Partnership #834 - Agreement - September 3, 2013

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McCarthy Mortenson NBAF A Joint Venture (McMjv)

McCarthy Mortenson NBAF A Joint Venture (McMjv)
National Bio and Agro-Defense Facility - Project

    1. Background

      To facilitate the goal of reducing occupational related fatalities and serious injuries within the construction industry, the Wichita Area Office of the Occupational Safety and Health Administration (OSHA) and McCarthy Mortenson (McMjv) at National Bio and Agro Defense Facility (NBAF) have agreed to enter into a cooperative partnership agreement which will effectively implement all facets of jobsite safety and achieve self-compliance through cooperative efforts from labor, management, and OSHA.

      This Partnership is designed to address hazards within the construction industry, and to promote and recognize those jobsites controlled by a contractor that have demonstrated an effective safety and health program. The Partnership agreement is an effective tool for ensuring safety at NBAF project in Manhattan, KS. This Partnership will serve to establish a cooperative effort in ensuring safety and maintaining an open line of communication between OSHA and contractors on the worksite. This Partnership is consistent with OSHA's long-range efforts to develop a contractor/government partnership approach to safety management. It allows for better use of OSHA resources and innovation in safety management and encourages more participation in the safety process from the construction community.

    2. Project Description

      NBAF will be a state-of-the-art bio containment facility for the study of foreign animal, emerging and zoonotic (transmitted from animals to humans) diseases that threaten the U.S. animal agriculture and public health. NBAF will provide and strengthen our nation with critical capabilities to conduct research, develop vaccines and other countermeasures, and train veterinarians in preparedness and response against these diseases. For the past 50 years, the Plum Island Animal Disease Center (PIADC) has served our nation as the primary facility to conduct this research. The project is anticipated to be concluded in 2020.

    3. Partners
      1. OSHA Wichita Area Office
      2. MCMJV - McCarthy Mortenson NBAF A Joint Venture
      3. NBAF - National Bio And Agro-Defense Facility
      4. Project Subcontractors - All subcontractors that work on this project are considered Partners, and all contracts with subcontractors that are not already executed will incorporate this OSHA partnership into their respective agreements. If contracts with subcontractors have already been executed, MCMJV will attempt to incorporate this OSHA partnership into their respective agreements with a subcontractor change order which will include a provision acknowledging the subcontractor's obligations under this partnership agreement.

    This partnering agreement was developed jointly by MCMJV and OSHA. The common objective and goal of the agreement is to provide a safe and healthful work environment for employees involved in the construction industry and to help prevent serious accidents and fatalities within the 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 its efforts and utilizing the skills, knowledge and resources of OSHA and MCMJV, the partners expect to reduce exposure to hazards and the incidence of serious injuries and fatalities at Project NBAF. Increased communication between the stakeholders and the resultant mutual respect are additional benefits expected to be realized from this cooperative and voluntary Partnership.

    According to 2011 data from the Bureau of Labor Statistics (BLS), construction had a fatality rate of 9.1 (738 persons) per 100,000 employees compared with manufacturing rate of 2.2 (327 persons). OSHA has identified the top four causes of fatalities in the Construction sector of employment as falls, being struck by equipment or machinery, electrocution, and caught in or between. On an average, OSHA has traditionally devoted 40-50% of its compliance resources to enforcement activity in the construction industry. The goal of 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 McCarthy Mortenson and fostering compliance through self-inspections and self-enforcement. The goal for the Partnership is to significantly reduce and/or eliminate any accidents on this project and achieve a Days Away, Restricted or Transferred Rate (DART) per 100 employees for the project below the 2011 BLS National Average DART rate of 2.1 for construction, NAICS 23.

    Specifications and assignments within this partnership document do not relieve the contracts from or lessen their safety and health responsibilities nor change any contractual obligations between MCMJV and NBAF or any of MCMJV subcontractors, nor does it lessen any/all affirmative defenses, legal rights or due process afforded contractors with respect to Agency enforcement action.


    The overall goal of this Partnership is to create a working relationship that focuses on preventing work-related fatalities, controlling or eliminating serious workplace hazards, and establishing a foundation for the development of an effective safety and health program.

    This table is best viewed on tablets, notebooks, or desktop computer screens.

