BOARD MEETING DATE: February 19, 2010
AGENDA NO. 2

PROPOSAL:

Approve Indemnification Clause in ENVIRON International Corporation Contract

SYNOPSIS:

On January 8, 2010, the Board approved execution of a contract with ENVIRON International Corporation to develop a computer model to calculate criteria pollutant and GHG emissions from land use development. The need to develop such a model arose when an existing contractor claimed to own the source code for an existing computer model, URBEMIS, which has previously been widely used and made available at no cost. This action is to approve indemnification provisions relating to potential legal claims against ENVIRON by persons involved in violation of intellectual property rights asserted relative to the URBEMIS program if those claims arise from work required under the contract.

COMMITTEE:

Not Applicable

RECOMMENDED ACTIONS:

Approve the indemnification provision in the proposed contract with ENVIRON International Corporation (ENVIRON) by which AQMD agrees to indemnify ENVIRON for losses resulting from violation of intellectual property rights arising out of work authorized by AQMD under the contract.
 

Barry R. Wallerstein, D.Env.
Executive Officer

Background

The public has used the URBEMIS computer model for calculating mobile source and other emissions from land use and other projects. The development of URBEMIS has been financed by the California Air Resources Board and the air districts, including AQMD. In 1999, AQMD contracted with a consultant, Jones & Stokes, for upgrades to URBEMIS. The Board previously approved litigation against Jones & Stokes and Rimpo & Associates regarding ownership of the URBEMIS source code.

The Board has also approved a contract with ENVIRON International Corporation to develop a new, alternative computer model to calculate criteria pollutant and GHG emissions from land use development. ENVIRON has requested that the contract include an indemnification provision regarding any legal claims that Jones & Stokes, Rimpo & Associates, or other third parties may bring against ENVIRON as a result of work performed under the contract. ENVIRON has made this request in light of the ongoing legal dispute between Jones & Stokes, Rimpo & Associates, and AQMD.

Proposal

Staff recommends that the Board approve the attached indemnification provision in the contract with ENVIRON.

Attachment

A – Proposed Indemnification Clause

ATTACHMENT A

7. INDEMNIFICATION

. . . 

C. AQMD agrees to hold harmless, indemnify, and defend CONTRACTOR, its officers, employees, agents, representatives, and successors-in-interest against any and all loss, damage, cost, or expenses which CONTRACTOR, it officers, employees, agents, representatives, and successors-in-interest may incur or be required to pay by reason of any claims, costs, fees, expenses or any other damages incurred by CONTRACTOR as a result of any intellectual property claims, including copyright or patent infringement, trade secret misappropriation, or any other asserted violation of proprietary or property rights, or any claims of tortuous interference by Rimpo & Associates, Jeanne Rimpo, Tim Rimpo, Jones & Stokes, or any other third parties as it relates to copyright, proprietary or property ownership assertions regarding the URBEMIS program resulting from work performed under this Contract at the direction of AQMD.