HomeMy WebLinkAbout4.08 BayRICS~~~~ ~~ n~~~~
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DATE:
TO:
FROM:
STAFF REPORT
CITY COUNCIL
CITY CLERK
File # 600-40
November 15, 2011
Honorable Mayor and City Councilmembers
~~
Joni Pattillo, City Manager ° ~'
SUBJECT: Joint Powers Agreement to establish Bay Area Regional Interoperability
Communications System (BayRICS) Authority
Prepared by: Joni Pattillo, City Manager
EXECUTIVE SUMMARY:
The City Council will consider the execution of the Joint Powers Agreement to Establish the Bay
Area Regional Interoperable Communications System (BayRICS) Authority which outlines the
governance and requirements for agencies' participation to develop and establish a regional,
interoperable public safety broadband communications system and other advanced information
systems for interoperable public safety communications, and a wireless broadband system for
public access with a focus on provision of affordable broadband service for community anchor
institutions.
FINANCIAL IMPACT:
Funding has been provided by the EBRCSA.
RECOMMENDATION:
Staff recommends that the City Council adopt Resolution approving the Joint Powers
Agreement to Establish the Bay Area Regional Interoperable Communications System
(BayRICS) Authority.
~ Vii, ___
Reviewed By
Assistant City Manager
DESCRIPTION:
The Bay Area Urban Area Security Initiative (UASI) has been working over the past several
years on the development of a region wide public safety broadband network. The initial phase
developed a regional interoperable public safety digital microwave network which was called
BayLOOP. The microwave network links the 10 Bay Area counties to each other.
Page 1 of 3 ITEM NO. 4.8
During the final quarter of 2009, Congress appropriated approximately $5 billion to the
Department of Commerce to administer, through the National Telecommunications and
Information Administration (NTIA), a Broadband Stimulus grant program called the Broadband
Technology Opportunity Program (BTOP). The primary purpose of stimulus funds was to create
jobs and build broadband networks for the benefit of underserved communities including public
safety. In Round Two of the BTOP grant program, the General Manager of the UASI consulted
with the Bay Area Public Safety agencies, through their appointed representatives, and a grant
strategy was proposed which would require the applicant, a private partner, to assume the
technical and fiscal risk (up to 30%) for the grant/project. At that time, participants concluded
there was not capacity fora 30% match for the grant and there was not a government entity that
was willing to take on the fiscal risk of the entire project (value envisioned at $150 million). The
Bay Area UASI interoperability team, in consultation with appropriate Counsel from the City of
San Francisco, developed a competitive process to select a private partner for the BTOP grant.
A multi-jurisdictional team was appointed by agencies desiring to partner on the BTOP grant to
select the private partner. No public employees with a previous employment history with any
potential responders to this competitive process were allowed to participate in the selection
process for the private partner (including the UASI management team). Motorola was selected
as the private partner and applicant for the BTOP grant. Alameda County Sheriff Ahern,
representing the region as the Region 2 Mutual Aid coordinator, signed the grant as the
executive sponsor.
Motorola was ultimately awarded a $52 million grant that requires a $22 million match. As the
system design has developed the cost to complete the system has risen to close to $100 million.
Motorola has committed to provide the additional $20 plus million to complete the project. The
grant is intended to build out a 193 site public safety broadband network and a companion
public access system for the Bay Area. The network will utilize existing infrastructure within our
region to build-out a 4t" Generation Long Term Evolution (4G LTE) broadband system on a
segment of the 700 MHz spectrum, which was recently made available by the Federal
Communications Commission (FCC). The existing infrastructure to be utilized includes
investments such as communications towers, shelters, fiber optics cable and microwave
systems owned by the participating cities and counties. This system will provide a faster, more
efficient and affordable broadband data solution for public safety entities in our region. The
system will be used to transmit and receive mission-critical data and will not replace the current
systems used for voice communications. The companion public access network will be used to
deliver low cost, high speed Internet access to community anchor institutions (such as libraries
and schools), as well as underserved and un-served communities. The Public Safety and Public
Access systems are separate components of the program that share common infrastructure;
however, they operate totally independently of each other. The region consists of ten Bay Area
Counties (Alameda, Contra Costa, Marin, Napa, Santa Cruz, Sonoma, Solano, San Mateo,
Santa Clara, and San Francisco) and the three core cities (San Francisco, Oakland and San
Jose).
The ultimate goal is to have the Bay Area assume ownership of the network at some point in the
future. Representatives from the region have been to working on the development of a
governance model in order to represent the region and negotiate an operations and
maintenance agreement as well as an asset transfer agreement with Motorola. A Joint Powers
Agreement to Establish the Bay Area Regional Interoperable Communications System
(BayRICS) Authority (Attachment 1) has been developed that outlines the governance and
requirements for agency participation. The agreement has been vetted by several attorneys
representing jurisdictions within the region, and the final agreement is now in the process of
adoption by agencies within the region.
Page 2 of 3
The governing board has 19 members representing the three core cities, the ten counties, the
State of California, an at-large seat and four seats established to represent the cities within the
UASI planning hubs. Alameda and Contra Costa represent one of the planning hubs and are
referred to as the "East Bay Cities" hub. The agreement stipulates that the representative and
alternate will be selected by the City Managers' Associations within the planning hub region.
The agreement also identifies a process to establish startup and ongoing contributions from the
member agencies. Each member of the Authority is responsible to contribute $24,500 per year
to support administrative, legal, and other authorized costs incurred by the Authority. In the case
of the planning hubs each one is responsible for paying the $24,500 initial membership fee and
subsequent annual membership fee (of not less than $24,500) per year for the incorporated
cities within the hub. The agreement requires a specific number of cities to become members
before a hub can obtain a seat on the Board. In the case of the East Bay Cities, seven cities
must join and split the $24,500 to acquire the seat on the Board. As more cities from the group
join the $24,500 would be further split among the member cities.
The East Bay Cities group includes 33 of the 34 cities within the two counties, as Oakland has
its own seat on the Board. Of those 33 cities, 31 are members of the East Bay Regional
Communications Systems Authority (EBRCSA). The EBRCSA offered to provide the funding in
order to expedite the process to obtain the seat on the Board and reduce the complexity of
establishing how much each city would have to pay as more cities joined. The EBRCSA Board
approved the funding and has paid the Bay RICS Authority on behalf of the East Bay Cities.
The next step is to have seven cities within the East Bay cities group adopt the JPA agreement.
There is no financial impact on the City of Dublin to join, as the funding has been provided by
the EBRCSA.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS: 1. Joint Powers Agreement to Establish the Bay Area Regional
Interoperable Communications System (BayRICS) Authority
2. Resolution Approving the Joint Powers Agreement to Establish the
Bay Area Regional in Interoperable Communications System
(BayRICS) Authority
Page 3 of 3
JOINT POWERS AGREEMENT TO ESTABLISH
THE BAY AREA REGIONAL INTEROPERABLE COMMUNICATIONS SYSTEM
(BayRICS) AUTHORITY
THIS JOINT POWERS AGREEMENT (this "Agreement"), dated for convenience of reference
as of May 2nd, 201 1, is made among the public agencies that are the signatories to this
Agreement.
Each public agency executing this Agreement is referred to individually as a "Member," and
collectively as "Members."
This Agreement is made with reference to the following facts and circumstances:
A. The Members wish to develop and establish a regional, interoperable public safety broadband
communications system and other advanced information systems for interoperable public safety
communications (collectively, the "Public Safety System").
B. The Members further wish to develop and establish a wireless broadband system for public
access with a focus on provision of affordable broadband service for community anchor
institutions ("Public Access System," and together with the Public Safety System, the
"Systems"). Community anchor institutions include public libraries, schools, parks and
recreation districts, health care facilities, local governmental facilities, community centers, and
members of the public in the Bay Area, as defined below.
