60. Should the Contractor be obstructed or delayed in the commencement, prosecution or completion of the work hereunder by any necessary or unavoidable act or delay of the Board, or unavoidable acts or delays on the part of railroads in transporting material consigned to said Board, or by riot, insurrection, war, pestilence, acts of public authorities, fire, lightning, earthquake, cyclone, or through any default of other parties under contract with said Board, and if, in the opinion of the Engineer, the ultimate completion of the entire work under this contract is delayed thereby, then the time herein fixed for the completion of all work under this contract shall be extended for a period equivalent to the time said work as a whole is, in the opinion of the Engineer, thereby delayed.

A. If legal obstructions to the prosecution of the work arise, the delay shall operate to extend the time for the completion of the part or parts of the work obstructed, for the length of time the obstruction continues and no longer, but no damages shall be claimed or allowed the Contractor for any such delay.

B. But no injunction, strike or interference of public authority shall be ground for such extension except if and from the time when the Contractor shall give the Commission notice of the injunction or other cause of delay, with copies of the injunction or other orders and of the papers upon which the same shall have been granted. The Commission and the City or either shall be accorded the right to intervene or become a party to any suit or proceeding in which any such injunction shall be obtained, and to move to dissolve the same or otherwise, as the Commission or the City may deem proper. If necessary the Corporation Counsel or the Counsel to the Commission or both shall be authorized by the Contractor to appear, for that purpose, as counsel or attorneys for him.

C. Neither an extension of time, for any reason, beyond that fixed in the Bid for the completion of the work, nor the acceptance of any part of the work called for by this contract shall be deemed to be a waiver by the Commission of the right to abrogate this contract for abandonment or delay, in the manner provided for in Article L in this agreement.

D. Whenever, within the limits of the contract time as fixed in the Proposal or as amended by any modification of the contract, the temperature, between the hours of six (6) A.M., and six (6) P.M., as officially recorded by the Dayton office of the U. S. Weather Bureau, shall register thirty-two (32) degrees Fahrenheit or lower, the Contractor will be granted an extension of contract time of one day for each such day of cold weather.

Whenever, within the limits of the contract time, fixed as previously noted, floods in the local rivers, or other unforeseen acts of Providence, operate to delay the completion of the work, the Board may extend the time of this contract by such amount as may be certified in writing by the Chief Engineer to be just.

Rainy or stormy weather will not be regarded as proper grounds for the extension of contract time, except when excessive or prolonged.

Many classes of work need not be suspended on account of frost.

E. In the event that any material alterations or additions are made as herein specified, which, in the opinion of the Engineer will require additional time for the execution of all work under this contract, then, in that case, the time of completion

of the work shall be extended by such a period or periods of time as may be fixed by said Engineer, and his decision shall be final and binding upon both parties hereto, provided that in such case the Contractor, within four (4) days after being notified in writing of such alterations or additions, shall request in writing an extension of time, but no extensions of time shall be given for any minor alterations or additions, and the provisions of this paragraph shall not otherwise alter, change or invalidate the provisions of this contract, with reference to Liquidated Damages, and the said Contractor shall not be entitled to any damages or compensation from the said Board on account of such additional time required for the execution of the work.

F. The time stipulated within which to complete the Work is based upon the quantities of the various items entering into the work as stated in the form of proposal, which are given solely for the purpose of classifying bids. In case these quantities are exceeded or diminished then an extension or diminution of the term of this contract shall be made. It is, however, understood and agreed that in case an increase in any one item is balanced or offset by diminution of other items, no change in the term shall be made, and in any event the Engineer shall determine the amount of extension or diminution of time in respect of the relative increase or reduction in the quantities involved in the final completion.

In many Contracts provision is made for maintenance and repairs for a definite term following the ordinary completion of the work. Such a clause is much used in connection with street pavements. In other cases the Contract provides for repairs only for a time after completion. The following refers to street work:

61. The Contractor hereby agrees to repair all defects in the roadway pavement or other work done under this contract and arising, in the opinion of the City, out of the use of defective material, settlement of foundation or improper workmanship in the construction thereof and which from such causes may become necessary during the guarantee period of either three (3) or five (5) years after the date of the approval by the Director of Public Service of the Engineer's final estimate, without expense to the party of the first part, and the Contractor agrees to make such repairs when and as directed by the party of the first part by written notice served upon him; and if after having received such notice, the Contractor fails to make such repairs within five (5) days from the receipt of such written notice, the party of the first part may thereupon cause satisfactory repairs to be made and charge the expense thereof to the Contractor.

The City will repair and maintain all openings made in the pavement subsequent to its acceptance by the City.

