June 29, 2000
The Honorable Board of Supervisors
County of Los Angeles
383 Kenneth Hahn Hall of Administration
500 W. Temple Street
Los Angeles, CA 90012
Dear Supervisors:
RECOMMENDATION TO AWARD THE COUNTY’S TRAVEL
MANAGEMENT AGREEMENT TO AMERICAN EXPRESS ONE
ALL DISTRICTS
(3 VOTES)
IT IS RECOMMENDED THAT YOUR BOARD:
Approve and instruct the Chair to sign the attached three-year agreement, with the option to extend for two additional years, to award the County’s travel management agreement to American Express Travel Related Services Company, Inc., d/b/a American Express One.
PURPOSE OF RECOMMENDED ACTION
The purpose of this recommended action is for your Board to approve the contract with American Express One so that County employees can continue to receive comprehensive travel management services for authorized business travel.
In August 1994 your Board awarded a three-year agreement, with the option of two additional years, to Thomas Cook Travel for comprehensive travel management services. In December 1995, Thomas Cook Inc. merged with American Express Travel Management Services. The existing agreement expired August 31, 1999.
We have received travel management services on a month-to-month basis pending the selection and approval of a new travel services provider. The proposed agreement is for a three-year period, with a provision for two additional one-year options.
JUSTIFICATION
Board approval is required to continue to receive travel management services from American Express One. An evaluation team composed of representatives from five County departments concluded that American Express One’s proposal was the most responsive to the needs of the County. The key factors impacting the team’s decision were the proposed staffing levels and relevant experience.
American Express One will operate under the County’s travel policies which include obtaining the lowest possible fare for authorized official government travel. The agreement requires that American Express One provide or arrange for travel services for authorized official travel including:
w Transportation reservations for air, rail, bus, and ship carriers, including the
delivery of tickets
w Vehicle rental services
w International travel, including assistance in obtaining passports, visas, etc.
w Reservations for lodging in hotels and motels
w Detailed traveler’s itineraries
w Management information and billing reports
w The coordination/arrangement of seminars, meetings, workshops and the like conducted by County agencies. This includes booking conference rooms and lodging, arranging meals and transportation, etc.
In addition, American Express One provides a 24-hour emergency number to assist clients who have immediate travel needs. The emergency services can be accessed for transportation reservations outside County regular working hours.
FISCAL IMPACT
Estimated annual cost to the County is $120,000 which is based on an average of 6,000 tickets purchased per year. American Express One charges a $20 transaction fee for every air or rail ticket issued. Currently, most travel agencies charge a fee for transportation reservations.
In prior years, we did not incur transaction fees for transportation reservations. During the last few years, the airline industry has continued to lower travel agency commissions, which means less revenue for the agencies. Consequently, most travel agencies now charge a fee for issuing air tickets. There are no processing fees for hotel or rental car reservations.
FINANCING
American Express One will bill the Department of Auditor-Controller the $20 transaction fee for each air or rail ticket issued. The Auditor-Controller will subsequently bill the individual departments that requested travel services the applicable transaction fees using American Express One travel services.
County departments may still make travel reservations through the Internet or directly with the airlines to avoid a transaction fee. However, consideration must be given to the time-consuming process of County staff searching for lower fares. County departments should also consider the added benefits of using American Express One, such as better tracking of travel activities which is offered under the comprehensive travel management services.
CONTRACTING PROCESS
A Request for Proposals (RFP) was mailed to twenty travel agencies including nine agencies who had, in prior years, requested to be included in future bids or who we identified as major providers of travel services.
We received two responses to the RFP. An informal survey of the non-responders revealed that more bids were not submitted primarily because the opportunities for financial success in the travel agency field are highly dependent on providing ancillary services such as tour packages, travel management consulting services, etc.
An evaluation team composed of representatives of the Auditor-Controller, Public Works, Internal Services, Children and Family Services, and the Board of Supervisors reviewed the two proposals based on such factors as company and personnel qualifications, equipment capability, and fees.
The evaluation team recommends that the agreement be awarded to American Express One because of the firm’s superior qualifications and the staffing level which will be dedicated to manage the County’s travel needs.
The lowest bidder was not selected. The lowest bidder proposed a net cost to the County of $60,760, with a staffing level of less than half the level proposed by American Express One. It is possible that additional staffing may be required by the lowest bidder to manage the County’s volume. As a result, the proposed contract cost would increase by the cost of the agent’s salary and benefits.
In addition, it should be noted that the lowest bidder proposed a “Cost Plus” fee program. Actual expenses are offset against commission revenues to arrive at the net contract cost. Consequently, the estimated total contract cost is subject to change and is therefore unknown to the County.
The RFP was listed on the County Office of Small Business Web Site as part of the procurement process in June 1999.
The attached agreement has been approved as to form and content by County Counsel.
Respectfully submitted,
J. Tyler McCauley
Auditor-Controller
JTM:MLG:mmo
Attachment
c: Chief Administrative Officer
Executive Officer, Board of Supervisors
County Counsel
AGREEMENT FOR TRAVEL MANAGEMENT SERVICES
This agreement, made and entered into this __________ day of ____________________________, 2000
BY AND BETWEEN
COUNTY OF LOS ANGELES
a body corporate and politic, hereinafter referred to as "COUNTY"
AND
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., d/b/a AMERICAN EXPRESS ONE with corporate headquarter offices at
5000 Atrium Way, Mt. Laurel, NJ 08054, and local offices at
222 N. Sepulveda Blvd., Suite 150, El Segundo, CA 90069, hereinafter referred to as "CONTRACTOR".
RECITALS
WHEREAS, COUNTY is desirous of contracting for travel management services; and
WHEREAS, the CONTRACTOR is in a unique position to provide such services as contained herein by virtue of the Contractor's extensive experience in the field;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, COUNTY and CONTRACTOR hereby agree as follows:
I. MERGER
This agreement, Attachments A and B, and the Travel Management Proposal (TMP) dated July 1999, which are hereby incorporated shall constitute the complete and exclusive statement of understanding between the parties, which supersedes all previous written or oral agreements and all prior communications between the parties relating to the subject matter of this agreement. If there is a conflict between the body of this agreement and/or the Attachments and/or the TMP, it will be resolved by giving preference first to the agreement, and then to the Attachments, and then to the TMP.
