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tractor, and perhaps to delay him as well. (See Art. 52.) The rock may prove tougher to excavate than he had anticipated, the sand foundation less firm, labor more difficult to obtain or less efficient, material more expensive, the river higher than usual at the season, etc.
(b) It is common to provide a sort of blanket clause covering "unforeseen difficulties, obstructions or .encumbrances” in general, and, without specifically naming any, to throw the responsibility for meeting them, one and all, on the Contractor. He would naturally provide something in his original bid to cover these difficulties. Sometimes damage from the evertroublesome elements is mentioned separately because of the fact that in some contracts the chance of loss from fire or flood, wind or lightning constitutes the chief risk and can ordinarily be insured against.*
The Contractor probably could not, even under such a clause, be required to make good the damage caused by “Acts of God” — such as the Johnstown Flood, the San Francisco Earthquake, and similar almost unprecedented catastrophes — or “Acts of the Public Enemy,” meaning the ravages of an invading army.
A typical case may be cited, in which a bridge Contractor sought to recover from a City damages for the delay occasioned by the presence of 'a large iron water pipe crossing a stream at a point where the Contractor had to sink a crib for the bridge he was building under contract with the City. The Contractor had no right to remove the pipe, as it was there by permission of the City. The claim set up by the City was that the pipe was one of the unforeseen obstructions, concerning which the Contractor took his chances. The court held, however, that the obstruction was legalized by the City to a certain extent, and that it could not, therefore, be removed by the Contractor, without his making himself liable for trespass. The court held, further, that the proper course for the City to pursue in such case, after it had been notified by the Contractor of the difficulty, would have been either to revoke the water company's license, or to make some arrangement so that the Contractor could proceed. The court, therefore, decided that the City was liable for the damages to the Contractor resulting from the delay, after he had notified the City of the obstruction.
A rip-rapped embankment intended to serve as an approach to a bridge * In many building contracts the Owner assumes a part or all of the fire risk.
across a creek is nearly completed. The bottom seems stable, and the work is progressing to the satisfaction of everyone. Suddenly a large part of the embankment settles out of place, and has to be rebuilt. Shall such an accident be considered an unforeseen difficulty or shall the Contractor be compensated?
(A) All loss or damages arising out of the nature of the
work to be done under the contract, or from any unforeseen obstructions or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, or from incumbrances on the
line of the work, shall be sustained by the Contractor. (B) The Contractor shall protect his work and materials
from damage due to the nature of the work, the action of the elements, the carelessness of other Contractors, or from any cause whatever, until the completion and acceptance of the work. Should any damage occur, he shall repair it at his own expense, and leave the work to the satisfaction of...... (the Owner)....
in every particular. 44. Local Ordinances, Permits, Licenses, etc. — The responsibility of compliance with all laws or ordinances affecting the work of construction is usually and properly placed on the Contractor. In addition to this, if it is thought desirable, he should be required to secure such permits (as for street openings), licenses, etc., as may be necessary. On all of these points it would be entirely possible for the Contractor to inform himself before signing the contract, so that the only risk he would take would be concerning any laws which might be enacted while the work was in progress.
The student may mention any laws or ordinances which would be likely to affect a Contractor engaged in dredging a navigable river, in excavating rock, in the erection of a city building, in paving a street.
(A) In all the operations connected with the work herein
specified all State laws and local by-laws or ordinances controlling or limiting in any way the actions of those engaged in the work, or affecting the method of doing the work or materials applied to it, must be respected
and strictly complied with. (B) The Contractor shall keep himself fully informed of all
existing and future local ordinances and regulations, state and national laws in any manner affecting the work herein specified, and he shall at all times observe and comply with and shall cause all his agents and employees to observe and comply with said ordinances, laws and regulations, and shall protect and indemnify (the Owner)
(his) officers and agents against any claim or liability arising from or based on the violation of any
such laws, ordinances, regulations, etc. 45. Patent Rights. These may cover materials, appliances, or processes used in construction.* (The student should cite an illustration of each.) The clause should be so worded as to make it clear that the Contractor is:
(a) To pay all fees or royalties.
(6) To defend any suits which may be brought for infringement. (A) The Contractor agrees to indemnify and save harmless (the Owner)
against all loss or damage, claims and demands, cost and charges that may arise or accrue by reason of the infringement of any patent or the violation of the rights of any person under letters patent in the performance of this contract, or by reason of the manner in which the same is performed, or through the use of any patented article
or device. (B) The Contractor stipulates, covenants and agrees for
himself, his heirs, executors, administrators, suc* For comments on the advisability of specifying patented articles see Art. 64. An idea of the increasing number of patents affecting a single department of civil engineering may be obtained by referring to such a list as that published in Municipal Engineering, vol. 41, p. 410; vol. 42, p. 68, and vol. 43, p. 127; or in the Good Roads Year Book for 1912.
cessors and assigns, that he has the right, power,
from any judgment that may be recovered against them or either of them for infringement of patents or patent rights by reason of the use of said articles or materials for the doing of said work
as aforesaid. 46. Establishment and Preservation of Survey Points. — This is a clause of convenience only, requiring:
(a) That the Contractor shall furnish labor or material necessary to the establishing of certain survey points. This provision is not of course necessary in many specifications.
(6) That the Contractor shall take all precautions to preserve points given him by the Engineer. A specific forfeit of a sum of money for each point unnecessarily disturbed is at least an incentive to care on the part of the Contractor's employees. (A) All lines and grades will be given by the Engineer, but
the Contractor shall provide such material and give such assistance therefor as may be required by the Engineer, and the marks so given shall be carefully
preserved. (B) The Contractor shall 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 shall give said Engineer such facilities and materials for
marking said lines and points as he may require, and
the Engineer's marks must be carefully preserved. 47. Public Travel. — This is another of the clauses mentioned in Art. 9 which might be considered as not belonging strictly to the group called “general.” Under this head it should be made clear, for example, as to whether or not the Contractor will be allowed to exclude the public entirely from the work (which he would generally prefer to do on account of the saving in expense and annoyance), or, if otherwise, how much, if any, of the work at a time may be closed to public travel. All classes of traffic must in some instances be considered, persons traveling on foot, and persons or freight being transported in conveyances, by land or water. (A) Public travel shall not be needlessly inconvenienced,
nor shall it be wholly obstructed at any point without the written consent of the Engineer, in which case the Contractor shall place plain and properly worded signs at the nearest cross streets or wherever the public can pass around the obstruction by the shortest and
easiest route. (B) The Contractor shall make suitable and adequate
provision, satisfactory to the Engineer, for the safe and free passage of persons and vehicles by, over or under the work while it is in progress.