03-113 Bay Area Employee Relations Serviceo3-I~~J
RESOLUTIOPV NO. 03-218
A RESOLUTION OF THE CITY COUI`TCIL OF THE CITY OF CUPERTINO
ADOPTING AN UPDATED JOINT POWERS AGREEMENT FOR
THE BAY AREA EMPLOYEE RELATIONS SERVICE
WHEREAS, the City of Cupertino is a member agency of the Bay Area Employee
Relations Service (BAERS), and BAERS provides the City with reliable data to analyze and
determine salaries, benefits and related policies ghat affect both represented and non-represented
employees; and
WHEREAS, the BAERS Joint Pow~;rs Agreement has been updated to reflect changes
in services and delivery methods;
NOW, THEREFORE, BE IT RESOLVED by the City of Cupertino, County of Santa
Clara, State of California, that the City Council aI-proves the Joint Powers Agreement for the Bay
Area Employee Relations Service as presented in Exhibit A, and that the City Manager is hereby
authorized to sign the agreement on behalf of the City.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino
this 17th day of November 2003, by the followin€; vote:
VOTE MEMBERS OF THE CITE' COUNCIL
AYES: Chang, James, Lowenthal, :Kwok
NOES: None
ABSENT: Sandoval
ABSTAIN: None
ATTEST: APPROVED:
/s/ Kimberly Smith /s/ Michael Chang
City Clerk
Mayor, City of Cupertino
09/12/03
JOINT POWERS AGREEMENT FOR
THE BAY AREA EMPLOYEE RELATIONS SERVICE
TABLE OF CONTENTS
RECITALS .................................................................................................................................................... 1
ARTICLE 1-DEFINITIONS ....................................................................................................................... 2
ARTICLE 2-PURPOSES ............................................................................................................................. 2
ARTICLE 3-PARTIES TO THE AGREEMENT ..................................................................................... 2
ARTICLE 4-POWERS OF THE BAY AREA EMPLOYEE RELATIONS SERVICE ....................... 3
ARTICLE 5- METHOD BY WHICH THE PURPOSE OF THE AGREEMENT WILL BE
ACCOMPLISHED ..................................................................................................................................... .. 3
ARTICLE 6-BOARD OF DIRECTORS ................................................................................................. .. 3
ARTICLE 7- POWERS OF THE BOARD OF DIRT:CTORS ............................................................... .. 3
ARTICLE 8-MEETING OF THE BOARD OF DIR)ECTORS .............................................................. .. 4
ARTICLE 9-MANAGEMENT COMMITTEE ....................................................................................... .. 5
ARTICLE 10-POWERS OF THE MANAGEMENT COMMITTEE ................................................... .. 5
ARTICLE 11-MEETINGS OF THE MANAGEMENT COMMITTEE ............................................... .. 6
ARTICLE 12-OFFICERS OF BAERS ..................................................................................................... .. 6
ARTICLE 13-ACCOUNTS AND RECORDS ......................................................................................... .. 7
ARTICLE 14-RESPONSIBILITY FOR MONIES ................................................................................. .. 7
ARTICLE 15-RESPONSIBILITIES OF BAERS ................................................................................... .. 8
ARTICLE 16- RESPONSIBILITIES OF THE MEN[BERS .................................................................. .. 8
ARTICLE 17-NEW MEMBERS .............................................................................................................. 10
ARTICLE 18-LIABILITY ........................................................................................................................ 10
ARTICLE 19-WITHDRAWAL ......................:......................................................................................... 11
ARTICLE 20-EFFECT OF WITHDRAWAL ........................................................................................ 11
ARTICLE 21-CANCELLATION ............................................................................................................. 11
ARTICLE 22-TERMINATION AND DISTRIBUTION ........................................................................ 11
ARTICLE 23-PROVISION FOR BYLAWS AND MANUAL ............................................................... 12
ARTICLE 24-NOTICES ............................................................................................................................ 12
ARTICLE 25-AMENDMENT .....................................,............................................................................. 12
ARTICLE 26-SEVERABILITY ............................................................................................................... 13
ARTICLE 27-ARTICLE HEADINGS .......................,............................................................................. 13
ARTICLE 28-TERM OF AGREEMENT ................................................................................................ 13
ARTICLE 29-FULL AGREEMENT ..........................,.............................................................................. 13
BAERS AGREEMENT
9/12/03
JOINT POWERS AisREEMENT FOR
THE BAY AREA EMPLOYEE RELATIONS SERVICE
This agreement is made and entered into on January 1, 2004, by and among the public
entities organized and existing under the Constitution or laws of the State of California,
hereinafter collectively referred to as "Members" or "Parties" and individually as
"Member", which are parties signing this AgrE;ement.
