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Division 100 — General Provisions

107Legal Relations and Responsibility to Public

WV · 2023 Standard Specifications✓ Full text on BuildSpecBook pages 55–74 Save this section

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107.1-LAWS TO BE OBSERVED: The Contractor shall keep fully informed of all Federal and State laws, all local laws, ordinances, and regulations and all orders and decrees of bodies or tribunals having any jurisdiction or authority, which in any manner affect those engaged or employed on the work, or which in any way affect the conduct of the work. The Contractor shall at all times observe and comply with all such laws, ordinances, regulations, orders and decrees; and shall protect and indemnify, defend and hold DOH harmless from any and all claims, liabilities and causes of action for any fines or penalties imposed on DOH by any state or federal agency because of violation by Contractor or any of its subcontractors and/or consultants of any state or federal law or regulation. 107.2-PERMITS, LICENSES AND TAXES: The Contractor shall procure all permits and licenses, pay all charges, fees, and taxes, and give all notices necessary and incidental to the due and lawful prosecution of the work. The Contractor shall provide the Division with sufficient documentation that all applicable taxes have been paid within 120 days of the project acceptance as provided for in 105.16. The Division shall have the r ight to revoke the Contractor’s Prequalification until the Contractor provides sufficient documentation that all taxes have been paid or are the subject of a timely filed dispute currently pending in a court or other body having legal authority and jurisdi ction to hear the dispute. 107.3-PATENTED DEVICES, MATERIALS, AND PROCESSES: If the Contractor employs any design, devise, material, or process covered by letters of patent or copyright, the Contractor shall provide for such use by suitable legal agreement with the patentee or owner. The Contractor and the surety shall indemnify and save harmless the Division, and affected third party, or political subdivision from and claims for infringement by reasons of the use of any such pa tented design, device, material or process, or any trademark or copyright, and shall indemnify the Division for any costs, expenses, and damages which it may be obligated to pay by reason of any infringement, at any time during the prosecution or after the completion of the work. 107.4-RESTORATION OF SURFACES OPENED BY PERMIT: The right to construct or reconstruct any utility service in the highway or street or to grant permits for same, at any time, is expressly reserved by the Division for the proper authorities of the municipality in which the work is done, and the Contractor shall not be entitled to any damages either for the digging up of the street or for any delay occasioned. Any individual, firm, or corporation wishing to make an opening in the highway must secure a permit from the Division. The Contractor shall allow parties bearing such permits, and only those parties, to make openings in the high way. The Contractor shall, when ordered by the Engineer, make in an acceptable manner all necessary repairs due to such openings and such necessary work will paid for as "Extra Work", or as provided in these Specifications, and will be subject to the same conditions as original work performed. 107.5-FEDERAL-AID PROVISIONS: When the United States Government pays any portion of the cost of a project, the Federal Laws and the Rules and Regulations made pursuant to such laws must be observed by the Contractor, and the work shall be subject to the inspection of the appropriate Federal Agency. Such inspection shall in no sense make the Federal Government a party to the Contract and will in no way interfere with the rights of either party hereunder. 107.6-SANITARY PROVISIONS: The Contractor shall provide and maintain in a neat, sanitary condition s uch accommodations for the use of their employees as may be necessary to comply with the requirements of the State and local Boards of Health, or of other bodies or tribunals having jurisdiction. The Contractor shall not create, commit, or maintain a public nuisance. 107.7-PUBLIC CONVENIENCE AND SAFETY: The Contractor shall at all times so conduct their work as to assure the least possible obstruction to traffic. The safety and convenience of the general public and the residents along the highway and the protection of persons and property shall be provided for by the Contractor as specified under 104.5. The Contractor shall comply with all applicable Fed eral, State, and local laws governing safety, health and sanitation. The Contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions, on their own responsibility, or as the Engineer may determine, reasonable necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the Contract. The Contractor and any subcontractor shall not require any laborer or mechanic employed in performance of the Contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to their health or safety, as determined under construction safety and health standards (Title 29, Code of Federal Regulations, Part 1926, formerly Part 1518, as revised from time to time). promulgated by the United States Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (83 Stat. 96). 107.7.1-Safety Plan: The Contractor shall comply with this subsection if the Total Contract Bid Amount exceeds $2,000,000 or is otherwise noted on the plans. The contractor will provide a copy of the company comprehensive safety and health program and the name of the company safety officer at the preconstruction conference or prior to start of work. A copy of the comprehensive safety and health program for each subcontractor and the name of the company safety officer must be submitted with the request for subco ntract approval. The company comprehensive safety and health program should be in accordance with ANSI A10.38-1991, “Basic Elements of an Employer Program to Provide a Safe and Healthful Work Environment” or equivalent. A site specific safety plan covering the work of the prime contractor and all known subcontractors must be prepared and submitted at the preconstruction conference or prior to the start of work. The site specific plan must include the name of the competent person(s) responsible for safety at the project site. As additional subcontracts are negotiated the site specific safety plan for that work can be submitted with the subcontract request. Contractor employees shall be provided hazard recognition and avoidance training. Further, newly employed workers shall be provided safety orientation training prior to being assigned any task. This training can be provided by the contractor or the contractor’s representative. Likewise, training provided by other sources based on an employee’s initiative or his or her affiliation with the other groups is permissible. All training should be current and up to date with appropriate refresher courses provided if previous training was not within the last three years. All contractor safety trainin g shall be administered or monitored by the contractor’s qualified representative, known as the company safety officer. “Qualified” means one who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training and experience, has successfully demonstrated his or her ability to solve or resolve problems relating to the subject matter, the work or the project. Acceptable training for this individual to be considered qualified includes, but is not limited to, completion of the 30-hour OSHA 500 Trainer Course in Occupational Safety and Health Standards for the Construction Industry or its equivalent. The Contractor or Subcontractor working on the project will conduct weekly safety “tool box” talks to disc uss relevant safety issues and this meeting will be open to attendance and active participation by the on-site Division of Highways Staff. 107.8-RAILWAY-HIGHWAY PROVISIONS: The Contractor shall comply with the following provisions when performing any operations within the existing right of way of the Railroad or when railroad protective insurance is required by the contract documents. Railroad Protective insurance shall include all of the work set forth in 107.8 with exception of the provisions of sections 107.8.7 and 107.8.8. 107.8.1-Notice of Starting Work : The Contractor shall not start any work on Railroad right of way until he has complied with the following conditions:

a.Give the Railroad's Chief Engineer written notice at least ten days in advance of the date he proposes to begin work on or adjacent to the Railroad right of way.
b.Obtain written approval from the Railroad of the Railroad Protective Insurance coverage as required herein.
c.Obtain written authorization from the Railroad to begin work on Railroad right of way. This authorization can be expected within two weeks after insurance has been approved. 107.8.2-Insurance: The Contractor shall secure and provide, until all work under the terms of the project is satisfactorily completed and accepted, the following types of insurance in the amounts and form as hereinafter set forth: 107.8.2.1-Contractor's Public Liability Insurance and Protective Public Liability Insurance: Commerical General Liability (CGL) coverage as required by Section 103.7.1 shall be written with a $2,000,000 Each Occurrence Limit. This limit may be single limit of primary coverage or a combination of primary and excess coverage which will meet the $2,000,000 requirement. A certificate of insurance shall be provided to the Railroad before work begins and said certificate shall provide the Railroad thirty (30) calendar days advance written notice of cancellation or material change in insurance coverage. If any part of the work is sublet, CGL Insurance and evidence thereof in the same amounts as required of the Prime Contractor, shall be provided by or in behalf of the subcontractor to cover his operations on railroad right of way. 107.8.2.2-Railroad Protective Liability Insurance: With respect to the operations performed by the Contractor or subcontractors of any tier the Contractor must provide in the name of Railroad. This policy shall be written on the ISO/RIMA Form of Railroad Protective Insurance (ISO Form CG0035) with Pollution Exclusion Amendment (ISO Form CG 2831 or their equivalents). The original of the policy shall be submitted to and approved by the Railroad before work is commenced on its right of way or within 200 feet of the nearest track or 1000 feet if blasting is required for the construction. 107.8.2.2.1-Railroad Protective Liability Insurance Limits for Non -Passenger Railway Facilities: A policy providing a limit of $2,000,000 per occurrence for bodily injury and property damage combined. Said insurance shall be furnished with an aggregate of $6,000,000 applying separately to each annual period. 107.8.2.2.2-Railroad Protective Liability Insurance Limits for Passenger Railway Facilities: A policy providing a limit of $5,000,000 per occurrence for bodily injury and property damage combined . Said insurance shall be furnished with an aggregate of $10,000,000 applying separately to each annual period. 107.8.3-Use of Grade Crossings: If the Contractor desires a temporary grade crossing of the Railroad's tracks other than that shown in the project plans; to use an existing private grade crossing; or to use an existing public grade crossing with unlicensed construction equipment, the Contractor shall make arrangements in writing with the Railroad and will be required to bear all costs, including flagging, incidental to such crossings. 107.8.4-Interference with Railroad Operations : All work to be performed by the Contractor shall be performed in a manner agreeable to the Railroad's Chief Engineer. The Contractor shall use reasonable care and diligence and cooperate with officials of the Railroad in order to avoid accidents, damages or unnecessary delay to, or interference with train movement of the Railroad. When work within Railroad right of way is of a nature that it impedes Railroad operations such as, but not limited to, use of runaround tracks or the necessity for reduced speed, the Contractor shall schedule and conduct his operations so that such impediment is reduced to the absolute minimum. Any cost incurred by the Railroad for r epairing damages to its property or to property of its tenants, caused by or resulting from the operations of the Contractor, shall be paid directly to the Railroad by the Contractor. The Contractor shall assume all liability for any and all damages to h is work, employees, subcontractor, equipment and materials caused by Railroad traffic. No charge or claim of the Contractor against either the Division or the Railroad will be allowed for hindrance or delay on account of train traffic, work done by Railr oad, delay incident to or necessary for safe operation and maintenance of the railroad or any delays due to compliance with these special provisions. 107.8.5-Construction Procedures: It shall be the Contractor's responsibility to arrange a schedule with the Railroad for accomplishing his work and the Railroad’s or its tenants work. The Contractor in arranging a schedule shall ascertain, from the Railroad, the lead time required for assembling crews and materials and shall make due allowance therefor. The Contractor shall submit to the Railroad's Chief Engineer, with a copy to the Division of Highways, work schedule and information regarding methods and procedures for performing work, e.g., plans and specifications for shoring and sheeting, and for protective shields covering all Railroad facilities. The Contractor shall obtain Railroad approval before commencing said work. The Contractor shall take special precaution and care when excavating for shoring pits and footers adjacent to tracks and in driving piles to always provide adequate lateral support for the tracks and the loads which they carry, so as not to disturb the track alignment and surface and to avoid obstructing track clearances with working equipment, tools or materials. A copy of the Contractor's blasting sequence will be provided to the railroad for their information prior to any blasting. The Contractor shall obtain specific approval of the Railroad's Chief Engineer for use of explosives on Railroad property. All construction equipment that is parked near the track shall be effectively immobilized so that it cannot be moved by unauthorized persons. Materials and equipment shall not be stored where they will in terfere with Railroad operations, nor on the right of way of the Railroad without first having obtained written permission from the Railroad's Chief Engineer. The Contractor will be required to maintain all ditches and drainage structures and keep them free of silt or other obstructions, to promptly repair eroded areas within Railroad right of way and to repair any other damage to the property of the Railroad or its tenants which may be the results of their operations. Upon completion of the work, the C ontractor shall remove from within the limits of the Railroad's right of way, all machinery, equipment, surplus materials, falsework, rubbish or temporary buildings which belong to the Contractor and leave said right of way in a condition satisfactory to the Railroad's Chief Engineer. 107.8.6-Track Clearances : The minimum track clearances to be adhered to by the Contractor during construction will be fifteen ( 15) feet from centerline of the track or as approved by the Railroad’s Chief Engineer. However, before undertaking any work within Railroad right of way or before placing any obstruction over any track, the Contractor shall:
a.Notify the Railroad's Chief Engineer at least 72 hours in advance of work.
b.Receive assurance from the Railroad's Chief Engineer that arrangements have been made for any flagging services necessary.
c.Receive permission from the Railroad's Chief Engineer to proceed with the work. 107.8.7-Flagging Services: Under the terms of the agreement between the Division and the Railroad, the Railroad has sole authority to determine the need for flagging required to protect its operations. In general, the services of Railroad flaggers will be requested when the Contractor's operations will be on or over the Railroad's right of way: (a) during the excavation, placing and removal of cofferdams, sheeting, shoring, driving of piling or placing of concrete footers adjacent to the track; (b) driving of pile bents adjacent to the track; (c) construction of the permanent structure including erection and removal of falsework, bracing or forms over or adjacent to the track; (d) transporting material or equipment across the track; (e) any operations involving direct interference with and/or coming in the close vicinity of power lines or Railroad signal and communication lines, underground cables, fuel oil facilities or pipelines which might result in fire or damage to such facilities to endanger Railroad operations or to endanger the public in the transacting of business on Railroad right of way; (f) fouling of operating clearances or reasonable probability of accidental hazard to Railroad traffic; (g) during removal of portions of existing structures immed iately over or adjacent to a track; and (h) at all other times when the Railroad's Chief Engineer has determined conditions require such protection. Flagging hours shown in the plans shall be reviewed by the Contractor and will be used as the approved flagging hours. If the Contractor feels that the hours shown in the plans are not correct, he shall submit to the Engineer, in writing within sixty (60) days of the award of the project, his estimate for review and approval. The Department shall have thirty (30) days to approve the revised flagging hours. Additional hours may be permitted per Section 104.9. Additionally, all flagging charges resulting from any work done solely for the benefit of the Contractor will be deducted from the current estimate, due the Contractor. If the Contractor works within distances that violate instructions given by the Railroad ’s Chief Engineer or performs work that has not been coordinated with the Railroad ’s Chief Engineer, a flagman may be required full time at Contractor’s expense until the project has been completed. Any work to be performed by the Contractor which requires flagging service or inspection service (watchman) shall be deferred by the Contractor until the flagging service or inspection service required by the Railroad is available at the job site. The Contractor shall furnish to the Railroad and the Division of Highways a schedule for all work required to complete the portion of the project within Railroad right of way and arrange for a job site meeting between the Contractor, the Division of Highways, and the Railroad’s Chief Engineer. A flagman may not be provided until the job site meeting has been conducted and the Contractor’s work schedule provided. The Contractor will be required to give the Railroad’s Chief Engineer at least ten working days of advance written notice of his intent to begin work within Railroad right of way. Once work is begun, and is then suspended at any time for any reason, the Contractor will be required to give the Railroad’s Chief Engineer at least three working days advance notice before resuming work on Railroad right of way. Such notice shall include sufficient details of the proposed work to enable the Railroad representative to determine if flagging will be required. Initially, it may take up to 30 days to obtain flagging from the Railroad. When flagging begins, the flagman is usually assigned by the Railroad to work at the project site on a continual basis until no longer needed. A flagman cannot be called for on a spot basis. If flagging becomes unnecessary and is suspended, it may again take up to thirty (30) days to obtain a flagman from the Railroad. Due to Railroad labor agreements, it may be necessary to give five working days notice before flagging service may be discontinued and responsibility for payment stopped. The Division of Highways will reimburse the Railroad directly for all costs incurred for flagging services by Railroad personnel, including any temporary grade crossing shown in the project plans up to the amount of hours shown on the Division's Project plans. In the event the Division of Highways is required to reimburse the Railroad for flagging service in excess of the approved flagging hours, such excess cost will be deducted from t he monthly and/or final statements of money due the Contractor. The Railroad flagman assigned to the project will be responsible for notifying the Project Engineer upon arrival at the job site on the first working day that flagging services begin and on the last day that he performs such services. This will be required for each separate period that services are provided. The Project Engineer will document such notification in the project records. When requested, the flagman will also sign the Inspector's daily report form showing daily time spent and activity performed at the project site. The Contractor and Division of Highways will review and sign the Railroad flagman's time sheet, attesting that the flagman was present during the time recorded. Fl agman may be removed by Railroad if form is not signed. If flagman is removed, the Contractor will not be allowed to work on or re-enter the Railroad right of way until the issue is resolved. 107.8.8-Failure to Comply: In the event the Contractor violates or fails to comply with any of the requirements of these provisions:
a.The Railroad's Chief Engineer may require that the Contractor vacate Railroad property.
b.The Division may stop all work adjacent to the Railroad. Any such orders shall remain in effect until the Contractor has remedied the situation to the satisfaction of the Railroad's Chief Engineer and the Division of Highways. All costs incurred resulting from compliance with these provisions shall be incident al to the items in the contract and no separate payment shall be made. 107.9-BRIDGES OVER NAVIGABLE WATERS: All work on navigable waters shall be so conducted that free navigation of the waterways will not be interfered with and that the existing navigable depths and vert ical clearances will not be impaired except as by the U.S. Army Corps of Engineers and/or the U.S. Coast Guard.

