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HomeMy WebLinkAboutReso 07-2021 (20-1010)City of South San Francisco P.O. Box 711 (City Hall, • 400 Grand Avenue) South San Francisco, CA • City Council Resolution: RES 07-2021 File Number: 20-1010 Enactment Number: RES 07-2021 RESOLUTION APPROVING THE CITY MANAGER TO EXECUTE A MEMORANDUM OF AGREEMENT WITH THE CITY AND COUNTY OF SAN FRANCISCO ACTING THROUGH ITS PUBLIC UTILITIES COMMISSION FOR THE SFPUC REGIONAL GROUNDWATER STORAGE AND RECOVERY WELL SITE ACCESS AND APPROVING A FUTURE ACCESS EASEMENT ON SOUTH SAN FRANCISCO OWNED PROPERTY. WHEREAS, a Memorandum of Agreement is being requested by City and County of San Francisco acting through its Public Utilities Commission for the SFPUC Regional Groundwater Storage and Recovery Well Site Access; and WHEREAS, City of South San Francisco shall construct and maintain a temporary access road as part of the Civic Campus Phase 2: Library, Parks & Recreation and Community Theater / Council Chamber; and WHEREAS, temporary access road shall provide access to SFPUC and Bay Area Rapid Transit (BART) to facilities located north of the Civic Campus Phase 2: Library, Parks & Recreation and Community Theater / Council Chamber project; and WHEREAS, City staff will continue to work with SFPUC to finalize access easement on or before June 1, 2023; and shall record such easement on or before December 1, 2023; and WHEREAS, a contribution to the total cost of temporary access road construction and maintenance cost will be provided by SFPUC (Total estimated cost of the road is $264,000); and WHEREAS, SFPUC temporary road reimbursement amount is yet to be determined; and WHEREAS, there are sufficient funds in the Fiscal Year 2020-21 budget to cover the $264,000.00 cost of temporary access road; and WHEREAS, cost of temporary road construction and maintenance are included in the Civic Campus Phase 2: Library, Parks & Recreation and Community Theater / Council Chamber (pf2103) project budget; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of South San Francisco hereby approves a Memorandum of Agreement, attached as Exhibit A, with the City and County of San Francisco acting through its Public Utilities Commission for the execution of a Memorandum of Agreement related to Well Site access. City of South San Francisco Page 1 File Number: 20-1010 Enactment Number. RES 07-2021 BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to execute a Memorandum of Agreement with the City and County of San Francisco acting through its Public Utilities Commission for the execution of a future access easement, and make minor modifications to the Memorandum of Agreement, subject to approval as to form by the City Attorney. BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to take any other action consistent with the intent of this resolution. At a meeting of the City Council on 1/13/2021, a motion was made by Vice Mayor Nagales, seconded by Councilmember Nicolas, that this Resolution be approved. The motion passed. Yes: 4 Mayor Addiego, Vice Mayor Nagales, Councilmember Nicolas, and Councilmember Coleman Attest by M &"t R a Govea Acosta, City Clerk City of South San Francisco Page 2 MEMORANDUM OF AGREEMENT between the CITY AND COUNTY OF SAN FRANCISCO acting through its PUBLIC UTILITIES COMMISSION, and the CITY OF SOUTH SAN FRANCISCO (SFPUC Regional Groundwater Storage and Recovery Well Site Access) This MEMORANDUM OF AGREEMENT ("Agreement"), dated for reference purposes only '2021, is made by and between the CITY AND COUNTY OF SAN FRANCISCO, a California municipal corporation ("San Francisco") acting by and through its Public Utilities Commission ("SFPUC"), and the CITY OF SOUTH SAN FRANCISCO, a California municipal corporation ("South San Francisco"). San Francisco and South San Francisco are sometimes referred to collectively in this Agreement as the "Parties" and individually as a "Party." RECITALS A. San Francisco, acting by and through the SFPUC, owns and operates a regional water system that serves San Francisco and twenty-seven (27) wholesale water customers, including the South San Francisco. The SFPUC's wholesale water customers are located in San Mateo, Santa Clara, and Alameda Counties. B. The SFPUC developed a Water System Improvement Program ("WSIP") with the goals of increasing the system's ability to withstand major seismic events and prolonged droughts and reliably meeting future water demands. As part of WSIP, the SFPUC instituted the Regional Groundwater Storage and Recovery Project ("Project"), which includes, among other improvements, the installation of recovery wells, well stations, pumps, and piping to permit groundwater extraction and transmission to help protect against drought. C. In 2017, the SFPUC constructed a groundwater test well site on real property San Francisco owns