RECITALS
Whereas, California Government Code Section 6500 et seq. provides that two or more
public agencies may by agreement jointly exercise any power common to the contracting
parties; and
Whereas, the parties are public agencies as that term is defined in California Government
Code Section 6500 dealing with Joint Powers Agreements; and
Whereas, each of the parties to this Agreemen~. are actively involved in employee
relations; and
Whereas, the parties have common powers anti authority to collect, refine, analyze and
use information, research and assistance in their respective employee relations; and
Whereas, each of the parties to this Agreement desires to join together with the other
parties for the purpose of consolidating confidential information, research, and assistance
functions and services in preparation for and use for labor negotiations and other
authorized uses, in order to realize economic and operational efficiencies.
Whereas, the name of the Intergovernmental Employee Relations Service has been
changed to Bay Area Employee Relations Sen~ice to reflect the expanded membership
base of the nine bay area counties,
Now, therefore, for and in consideration of all the mutual benefits, covenants and
agreements contained herein, the parties hereto agree as follows:
BAERS AGREEMENT
9/12/03
ARTICLE 1-DEFINITIONS
The following definitions shall apply to the previsions of this Agreement:
(a) Agreement shall mean the Joint Powers Agreement for the Bay Area
Employee Relations Service.
(b) BAERS shall mean the Bay Arf;a Employee Relations Service.
(c) Board of Directors or Board shill mean the governing body of the Bay
Area Employee Relations Service.
(d) County shall mean the County of Santa Clara.
(e) Management Committee shall mean the Management Committee of the
Bay Area Employee Relations `,iervice Board of Directors.
ARTICLE 2->F'URPOSES
This Agreement is entered into by the Members pursuant to the provisions of the
California Government Code Section 6500 et ~~eq. in order to consolidate information,
research and assistance functions and services in preparation for and use for labor
negotiations that are necessary and relevant to the operation of the respective employee
relations of the parties. By this Agreement, the parties do not create an agency or entity
separate from the parties themselves
The method of implementing these purposes acid executing these powers is to provide
employee relations services in accordance with the terms and conditions hereof through
the staff and facilities of the County of Santa Clara.
ARTICLE 3-PARTIES TIJ THE AGREEMENT
Each parry to this Agreement certifies that it intends to and does contract with all other
parties who are signatories of this Agreement and, in addition, with such other parties as
may later be added as parties to and signatoriesc of this Agreement pursuant to Article 17.
Each party to this Agreement also certifies that. the deletion of any party from this
Agreement, pursuant to Article 19 and 20, shall not affect this Agreement nor the intent
to contract as described above with the other p;~rties to the Agreement then remaining.
BAERS AGREEMENT
9/12/03
ARTICLE 4- POWERS OF THE BAY AREA EMPLOYEE RELATIONS
SERVICE
BAERS shall have the powers common to its Members and is hereby authorized to do all
acts necessary for the exercise of said common powers, including, but not limited to, any
or all of the following:
(a) To provide for the delivery of f;mployee relations services through County
employees and at facilities of t]ie County;
(b) To incur debts, liabilities or obligations in accordance with a duly
approved budget;
(c) To levy and collect fees and charges, including administrative and
operating costs, as provided by this Agreement or by law;
(d) To exercise all powers necessary and proper to carry out the terms and
provisions of this Agreement, or otherwise as authorized by law.
ARTICLE 5- METHOD BY WHICH TH[E PURPOSE OF THE AGREEMENT
WILL BE ACC~~MPLISHED
BAERS shall provide for the delivery of employee relations services using employees of
the County and at facilities of the County.
