access to the work and premises used by the Contractor, and the Contractor shall provide safe and proper facilities therefor. Furthermore, the Engineer, his assistants and agents shall at all times have immediate access to all places of manufacture where materials are being made for use under this contract, and shall have full facilities for inspecting the same.

The field inspection of the work, testing of materials, giving of lines and grades, preparation of general and detail drawings, together with the preparation of partial and final estimates, will be done by the Engineer. The inspection and supervision by the Engineer is intended to aid the Contractor in supplying all material and in doing all work in accordance with drawings and specifications, but such inspection shall not operate to release him from any of his contract obligations.

P. The Contractor shall notify the Engineer, at a reasonable time in advance, of the starting of any new class of work. In case any work is to be done at night, the contractor shall give due notice to the Engineer, at least two days before such work is started. Only such classes of work shall be done at night as can be properly inspected, and adequate light and facilities for inspection shall be supplied.

Another reading is:

Q. Any unfaithful or imperfect work or materials that may be discovered before the final acceptance of the work shall be corrected or replaced immediately, on the requirement of the Engineer, notwithstanding it may have been overlooked by the proper inspector and estimated. The Engineer may drill into or cut open the masonry lining of the tunnel and for this purpose the Contractor shall furnish all necessary tools and labor. If the work so examined is found defective in any respect, it shall at once be remedied by taking down and rebuilding the defective work, or in such manner as the Engineer may direct, and the Contractor shall receive no compensation therefor; but if defects are not found there, examination and reconstruction shall be paid for as extra work, as provided in this contract.

R. Any omission to disapprove the work at the time of inspection or at the time of any monthly or other estimate shall not relieve the Contractor of any of his obligations; and 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.

These clauses for the removal of rejected material are in use:

S. Materials of whatever kind condemned by the Engineer or inspector shall be removed from the work herewith, and shall not be made use of elsewhere in the work.

T. Any material found defective and failing to satisfy the requirements of these specifications shall be rejected, and the contractor shall be so notified by the inspector; the material so rejected shall not be used on the work, and, upon written notice from the Commissioner, the Contractor shall at once remove said material from the work and from the premises of the City.

U. Any material and work which does not satisfy the requirements of these

specifications may be rejected by the Commissioner at any time before the final acceptance of the work, and the Contractor shall make good all deficiencies at his own expense.

V. If any material brought upon the ground for use in the work, or selected for the same, shall be condemned by the Engineer as unsuitable or not in conformity with the specifications, the Contractor shall forthwith remove such materials as may be directed by the Engineer.

The following form, already in use, is suggested as well meeting the requirements:

W. Any materials condemned or rejected by the Engineer or his representatives may be branded or otherwise marked, and shall, on demand, be at once removed to a satisfactory distance from the work.

14. INSURANCE. The Contractor shall secure, in the name of the Company, policies of fire insurance in amount, form and companies, satisfactory to the Chief Engineer, upon such structures and material as shall be specified by the latter, payable to the Company for the benefit of the Contractor or the Company as the Chief Engineer shall find their interests to appear.

Most Contracts provide, as in Section 19 following, that the Contractor shall turn over to the Company or Owner a completed structure. Any misfortune which injures or destroys the partially completed structure is a misfortune to the Contractor, whether it be due to fire, water, or other untoward circumstance, or even to the "act of God." The risk is the Contractor's and apparently the insurance money should go to him; certainly if no monthly payment has been made to the Contractor, and apparently in other cases, especially if he be honest and solvent. If, however, the Company or Owner has paid in monthly estimates a total amount in excess of the Bond, some protection is then needed for the Owner and the insurance money if received by the Company should be applied to reduce or cancel the amount paid by the Company in monthly or other advance or partial payments to the Contractor.

The Standard Contract Form of the American Institute of Architects provides that the Owner shall furnish the insurance. The full text may be found in the chapter on Additional Contract Forms.

It seems best, on the whole, that for most engineering work the responsibility should rest on the Contractor to determine how much insurance he desires to carry. If the Owner secures the insurance it is not quite certain that the Contractor will be satisfied. Up to a certain point the Company does not care whether he insures or not, or how much he carries. When that point has been passed, the Contractor must insure to an amount satisfactory to the Chief Engineer. In Contracts for buildings only, unless they are fireproof, the payments made will become large enough

so that the Contractor's Bond and the reserve percentage on monthly estimates will not be sufficient to protect the Company, so that insurance must be taken out. In any case, the Company finally pays the cost of insurance in an increased price charged by the Contractor. Some advantage in having the Owner take out the insurance results from the fact that insurance is more economical when long terms are provided for, and the Owner will ultimately hold the policies.

As to the interests of the parties, the Company or Owner would have an interest to the extent of money already paid on the structure destroyed. Any balance beyond that would in general constitute an interest of the Contractor. The adjustment would seldom, if ever, present any difficulty.

In many Contracts for railroad or for public work, no buildings are to be erected so that no clause of this sort is needed.

15. INDEMNITY. The Contractor shall indemnify and save harmless the Company from and against all losses and all claims, demands, payments, suits, actions, recoveries and judgments of every nature and description brought or recovered against it, by reason of any act or omission of the said Contractor, his agents or employes, in the execution of the work or in consequence of any negligence or carelessness in guarding the same.