    Goals Strategies Performance Measures
    Achieve a rate of accidents, injuries and illnesses on the project below the most current published BLS National Average for all of construction;
    Zero fatalities
    Implementation of comprehensive safety and health management system for the site OSHA injury and illness data-Total Case Incident Rate (TCIR); Days Away, Restricted or Transferred (DART) Rate; Days Away From Work (DAFW) Rate below the most current published BLS National Average for construction
    Developing a contractor/government partnership that will encourage involvement of the owner, construction manager and subcontractors in the improvement of safety and health performance Require the contractor and all subcontractors to develop and implement written safety and health management systems (including a fall protection plan) Verify by reviewing the number of subcontractors that implemented and/or improved written safety and health management systems
    Implementing innovative strategies to eliminate serious accidents, including the four primary construction hazards (falls, struck-by, caught in, and electrical) 1. Provide all employees site specific safety orientation;
    2. Conduct 10-hour OSHA training courses (see 4.a. and 4.b. below under Program Implementation of Strategies);
    3. Implement and enforce an ongoing site safety audit program (to include weekly site walk through).
    Document the number of field employees trained and the training hours received (including orientation and 10 & 30-hour courses); document the number of hazards identified and abated during the safety audits; track all injuries and illnesses
    Provide for worker involvement Provide worker involvement in weekly site safety meetings; site safety walkarounds; Job Hazard Plans (JHPs) Document the number of workers involved in weekly site safety meetings; site safety walkarounds; and JHPs
    1. Program Implementation of Strategies - Strategies to achieve one or all of the above goals:
      1. MCMJV will establish a system to collect and analyze injury and illness trends (including near-miss incidents) by all contractors performing work at the site. This data will be used as a tool for continual safety and health program improvement at the site.
      2. Implement a comprehensive jobsite inspection program which includes:
        1. Complete job hazard analysis prior to employee exposures, identifying potential hazards to employee safety and health.
        2. Daily audits will be performed by MCMJV in a process referred to as McCarthy Mortenson Vital Processes (MVP). In addition, on a monthly basis, a comprehensive audit of the jobsite will be performed. Any hazards found during the audits will be corrected promptly. Any hazards which cannot be corrected on the day they are discovered will be tracked until abatement is completed, and affected employees will be informed as to the existence of any uncorrected hazard and interim measures to be taken until abated.
      3. Implement an aggressive Fall Protection Plan to include fall protection in all cases where work is being performed six feet or more above lower surfaces.
      4. Ensure employees receive training as follows:
        1. All supervisory personnel engaged in construction activities or other personnel serving in the capacity as a competent person shall have completed the OSHA 10 hour course for the construction industry (or its equivalent) prior to commencement on-site. Site personnel designated as safety representatives shall, as a minimum, have completed the OSHA 30 hour construction training course (or its equivalent). Records of training certification will be maintained and available for review by OSHA upon request.
        2. All employees will receive a site-specific construction safety orientation covering jobsite safety and health issues and procedures relative to the work being performed and the requirements outlined in this Partnership Agreement. In addition, employees shall receive training on the content of the Job Hazard Plan (JHP) for operations they will encounter. This may require periodic retraining of employees on the content of the JHPs as they become relevant due to entering new phases of construction.
        3. Safety and health training to Hispanic/Latino sub-contractors with non-English speaking employees will be conducted in Spanish, should the need arise.
        4. Other hazard-specific training will be conducted on an as-needed basis.
      5. Require sub-contractors who have written safety and health programs to submit them to MCMJV. MCMJV will evaluate all sub-contractors' programs. Companies that do not have or have a deficient written safety and health program have the option of either adopting the safety and health program of MCMJV or developing one by utilizing services provided by other Partnership members.
      6. Ensure health-related issues arising during the course of the construction work are adequately addressed by MCMJV and/or the affected sub-contractors, with assistance from the Wichita Area Office as needed. All health-related issues will be discussed quarterly during the partnership meetings.
      7. Create a working relationship between OSHA and all the Partners involved in the NBAF project.
    2. The overall success of the Partnership will be measured as follows:
      1. The measurement system will use OSHA recordable injuries and illnesses to determine the Days Away, Restricted, or Transferred (DART) Rate, Days Away from Work (DAFW) Case Rate and Total Case Injury and Illness Rate (TCIR) for the site compared to the most current BLS National Average for the construction industry. The BLS 2011 rates for NAICS 23 are 3.9, 2.1, and 1.5, respectively for TCIR, DART, and DAFW, which will serve as the baseline for the Partnership.
      2. Activity measures shall include the applicable number of employers, supervisors and employees trained. MCMJV will maintain the records of the 30-hour and 10-hour OSHA training certifications. All contractors will be required to conduct and document weekly safety toolbox talks.
      3. Intermediate measures will include the number of safety and health programs instituted and/or improved. The programs will be maintained on site and evaluated by MCMJV.
      4. Outcome measures will be gathered on an monthly basis and 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 activity.
      5. Documented jobsite inspections and the total number of hazards identified and corrected by the general contractor and by each sub-contractor. The job site inspections will indicate the number of hazards observed and subsequent progress and improvements with their safety and health programs.
      6. The number of actions of those individuals who do not fully comply with MCMJV safety philosophy. The tools for tracking these actions may be the near miss incident reporting system and the safety audits.
      7. Measurement factors will be compiled monthly by MCMJV and at the end of the project.
      8. Evaluation of the effectiveness of Fall Protection plans.