C. The Bay Area UASI Approval Authority allocated federal Urban Areas Security hlitiative
grant funds to establish and develop a regional interoperable public safety digital microwave
communications system for the Bay Area (`BayLOOP"), which will support regional public
safety voice and data systems that are intended to become part of the Public Safety System.
D. The Members wish to work cooperatively in developing these Systems for use within the
counties of Alameda, Contra Costa, Marin, Napa, San Francisco, Santa Clara, Santa Cruz, San
Mateo, Solano, and Sonoma (collectively, the "Bay Area"), and have determined that working in
concert is in the region's public interest, as doing so would provide the most effective and
economical interoperable communications and broadband architecture for all participating public
entities and agencies.
E. The Members are committed to cooperatively addressing the challenges of sustaining and
managing shared interoperability assets and projects specific to voice and data communications,
while looking for opportunities to enhance interoperability and increase the effectiveness and
resiliency of existing and emerging technologies.
F. The Members are committed to complying with all applicable Federal Department of
Homeland Security guidelines and Federal Communications Commission ("FCC") rules to
promote national interoperability of the Public Safety System, including the development of the
regional, standards-based, multi-vendor Public Safety System.
G. The Members have the authority to enter into this Agreement under the Joint Exercise of
Powers Act, California Government Code Section 6500 et s~ey. (the "Act").
ACCORDINGLY, in consideration of the recitals and mutual obligations of the Members as set
forth below, the Members agree as follows:
ARTICLE I -GENERAL PROVISIONS
1.01 Purpose.
This Agreement creates a local governmental entity to exercise the powers shared in common by
its Members to engage in regional, cooperative planning and coordination of governmental
services, and to develop the Systems and other communications and data system projects that
promote interoperability in the Bay Area or are otherwise consistent with the goals of this
Authority. The Members seek to create a structure and process to resolve technical and
operational issues in the development, operation and management of such Systems; identify
funding mechanisms for the Systems; and anticipate and address future advanced information
and communications needs. Such purposes are to be accomplished, and the Members' common
powers exercised, as set forth in this Agreement.
1.02 Creation of Authority.
Under the Act, the Members create a public entity to be 1c~lown as the "Bay Area Regional
Interoperable Communications System (`BayRICS") Authority" (hereinafter the "Authority").
The Authority shall be a public entity separate and apart from the Members. The geographic
jurisdiction of the Authority is all territory within the Bay Area that includes the geographic
boundaries of the Members, with the exception of the State of California; however, the Authority
may undertake any action outside those geographic boundaries as is legal, necessary and
incidental to accomplishing its purpose.
1.03 Eligibility for Membership; Membership.
To be eligible to be a Member in the Authority, an agency or entity must meet the following
requirements: (1) be a public agency, as defined by the Act; and (2) have jurisdiction in the Bay
Area.
(a) Initial Membership: Prior to and for a period of sixty days after the Effective Date
(hereinafter the "Initial Membership Period"), an eligible public agency may become an
initial Member of the Authority as follows: (1) delivering to the Authority's Secretary a
duly approved and executed copy of this Agreement; and (2) paying the Initial
Membership Fee as specified in Section 5.01(a).
(b) Subsequent Membership: Eligible public agencies that seek membership after the
expiration of the Initial Membership Period, may become Members of the Authority as
follows: (1) delivering to the Authority's Secretary a duly approved and executed copy of
this Agreement; (2) paying the Subsequent Membership Fee as specified in Section
5.01(b); (3) obtaining the express approval of the Authority's Board of Directors (the
"Board") to become a Member; and (4) complying with any further requirements
mandated by the Board. Admission of Members after the hlitial Membership Period shall
not require amendment to this Agreement. The Secretary shall keep a historical roster of
Members and their dates of admission and withdrawal.
1.04 Initial Members Entitled to Appoint Directors.
(a) Each Appointing Authority identified in subsections 1 through 14 of Section 2.01 is
entitled to appoint a Director to the Board only if the public agency which that official or
body represents becomes a Member of the Authority within the Initial Membership
Period. Appointing Authorities of public agencies identified in subsections 1 through 14
of Section 2.01 which become Members after the Initial Membership Period may be
permitted to appoint Directors to sit on the Board only if such appointment authority is
expressly approved by the Board.
(b) Each Appointing Authority identified in subsections 15 through 18 of Section 2.01 is
entitled to appoint a Director to the Board only if the required number of cities for that
Regional City Group, as set forth in the applicable Exhibit A through D, become
Members of the Authority within the hlitial Membership Period. If the required number
of cities within a Regional City Group do not become Members during the hlitial
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Membership Period, such Regional City Group shall lose its right to appoint a Director to
the Board. The Appointing Authorities identified in subsections 15 through 18 of Section
2.01 which attain the required number of Member cities after the Initial Membership
Period may be permitted to appoint Directors to sit on the Board only if such appointment
authority is expressly approved by the Board.
1.05 Effective Date; Term.
This Agreement shall become effective, and the Authority shall come into existence, on the date
on which; (a) at least ten of the nineteen public agencies representing the Appointing Authorities
identified in Section 2.01 have fulfilled the requirements of Section 1.03(a) for Initial
Membership; and (b) those Appointing Authorities have notified the Secretary of their
appointment of a Director and Alternative Director (the "Effective Date"). The Secretary shall
designate in writing the Effective Date, and provide written notice of the Effective Date to all
Members, Bay Area counties, and cities specified in Exhibits A through D. The failure of the
Secretary to designate the Effective Date or provide written notice shall not invalidate this
Agreement. The Agreement shall continue from the Effective Date until terminated as provided
in Section 6.04.
ARTICLE II -BOARD OF DIRECTORS.
2.01 Composition of the Board.
The Authority shall be governed and administered by the Board, which shall consist of a
maximum of nineteen Directors selected by the following appointing authorities (each an
"Appointing Authority" and, collectively, the "Appointing Authorities") in writing, as authorized
pursuant to the terms of this Agreement:
1. The Mayor of the City of Oaldand, California;
2. The Mayor of the City of San Francisco, California;
3. The Mayor of the City of San Jose, California;
4. The Board of Supervisors of the County of Alameda, California;
5. The Board of Supervisors of the County of Contra Costa, California;
6. The Board of Supervisors of the County of Marin, California;
7. The Board of Supervisors of the County of Napa, California;
8. The Board of Supervisors of the County of San Francisco, California;
9. The Board of Supervisors of the County of San Mateo, California;
10. The Board of Supervisors of the County of Santa Clara, California;
1 1. The Board of Supervisors of the County of Santa Cruz, California;
12. The Board of Supervisors of the County of Solano, California;
13. The Board of Supervisors of the County of Sonoma, California;
14. The Governor of the State of California;
15. The incorporated cities within the geographic area of Alameda and Contra Costa
Counties and listed in Exhibit A attached hereto (referred to herein as the "East Bay
Cities");
16. The incorporated cities within the geographic area of San Mateo County and listed in
Exhibit B attached hereto (referred to herein as the "West Bay Cities");
17. The incorporated cities within the geographic area of Santa Clara and Santa Cruz
Counties and listed in Exhibit C attached hereto (referred to herein as the "South Bay
Cities");
18. The incorporated cities within the geographic area of Marin, Napa, Sonoma, and Solano
Counties and listed in Exhibit D attached hereto (referred to herein as the "North Bay
Cities" and together with the East Bay Cities, the West Bay Cities, and the South Bay
Cities, collectively, the "Regional Cities Groups" and each, a "Regional City Group");
and
19. Seat at Large to be determined by the Board.
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2.02 Appointment of Directors.
(a) Except as provided in Section 1.04, each of the officials or bodies listed in subsections 1
through 14 in Section 2.01 above shall appoint one Director and one Alternate Director to
the Board when the public agency that official or body represents becomes a Member.
Such officials or bodies shall make reasonable efforts to make the appointments within
fifteen days of the date when the agency that official or body represents becomes a
Member.
