BOARD AGENDA MEMORANDUM
Government Code § 84308 Applies: Yes ☐ No ☒
(If “YES” Complete Attachment A - Gov. Code § 84308)
SUBJECT: Title
Accept the Work as Complete and Direct the Clerk to File the Notice of Completion of Contract and Acceptance of Work for the Anderson Dam Federal Energy Regulatory Commission Order Compliance Project, Coyote Percolation Dam Replacement Project, Thompson Builders Corporation, Contractor, Project No. 91864009, Contract No. C0693 (San Jose, District 1).
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RECOMMENDATION: Recommendation
A. Accept the work on the Coyote Percolation Dam Replacement Project, Project No. 91864009, Contract No. C0693 as complete; and
B. Direct the Clerk of the Board to sign the Notice of Completion of Contract and Acceptance of Work and submit for recording to the Santa Clara County Clerk-Recorder.
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SUMMARY:
The construction contractor, Thompson Builders Corporation (Contractor), has completed the Anderson Dam Federal Energy Regulatory Commission (FERC) Order Compliance Project, Coyote Percolation Dam Replacement Project (Project).
Project Background
The FOCP Coyote Percolation Dam Replacement Project (Project) is one of several Anderson Dam FERC Order Compliance Projects (FOCP), which are a set of interim risk reduction measures required prior to the construction and operation of the Anderson Dam Seismic Retrofit Project. The objective of this Project is to minimize the adverse impacts of groundwater recharge and increased creek flow velocity on aquatic resources by replacing the existing steel flashboard dam with a rubber bladder dam. The Project entailed the construction of a new dam foundation and rubber dam, a new control building to house the rubber dam air blowers, constructed erosion protection, and fish passage improvements to the existing fish ladder and downstream dam section.
Anderson Dam is under the jurisdiction of FERC and the California Department of Water Resources, Division of Safety of Dams (DSOD), and must meet their dam safety design standards. FERC has jurisdiction over Anderson Dam's safety measures and operations due to the licensing of a small hydroelectric facility on this reservoir.
Pursuant to FERC’s authority, for public health and safety reasons, on February 20, 2020, Santa Clara Valley Water District (Valley Water) received an Order from FERC to immediately implement the following interim risk reduction measures: (a) immediately lower and maintain the reservoir operating level no higher than elevation 565 feet; (b) lower the reservoir to elevation 488 feet (deadpool) beginning no later than October 1, 2020, as safely and quickly as possible and maintain deadpool to the extent feasible; (c) immediately design and construct the low-level outlet tunnel (Anderson Dam Tunnel) to more reliably and quickly drawdown the reservoir after an earthquake and/or to better maintain deadpool during significant precipitation; and (d) implement the dam safety directives, including design and construction of the proposed low-level outlet, while securing alternative water supplies and working with FERC staff, and federal, state and local resource agencies to minimize environmental effects.
Pursuant to FERC’s Order, Valley Water immediately restricted the reservoir operating level to an elevation of 565 feet, began defining the interim risk reduction measures, and initiated emergency consultation processes regarding adverse environmental impacts of these interim risk reduction measures with the regulatory agencies, as appropriate.
The FOCP is a set of proposed interim risk reduction measures as set forth in the FERC Order during the interim time period prior to the construction and operation of the Anderson Dam Seismic Retrofit Project (ADSRP). The FOCP consists of four broad categories of actions. The Coyote Percolation Dam Replacement is part of Category IV. Avoidance and Minimization Measures.
Project Scope
The former Coyote Percolation Dam was a steel flashboard dam used to impound water in the Coyote Percolation Pond, an in-stream groundwater recharge pond along Coyote Creek located about 11 miles north of Anderson Dam. The operation of Valley Water’s completed Anderson Dam Tunnel Project (ADTP), currently being constructed, will increase flows above the safe operating capabilities of the Coyote Percolation Dam; however, removal of the dam altogether to accommodate higher flows would compromise Valley Water’s ability to recharge the groundwater basins in this area. Groundwater is the main water supply source for the Coyote Valley and South San Jose residents in the Santa Teresa area. Groundwater recharge in the Coyote Percolation Pond is necessary to provide water supply reliability for these areas.
The Project replaced the existing flashboard dam with an inflatable bladder dam that will quickly be raised when flows are low (to facilitate percolation) and then lowered to allow higher flows to pass safely. Completion of the bladder dam facilities is necessary before the Anderson Dam Tunnel Project is completed in order to minimize the impacts on water supply, groundwater recharge, subsidence, and aquatic species and habitats. Valley Water procured the inflatable bladder dam, fish ladder weirs, and control system and furnished these items to the Contractor for installation.
Relevant Prior Board Actions
On June 9, 2020, the Board adopted a resolution providing for the notice and time and place of Public Hearing on the Engineer’s Report and CEQA Exemption determination for the Anderson Dam Federal Energy Regulatory Commission Order Compliance Project to occur on June 23, 2020, at 6:00 PM by teleconference Zoom meeting.
On June 23, 2020, the Board approved the CEQA emergency exemption determination for the FERC Order Compliance Project, adopted a resolution approving the Engineer’s Report, and approved the Project.
On January 24, 2023, the Board adopted plans and specifications and authorized advertisement for bids for the FERC Order Compliance Project (FOCP) Coyote Percolation Dam Replacement Project, per the Notice to Bidders, and authorized the Designated Engineer to issue addenda, as necessary, during the bidding process.
On March 28, 2023, the Board ratified addenda nos. 1, 2, and 3 to the Contract Documents for the FERC Order Compliance Project (FOCP) Coyote Percolation Dam Replacement Project, awarded the Contract to Thompson Builders Corporation, located in Novato, California, in the sum of $7,845,800, approved a contingency sum of $1,176,870 and authorized the Chief Executive Officer or designee to approve individual change orders up to the designated amount.
Contract Change Orders
A total of eleven (11) contract change orders totaling a net increase of $415,510.42 were executed for this contract as detailed in Table 1. These change orders addressed various issues, including unforeseen site conditions, post-design clarifications, Valley Water requested changes, and credits back to the contract for deleted items of work. The most significant of these change orders are detailed below:
A. $679,310.94 for additional work required to address unforeseen site conditions that required over-excavation of unsuitable soil material and replacing it with competent material, accelerating the construction schedule due to the high-water levels within the Coyote Percolation Pond shortened the construction window, and additional work related to conflicts with existing structures and utilities.
B. $167,873.00 for additional District-requested changes to benefit the Project, such as upgrading existing fencing, installing additional rock slope protection, and other improvements to the new rubber dam system.
C. $233,986.48 for additional work required to modify the design to adjust to additional information that was discovered during the construction, such as modifying the bottom surface of the fish ladder to install the weir gates; repairing the south abutment stairway, and other minor design clarifications.
D. <$665,660.00> credit for deletion of contract work and District-furnished materials, and the removal of unused supplemental bid items such as some instrumentation and controls requirements for the rubber dam system and fish ladder weir system.
Table 1 presents a summary of the construction contract and contingency amounts.
Pending Contract Claim
On December 23, 2024, the Contractor submitted a claim to Valley Water in the amount of $862,544.00. The claim consists of six separate cost items, which includes mass excavation and off-haul of Unsuitable Materials, haul and placement of engineered fill at the north abutment, demolition of the existing dam abutment and foundation, extra concrete pour days for foundation work, and inefficiencies due to acceleration of an interim milestone. The claim included a request for an informal conference pursuant to Article 3.12(G) of the contract specifications. Valley Water staff participated in an informal conference on April 16, 2025, and were successful in negotiating resolution of two of the six claim items. Compensation for these two claim items was included in Contract Change Order No. 11. Valley Water staff have denied the Contractor’s claim in full for the remaining four items, totaling $737,754.00. Valley Water will continue to work to resolve the claims and determine if an amicable resolution can be reached and will follow the dispute resolution process as specified in the Contract Documents and bring forth any updates or actions for the Board’s consideration as necessary.
Acceptance of the work as complete, will not affect the status of this claim or Valley Water’s position in defense of the claim.
Acceptance of the Work and Recording Notice of Completion of Contract
The California Civil Code allows an owner or agent to execute a Notice of Completion of Contract after acceptance of the work by the Board. The Notice of Completion of Contract and Acceptance of Work is included in Attachment 1. The Designated Engineer has determined that the work has been completed, to the best of her knowledge, in accordance with the plans and specifications, and recommends acceptance. The Designated Engineer’s recommendation of construction acceptance is included in Attachment 2. The Project Completion Letter is included as Attachment 3. Photos of the completed Project are included in Attachment 4. The Project Delivery Process Chart is included in Attachment 5.
Construction Contract Retention
California law requires Valley Water to release contract retention in accordance with certain time frames, which will commence once the Notice of Completion is recorded. Interest payment on retention due to the contractor may be avoided by meeting the requisite deadlines.
Valley Water is currently withholding retention funds totaling five percent (5%) of the contract items ($413,065.52) in accordance with the Public Contract Code. Per the construction Contract Documents, Valley Water is required to release retention funds associated with the contract 35 days after recording the Notice of Completion of Contract and Acceptance of Work, subject to any withholds required by law or the contract.
Total Project Expenditures
As indicated in the Summary of Construction Contract and Contingency Amounts (Table 1), the original contract amount of $7,845,800.00 has been increased by $415,510.42 to $8,261,310.42, an increase of approximately 5.30 percent.
ENVIRONMENTAL JUSTICE AND EQUITY IMPACT:
There are no environmental justice impacts associated with this item. This action is unlikely to or will not result in adverse impacts and is not associated with an equity opportunity.
FINANCIAL IMPACT:
The Coyote Percolation Dam Replacement Project, Project No. 91864009, part of the Federal Energy Regulatory Commission (FERC) Order Compliance Project, is included in the Capital Improvement Program (CIP) Fiscal Years (FY) 2025-29 Five-Year Plan and in the FY 2024-25 Adopted budget. The Project is funded by the Water Utility Enterprise (Fund 61) with 81.7% of the costs allocated to Zone W-2 (North County) and 7.5% and 10.8% of the costs respectively allocated to Zone W-5 and W-7 (South County).
Transfer of Remaining Balances
The original contract amount of $7,845,800, combined with the Board-approved contingency encumbrance of $1,176,870, totals $9,022,670, which sum was allocated to pay for the construction of the Project. The original contract amount ($7,845,800), plus the total cost of all approved change orders ($415,510.42) resulted in the final contract amount of $8,261,310.42, and a remaining unspent contingency amount of $761,359.58.
Upon construction contract close-out, $761,359.58, will be released to Fund 61 operating and capital reserves.
CEQA:
CEQA provides a statutory exemption for emergency projects, which include specific actions necessary to prevent or mitigate an emergency (Public Resources Code §21080(b)(4) and CEQA Guidelines §15269(c)). After analysis of the facts and applicable law, following a public hearing on June 23, 2020, the Board determined that the FOCP, including the Coyote Percolation Dam Replacement Project, qualifies for this exemption. Valley Water filed a Notice of Exemption with the County of Santa Clara Clerk/Recorder on June 29, 2020.
ATTACHMENTS:
Attachment 1: Notice of Completion and Acceptance of Work
Attachment 2: Construction Contract Acceptance
Attachment 3: Project Completion Letter
Attachment 4: Construction Photos
Attachment 5: Project Delivery Process Chart
UNCLASSIFIED MANAGER: Manager
Bhavani Yerrapotu, 408-630-2735