ARTICLE 6- BOARD OF DIRECTORS
BAERS shall be governed by the Board of Directors which is hereby established and
which shall be comprised of one representative from each Member. Each Member shall
have one (1) vote. Each Member shall also designate an alternate who shall serve in the
absence of its regular representative. The alternate shall have the authority to attend,
participate in and vote at any meeting of the Board of Directors when the regular member
for whom he or she is an alternate is absent from said meeting.
ARTICLE 7- POWERS OF THE BOARD OF DIRECTORS
The Board of Directors shall have the following powers and functions:
(a) To establish priorities in the performance of services.
BAERS AGREEMENT
9/12/03
(b) To approve and adopt the annual fiscal year operating budget (July 1
through June 30) of BAERS.
(c) To receive and review periodic accountings of all funds under Article 13
and 14 of this Agreement.
(d) To have the power to conduct on behalf of BAERS all business of
BAERS.
(e) To elect from its Members pursuant to Article 9 of this Agreement, a
Management Committee to which it may delegate authority to make and
implement any decision that thE; Board is authorized to make under this
Agreement, except the followir.~g:
1. Action that would require an amendment to this Agreement, under
Article 25 herein;
2. Change in the fee schedule;
3. Action that would financially obligate the parties in any way,
except as set forth in Article 10;
4. Selection of the President, Vice-President and members of such
Management Committee.
(f) To review all acts of the Management Committee, and shall have the
power to modify and/or override any decision or action of the
Management Committee upon :i majority vote of a quorum of the Board of
Directors, unless this would int~:rfere with a legal obligation made by the
Management Committee and result in BAERS liability.
(g) To adopt Bylaws for the conduct of its business consistent with this
agreement and with all applicat~le laws.
(h) To have such other powers and functions as provided by this Agreement.
ARTICLE 8-MEETING OF THE BOARD OF DIRECTORS
(a) Meetings. The Board of Directors shall establish its regular meetings. It
shall hold at least two regular meetings annually, at a time and place
determined by the Management Committee. The Board may hold special
meetings as required.
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9/12/03
(b) Minutes. BAERS shall keep minutes of regular and special meetings of
the Board of Directors and sha]1 as soon as possible after each meeting,
forward a copy of the minutes 1:o each member of the Board.
(c) Quorum. A majority of the members of the Board of Directors shall
constitute a quorum for the transaction of business. A vote of the majority
of those members present at a meeting shall be sufficient to constitute
action by the Board of Directors.
(d) Compliance with the Brown ~~ct. All meetings of the Board of
Directors, including regular anti special meetings, shall be called, noticed,
held and conducted in accordance with the provisions of the Ralph M.
Brown Act, California Government Code Section 54950 et seq.
ARTICLE 9-MANAGEPVIENT COMMITTEE
(a) There shall be a Management Committee of the Board of Directors, which
shall consist of seven (7) memt~ers, one of which shall be the County.
Two of the members of the Management Committee shall be the President
and Vice-President. The other members of the Management Committee
shall be elected by the Board oi.' Directors pursuant to the conditions and
terms provided in the Bylaws. The President of the Board of Directors, or
the Vice-President in his or her absence, shall also serve as the President
of the Management Committee.
(b) Compliance with the Brown Ac:t. All meetings of the Management
Committee, including regular and special meetings, shall be called,
noticed, held and conducted in accordance with the provisions of the
Ralph M. Brown Act, California Government Code Section 54950 et seq.
ARTICLE 10-POWERS OF THE P/IANAGEMENT COMMITTEE
The Management Committee of the Board of Directors shall have the following powers:
(a) To prepare the operating budget of BAERS for each fiscal year, subject to
review, modification and approval by the Board of Directors, as provided
for in Article 8.
(b) To receive and act upon reports of any sub- committee established by the
Board of Directors.
(c) To create Bylaws as necessary.
BAERS AGREEMENT
9/12/03
(d) To review new members for acceptance or rejection.
(e) To solicit performance feedback of BAERS on a regular basis and provide
the information to the County.
