In a number of Contracts the Commissioners have thought it wise to specifically provide against any personal responsibility on their part, in some cases including employees also in this exemption.

63. The members of the Commission and their employees shall not be personally responsible for any liability arising under this contract.

A. In no event whatever shall the Contractor be entitled to any compensation from the commissioners, their servants or agents, on account of any acts or omissions under or growing out of this contract.

B. The Contractor, by accepting and signing this contract, hereby expressly releases and discharges the individual members of the Commission, and each of them, from any and all personal liability of every name and nature.

A provision somewhat similar in character specifies a release to the City upon the final payment:

64. The acceptance by the Contractor of the last payment aforesaid shall operate as and shall be a release to the Commonwealth, the Board, and every member and agent thereof, from all claim and liability to the Contractor for anything done or furnished for, or relating to, the work, or for any act or neglect or the Commonwealth or of any person relating to or affecting the work, except the claim against the Commonwealth for the remainder, if any there be, of the amounts kept or retained as provided in this contract.

A. The payment of the final amount due under this contract and the adjustment and payment of the bills rendered for work done in accordance with any alterations of the same shall release the City from any and all claims or liability on account of work performed under this contract or any alteration thereof.

Objection to this clause has been made from the Contractor's side. It does not seem unreasonable, however, that the Company or City should expect the final settlement to be a settlement in full. It might cover the objection in part if the clause should read:

B. Unless otherwise agreed by the parties, the acceptance, etc.

The following is also somewhat along the same line:

C. If the Contractor shall claim compensation for any damage sustained by reason of the acts of the Board, or its agents, he shall, within 5 days after the sustaining of such damage, make a written statement of the nature of the damage sustained, to the Engineer. On or before the fifteenth day of the month succeeding that in which any such damage shall have been sustained, the Contractor shall file with the Engineer an itemized statement of the details and amount of such damage, and unless such statement shall be made as thus required, his claim for compensation shall be forfeited and invalidated, and he shall not be entitled to payment on account of any such damage.

A clause like the following is found in some Contracts:

65. All materials furnished under this agreement, unless otherwise provided, shall be the best of their respective kinds.

The desirability of this clause may well be questioned, at least for general use. In many Contracts parts of the work do not require the highest grade of material. This is discussed further in the chapter on Specifications.

To avoid the possibility of ambiguity, the following clause may be found in many Contracts:

66. Wherever in the specifications or upon the drawings the words directed, required, permitted, ordered, designated, prescribed, or words of like import are used, it shall be understood that the direction, requirements, permission, order, designation, or prescription of the Engineer is intended, and similarly the words, approved, acceptable, satisfactory, or words of like import, shall mean approved by, or acceptable, or satisfactory to the Engineer, subject in each case to the final determination of the Board, unless otherwise expressly stated.

As to the necessity or advisability of such a clause, engineers or attorneys may readily differ.

A similar definition is sometimes made as to notice:

A. The word "notice" to mean a written notice.

To cover any possible question as to the Contract calling for a completed work, provisions of the following sort are sometimes introduced:

67. The Contractor shall be held responsible for any or all materials or work done to the full amount of all payments made thereon, and he will be required to make good at his own cost any injury or damage which said materials or work may sustain from any sources or causes whatever before the final acceptance thereof.

A. All work, of whatever kind, which, during its progress and before it is finally accepted, may become damaged from any cause, shall be removed and replaced by good and satisfactory work.

It is doubtful if such a clause is necessary, but the following clause covers a point about which there might readily be some uncertainty except for this provision:

B. The Contractor shall provide suitable and adequate storage room for materials during the progress of the work and be responsible for any loss or damage to materials furnished by the Town as well as those furnished by him.

The following explains itself:

68. The Contractor may be required to prosecute the work at night if, for any reason, the work is delayed and not progressing at a rate to enable it

to be completed at the time specified, or if an approaching flood of the Ohio river, or if an approaching cold wave makes such night work especially desirable, and if at any time the Engineer shall, in writing, direct the Contractor to prosecute the work at night, he agrees to promptly comply with said demand and provide suitable and sufficient lights therefor. No night work will be ordered or permitted within the property of the Cemetery Co.

For night work, if any be performed by written order of the Engineer, the Contractor may or may not receive extra payment, as in the judgment of the Engineer is right and proper under the circumstances, it being understood that the compensation for such work and all expenses incidental thereto is included in the prices stipulated for the various items of this contract.

There are many miscellaneous provisions, a few of which are noted. below. Most of these are not in general use, but are suggestive and worthy of mention.

69. No extra or customary measurements of any kind, unless specially noted, will be allowed in measuring the work under these specifications; but the length, area, solid contents or number only shall be considered as the basis for payment as hereinafter specified.

Where the computation of areas or volumes by exact geometric methods is unduly laborious or refined, the planimeter will be held an instrument of precision, and will be used in the determination of quantities upon which payments are based. The measurements of the City as to the amount of the work done shall be final and conclusive.

For certain lines of work the provision above may have considerable point.

70. Nothing in this contract shall be considered as vesting in the Contractor any right of property in materials used, after they shall have been attached or affixed to the work or the soil, nor in materials which have been estimated for partial payment, but all such materials shall, upon being so attached or affixed or estimated, become the property of the City.

71. All books and accounts kept by the Contractor in connection with this contract shall be open to the inspection of the Chief Engineer or his properly accredited representative.

