duction of ten (10) per cent will be made and from the remainder there will be further deducted any amount due to ... ... (the Owner) ... from the Con

tractor as damages for delays or otherwise under the terms of the contract. From the balance thus determined will be deducted the amount of all previous payments and the remainder will be paid to the Contractor. The ten per cent deducted as above set forth will become due and payable to the Contractor upon completion of the work to the satisfaction of the Engi

neer.

(B) Payment for the work embraced in the contract shall be made in the following manner: a payment will be made, on or about the first of each month, of ninety (90) per centum of the value of the work completed by the Contractor on the fifteenth of the previous month and not previously paid for, as estimated by the Engineer; allowance will not ordinarily be made the Contractor by the Engineer, in his estimates, for materials that are not in place, i.e. that are not in finished portions of the work which is in an unfinished condition; allowance may be made for all excavation done each month, and for materials delivered on the work when, in the opinion of the Engineer, such allowances are justified; provided, however, that the making of such payments may be deferred from month to month, when, in the opinion of the Engineer, the value of the work done since the last estimate for payment is less than three hundred dollars ($300); provided, further, that nothing herein contained shall be construed to affect the right, hereby reserved, of Owner) to reject the whole or any portion of the aforesaid work, should the certificate be found or known to be inconsistent with the terms of the contract or these specifications, or otherwise improperly

(the

58. Conditions of Final Payment.

(a) When the work is finished and the Engineer, after a thorough inspection, is satisfied that it is complete and in ac cordance with plan and specifications in every detail, he issues his final certificate.

The following will serve to show how such a certificate might be worded. It may be addressed either to the Contractor or the Owner.

N.

has

concrete wall around the estate of Mr. B..... been completed according to the plans and specifications therefor and to my satisfaction, and that you are entitled to payment as follows:

(b) On the basis of this certificate a payment is made to the Contractor in an amount shown by the certificate, namely the balance due on the contract, less the percentage, which latter is still held for a period prescribed by the specifications, generally 30

* The extra work may or may not be mentioned in this certificate. †The 15 per cent would be due at a later date, as August sixth. See Art. 57.

days. This is to guard against liens,* and gives the Owner opportunity to inquire at the office where liens are recorded and assure himself that no liens are in force against the work or against any materials used therein. Some specifications require the Contractor to secure and furnish to the Owner a certificate stating that the official records show no outstanding liens affecting the case, making this a condition precedent to his receiving the payment of the retained percentage.

(4) The said Contractor shall not be entitled to demand
or receive payment for any portion of the aforesaid
work or material except in the manner set forth in the
contract and these specifications until said work shall
have been completed in accordance with the terms
hereinbefore mentioned and the Engineer shall have
given his certificate to that effect; whereupon

(the Owner)
will within seventy days after
said completion and the delivery of said certificate pay
or cause to be paid to the said Contractor in cash the
whole amount of money then due the said Contractor
under the contract excepting such sum or sums as may
lawfully be retained under any of the provisions of
the contract hereinbefore set forth.

(the Owner)

(B) The Engineer shall, as soon as practicable 'after the
completion of the work under this contract, make a
final estimate of the amount of work done thereunder,
and
shall, within
thirty days after such final estimate is so made, pay
the entire sum so found to be due hereunder, after
deducting therefrom all previous payments, and also
all percentages and amounts to be kept and retained

* Liens are claims against property for unpaid debts. Originally in common law, a lien gave a workman (a jeweller for example) the right to retain in his possession an article on which he had been working (as a watch) until he had been paid for his work. Common law has been supplemented within recent years in the United States by various State statutes, so that an unpaid workman may have a claim against the work even if it is physically impossible for it to be in his possession. Similar provision is made in favor of men who have furnished materials.

with

under the provisions of this contract. All prior esti-
mates and payments shall be subject to correction in
the final estimate and payment. The Contractor
shall furnish
(the Owner)
satisfactory evidence that all persons who have done
work or furnished materials and are entitled to a lien
therefor under any statute or law of the State have
been fully paid or are no longer entitled to such a lien
before he shall demand any estimate or payments due
or unpaid under this contract, and in case such evidence
is not furnished an amount necessary to meet the law-
ful claims of the persons aforesaid may be retained from
any moneys due or that may become due the said Con-
tractor under this contract until the lawful claims afore-
said shall be fully discharged or satisfactorily secured,
but it is understood and agreed that ... (the
Owner) ...... assumes no obligations nor in any way
undertakes to pay such lawful claims out of any funds
due or that may become due the Contractor, or out of

(the Owner's)

own funds.

59. Maintenance Clauses. When asphalt pavements were first introduced into the United States (about 1875), engineers knew little of the wearing qualities of the material. Hence originated the custom of requiring of the Contractor a guarantee that his work would last. This practice has since found wide use in connection with pavements of all kinds, and has been to a limited extent applied to other forms of construction.

(a) The security required of the Contractor is either:

(i) A percentage retained during the guarantee period, or (ii) A security bond (smaller of course than the "faithful performance" bond). (See Art. 11.)

Of the two, the former is simpler and more direct, providing as it does a fund on which to draw in case the Contractor refuses to make the necessary repairs.

(b) The objections to requiring maintenance are three:

(i) The additional cost. The Contractor naturally adds the estimated expense of maintenance to his bid. Should the Owner assume the responsibility of maintenance he might be able to make his own repairs at a less expense.

(ii) The difficulty of accurately defining the term "maintenance." Shall the work appear as good as new at the end of the maintenance period? If not, how much wear shall be considered reasonable? Many foolish requirements, impossible of enforcement, have found their way into specifications in the attempt to set an arbitrary limit to the amount of ordinary wear.

(iii) The annoyance of forcing the Contractor to make the repairs. A dishonest Contractor has many excuses to offer in the effort to shirk this responsibility.

As applied to pavements, a most perplexing situation arises when portions of the pavement are necessarily disturbed by others (as for water or sewer connections). Another bone of contention is likely to appear where the amount of vehicular traffic suddenly increases during the period of guarantee, as in the case of a street which changes from a residence to a business street.

The period of maintenance of pavements has been steadily decreasing. Formerly ten years was a common requirement, now periods of from one to five years are the rule where any guarantee at all is required. Under most conditions better results can perhaps be attained at less expense without the maintenance clause - at least in the case of pavements.

(the

(A) 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
Owner)
is authorized to retain out of the
moneys payable to the Contractor under this agree-
ment the sum of two (2) per cent of 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 satisfaction of the Engineer if within ten days
after the delivery or mailing of a notice in writing to
the Contractor or his agents he or they shall neglect to