    The program will be evaluated on a quarterly basis through the use of the Strategic Partnership Annual Evaluation Format as specified in Appendix C of OSHA Instruction CSP 03-02-002, OSHA Strategic Partnership Program for Worker Safety and Health.

    It will be the responsibility of MCMJV to gather required participant data to evaluate and track the overall results and success of the Partnership program. This data will be shared with the Wichita Area Office.

    Evaluating the OSP and writing of the annual evaluation will be a collaborative effort between McCarthy Mortenson and the Wichita Area Office.


    Participant incentives from OSHA may include:

    1. In the event that a company performing work at the site is cited by OSHA, a maximum penalty reduction for good faith will be provided, in accordance with CPL 02-00-150, Field Operations Manual (FOM), dated April 22, 2011. In the event that the FOM is revised, OSHA shall provide such revised FOM provision to McCarthy Mortenson and the most current FOM will be utilized.
    2. Priority will be given to "phone and fax" investigations of all complaints in lieu of on-site inspections.
    3. Any apparent non-serious violation observed during an OSHA visit shall not be cited if it is immediately abated.
    4. This Partnership requires frequent inspections of the worksite by MCMJV, Subcontractors and other members of the Partnership to identify and correct hazards. It also serves as a model to Subcontractors and others by demonstrating how to implement a strong safety and health program on a large multi-employer jobsite. It also encourages a higher level of participation in the safety process by involving everyone on the jobsite. The knowledge gained from this Partnership will be applied to reduce injuries and illnesses at future work sites.

    OSHA will conduct one unannounced enforcement verification inspection each year for the term of the project. These inspections will follow the "Focused Inspection" protocol {Memorandum from James W. Stanley, "Guidance to Compliance Officers for Focused Inspections in the Construction Industry", dated August 22, 1994 (Revision 2 issued September 20, 1995 and incorporated herein)} addressing hazards related to falls, struck by, caught-in, and electrical hazards. Inspections conducted in response to complaints, Local and/or National Emphasis Programs (LEP/NEP), or referrals will qualify as the verification inspection if, in addition to addressing the complaint/LEP/NEP/referral item(s), the compliance officer completes the focused inspection protocol for the worksite.

    OSHA will continue to investigate fatalities and catastrophes should they occur at the jobsite as well as alleged "imminent" danger situations.

    OSHA will continue to investigate all complaints and referrals received in accordance with OSHA Instruction CPL 02-00-140, Complaint Policies and Procedures.