107.10 Barricades and Warning Signs:

The Contractor s hall provide, erect, and maintain all necessary barricades, suitable and sufficient lights, danger signals, signs, and other traffic control devices, except as provided by 104.5, and the Contractor shall take all necessary precautions for the protection of the work and safety of the public. Highways closed to traffic shall be protected by effective barricades, and obstructions shall be illuminated during hours of darkness. Suitable warning signs shall be provided to properly control and direct traffic. The Contractor shall erect warning signs in advance of any place on the project where operations may interfere with the use of the road by traffic and at all intermediate points where the new work crosses or coincides with an existing road. Such warning si gns shall be erected in accordance with the Plans furnished. All barricades, warning signs, lights, temporary signals, and other protective devices must conform with the Standard " Manual on Temporary Traffic Control for Streets and Highways," and the provisions of 715.9.

107.11 Use of Explosives:

When the use of explosives is necessary for the prosecution of the work, the Contractor shall exercise the utmost care not to endanger life or property, including new work. The Contractor shall be responsible for any and all damage resulting from the use of explosives. All explosives shall be stored in a secure manner, in compliance with all laws and ordinances, and all such storage places shall be clearly marked. Where no local laws or ordinances apply, storage shall be provided satisfactory to the Engineer and in general not closer than 1,000 feet from the road or from any building or camping area or place of human occupancy. The Contractor shall notify each public utility company, having structures in proximity to the site of work, of their intention to use explosives and such notice shall be given sufficiently in advance to enable the companies to take such steps as they ma y deem necessary to protect their property from injury.

