that this will be the case in all claims for damages, and to word the clause accordingly. The following clause covers all of the above contingencies in an acceptable manner:

Said contractor further agrees that he will indemnify and save harmless said City and Board, and the officers and agents thereof, from all claims, suits, actions, and proceedings of every name and description, which may be brought against said City or Board, or the officers and agents thereof, for or on account of any injuries or damages to persons or property received or sustained by any person or persons, firm or corporation, by or from said contractor, or by or in consequence of any materials or explosives used on said work, or by or on account of any improper material or workmanship in its construction, or by or on account of any accident, or of any other act or omission of said contractor, or his agents, or servants, and said contractor also agrees that so much of the money due, or to become due, to him under this contract as shall be considered necessary by said Board, may be retained by said Board until all such suits or claims for damages, or otherwise, as aforesaid, shall have been finally settled and determined, and evidence to that effect furnished to the satisfaction of said Board.

E. K.

The following is a common method of wording this clause, which defines the contractor's responsibility without referring to suits at law:

The contractor shall put up and maintain such barriers and red lights as will effectually prevent any accident in consequence of his work, for which the city might be liable, and he shall be liable for all damages occasioned in any way by his acts or neglect, or that of his agents, employees, or workmen. E. A. F.

93. Protection against Claims for the Use of Patents. When it is anticipated that patented appliances or methods may be used either by the contractor in prosecuting the work, or as forming a part of the completed work itself, in order that the party authorizing the work may be able to collect from the contractor such fees as he may be forced to pay therefor, a special clause in the specifications may be written to cover this case. This clause may be as follows:

All fees for any patented invention, article or arrangements that may be used upon or in any manner connected with

the construction, erection, or maintenance of the work, or any part thereof embraced in these specifications, shall be included in the price mentioned in the contract, and the contractor shall protect and hold harmless the party of the first part against any and all demands for such fees or claims, and before the final payment or settlement is made on account of the contract, the contractor must furnish acceptable proof of a proper and satisfactory release from all such claims.

E. A. F.
If it is the

94. Assignment of the Contract.* intention of the party letting the work that the person or persons who take the contract shall perform the work themselves, without subletting it, it is necessary to prescribe that this shall be done in order to insure that it may not be sublet. One great objection to the subletting of contracts is that the subcontractor can not be held directly by the principal, since these two have not entered into contract. The principal can only hold the original contractor, and all dealings with the subcontractor must be through him. This gives rise to delays and unsatisfactory performance, and is usually prohibited by the specifications. The following form is adequate to this pur

pose:

Said contractor further agrees that he will give personal attention constantly to the faithful prosecution of the work, and will not assign or sublet the work or any part thereof, or any of the moneys or orders payable under the contract, without the previous written consent of said board endorsed on this contract, but will keep the same under his personal control; that no right under this contract, nor to any moneys or orders due or to become due hereunder, shall be asserted against said city or board, or any department, officer, or officers thereof, by reason of any so-called assignment, in law or equity, of this contract, or any part thereof, or of any moneys or orders payable thereunder, unless such assignment shall have been authorized by the written consent of said board endorsed on this contract; that no person other than said contractor now has any claim thereunder, and that no claim shall be made excepting under this specific clause of this contract, and under that clause relating to claim of workmen and materialmen. E. K.

95. Contractor not Released by Subcontracts. When it is anticipated that a portion at least of the work

See Article 30.

will be sublet to other contractors, and when in the nature of things this is advisable, it may be specified that such subletting of all or of any portion of the work in no wise releases the contractor from full and faithful performance. The following specification would then hold:

No subcontract shall under any circumstances relieve the contractor of his liabilities and obligations under his contract; should any subcontractor fail to perform the work undertaken by him in a satisfactory manner, and should this provision be violated, the party of the first part may at their option end and terminate such contract. E. A. F.

96.

