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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 calendar day. (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 enı ployment 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 such provision is not inserted or is not inserted in correct form, then the contract shall forthwith, upon the application of either party, be amended by such insertion so as to comply strictly with the law, and without prejudice to the rights of either party hereunder.
A. If this contract contains any unlawful provision not an essential part of the general structure of the contract and which shall not appear to have been a controlling or very material inducement to the making thereof, the same shall be deemed of no effect, and shall upon the application of either party, be stricken from the contract without affecting the binding force of the contract as it shall remain after omitting such provision.
The last provision is quite unusual, but is abundantly safe. Probably unlawful provisions are seldom included in Contracts of this sort.
Along the lines of Workmen's Compensation Acts, insurance against accidents to employees becomes important and in some States appears to be compulsory. The following provisions are in point:
53. The Contractor further agrees to insure to his employes or their beneficiaries the necessary first aid, medical, surgical and hospital services, and the compensation provided for in the Act of the General Assembly of the State of Illinois, entitled “An Act to promote the general welfare of the people of this state by providing compensation for accidental injuries or death suffered in the course of employment within this state; providing for the enforcement and administering thereof, and a penalty for its violation, and repealing an Act entitled 'An Act to promote the general welfare of the people of this state by providing compensation for accidental injuries or death suffered in the course of employment,' approved June 10, 1911, in force May 1, 1912,” approved June 28, 1913, in force July 1, 1913, as amended by an Act of the General Assembly of the State of Illinois, in force July 1, 1915, and further agrees to indemnify, keep and save harmless said Sanitary District from all claims, judgments, awards and costs which may in any wise come against said Sanitary District by reason of any accidental injuries or deaths suffered by any of his employes in and about the performance of this contract.
A. The Contractor agrees to take out and maintain, at his own expense, insurance against damages arising from injury to his employees in accordance with Chapter 751 of the Acts of 1911 and any amendments thereof and to comply with all the requirements thereof.
B. The Contractor agrees to take out and maintain, at his own expense, insurance against accidents, in companies in good standing in Massachusetts, for a sum satisfactory to the Commission, to be held and applied, in case of loss, in payment or satisfaction of all claims and suits for or on account of any injuries or damage to person or property received or sustained by any person or persons upon or in consequence of or in connection with the work embraced in this contract, and to furnish satisfactory evidence to the Commission, whenever requested, that the said amount of accident insurance is in force.
Among laws to be observed are patent laws, and the following clause is sometimes introduced, although Section 15 of the preceding chapter seems to make this quite unnecessary :
54. The Contractor shall hold himself responsible for any claims made against the City for any infringement of patents by the use of patented articles in the construction and completion of the work, or any process connected with the work agreed to be performed under this contract or of any materials used upon the said work, and shall indemnify and save harmless the City for all costs, expenses and damages which the City shall be obliged to pay by reason of any infringement of patents used in the construction and completion of the work.
If a specific article is required by the City, and the claim or suit is due to such requirement, the Contractor ought not to be held liable for infringement of patents. He should have competent legal advice before signing a Contract with this clause included, if he has reason to believe infringement of patents is involved.
Somewhat along the lines of precaution and safety are provisions for sanitary conveniences. The Uniform Contract Form for railroad construction may not need such provisions. In settled communities something of the sort appears necessary. The following clauses have been in use :
55. Suitable and satisfactory buildings shall be provided by the Contractor for the housing, feeding and sanitary necessities of the men, and suitable stabling for the animals employed upon the work. Such buildings shall be located at approved places.
-.A. The Contractor shall provide at places approved by the Engineer suitable and sufficient sanitary conveniences for the use of all workmen employed upon this work and they shall be exclusively used by all workmen. Should polluting material be deposited in any part of the work, the Contractor shall at once clean up the material to the satisfaction of the Engineer. Any workman making such pollution shall be forthwith discharged and not again employed upon the work.
B. Necessary sanitary conveniences for the use of laborers on the work, properly secluded from public observation, shall be constructed and maintained by the Contractor in such manner and at such points as shall be approved, and their use shall be strictly enforced.
The following clauses relate to the arrangement and progress of the work, and some of the features are not included in the Uniform Contract Form:
56. Before beginning work the Contractor shall prepare a program of construction which shall be made satisfactory to the City. It shall show the order and time at which the various parts of the work are to be done, the progress of the work month by month, and the methods of construction to be employed. The program may be modified only with the approval of the City, and carrying out the work in accordance with it shall be considered an obligation of the contract.
A. Before beginning any portion of the work the Contractor shall state what method he is to employ and the order of his operations and shall give the Engineer due notice and ample time for making the necessary detail plans for that portion.