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The Banks – Phase 1 Public Infrastructure Development
Parking Garage and Streetgrid
Partnership Agreement between the
Occupational Safety & Health Administration
And
Messer Construction Co.
 
  1. Identify Partners
    The Cincinnati, Ohio Area Office of the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA), Messer Construction Co., City of Cincinnati, Hamilton County, subcontractors, and labor organizations recognize the need for a safe and healthful jobsite. The goal of this Partnership agreement is to help ensure that the construction of The Banks - Phase 1 Public Infrastructure Development Parking Garage and Streetgrid (The Banks – Phase 1) project will occur in a safe work environment for all employees.

    The Banks – Phase 1 project is a $40 million dollar plus, two-story, below-grade enclosed parking structure. The parking garage makes up the public portion of Phase 1 of The Banks Development. The project is located south of Second Street near Mehring Way, between Walnut Street and Main Street in Cincinnati, Ohio. The general scope includes:
     
    • Site Demolition and Mass Excavation
    • Site Infrastructure and Utility Work
    • Hardscapes and Landscaping
    • Proposed 570,000 square feet of Underground Parking
    • Proposed 1,200 Parking Spaces
    • Street Grids:
      1. Freedom Way East (Main to Walnut)
      2. Freedom Way West (Race to Elm)
    All government agencies are being asked to do more with less. With this in mind, OSHA has continued to explore new and innovative ways to carry out the mission of safety and health in the workplace. The Partners have developed a “Partnership Agreement” Plan that is an element of the OSHA WORKS 2000 program. On construction sites, Messer Construction Co., and OSHA team up to achieve a safe and healthful workplace. The mission is to effectively implement all facets of jobsite safety and health and achieve self-compliance through cooperative efforts from labor, management, owners and OSHA. This cooperation allows OSHA to focus its limited resources at jobsites that are truly in need of direction in regard to improving jobsite safety and health.

    This Partnership is designed to, not only address the hazards within the construction industry, but also to promote and recognize those jobsites managed by a construction manager that has a demonstrated effective safety and health program. This Partnership Agreement will be implemented on The Banks - Phase 1 project.

    This document will serve to establish a cooperative effort in ensuring safety and health, and to maintain an open line of communication between OSHA, Messer Construction Co., the City of Cincinnati and Hamilton County officials, and other contractors on the project.

    Specifications and assignments within this Partnership document do not relieve the contractors from or lessen their safety and health responsibilities, nor do they change any contractual obligations between the owner and any trade contractor (s). In addition, specifications and assignments within this Partnership do not lessen any/all affirmative defenses, legal rights or due process afforded contractors with respect to Agency enforcement action.
     
  2. Purpose/Scope
    The common objective and goal of the Partnership is to provide a safe and healthy environment for employees working in the construction industry through increased training, implementation of best work practices, enhanced safety and health programs, and compliance with applicable OSHA standards and regulations. This initiative represents a voluntary agreement, and affords a Partnership alternative to the traditional OSHA enforcement procedures.

    By focusing efforts and utilizing the skills, knowledge, and resources of Messer Construction Co. (Messer), OSHA, and the OSHA Onsite Consultation Program, this Partnership expects to reduce exposure to hazards and the incidence of serious injuries, illnesses and fatalities at The Banks - Phase 1 project. Increased communication between the stakeholders and mutual respect are additional benefits expected from this cooperative and voluntary Partnership.

    OSHA has identified the top four causes of fatalities in construction as falls, struck-by- equipment or machinery, electrocution, and caught-in-between equipment. On average, OSHA has traditionally devoted about 50% of its compliance resources for enforcement activities in the construction industry. The goal for this Partnership Agreement is to relieve OSHA from the day-to-day burden of enforcing established safety standards on this project by teaming up with the other partnership members, and encourage voluntary compliance through regular inspections and enforcement conducted by the contractors themselves.
     
  3. Partners
    • Messer Construction Co. (Messer)
    • City of Cincinnati
    • Hamilton County
    • OSHA – Cincinnati Area Office
    • Contractors subject to site management
       
  4. Goals
    Participants in the Partnership will strive to:
     
    1. Reduce and/or eliminate serious injuries and illnesses, and provide a safe and healthy work environment for employees associated with The Banks - Phase 1 project.
       
    2. Increase the number of and the use of safety and health programs and best practices among contractors.
       
    3. Increase the number of employees and supervisors who have completed relevant safety training through programs such as orientation, re-orientation, and monthly safety training that may result in OSHA 10-Hour certification.
       
    4. Achieve a total lost workday injury and illness incident rate of 25% below the 2007 Bureau of Labor Statistics’ (BLS) industry average for construction (5.4).
       