(b) Except as provided in Section 1.04, each of the Regional Cities Groups listed in
subsections 15 through 18 in Section 2.01 above may appoint one Director and one
Alternate Director to the Board, when the required number of the cities in the applicable
Regional City Group (that specific number set forth on the bottom of the applicable
Exhibit A-D) have (i) each delivered to the Secretary a duly approved and executed copy
of this Agreement, and (ii) paid one Initial Membership Fee per Section 5.01 on behalf of
such Regional City Group. Each of the Directors and Alternate Directors appointed by a
Regional City Group shall be from one of the incorporated cities within such Regional
City Group that has become a Member, and shall represent the interests of all the cities in
its Regional City Group. Each Regional City Group shall make reasonable efforts to
appoint its Director and Alternate Director within fifteen days of the date it has satisfied
the requirements of subsections (i) and (ii) of this subsection 2.02(b). The City Managers
representing the Member cities within a Regional City Group will determine which city
will represent the Regional City Group, determine how the Member cities will provide
input to the chosen representative Director and Alternate Director, and how the Member
cities will share and pay the Initial Membership Fee and the Annual Fee thereafter.
Those cities identified in subsections 1 through 3 in Section 2.01 are excluded from
participating in, or affecting the membership calculations of any Regional City Group.
(c) The Board may select a Member or group of Members not otherwise represented on the
Board as the Appointing Authority for the Seat at Large under subsection 19 in Section
2.01 (the "At Large Appointing Authority"). The At Large Appointing Authority shall
appoint one Director and one Alternate Director to the Board. The Appointing Authority
shall make reasonable efforts to appoint its Director and Alternate Director within fifteen
days of the date it receives notice of its designation as the At Large Appointment
Authority from the Board.
(d) The Appointing Authority shall promptly provide written notice to the Secretary of the
appointment or removal of a Director or Alternate Director. Within seven days of the
Secretary's receipt of such notice, the Secretary shall notify all Members of the current
number of duly appointed Directors and provide such notice at the beginning of any
Board Meeting.
(e) At the time of appointment and for the duration of service, Directors and Alternate
Directors shall be officers or employees of Members.
(~ The term of office of each Director and Alternate Director shall be until a successor has
been appointed, except for the At Large Seat which shall be a two year term.
(g) An Alternate Director may actin his or her Director's absence and shall exercise all
rights and privileges of a Director.
(h) Each Director and each Alternate Director shall serve at the pleasure of the Appointing
Authority and the Appointing Authority may remove the Director or Alternate Director at
any time without notice or cause.
(i) All Directors and Alternate Directors shall serve without compensation. The Board may
authorize, through the bylaws, reimbursement of reasonable and necessary expenses
incurred by Directors or Alternate Directors upon review of supporting documentation.
(j) Each Appointing Authority shall authorize its Director and Alternate Director to take all
actions necessary to conduct the business required by the Authority in a timely manner.
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2.03 General Purpose of Board.
The general purpose of the Board is to:
(a) Coordinate information and address the needs, requirements, and resources of Members
regarding the development and operation of the Authority, to ensure the goals and
objectives of the Systems are fulfilled;
(b) Provide structure for administrative and fiscal oversight of the Authority;
(c) Identify and pursue funding sources for the Authority and Systems approved by the
Authority;
(d) Set appropriate policies for the Authority and the Systems;
(e) Educate Members on advanced technologies in communications and information systems
that may help them do their work more efficiently and with cost savings;
(~ Maximize the use of available resources; and
(g) Oversee all advisory committee activities.
2.04 Specific Responsibilities of the Board.
The specific responsibilities of the Board shall be as follows:
(a) Approve contracts with commercial companies, contractors, or subcontractors or other
entities regarding development, operation, maintenance and expansion of the Systems or
other projects duly approved by the Authority;
(b) Approve and revise as necessary an administrative funding plan (the "Administrative
Funding Plan") for the Authority to operate and fulfill its obligations under this
Agreement;
(c) Specify the Subsequent Membership Fee and the Annual Membership Fee, per Section
5.01;
(d) Approve and revise, as necessary, a systems funding plan (the "Systems Funding Plan")
regarding the construction and on-going operation, maintenance and ownership of the
Systems;
(e) Before the beginning of each Fiscal Year (as defined in Section 7.03), adopt, in its sole
discretion, either an annual or a multi-year budget for the Authority;
(~ Ensure strict accountability of all funds and reports of all receipts and disbursements;
(g) Contract for, or employ, necessary and sufficient administrative, technical, support and
other staff, consultants and contractors, and provide for necessary direction, management
and oversight for all staff, consultants and contractors;
(h) Adopt personnel rules and regulations if employing staff;
(i) Adopt rules for procuring supplies, equipment and services;
(j) Adopt rules for the disposal of surplus property;
(k) Identify the needs and requirements of Members, as well as subscribers of the Systems;
(1) Establish Systems priorities;
(in) Establish long-range plans for the Systems;
(n) Establish procedures for Systems implementation, monitoring and maintenance;
(o) Adopt and revise, as necessary, an appropriate and cost effective maintenance plan for
the Systems;
(p) Adopt and revise, as necessary, Systems operating policies and procedures, as well as
technical and maintenance requirements;
(q) Conduct and oversee System audits at intervals not to exceed three years;
(r) Adopt bylaws, rules and regulations as necessary for the purposes of this Agreement;
provided that nothing in the bylaws, rules and regulations shall conflict with this
Agreement or the Act;
(s) Establish fees for Members and Non-Members to access and use the Systems. The Board
shall ensure that such fees for Members are less than fees for non-members of the
Authority for comparable services;
(t) Represent the Authority in external communications; and
(u) Discharge other duties consistent with the purposes of this Agreement as appropriate or
required by statute.
2.05 Startup Responsibilities.
The Authority shall have the duty to do the following within the timeframe specified below or, if
no timeframe is specified, within a reasonable tune not to exceed one year from the Effective
Date:
(a) To use its best efforts to establish within two months of the Effective Date advisory
committee(s) in accordance with Section 3.09;
(b) To use its best efforts to establish within two months of the Effective Date a website for
posting agenda and other notices and information about the Authority and Board.
(c) To use its best efforts to develop and adopt within one month of the Effective Date an
Administrative Funding Plan for the Authority to operate and fulfill its obligations under
this Agreement;
(d) To use its best efforts to develop and adopt expeditiously, as described in Section 5.02, a
Systems Funding Plan specifying a means or formula for funding the design,
construction, operation, maintenance, expansion, and lifecycle replacement of any
systems that further the purposes of this Authority. A Systems Funding Plan shall include
but is not limited to the following. (i) the design, construction, operation, maintenance,
expansion and lifecycle replacement costs of the Systems; (ii) specification as to how site
costs and/or site remediation (e.g., electrical, air conditioning backup generators, and
power) of specified antenna sites by jurisdiction shall be paid; (iii) the estimated costs to
be borne by the Authority should ownership of the Systems later be transferred to the
Authority; (iv) good faith estimates of costs and types of devices that will be able to
operate on the Public Safety System; (v) monthly user fees for the Systems; and
(vi) identification of additional funding sources, if necessary;
(e) During the eighty days following the Effective Date, to negotiate any contracts with
commercial companies, contractors, subcontractors or entities that specify the timing and
sequencing of construction of the Systems consistent with the functional specifications,
and other business terms related to the Systems, including but not limited to
development, operation and maintenance of the Systems. In any agreement with a
contractor or entity, the Authority may not bind or commit any Member to incur any
financial obligation or provide any resources to the Systems (e.g., use of a
communications site, use of communications fiber over which the Member has control or
ownership) or to participate in use of the Systems without that Member's written
authorization. This Section 2.05(e) is subject to the restriction set forth in Section 5.02
prohibiting the Authority's approval of any agreement relating to any System until the
Board has approved a Systems Funding Plan.
(~ To contract for, hire or otherwise retain an Executive Director for the Authority, to
administer the Authority. The Board shall specify in the bylaws or personnel rules the
responsibilities, duties and authority of the Executive Director.
