BOARD MEETING DATE: May 7, 2010
AGENDA NO. 11

PROPOSAL:

Appropriate Funds from Designation for Litigation and Enforcement and Authorize Amending/Initiating Contracts with Outside Counsel

SYNOPSIS:

AQMD District Counsel is currently being assisted by outside counsel in a dispute with a contractor over the ownership of source codes related to the URBEMIS model. Outside counsel with expertise in intellectual property law continues to assist the AQMD in resolving this dispute. This action is to appropriate $50,000 from the Designation for Litigation and Enforcement to the Legal Budget, Professional and Special Services account, and to authorize the Chairman to amend the contract to expend these funds with Ivie McNeill & Wyatt.

COMMITTEE:

Administrative, April 9, 2010, Recommended for Approval

RECOMMENDED ACTIONS:

1. Appropriate $50,000 from the Designation for Litigation and Enforcement to Legal’s FY 2009-10 Budget, Professional and Special Services account.

2. Authorize the Chairman of the Board to amend the contract with Ivie McNeill & Wyatt in a total amount not to exceed $125,000 in FY 2009-10.
 

Barry R. Wallerstein, D.Env.
Executive Officer

Background

The FY 2009-10 Budget for Legal included $75,000 for specialized legal counsel. The District is involved in a dispute with a contractor over the ownership of computer source code related to the URBEMIS planning model. Outside counsel with expertise in intellectual property law continues to assist the AQMD in resolving this dispute. We have spent $75,000 in legal fees in this dispute, which were paid to the law firm of Ivie McNeill & Wyatt. Although District Counsel has put cost-containment measures in place, it is expected that expenses in this matter will require an additional amount up to $50,000 to resolve this matter, provided that a trial is not necessary. Accordingly, District Counsel is requesting the appropriation of additional funds in the amount of $50,000, for a total expected expenditure of $125,000 this fiscal year.

Proposal

In order to defend this matter, it is necessary to appropriate additional funds for outside counsel. It is expected that matters requiring specialized legal counsel will require an additional $50,000 to be appropriated to a contract with Ivie McNeill & Wyatt.

Sole Source Justification

AQMD's Procurement Policy, Section VIII B2, provides for a waiver of formal bid processes under certain circumstances based upon documentation justifying a sole-source award. The award to Ivie McNeill & Wyatt is justified pursuant to Procurement Policy Section VIII B2(d), other circumstances exist justifying a sole-source award, subdivision (4), level-of-effort expert consultation services, in view of the need for immediate significant work involving special expertise in intellectual property law and litigation. The firm's hourly rate is commensurate with the level of expertise.

Resource Impacts

Sufficient funds will be available in Legal’s FY 2009-10 Budget following the transfer of funds from the Designation for Litigation and Enforcement.