  5. Strategies
    The following are the strategies that will be used in achieving the goals of the Partnership:
     
    1. The Safety4Site Program
      • Goals of the Program
        • The Safety4Site Program has been designed and implemented by Messer Construction Co. to eliminate unplanned occurrences and accidents on the projects.
        • The Safety4Site Program provides every participant at any Messer worksite with a role of safety responsibility, and holds everyone accountable.
        • The long term goal of the program is to have a lasting impact on the construction industry in terms of workplace safety.
      1. Key Elements of the Safety4Site Program
        • Eye Protection
          • Everyone on the jobsite must wear eye protection 100% of the time.
        • Huddle Meetings
          • Every work crew will meet before starting each shift to discuss their daily work plan, the hazards involved in the work, and the steps they will take to eliminate those hazards.
        • Accountability for Accidents, Incidents, and Near-Misses
          • There are certain non-negotiable behaviors that are not tolerated in the workplace. These non-negotiable behaviors fall into the four causes of most of the fatalities and serious accidents in the construction industry identified by OSHA: falls, struck by, caught-in-between, and electrical accidents. The non-negotiable behavior associated with the Safety4Site Program is attached as a reference.
      1. Accountability for Non-Negotiable Behaviors (violations of safety rules)
        • For first offense by an individual:
          • Individual is removed from site for one day;
          • Employer is notified of disciplinary action; and
          • Upon return to the workplace, the individual is given a handout regarding the policy which he must read, sign, and discuss at the next daily huddle meeting.
        • Second offense by an individual:
          • Individual is not permitted to work on any Messer jobsites for one year;
          • Prior to return, the individual must submit proof of suitable safety retraining; and
          • Messer employees are not eligible for re-hire for 30 days, and must complete an OSHA 10-Hour training program before returning to work.
        • Second offense by the same contractor/employee on this project:
          • The contractor must provide a dedicated competent safety person to the project until significant improvement in safety performance is demonstrated by the contractor.
        • Third offense by a contractor/employee all at same site or each on different sites:
          • Meetings at the Messer executive level about expectations and the possibility of termination of all contracts for cause with that contractor or lower tier-subcontractor violators.
          • Separate accountability measures will be put in place for unsafe behavior that is not considered non-negotiable.
    2. Conduct jobsite inspections utilizing the dbo2 SafetyNet system. This system provides a comprehensive safety observation process and documents safety trends over a wide perspective of site conditions.
       
    3. Ensure individuals on the site receive training/communication as follows:
      1. All employees will receive a site-specific safety orientation provided by Messer covering jobsite safety and health issues, and procedures relative to the work being performed. The Orientation will also review the Messer Safety4Site Program and the Non-Negotiable behavior pertaining to the accountability piece of the program. In addition, all site managers, including foremen, will view the “Remember Charlie” video. This 56-minute video focuses on one individual who was severely injured as a result of taking a short cut, and the effects it had on the rest of his life. Both of these will take place prior to performing work onsite.
      2. All individuals will attend a Daily Huddle meeting with their respective contractor before performing work each day. Meetings will be audited by Messer periodically to ensure effectiveness.
      3. All contractors’ supervisors shall have completed the OSHA 30-Hour safety program, and all contractor field employees will be required to have completed the OSHA 10-Hour program.
        Hazard-specific training will take place on an as-needed basis by the respective contractors.
    4. Although providing mandatory fall protection at the 6-foot level is not required for all fall hazards by the current OSHA construction standards, and is not mandated by OSHA as a requirement for participation in any OSHA Partnership agreement, the contractors in this Partnership are committed to providing a greater level of protection to the employees.
      1. Warning lines may be used six (6), ten (10), or fifteen (15) feet from the edge, as long as 100% restraint will be used to keep workers safe while working outside the warning line.
      2. Bricklayers performing overhand bricklaying and related work six (6) feet or higher above lower levels must be protected as described above, or a minimum of three (3) courses or 24-inch of block must be maintained between the individuals and the elevated edge, and secured at all times.
      3. Workers on the face of formwork or reinforcing steel must be protected from falling six (6) feet or more by personal fall arrest systems while climbing and in conjunction with the use of position devices while working.
      4. No safety monitor systems (SMS) or controlled access zones (CAZ) will be permitted.
    5. All contractors and subcontractors shall have an effective safety program in place, and shall submit written safety and health programs to Messer before the start of any onsite work. Contractors without written safety and health programs have the option of either adopting the safety and health program of Messer or developing their own by utilizing the services of a qualified third party.
       
    6. Contractors and their employees will be mentored and trained by Messer when applicable to the Partnership.
       
    7. The Cincinnati Area OSHA Office will be a reference for clarification and guidance when safety and/or health-related issues beyond the scope of Messer arise during the course of work.
       