II. STATEMENT OF WORK AND FEE SCHEDULE
COUNTY agrees to place the bulk of its travel needs through CONTRACTOR. In turn, CONTRACTOR shall provide the services and materials set forth in Attachment A, Statement of Work. CONTRACTOR also agrees to provide all services described in its Travel Management Proposal dated July 1999, not otherwise included in this contract. The COUNTY agrees to the fee schedule set forth in Attachment B, Fee Schedule.
III. CONTRACT PERIOD
The contract period will be a three-year period commencing on the first day of the month following the date of the award by the County Board of Supervisors. The County Auditor-Controller will have the option to extend for two additional one-year renewal terms.
IV. WARRANTY
CONTRACTOR specifically warrants it will use its best efforts to provide the lowest logical available air, motel, hotel, and auto rental rates commensurate with the individual traveler's needs and consistent with the COUNTY's travel policy. If, in any specific instance, it can be shown that a lower logical rate was available at the time of booking and CONTRACTOR did not offer it, CONTRACTOR will remit to the COUNTY the difference between the rate used and the lowest logical available rate. This warranty does not include internet fares. CONTRACTOR warrants that it is and will be capable of providing for all of the COUNTY's travel needs during the term hereof, that it will provide for same on a timely and most cost-effective basis and that it has and will have the personnel, equipment, finances, experience, and expertise to so perform.
V. DELAYS
CONTRACTOR shall promptly notify the COUNTY Travel Manager, or authorized representative, and any travelers, verbally and/or in writing of the facts relating to any case which has or may result in delay or failure to perform. CONTRACTOR shall not be held accountable for failure in performance of this service contract in accordance with its terms if such failure can be shown by CONTRACTOR to have arisen from causes beyond the control and without the fault or negligence of CONTRACTOR. Examples of such causes are acts of God, war, riot, embargoes, acts of civil or military authorities, acts of terrorism, fire, floods, accidents, labor strike, including supplier strikes, defaults, delays, shortages of transportation facilities, fuel, labor, epidemics, quarantine restriction, and inclement weather. In every case, the failure to perform must be beyond the control and without the fault or negligence of CONTRACTOR. If failure to perform does occur, CONTRACTOR shall not be deemed at fault unless (1) the services to be furnished were obtainable from other sources at comparable cost and schedule, (2) the COUNTY shall have directed CONTRACTOR in writing to procure such services from such other sources, and (3) CONTRACTOR shall have failed to comply reasonably with such directives.
VI. PROVISIONS FOR CANCELLATION OR TERMINATION OF CONTRACT
A. Termination for Convenience: The COUNTY and the CONTRACTOR reserve the right to cancel this agreement without cause on thirty (30) days' advance written notice. In the event of such cancellation, the CONTRACTOR shall be paid for actual costs in accordance with Attachment B.
B. Termination for Default of CONTRACTOR: COUNTY may, subject to the provisions outlined below, by written notice of default to the CONTRACTOR, immediately terminate the whole or any part of this agreement in any one of the following circumstances:
1. If CONTRACTOR fails to perform the service within the time specified or any extension thereof; or,
2. If CONTRACTOR fails to perform any of the other provisions of the contract, or so fails to make progress as to endanger performance of the contract in accordance with its terms, and in either of these two circumstances does not cure such failure within a period of thirty (30) calendar days (or such longer period as the COUNTY may authorize in writing) after receipt of notice from COUNTY specifying such failure.
In the event COUNTY terminates the contract in whole or in part as provided in this section, COUNTY may procure, upon such terms and in such manner as COUNTY may deem appropriate, services similar to those terminated, and CONTRACTOR shall be liable to COUNTY for any excess costs incurred by COUNTY. If, after notice of termination of the contract for default, it is determined for any reason that CONTRACTOR was not in default or that CONTRACTOR's failure to perform was excusable, the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to paragraph A above, entitled "Termination for Convenience".
C. Default for Insolvency: COUNTY may cancel this agreement for default in the event of the occurrence of any of the following:
1. Insolvency of CONTRACTOR. CONTRACTOR shall be deemed insolvent if it has ceased to pay its debts in the ordinary course of business or cannot pay its debts as they become due, whether it has committed an act of bankruptcy or not, and whether insolvent within the meaning of the Federal Bankruptcy Law or not;
2. The voluntary filing of a bankruptcy petition or the filing of an involuntary bankruptcy proceeding against CONTRACTOR and relief from the automatic stay is obtained by COUNTY;
3. The appointment of a Receiver or Trustee for CONTRACTOR, provided that the Receiver or Trustee is not dismissed within 30 days of appointment; and,
4. The execution by CONTRACTOR of an assignment for the benefit of creditors.
The remedies reserved to COUNTY under this section shall be cumulative and additional to any other remedies provided in law or equity.
