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This agreement shall inure to the benefit of and be binding upon the legal representatives and successors of the parties respectively.
In Witness Whereof, the parties hereto have executed this agreement in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . the day and year first above written.
WITNESS : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
This conclusion of the Contract is somewhat different in form from that used in other Contracts, but it seems complete and effective.
In the case of one public Board, nothing is said about successors of the Board, but this provision is made:
A. This agreement shall be binding upon the heirs and legal representatives of the said Contractor.
As the Contractor may be a corporation without heirs, the Uniform Contract Form reading, “legal representatives and successors,” seems more appropriate.
The reference to successors is often placed at the beginning of the contract in this clause:
B. Witnesseth, That the parties to these presents, each in consideration of the covenants and agreements on the part of the other, herein contained, do hereby covenant and agree, the party of the first part for itself, and the party of the second part for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and . . . . . . . . . . . . . . . . . . . . heirs, executors and administrators, successors and assigns, as follows:
The following concluding clause sufficiently explains itself:
C. In Witness Whereof, this contract has been executed for The City of New York by the Public Service Commission for the First District under and by virtue of a resolution duly adopted by the Commission and the seal of the Commission has been hereto affixed and attested by its Secretary and these presents have been signed by its Chairman; and the Contractor * has (hereunto Set . . . . . . . . hand . . . and seal . . .) . . . (caused . . . corporate seal to be hereto affixed and these presents to be executed by proper officers) the day and year first above written.
THE CITY OF NEW YORK
By the PUBLIC SERVICE COMMISSION FOR THE FIRST DISTRICT By. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chairman Attest . . . . . . . . . . . . . . . . Secretary
* If the Contractor be an individual, use the words inclosed in the first bracket; if a corporation, use the words inclosed in the second bracket.
Sometimes the concluding clause refers to duplicate or other additional Contracts. The following forms are examples :
D. In Witness Whereof, the Sewerage Commission of .... has hereunto set its hand and seal and the Contractor has also set his or their hands and seals; and the Commission and the Contractor have executed this agreement in duplicate, one part to remain with the Commission and the other to be delivered to the Contractor, the .....
day of ....
in the year one thousand nine hundred and
E. In Witness Whereof, the said parties of the first part have hereunto, and to three other original agreements of like tenor and date, set their Corporate Seal, and have caused the same to be signed by a majority of the said Commissioners, and the party of the second part have hereunto, and the three other original agreements of like tenor and date, set their hands and seals, the day and year first above written.
The third copy is commonly deposited with the Auditor; a fourth is unusual. All being originals, either one is competent evidence.
A rather unusual clause is this:
F. In Witness Whereof, the said parties have hereunto set their hands and seals, the Commonwealth executing these presents by its said Board (naming them) who incur no personal liability by reason of the execution hereof or anything herein contained, on this
day of ....
Specifying exemption from liability is probably unnecessary.
The following includes certificates of City Officers, to be signed before the Director signs the Contract on behalf of the City. These formalities may be required by law, or may be only a requirement by the Director.
G. In Witness Whereof, the parties to this agreement have hereunto set their hands and seals.
Dated the day and year first herein written.
In addition to the clauses found in the Uniform Contract Form, treated at length in the preceding chapter, there are others, some important and others interesting and suggestive, which Engineers may desire to use. For convenience of reference these additional clauses will be arranged in classes with section numbers and letters beginning with Section 50.
50. The Contractor shall keep himself fully informed of all existing or future State and federal laws, and of all municipal ordinances, prohibitions, rules and regulations in any manner affecting the conduct of the work, and of all orders or decrees of any body or tribunal having any jurisdiction or authority over the materials, times, places and actions of those employed in the work embraced in this contract. If any discrepancy or inconsistency is discovered in the plans, drawings or specifications or contract for this work in relation to any such act, ordinance, prohibition, rule, regulation, order or decree, he shall forthwith report the same to the Engineer in writing. The Contractor shall at all times observe and comply with, and shall cause all his agents and employees to comply with all said existing and future acts, ordinances, prohibitions, rules, regulations, orders, and decrees; and shall protect and indemnify the City, the Commission, the Engineer, and their employees against any and all claims arising from or based on any violation of such acts, ordinances, prohibitions, rules, regulations, orders or decrees, and against all violations of law by the Contractor or his agents or employees. He shall also procure and pay for all licenses or permits required in the prosecution of any part of the work embraced in this contract.
It is doubtful whether this clause is in any way essential, although it is not uncommon. The Contractor, irrespective of this, is required to know the law and to observe it. The provision in Section 15 that the Contractor shall indemnify the railroad or the City seems sufficient. Nevertheless this clause does call special attention to this particular matter. Another reading is:
A. In all the operations connected with the work herein specified, all city or town ordinances, and all laws controlling or limiting in any way the actions of those engaged on the works, or affecting the materials applied to them, must be respected and strictly complied with ; and no work, except in case of necessity, of which the Engineer shall be the judge, shall be carried out on Sunday.
The reference to Sunday is rather unusual. Requiring the judgment of the Engineer as to necessity has some value, but it should be understood that the judgment of the Engineer may not be sustained by the court if an arrest be made or an injunction asked for, although the Contractor is bound by it. The Engineer has no power to override the law. Other readings are these:
B. In all operations connected with the Work, all ordinances of the City, and of the Board of Health, so far as they may be valid and operative with respect thereto, and all laws of this State which are now applicable to and control or limit in any way the actions of those engaged in the work or affecting the materials belonging to them, shall be respected and strictly complied with, and the Contractor shall further strictly comply with all applicable Federal, State and Municipal regulations regarding the transportation in and around the City and Harbor, of materials used in, or in connection with the work.
C. The said Contractor hereby agrees to carry on all the work provided for in this contract in strict conformity with the requirements of the law under which The Sanitary District of Chicago is organized, entitled, “An Act to create Sanitary Districts and to Remove Obstructions from the Desplaines and Illinois Rivers,” approved May 29, 1889, in force July 1, 1889, and all amendments thereto.
Some States have statute requirements that certain clauses relating to labor shall be included in all State, and in certain municipal Contracts, under a penalty for not writing them into the Contract. The Commissioner, or the City Engineer, or Chief Engineer must know these laws.
The following provision results in whole or in part from the requirements of the statutes in Massachusetts:
51. In the employment of mechanics and laborers on the work to be done under this contract preference shall be given to citizens of the Commonwealth, and, if they cannot be had in sufficient numbers, then to citizens of the United States (Chapter 311 of the Acts of 1904). No employee shall be required to lodge, board or trade at a particular place or with a particular person. (Revised Laws, chapter 106, section 13.) No laborer, workman or mechanic in the employ of the Contractor, sub-contractor or other person doing or contracting to do the whole or any part of the work contemplated or included in this contract shall be required to work more than eight hours in any one calendarday. (Chapter 517 of the Acts of 1906.) *
A. Local Labor: Local labor shall be employed upon this work in so far as may be possible, and shall be given preference over all other labor.
B. Said Contractors further covenant and agree that no laborer, workman or mechanic working within this Commonwealth in the employ of said Contractor, a sub-contractor, or other person, doing or contracting to do the whole or a part of the work contemplated by this contract shall be requested or required to work more than eight hours in any one calendar day.
A similar provision from another State reads:
C. The Contractor agrees to comply with the provisions of the Labor Law, including Section Three thereof as re-enacted by Chapter 36 of the Laws of 1909, The Contractor further agrees and stipulates that no laborer, workman or mechanic in the employ of the Contractor, sub-contractor or other person doing or contracting to do the whole or a part of the work contemplated by this contract, shall be permitted or required to work more than eight hours in any one calendar day, except in cases of extraordinary emergency caused by fire, flood or danger to life or property; and further that the wages to be paid for a legal day's work as hereinbefore defined to all classes of such laborers, workmen or mechanics upon the work contemplated by this contract or upon any material to be used upon or in connection therewith, shall not be less than the prevailing rate for a day's work in the same trade or occupation in the Borough of the City where the work hereby contemplated, about or in connection with which such labor is performed, is in its final or completed form to be situated, erected or used; and that each such laborer, workman or mechanic employed by the Contractor or by any sub-contractor or other person on, about or upon the work contemplated by this contract, shall receive such wages herein provided for. This contract shall be void and of no effect, unless the Contractor shall comply with the provisions of this section. In obedience to the requirements of Section Fourteen of the Labor Law it is further provided that if the provisions of the said Section Fourteen are not complied with, this contract shall be void.
Apparently there is no penalty on the Contractor except that the Contract becomes void. Will the courts construe this literally, and simply declare the Contract void in case of a losing Contract, where the Contractor purposely violates this Contract provision? Any citizen would probably have a right to bring the action to have the Contract declared void, and the citizen might be a good friend of the Contractor. The provision should be, in form, that a failure to observe these requirements should constitute a breach of Contract.
D. Said Contractor or his agents or employees shall not, directly or indirectly, make it the condition of the employment of any person that he shall lodge, board or trade at any particular place or with any particular person; but every employee on the work to be done under this contract shall have full liberty to lodge, board and trade wheresoever and with whomsoever he may choose.
E. The Contractor shall punctually pay his employees who shall be engaged on the work covered by this contract, in cash and not in scrip, commonly known as store money orders, and he shall not directly or indirectly conduct or carry on what is commonly known as a company store if there shall at the time be any store selling supplies within two miles of the place where this contract is being executed.
52. It is the intent and understanding of the parties to this contract that each and every provision of law required to be inserted in this contract should be and is inserted herein. Furthermore, it is hereby stipulated that every such provision is to be deemed to be inserted herein; and if, through mistake or otherwise, any