(g) To use its best efforts to develop and adopt, within eighty days, bylaws and other
governance documents for the Authority;
(h) To secure administrative office space, equipment, and furnishings as necessary;
(i) To encourage other governmental and quasi-governmental entities and agencies,
including but not limited to the state and federal government, other neighboring counties,
and special districts, to participate in the Systems;
(j) To develop policies and procedures for the voluntary transfer and/or sharing of assets
from Members; and
(k) To evaluate the need for, acquire and maintain insurance as deemed necessary by the
Board to protect the interests of the Authority, the Members, and the public.
2.06 Meetings of the Board.
(a) Regular Meetings. The Board shall approve a schedule for its regular meetings provided,
however, that the Board shall hold at least one regular meeting quarterly. The Board shall
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fix the date, hour and location of regular meetings by resolution and the Secretary shall
transmit a copy of the resolution to each Member.
(b) Special Meetings. Special meetings of the Board may be called by the Chair or as
provided for in the bylaws.
(c) Call, Notice and Conduct of Meetings. All meetings of the Board shall be noticed, held
and conducted in accordance with the provisions of the Ralph M. Brown Act, California
Government Code Section 54950 et s~ey. As soon as practicable, but no later than the
time of posting, the Secretary shall provide a copy of the posted agenda to each Member,
Director and Alternate Director.
(d) First Meeting. The Board shall make reasonable efforts to convene its first meeting no
later than fifteen days after the Effective Date.
2.07 Minutes.
The Secretary shall prepare minutes of all Board meetings and as soon as practicable after each
meeting, and shall make the draft minutes available to each Director, Alternate Director, the
Members and other interested parties upon request. The Board shall approve the minutes at the
next regularly scheduled meeting.
2.08 Voting; Weighted Voting.
All voting power of the Authority shall reside in the Board, and shall be subject to the following
terms and conditions:
(a) Each Director shall have one vote; an Alternate Director may vote in place of, and only in
the absence of, that Alternate Director's Director.
(b) Each Director or Alternate Director (as applicable) must be physically present at a
meeting to vote; no absentee ballot or proxy is permitted.
(c) Except as otherwise expressly set forth in this Agreement (including without limitation
Sections 2.09, 4.02, 6.04 and 7.02), the Board is authorized to adopt and apply weighted
voting methods for approval of items brought before the Board under the following
conditions:
i. The Board may utilize weighted voting only if it has previously adopted weighted
voting criteria and methodologies in the Authority's bylaws;
ii. Weighted voting will be the exception, rather than the norm, for the Authority to
conduct business;
iii. Board items that involve expenditure or commitment of the Authority's funds or
other resources must exceed $500,000 in value to be subject to weighted voting;
iv. A Director must expressly move and call for a weighted voting method on a
particular item pending before the Board, which motion must be seconded by at
least one other Director;
v. The call for such weighted vote must be made before or after any vote but prior to
moving to the next agenda item or the end of the Board meeting, whichever is
earlier; and
vi. Any Board item subject to a weighted voting method shall first be approved by a
vote of the quorum of the Board (as provided in Section 2.09), followed by a
weighted vote. Board items subject to weighted voting must be approved by both
a regular quorum vote of the Board as well as a weighted vote of the Board to be
approved.
2.09 Quorum; Votes
A majority of the Directors duly appointed to the Board, as described in Section 2.02, as of any
Board meeting date (taking into consideration the loss of any Board seats as provided in Section
6.01(e)) shall constitute a quorum of the Board for the transaction of business. For example, if
ten Directors have been duly appointed to the Board on the date of its first meeting, a quorum is
six or more Directors, and, if at a subsequent Board meeting date, fourteen Directors have been
duly appointed, a quorum is eight or more Directors. If there is less than a quorum present at a
meeting, no Board action can betaken, and the Secretary may adjourn such meeting. The
affirmative vote of at least a quorum is required to take any action by the Board.
2.10 No Personal Liability of Directors.
Under the Act, no Director or Alternate Director shall be personally liable for any debts,
obligations or liabilities of the Authority or on any bonds issued by the Authority, nor subject to
any personal liability or accountability by reason of the Authority's incurrence of debts,
obligations or liabilities or issuance of bonds.
ARTICLE III -OFFICERS, EMPLOYEES AND ADVISORY COMMITTEES
3.01 Chairperson; Vice-Chairperson.
At the first regular meeting of the Board, the Board shall elect a Chairperson and Vice-
Chairperson from among the Directors. The initial Chairperson and Vice-Chairperson shall
serve until the end of the first Fiscal Year (as defined in Section 7.03 of this Agreement). Then,
at the first regular meeting of each Fiscal Year, the Board shall elect a Chairperson and Vice-
Chairperson to serve a one year term. If the Chairperson or Vice-Chairperson resigns from or is
otherwise unable to perform the duties of the office, or his or her represented agency ceases to be
a Member, then at the next regular meeting of the Board held after the vacancy or inability to
serve occurs or as soon as practicable thereafter, the Board shall elect a new Chairperson or
Vice-Chairperson, as applicable, to serve the balance of the term.
The Chairperson, or the Chairperson's designee, shall sign all contracts and other agreements on
behalf of the Authority, and the Chairperson shall perform such other duties as the Board may
require. The Chairperson shall approve the agenda for all Board meetings, preside over Board
meetings, and call special meetings of the Board outside of the regular meeting schedule. The
Chairperson may establish committees of the Board in addition to the advisory committees
specified in Section 3.09.
If the position of Chairperson is vacant or the Chairperson is otherwise unable to serve, the Vice-
Chairperson shall sign contracts or other agreements, and perform all of the Chairperson's duties
until the Board elects a new Chairperson.
3.02 Treasurer.
At its first meeting, the Board shall appoint a Treasurer of the Authority, which shall be the
treasurer of one of its Members. To the extent permitted by the Act, the Board may change, by
resolution, the Treasurer of the Authority.
The Treasurer shall be the depository, shall have custody of the accounts, funds and money of
the Authority from whatever source, and shall have the duties and obligations set forth in the
Act. For grants awarded to Members or third parties for use with the Systems, the Treasurer will
work with the Member or third party to put in place appropriate fiscal controls to meet any grant
requirements.
3.03 Auditor.
At its first meeting, the Board shall appoint an Auditor of the Authority who shall be of the same
public agency as the Treasurer to comply with Government Code Section 6505.5. To the extent
permitted by the Act, the Board may change, by resolution, the Auditor of the Authority.
The Auditor shall perform the functions of auditor for the Authority and shall have the duties and
obligations set forth in the Act. As required by the Act, the Auditor shall make or cause an
independent annual audit of the accounts and records of the Authority by a certified public
accountant or public accountant, in compliance with generally accepted auditing standards. A
report of the financial audit will be filed as a public record as provided in Government Code
Section 6505.
3.04 Legal Counsel.
At its first meeting, the Board shall retain legal counsel for the Authority.
3.05 Secretary to the Authority.
At its first meeting, the Board shall appoint a Secretary to provide administrative support to the
Authority. If this Agreement assigns duties to the Secretary and no Secretary has yet been
appointed, the Office of the Alameda County Sheriff shall perform the duties of the Secretary
until a Secretary has been appointed by the Board. To the extent permitted by the Act, the Board
may change, by resolution, the Secretary of the Authority. The person serving as the Secretary
shall not also serve as a Director.
The Secretary shall perform the duties required under this Agreement. The Secretary shall
maintain a current list of Members and contact information for notices under Section 7.01.
3.06 Bonding of Persons Having Access to Property.
Pursuant to Government Code Section 6505.1, the Board shall designate the public officer or
officers or person or persons who have charge of, handle, or have access to any property of the
Authority, and shall require such individuals to file an official bond in an amount fixed by the
Board.
3.07 Executive Director; Other Employees.
The Board shall appoint an Executive Director, who shall administer the Authority and report to
the Board. The Board shall have the power by resolution to appoint and employ other officers,
employees, consultants and independent contractors as may be necessary to carry-out the
purpose of this Agreement.