D. Termination for Improper Consideration: COUNTY may, by written notice to CONTRACTOR, immediately terminate the right of CONTRACTOR to proceed under this agreement if it is found that consideration, in any form, was offered or given by CONTRACTOR, either directly or through an intermediary, to any COUNTY officer, employee or agent with the intent of securing the agreement, of securing favorable treatment with respect to the award, amendment or extension of the agreement or the making of any determinations with respect to the CONTRACTOR’s performance pursuant to the agreement. In the event of such termination, COUNTY shall be entitled to pursue the same remedies against CONTRACTOR as it could pursue in the event of default by the CONTRACTOR.
CONTRACTOR shall immediately report any attempt by a COUNTY officer or employee to solicit such improper consideration. The report shall be made either to the COUNTY manager charged with the supervision of the employee or to the COUNTY Auditor-Controller’s Employee Fraud Hotline at (213) 974-0914 or (800) 544-6861. Among other items, such improper consideration may take the form of cash, discounts, services, the provision of travel or entertainment, or tangible gifts.
E. Material Changes: The parties hereby recognize that the financial terms of this Agreement are based upon certain assumptions about standard travel industry conventions, and about COUNTY’s service requirements. If there is a material change (i) in any rules, orders, laws, or regulations, whether by a court of law, a government entity, an airline, the International Airline Travel Agency Network or the Airlines Reporting Corporation, or any other applicable governing body, governing the manner in which CONTRACTOR or other travel agents may operate, or (ii) in COUNTY’s service configuration or service needs, any of which result in additional fees, losses, costs, surcharges or expenses being imposed on CONTRACTOR to perform this Agreement, then upon notice to COUNTY, CONTRACTOR will have the right, beginning on the date of such material change, to increase the Transaction Fee in an amount as reasonably necessary to compensate CONTRACTOR for such additional fees, losses, costs, surcharges or expenses. CONTRACTOR will (1) notify COUNTY via e-mail and fax within twenty-four (24) hours after CONTRACTOR determines to increase the Transaction Fee as a result of a material change and (2) provide COUNTY with written notice (Notice) of any such change in the Transaction Fee. The Notice to COUNTY shall be provided as indicated in Section XXV, of this Agreement.
If upon receipt of such Notice, COUNTY does not accept the new Transaction Fee, COUNTY may terminate this Agreement immediately upon written notice to CONTRACTOR within 15 business days of receipt of the Notice. Failure to provide written notice of termination within 15 business days shall constitute COUNTY’s acceptance of the new Transaction Fee.
Notwithstanding anything in this Agreement to the contrary, neither CONTRACTOR, nor any of CONTRACTOR’s parent, affiliated or subsidiary companies, nor any of CONTRACTOR or its respective employees, officers, directors, representatives or agents, are responsible or liable for any loss, damage, delay, inconvenience or injury to any person(s) which results from or arises out of: (1) any Supplier’s breach of contract, any Supplier’s failure to comply with applicable laws, or any Supplier’s intentional, negligent or wrongful actions or omissions; or (2) any other acts, omissions, negligence or conditions outside of CONTRACTOR’s control, including, without limitation, terrorist activities, social or labor unrest, mechanical or construction failures or difficulties, diseases, local laws, and climactic conditions. “Supplier” means any entity providing travel related services, including but not limited to, air, ground or water transportation, or accommodations, meals, tours, etc.
Neither party shall be liable to the other party for any indirect, special, incidental, consequential, punitive, or exemplary damages of any kind, including without limitation, lost revenues, loss of profits, or loss of business, arising from this Agreement or relating to the obligations hereunder.
VII. INDEPENDENT CONTRACTOR STATUS
A. This agreement is by and between the COUNTY and CONTRACTOR and is not intended and shall not be construed to create the relationship of agent, servant, employee, partnership, joint venture or association, between COUNTY and CONTRACTOR.
B. CONTRACTOR understands and agrees that all persons furnishing services to COUNTY pursuant to this agreement are, for purposes of Workers' Compensation liability, employees solely of CONTRACTOR and not of COUNTY.
C. CONTRACTOR shall bear the sole responsibility and liability for furnishing Workers' Compensation benefits to any person for injuries arising from or connected with services performed on behalf of COUNTY pursuant to this Agreement.
VIII. INDEMNIFICATION
A. CONTRACTOR agrees to indemnify, defend and save harmless the COUNTY, its officers, agents and employees from and against any and all liability, expense, including defense costs and legal fees and claims for damages of any nature whatsoever, including, but not limited to bodily injury, death, personal injury or property damage arising from or connected with CONTRACTOR's negligent performance of its services hereunder, including any Workers’ Compensation suits, liability or expense arising from or connected with services performed on behalf of CONTRACTOR by any person pursuant to this agreement.
B. CONTRACTOR further agrees to indemnify, defend and save harmless the COUNTY, its officers, agents and employees against any and all liability and demands for actual or alleged infringements of any patents, copyrights or trade secrets by reason of any use by the CONTRACTOR for the COUNTY itself of any material, machines or systems furnished.
IX. INSURANCE
Without limiting CONTRACTOR's indemnification of COUNTY, CONTRACTOR shall provide and maintain, at its own expense during the term of this agreement, the following policies of insurance covering its operations hereunder. Such insurance shall be secured through a carrier satisfactory to the COUNTY's Risk Manager and evidence of such insurance, along with significant endorsements, shall be delivered to COUNTY's Chief Administrative Office on or before the effective date of this agreement. Such evidence shall specifically identify this agreement and shall contain express conditions that COUNTY is to be given at least thirty (30) days' written notice in advance of any modification or termination of any policy of insurance:
1. Liability: Such insurance shall be primary to and not contributing with any other insurance maintained by COUNTY, and shall name the COUNTY as an additional insured, and shall include but not be limited to:
a) Comprehensive General Liability Insurance, endorsed for Premises-Operations, Products/Completed Operations, Contractual, Broad Form Property Damage and Personal Injury with a combined single limit of not less than $300,000 per occurrence.
b) If the above insurance is written on a Claims Made Form, such insurance shall be endorsed to provide an extended reporting period of not less than five (5) years following termination of this agreement.