Abandonment of Contract. In most large engineering contracts it is wise to provide for the emergency of abandonment. This term is here used to include not only deliberate and acknowledged abandonment of the work on the part of the contractor, but also such violations of the contract, either in the letter or in the spirit, or such unnecessary delay in its execution as may be construed as a virtual abandonment of the contract, so far as its express fulfillment is concerned. In such cases it may become necessary or desirable to take the work out of the hands of the contractor altogether, and to hire the necessary labor and purchase the necessary material, and complete the work under the direct superintendence of the engineer, charging all such items of expense against the contractor, and providing for the payment of the same, even though they should exceed all moneys due the contractor on the completion of the work. While the common law would warrant the party paying for the work in assuming the control of it, and charging the cost of the same against the contractor, in case of his express and acknowledged abandonment, it would not authorize the engineer in assuming control of the work because of delay or other violations of the terms of the contract,

such as the following may therefore be inserted:

A provision

Said contractor further agrees that if the work to be done under this contract shall be abandoned, or if this contract shall be sublet or assigned by said contractor, or any of the moneys

or orders payable thereunder shall be assigned, otherwise than as herein provided, or if at any time said chief engineer shall be of the opinion, and shall so certify in writing to said board, that the said work is unnecessarily or unreasonably delayed, or that said contractor is willfully violating any of the terms, covenants and agreements of this contract, or is not executing this contract in good faith, or is not making such progress in the execution of said work as to indicate its completion within the required time, said board shall have the power and right to notify said contractor to discontinue all work or any part thereof under this contract, and upon such notification said contractor shall discontinue said work, or such parts thereof as said board may designate; and said board shall thereupon have the power to employ by contract, or otherwise, and in such manner and at such prices as it may determine, any persons and obtain any animals, carts, wagons, appliances, implements, tools, and other means of construction, which it may deem necessary to work at and be used to complete the work herein described, or such part thereof as said board may have designated; also, the power to use such appliances, implements, tools, and materials and means of construction of every description as may be found upon the line of said work, both such as enter into the completed work, and such as are necessarily used in and about the same in the course of construction, and to procure other proper materials for the completion of the same; also to charge the expense of all of said labor, materials, animals, carts, wagons, appliances, implements, tools and means of construction to said contractor; and the expense so charged shall be deducted and paid by said board out of such moneys as may be due or become due at any time thereafter, to said contractor under this contract, or any part thereof. In case such expense is less than the sum which would have been payable under this contract if the same had been completed by said contractor, it is agreed that said contractor shall be entitled to receive the difference; and in case such expense shall exceed the sum which would have been payable under this contract if the same had been completed by said contractor, then said contractor shall pay the amount of such excess to said city, on notice from said board of the excess so due. It is further agreed that neither an extension of time, for any reason, beyond that fixed herein for the completion of the work; nor the performance and the acceptance of any part of the work called for by this contract, shall be deemed to be a waiver by said city of the right to assume control of this contract for the reasons and in the manner hereinbefore provided. E. K. Cancellation of Contract for Default of Contractor. In the previous case it was provided that under cer

97.

tain contingencies the party of the first part would be warranted in assuming entire control of the work, and completing it under the contract, and for the contractor. His agency in the matter being displaced by that of the engineer, because either of gross violation of the contract, or for incompetency or unwillingness to carry it out. That clause provided, therefore, that the engineer should under such contingencies be appointed to carry out the contract with the party of the second part, in his stead, the contract itself, however, still remaining in force, and the final settlement to be made in accordance with its terms.

For a similar set of contingencies as above described, the party of the first part may prefer to cancel the contract altogether, and instead of completing the work under the supervision of the engineer, he may prefer to let a new contract for the carrying on of the work. To do this, the contract itself must be rescinded or canceled, and in order to give the party of the first part the legal authority for doing this, a clause such as the following may be inserted. Here all moneys due upon

the contract at the time the contract is canceled will be for

feited to the first party. See article 49.

In lieu of the exercise of the power hereinbefore given, in case of said contractor's default, to employ workmen, purchase tools and materials, and complete the work, said board reserves the right and option, instead thereof, to annul and cancel this contract and relet the work, or any part thereof, and said contractor shall not be entitled to any claim for damages on account of such annulment, nor shall such annulment affect the right of said city to recover damages which may arise from such failure on the part of said contractor to fulfill the terms of this contract. And in case of such annulment all moneys due said contractor, or retained under the terms of this contract, shall be forfeited to said city, and be paid to the credit of the fund for extending water pipe in said city; but such forfeiture shall, however, not release said contractor, or his sureties for the fulfillment of this contract, and said contractor and his sureties shall be credited with the amount of the moneys so forfeited toward any greater sum that they may become liable for to said city on account of the default of said contractor.

E. K.