in fee adjacent to South San Francisco property located near Antoinette Lane in the City of South San Francisco ("Well Site"). D. The only viable access route for San Francisco to the Well Site requires passage over two adjacent parcels in South San Francisco. South San Francisco owns one of the adjacent parcels, and the Bay Area Rapid Transit District ("BART") owns the second adjacent parcel. The location of the Well Site and the current and proposed access routes (collectively, the "Phased Access Routes") are depicted on the attached Exhibit A. E. San Francisco desires to obtain permanent access easements across portions of South San Francisco property and portions of BART property. South San Francisco and San Francisco have been working cooperatively to identify and memorialize a permanent access easement across a portion of South San Francisco's property. Concurrently, San Francisco has Groundwater Recovery Project MOA SSF (12-23-20).docx been working with BART to identify and memorialize a permanent access easement across a portion of BART's property. F. In a meeting on August 29, 2018, the SFPUC presented South San Francisco with a written offer to purchase a permanent access easement across South San Francisco property identified as San Mateo County Assessor's Parcel No. 093-331-070, now referred to as the Campus Parcel("Campus Parcel"), and depicted on the attached Exhibit B. During presentation of the offer, South San Francisco notified San Francisco of South San Francisco's plans to develop the Campus Parcel with a new Community Civic Campus ("Campus Project"). South San Francisco was willing to provide access over the Campus Parcel to San Francisco but was reluctant to memorialize a permanent access easement until after South San Francisco approved the preliminary Campus Project design plans. South San Francisco agreed to provide San Francisco with informal interim access during the Campus Project planning and design phases. G. The South San Francisco City Council has approved the sale and development of an adjacent South San Francisco -owned 5.9 -acre parcel identified as San Mateo County Assessor as Parcel Number 093-312-060 (designated by South San Francisco as the "PUC Parcel", but referred to hereafter as "1051 Mission Road" to avoid confusion) to real estate developers SSF PUC Housing Partners, LLC (together "Developer"), also depicted on the attached Exhibit B. Developer desires to construct housing and mixed-use developments ("Developer's Project") on 1051 Mission Road consistent with the approved development application. H. South San Francisco has approved the preliminary design plans for its Campus Project and desires to work with San Francisco to establish and maintain interim access during construction of the Campus Project and Developer's Project. I. Because design plans for the Campus Project and the Developer's Project are both subject to modification, South San Francisco cannot agree to a specific location for a permanent access easement for San Francisco at this time. South San Francisco desires to work with San Francisco to establish and maintain interim access during construction of the Campus Project, construction of which is anticipated to start during the first calendar quarter of 2021 with a total Campus Project construction duration of approximately twenty-eight (28) months. Upon completion of the Campus Project, the Parties intend that San Francisco will be granted an easement that will provide permanent access to the Well Site across South San Francisco property but, if required by design changes to either or both of the Campus Project and Developer's Project, such easement may cross both the South San Francisco property and 1051 Mission Road. The final route of such easement shall be reasonably acceptable to San Francisco. J. Based on the June 10, 2019 plans for the Developer's Project, the SFPUC's Well Site access route crosses portions of South San Francisco property and BART property near the extension of Oak Avenue. This is the SFPUC's preferred access route. If the final access route deviates from the June 10, 2019 plans, San Francisco may require a permanent access easement across portions of the 1051 Mission Road parcel. K. If the Developer acquires the 1051 Mission Road parcel, South San Francisco shall make reasonable efforts to include a condition precedent in a separate agreement with the Developer that will provide, among other things, that Developer shall grant a permanent access easement to San Francisco to the Well Site across 1051 Mission Road. 2 Groundwater Recovery Project MOA SSF (12-23-20).docx L. Subject to the terms and conditions of this Agreement, South San Francisco is willing to grant San Francisco a temporary license and a permanent access easement to San Francisco for access to the Well Site pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, IN CONSIDERATION of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, San Francisco and South San Francisco hereby agree as follows: AGREEMENT 1. EFFECTIVE DATE; TERM. The term (the "Term") of this Agreement shall commence on the date that this Agreement is mutually executed and delivered by the Parties ("Effective Date") and continue in effect thereafter until the earlier of (a) nine (9) years after full execution of this Agreement or (b) the date this Agreement is earlier terminated in accordance with its terms. Execution and delivery of this Agreement is subject to the approval of the City of South San Francisco's City Council, the SFPUC's Commission, and, if required, San Francisco's Board of Supervisors and Mayor. 2. SOUTH SAN FRANCISCO CONSTRUCTION OF CAMPUS PROJECT. 2.1. Construction Schedule and Interim Access to Well Site Until the effective date of a Permanent Access Easement (defined in Section 3 [Permanent Access Easement] below) granted to San Francisco as contemplated by Section 3 [Permanent Access Easement] below, commencing on the Effective Date, South San Francisco shall provide to San Francisco a mutually acceptable twelve (12) -foot wide temporary access road ("Temporary Access Road") to the Well Site that meets the minimum specifications agreed to by the Parties ("Specifications") and stated in the attached Exhibit C. San Francisco has consulted with South San Francisco in San Francisco's preparation of the Specifications and their incorporation into South San Francisco's construction contract(s). South San Francisco acknowledges that it has reviewed and approves the Specifications. Initially, and until further notice from South San Francisco, San Francisco may use the current (Phase 1) route as the Temporary Access Road. By at least thirty (30) days' prior written notice to San Francisco, South San Francisco may relocate the Temporary Access Road during Campus Project construction; provided that any new location for the Temporary Access Road continues to provide for San Francisco's uninterrupted access to the Well Site, complies with the Specifications, and both Parties agree in writing to its new location. To the extent South San Francisco is required to construct, repair, or maintain a Temporary Access Road or, in connection with the Permanent Access Easement, a permanent access road, the Temporary Access Road and such permanent road shall meet the Specifications. Provided that this Agreement remains in effect, San Francisco shall reimburse South San Francisco for a yet to be determined portion of the total estimated costs not to exceed $264,000 for the construction of the Temporary Access Road and the permanent access road serving both BART and SFPUC facilities in locations generally depicted on the attached Exhibit A, and to be memorialized in a cost sharing agreement to be agreed upon by all Parties on or before construction of Campus Project commences. Groundwater Recovery Project MOA SSF (12-23-20).docx 3. PERMANENT ACCESS EASEMENT. South San Francisco shall notify San Francisco on or before June 1 2023, that, by December 1, 2023, South San Francisco shall either (a) provide a recorded twelve (12) -foot wide permanent access easement ("Permanent Access Easement") that is reasonably acceptable to San Francisco across South San Francisco property to the Well Site, or (b) because of design changes in either or both of the Campus Project and the Developer's Project, grant to San Francisco, or cause San Francisco to be granted, a recorded Permanent Access Easement to the Well Site that is reasonably acceptable to San Francisco, a portion of which proposed easement shall cross South San Francisco property and a portion of which will cross 1051 Mission Road. Such notice shall specify the route and dimensions of the proposed easement. Within thirty (30) days of its receipt of such notice, San Francisco shall give South San Francisco written notice that it either approves of the placement and design of the proposed easement or disapproves of such placement and design with an explanation of the basis of its disapproval. If San Francisco disapproves of the proposed easement, the Parties shall diligently meet and confer promptly thereafter to resolve the dispute so that San Francisco receives on or before December 1, 2023, a Permanent Access Easement to the Well Site reasonably acceptable to San Francisco. 4. NECESSARY APPROVALS. If either Party breaches a material term of this Agreement without the other Party's fault and does not cure the breach within thirty (30) calendar days' notice by the non -breaching Party specifying such breach, the non -breaching Party may terminate this Agreement without any penalty or liability of either Party to the other; provided, however, if more than thirty (30) days are reasonably required for such cure, the non -breaching Party shall not have the right to terminate this Agreement on account of such breach if the other Party promptly commences the cure within such thirty (30) -day period and diligently prosecutes such cure to completion. 5. MISCELLANEOUS 5.1. Notices. Any notice, consent ,or approval required or permitted to be given under this Agreement shall be in writing and shall be given by (a) hand delivery, against receipt, (b) reliable next - business -day courier service that provides confirmation of delivery, or (c) United States registered or certified mail, postage prepaid, return receipt required, to the address(es) set forth below or to such other address as either Party may from time to time specify in writing to the other upon five (5) days' prior written notice in the manner provided above. The Parties' initial addresses are: San Francisco: To: General Manager San Francisco Public Utilities Commission 525 Golden Gate Avenue, 13th Floor San Francisco, CA 94102 4 Groundwater Recovery Project MOA SSF (12-23-20).docx and: Real Estate Director Real Estate Services Division San Francisco Public Utilities Commission 25 Golden Gate Avenue, 10th Floor San Francisco, CA 94102 Dina Brasil Right of Way Manager Real Estate Services Division San Francisco Public Utilities Commission 525 Golden Gate Avenue, 10th Floor San Francisco, CA 94102 and: Judy Chin SFPUC Project Construction Manager San Francisco Public Utilities Commission 525 Golden Gate Avenue, 6th Floor San Francisco, CA 94102 South San Francisco: To: City of South San Francisco Attn: Jacob Gilchrist, Director of Capital Projects 550 North Canal Street South San Francisco, CA 94080 A properly addressed notice transmitted by one of the foregoing methods shall be deemed received upon the confirmed date of delivery, attempted delivery, or rejected delivery, whichever occurs first. Any e-mail addresses, telephone numbers, or facsimile numbers provided by one Party to the other shall be for convenience of communication only; neither Party may give official or binding notice orally or by e-mail or facsimile. The effective time of a notice shall not be affected by the receipt, prior to receipt of the original, of an oral notice or an e-mail or telefacsimile copy of the notice. 5.2. Risk of Non -Appropriation of Funds. This Agreement is subject to the budget and fiscal provisions of San Francisco's Charter. San Francisco shall have no obligation to make appropriations for this Agreement in lieu of appropriations for new or other agreements. South San Francisco acknowledges that San Francisco budget decisions are subject to the discretion of its Mayor and Board of Supervisors. South San Francisco assumes all risk of possible non -appropriation or non -certification of funds, and such assumption is part of the consideration for this Agreement. 5.3. Certification of Controller. The terms of this Agreement shall be governed by and subject to the budgetary and fiscal provisions of San Francisco's Charter. Notwithstanding anything to the contrary contained in this Agreement, there shall be no obligation for the payment or expenditure of money by San Francisco under this Agreement unless the San Francisco's Controller first certifies, pursuant to Section Gr000dwater Recovery Project MOA SSF (12-23-20).docx 3.105 of San Francisco's Charter, that there is a valid appropriation from which the expenditure may be made and that unencumbered funds are available from the appropriation to pay the expenditure. Without limiting the foregoing, if in any fiscal year of San Francisco after the fiscal year in which the term of this Agreement commences, sufficient funds for the funding of construction costs and any other payments required under this Agreement are not appropriated, then San Francisco may terminate this Agreement, without penalty, liability or expense of any kind to San Francisco, as of the last date on which sufficient funds are appropriated. San Francisco shall use its reasonable efforts to give South San Francisco reasonable advance notice of such termination. 5.4. Severability. If any provision of this Agreement or the application thereof to any person, entity, or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons, entities, or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each other provision of this Agreement shall be valid and be enforceable to the fullest extent permitted by law, provided that the remainder of this Agreement can be interpreted to give effect to the intention of the Parties. 5.5. Good Faith. Each Party shall use all reasonable efforts and work wholeheartedly and in good faith for the expedited completion of the objectives of this Agreement and the satisfactory performance of its terms. 