A similar clause deals with sewer work and is differently phrased:

A. The Contractor hereby agrees that all defects in the work done under this contract arising, in the opinion of the City, out of the use of defective materials or improper workmanship in the construction thereof, which may become apparent during the period of one (1) year after the date of the approval of the Engineer's final estimate by the Director of Public Service, shall be remedied by him to the satisfaction of and without expense to the City. The City shall notify the Con⚫

tractor in writing by stating the defects and repairs to be made, and the Contractor agrees to remedy such defects and to make such repairs when and as directed by the City, and to start the said work within five (5) days from the date of said notification, and upon his failure to start or do the said work, the City may, at the expiration of five (5) days, thereupon cause the said defects to be remedied and the repairs to be made and shall charge the cost and expense thereof to the Contractor or his surety.

Such work may also include the re-setting of any and all castings and the refilling and levelling off of sewer trenches in private property or rights-of-way.

The provision below refers to retaining moneys for guaranteed work:

B. The City will retain five (5) per cent of the entire cost of the work done by the Contractor for the entire period of three (3) years from the date of the Engineer's certificate of the final estimate. The Contractor may, at his option, furnish a surety bond for ten (10%) per cent of the amount of the work done by him, to be in force for the entire period of five (5) years, in lieu of the five (5) per cent cash retainer. This cash retainer or surety bond being to insure compliance with the terms of the guarantee. The Director of Public Service shall have the power to spend all or any part of such retainer to make such repairs at the expiration of the guarantee period as above specified.

Whatever remains to the credit of the Contractor, provided all repairs have been made satisfactory to said Director, shall be paid to the Contractor.

The following refer more specifically to repairs:

C. If, at any time before twelve months have elapsed from the date of the completion of the work contemplated in this contract and any amendment thereof or order for extra work as herein provided, any part shall, in the opinion of the Engineer, require repairing, the Engineer may notify the Contractor, in person or by mail, to make the required repairs. If the Contractor neglects to make such repairs promptly, to the satisfaction of the Engineer, then the Engineer may employ other persons to make the same and the expense thereof shall be paid by the Contractor. The Commission may cause the expenses of the repairs to be paid out of any money due the Contractor on account of this contract.

D. If any defects or omissions in said work are hidden or concealed, so that a reasonable careful inspection at the time of acceptance of said work would not have disclosed them, and such defects or omissions appear or are disclosed within three (3) years after the final acceptance of said work, then said Contractor agrees, on notice given him in writing by the Chief Engineer that such defects or omissions exist, to immediately correct and make good the same, and in the event that he fails, refuses or neglects so to do, then said Sanitary District may correct and make good the same and said Contractor hereby agrees to pay on demand the cost and expense of doing such work.

E. The Contractor agrees to make all the needed repairs on the said work during a period of one year after its final completion; and he agrees that the Board is authorized to retain out of the moneys payable to him under this agreement the sum of two per cent on the amount of the contract, and to expend the same, or as much thereof as may be required, in making the aforesaid repairs to the satisfac

tion of the Engineer, if within ten days after the delivery or mailing of a notice in writing to the Contractor or his agents, they shall neglect to make the aforesaid needed repairs; provided, however, that in case of an emergency where in the opinion of the Engineer, delay would cause serious loss or damage, the Board may make repairs without previous notice and at the expense of the Contractor.

F. The Contractor shall repair and make good all defects or deficiencies in work or material appearing during a period of nine months following the completion of the work contemplated herein, and if he shall fail to do so within five days after written notice of necessary repairs has been mailed to him by the Engineer, said repairs may be made by the party of the first part and paid for out of the funds to be retained by it for the purpose.

G. It is further agreed that after the final completion of the work the party of the first part may retain out of the payment due the Contractor such sums of money not exceeding three (3) per cent of the total contract price as may in the judgment of the party of the first part be necessary to cover the cost of repairs as set forth above, and the sums thus retained shall be paid to the Contractor after the expiration of the nine months referred to in the above paragraph on Repairs, and when such repairs shall be well and satisfactorily made.

The following clauses might have been discussed in connection with Sections 9, 11, 28, 29, but they introduce some additional features.

62. The Contractor is to furnish, free of charge, all stakes and such temporary structures as may be necessary for marking and maintaining points and lines given by the Engineer for the building of the work, and is to give said Engineer such facilities and materials for giving said lines and points as he may require; and the Engineer's marks must be carefully preserved.

A. All necessary lines, levels and grades shall be given to the Contractor, who shall provide at his own expense such forms, materials and assistance as may be required by the Engineer. If the Contractor through wilfulness or carelessness removes or permits to be removed said reference marks before the prosecution of the work requires it they shall be replaced at his expense.

It has previously been stated that some Contractors object to furnishing stakes and forms at their own expense, and with good reason.

B. The plans are intended to give approximately the line, grade and shape of the structure, typical details, etc., but the exact determination of all these is to be made from time to time by the Engineer.

C. The work during its progress and on its completion must conform to the lines and levels given by the Engineer, and must be done in accordance with the plans and directions given by him from time to time, subject to such modifications or additions as shall be deemed necessary during the execution of the work; and in no case will any work in excess of the requirements of the plans be paid for unless ordered in writing by the Engineer or his agent specially authorized thereto in writing.

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.