107.12 Protection and Restoration of Property and Landscape:

The Contractor shall be responsible for the preservation of all public and private property and shall protect carefully from disturbance or damage all land monuments and property marks until the Engineer has witnessed or otherwise referenced their location and shall not move the m until directed. The Contractor shall be responsible for all damage or injury to property of any character, during the prosecution of the work, resulting from any act, omission, neglect, or misconduct in the Contractor's manner or method of executing the work, or at any time due to defective work or materials, and this responsibility will not be released until the project shall have been completed and accepted. When or where and direct or indirect damage or injury is done to public or private property by or on account of any act, omission, neglect, or misconduct in the execution of the work, or in consequence of the nonexecution thereof by the Contractor, the Contractor shall restore, at their own expense, such property to a condition similar or equal to that existing before such damage or injury was done, by repairing, rebuilding, or otherwise restoring as may be directed, or the Contractor shall make good such damage or injury in as acceptable manner.

107.13 Forest Protection:

In carrying out work within or adjacent to State or National Forests, the Contractor shall comply with all regulations of the State Fire Marshall, Division of Natural Resources, or any other authority having jurisdiction, governing the protection of forests and the carrying out of work within forests, and shall observe all sanitary laws and regulations with respect to the performance of work in forest areas. The Contractor shall keep the areas in an orderly condition, dispose of all refuse, and obtain permits for the construction and maintenance of all construction camps, stores, warehouses, residences, latrines, cesspools, septic tank, and other structures in accordance with the requirements of the Forest Supervisor. The Contractor shall take all reasonable precaution to prevent and suppress forest fires and shall require their employees and subcontractors, both independently and at the request of forest officials, to do all reasonably within their power to prevent and suppress and to assist in preventing and suppressing forest fires and to make every possible effort to notify a forest official at the earliest possible moment of the location and extent of any fire seen by them.

107.14 Responsibility for Damage Claims:

The Contractor shall indemnify and save harmless the Division, its officers and employees, from all suits, actions, or cl aims of any character brought because of any injuries or damage received or sustained by any person, persons, or property on account of the operations of the Contractor, its subcontractors and/or consultants; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any act or omission, neglect, or misconduct of the Contractor its subcontractors and/or consultants; or because of any claims or amounts recovered from any infringements of patent, trademark, or copyright; or from any claims or amounts arising or recovered under the "Worker's Compensation Act," or any other law, ordinance, order, or decree; and so much of the money due the Contractor under and by vi rtue of their Contract as may be considered necessary by the Division for such purpose may be retained for the use of the Division or, in case no money is due, their surety may be held until such suit or suits, action or actions, claim or claims for injuri es or damages as aforesaid shall have been settled and suitable evidence to that effect furnished to the Division; except that money due the Contractor will not be withheld when the Contractor produces satisfactory evidence that the Contractor is adequatel y protected by public liability and property damage insurance.

107.15 Opening Sections of Project To Traffic:

At the option of the Engineer, certain sections of the work may be opened for traffic. Such opening will not constitute acceptance of the work, or any pa rt thereof, or a waiver of any provisions of the Contract; provided however, that on such portions of the project as are accepted for use of traffic, the Contractor shall not be required to assume any expense entailed in maintaining the roadway for traffic . Such expense will be borne by the Division or will be compensated for in the manner provided in 109.4. Any damage to the highway not attributable to traffic which might occur on such section, except slides, shall be repaired by the Contractor at their expense. The removal of slides shall be performed by the Contractor and payment will be in accordance with 104.3. If the Contractor is dilatory in completing shoulders, drainage structures, or other features of the work, the Engineer may order all or a portion of the project open to traffic, but in such event the Contractor shall not be relieved of their liability and responsibility during the period the work is so opened prior to final acceptance. The Contractor shall conduct the remainder of their construction operations so as to cause the least obstruction to traffic.

107.16 Contractor'S Responsibility for Work:

Until final written acceptance of the project by the Engineer, the Contractor shall have the charge and care thereof and shall take every precaution against injury or damage to any part thereof by the action of the elements, or from the nonexecution of the work. The Contractor shall rebuild, repair, restore, and make good all injuries or damages to any portion of the work occasioned by any of the above causes before final acceptance and shall bear the expense thereof except damage to the work due to unforeseeable causes beyond the control of and wi thout the fault of or negligence of the Contractor, including but not restricted to acts of God, of the public enemy or governmental authorities. In case of suspension of work from any cause whatever, the Contractor shall be responsible for the project an d shall take such precautions as may be necessary to prevent damage to the project, provide for normal drainage and to erect any necessary temporary structures, signs, or other facilities at their expense. During such period of suspension of work, the Con tractor shall properly and continuously maintain in an acceptable growing condition all living material in newly established plantings, seeding, and sodding furnished under their Contract, and shall take adequate precautions to protect new tree growth and other important vegetative growth against injury.

107.17 Contractor'S Responsibility for Utility Property and

SERVICES: At points where the Contractor's operations are adjacent to properties of railway, telegraph, telephone, and power companies, or are adjacent to other property, damage to which might result in considerable expense, loss, or inconvenience, work shall not be commenced until all arrangements necessary for the protection thereof have been made. The Contractor shall cooperate with the own ers of any underground or overhead utility lines in their removal and rearrangement operations in order that these operations may progress in a reasonable manner, that duplication of rearrangement work may be reduced to a minimum, and that services rendered by those parties will not be unnecessarily interrupted. In the event of interruption to water or utility services as a result of accidental breakage, or as a result of being exposed or unsupported, the Contractor shall promptly notify the proper authority and shall cooperate with such authority in the restoration of service. If water service is interrupted, repair work shall be continuous until the service is restored. No work shall be undertaken around fire hydrants until provisions for continued service have been approved by the local fire authority.

107.18 Furnishing Right-of-Way:

The Division will be responsible for securing all necessary right -of-way in advance of construction. Any exceptions will be indicated in the Contract.

107.19 Personal Liability of Public Officials:

In carrying out any of the provisions of these Specifications, or is exercising and power or authority granted to them by or within the scope of the Contract, there shall be no liability upon the Commissioner, Engineer, or their authorized representatives, either personally or as officials of the State, it being understood that in all such matters they act solely as agents and representatives of the Division.