5.6. Sole Benefit. This Agreement is for the sole benefit of the Parties and shall not be construed as granting rights to any person other than the Parties or imposing obligations on a Party to any person other than the other Party to this Agreement. 5.7. Governing Law. This Agreement is made under and shall be governed by the laws of the State of California. 5.8. Amendment; Waiver. Neither this Agreement nor any term or provision hereof may be changed or amended, except by a written instrument signed by both Parties. Any waiver by San Francisco or South San Francisco of any term, covenant, or condition contained in this Agreement must be in writing, and a waiver of one breach shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition. 5.9. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. 6 Groundwater Recovery Project MOA SSF (12-23-20).docx 5.10. Recitals and Exhibits. The Recitals set forth above are true and correct and are incorporated into this Agreement. The attached exhibits referred to herein are incorporated into and made a part of this Agreement. 5.11. Integration. This Agreement represents the entire understanding of the Parties as to those matters contained in this Agreement. No prior oral or written understanding shall be of any force or effect with respect to those matters covered in this Agreement. 5.12. Tropical Hardwood and Virgin Redwood Ban. Pursuant to Section 804(b) of the San Francisco Environment Code, San Francisco urges contractors not to import, purchase, obtain, or use for any purpose, any tropical hardwood, tropical hardwood wood product, virgin redwood, or virgin redwood wood product. Except as expressly permitted by the application of Sections 802(b) and 803(b) of the San Francisco Environment Code, neither South San Francisco nor any of its contractors shall include in the Specifications or in any other work performed by or on behalf of South San Francisco pursuant to or in connection with this Agreement any items that are tropical hardwood, tropical hardwood wood products, virgin redwood, or virgin redwood wood products. 5.13. Nondiscrimination. In the performance of this Agreement, South San Francisco shall not discriminate against any employee, subcontractor, applicant for employment with South San Francisco, or against any person seeking accommodations, advantages, facilities, privileges, services, or membership in all business, social, or other establishments or organizations, on the basis of the fact or perception of a person's race, color, creed, religion, national origin, ancestry, age, height, weight, sex, sexual orientation, gender identity, domestic partner status, marital status, disability or Acquired Immune Deficiency Syndrome or HIV status (AIDS/HIV status), or association with members of such protected classes, or in retaliation for opposition to discrimination against such classes. 5.14. Governing Law. This Agreement is made under and shall be governed by the laws of the State of California and San Francisco's Charter. 5.15. Notification of Limitations on Contributions. Through its execution of this Agreement, South San Francisco acknowledges that it is familiar with Section 1.126 of the San Francisco Campaign and Governmental Conduct Code, which prohibits any person who contracts with San Francisco for the selling or leasing of any land or building to or from San Francisco whenever such transaction would require the approval by a San Francisco elective officer, the board on which that San Francisco elective officer serves, or a board on which an appointee of that individual serves, from making any campaign contribution to (a) a San Francisco elective officer, (b) a candidate for the office held by such individual, or (c) a committee controlled by such individual or candidate, at any time from the commencement of negotiations for the contract until the later of either the termination of negotiations for such 7 Groundwater Recovery Project MOA SSF (12-23-20).docx contract or six months after the date the contract is approved. South San Francisco acknowledges that the foregoing restriction applies only if the contract or a combination or series of contracts approved by the same individual or board in a fiscal year have a total anticipated or actual value of $50,000 or more. South San Francisco further acknowledges that the prohibition on contributions applies to South San Francisco; each member of South San Francisco Council, and South San Francisco's chief executive officers; any contractor or subcontractor listed in this Agreement; and any committee that is sponsored or controlled by South San Francisco. Additionally, South San Francisco acknowledges that South San Francisco must inform each of the persons described in the preceding sentence of the prohibitions contained in Section 1.126. South San Francisco further agrees to provide to San Francisco the names of each person, entity, or committee described above. The requirements of this Section shall apply only to the six (6) - month period following the Parties' execution and delivery of this Agreement. 5.16. Disclosure. South San Francisco understands and agrees that San Francisco's Sunshine Ordinance (San Francisco Administrative Code Chapter 67) and the State Public Records Law (Gov't Code Section 6250 et seq.) apply to this Agreement and any and all records, information, and materials submitted to San Francisco in connection with this Agreement. Accordingly, any and all such records, information and materials may be subject to public disclosure in accordance with San Francisco's Sunshine Ordinance and the State Public Records Law. South San Francisco hereby authorizes San Francisco to disclose any records, information and materials submitted to San Francisco in connection with this Agreement. 5.17. Time of the Essence. Time is of the essence in all matters relating to this Agreement. 5.18. Attorneys' Fees. If either Party commences an action against the other or a dispute arises under this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and costs from the other Party. For purposes hereof and for purposes of the indemnifications set forth herein, San Francisco `s reasonable attorneys' fees shall be based on the fees regularly charged by private attorneys in San Francisco with comparable experience notwithstanding San Francisco `s use of its own attorneys. 5.19. Cooperative Drafting; Interpretation; Captions. This Agreement has been drafted through a cooperative effort of both Parties, and both Parties have had an opportunity to have the Agreement reviewed and revised by legal counsel. No Party shall be considered the drafter of this Agreement, and no presumption or rule that an ambiguity shall be construed against the Party drafting the clause shall apply to the interpretation or enforcement of this Agreement. The provisions of this Agreement shall be construed as a whole according to their common meaning and not strictly for or against any Party in order to achieve the objectives and purposes of the Parties. Any caption preceding the text of any section, paragraph, or subsection or in the table of contents is included only for convenience of reference and shall be disregarded in the construction and interpretation of this Agreement. Groundwater Recovery Project MOA SSF (12-23-20).docx 5.20. Further Assurances. The Parties shall execute and acknowledge such other and further documents as may be necessary or reasonably required to carry out the mutual intent of the Parties as expressed in this Agreement. 5.21. Corrections of Technical Errors. If by reason of inadvertence, and contrary to the intention of the Parties, errors are made in this Agreement, then the Parties by mutual agreement may correct such error by written memorandum executed by them without the necessity of a formal amendment of this Agreement. 5.22. Necessary Approvals. This Agreement is subject to the approval of South San Francisco's City Council, the SFPUC Commission approval, and, if required, the approval of San Francisco's Board of Supervisors and Mayor, each at its sole and absolute discretion. [SIGNATURES ON FOLLOWING PAGE] 9 Groundwater Recovery Project MOA SSF (12-23-20).docx IN WITNESS WHEREOF, the Parties have executed this Memorandum of Agreement by their duly authorized representatives. CITY AND COUNTY OF SAN FRANCISCO, a California municipal corporation By: Michael Carlin Acting General Manager Public Utilities Commission Dated: , 2021 Authorized by San Francisco Public Utilities Commission, Resolution No. 14-0127 RIN Commission Secretary Adopted August 12, 2014 APPROVED AS TO FORM Dennis Herrera, City Attorney By: Richard Handel Deputy City Attorney EXHIBITS: CITY OF SOUTH SAN FRANCISCO, a California municipal corporation By: Name: Title: Dated: , 2021 Authorized by Resolution No. By: Name: Adopted , 2021 APPROVED AS TO FORM Meyers Nave, City Attorney Sky Woodruff A - Well Site and Phased Access Route Location Map B - Parcel Location Map C - Specifications for Temporary Access Road 10 Groundwater Recovery Project MOA SSF (12-23-20).docx cr, 10 Lu (If C) LU IL w a. x 0 cn m w r W. . F- i� -r-, U) Cl) LU C) C) F - All Ln LU uicn LLI < 0 EL w Lu (If C) LU IL w - - - - - - - - - - - q , t a. - - - - - - - - - - - q , t m � E m 1 ifill 111111111111, i II ss N � O aW w� w� y •Q i N W d' �L Q I O c7 o- 1 ifill 111111111111, i II Ow a> O aW w� w� I I �I I I o- _ Ow a> O aW w� w� m"= II r n N � II I II LL dF a I � a a a I II Ld S II a x� m'Cl) LU Z U O � 0 Q = of z I < m= II I I I I II I II •� � II I II I I II Ld I II II II j II� II II lid II., 1111111 ' 141t F'I " "n w 0 U) LO I vNi I EXHIBIT C SPECIFICATIONS FOR TEMPORARY ACCESS ROAD [To be attached] C-1 Groundwater Re very Project MOA SSF (12-23-20).docx