayed. or that the contractor is
wilfully violating any of the terms. cove
nants and agreements of the contract, or
is not executing this contract in good
faith, or is not making such progress as
to Indicate its completion within the re-
ouired time. then the Board of Street and
Water Commissioners shall have the
power and right to notify the contractor
TO discontinue all work or any part
thereof under this contract, gand upon
such notification said contractor shall
discontinue said work or such parts there
of as said Board may designate; and said
Board shall thereupon have the power
to relet the work or any part thereof,
and to complete the same at the cost
and expense of the contractor and the
expense SO charged shall be deducted and
paid by said Board out of such money as
may be due or become due at any time
thereafter to said contractor under this
contract or any part thereof. In case
such expense is less than the sum which
would have been payable under this con-
tract if the same had been completed by
said contractor. it is agreed that said
contractor shall be entitled to receive the
difference; and in case such expense shall
exceed the sum which would have been
payable under this contract if the same
had been completed by said contractor,
then said contractor shall pay the amount
of such<excess to said city on notice from
said Board of the excess so due"
The procedure here indicated is plain.
Action can be taken by your Board only
upon the certificate of the engineer. That
officers statements. made from time TO
time, show that the contractor has not, in
the legal meaning of the words. 'aban
doned the work to be done under the
contract and procedure under this term
could not at present be successfully taken
If opposed by the contractor. Ii the engi-
neer shall certify to certain other matters
recited as ground upon which the con-
tractor may be ordered to discontinue
work. your Board may make such order
In determining upon this course, you must
consider the fact that, since the original
contract was signed, it has been amended,
under authority given by the Legislature,
to avoid certain claims made by the
Morris Canal ard Banking Company.
which if well founded, made the original
contract impossible of completion; and
which, If insupportable, as beieve they
were and are nevertheless furnished
ground for years of litigation. The act
authorizing the modification of the coh-
tract was approved March %, 1901. and the
amended contract was approved by his
Honor. the Mayor, on the eighth day oil
July last The act was passed and the
amendment made in response to repre-
sentations Of the contractor that ne was
unable to obtain funds to proceed with
the work while the claim of the Morris
Canal and Banking Company was unset
tied On the day the supplemental con-
tract was made, the engineer had not
made any of the certificates mentioned in
the quoted section of the contract, and,
IN the absence of such certificate, be-
lieve that the contractor would be held
entitled, in both law and equity, to be
considered as having proceeded, to the
eighth day of July last, in accordance
wifi, the terms of his contract TO such an
extent as would bar forfeiture upon the
ground of unnecessary or unreasonable
delay The certificate of the engineer
should therefore be based upon facts as
certained after that date. One OF the
grounds of forfeiture mentioned Is the
..nof making such progress as TO Indicate
the completion within the required time.
Before proceeding upon this ground, your
Board must take into consideration TIE
progress made in the work 10 the cate OF
the SUPPLEMENTAL contract, and decide tnat
completion within the required time was
on that date. possible. Bearing upon TINS
point. you have the fact that at severa-
meetings attended by all the city officials
empowered in the premises, the contractor
has stated. through his counsel or othe-
representative, that the work could not
be completed to the point of delivering
water until late in 1902; these representa-
4lons having been made in the presence
OF The engineer were not dissented frohi
by him nor made the ground Of any GER
fificate mentioned IN the section, and do
nor believe thar forfeiture Could be