3.08 Privileges and Immunities from Liability.
All of the privileges and immunities from liability, applicable to the activities of officers, agents
or employees of a public agency when performing their respective functions shall apply to the
officers, agents or employees of the Authority to the same degree and extent while performing
any of the functions and other duties of such officers, agents or employees under this Agreement.
None of the officers, agents or employees directly employed by the Authority shall be deemed,
by reason of their employment by the Authority, to be employed by the Members or subject to
any of the requirements of the Members.
3.09 Advisory Committees.
The Board shall establish advisory committees including a Technical Advisory Committee, the
primary purpose of which will be to review and recommend to the Board policies and procedures
related to Systems performance, maintenance and other technical issues, and which shall be
established at the first Board meeting. The Board may establish additional advisory committees
to meet the needs of the Authority. The Board shall make reasonable efforts to establish
membership of the Technical Advisory Committee and any other committees, and any offices
required by the committees. The committees shall be subject to the Ralph M. Brown Act
(California Government Code Section 54950 et seq.), and the chairperson of the committees
shall report back to the Board of Directors as specified in the bylaws.
9
ARTICLE IV -POWERS
4.01 General Powers.
The Authority shall have the powers common to the Members and that are necessary or
convenient to accomplishing the purposes of this Agreement, subject to the restrictions set forth
in Section 4.04.
4.02 Power to Issue Bonds
The Authority shall have the power, with atwo-thirds super majority vote of all Directors, to
issue bonds as specified under the Act.
4.03 Specific Powers.
The Authority is authorized, in its own name, to perform all acts necessary for the exercise of the
foregoing powers, including, but not limited to, any or all of the following:
(a) To make and enter into contracts, including but not limited to, agreements for the purpose
of acquiring real and/or personal property, equipment, employment and professional
services, and including agreements with Members;
(b) To make and enter into contracts with wholesalers, subscribers, users, or resellers that
desire to utilize the Systems for their broadband and other communications needs and
entities that desire to utilize the Systems only for mutual or automatic aid;
(c) To plan and conduct environmental review and other analyses in connection with its
plans, and design buildings, facilities or communication improvements of any kind;
(d) To acquire, construct, manage, maintain, or operate telecommunications systems or
service and to provide the equipment necessary to deliver public services;
(e) To acquire, construct, manage, maintain or operate any building, works or improvements;
(~ To acquire, hold, lease, or dispose of property, both real and personal;
(g) To apply for and hold FCC waivers or licenses to frequencies, and to enter spectrum lease
agreements;
(h) To employ or engage contractors, agents, legal counsel, or employees;
(i) To sue and be sued;
(j) To apply for, receive and utilize grants and loans from federal, state or local governments
or from any other available source in order to pursue the purposes of the Authority;
(k) To accept donations;
(1) To incur debts, liabilities and obligations, provided that no debt, liability or obligation of
the Authority shall constitute a debt, liability or obligation of the individual Members;
(in) To impose, levy, collect or cause to be collected, or to receive and use, communication
impact or development fees on new residential, commercial, and industrial development,
but only upon the express approval of the affected Member jurisdiction and as otherwise
authorized by local, state, and federal law;
(n) Under Government Code Section 6509.5, to invest any money that is not required for the
immediate necessities of the Authority, as the Authority determines is advisable, in the
same manner and upon the same conditions as local agencies, under Section 53601 of the
California Government Code;
(o) To carry on technical and other investigations of all kinds necessary to further the
purposes of the Authority; and
(p) To promulgate, adopt, and enforce any rules and regulations, as may be necessary and
proper to implement and effectuate the terms, provisions, and purposes of this
Agreement.
4.04 Restriction on Exercise of Powers.
Under Sections 6508 and 6509 of the Act, all common powers exercised by the Authority shall
be exercised in a manner consistent with, and subject to, the restrictions and limitations upon the
exercise of such powers as are applicable to the County of Alameda, a California charter county.
10
4.05 Limited Liability of the Authority.
Consistent with Government Code section 6508.1, the debts, liabilities and obligations of the
Authority shall be limited to the assets of the Authority and shall under no circumstances be the
debts, liabilities and obligations of any of the Members. A Member may (but has no obligation
to) separately contract for or assume responsibility in writing for specific debts, liabilities, or
obligations of the Authority. In furtherance of this Section, the Authority shall indemnify the
Members as provided in Section 7.16 below.
ARTICLE V -CONTRIBUTIONS; ACCOUNTS AND REPORTS; FUNDS
5.01 Initial, Subsequent and Annual Membership Fees.
The Authority may use the funds generated by fees charged to its Members to support
administrative, legal, and other authorized costs incurred by the Authority.
(a) Initial Membership Fee. To become a Member of the Authority within the Initial
Membership Period, each eligible public agency shall pay an hlitial Membership Fee as
specified below (each such fee, as applicable, the "hlitial Membership Fee").
i. Each public agency identified in subsections 1 through 14 in Section 2.01 shall
pay an Initial Membership Fee to the Authority of Twenty Four Thousand Five
Hundred Dollars ($24,500) as a condition of appointing its Director and Alternate
Director
ii. Each Regional Cities Group identified in subsections 15 through 18 in Section 2.01
shall pay a single Initial Membership Fee to the Authority of Twenty Four
Thousand Five Hundred Dollars ($24,500) for the group as a whole, which will
enable each of the cities within the Regional City Group to obtain membership
status upon satisfying the other requirements of this Agreement. If an eligible city
has paid an Initial Membership Fee of Five Thousand Dollars ($5,000.00) because
the required number of cities within its Regional City Group did not become
Members within the Initial Membership Period, its payment shall be credited
toward the applicable Regional City Group's Subsequent Membership Fee, as
defined in Section 5.01(b).
iii. Except as otherwise set forth above, public agencies eligible to become Members,
but not specifically identified in subsections 1 through 14 in Section 2.01 shall
pay an Initial Membership Fee to the Authority of Five Thousand Dollars
($5,000.00) as a condition of becoming Members.
(b) Subsequent Membership Fee. Each eligible public agency applying to become a
Member after the Initial Membership Period, whether or not identified in Section 2.01,
shall pay a Subsequent Membership Fee as a condition to becoming a Member (each such
fee, as applicable, hereinafter a "Subsequent Membership Fee"). The Board shall
determine the amount of each Subsequent Membership Fee, but in no event shall it be
less than the hlitial Membership Fee the public agency would have been required to pay
to become a Member within the Initial Membership Period.
(c) Annual Fee. Each Member shall pay an Annual Fee, by not later than July 1st of each
Fiscal Year to maintain membership in the Authority (each such fee, as applicable,
hereinafter, the "Annual Fee"). The Board shall set each Annual Fee in an amount not to
exceed the hlitial Membership Fee or Subsequent Membership Fee, as the case may be,
paid by the respective Member; however, the Board may adjust the Annual Fee each
Fiscal Year to reflect changes in the Consumer Price Index. The Board shall round the
adjusted Annual Fee to the nearest whole dollar. A Member is not required to pay its first
Annual Fee if the Member paid its Initial or Subsequent Membership Fee, as applicable,
within six months of its first Annual Fee due date.
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5.02 Adoption of Systems Funding Plan.
(a) A goal of the Authority is to develop the Systems Funding Plan as specified in Sections
2.04(d) and 2.05(d). The Board shall not approve any agreement for construction of or
relating to any Systems until the Board has approved a Systems Funding Plan.
(b) Before the Board may consider adopting the Systems Funding Plan, it shall distribute the
proposed Systems Funding Plan to the Members under Section 7.01. The proposed
Systems Funding Plan shall be accompanied by a description of the Systems, and
information to allow Members to determine the Systems' capability, data speeds,
functionality, features, cost, financing and the expected impacts on individual Members.