(f) In conjunction with a representative of the County, to establish annual
performance objectives for the Director, Bay Area Employee Relations
Service. The Management Committee shall annually evaluate the
performance of the Director, Bay Area Employee Relations Service
against the performance objectives established. The County shall consider
Management Committee input in the formal County performance
evaluation of the Director, Bay Area Employee Relations Service.
(g) In the event the position of Director, Bay Area Employee Relations
Service becomes vacant, the Management Committee and the County shall
jointly participate in the recruitment and selection process of a new
Director. The Management Committee shall make a hiring
recommendation to the County, which has the sole authority to select the
new Director, Bay Area Employee Relations Service.
(h) Have such other powers and functions as are provided for in this
Agreement or as delegated by the Board of Directors.
ARTICLE 11-MEETINGS OF THE MANAGEMENT COMMITTEE
The meetings of the Management Committee ~~hall be held at least twice a year at a time
and date set by the President.
ARTICLE 12-OFFICERS OF BAERS
(a) President. The Board of Dire~~tors shall elect a President, to hold office
for aone-year term, except as b.ereinafter provided and until a successor is
elected. In the event the President ceases to be a member of the Board of
Directors, the resulting vacanc}~ shall be filled at the next regular meeting
of the Board of Directors held sifter such vacancy occurs. In the absence
or inability of the President to act, the Vice President shall act as
President. Should the Vice President not be available, the Management
Committee shall name an Acting President who shall serve until the next
regular Board meeting. The President serves at the pleasure of the Board,
BAERS AGREEMENT
9/12/03
and receives no compensation :for these services. Reasonable expenses
incurred on the Board's behalf .are reimbursable.
(b) Vice President. The Board of Directors shall elect a Vice President, to
hold office for aone-year term., except as hereinafter provided and until a
successor is elected. In the event the Vice President so elected ceases to
be a member of the Board of Directors, the resulting vacancy shall be
filled at the next regular meetir.~g of the Board of Directors held after such
vacancy occurs. In the absence: or inability of the President to act, the
Vice-President shall act as President. The Vice President serves at the
pleasure of the Board, and receives no compensation for service.
Reasonable expenses incurred ~~n the Board's behalf are reimbursable.
(c) Other. The Board of Director; may create other offices as needed
ARTICLE 13-ACCOUr1TS AND RECORDS
(a) Annual Budget. The Board of Directors of BAERS shall adopt an annual
operating budget pursuant to Article 7 of this Agreement.
(b) Funds and Accounts. The County shall establish and maintain such
funds and accounts as may be required by good accounting practice and as
recommended by the Management Committee. Books and records of
BAERS shall be open to inspection, with reasonable notice, by
representatives from Member agencies.
(c) County's Fiscal Report. The ~~ounty, within one hundred and twenty
(120) days after the close of eac;h fiscal year, shall give a complete written
report of all financial activities for such fiscal year to the Board of
Directors and each Member.
(d} Annual Audit. The County sh,rll provide for an annual audit of the
accounts and records of BAERS. The audit shall meet the minimum
requirements prescribed by the State Controller for special districts by the
California Government Code.
ARTICLE 14-RESPONSIl3ILITY FOR MONIES
(a) The County shall have the custody of and disburse BAERS funds
according to the policies and directions of the Board of Directors.
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(b) The County shall assume the following duties described in California
Government Code Section 650:x.5 including:
1. Receive and issue receiJ~ts for all money for BAERS and place it in
the County treasury in the account of BAERS;
2. Be responsible for the safekeeping and disbursement of all of
BAERS money so held by the County;
3. Pay any other sums due from BAERS only upon warrants signed
by the public officer performing functions of Controller; and
4. Report in writing, 15 days after the close of each fiscal quarter, to
the members the amount of money held for BAERS, the amount of
receipts since the last report, and the amount paid out since the last
report.
ARTICLE 15-RESPONSJ[BILITIES OF BAERS
BAERS shall perform the following functions in discharging the responsibilities under
this Agreement:
(a) Develop and maintain a confidE;ntial Internet based database containing
employee relations data as set forth in the Bylaws for use by Members.
(b) Perform other special services pis requested by individual Members related
to collection, refinement and analysis of data, and other such research and
assistance functions essential for labor relations as set forth in the Bylaws;
and
(c) Have such other responsibilitie;~ as deemed necessary by the Board of
Directors or Management Committee in order to carry out the purposes of
this Agreement.