    1. McCarthy Mortenson NBAF A Joint Venture:
      1. Implement MCMJV "Safety Works" Program and a comprehensive safety and health program, which includes:
        1. Management commitment and employee involvement;
        2. Hazard analysis;
        3. Hazard control;
        4. Arrangement of training assistance for other partners on site.
      2. Mentor sub-contractors in safety and health management systems.
      3. Have the authority to enforce safety rules and regulations. This authority will include provisions to hold contractors and employees accountable and, if necessary, remove contractor employees from the job site.
      4. Provide a Project Superintendent who will have as a part of their job description a responsibility for site safety, to serve as a point of contact and to assist the Safety Manager in overseeing the partnership goals.
      5. The Site Safety Manager and/or Safety Coordinator will ensure that daily safety audits are conducted. Since this is a multi-employer worksite and all workers are to work together on safety issues, a schedule of all daily site-safety audits will be developed by MCMJV. This schedule will be posted at the office trailers for easy access.
      6. Conduct and document job site safety meetings/toolbox talks on a weekly basis.
      7. MCMJV designated Safety Manager will coordinate and conduct a comprehensive site audit on a monthly basis. Partnership Members will participate in the site safety audit when needed. The safety representative for each sub-contractor currently working on-site will also participate in the monthly safety audit. If non-compliant activity or hazards are discovered, immediate correction is required. MCMJV will document the corrective action taken and share this information during the monthly update meetings.
      8. Provide signage identifying the site as an OSHA Partnership Project.
      9. Audit the partnership and make recommendations for improvement.
      10. Jobsite inspections and select near misses will be shared and made available to all workers.
      11. Maintain accident/injury data. Subcontractor EMR data will be made available to OSHA upon request.
      12. In addition to OSHA's notification requirements, MCMJV will notify the Wichita Area Office of safety or health related events which are likely to generate public attention and/or news media coverage. This notification will be provide in a timely manner and will include sufficient background and incident information for responding to agency and public inquiries.
    2. OSHA
      1. OSHA may participate in weekly meetings, but will not participate in the weekly walk around inspections.
      2. OSHA will designate an experienced safety and health specialist to serve as a resource and liaison for Partnership participants. The Compliance Assistance Specialist (CAS) from the Wichita Area Office will assist with safety and health training, as resources permit.
      3. OSHA will give priority to Project at NBAF when technical assistance is needed.
      4. OSHA will ensure that the Partnership is evaluated quarterly and will include data used to monitor the success of the Partnership efforts. On a quarterly basis, the Safety Manager for MCMJV, Subcontractors' representatives, and an OSHA representative shall meet and discuss the program and make modifications as required to continually improve the Partnership.
      5. OSHA will participate in the review of Partnership company safety and health programs, with Subcontractors as useful, and provide technical assistance and recommendations for improvement.
      6. OSHA will provide national statistics covering all areas of standards enforcement for distribution to the Partners.
    3. Subcontractors:
      1. Appoint an on-site person to act as a safety representative to resolve jobsite safety matters and be the liaison to MCMJV Safety Manager.
      2. Conduct documented jobsite safety inspections for those employees under their control. This will allow specific subcontractor employees to participate in the monthly documented inspection process, increasing hazard awareness for not only their work operations, but all work operations being performed on site. If non-compliant activity or hazards are discovered, immediate correction is required. Findings and abatement of the monthly documented inspections will be communicated to all employees on site.
      3. Conduct and document weekly jobsite safety meetings and make them available to MCMJV, all employees on site and OSHA upon request.
      4. All jobsite inspections will be shared and made available to all workers in the project office.
      5. Ensure that its employees receive jobsite safety orientation prior to commencing work on site.
      6. Subcontractors will be required to submit a Job Hazard Plan (JHP) prior to any tasks being performed onsite. Subcontractors are required to review JHPs with their employees prior to start of the work activity, whenever new employees begin work on site, and monthly thereafter. JHPs are considered living documents. When processes or procedures change, JHPs shall reflect any changes to the activities. Field level employees shall be allowed to participate in development and modifications to all JHPs.
      7. Cooperate and participate in all respects with OSHA's involvement with this project including any required meetings, inspections, training and documentation.
  8. Employee and Employer Rights and Responsibilities

    This partnership does not preclude employees and/or employers from exercising any right provided under the OSHA Act (or, for federal employees, 29 CFR 1960), nor does it abrogate any responsibility to comply with the Act.


    This agreement shall be in effect until completion of construction activities, except that the power of termination, on the condition of thirty (30) days prior written notice to the other party, is expressly reserved to either or both of the principal participants, OSHA and MCMJV.

    Should either of the principal participants (OSHA or MCMJV) elect to withdraw from participation in the Partnership prior notification in writing of the intent to terminate shall be given to the other Party. A thirty (30) day written notice is required prior to termination, during which the parties have an opportunity to resolve any issues to avoid termination. Termination by either Party shall constitute a cancellation of the Partnership. In the event of a termination, each party agrees that it shall not, directly or indirectly, contact the media regarding the termination; and it shall not discuss with the media any issues or matters regarding the termination. OSHA and MCMJV are the only entities that can terminate this Partnership.

    Modifications or amendments to the Partnership agreement may be implemented if all parties are in agreement that it is in the best interest of all members involved.


    The date of this OSHA Wichita Area Office and McCarthy Mortenson. Partnership Agreement is ____________, 2013.




Judy Freeman, Area Director
OSHA Wichita Area Office


Jon Jacobsmeyer, Project Director
McCarthy Mortenson


Seth Kelso, Project Manager
McCarthy Mortenson


Matt Dierking, Project Safety Manager
McCarthy Mortenson


Kevin Maitland
Regional Safety Director
McCarthy Mortenson


Bob Psaris, Project Superintendent
McCarthy Mortenson

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