This section seems fairly concise and yet is very comprehensive; it covers suits in contract for mechanics' liens, whether for labor or material; it covers suits in tort for negligence, trespass, nuisance, or infringement of patents; it covers a failure to observe any statute requirements or ordinances or other rules; it covers claims where suits have not been instituted. It is probably better for not being more explicit as to patent rights, for instance, or as to specific classes of negligence, or as to specific breaches of laws, ordinances, or regulations. It does not hold the Contractor responsible for injuries due to the acts of the Company or of others. One Contract form reads:

A. The said Contractor agrees that he will indemnify and save harmless the Commonwealth (or the Company) from all suits or actions of every name and description, brought for, or on account of, any injuries or damages received or sustained by any person or persons, by or from said Contractor, his servants or agents, in the construction of said work or by or in consequence of any negligence in guarding the same, or in improper materials used in its construction, or by or on account of any act or omission of the said Contractor or his agents.

Another provision in the same Contract is:

B. Said Contractor further agrees that he will pay all bills for labor and materials contracted for by him on account of the work herein contemplated.

Other forms provide:

C. The Contractor stipulates, covenants and agrees, etc., that he has the right, power, authority, and license to furnish all said materials and do all the work, etc. and will defend any and all actions . . . for infringement of patent rights, etc.

D. The Contractor shall, during the performance of the work, take all necessary precautions and place proper guards for the prevention of accidents; shall put up and keep at night suitable and sufficient lights, and shall indemnify and save harmless, etc.

E. The Contractor shall indemnify, protect and save harmless the City and the Commission, its and their officers and agents, from all suits or claims, of every name or description, brought against the City or the Commission, or its or their officers and agents, for or on account of any injuries or damages to person or property received or sustained by any person or persons, by or from the Contractor, his servants or agents, in or on account of work done under this contract or extensions of or additions thereto, whether caused by negligence or not, or by or in consequence of any negligence in guarding the same, or any materials or explosives for the same, or by or on account of any improper materials used in its construction, or by or on account of any accident, or of any act or omission of the Contractor, his servants or agents; and the Contractor further agrees that so much of the money due to him under this agreement as shall be considered necessary by the Commission may be retained until all such suits or claims for damages as aforesaid have been settled, and evidence to that effect has been furnished to the satisfaction of the Commission.

F. The liability of the Contractor under this Article is absolute and is not dependent upon any question of negligence on his part or on the part of his agents, servants or employees, and the negligence of the Engineer to direct the Contractor to take any particular precautions or to refrain from doing any particular thing shall not excuse the Contractor.

This seems unfair to the Contractor. Its purpose apparently is to relieve the City from proving the negligence of the Contractor, for which evidence might be unavailable. That part which states that "negligence of the Engineer to direct . . . any particular precautions shall not excuse the Contractor" is proper.

A provision to the following effect is sometimes introduced:

G. Since the Contractor agrees to indemnify the City against all liability or damages on account of accidents occasioned, or claimed to be occasioned, by the omission or negligence of himself, his agents, or his workmen during the continuance of this agreement, and against all claim for royalties on patents as provided for in Article therefore the Contractor shall be promptly and duly notified in writing by the City of the bringing of any suit or suits on such accounts against the City, and shall be given the option of assuming the sole defense thereof. The Contractor shall pay all judgments obtained by reason of accidents or patents in any suit or suits against the City, including all legal costs, court expenses, and other like expenses.

This seems an undesirable provision, at least in the form stated here. There may be involved in a suit some general principle which does not much interest the Contractor; in some cases the Contractor's interest in the long run may even be contrary to that of the City, and the City should not divest itself of power to protect its interests.

A provision that:

H. The Contractor, at the option of the City, may be allowed to assume the sole defense,

would not be subject to the same objection, but such a clause seems unnecessary.

Under Section 17 is a provision for retaining moneys in case of “any lien or claim for which the Company might become liable," and this properly supplements this Section 15.

Section 15 above, seems sufficient for all of the purposes recited in the other readings. It should be noted that the Company is protected against any "loss" to itself as well as against claims from others.

16. SETTLEMENT FOR WAGES. Whenever, in the opinion of the Chief Engineer, it may be necessary for the progress of the work to secure to any of the employes engaged on the work under this contract any wages which may then be due them, the Company is hereby authorized to pay said employes the amount due them or any lesser amount, and the amount so paid them, as shown by their receipts, shall be deducted from any moneys that may be or become payable to said Contractor.

17. LIENS. If at any time there shall be evidence of any lien or claim for which the Company might become liable and which is chargeable to the Contractor, the Company shall have the right to retain out of any payment then due or thereafter to become due, an amount sufficient to completely indemnify the Company against such lien or claim, and if such lien or claim be valid, the Company may pay and discharge the same, and deduct the amount so paid from any moneys which may be or become due and payable to the Contractor.

While under Section 15, the Contractor is fully liable for the matters recited in Sections 16 and 17, the latter sections provide a more effective remedy in many cases; a failure to pay for labor may cause laborers to desert the work or to strike and so lead to considerable delay which may be avoided by means of the provisions above. In some cases the Contractor may even benefit from a payment to laborers before his next month's estimate becomes due.

Section 17, in specifying "claims" as well as "liens," apparently supplements Section 15 by allowing the Company to retain moneys otherwise due the Contractor, and thus protect itself in some degree in case there should be claims large enough to render the protection of the Bond