2. Worker's Compensation: A program of Worker's Compensation Insurance shall be maintained in an amount and form to meet all applicable requirements of the Labor Code of the State of California including Employers Liability with a $150,000 limit covering all persons providing services on behalf of CONTRACTOR and all risk to such persons under this agreement.
3. Failure to Procure Insurance: Failure on the part of CONTRACTOR to procure or maintain required insurance shall constitute a material breach of contract upon which COUNTY may immediately terminate or suspend this agreement.
X. LANGUAGE AND UNITS OF MEASUREMENT
Everything related to the performance of this Agreement shall be written in the English language and all numerical data furnished herein shall use the foot-pound-second system of units of measurement.
XI. LIMITATION OF COUNTY’S OBLIGATION DUE TO NON-APPROPRIATION
The COUNTY’s obligation is payable only from funds appropriated for the purpose of the contract. All funds for payments after the end of the current fiscal year are subject to COUNTY’s legislative appropriation for this purpose. COUNTY shall notify CONTRACTOR at least ten days prior to the end of the current fiscal year in the event this contract extends into succeeding fiscal year periods, and the Board of Supervisors does not allocate sufficient funds for the next succeeding fiscal year’s payments. Upon receipt of such notification from COUNTY, CONTRACTOR may terminate services in accordance with the provisions of Section VI A, “Termination for Convenience”, as of the end of the current fiscal year.
XII. CRIME COVERAGE
A credit card forgery policy shall be maintained in an amount of not less than $50,000 insuring the COUNTY against credit card forgery. Such insurance shall be primary to, and not contributing with, any other insurance maintained by the COUNTY and shall include a loss payee endorsement naming the COUNTY as an additional insured.
XIII. COVENANT AGAINST CONTINGENT FEES
CONTRACTOR warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee. For breach or violation of this warranty, the COUNTY shall have the right to terminate this agreement and recover the full amount of such commission, percentage, brokerage or contingent fee.
XIV. GOVERNING LAWS
This Agreement shall be governed by and construed in accordance with the laws of the State of California.
XV. COMPLIANCE WITH LAWS
A. CONTRACTOR agrees to comply with all applicable Federal, State and local laws, rules, regulations and ordinances and all provisions required thereby to be included herein are hereby incorporated by this reference.
B. CONTRACTOR shall indemnify and hold COUNTY harmless from any loss, damage or liability resulting from a violation on the part of the CONTRACTOR of such laws, rules, regulations and ordinances.
XVI. DELEGATION AND ASSIGNMENT
CONTRACTOR shall not delegate its duties or assign its rights hereunder, or both, either in whole or in part, without the prior written consent of COUNTY. Any such attempted delegation or assignment shall be void, and shall be grounds for immediately terminating this agreement.
XVII. SUBCONTRACTING
No performance of this contract or any portion thereof may be subcontracted by CONTRACTOR without the express written consent of COUNTY.
XVIII. COUNTY’S QUALITY ASSURANCE PLAN
The COUNTY or its agent will evaluate CONTRACTOR’s performance under this agreement on not less than an annual basis. Such evaluation will include assessing CONTRACTOR’s compliance with all contract terms and performance standards. CONTRACTOR deficiencies which COUNTY determines are severe or continuing and that may place performance of the agreement in jeopardy if not corrected will be reported to the Board of Supervisors. The report will include improvement/corrective action measures taken by the COUNTY and CONTRACTOR. If improvement does not occur consistent with the corrective action measures, COUNTY may terminate this agreement or impose other penalties as specified in this agreement.
XIX. CONTRACTOR RESPONSIBILITY AND DEBARMENT
A. A responsible Contractor is a Contractor who has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity and experience to satisfactorily perform the contract. It is the COUNTY’s policy to conduct business only with responsible contractors.
B. The CONTRACTOR is hereby notified that, in accordance with Chapter 2.202 of the County Code, if the COUNTY acquires information concerning the performance of the CONTRACTOR on this or other contracts which indicates that the CONTRACTOR is not responsible, the COUNTY may, in addition to other remedies provided in this agreement, debar the CONTRACTOR from bidding on COUNTY contracts for a specified period of time not to exceed 3 years, and terminate any or all existing contracts the CONTRACTOR may have with the COUNTY.
C. The COUNTY may debar a contractor if the Board of Supervisors finds, in its discretion, that the CONTRACTOR has done any of the following: (1) violated any term of a contract with the COUNTY, (2) committed any act or omission which negatively reflects on the CONTRACTOR’s quality, fitness or capacity to perform a contract with the COUNTY or any other public entity, or engaged in a pattern or practice which negatively reflects on same, (3) committed an act or offense which indicates a lack of business integrity or business honesty, or (4) made or submitted a false claim against the COUNTY or any other public entity.
D. If there is evidence that the CONTRACTOR may be subject to debarment, the COUNTY will notify the CONTRACTOR in writing of the evidence which is the basis for the proposed debarment and will advise the CONTRACTOR of the scheduled date for a debarment hearing before the Contractor Hearing Board.
E. The Contractor Hearing Board will conduct a hearing where evidence on the proposed debarment is presented. The CONTRACTOR and/or the CONTRACTOR’s representative shall be given an opportunity to submit evidence at that hearing. After the hearing, the Contractor Hearing Board shall prepare a proposed decision, which shall contain a recommendation regarding whether the CONTRACTOR should be debarred, and, if so, the appropriate length of time of the debarment. If the CONTRACTOR fails to avail itself of the opportunity to submit evidence to the Contractor Hearing Board, the CONTRACTOR may be deemed to have waived all rights of appeal.
F. A record of the hearing, the proposed decision and any other recommendation of the Contractor Hearing Board shall be presented to the Board of Supervisors. The Board of Supervisors shall have the right to modify, deny or adopt the proposed decision and recommendation of the Hearing Board.
G. These terms shall also apply to [subcontractors/subconsultants] of COUNTY CONTRACTORS.
XX. RECORD RETENTION AND INSPECTION
Within five days of a written request from COUNTY, CONTRACTOR shall allow any duly authorized COUNTY representative to have access to and examine, audit, excerpt, copy or transcribe any pertinent transaction, activity, time cards or other records relating to this agreement. Such material, including all pertinent cost accounting, financial records and proprietary data, shall be kept and maintained by CONTRACTOR for a period of two (2) years after completion of this contract. In the event records are located outside the COUNTY, CONTRACTOR shall pay COUNTY for travel and per diem costs at per diems established by the COUNTY, connected with any inspection or audit, or make such records available within the COUNTY within 5 days of request.
XXI. DISCLOSURE OF INFORMATION
CONTRACTOR shall not disclose any details in connection with this contract to any party, except as may be otherwise provided herein or required by law. However, in recognizing the CONTRACTOR's need to identify its services and related clients to sustain itself, the COUNTY shall not inhibit CONTRACTOR from publicizing its role under this agreement within the following conditions:
1. CONTRACTOR shall develop all publicity material in a professional manner.
2. During the course of performance on this agreement, CONTRACTOR, its employees, agents, and subcontractors shall not publish or disseminate commercial advertisements, press releases, opinions or feature articles, using the name of the COUNTY without the prior consent of the Chief Administrative Officer and County Counsel.
XXII. NOTICE OF DELAYS
Except as otherwise expressly provided herein, when either party has knowledge that any actual or potential situation is delaying or threatens to delay the timely performance of this agreement, that party shall, within five (5) days, give notice thereof, including all relevant information with respect hereto, to the other party.
XXIII. VALIDITY
The invalidity in whole or in part of any provision of this contract shall not void or affect the validity of any other provision.
XXIV. WAIVER
No waiver of a breach of any provision of this agreement by COUNTY shall constitute a waiver of any other breach of said provision or any other provision of this contract. Failure of COUNTY to enforce at any time, or from time-to-time, any provision of this Agreement, shall not be construed as a waiver thereof. The remedies of COUNTY herein reserved shall be cumulative and additional to any other remedies in law or equity.
XXV. NOTICES
Notices required or permitted to be given under the terms of this agreement may, at the option of the party giving notice, be given by enclosing the same in a sealed envelope addressed to the party for whom intended and by depositing such envelope with postage prepaid in the United States Post Office or substation thereof, or any public mail box; and any such notice and envelope containing same shall be addressed to CONTRACTOR at its place of business as designated on Page 1 of this agreement, or such other place as may be hereinafter designated in writing by CONTRACTOR. The notices and envelopes containing same to COUNTY shall be addressed to:
Mr. J. Tyler McCauley
Auditor-Controller
County of Los Angeles
500 W. Temple St., Room 525
Los Angeles, CA 90012
Phone Number: 213) 974-8301
Fax Number: 213) 626-5427
e-mail Address: tmccaule@auditor.co.la.ca.us
In the event of suspension or termination of this contract, notices may also be given upon personal delivery to any person whose actual knowledge of such suspension or termination would be sufficient notice to CONTRACTOR. Notwithstanding the foregoing, Notices pursuant to paragraph VI. E. “Material Changes” shall be given by e-mail and fax.”
XXVI. NONDISCRIMINATION IN EMPLOYMENT
A. CONTRACTOR certifies and agrees that all persons employed by it, its affiliates, subsidiaries or holding companies, are and will be treated equally by it without regard to or because of race, color, religion, ancestry, national origin, sex, age or condition of physical or mental handicap, marital status or political affiliation, in compliance with all applicable Federal and State anti-discrimination laws and regulations.
B. CONTRACTOR shall take affirmative action to ensure that qualified applicants are employed and that employees are treated during employment without regard to race, color, religion, sex, ancestry, national origin, age or condition of physical or mental handicap or marital status, or political affiliation. Such action shall include, but is not limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship.
C. CONTRACTOR shall deal with its subcontractors, bidders, or vendors without regard to or because of race, color, religion, ancestry, national origin, sex, age or condition of physical or mental handicap or marital status, or political affiliation.
D. CONTRACTOR shall allow COUNTY representatives access to its employment records during regular business hours to verify compliance with the provisions of this section when so requested by
COUNTY's Contract Manager.
E. If COUNTY finds that any of the above provisions have been violated, the same shall constitute a material breach of contract upon which COUNTY may determine or cancel, terminate, or suspend this contract. While COUNTY reserves the right to determine independently that the anti-discrimination provisions of this contract have been violated, in addition, a determination by the California Fair Employment Practices Commission or the Federal Equal Employment Opportunity Commission that CONTRACTOR has violated State or Federal anti-discrimination laws or regulations shall constitute a finding by COUNTY that CONTRACTOR has violated the anti-discrimination provisions of this agreement.
F. The parties agree that in the event CONTRACTOR violates the anti-discrimination provisions of this agreement, COUNTY shall, at its option, be entitled to a sum of $500.00 pursuant to California Civil Code Section 1671 as liquidated damages in lieu of cancelling, terminating or suspending this agreement.
XXVII. CONFLICT OF INTEREST
CONTRACTOR represents and warrants that no COUNTY employee whose position in the COUNTY enables him/her to influence the award of this agreement, and no spouse or economic dependent of such employee is or shall be employed in any capacity by CONTRACTOR herein or does or shall have any direct or indirect financial interest in this agreement.
XXVIII. CONFIDENTIALITY
CONTRACTOR shall maintain the confidentiality of all its records, including but not limited to billings, COUNTY records, and passenger records, in accordance with all applicable Federal, State and local laws, regulations, ordinances and directives relating to confidentiality. CONTRACTOR shall inform all of its officers, employees and agents providing services hereunder of the confidentiality provisions of this agreement.
XXIX. COUNTY LOBBYIST ORDINANCE
CONTRACTOR and each County lobbyist or County lobbying firm, as defined in Los Angeles County Code section 2.160.010, retained by CONTRACTOR, shall fully comply with the County Lobbyist Ordinance, Los Angeles County Code section 2.160. Failure on the part of CONTRACTOR or any County lobbyist or County lobbying firm retained by CONTRACTOR to fully comply with the County Lobbying Ordinance shall constitute a material break of this agreement, upon which COUNTY may immediately terminate or suspend this agreement.
XXX. NOTICE TO EMPLOYEES REGARDING THE FEDERAL EARNED INCOME CREDIT
CONTRACTOR shall notify its employees, and shall require each subcontractor to notify its employees, that they may be eligible for the federal Earned Income Credit under the federal income tax laws. Such notice shall be provided in accordance with the requirements set forth in Internal Revenue Service Notice 1015.
XXXI. COMPLIANCE WITH LIVING WAGE PROGRAM
A. Living Wage Program: This Contract is subject to the provisions of the COUNTY’S ordinance entitled Living Wage Program (“Program”) as codified in Sections 2.201.010 through 2.201.100 of the Los Angeles COUNTY Code, a copy of which is attached hereto as Exhibit A and incorporated by reference into and made a part of the Contract.
B. Payment of Living Wage Rates:
1. Unless CONTRACTOR has demonstrated to the COUNTY’S satisfaction either that CONTRACTOR is not an “Employer” as defined under the Program (Section 2.201.020 of the COUNTY Code) or that CONTRACTOR qualifies for an exception to the Program (Section 2.201.090 of the COUNTY Code). CONTRACTOR shall pay its Employees no less than the applicable hourly living wage rate, as set forth immediately below, for the Employees’ services provided to the COUNTY under the Contract:
a. Not less than $9.46 per hour if, in addition to the per-hour wage, CONTRACTOR contributes less than $1.14 per hour towards the provision of bona fide health care benefits for its Employees and any dependents; or
b. Not less than $8.32 per hour if, in addition to the per-hour wage, CONTRACTOR contributes at least $1.14 per hour towards the provision of bona fide health care benefits for its Employees and any dependents. CONTRACTOR will be deemed to have contributed $1.14 per hour towards the provision of bona fide health care benefits if the benefits are provided through the COUNTY Department of Health Services Community Health Plan. If, at any time during the Contract, CONTRACTOR Contributes less than $1.14 per hour towards the provision of bona fide health care benefits, CONTRACTOR shall be required to pay its Employees the higher hourly living wage rate.
2. For purposes of this Section “CONTRACTOR” includes any subcontractor engaged by CONTRACTOR to perform services for the COUNTY under the Contract. If CONTRACTOR uses any subcontractor to perform services for the COUNTY under the Contract, the subcontractor shall be subject to the provisions of this Section. The provisions of this Section shall be inserted into any such subcontract agreement and a copy of the Program shall be attached to the agreement. “Employee” means any individual who is an employee of CONTRACTOR under the laws of California, and who is providing full-time services to CONTRACTOR, some or all of which are provided to the COUNTY under the Contract. “Full-time” means a minimum of 40 hours worked per week, or a lesser number of hours, if the lesser number is a recognized industry standard and is approved as such by the COUNTY; however, fewer than 35 hours worked per week will not, in any event, be considered full-time.
3. If CONTRACTOR is required to pay a living wage when the Contract commences, CONTRACTOR shall continue to pay a living wage for the entire term of the Contract including any option period.
4. If CONTRACTOR is not required to pay a living wage when the Contract commences, CONTRACTOR shall have a continuing obligation to review the applicability of its “exemption status” from the living wage requirement, and CONTRACTOR shall immediately notify COUNTY if CONTRACTOR at any time either comes within the Program’s definition of “Employer” or if CONTRACTOR no longer qualifies for an exception to the Program. In either event, CONTRACTOR shall immediately be required to commence paying the living wage and shall be obligated to pay the living wage for the remaining term of the Contract, including any option period. The COUNTY may also require, at any time during the Contract and at its sole discretion, that CONTRACTOR demonstrate to the COUNTY’S satisfaction that CONTRACTOR either continues to remain outside of the program’s definition of “Employer” and/or that CONTRACTOR continues to qualify for an exception to the Program. Unless CONTRACTOR satisfies this requirement within the time frame permitted by the COUNTY, CONTRACTOR shall immediately be required to pay the living wage for the remaining term of the Contract, including any option period.
C. Contractor’s Submittal of Certified Monitoring Reports: CONTRACTOR shall submit to the COUNTY certified monitoring reports at a frequency instructed by the COUNTY. The certified monitoring reports shall list all of CONTRACTOR’s Employees during the reporting period. The certified monitoring reports shall also verify the number of hours worked, the hourly wage rate paid, and the amount paid by CONTRACTOR for health benefits, if any, for each of its Employees. The certified monitoring reports shall also state the name and identification number of CONTRACTOR’s current health care benefits plan, and CONTRACTOR’s portion of the premiums paid as well as the portion paid by each Employee. All certified monitoring reports shall be submitted on forms provided by the COUNTY, or any other form approved by the COUNTY which contains the above information. The COUNTY reserves the right to request any additional information it may deem necessary. If the COUNTY requests additional information, CONTRACTOR shall promptly provide such information. CONTRACTOR, through one of its officers, shall certify under penalty of perjury that the information contained in each certified monitoring report is true and accurate.
D. County Auditing of Contractor Records: Upon a minimum of twenty-four (24) hours’ written notice, the COUNTY may audit, at CONTRACTOR’s place of business, any of CONTRACTOR’s records pertaining to the Contract, including all documents and information relating to the certified monitoring reports. CONTRACTOR is required to maintain all such records in California until the expiration of four years from the date of final payment under the Contract. Authorized agents of the COUNTY shall have access to all such records during normal business hours for the entire period that records are to be maintained.
E. Notifications to Employees: CONTRACTOR shall place COUNTY-provided living wage posters at each of CONTRACTOR’s places of business and all locations where CONTRACTOR’s Employees are performing services for the COUNTY. CONTRACTOR shall also distribute COUNTY-provided notices to each of its Employees at least once per year. CONTRACTOR shall translate the posters and handouts into Spanish and any other language spoken by a significant number of its Employees.
F. Enforcement and Remedies: If CONTRACTOR fails to comply with the requirements of this Section, the COUNTY shall have the rights and remedies described in this Section in addition to any rights and remedies provided by law or equity.
1. Remedies For Submission of Late or Incomplete Certified Monitoring Reports. If CONTRACTOR submits a certified monitoring report to the COUNTY after the date it is due or if the report submitted does not contain all of the required information or is inaccurate or is not properly certified, any such deficiency shall constitute a breach of the Contract. In the event of any such breach, the COUNTY may, in its sole discretion, exercise any or all of the following rights/remedies:
a. Withholding of Payment. If CONTRACTOR fails to submit accurate, complete, timely and properly certified monitoring reports, the COUNTY may withhold from payment to CONTRACTOR up to the full amount of any invoice that would otherwise be due, until CONTRACTOR has satisfied the concerns of the COUNTY, which may include required submittal of revised certified monitoring reports or additional supporting documentation.
b. Liquidated Damages. It is mutually understood and agreed that CONTRACTOR’S failure to submit an accurate, complete, timely and properly certified monitoring report will result in damages being sustained by the COUNTY. It is also understood and agreed that the nature and amount of the damages will be extremely difficult and impractical to fix; that the liquidated damages set forth herein are the nearest and most exact measure of damages for such breach that can be fixed at this time; and that the liquidated damages are not intended as a penalty or forfeiture for CONTRACTOR’s breach. Therefore, in the event that a certified monitoring report is deficient, including but not limited to being late, inaccurate, incomplete or uncertified, it is agreed that the COUNTY may, in its sole discretion, assess against CONTRACTOR liquidated damages in the amount of $100 per monitoring report for each day until the COUNTY has been provided with a properly prepared, complete and certified monitoring report. The COUNTY may deduct any assessed liquidated damages from any payments otherwise due CONTRACTOR.
c. Termination. CONTRACTOR’s continued failure to submit accurate, complete, timely and properly certified monitoring reports may constitute a material breach of the Contract. In the event of such material breach, COUNTY may, in its sole discretion, terminate the Contract.
2. Remedies for Payment of Less Than the Required Living Wage. If CONTRACTOR fails to pay any Employee at least the applicable hourly living wage rate, such deficiency shall constitute a breach of the Contract. In the event of any such breach, the COUNTY may, in its sole discretion, exercise any or all of the following rights/remedies:
a. Withholding Payment. If CONTRACTOR fails to pay one or more of its Employees at least the applicable hourly living wage rate, the COUNTY may withhold from any payment otherwise due CONTRACTOR the aggregate difference between the living wage amounts CONTRACTOR was required to pay its Employees for a given pay period and the amount actually paid to the Employees for that pay period. The COUNTY may withhold said amount until CONTRACTOR has satisfied the COUNTY that any underpayment has been cured, which may include required submittal of revised certified monitoring reports or additional supporting documentation.
b. Liquidated Damages. It is mutually understood and agreed that CONTRACTOR’S failure to pay any of its Employees at least the applicable hourly living wage rate will result in damages being sustained by the COUNTY. It is also understood and agreed that the nature and amount of the damages will be extremely difficult and impractical to fix; that the liquidated damages set forth herein are the nearest and most exact measure of damages for such breach that can be fixed at this time; and that the liquidated damages are not intended as a penalty or forfeiture for CONTRACTOR’S breach. Therefore, it is agreed that the COUNTY may, in its sole discretion, assess against CONTRACTOR liquidated damages of $50 per Employee per day for each and every instance of an underpayment to an Employee. The COUNTY may deduct any assessed liquidated damages from any payments otherwise due CONTRACTOR.
c. Termination. CONTRACTOR’S continued failure to pay any of its Employees the applicable hourly living wage rate may constitute a material breach of the Contract. In the event of such material breach, COUNTY may, in its sole discretion, terminate the Contract.
G. Use of Full-Time Employees: CONTRACTOR shall assign and use full-time employees of CONTRACTOR to provide services under the Contract unless CONTRACTOR can demonstrate to the satisfaction of the COUNTY that it is necessary to use non-full-time employees based on staffing efficiency or COUNTY requirements for the work to be performed under the Contract. It is understood and agreed that CONTRACTOR shall not, under any circumstance, use non-full-time employees for services provided under the Contract unless and until the COUNTY has provided written authorization for the use of same. CONTRACTOR submitted with its proposal a full-time-employee staffing plan. If CONTRACTOR changes its full-time-employee staffing plan. CONTRACTOR shall immediately provide a copy of the new staffing plan to the COUNTY.
H. Contractor Retaliation Prohibited: CONTRACTOR and/or its employees shall not take any adverse action which would result in the loss of any benefit of employment, any contract benefit, or any statutory benefit for any employee, person or entity who has reported a violation of the Program to the COUNTY or to any other public or private agency, entity or person. A violation of the provisions of this paragraph may constitute a material breach of the Contract. In the event of such material breach, COUNTY may, in its sole discretion, terminate the Contract.
I. Contractor Standards: During the term of the Contract, CONTRACTOR shall maintain business stability, integrity in employee relations and the financial ability to pay a living wage to its employees. If requested to do so by the COUNTY, CONTRACTOR shall demonstrate to the satisfaction of the COUNTY that CONTRACTOR is complying with this requirement.
J. Neutrality in Labor Relations: CONTRACTOR shall not use any consideration received under the Contract to hinder, or to further, organization of, or collective bargaining activities by or on behalf of CONTRACTOR’s employees, except that this restriction shall not apply to any expenditure made in the course of good faith collective bargaining, or to any expenditure pursuant to obligations incurred under a bona fide collective bargaining agreement, or which would otherwise be permitted under the provisions of the National labor Relations Act.
XXXII. CONSIDERATION OF GAIN PROGRAM PARTICIPANTS FOR EMPLOYMENT
Should CONTRACTOR require additional or replacement personnel after the effective date of this Agreement, CONTRACTOR shall give consideration for any such employment openings to participants in the COUNTY’S Department of Public Social Services’ Greater Avenues for Independence (GAIN) Program who meet the CONTRACTOR’S minimum qualifications for the open position. The COUNTY will refer GAIN participants by job category to the CONTRACTOR.
XXXIII. CONTRACTOR’S WARRANTY OF ADHERENCE TO COUNTY’S CHILD SUPPORT COMPLIANCE PROGRAM
CONTRACTOR acknowledges that COUNTY has established a goal of ensuring that all individuals who benefit financially from COUNTY through contract are in compliance with their court-ordered child, family and spousal support obligations in order to mitigate the economic burden otherwise imposed upon COUNTY and its taxpayers.
As required by COUNTY’S Child Support Compliance Program (COUNTY Code Chapter 2.200) and without limiting CONTRACTOR‘S duty under this contract to comply with all applicable provisions of law, CONTRACTOR warrants that it is now in compliance and shall during the term of this contract maintain compliance with employment and wage reporting requirements as required by the Federal Social Security Act (42 USC Section 653a) and California Unemployment Insurance Code Section 1088.5, and shall implement all lawfully served Wage and Earnings Withholding Orders or District Attorney Notices of Wage and Earnings Assignment for Child or Spousal Support, pursuant to Code of Civil Procedure Section 706.031 and Family Code Section 5246(b).
XXXIV. TERMINATION FOR BREACH OF WARRANTY TO MAINTAIN COMPLIANCE WITH COUNTY’S CHILD SUPPORT COMPLIANCE PROGRAM
Failure of CONTRACTOR to maintain compliance with the requirements set forth in Paragraph XXXIV, “CONTRACTOR’S WARRANTY OF ADHERENCE TO COUNTY’S CHILD SUPPORT COMPLIANCE PROGRAM” shall constitute a default by CONTRACTOR under this contract. Without limiting the rights and remedies available to COUNTY under any other provision of this contract, failure to cure such default within 90 days of notice by the Los Angeles COUNTY District Attorney shall be grounds upon which the COUNTY Board of Supervisors may terminate this contract pursuant to Paragraph VI., “PROVISIONS FOR CANCELLATION OR TERMINATION OF CONTRACT.”
XXXV. CONTRACTOR’S ACKNOWLEDGMENT OF COUNTY’S COMMITMENT TO CHILD SUPPORT ENFORCEMENT
CONTRACTOR acknowledges that COUNTY places a high priority on the enforcement of child support laws and the apprehension of child support evaders. CONTRACTOR understands that it is COUNTY’S policy to encourage all COUNTY contractors to voluntarily post COUNTY’S “L.A.’s Most Wanted: Delinquent Parents” poster in a prominent position at CONTRACTOR’S place of business. COUNTY’S District Attorney will supply CONTRACTOR with the poster to be used.
XXXVI. CONTRACTOR’S ACKNOWLEDGMENT OF COUNTY’S RECYCLED PAPER POLICY
Consistent with the Board of Supervisors’ policy to reduce the amount of solid waste deposited at the County landfills, the CONTRACTOR agrees to use recycled content paper to the maximum extent possible on the project.
IN WITNESS WHEREOF, the parties have executed this contract by causing it to be subscribed by their duly authorized representatives as of the date first above written.
COUNTY OF LOS ANGELES
By_______________________________
Chairperson, Board of Supervisors
Attest: Violet Varona-Lukens,
Executive Officer-Clerk of
the Board of Supervisors
By ___________________________
Deputy
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., d/b/a AMERICAN EXPRESS ONE
By_______________________________
Andrew McGraw
Vice President,
Sales and Marketing
APPROVED AS TO FORM
BY COUNTY COUNSEL:
LLOYD W. PELLMAN
By___________________________
Thomas M. Tyrrell
Principal Deputy County Counsel