ARTICLE 16- RESPONSIBIL[TIES OF THE MEMBERS
(a) Responsibilities. Each Member shall have the following responsibilities:
1. To appoint a representative and an alternative representative with
knowledge of the Member's labor relations to the Board of
Directors, pursuant to Article 6 of this Agreement.
BAERS AGREEMENT
9/12/03
2. Each Member shall appoint an employee to be responsible for
responding to requests i-or information, and to serve as liaison to
BAERS.
3. Each Member shall pay all fees in accordance with the fee
schedule, adopted annu;~lly pursuant to the Bylaws, including fines
that may be assessed fo:r not meeting member obligations.
4. Each Member shall pro~~ide BAERS with information related to
salaries, benefits, labor settlement information as stated in the final
Memoranda of Underst~~nding and other data as may be necessary
for BAERS to carry out services provided under this Agreement.
5. Each Member shall comply with all bylaws, rules and regulations
adopted by the Board o.'Directors and Management Committee.
(b) Confidentiality. Each Member shall have access to all data and
information collected by BAEF:S in preparation for and during periods of
labor negotiations that are necessary and relevant to the operation of the
respective employee relations of the parties. Each Member agrees to treat
such information in confidence and for use only for the purposes
contemplated in the Agreement. A Member shall not release any of the
information to any entity or other party except in the course of labor
negotiations or as consented to by the County. This shall not preclude a
Member from such limited reproduction and distribution of such
information within its own age~icy as is necessary for such Member's
employee relations activities, n~~r shall it preclude a Member from using
the information for purposes of discussing same with other Members. In
the event that a Member receiv~;s a California Public Records Act request,
subpoena, court order, or other legal document requiring release of the
information, or is informed that. such document is being requested, the
Member shall notify the Count`s in order to permit the County to review
the matter and provide a recommendation to insure uniform responses. In
its discretion, the County may seek a protective order or other similar
order. Members shall be responsible for maintaining effective procedures
and controls in respect to web site password security.
The Board may authorize BAE]ZS to release data from the web site or
documents in its possession for sale to management officials of non-
member public jurisdictions wirh the understanding that the Liability
provisions in Article 18 shall aI-ply.
BAERS AGREEMENT
9/12/03
ARTICLE 17-NEW MEMBERS
With the approval of the Management Committee, new members may be added to
BAERS. Approval for new members shall be in accordance with the following
procedure:
(a) A public agency shall submit a letter of intent and application to the
County;
(b) The Management Committee shall review the application to determine
compatibility with the scope and purpose of BAERS.
Members entering under this Article shall bea~me a party to this Joint Powers Agreement
and shall execute such documents as necessary, which shall be appended to this
Agreement.
ARTICLE 18-LIABILITY
Each parry to this JPA Agreement assumes all risks associated with the use of services
provided by the County under Paragraph 2 of the Agreement, and will indemnify, hold
harmless and defend the County and all other ;parties to this Agreement from all claims
for money or damages arising from alleged en•ors or omissions of the County.
In lieu of and notwithstanding the pro rata risk: allocation which might otherwise be
imposed between the parties pursuant to Government Code Section 895.6, the parties
agree that all losses or liabilities incurred by a party shall not be shared pro rata but
instead the County and each Member of this J~~int Powers Agreement agree that pursuant
to Government Code Section 895.4, each of tl~e parties hereto shall fully indemnify and
hold each of the other parties, their officers, board members, employees and agents,
harmless from any claim, expense or cost, damage or liability imposed for injury (as
defined by Government Code Section 810.8) occurring by reason of negligent acts or
omissions or willful misconduct of the indemnifying party, its officers, board members,
employees or agents, under or in connection v-ith the use by a party of any services or
data provided under this Agreement. No party, nor any officer, board member,
employee or agent thereof shall be responsible; for any damage or liability occurring by
reason of negligent acts or omissions or willful misconduct of other parties hereto, their
officers, board members, employees or agents, under or in connection with or arising out
of the use by a party of any services or data provided under this Agreement.