The Contractor shall furnish the Engineer reasonable facilities for obtaining such information as he may desire respecting the progress and execution of the work and the character of the materials, including all information necessary to determine the cost of the work, such as the number of men employed, their pay, the time during which they have worked on the various classes of construction, the cost of repairs to machinery, and other information required by the Engineer. The Contractor shall, on request, furnish the Engineer with copies of expense bills for transportation charges on all machinery, material and supplies shipped to or from the work under this contract.

This requires a large amount of detail and if made use of, involves expense both to the City and to the Contractor. It appears not to be

largely included in Contracts. Where there is much extra work, it may be necessary.

72. Whenever the requirements of the drawings necessitate crossing over or under railroads with the structure, the Contractor shall notify such road or roads not less than one (1) week in advance of any operations at the crossings, and will also make such arrangements for the protection and maintenance of traffic and of structures as will satisfy the City and the division engineer or other proper officials of said railroad.

This provides for a special matter. Some might prefer to include it in the specifications rather than in the Contract.

73. Wherever it is required as a part of the contract to perform work within the limits of private property, or in rights-of-way, such work shall be done in conformity with all agreements between the City and such owners, and whether or not such a condition be part of the agreement, care shall be taken to avoid injury to the premises entered, which premises shall be left in a neat and orderly condition by the removal of rubbish and the grading of surplus materials and the restoration of said private property to the same general condition as at the time of entry for work to be performed under this contract.

74. Advertising bills or signs shall not be posted on any part of the work, except that the name of the Contractor may be displayed. The Contractor shall cause the notice "Post no bills" to be suitably displayed, and he shall enforce the requirement.

A section unusual in form is shown below. Many features are embodied in one place or another in the forms shown in the preceding chapter, but perhaps not all of them:

75. As the said payments become due the Commission shall certify the amount thereof to the Auditor of the Commonwealth for payment by the Treasurer.

Provided, however, and upon the express condition, that no money shall at any time be due or payable from the Commonwealth to the Contractor, and no order shall be due from the Commission:

(1) Unless all the work to the time in question has been done in the manner set forth in this contract, and to the satisfaction of the Engineer, and there has been no breach by the Contractor of any of the provisions of this contract.

(2) Unless the Engineer shall submit to the Commission his written certificate that all the work to the time in question has, in his opinion, been done in the manner provided in the contract, and to his satisfaction.

(3) Unless the Contractor shall furnish to the Commission, if requested, satisfactory evidence that any claim that may be made against the Commonwealth, or the Commission, or the Engineer, or any person or persons employed by them, or against the Contractor or any sub-contractor, based upon any of the claims mentioned in clauses (a), (c) and (g) of the "General Requirements," has been satisfied by the Contractor.

(4) If the Commonwealth or the Commission be restrained by legal process from making such payments.

And provided, further, that the Commonwealth or the Commission may retain any moneys which would otherwise be payable at any time hereunder and apply the same, or so much as may be necessary therefor, to the payment of any expense, losses or damages incurred by the Commonwealth or the Commission and determined as herein provided, and may retain, until all claims are settled, so much of such moneys as the Commission shall be of opinion will be required to settle all claims against the Commonwealth, the Commission, the Engineer and their officers and agents specified in clauses (a), (c) and (g) of the "General Requirements," and all claims which have been filed in the office of the Commission for labor on and for materials used in the work; or the Commission may make such settlements and apply thereto any moneys retained under this contract. If the moneys retained under this contract are insufficient to pay the sums found by the Commission to be due under the claims for labor and materials, the Commonwealth or the Commission may at its discretion pay the same, and the Contractor shall repay to the Commonwealth or the Commission all sums so paid out.

The following provision contains little that has not been shown previously, but the grouping is different, and it seems desirable to include it in this form:

76. The Contractor shall do all the work and furnish all the materials, tools and appliances, except as herein otherwise specified, necessary or proper for performing and completing the work required by this contract, in the manner and within the time hereinafter specified. He shall furnish, erect, maintain and remove the construction plant and such temporary works as may be required. If at any time before the commencement or during the progresss of the work of any part of it, the Contractor's methods or appliances appear to the Director to be unsafe, inefficient or inadequate for securing the safety of the workmen, the quality of work or the progress required, he may order the Contractor to increase their safety and efficiency or to improve their character, and the Contractor shall comply with such orders; but the failure of the Director to make such demand shall not relieve the Contractor of his obligation to secure the safe conduct, the quality of work and the progress required by the contract, and the Contractor alone shall be responsible for the safety, efficiency and adequacy of his plant, appliances and methods. All the work, labor and materials to be done and furnished under this contract shall be done and furnished strictly pursuant to, and in conformity with the attached Specifications, and the lines and grades and other directions of the Director as given from time to time during the progress of the work under the terms of this contract, and also in accordance with the contract drawings, and with working drawings to be furnished from time to time. The Contractor shall complete the entire work to the satisfaction of the Director, and in accordance with the specifications and drawings herein mentioned, and at the prices herein agreed upon and fixed therefor. The date for said completion shall be on or before....

...19..,

the time expressly stated by the Contractor in his proposal or bid as the date upon which he agrees to complete the contract items herein bid upon.

Where an acknowledgment is taken of the signatures of the parties to the contract, the following forms are sometimes used, and are reasonable and proper forms: