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HomeMy WebLinkAbout01/15/1991, C-1 - SERVICES FOR CLOUD SEEDING OPERATIONS���� ►�N�Ip��I��IN MY Of San LUIS OBISPO COUNCIL AGENDA REPORT FROM: William T. Hetland, Utilities Director) Gary W. Henderson, Utilities Engineer Liss SUBJECT: Services for Cloud Seeding Operations MEETING DATE: January ITEM NUMT. RECOMMENDATION: By motion, approve and authorize the Mayor to execute, an agreement for Cloud Seeding Services with Atmospherics Incorporated of Fresno, Calif. in an amount not to exceed $387,400.00 (total amount for 3 year period) and an agreement with the County of San Luis Obispo to participate in the project. BACKGROUND: The City Council requested staff to obtain proposals for providing services for cloud seeding operations. During development of the request for proposals, the County contacted staff and indicated that they may be interested in participating in the cloud seeding project. The cloud seeding project "target areas" are the Salinas Reservoir and Lopez Lake watersheds. The Whale Rock Reservoir area is not included due to several factors. The Whale Rock Reservoir watershed is approximately 23 square miles compared to Salinas and Lopez which are 112 and 68 square miles respectively. The small size will impact the ability to cause precipitation to fall over the "target area ". Also, since Salinas and Lopez watersheds are contiguous, the plane and ground generators can focus on one area for operations. Staff sent out requests for proposals on December 5, 1990. Proposals from three firms were received and opened on December 20, 1990. City and County staff reviewed the proposals and the firms were ranked in the following order: L Atmospherics Incorporated of Fresno, Calif. 2. North American Weather Consultants of Salt Lake City, Utah 3. Weather Modification, Inc. of Bowman, North Dakota Atmospherics Incorporated was ranked number one based on their thirty years of experience in weather modification operations and research. Their corporate facilities are located near Fresno Air Terminal which include general offices, an electronics manufacture and repair section, meteorological instrument repair shop, chemistry and photo laboratories, storage for cloud seeding materials, and specialized equipment (ie. aircraft fitted for cloud seeding operations, weather radars, variety of computer equipment, ground and airborne liquid -fuel cloud seeding generators, etc.). The close proximity of their headquarters allows them to respond quickly to any problems encountered while performing the work required under the contract. Atmospherics Incorporated can be fully operational on the San Luis Obispo Program within 15 days of contract award notification. This operational status does not include installation of the remote ground generators. Site selection and installation of these units would require an additional 30 days for full operations. I ,) 11,1411111 IU city of San LUIS OBISpo COUNCIL AGENDA REPORT Page Two FISCAL IMPACT: Fixed Costs Estimated Reimbursable Total Costs First Season $66,211 $31,309 $97,520 (3 months) Second Season $1079860 $44,580 $152,440 (5 months) Third Season $107,860 $44,580 $152.44 (5 months) GRAND TOTAL $387,400 The money for this project was not included in the current budget. The first years amount will need to come from 89/90 Water Fund Carry-Over (see attached Budget Amendment Request). The second two years will be included in the next two year budget program. The County of San Luis Obispo has agreed to share in the cost of the project. The County will reimburse the City 37.8% of the total cost. This percentage was determined based on a ratio of the size of the Lopez watershed to the combined size of the Salinas and Lopez watersheds. Attachments: Budget .Amendment Request Consultant Service Contract Agreement with County P: \OarY\UdsdnPP.WP CONSULTANT SERVICE CONTRACT This contract, made this day of 19901 by and between the City of Sa— n Luis Obispo, California (hereinafter referred to as "City ") , and Atmospherics Incorporated, (hereinafter referred to as "Consultant "). WITNESSETH WHEREAS, City desires to retain certain services in conjunction with cloud seeding for augmenting natural precipitation over select areas in San Luis Obispo County; WHEREAS, City desires to engage consultant to provide services by reason of its qualifications and experience for performing such services; WHEREAS, Consultant has offered to provide the required services on the terms and in the manner set forth herein; NOW, THEREFORE in consideration of their mutual covenants, the parties hereto agree as follows: 1. PROJECT COORDINATION a. City. The Utilities Director shall be the representative of the City for all purposes under this agreement. The Director, or his designated representative, hereby is designated as the Project Manager for the City and shall supervise the progress and execution of the project under this agreement. b. consultant. Consultant shall assign a single Project Manager to liaison with the City's representative. Should circumstances or conditions subsequent to the execution of this agreement require a substitute Project Manager for any reason, the Project Manager replacement shall be subject to the prior written acceptance and approval of the Director. Such approval shall not be unreasonably withheld by the City. 2. DUTIES OF CONSULTANT a. Services to be furnished. Consultant shall provide all specified services as set forth in Exhibit "A" attached hereto and incorporated herein by this reference. 1 G► 3 b. Laws to be observed. Consultant shall to the extent of its abilities: (1) Procure all permits and licenses (including a City of San Luis Obispo business license), pay charges and fees, and give all notices which may be necessary and incidental to the due and lawful prosecution of the services to be performed by Consultant under this agreement; (2) Keep itself informed of all existing and proposed federal, state and local laws, ordinances, regulations, orders, and decrees which may affect those engaged or employed under this agreement, any materials used in Consultant's performance under this agreement, or the conduct of the services under this agreement; (3) At all times observe and comply with, and cause all of its employees to observe and comply with all of said laws, ordinances, regulations, orders, and decrees mentioned above. (4) Immediately report to the City's Project Manager in writing any discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders, and decrees mentioned above in relation to any plans, drawings, specifications, or provisions of this agreement. c. Release of reports and information. Any reports, information, data, or other material given to, or prepared or assembled by, Consultant under this agreement shall be the property of City and shall not be made available to any individual or organization by Consultant without the prior written approval of the City's Project Manager. The Consultant shall be allowed, for promotional purposes, to make known the nature of the assignment in a general statement during the project and may reproduce design information after it has become public information or upon completion of this project. d. Copies of reports and information. If City requests additional copies of reports, drawings, specifications, or any other material in addition to what the Consultant is required to furnish in limited quantities as part of the services under this agreement, Consultant shall provide such additional copies as are requested, and City shall compensate Consultant for the costs of duplicating of such copies at Consultant's direct expense. e. Oualification of Consultant. Consultant represents that it is qualified to furnish the services described under this agreement. 2 4 (MI.- (MI.- I . 3. DUTIES OF CITY The City agrees to cooperate with Consultant to perform that work described in Exhibit "A" attached hereto and incorporated by this reference. 4. COMPENSATION a. The Consultant will perform the work as described in Exhibit "A ". b. Consultant will bill City as provided for in the consultant's fee schedule as described in Exhibit "A" attached hereto. City will pay this bill within 30 days of receipt. The Consultant may not charge more than $97,520 during the first year and $152,440 per year during the following two years without prior approval of the City's Project Manager. S. TEMPORARY SUSPENSION The Utilities Director shall have the authority to suspend this agreement wholly or in part, for such period as he deems necessary due to unfavorable conditions or to the failure on the part of Consultant to perform any provision of this agreement. Consultant will be paid the compensation due and payable to the date of temporary suspension. 6. SUSPENSION /TERMINATION a. Right to Terminate. The City retains the right to terminate this agreement for any reason by notifying Consultant in writing seven days prior to termination and by paying the compensation due and payable to the date of termination; provided, however, if this agreement is terminated for fault of Consultant, City shall be obligated to compensate Consultant only. for that portion of Consultant services which are of benefit to City. said compensation is to be arrived at by mutual agreement of the City and Consultant and should they fail to agree, then an independent arbitrator is to be appointed and his decision shall be binding upon the parties. b. Return of Materials. Upon such termination, Consultant shall turn over to the City immediately any and all copies of studies, sketches, drawings, computations, and other data, whether or not completed, prepared by Consultant, and for which Consultant has received reasonable compensation, or given to Consultant in connection with this agreement. Such materials shall become the permanent property of City. Consultant, however, shall not be liable for City's use of complete documents if used for other than the project contemplated by this agreement. 3 CJ1� 7. INSPECTION Consultant shall furnish City with every reasonable opportunity for City to ascertain that the services of Consultant are being performed in accordance with the requirements and intentions of this agreement. All work done and all materials furnished, if any, shall be subject to the City's Project Manager's inspection and approval. The inspection of such work shall not relieve Consultant of any of its obligations to fulfill its agreement as prescribed. 8. OWNERSHIP OF MATERIALS Ail original drawings, models, plan documents and other materials prepared by or in possession of Consultant pursuant to this agreement shall become the permanent property of the City, and shall be delivered to the City upon demand. The consultant may retain a reproducible copy for their records. 9. ASSIGNMENT: SUBCONSULTANTS: EMPLOYEES 10. 11. This agreement is for the performance of professional services of the Consultant and is not assignable by the Consultant without prior consent of the City in writing. The Consultant may employ other specialists to perform special services as required with prior approval by the City. NOTICES All notices hereunder shall be given in writing and mailed, postage prepaid, by Certified Mail, addressed as follows: To City: Utilities Department City of San Luis Obispo 955 Morro Street San Luis Obispo, CA 93401 To Consultant: INTEREST OF CONSULTANT Atmospherics Incorporated 5652 East Dayton Avenue Fresno, CA 93727 Consultant covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services hereunder. Consultant further covenants that, in the performance of this agreement, no subcontractor .or person having such an interest shall be employed by Consultant. Consultant certifies that no one who has or will have any financial interest under this agreement is an officer or employee of City. It is expressly agreed that, in the performance of the services hereunder, Consultant shall 4 12. at all times be deemed an independent contractor and not an agent or employee of City. Consultant hereby agrees to indemnify and save harmless City, its officers, agents, and employees of and from: a. Any and all claims and demands which may be made against City, its officers, agents or employees by reason of any injury to or death of any person or corporation caused by any negligent act or omission of Consultant under this agreement or of Consultant's employees or agents; b. Any and all damage to or destruction of the property of City, its officers, agents, or employees occupied or used by or in the care, custody, or control of Consultant, or property of others, or in proximity to the site of Consultant's work, caused by any negligent act or omission of Consultant under this agreement or of Consultant's employees or agents; c. Any and all claims and demands which may be made against City, its officers, agents, or employees by reason of any injury to or death of or damage to property suffered or sustained by any employee or agent of Consultant under this agreement, however caused, excepting, however, any such claims and demands which are the result of the negligence or willful misconduct of City, its officers, agents, or employees; d. Any and all claims and demands which may be made against City, its officers, agents, or employees by reason of any infringement or alleged infringement of any patent rights or claims caused by the use of any apparatus, appliance, or materials furnished by Consultant under this agreement; and e. Any and all penalties imposed or damages sought on account of the violation of any law or regulation or of any term or condition of any permit, when said violation of any law or regulation or of any term or condition of any permit is due to negligence on the part of the Consultant. Consultant, at its own cost, expense, and risk, shall defend any and all suits, actions, or other legal proceedings that may be brought against or for employees on any such claim or demand of such third persons, or to enforce any such penalty, and pay and satisfy any judgment or decree that may be rendered against City, its officers, agents, or employees in any such suit, action or other legal proceeding, when same were due to negligence of the Consultant. 13. WORKERS COMPENSATION Consultant certifies that it is aware of the provisions of the Labor Code of the State of California, which require every employer to be insured against liability for workers 5 ,I 14. compensation or to undertake self- insurance in accordance with the provision of that code, and it certifies that it will comply with such provisions before commencing the performance of the work of this agreement. At the request of the City, Consultant shall provide proof of comprehensive general liability insurance ($1,000,000 including automobile), aircraft liability insurance ($2,000,000) and special liability insurance ( "consequential loss" at $2,000,000) satisfactory to the City. City and San Luis Obispo County Flood Control and Water Conservation District shall be an additional named insured. 15. AGREEMENT BINDING The terms, covenants, and conditions of this agreement shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns, and subcontractors of both parties. 16. WAIVERS The waiver by either party of any breach or violation of any term, covenant, or condition of this agreement or of any provision, ordinance, or law shall not be deemed to be a waiver of any subsequent breach or violation of the same or of any other term, covenant, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this agreement or of any applicable law or ordinance. 17. COSTS AND ATTORNEY'S FEES The prevailing party in any action between the parties to this agreement brought to enforce the terms of this agreement or arising out of this agreement may recover its reasonable costs and attorney's fees expended in connection with such an action from the other party. 18. DISCRIMINATION No discrimination shall be made in the employment of persons under this agreement because of the race, color, national origin, ancestry, religion or sex of such person. If Consultant is found in violation of the nondiscrimination provisions of the State of Consultant Service Agreement California Fair Employment Practices Act or similar provisions of federal law or executive order in the performance of this agreement, it shall thereby be found in material breach of this agreement. Thereupon, City shall have the power to cancel or C, -� 6 suspend this agreement, in whole or in part, or to deduct from the amount payable to Consultant the sum of Two- hundred -fifty Dollars ($250) for each person for each calendar day during which such person was discriminated against, as damages for said breach of contract, or both. Only a finding of the State of California Fair Employment Practices Commission or the equivalent federal agency or officer shall constitute evidence of a violation of contract under this paragraph. 19. AGREEMENT CONTAINS ALL UNDERSTANDINGS This document represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. This document may be amended only by written instrument, signed by both City and Consultant. All provisions of .this agreement are expressly made conditions. This agreement shall be governed by the laws of the State of California. IN WITNESS WHEREOF, City and Consultant have executed this agreement on the day and year first above written. CONSULTANT CITY OF SAN LUIS OBISPO By. 7 C:40, � I 1 EXHIBIT A 1. Consultant shall engage in artificial cloud nucleation operations during the term of this contract within the target area identified by the City. The purpose of these cloud nucleation operations will be to beneficially increase precipitation within the target area. 2. The term of this contract shall cover three seasonal operational periods and shall commence on approximately February 1, 1991 and end April 30,1991, and begin on November 1st and end on March 31st during the second and third seasons of 1991/92 and 1992/93. 3. The Consultant shall furnish and have available for use during the operational period the following equipment and personnel: (a) The Consultant agrees to have available on a 24- hour - per -day, 7- day - per -week basis the services of a competent staff to furnish full meteorological data. (b) All weather data will be available at the location of Consultant's head office in Fresno and will be used to coordinate various phases of the field program. These data will be passed via FAX to the radar field headquarters on a daily basis whenever the station is active. (c) A 5 cm weather radar system will be permanently based within or near the target area and will act as the field operational headquarters for the program. It shall be located so as to be able to "see" the full target area and have a maximum range of not less than 250 km. (d) A cloud seeding aircraft will be permanently based at or near the radar field headquarters. This aircraft will be equipped for all- weather flying. It will be further equipped with facilities for dispensing silver iodide for use in cloud seeding activities throughout the target area. The Consultant agrees that its aircraft and equipment thereon will be certified by the Federal Aviation Administration, an agency of the United States of America, and that any and all pilots operating aircraft for or on behalf of the Consultant shall be duly licensed by the said FAA. (e) Consultant will furnish from its core staff at head office in Fresno the following personnel who will be available on a full -time basis for all required activities associatcd with the City's program: 1) One radar meteorologist /forecaster 2) One instrument rated Loud seeding pilot C I J i 4. The main nucleating agent will be silver iodide, which shall be dispensed from special holding racks and systems mounted on the aircraft. A secondary nucleating agent will be dry ice, which shall be dispensed from a special system mounted within the aircraft. 5. The Consultant shall prepare all reports pertaining to the program. By the 10th of each mouth during the operational season, Consultant will furnish the City five copies of a summary report covering the various phases of the previous month's operations. Within 60 days after the conclusion of the operational period, the Consultant will furnish the City a final summary report covering the entire operation. 6. Consultant agrees to be bound by all the laws of any local agency having jurisdiction, the State of California, and the Federal Government, particularly with respect to cloud nucleation operations, and that prior to commencing the operation under the contract for the City, the Consultant shall comply with all necessary reporting functions as required by any local agency having jurisdiction, the State of California and the federal government. 