The Board shall designate a period, which shall not be less than ninety days, during
which Members may provide comments to the Board regarding the proposed Systems
Funding Plan. After the comment period has expired, the Board may:
(c) Adopt the Systems Funding Plan as proposed;
i. Revise the Systems Funding Plan to address some or all of the Member
comments;
ii. Reconsider the Systems Funding Plan at a later date; or
iii. Reject the Systems Funding Plan.
(d) The Board shall give notice to Members under Section 7.01 within five days of adoption
of the Systems Funding Plan (the actual date such notice is provided to members, the
"Systems Funding Plan Notice Date"). The notice shall include a copy of the adopted
Systems Funding Plan and the date by which Members may withdraw pursuant to Section
6.01(a).
(e) If the Board decides to exercise its option under Section 5.02(b)(ii) to revise the Systems
Funding Plan to address Member comments and the Board adopts a revision that changes
any Member's financial obligation from the previous version of the Systems Funding
Plan, the thirty day time period specified in Section 6.01(a) for withdrawal from the
Authority shall automatically be extended to ninety days from the Systems Funding Plan
Notice Date.
5.03 Additional Contributions; Disproportionate Impact.
The Board shall not require Members to provide any additional contributions to the Authority of
any kind or nature whatsoever, for any purpose. Except as otherwise expressly set forth in this
Agreement, the Board is not authorized to require Members to provide funds, resources,
equipment or personnel in order to maintain membership in the Authority, maintain a Director's
seat on the Board, and/or participate in the Systems. Members have the ability to provide
additional contributions to the Authority, but only upon approval of their governing authorities.
In addition, the Board shall not take any of the following actions without the express approval of
the affected Member(s):
(a) Require any Member to adopt any tax, assessment, fee or charge;
(b) Require any Member to expend its resources, or utilize its property or equipment in a
particular fashion, as part of a project or similar action taken by the Authority; and/or
(c) Approve a project or similar action without taking into consideration whether that action
would disproportionately and negatively impact any Member based on objective and
quantifiable factors.
The provisions of this section shall not affect the ability of the Authority to charge user fees or
other costs associated with a Member's use of the Systems.
5.04 Accounts and Reports.
The Treasurer shall establish and maintain such funds and accounts as may be required by good
accounting practice or by any provision of any trust agreement entered into with respect to the
proceeds of any bonds issued by the Authority, or by the State Controller or the United States
Government. The books and records of the Authority in the hands of the Treasurer shall be open
to inspection at all reasonable times by duly appointed representatives of the Members. The
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Treasurer, within 180 days after the close of each Fiscal Year, shall give a complete written
report of all financial activities for such Fiscal Year to the Members.
5.05 Funds.
The Treasurer shall receive, have custody of and/or disburse Authority funds in accordance with
the laws applicable to public agencies and generally accepted accounting practices, and shall
make the disbursements required by this Agreement in order to carry out any of the purposes of
this Agreement.
5.06 Use of Spectrum.
It is the Authority's intent to operate a regional interoperable public safety broadband
communications system on any radio spectrum that the FCC authorizes for public safety use,
specifically including spectrum licensed to the Public Safety Spectrum Trust in the 700 MHz
frequency (763-768/793-798 MHz) from the FCC for use by public safety and any other
spectrum upon which the FCC allows public safety operation by the Authority in the future. It is
the Authority's intent to maximize dedicated public safety spectrum in order to obtain high levels
of communications reliability during major disasters, major events, or other emergencies. The
Authority is authorized to apply for any FCC spectrum licenses or leases that are appropriate for
public safety operation for the Bay Area region. For the Public Access System, unlicensed
spectrum shall be used to provide this service consistent with FCC rules and regulations.
5.07 Operational and Technical Policies.
The Authority may set forth operational and technical policies for appropriate usage of the
Systems so that the Systems are operated in a manner that permits usage by all Members in a fair
and reasonable manner. Such operation and technical policies shall be developed by the
Technical Advisory Committee and approved by the Board after review.
5.08 System Components
The Systems will be comprised of components that may include, but are not limited to, radio
sites and facilities, microwave and fiber bacldlaul, base station equipment, antennas, evolved
packet core network(s), network management systems, ancillary network components and end-
user equipment (the "System Components"). Members may provide System Components to the
Authority through written agreements signed by both the Member and the Authority. Such
agreements shall at a minimum specify the following with respect to the System Components
being provided, if 1c~lown: (a) detailed descriptions and locations; (b) possession and ownership;
(c) operation, maintenance and upgrade requirements; (d) parameters regarding use of and access
to the particular System Components; (e) provisions addressing the Member's removal or
discontinued shared use of System Components from the Systems; and (f) provisions to excuse a
loss of use of System Components through a change in circumstances that make it impossible or
impracticable for a Member to continue to provide System Components previously used in the
Systems. Any such agreement regarding Systems Components shall be consistent with the
provisions of Section 6.01(d).
5.09 Non-Member Use of Systems.
Public entities or agencies that are not Members of the Authority may use the Authority's Public
Safety System on a usage fee basis as subscribers; however users of public safety spectrum must
comply with any federal laws or FCC regulations limiting use to public safety entities. Public
entities, public agencies, community anchor institutions and other retail users may purchase
service from the Authority's Public Access System from such System's wholesalers, resellers or
other distribution channels approved by the Authority. The Board shall adopt rules and
reasonable rates for this use of the Systems in a fair and nondiscriminatory manner.
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ARTICLE VI -WITHDRAWAL AND TERMINATION
6.01 Withdrawal by Members.
Members may withdraw from the Authority as follows:
(a) Within thirty days of the Systems Funding Plan Notice Date, as such period may be
extended pursuant to the provisions in Section 5.02(d) ("Initial Withdrawal Period"), a
Member shall submit written notice to the Chairperson and Secretary of its withdrawal
from the Authority, which withdrawal notice shall be effective immediately. Such
withdrawing Member will not incur any additional financial obligations as a result of
membership in the Authority during such hlitial Withdrawal Period; provided, that the
initial Annual Fee or any Annual Fee paid by such withdrawing Member prior to
withdrawal will not be returned.
(b) After the hlitial Withdrawal Period, a Member that did not provide System Components
(except end-user equipment) shall provide to the Chairperson and Secretary written
notice of its withdrawal from the Authority which withdrawal notice shall be effective
immediately; provided, that any Annual Fee already paid will not be returned to such
withdrawing Member;
(c) After the hlitial Withdrawal Period, a Member that provided System Components (except
end-user equipment) shall provide to the Chairperson and Secretary twelve months
advance written notice of its withdrawal from the Authority, which withdrawal shall be
effective at the end of the notice period or earlier as permitted by the Board; provided,
that any Annual Fee already paid will not be returned to such withdrawing Member
(d) If withdrawing under Section 6.01(c), a Member that provided System Components shall
be required to pay a withdrawal payment. Such withdrawal payment shall be determined
through a good faith negotiation between the withdrawing Member and the Authority,
and shall be in an amount approved by the Board. The purpose of the withdrawal
payment is to require the Member to cover the Authority's actual and direct expenses
reasonably related to the withdrawal including, but not limited to, equipment relocation
fees, leasing, and permit fees relating to System Components that the Member had
dedicated to supporting the Systems, as well as related administrative costs and
professional services fees. The withdrawing Member may mitigate this withdrawal
payment by entering into an agreement for the Authority's continued use of the
Member's assets, as described in Section 6.03. If the parties are unable to reach an
agreement on the amount of the withdrawal payment, the parties shall mutually choose a
neutral third party who shall be authorized to make such a determination and resolve the
matter.
(e) If a withdrawing Member is an Appointing Authority to the Board, such Member shall
lose its appointing authority and seat on the Board as of the date such Member gives
notice of its withdrawal.
(~ If the withdrawing Member is a City within a Regional City Group, and the withdrawal
of that Member reduces the number of Members in that Regional City Group below the
threshold required to appoint a Director, as specified in Section 2.01 and the applicable
Exhibit A through D for that Regional City Group, then such Regional City Group shall
lose its Appointing Authority and seat on the Board effective as of the date the Member
gives notice. If one or more additional cities from within such Regional City Group
become Members of the Authority, such that the required number of cities within that
Regional City Group are Members for purposes of appointing a Director, as specified in
the applicable Exhibit A through D, the Regional City Group shall regain its ability to
appoint a Director to the Board.
6.02 Financial Liabilities of Withdrawing Members.
Except as otherwise provided in Section 5.02:
(a) A withdrawing Member shall remain liable for all financial liabilities incurred during its
membership in the Authority; however, except for the Annual Fee required per Section
14
5.01(c) paid for the year in which the withdrawal notice is given, the Member shall not be
liable for any new financial liabilities incurred after submitting written notice of its
withdrawal, including but not limited to future Annual Fees.
(b) The Authority and the withdrawing Member may negotiate abuy-out agreement for early
termination of membership to retire any ongoing financial obligations the Member shares
with the Authority.
6.03 Retention of Assets by Withdrawing Members.
Any System Component(s) that a withdrawing Member provided to the Authority shall remain
the sole asset of that Member unless the Member and the Authority otherwise agree. If requested
by the Authority, a withdrawing Member shall consider options for the Authority's continued use
of such Member's System Component(s). Acceptance of any option is at the sole discretion of
the withdrawing Member. Also, the use by the Authority of the withdrawing Member's System
Component(s) shall be terminated upon the effective date of withdrawal, unless otherwise agreed
between the Authority and Member.
6.04 Termination of Authority; Disposition of Authority Assets.
If at any point there are fewer than ten Directors on the Board, then the Board shall determine, at
least once annually, whether the Authority is able to continue to fulfill its purpose and
obligations required by this Agreement. In such a circumstance, the Board may recommend
termination of this Agreement and dissolution of the Authority to the Directors' respective public
agencies. The Authority may be terminated by atwo-thirds super-majority vote of Directors and
upon written consent from their respective public agencies. Upon termination of this Agreement
and dissolution of the Authority, and after payment of all obligations of the Authority, the Board
shall distribute Authority assets, including real or personal property, in proportion to the
contributions made by Members. The Board may sell or liquidate Authority property and shall
distribute the proceeds thereof in proportion to the contributions made by Members.
Any System Component(s) provided by a Member to the Authority shall remain the asset of that
Member and shall not be subject to distribution under this section.
ARTICLE VII -MISCELLANEOUS PROVISIONS
7.01 Notices.
Any notice required or permitted to be made under this Agreement shall be in writing and shall
be delivered in the manner prescribed in this Section 7.01 at the address set forth below such
party's signature block to this Agreement. The parties may give notice by:
(a) Personal delivery;
(b) E-mail;
(c) U.S. Mail, first class postage prepaid;
(d) "Certified" U.S. mail, postage prepaid, return receipt requested;
(e) Facsimile.
At any time, by providing written notice to the Secretary, any party may change the place,
facsimile number or e-mail for giving notice. All written notices or correspondence sent in the
described manner will be deemed given to a party on whichever date occurs earliest:
(a) The date of personal delivery;
(b) The third business day following deposit in the U.S. mail, when sent by "first class" mail:
(c) The date on which the party or its agent either signed the return receipt or refused to
accept delivery, as noted on the return receipt or other U.S. Postal Service form, when
sent by "certified" mail; or
(d) Notices delivered by electronic mail shall be deemed received upon the sender's receipt
of an aclc~lowledgment from the intended recipient (such as by the "return receipt
requested" function, as available, return electronic mail or other written aclc~lowledgment
15
of receipt); provided that, if such notice is not sent during normal business hours of the
recipient, such notice shall be deemed to have been sent on the next business day of the
recipient.
7.02 Amendment.
This Agreement may be amended upon atwo-thirds supermajority vote of the Members and a
unanimous vote of the Board and execution of such amendment by each of the Members
approving such amendment and each of the Members seated on the Board. However, this
Agreement shall not be amended, modified or otherwise revised, changed or rescinded, if such
action would:
(a) Materially and adversely affect either the rating of bonds issued by the Authority, or
bondholders holding such bonds; or
(b) Limit or reduce the obligations of the Members to make, in the aggregate, payments
which are for the benefit of the owners of the bonds.
7.03 Fiscal Year.
The Authority's Fiscal Year shall be July 1 to June 30.
7.04 Consents and Approvals.
Any consents or approvals required under this Agreement shall not be unreasonably withheld.
7.05 Incorporation of Act.
The provisions of the Act, as it may be amended from time to time, which are required to be
included in this Agreement, are incorporated into this Agreement by reference.
7.06 Enforcement of Authority.
The Authority is authorized to take any or all legal or equitable actions, including, but not limited
to, injunction and specific performance, necessary or permitted by law to enforce this
Agreement.
7.07 Severability.
If any one or more of the terms, provisions, promises, covenants, or conditions of this Agreement
were, to any extent, adjudged invalid, unenforceable, void, or voidable for any reason
whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions,
promises, covenants, and conditions of this Agreement shall not be affected and shall be valid
and enforceable to the fullest extent permitted by law.
7.08 Successors.
This Agreement shall be binding upon and shall inure to the benefit of the successors and
permitted assignees of each Member.
7.09 Assignment.
No Member shall assign any rights or obligations under this Agreement without the prior written
consent of the Board.
7.10 Governing Law.
This Agreement is made and will be performed in the State of California, and as such California
substantive and procedural law shall apply. Venue for any litigation under this Agreement shall
be within any jurisdiction that constitutes or includes active Members at the time of litigation
within the State of California.
7.11 Headings.
The section headings in this Agreement are for convenience only and are not to be construed as
modifying or governing the language of this Agreement.
16
7.12 Counterparts.
This Agreement may be executed in counterparts.
7.13 No Third Party Beneficiaries.
This Agreement, including the obligations of the Authority described in this Agreement, are not
intended to benefit any party other than the Authority and its Members, except as expressly
provided otherwise in this Agreement. No agency that is not a signatory to this Agreement shall
have any rights or causes of action against any party to this Agreement as a result of that party's
performance or non-performance under this Agreement, except as expressly provided otherwise
in this Agreement.
7.14 Filing of Notice of Agreement or Amendment.
Within thirty days after the Effective Date of the Agreement or any amendment to the
Agreement, the Secretary shall prepare and file notices as required by Government Code Section
6503.5. The Secretary shall also file a copy of the Agreement or any amendment to the
Agreement with the Controller as required by Government Code Section 6503.6.
7.15 Conflict of Interest Code.
The Board shall adopt a conflict of interest code as required by law.
7.16 Indemnification.
The Authority shall defend, indemnify and hold harmless each Member (and each Member's
officers, agents, and employees, successors and assigns) from any and all liability, including, but
not limited to, claims, losses, suits, injuries, damages, costs and expenses (including, without
limitation, attorney's fees and consequential damages), of every kind, nature and description,
(collectively, "Losses") directly or indirectly arising from or as a result of: (i) any accident,
injury to or death of any person or loss or damage to property that may be directly or indirectly
caused by the acts or omissions of the Authority or its officers, employees or agents; (ii) any act
of the Authority or its agents, servants, employees or officers in the observation or performance
of any of its responsibilities under this Agreement, or any failure by the Authority to perform any
such responsibilities; and/or (iii) any actions or inactions of Members taken as a result of their
membership in the Authority. Notwithstanding the foregoing, the Authority shall not be required
to indemnify any Member against any Losses that are caused by the negligence or willful
misconduct of such Member seeking indemnification or any of their respective officers, agents,
employees, successors or assigns.
7.17 Dispute Resolution/Legal Proceedings.
Disputes regarding the interpretation or application of any provision of this Agreement shall, to
the extent reasonably feasible, be resolved through good faith negotiations between the Members
and/or the Authority.