    8. OSHA and the other program participants will create a good working relationship.
       
  6. Performance Measures
     
    1. To ensure that the tools are available to measure results, the Messer Site Safety Representative will collect the man-hours worked, the Total Case Incidence Rate (TCIR) and the Days Away, Restrictions, and Transfers (DART) rate data (as a baseline and annually), and compare the rates to the 2007 Bureau of Labor Statistics’ (BLS) national averages for construction. This information will be provided to the Cincinnati OSHA office annually.
       
    2. In addition, Messer will collect information on the following:
      1. The number of contractors associated with the project who:
        1. Have effective safety and health programs.
        2. Improve their safety and health programs as a result of the Partnership.
        3. The number of employees receiving the OSHA 10 and 30-Hour training and other hazard-specific training.
        4. The number of hazards identified/abated through site safety audits and monthly safety committee reviews.
  7. Partnership and Member Involvement
     
    1. Messer Construction Co. will:
      1. Facilitate, through its Site Safety Representative (SSR) on a monthly basis, an onsite Safety Review Committee (SRC) meeting attended by each contractor’s competent person and focused on the development of the OSHA Partnership agreement. The SRC will review the completed and summarized inspections of the site as part of the process. Hazards identified and corrected, as well as trends, will be discussed.
      2. Facilitate site compliance with the The Banks – Phase 1 project safety program, which is included in compliance documents and bid requirements.
      3. Have the authority to enforce safety rules and regulations without relieving contractors of their safety and health responsibilities. This authority will include Safety4Site provisions for non-negotiable behavior, in addition to provisions to hold contractors and employees accountable for all other unsafe behavior. Accountability may include removal of the individual from the jobsite.
      4. Require the use of wet-cutting techniques and/or dust collection systems, in addition to the use of approved respiratory protection when warranted. Personal air monitoring will be conducted to assess employee exposure levels. Where the potential for other health issues arise, Messer will aid in facilitating air monitoring to assess employee exposure levels. Results will be summarized and shared with OSHA, after they are received by Messer.
      5. Ensure that ground fault circuit interrupters (GFCI) will be used throughout the project.
      6. Maintain measurement systems monthly that will incorporate data to analyze the number of hours worked, number of injuries, illnesses, and fatalities, and the number of serious violations found as a result of onsite audits, jobsite inspections, and OSHA inspection activities.
      7. Strive to ensure compliance with National Fire Protection Association (NFPA) 70E when working on live electrical equipment, including training, and the availability and use of personal protective equipment. A permitting system will be implemented to oversee the implementation of appropriate protective measures prior to exposure.
      8. Ensure that weekly toolbox talks are conducted. Contractors will retain records of this weekly communication.
      9. Allow OSHA access to the jobsite during un-programmed inspection activities such as fatalities and formal employee complaints. In addition to OSHA’s notification requirements, Messer will notify the local OSHA Area Office of safety or health-related events that are likely to generate public attention and/or news media coverage. This notification will provide the Agency with timely and bona fide information for responding to Agency and public inquiries.
      10. Be responsible (through its SSR) for overseeing site safety, and will serve as the point of contact for questions concerning the elements of the Partnership.
      11. Provide signage identifying the site as an OSHA Partnership Project.
      12. Require all contractors to implement a Drug-Free Workplace Program. If a contractor does not have its own program, it must implement the Messer program or the Level 1 Ohio Bureau of Workers Compensation’s Drug Free Workplace Program.
      13. Provide a Project Superintendent/Labor Representative (with site safety responsibilities) to serve as a point of contact, and to assist the Site Safety Representative in overseeing the Partnership goals. This individual will review the jobsite from a safety perspective on a daily basis.
      14. Conduct and document jobsite safety inspections at least twice weekly. These inspections are in addition to the general undocumented inspections which should occur daily.
    2. OSHA will:
      1. Participate, as resources permit, in the monthly Partnership Committee meetings. However, OSHA will not participate in the site safety inspections.
      2. Designate a Compliance Assistance Specialist (CAS) to serve as a resource and liaison for Partnership participants. The CAS from the Cincinnati Area OSHA Office will be involved with the review of contractor safety and health programs, as well as other pertinent documentation, and will assist with training as needed.
      3. The CAS will review the monthly inspection reports/documents, the OSHA 300 data and make recommendations for improvement during monthly meetings on Partnership goals.
      4. The CAS will provide technical assistance as soon as possible, when requested, consistent with other OSHA priorities.
    3. Contractors/Suppliers will:
      1. Identify their competent persons who will attend the monthly safety partnership meetings, resolve jobsite safety matters, and be a liaison to the Messer jobsite Superintendent and the SSR.
      2. Conduct and document weekly jobsite safety and health inspections for those employees and work activities under their control. This will be in addition to the general, undocumented inspections that occur daily. If non-compliant activities or hazards are discovered, immediate response and/or correction will be required. Documentation of abatement must be kept on file and presented to Messer upon request.
      3. Share with all employees, including lower tier subcontractors, all jobsite safety inspections reviewed during the monthly meetings.
      4. Be required (at the discretion of Messer) through its (contractor) competent person to participate in weekly site safety inspections. If non-compliant activities or hazards are discovered, the affected contractor shall provide verification of abatement/correction and/or employee retraining to Messer within 24 hours of identification of the issue.
      5. Request services (mandatory) from an independent safety consultant if a safety and health program has not been developed or submitted for the project. (No work shall begin until this requirement is fulfilled).
      6. Fully comply with the Safety4Site Program.
         
  8. Benefits to Partnership Contractors
     
    1. In the event of an enforcement inspection where penalties are issued, OSHA will provide a maximum penalty reduction (25%), as allowed for in the OSHA Field Inspection Reference Manual (FIRM) for good faith and history. When calculating the initial penalty reduction, OSHA may provide an additional 10% reduction for good faith beyond the 25% reductions, also provided for in the FIRM where the employer, in implementing the OSP, has taken specific significant steps beyond those provided for in the FIRM to implement the Act and achieve a high level of employee protection (see FIRM, Chapter IV.C.2.i.5 [b]). This additional reduction will not apply to high gravity serious, willful, failure to abate or repeat citations. In cases where a partner’s total penalty reduction is 100 percent or more, the minimum penalty provisions of the FIRM will apply (see FIRM, Chapter IV.C.2.b).
       
    2. Priority will be given to “phone and fax” investigations of non-formal complaints in lieu of onsite inspections, except that Messer and its subcontractors will remain subject to OSHA inspections and investigations (including formal complaints) in accordance with Agency procedures.
       
    3. The site will be removed for six months from the programmed inspection list upon the successful completion of an OSHA monitoring inspection.
       
    4. Any apparent non-serious violation observed during an enforcement visit shall not be cited if it is immediately abated.
       
    5. The project will be given priority consideration for compliance assistance and offsite technical assistance.
  9. OSHA Inspections and Verification
     
    1. OSHA will conduct onsite non-enforcement verification annually during the duration of the Partnership. The non-enforcement “Focused Inspection” protocol addressing hazards related to falls, struck-by, caught-in-between, and electrical hazards will be followed. Inspections conducted in response to complaints, local emphasis programs, or referrals will qualify as the verifying inspection if, in addition to addressing the complaint/referral item(s), the compliance officer completes the focused inspection protocol for the worksite.
       
    2. Messer and contractors will remain subject to OSHA inspections and investigations in accordance with Agency procedures. OSHA will continue to investigate fatalities and catastrophes that occur at the jobsite.
  10. Employee Rights and Responsibilities
    This Partnership does not preclude employees and/or employers from exercising any right provided for under the OSH Act, nor does it abrogate any responsibility to comply with rules and regulations adopted pursuant to the Act.

    All contractors who work on The Banks - Phase 1 project, whether they are a signatory partner or not, are considered participants in this Partnership by virtue of the contractual agreement with Messer Construction Co. All contractor companies through the contract enacted by Messer Construction Co. will assume the safety and health requirements of this Partnership. Each company will be afforded the opportunity to become a signatory partner. The knowledge gained from this Partnership will be applied to reduce injuries and illnesses at future work sites.
     
  11. Annual Evaluation
    The Program will be evaluated annually during the duration of the project through the use of the Strategic Partnership Annual Evaluation Format measurement system, as specified in Appendix C of CSP 03-02-002 (OSHA Strategic Partnership Program for Worker Safety and Health Directive).

    It will be the responsibility of Messer to gather required data to evaluate and track the overall results and successes of the Partnership program. This data will be shared with OSHA.

    It will be the responsibility of OSHA to conduct, write and submit the annual evaluation.
     
  12. Termination
    This agreement shall be in effect until completion of the project. Should any “signatory” stakeholder choose to withdraw prior to the project completion, a written notice shall be given stating the reason(s) and the stakeholder must provide a 30-day notice to the other party(s).

    If OSHA chooses to withdraw its participation in the Partnership, the entire agreement is terminated. Any party may also propose modification or amendment to this agreement. Changes to the Partnership agreement may be implemented if all parties are in agreement that it is in the best interest of all the members involved.
     
  13. Signatures
    14.


________________________________________________________________
Occupational Safety & Health Administration
Mike Connors, Regional Administrator

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Date



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Occupational Safety & Health Administration
Richard T. Gilgrist, Area Director


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Date



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Board of Commissioners of Hamilton County, OH
Name


_________
Date



________________________________________________________________
Messer Construction Co.
Nick Rosian, Operations Vice President


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Date



________________________________________________________________
Messer Construction Co.
Alison Muth, Safety, Health and Environmental Vice President


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Date



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Messer Construction Co.
Mike Marksbury, Site Safety Coordinator


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Date



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Messer Construction Co.
Tom Bell, Project Executive


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Date