7. The City shall pay to the Consultant for services rendered pursuant to this agreement during the term of this agreement on a monthly basis the following monetary compensation upon billings from the Consultant: A First year operations: February 1, 1991- April 30, 1991 March 1, 1991 $26,000 + February consumables' April 1, 1991 $21,000 + March consumables May 1, 1991 $19,211 + April consumables B. Second year operations: November 1, 1991 - March 31, 1992 December 1, 1991 January 1, 1992 February 1, 1992 March 1, 1992 April 1, 1992 $26,000 + November consumables` $21,000 + December consumables $21,000 + January consumables $21,000 + February consumables $18,860 + March consumables C. Third year operations: November 1, 1992 - March 31, 1993 Same as second year operations. Payment includes the $5,000 annual premium for the special liability insurance ( "consequential loss "). C,1.01 I Cornsumables are considered to be the following: A. Aircraft flight time $190 per hour B. Pyrotechnic seeding devices $ 22 per unit C. AgI solution (1) Aircraft $ 28 per hour (2) Ground generators $ 16 per hour C,1001;18 Consultant by the City. This percentage is based upon the relationship of the area of the Lopez Lake watershed to the total area that will be the target of the cloud seeding project In no event shall the County be obligated under this Agreement to pay to City more than $60,000 in any one year of the term of this Agreement unless the Board of Supervisors shall first approve, by Board order or resolution, the payment of any sum or sums in excess of $60,000. 6. Daily cloud seeding activities shall be conducted under the advisement of the County, acting through the City's Project Manager. Program suspension criteria shall be reviewed and approved by the County. 7. County shall receive copies of all reports and evaluations relating to the cloud seeding project 8. This Agreement will remain in affect for the three year trial period that is contemplated by the City's Request For Proposals (RFP) titled, "City of San Luis Obispo, Request For Proposals for Engineering Services For Cloud Seeding (weather augmentation)", which proposals were to be received by the City by 3:00 p.m. on December 20, 1990. 9. County shall not be obligated under this Agreement until the County Engineer has reviewed all proposals submitted in response to the RFP and has approved the Consultant selected by City. The County Engineer's approval of the Consultant shall be communicated to the City in writing within ten (10) days of notice to County by City of the proposal that has been selected by City. 10. The City and County shall mutually indemnify and save harmless the respective agency, its officers, agents, and employees from and against any and all claims, demands, liabilities, costs, expenses, causes of action, including, but not limited to, judgements arising out of the joint and sole negligence of the City and County, their officers, agents, employees, or independent contractors in performance or attempting to perform the function under this Agreement 11. This Agreement may be terminated by either party by providing to the other party, in writing, thirty (30) days advance notice of said intent. City shall be paid, in accordance with Paragraph 5 herein, for all work completed by the ConsuRant prior to the effective date of said termination. Termination on behalf of the County may be accomplished by the County Engineer without action by the County Board of Supervisors. cr I-/ y AGREEMENT BETWEEN THE CITY OF SAN LUIS OBISPO AND THE SAN LUIS OBISPO COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT RELATING TO CLOUD SEEDING This Agreement is made and entered into this day of ,1991 by and between the City of San Luis Obispo, a municipal corporation, hereinafter referred to as °City°, and the San Luis Obispo County Flood Control and Water Conservation District, a political subdivision of the State of California, hereinafter referred to as 'County. WITNESSETH: WHEREAS, the City is preparing to begin a project to perform cloud seeding operations to augment rainfall on the watershed of the Salinas Reservoir; and WHEREAS, it will be beneficial to Zone 3 of the San Luis Obispo County Flood Control and Water Conservation District to participate in said cloud seeding project such that it is expanded to include the watershed of Lopez Lake; and WHEREAS, the watersheds of Lopez Lake and the Salinas Reservoir are contiguous; and WHEREAS, the County and the City are willing to enter into an Agreement for the City to act as lead agency on a cloud seeding project to benefit both reservoirs; and WHEREAS, this Agreement to jointly accomplish said project will benefit both the City and the County. NOW, THEREFORE, it is mutually agreed by the parties hereto as follows: 1. The City will act as lead agency and enter into a contract with a qualified consultant, hereinafter referred to as "Consultant", to perform cloud seeding services and the said, joint projects. 2. The City will perform the necessary environmental determination to ensure that the cloud seeding project complies with the California Environmental Quality Act. 3. The City's cloud seeding contract and environmental determination will include rainfall augmentation of the Lopez Lake watershed. 4. The City will pay to the Consultant all compensation required by the contract between the City and the Consultant. _ S. The City will bill to the County, and the County will pay from the budget of the San Luis Obispo County Flood Control and Water Conservation District, Zone 3, thirty-seven and eight tenths percent (37.8 %) of the amount paid to the G,1 -13 �T IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. ATTEST: Clerk of the Board of Supervisors APPROVED AS TO FORM AND LEGAL EFFECT: JAMES G. LINDHOLM, JR. County Counsel By: •. De ury Co my Counsel Dated: t ��L r.� w Z r Ic It l glp \clsdg.agr.ams (.0 CITY OF SAN LUIS OBISPO (Title) COUNTY OF SAN LUIS OBISPO By: Chairman, Board of Supervisors APPROVED AS TO FORM AND LEGAL EFFECT: JEFFREY G.JORGENSEN City Attorney Dated: C") 0, /5