107.20 No Waiver of Legal Rights:

The Division shall not be precluded or estopped by any measurement, estimate, or certificate made either before or after the completion and acceptance of the work and payment therefor, from showing the true amount and character of the work performed and materi als furnished by the Contractor, nor from showing that any such measurement, estimate or certificate is untrue or is incorrectly made, nor that the work or materials do not in fact conform to the Contract. The Division shall not be precluded or estopped, notwithstanding and such measurement, estimate, or certificate and payment in accordance therewith, from recovering from the Contractor or sureties, or both, such damage as it may sustain by reason of their failure to comply with the terms of the Contract. Neither the acceptance by the Division or any representative of the Division, nor any payment for or acceptance of the whole or any part of the work, nor any extension of time, nor any possession taken by the Division, shall operate as a waiver of any portion of the Contract or of any power reserved or of any right to damages. A waiver of any breach of the Contract shall not be held to be a waiver of any other or subsequent breach.

107.21 Protection of Rivers, Streams, and Impoundments:

107.21.1 Erosion and Sedimentation Control: The Contractor shall be responsible for

water quality throughout the duration of construction in accordance with the National Pollutant Discharge Elimination System (NPDES) permit registration with the West Virginia Department of Environmental Protection (WVDEP). Any project with less than 1 acre of Earth disturbing activities will include a Letter of Non- registration (LONR). The Contractor shall provide the WVDOH with an Erosion and Sediment Control Plan and use erosion and sediment control Best Management Practices (BMPs) for any work that has the potential to affect water quality. NPDES registration, modifications, and fees for Alternative Delivery/Design Build Projects with earth disturbing activities of 1 acre or more shall be the Contractor’s responsibility. The WVDOH shall not be a NPDES Co -Applicant/Co-Permittee for Alternative Delivery/Design Build Projects. The WVDOH will provide for information purposes only and for possible use in the contractor’s Storm Water Pollution Prevention Plan (SWPPP):

a.Estimated start and completion dates for the project.
b.List and name all receiving stream(s).
c.Topo map with the Limit of Disturbance (LOD) and receiving streams identified.
d.Sequence of Construction Activities.
e.Drainage Report, including the following:
i.Drainage area maps for construction site discharges points. Note: Discharge points are all locations where the project stormwater leaves the site or enters a stream. ii. Pre-Construction Drainage Maps, including 1 year 24 -hour discharge calculations for each discharge point. iii. Post Construction Drainage Maps, including 1 year 24-hour discharge calculations for each discharge point. iv. Ditchline and pipe sizing calculations.
v.Discharge points and drainage analysis for completed project. vi. Permanent Stormwater Management design details. vii. For Large Construction Projects (3 Acres or more of earth disturbing activities) with post -construction peak discharge 10% (or more) greater than the pre - construction peak discharges of 5 cubic feet per second or more for the 1-year, 24- hour storm: Post -construction stormwater management BMPs must be implemented to reduce potential location erosion at the discharge point. (Include calculations with permit application) Calculations and justification must be submitted if post -construction s tormwater management features are deemed unnecessary.
f.Tier 2 or Tier 3 Stream Protection Designation (as designated by the WVDEP), Stream with an approved sediment-related Total Maximum Daily Load (TMDL).
g.Preliminary Site Plan (Maps) showing Limits of Disturbance in a closed polygon and projected in NAD83 WV State Plane Coordinate System in ArcGIS Shapefile (.shp) or Google Earth (.kmz or .kml).
h.Municipal Separate Storm Sewer Systems requirements (Design Directive 506) if applicable.
i.Soil maps https://websoilsurvey.sc.egov.usda.gov/App/HomePage.htm. Prior to commencing construction activities, t he Contractor shall be responsible for Developing and implementing a site-specific Storm Water Pollution Prevention Plan (SWPPP) and Groundwater Protection Plan (GPP). Additionally, a Karst Mitigation Plan (KMP) is required on projects located in: Berkeley, Fayette (south of CR 25), Grant, Greenbrier, Hampshire, Hardy, Jefferson, Mercer, Mineral, Monroe, Morgan, Monongalia (east of I -79) Pendleton, Pocahontas, Randolph, Summers, and Tucker Counties. The KMP must be included in the West Virginia Department of Environmental Protection (WVDEP) NPDES registration. The Contractor shall provide the WVDOH with the following details:
1.Construction details and all information necessary to demonstrate that the Contractor’s SWPPP and GPP satisfy all conditions of the NPDES Permit. In addition to the information the WVDOH provides for the Contractor’s use if applicable.
2.The Contractor’s SWPPP must include During-Construction Drainage Maps include 1 year 24-hour discharge calculations for each discharge point.
3.Each road or access road shall be classified as either permanen t or temporary and categorized by construction activity: New, improved, incidental construction activity, or maintenance only. Temporary roads shall be reclaimed as soon as practical after they are no longer needed for operations. New or improved roads shall be designed with the complete specifications along the entire road.
4.Incidental construction activity necessary to address rills, gullies, or other drainage issues, shall be designed with the complete specifications on that specific segment.
5.Preliminary Site Plan (Maps) showing Limits of Disturbance in a closed polygon and projected in NAD83 WV State Plane Coordinate System in ArcGIS Shapefile (.shp) or Google Earth (.kmz or .kml).
6.Stormwater Pollution Prevention Plan; Project Site specific detail, ph asing and projected schedule, Best Management Practices, Enhanced Best Management Practices (if applicable), Tier 2 or Tier 3 Stream Protection Designation (as designated by the WVDEP), Stream with an approved sediment -related Total Maximum Daily Load (TMDL), Cross-sections, Plan and Profile, Slope Stability Analysis, Soils, Location of topsoil stockpiles. Note: As per WVDEP requirements, the site maps and plans shall contain a North arrow with sites oriented to the North, with a minimum of five -foot topographical contours.
7.Soil maps https://websoilsurvey.sc.egov.usda.gov/App/HomePage.htm.
8.Designating a "Qualified Person" for Stormwater Pollution Prevent ion Plan development, compliance inspection, and corrections.
a."Qualified Person" means a person who is knowledgeable in the principles and practices of sediment and erosion controls, pollution prevention, and possesses the education and abilities to assess conditions at the proposed site that could impact stormwater quality and to assess the effectiveness of proposed stormwater controls to meet the requirements of this permit.
9.Initial inspection by Qualified Person for compliance with proposed plan & proper installation.
10.Frequency of inspections:
a.For Projects discharging into Tier 1 Streams (as designated by the WVDEP) inspection of all erosion and sediment control BMPs within disturbed areas at least once every seven (7) calendar days and within 24 hours after any precipitation event greater than 0.25" per 24 hrs. period.
b.For Projects discharging towards Tier 2, Tier 3, or 303(d) Streams (as designated by the WVDEP) Inspection of all erosion and sediment control BMPs within disturbed areas at least once every four (4) calendar days and within 24 hours after any precipitation event greater than 0.25" per 24 hrs. period.
11.Verification that temporary seeding & mulching is occurring within 4 days when areas will not be re -disturbed for more than fourteen ( 14) days. Any defective controls identified during the inspection must be repaired and/or installed correctly within 24 hours and corrections verified upon re -inspection by the Qualified Person within 48 hours. Permanent seeding and mulching within four (4) days of reaching final grade. Final stabilization within four (4) days after construction has been completed.
12.Installation of discharge point/outlet signs/markers.
13.Waste and Borrow Site Plans
a.Offsite waste and/or borrow plans and controls • Note: Separate NPDES CSW General Permit Registration (if applicable)
b.Cross-sections, Plan and Profile
c.Slope Stability Analysis
14.Groundwater Protection Plan; Project Site specific detail (including the design of the concrete washout if applicable)
15.The GPP shall include the following elements:
a.A description of the operations, processes and materials present at the facility that may affect or contaminate groundwater.
b.Procedures and containment facilities to protect groundwater resources from the potential contaminants.
c.MSDS sheets
d.These processes and facilities shall be identified on a facility map.
e.The GPP must be signed by someone with signature authority for the applicant. Note: Signature Authority: a responsible corporate officer (President, Vice Pres. Secretary, Treasure), principal executive officer or ranking elected official, Senior Executive Director or a letter of delegation of authority for the signatory is provided that is signed by one of the above. The Division will review the documents for completeness and provide the Contractor with comments, if required, within:
i.Fifteen (15) calendar days of receipt of all required documents for Minor Construction Projects (1 to 3 acres of disturbance). ii. Thirty ( 30) calendar days for projects for Large Construction Projects (3 acres or greater of disturbance), however projects over 100 acres, will allow a sixty ( 60) calendar day review period. If revisions are required, the Contractor shall revise documents and resubmit to the Engineer, and Division’s review time is restarted. Once submitted to WVDEP, the expected approval time is anticipated to be:
i.Ninety (90) calendar days for minor construction projects (1 to 3 acres of disturbance). ii. One hundred eighty ( 180) calendar days for large construction projects (3 acres or greater of disturbance). West Virginia Code of State Rules Title 47 Series 10 requires any person proposing a new discharge to submit an application at least 180 days prior to commencing construction of the facility, unless permission for a shorter time period has been granted by the Director of Water and Waste Management. Any person with an existing permit shall submit a new application at least 180 days before the expiration date of the existing permit unless permission for a shorter time period has been granted by the Director. The WVDEP determines that a NPDES permit registration is Administratively Complete when the application form is accepted and the permit fee is paid. The WVDEP determines that a NPDES Permit Registration Submission is Complete when Applica nt/Permittee has submitted all information required to meet the conditions of the NPDES General Permit and the WVDEP approves said submission. Projects with public notice requirement shall warrant an additional forty-five ( 45) calendar days of review/appro val time. Delay in WVDEP approval in excess of the above shall be considered an Excusable Noncompensable Delay in accordance with Section 108.6.2. The Contractor shall prepare a Spill Prevention, Control and Countermeasures (SPCC) plan that itemizes specific measures that will be implemented to prevent and clean up chemical and petroleum product spills that may occur during all phases of construction. Fuel storage and refueling activities, equipment maintenance activities and equipment washing will be k ept at least 500 feet away from any watercourse or wetland. The Contractor shall implement a Quarterly Employee training program for all on -site personnel directly involved with construction activities at all levels of responsibility that reiterates the components and goal of the SWPPP. At a minimum the training shall address:
i.Spill & leak response and internal reporting, good housekeeping, and routine inspection & maintenance. ii. Training: Date, Time, Location, Attendees, Subjects Discussed. SWPPP templ ate, GPP template, and guidance documents are located at: https://dep.wv.gov/WWE/Programs/stormwater/csw/Pages/home.aspx. Flocculants, or oth er treatment chemicals may be used only in accordance with good engineering practices and the manufacturer/supplier specifications. Dosing rates shall be specified, and material safety data sheets (MSDS) shall be included in the contractor’s SWPPP and GPP, maintained on site, and available for inspection. Any details not shown in the plans shall be in accordance with the latest version of the West Virginia Department of Environmental Protection, Erosion and Sediment Control Best Management Practices Manual . In the event that temporary erosion and sediment control measures are necessary due to the Contractors’ negligence, carelessness or failure to install permanent controls as part of the work as scheduled, such work shall be performed by and at the expense of the Contractor. Earth disturbing activities shall not be initiated until the WVDEP has approved the NPDES permit modification, SWPPP, GPP, and KMP (if required). The Division will not be responsible for any delays in obtaining WVDEP approval of the NPDES permit modifications due to the timeliness of WVDEP’s review or the contractor’s failure to provide a complete SWPPP, GPP, KMP (if required) or submit corrections and/or additional information required by WVDEP in a timely manner; however, delays due to WVDEP’s failure to review NPDES submissions with regulatory times are considered an Excusable Noncompensable Delay in accordance with Section 108.6.2. Any additional/future NPDES permit registration modification applicat ions shall be the Contractor’s responsibility and shall by submitted by the Contractor through the WVDEP Electronic Submission System (ESS). During construction the Contractor shall be responsible for:
1.Implementing remedial action to correct and/or repai r failing erosion and sediment control features.
2.Implementing storm and winter shutdown procedures.
3.Shaping the earthwork prior to the suspension of grading operations each day in a manner that will permit storm runoff with minimum erosion.
4.Installing, ope rating and maintaining erosion and sediment control features in an acceptable condition.
5.Cleaning out and restoring to original conditions any erosion or sediment control feature that has reached half of its capacity. For sediment basins, one half of its capacity is considered as wet volume storage.
6.Providing the WVDEP with an Annual Progress Map if permitted for longer than one year
7.Directing the construction, operation, maintenance and dismantling of temporary erosion and sediment control features. In addition to the above, the Contractor shall be familiar with all requirements contained within the WVDEP’s General Water Pollution Control Permit, Stormwater Associated with Construction Activities Permit Number WV0115924 or latest applicable replacement permit. The WVDOH will consider the contractor’s requests for additional compensation if the reissued or new NPDES Permit has additional requirements that were not in place at the time the bid package was assembled. A copy of this permit can be found at the following internet address: http://www.dep.wv.gov/WWE/Programs/stormwater. Noncompliance with permit conditions constitutes a violation of the Federal Cle an Water Act and State Code and is subject to enforcement action by the WVDEP. The Contractor shall be responsible for any Notices of Violation, enforcement actions and/or fines associated with any violations. If the Contractor incurs a fine for any Notice of Violation and Consent Order, the Contractor must provide the DOH Project Supervisor documentation that the fine is paid or the amount of the fine will be withheld from the Contractor’s next invoice. At the Project’s Pre-Construction Conference, the Contractor shall submit to the Division the SWPPP, GPP, KMP (if applicable), the Co -Applicant #1 signature page (Exhibit 1) and the Contractor’s Qualified Person/Erosion and Sediment Control (E&S) Manager’s Contact information. The Contractor’s E&S Manager’s contact information shall contain: the name, title, mailing address, and telephone number(s) of the person who is responsible for the Erosion and Sediment Control plans, implementation, maintenance, etc., for the life of the NPDES registration. Upon completion of the Pre -Construction Conference, the Division will review the SWPPP, GPP, and KMP (if applicable). The Division will provide comments to the contractor concerning any deficiencies in the SWPPP, GPP, and KMP (if applicable). This review shall be considered as an effort by the Division to assist the contractor in meeting the NPDES Permit requirements. Only the WVDEP has the authority to approve NPDES registration documents. Once any necessary corrections and/or additional information are submitted by the contractor, the Division will modify the existing NPDES registration for this project to make the Contractor the number one Co-Applicant to the permit. Once this is completed, the Contractor shall be responsible for any and all fees, vi olations, or fines assessed against the project that result from the Contractor’s negligence, carelessness, or failure to install permanent controls as part of the work as scheduled. If any of the components of the approved SWPPP prove ineffective at min imizing or preventing sediment laden stormwater from leaving the project site, the contractor shall implement additional BMPS, modify the SWPPP, and modify the NPDES permit registration to provide a more effective means of controlling/eliminating erosion a nd sediment from the stormwater runoff. If approved BMPS are ineffective at protecting receiving waters and the contractor is unable to identify and employ BMPS capable of preventing sediment laden runoff from leaving the project site the contractor shall immediately cease further land disturbance until such time that the unauthorized discharge ceases. Once the project is complete, the Contractor will still bear responsibility for the NPDES registration until either a Notice of Termination (NOT) is receiv ed from the WVDEP or the Contractor has received final payment for the project. If an NOT has not been received by the time the final payment is made, the Division will modify the NPDES registration to remove the Contractor’s name from the registration. Exhibit 1 can be located online at: https://transportation.wv.gov/highways/TechnicalSupport/specifications/107.21.1EnSExhibit 1/Pages/default.aspx. The Contractor will be advised if the project is located within an urbanized area with respect to the NPDES Municipal Separate Storm Sewer System (MS4) Permit. The MS4 permit requires on-site management of the runoff from the first one (1) inch of rainfall from the additional impervious area (if >5,000 sf) for an average 24 -hour storm preceded by 48 hours of no measurable precipitation or provide equal benefits for water quality. The contractor is advised that any proposed changes or substitutions to the project may require additional stormwater management mitigation and any costs associated with such mitigation shall be borne by the contractor at no additional cost to the Division. The contractor shall allow seven (7) calendar days for the Division and the local MS4 authority to review and comment on the proposed changes. Additionally, changes or substitutions proposed by the contractor shall be approved by the Division in advance of implementing any changes. Post-construction stormwater management shall comply with the WVDOH MS4 stormwater management plan requirements of NPDES general permit registration no. WVR30004 or the latest applicable registration number. Periodic inspections of the site and BM P’s will be conducted by representatives of the WVDEP to ensure compliance with the conditions and requirements of the NPDES permit. Representatives of other resource agencies may also conduct site inspections throughout the life of the construction contract.

107.21.2 Pollution: The Contractor shall exercise every reasonable precaution throughout

the life of the Project to prevent pollution of rivers, streams, or impoundments. Pollutions such as chemicals, fuels, lubricants, bitumen, raw sewage, products associated with bridge cleaning and painting, and other harmful wastes shall not be discharged into or alongside of rivers, streams, impoundments, or into natural or man-made channels leading thereto. The quality of the surface waters affected by construction shall meet the requirements of the West Virginia Code, Volume 8A, Chapter 22, Article 11.

107.21.3 Basis of Payment: Except when pay items are specifically described and

furnished as pay items in 642, Temporary Pollution Control, the wate r pollution and erosion and siltation control requirements set forth shall be at the expense of the Contractor.

107.22 Plant Pest Regulations:

The indiscriminate movement of nursery stock, hay or straw mulch, equipment and soil samples into and out of West Virginia constitutes a potential hazard to State and National Agriculture. Therefore, it shall be the responsibility of the prime Contractor to comply with all applicable State and Federal Plant Pest Regulations in the fulfillment of this contract. Information regarding these regulations may be obtained from Plant Pest Control Division, West Virginia Department of Agriculture, Charleston, West Virginia 25305, or United States Department of Agriculture, Agriculture Research Service, Plant Pest Control Division, P.O. Box 1257, Roanoke, Virginia 24001.

107.23 Air Pollution Control:

The Contractor shall exercise every reasonable precaution throughout the life of the project to keep air pollution to a minimum. The Contractor shall also comply with the applicable regulations of the West Virginia Air Pollution Control Commission. During times of limited dispersion, construction operations may be suspended. All plants in West Virginia producing bituminous concrete for the Division shall obtain a permit or certification from the West Virginia Air Pollution Control Commission.

107.24 Clean Water Act/Wetlands:

The Contractor will comply with all aspects of Section 404 of the Clean Water Act including any and all regards to wetlands on all work associated with the project. A wetland will not be filled or disturbed on the project or any work related to the project such as a haul road, waste area, borrow pit or any other activity without a permit.

107.25 Lead Exposure In Construction:

The Contractor will comply with all aspects of 29 CFR, Part 1926, Lead Exposure in Construction, by the United States Department of Labor, Occupational Safety and Health Administration.

107.26 Notification of Abatement, Demolition Or Renovation:

The notification for projects involving abatement, demolition, or renovation will conform to this section. The Project Engineer will have a copy of all asbestos inspection reports available at the field office. The Contractor shall p rovide copies of all notifications and correspondence to the Project Engineer.

107.26.1 Abatement: Abatement activities shall conform to section 681.

107.26.2 Demolition:

107.26.2 1-Asbestos Containing Materials Reported: Notifications will be in

accordance with 107.26.4.

107.26.2 2-No Asbestos Containing Materials Reported: For buildings or bridges

that do not contain asbestos, only the notification form must be submitted to the West Virginia Division of Environmental Protection (DEP) and the United States Environmental Protection Agency (EPA) at the address given in 107.26.4. If an asbestos inspection report indicates that there is no asbestos present on a bridge scheduled for demolition or renovation, the need for a trained individual to be on site during either process is waived. However, the Contractor shall have an individual trained in accordance with the provisions as set forth in 40 CFR Part 61, Subpart M on site to observe building demolition and file a report with the Project Engineer indicating if any suspect (asbestos containing) material was encountered during demolition. A copy of the individual's current training certification must be attached to this report.

107.26.3 Renovation:

107.26.3 1-Asbestos Containing Materials Reported: For projects involving the

renovation of a bridge or building, that has asbestos containing materials, the Contractor shall submit a “Notification of Abatement, Demolition or Renovation” in accordance with

107.26 4.

107.26.3 2-No Asbestos Containing Materials Reported: Structures that are being

renovated and are free of asbestos, per the inspection report, do not require submittal of the “Notification of Abatement, Demolition or Renovation”.

107.26.4 Notifications: In accordance with state and federal regulations, the Contractor

shall submit a “Notification of Abatement, Demolition or Renovation” to the address shown below prior to the commencement of demolition of any building or bridge (regardless of the presence of asbestos). All notifications must be made a minimum of 10 working days prior to the commencement of demolition or renovation operations. Particular attention is to be made to the “Schedule” section of the form. If for any reason, demolition or renovation cannot begin on the date as submitted, the DEP, Division of Air Quality must be notified at the address below: West Virginia Division of Environmental Protection Division of Air Quality 601 57th Street S.E. Charleston, West Virginia 25304 Attn: Asbestos Coordinator Telephone: (304) 926-0499 United States Environmental Protection Agency-Region 3 1650 Arch Street Philadelphia, Pennsylvania 19103 Attn: Rich Ponak Asbestos Program Coordinator Telephone: (215) 814-2044 Ponak.Rich@epa.gov If a building or bridge contains asbestos, the notification process as outlined in Section 681, Asbestos Abatement shall be followed.

107.27 Construction Access and Environmental Permits:

The Division has obtained permits for activities shown in the contract documents. The anticipated Temporary Construction Access (TCA) methods are included, if a TCA is not shown in the plans, or the permit, it has been determined that at least one TCA met hod exists that does not require a permit. A copy of these permits is in the contract documents. The contractor must comply with the approved permits and exercise best environmental management practices at no additional cost to the Division. The permits do not cover waste or borrow sites, haul roads, storage sites, staging areas or activity not shown in the contract documents or permits. These permits are to be handled in accordance with Section 107.2.

107.27.1 Temporary Construction Accesses: A Temporary Construction Access is any

road, cofferdam, causeway and/or stream crossing, access fill, dike, channel retaining structure, etc. that may be required to access the work. This work shall consist of the construction of all temporary construction access required for the project and shall include, but is not limited to, all culverts, structures, excavation, rock borrow and incidental construction as required to construct the access. This work shall also include all necessary work required to maintain and remove the temporary construction access and to restore the area to its original condition. All of the work shall be in accordance with these Specifications and in reasonably close conformity with the contract documents, approved permits, or as established by the Engineer. No payments shall be made for the Temporary Construction Access unless otherwise stated in the plans.

107.27.1 1-Changing Temporary Construction Accesses: The Contractor may elect

to utilize alternate temporary construction access methods from those shown in the contract documents. If the Contractor proposes alternate temporary construction access methods, he shall obtain written approval from all affected landowners and shall provide to the Engineer all of the permit documents required to obtain additional or revised permits. The Division will submit the permit documents to the appropriate agencies for approval. Acceptance of the permit documents by the Engineer or forwarding them to the permitting agency does not guarantee or constitute approval of the permit. No work shall be performed on a permittable activity until a copy of all the appropriate approvals and permits are received by the Engineer. No time extensions or additional payments will be made for the contractor to obtain additional approvals or permits or for changes to the design of the temporary construction access.

107.27.1 2-Excavated Material: The excavated material, unless otherwise directed

by the Engineer, shall be utilized for backfill or embankments. Surplus material shall be disposed in accordance with section 207.6 and in such a manner that the efficiency or appearance of the structure shall not be impaired, and the stream shall not be obstructed or excess sediment introduced into the stream.

107.27.2 Corps of Engineers Permit: If this project has been determined to involve

activities, which are regulated by the Department of the Arm y, Corps of Engineers a permit has been included in the contract documents. These activities involve the discharge of dredge or fill materials into the Waters of the United States as regulated by Section 404 of the Clean Water Act or the obstruction or al teration of Navigable Waters of the United States regulated by Section 10 of the River and Harbor Act of 1899. The Engineer will decide all questions that may arise as to the interpretation or violation of these conditions. The Contractor shall comply with the conditions of the Permit s and the following:

1.Material will not be stockpiled in the watercourse.
2.Bilge, ballast or wash water pumped from barges or out of cofferdams will not be discharged into the watercourse without acceptable removal of solids, oils and/or toxic compounds.
3.Discharges shall be avoided during fish spawning seasons to the maximum extent practicable unless a note prohibiting such discharge is included in the construction plans.

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Source: Standard Specifications for Roads and Bridges, 2023 Edition. Pages 55–74 of 1,006. View official source ↗

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