7.18 Non-Waiver.
No waiver of the breach or default of any of the covenants, agreements, restrictions, or
conditions of this Agreement shall be construed to be a waiver of any succeeding breach of the
same or other covenants, agreements, restrictions, or conditions of this Agreement. No delay or
failure in exercising any right, power or remedy in the event of breach or default of this
agreement shall be construed as a waiver thereof, or acquiescence therein.
7.19 Complete Agreement.
This Agreement constitutes the full and complete agreement of the parties with respect to the
subject matter hereof. All prior negotiations and written and/or oral agreements between the
parties with respect to the subject matter of this Agreement are merged into this Agreement.
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IN WITNESS WHEREOF, each Member has caused this Agreement to be duly approved,
executed and delivered, as follows:
City of Oakland
Signature
Name/Title
1 Frank Ogawa Plaza
Attention: Mayor
Oaland, CA 95609-2259
Email:
Fax:
City of San Francisco
Signature
Name/Title
1 Carlton B. Godlett Place, Room 200
Attn: Mayor
San Francisco, CA 94102
Email:
Fax:
City of San Jose
Signature
Name/Title
200 East Santa Clara Street
Attention: Mayor
San Jose, CA 95113-1905
Email:
Fax:
18
County of Alameda
Signature
Name/Title
Attention: County Administrator
1221 Oalc Street
Oaldand, CA 94612-4222
Email:
Fax:
County of Contra Costa County
Signature
Name/Title
County of Contra Costa County
651 Pine Street, 1 lti' Floor
Attn.: County Administrator
Martinez, CA 94553
Email:
Fax:
County of Marin
Signature
Name/Title
3501 Civic Center Drive, Suite 325
Attn: County Administrator
San Rafael, CA 94903
Email:
Fax:
19
County of Napa
Signature
Name/Title
1195 Third Street, Suite 310
Attn: County Executive Officer
Napa, CA 94559
Email:
Fax:
County of San Francisco
Signature
Name/Title
1 Carlton B. Godlett Place, Room 200
Attn: Board of Supervisors
San Francisco, CA 94102
Email:
Fax:
County of San Mateo
Signature
Name/Title
400 County Center
Attention: County Administrator
Redwood City, CA 94063
Email:
Fax:
20
County of Santa Clara
Signature
Name/Title
70 West Hedding Street, 1 lti' Floor
Attn: Chief Administrative Officer
San Jose, CA 95110
Email:
Fax:
County of Santa Cruz
Signature
Name/Title
701 Ocean Street, Room 520
Attn: County Administrative Officer
Santa Cruz, CA 95060
Email:
Fax:
County of Solano
Signature
Name/Title
675 Texas Street, Suite 6500
Attn: County Administrator
Fairfield, CA 94533
Email:
Fax:
21
County of Sonoma
Signature
Veronica Ferguson, County Administrator
Name/Title
575 Administration Drive, Suite 104A
Attn: County Administrator
Santa Rosa, CA 95403
Email: vaferguson~sonoma-county.org
Fax: (707) 565-3778
State of California
Signature
Name/Title
California Technology Agency
Attention: Secretary
Attention: Director, Public Safety Communications Division
1325 J Street, Ste 1600
Sacramento, CA 95814
Email:
Fax:
22
Exhibit A
List of East Bay Cities
Alameda County hncorporated Cities
1) Alameda
2) Albany
3) Berkeley
4) Dublin
5) Emeryville
6) Fremont
7) Hayward
8) Livermore
9) Newark
10) Piedmont
11) Pleasanton
12) San Leandro
13) Union City
Contra Costa County Incorporated Cities
1) Antioch
2) Brentwood
3) Clayton
4) Concord
5) Danville
6) El Cerrito
7) Hercules
8) Lafayette
9) Martinez
10) Moraga
11) Oaldey
12) Orinda
13) Pinole
14) Pleasant Hill
15) Richmond
16) San Pablo
17) San Ramon
18) Walnut Creek
Seven of the thirty one East Bay hncorporated Cities becoming Members of the Authority allows
this group to hold one Board seat under subsection 15 in Section 2.01.
23
Exhibit B
List of West Bay Cities
San Mateo County Incorporated Cities
1) Atherton
2) Belmont
3) Brisbane
4) Burlingame
5) Colma
6) Daly City
7) East Palo Alto
8) Foster City
9) Half Moon Bay
10) Hillsborough
11) Menlo Parlc
12) Millbrae
13) Pacifica
14) Portola Valley
15) Redwood City
16) San Bruno
17) San Carlos
18) San Mateo
19) South San Francisco
20) Woodside
Five of the twenty West Bay Incorporated Cities becoming Members of the Authority allows this
group to hold one Board seat under subsection 16 in Section 2.01.
24
Exhibit C
List of South Bay Incorporated Cities
Santa Clara County Incorporated Cities
1) Campbell
2) Cupertino
3) Gilroy
4) Los Altos
5) Los Altos Hills
6) Los Gatos
7) Milpitas
8) Monte Sereno
9) Morgan Hill
10) Mountain View
11)Palo Alto
12) Santa Clara
13) Saratoga
14) Sunnyvale
Santa Cruz County Incorporated Cities
1) Capitola
2) Santa Cruz
3) Scotts Valley
4) Watsonville
Four of the eighteen South Bay Incorporated Cities becoming Members of the Authority allows
this group to hold one Board seat under subsection 17 in Section 2.01.
25
Exhibit D
List of North Bay Incorporated Cities
Marro County Incorporated Cities
1) Belvedere
2) Corte Madera
3) Fairfax
4) Larkspur
5) Mill Valley
6) Novato
7) Ross
8) San Anselmo
9) San Rafael
10) Sausalito
11) Tiburon
Napa County hncorporated Cities
1) American Canyon
2) Calistoga
3) Napa
4) St. Helena
5) Yountville
Sonoma County Incorporated Cities
1) Cloverdale
2) Cotati
3) Healdsburg
4) Petaluma
5) Rohnert Park
6) Santa Rosa
7) Sebastopol
8) Sonoma
9) Windsor
Solano County Incorporated Cities
1) Benicia
2) Dixon
3) Rio Vista
4) Suisun City
5) Vacaville
6) Vallejo
Seven of the thirty-one North Bay hncorporated Cities becoming Members of the Authority
allows this group to hold one Board seat under subsection 18 in Section 2.01.
26
RESOLUTION NO. -11
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********************************************
APPROVING THE JOINT POWERS AGREEMENT TO ESTABLISH THE BAY AREA
REGIONAL INTEROPERABLE COMMUNICATIONS SYSTEM (BayRICS) AUTHORITY
WHEREAS, the Bay Area Urban Area Security Initiative (UASI) has been working for
several years on the development of a region wide public safety broadband network system
linking the ten Bay Area counties; and
WHEREAS, this system will enable a faster, more efficient and affordable broadband
data solution for Bay Area public safety agencies that will be used to transmit and receive
mission-critical data sent between those agencies; and
WHEREAS, in 2009 Congress approved a grant program called the Broadband
Technology Opportunity Program (BTOP) to build broadband networks to enhance public safety
in underserved communities; and
WHEREAS, in order to take advantage of the BTOP grant funding, the Bay Area UASI,
in cooperation with Bay Area public safety agencies, devised a grant strategy whereby a private
entity grant partner would assume ownership as well as the technical and financial risk for the
project; and
WHEREAS, the ultimate goal is to have Bay Area government agencies assume
ownership of the network; and
WHEREAS, a Joint Powers Agreement To Establish the Bay Area Regional
Interoperable Communications System (BayRICS) Authority was prepared to create an entity
that will represent the region in the negotiation of the purchase of the network as well as an
operations and maintenance agreement for the network.
NOW, THEREFORE, BE IT RESOLVED THAT THE City Council hereby approves the
Joint Powers Agreement To Establish the Bay Area Regional Interoperable Communications
System (BayRICS) Authority and authorizes the City Manager to execute said Agreement.
PASSED, APPROVED AND ADOPTED this day of
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Mayor
2011, by the following vote:
2
City Clerk
98685