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BAERS AGREEMENT
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ARTICLE 19-W[THDRAWAL
A Member of BAERS may not withdraw as a party to this Agreement and as a member
of the BAERS for aone-year period commencing with the effective date of its
participation in BAERS. Following the one-year irrevocable commitment to the BAERS,
a Member may withdraw only at the end of thy: fiscal year, provided it has given BAERS
at least three months written notice of its intent to withdraw from this Agreement.
ARTICLE 20- EFFECT OF WITHDRAWAL
The withdrawal of any Member from this Agreement shall not terminate this Agreement
and no Member by withdrawing shall be entitled to payment or return of any deposits,
any consideration of property paid, or donated by the Member to BAERS, or to any
distribution of assets.
ARTICLE 21-CANCELLATION
BAERS shall have the right to cancel any Member's participation in BAERS for non-
compliance with the terms of the JPA upon a three- fourths vote of the entire Board of
Directors in a regular or special meeting of BAERS where a quorum is present, and with
at least 30 days written notice to the Member. Any Member so canceled shall, on the
effective date of the cancellation, be treated thE; same as if the Member had voluntarily
withdrawn from BAERS and may be subject tc- a prorated fee.
ARTICLE 22-TERMINATICIN AND DISTRIBUTION
(a) This Agreement may be termin<ted with
1. The written termination request ofthree-fourths of the Members,
tendered at least six months prior to the end of the fiscal year; or
2. The written termination :request of the County, tendered at least six
months prior to the end of tl;.e fiscal year, and,
(b) In the event that this Agreement is terminated in accordance with Section
(a) of this Article, BAERS shall continue to exist for the purpose of
ii
BAERS AGREEMENT
9/12/03
disposing of any claims, distrit~ution of assets and all other functions
necessary to terminate the affairs of BAERS.
(c) Upon termination of this Agreement, all property of the BAERS shall
become the property of the Co~.~nty, under the following terms:
1. Each Member shall be entitled to an electronic copy of the web-
based data created for BA1=;RS.
2. Funds of BAERS shall be distributed among the Members in
accordance with and proportional to their base annual fee, as defined
in the Fee Schedule.
(d) The Management Committee i;~ vested with all powers of BAERS for the
purpose of dissolving the busir.~ess affairs of BAERS. The decisions of the
Management Committee under this article shall be final.
ARTICLE 23-PROVISION FOUR BYLAWS AND MANUAL
The Board shall cause to be developed Authority Bylaws to govern the operations of
BAERS. Each Member shall have electronic access to any Bylaws developed under this
Article.
ARTICLE 24-NOTICES
Notices to Members hereunder shall be sufficient if delivered to the administrative office
of the respective Member via first class mail, facsimile or electronic mail with receipt
confirmation.
ARTICLE 25-AMENDMENT
This Agreement may be amended at any time by atwo-thirds vote of the full
membership of the Board of Directors, with tree exception of an amendment to Article 22,
which shall require athree-fourths vote of the entire Board of Directors.
Signatures shall not be required on any such amendment by those Members, if any,
whose Director did not approve the amendme~it; however, such Members shall
nonetheless be bound by the amendment as if it were approved by all Members.
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BAERS AGREEMENT
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ARTICLE 26-SE;VERABILITY
If any provision of this Agreement is found b~~ a court of competent jurisdiction to be
void, invalid or unenforceable, the same will f;ither be reformed to comply with
applicable law or stricken if not so conformable, so as not to affect the validity or
enforceability of this Agreement.
ARTICLE 27-ARTICLE HEADINGS
All section headings contained in this Agreement are for convenience and reference only.
ARTICLE 28-TERM OF AGREEMENT
This Agreement is effective on January 1, 2004 and shall continue until and unless
terminated as provided in Article 22.
ARTICLE 29-FUL:L AGREEMENT
The foregoing constitutes the full and complete Agreement of the parties. There are no
oral understandings or agreements not set forth in writing herein.
Title:
Date: ((. ~. O
Approved as to form and
f' /?
e.~
Title:
Date:
BAERSAGREEMENT91203
13
IN WITNESS WHEREOF, the parties hereto J~ave first executed this Agreement by
authorized officials thereof on the date indicated below: