00000\CGK\1591421.4:6722
NHE
H has not been engaged to represent the City’s interests regarding the Desal Project, but does currently represent the District with respect to the Desal Project. The City’s interests regarding the Desal Project, including any request for governmental approvals, and/or any related litigation, are represented by special counsel through the law firm of Shartsis Friese LLP. It is anticipated the District would continue to be represented by NHEH with regard to the District’s position on, and involvement with, the Desal Project. While the City and the District may desire different outcomes for the Desal Project, it is not anticipated that NHEH’s representation of District will involve the assertion of any claim by District against the City.
Because the City’s and the District’s positions on the Desal Project are directly adverse, NHEH is requesting District’s consent to NHEH’s representation of City in matters unrelated to the Desal Project, and City’s consent to NHEH’s continued representation of District, including representation of the District in the Desal Project matter. NHEH believes that, notwithstanding the Parties’ different positions regarding the Desal Project, NHEH will be able to provide competent and diligent representation of each Party.
In the future, NHEH’s representation of either Party may involve other potential or actual conflicts of interests if the interests of the Parties become inconsistent with the other Party’s interests. Should that occur, NHEH will endeavor to apprise each Party promptly of the conflict. At that time, each Party should consider whether it wishes to obtain independent counsel in that matter; however, we must advise the Parties that there is a risk NHEH may be disqualified from representing either Party in such conflicting matters absent further written consent from both Parties to the extent written consent is appropriate and permitted by the Rules.
Of course, should either Party feel for any reason that it needs the advice of another attorney regarding any aspect of the services NHEH provides, each Party should feel free to obtain its own attorney to provide advice and counsel on such matters, and to assure it that NHEH’s representation of one Party is not adversely influenced by NHEH’s representation of the other Party.
EXHIBIT C
26 City of Marina
Castroville Community Services District
June 7, 2022
00000\CGK\1591421.4:6722
Acc
ordingly, each Party’s approval and signature of this letter will provide its written consent to NHEH’s representation of the other Party for the purposes identified in this letter and waive any conflict NHEH may have by reason of NHEH’s representation of District in the Desal Project. NHEH encourages each Party to seek independent counsel regarding the importance of this waiver and consent.
Sincerely,
NOLAND,
HAMERLY, ETIENNE & HOSS
A Professional Corporation
Chr
istine Kemp
Heidi Quinn
Hei
di Quinn
Wri
tten Waiver and Consent to Representation Attached
Christine Kemp
EXHIBIT C
27 City of Marina
Castroville Community Services District
June 7, 2022
00000\CGK\1591421.4:6722
WAIVER AND CONSENT TO REPRESENTATION
The Board of Directors of the Castroville Community Services District (“District”) and the City of Marina (“City”) have read the foregoing letter and are sufficiently familiar with the facts of this matter to make an informed decision. We understand that the District’s interests conflict with the interests of City with regard to the Desal Project. Further, we understand that representation of either Party may, in the future, involve potential or actual conflicts of interests, if the interests of one Party in a matter become inconsistent with the others’ interests. Should that occur, NHEH will endeavor to apprise each Party promptly of any such potential or actual conflict so that both Parties can decide whether it wishes to waive the potential conflict or to obtain independent counsel to represent it in that matter. Absent informed written consent from each Party at the time, to the extent permitted by the Rules, there is a risk NHEH may be disqualified from representing either Party in such matter.
Having duly considered the foregoing,
1. T he District Board has determined to consent to Noland, Hamerly, Etienne & Hoss (“NHEH”) performing general legal services to the City as Interim City Attorney, and to waive any conflict of interest with the City as it relates to the Desal Project, under the circumstances set forth above, which may exist as a result of NHEH rendering general legal services to the City; and
2. The City has determined to consent to NHEH performing general legal services for the District and to waive any conflict of interest which may exist as a result of NHEH rendering legal services to the District. City acknowledges that its engagement of NHEH does not include the provisions of legal services to City relating to the Desal Project and that it will continue to engage special counsel for that work.
We further understand that we have the right to consult with other counsel regarding the advisability of entering into this consent waiver and that we have either had such consultation or we have decided not to seek such independent advice despite knowing that we have such right.
We further understand that in the future, with regard to potential or actual conflicts of interests, if the interests of one or more of the Parties become inconsistent with the others’ interests, NHEH will endeavor to apprise each Party promptly of any such potential or actual conflict. At that time, each Party should consider whether they wish to obtain independent counsel to represent them in that matter.
We further understand in the event a dispute or conflict arises between the Parties, there
EXHIBIT C
28 City of Marina
Castroville Community Services District
June 7, 2022
00000\CGK\1591421.4:6722
is a risk that NHEH may be disqualified from representing either of Party absent written consent from each Party at that time, to the extent such consent is appropriate and permitted by the Rules.
Dated: ____________, 2022 Dated: ____________, 2022
______________________________ ____________________________ Name, Title Name, Title
______________________________ ____________________________ Castroville Community Services District City of Marina
EXHIBIT C
29 June 21, 2022 Item No. 11b
Honorable Mayor and Members City Council Meeting
of the Marina City Council of June 21, 2022
CITY COUNCIL CONSIDER ADOPTING RESOLUTION NO. 2022 -,
ADOPTING THE CITY OF MARINA FLAGPOLE POLICY; AND
CONSIDER ADO PTING RESOLUTION N O. 2022-, APPROVING THE
FLYING OF THE RAINBOW PRIDE FLAG AT CITY HALL
THROUGHOUT THE REMAINDER OF THE MONTH OF JUNE 2022 AS
FURTHER RECOGNITION OF JUNE 2022 AS LESBIAN, GAY, BISEXUAL, TRANSGENDER, QUEER, PLUS (LBGTQ+) PRIDE M ONTH IN THE CITY OF MARINA.
RECOMMENDATION: City Council consider
1. Consider adopting Resolution No. 2022-, adopting the City of Marina Flagpole Policy; and
2. Consider adopting Resolution No. 2022-, approving the flying of the Rainbow Pride Flag at City Hall throughout the remainder of the month of June 2022 as further recognition of June 2022 as L esbian, Gay, Bisexual, Transgender, Queer, Plus (LBGTQ+ ) Pride Month in the City of Marina.
BACKGROUND:
At the June 7, 2022 , City Council meeting the City Council under the Special Pres entations part of the meeting approved a LGBTQ+ Proclamation declaring the month of June as lesbian, gay, bisexual, transgender, Queer and Plus Pride month symbolizing the City’s celebration of diversity and support for the lesbian, gay, bisexual, transgen der, queer and plus community. A donation of a Pride flag was made to the City and the City Council expressed a desire to raise the Pride flag on a city flagpole for the remainder of June during Pride month. The Council was advised that the City does not have a flag policy and that the appropriate way to do this to avoid potential future free speech and constitutional legal challenges would be to adopt a flag policy first that establishes policies and procedures for displaying flags on city flag poles.
DISCUSSION
There are constitutional concerns as to whether the City Council can limit free speech through a flag policy or allow re ligious flags or flags that advocate for a policy party of issue. The first amendment to the United States Constitution states:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Constitutional Freedom of Speech
Forum Analysis
The First Amendment does not require government in general to always allow all speech and at all locations. "Even protected speech is not equally permissible in all places and at all times.
Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the 1 nature of the property or to the disruption that might be caused by the speaker's activities.1" Thus, the Supreme Court has adopted what is known as "forum analysis" to determine whether government can control speech on government-owned property.
A "traditional public forum" is a place that has traditionally been used by the public for the free exchange of ideas such as a public park. In pre-Twitter days, standing on a soapbox in the public square was the easiest way for a speaker to reach the most people. Regulations on speech in a traditional public forum must se rve a compelling gover nment interest and the regulation be narrowly drawn to achieve that interest. This is known as the strict scrutiny test.2
A "designated or limited public forum" is property that the government has intentionally opened for expressive activity under certain conditions, with limitations on the content of speech subject to strict scrutiny, but with other restrictions just needing to be reasonable. The City Council Chambers is an example of a designated or limited public forum during a City Council meeting in which there can be time limits on public speakers, but the public cannot be prohibited from criticizing City government.3 This concept of strict scrutiny on the content of speech is sometimes referred to as "viewpoint neutrality."
A "nonpublic forum" is all remaining government property that is not dedicated to general debate or the free exchange of ideas. Reasonable restrictions are allowed in a nonpublic forum if the intent is not to suppress speech due to the speaker's viewpoint.4. Once the government all ows public speech on nonpublic forum property- "opens the forum"- then it has arguably created a "designated or limited public forum" where the limitations on the content of speech are subject to strict scrutiny with other restrictions needing to be reasonable. Likewise, a city that has allowed public speech on nonpublic forum property can choose to adopt a policy to close that forum. This was the case when the City of Lexington, Virginia decided to no longer allow third-party groups to fly flags on streetlight flagpoles throughout the city -- other than the flags of the United States, Virginia and Lexington -- after the Sons of Confederate Veterans flew Confederate flags throughout the city.5
Government Speech
However, when the State is speaking on its own behalf ("government speech"), the First Amendment restrictions related to various types of government-established forums do not apply.6 The Supreme Court provided this example of government speech in the Matal case:
During the Second World War, the Federal Government produced and distributed millions of posters to promote the war effort. There were posters urging enlistment, the purchase of war bonds, and the conservation of scarce resou rces. These posters expressed a viewpoint, but
1 (Clark v Burleigh (1992) 4 Cal. 4th 474, 482, quoting Cornelius v NAACP Legal Defense & Educ. Fund (1985) 473 US 788)
2 Ward v Rock Against Racism (1989) 491 US 781(consistent sound amplification restrictions on a rock concert in a public park did not violate First Amendment.)) "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because soci ety finds the idea itself offensive or disagreeable." (Texas v. Johnson (2015) 491 U.S. 397, 414) 3 (see White v City of Norwalk (9th Cir 1990) 900 F2d 1421) 4 (Cornelius v NAACP Legal Defense & Educ. Fund (1985) 473 us 788) 5 (Sons of Confederate Veterans v. City of Lexington (2012) 894 F. Supp. 2d 769) 6 (Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015) 135 S. Ct. 2239 (Supreme Court held that Texas' specialty license plate designs are governmental speech and the State was allowed to reject a flag design with the Confederate flag); Pleasant Grove City v. Summum (2008) 555 U.S. 460 (Supreme Court found that the display of a permanent monument in a public park is governmental speech not subject to forum analysis)) "'[T]he First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others, [citations omitted] but imposing a requirement of viewpoint neutrality on government speech would be paralyzing."
2 the First Amendment did not demand that the G overnment balance the message of these posters by producing and dis tributing posters encouraging Americans to refrain from engaging in these activities7.
A unanimous Supreme Court ruled on May 22, 2022 in Surtleff v City of Boston8 that the City of Boston violated the free speech rights of a conservative activist when it refused his request to fly a Christian flag on a flagpole outside City Hall.
Justice Stephen Breyer wrote for the court that the city disc riminated against the activist, Harold Shurtleff, because of his “religious viewpoint,” even though it had routinely approved applications for the use of one of the three flagpoles outside City Hall that fly the U .S., Massachusetts and Boston flags. The city had approved 284 consecutive applications to fly flags, usually those of other nations, before it rejected Shurtleff’s because it was a Christian flag. The high court said the lower courts and the city were wr ong. The case hinged on whether the flag - flying is an act of the gov ernment, in which case B oston can do whatever it wants, or private parties like Shurtleff, Justice Breyer wrote.
“Finally, we look at the extent to which Boston actively controlled these f lag raisings and shaped the messages the flags sent. The answer, it seems, is not at all. And that is the most salient feature of this case .” Breyer wrote that “the city’s lack of meaningful involvement in the selection of flags or the crafting of t heir m essages leads us to classify the flag raisings as private, not government, speech —though not hing prevents Boston from changing its policies going forward.”
This case stands for the propos ition that in order to shape the message the flags sen d as government and not private speech the City should have a written policy and clear guidelines. In summary, regarding the First Amendment and Freedom of Speech issues, the display of flags at City facilities beyond the flags of the United States, State of California and City raises First Amendment Free Speech issues and thus the potential for litigation. Those issues depend, in part, on whether the flag is treated as government speech by the City or an opportunity for speech on public property by members of the public ("designated public forum"). If a flagpole is deemed by the City (or later determined by a court) to be "designated public forum" under the First Amendment, the City could not choose which commemorative flags to fly, except on a content- neutral basis. Thus, under the "designated public forum" approach, the City would not be able to avoid disfavored or potentially divisive flags as the City of Lexington discovered after Confederate flags were flown there or the City of Boston found with reference to Mr. S hurtleff’s Christian flag.
However, under the "government speech doctrine", the City may, in accordance with a written policy creating meaningful involvement by the legislative body in the selection of the flags and the selectin of their messa ge to advance its own government speech on flagpoles it controls- i.e. messages conveyed by flags - without requiring viewpoint neutrality, but will face other potential constraints on governmental speech, such as endorsing a religion or a political party under either the United States Constitution or California Constitution or laws.
Establishment Clause
Government speech must still comply with the Establishment Clause.9 In determining whether a governmental regulation or governmental speech impermissibly "establishes" religion, the United
7 (Matal v. Tam (2017) 137 S. Ct. 1744, 1758)
8 Surtleff et al. v City of Boston et al. (2022) Docket No. 20-1800) 596 U.S. tbd 9 (Pleasant Grove City v. Summum, 555 U.S. at 468)
3 States Supreme Court looks to the following factors:
1) Does the activity have a valid state secular purpose - does not endorse nor disapprove of religion;
2) Does the activity have a principal or primary effect that neither advances nor inhibits religion; and
3) Does the activity not foster an excessive government entanglement with religion10?
The governmental regulation on speech cannot have the purpose or effect of endorsing, favoring or promoting religion - or disapproving of religion.11 If the City holds the position that flags on City flagpoles are government speech - i.e. the viewpoint of the City -- a flag waving on a City flagpole at City Hall would be attributed to the City as the speaker. Further, a flag of a religion or religious movement waving alongside two other powerful governmental symbols -- the flags of the United States and the State of California -would seem to send a strong message of endorsement.
There are historic examples of nonsecular references in governmental operations, such as the motto "In God We Trust" on American money; National Days of Prayer; and reference to "God" in the Pledge of Allegiance to the Flag.12 These long-standing uses of nonsecular references to religious heritage are treated somewhat diff erently by the courts. However, a newly created "Christian flag" that has not been part of the religious heritage in the United States or California would arguably not be given the same deference. Further, California's broader legal separation of church and state would suggest even less deference to a new Christian flag flying from a City Hall flagpole. To that end, the Ninth Circuit has found that the Latin crosses on a city's official insignia violated the California Constitution's "no preference" clause.13
There have also been many cases regarding religious displays on public property that balance the question of avoiding a violation of the Fi rst Amendment's prohibition on the establishment o f religion with the First Amendment 's freedom of speech. These are fact-based determinations, typically in the context of a public forum (like a public park) or a limited public forum (like the entryway to a county courthouse) and not in the context of "governmental speech." If a religious display in a traditional public forum like a public park can violate the First Amendment's Establishment Clause and the California Constitution 's additional "no preference" clause, then arguably a flagpole with a religious flag that the City is deeming not to be a public forum but government speech would cross the line of government endorsing religion.
10 (Lemon v. Kurtzman (1971) 403 U.S. 602)
11 "Endorsement sends a mess age to nonadherent that they are outsiders, not full members of the political community, and an accompanying messa ge to adherents that they are insider s, favored members of the political community. Disapproval sends the opposite message." (Lynch v. Donnelly (1984) 465 U.S. 668, 688-89 (O'Connor, J. concurring))
12 (Lynch v. Donnelly (1984) 465 U.S. 688, 674-678) The United States Supreme Court described these as "illustrations of the Government's acknow ledgement of ou r religious heritage and governmental sponsorship of graphic manifestations of that heritage." (Lynch v. Donnelly (1984) 465 U.S. 688, 677) In challenges to the motto on money, the federal Ninth Circuit Court held that the motto was not the establishment or sponsorship of religion, but "its use is of a patriotic or ceremonial character it is excluded from First Amendment significance because the motto has no theological or ritualistic impact." (Newdow v. Lefevre (9th Cir. 2007) 598 F 3d 638, 644 quoting Aronow v.
United States (9th Cir. 1970) 432 F. 2d 242)).
13 (Ellis v City of La Mesa (9th Cir 1993) 990 F2d 1518)
4 First Amendment's Free Exercise of Religion Clause
As to the Free Exercise of Religion Clause of the First Amendment, courts evaluate the following factors in determining whether a governmental practice impermissibly interferes with the free exercise of religion14:
1) The magnitude of the statute's impact on the exercise of the religious belief; 2) The existence of a compelling state interest justifying the imposed burden on the exercise of the religious belief; and
3) The extent to which recognition of an exemption from the statute would impede the state's objectives.
A flag waving on a city flagpole does not impact the exercise of religion: it does not allow nor prohibit the free exercise of religion. People can practice religion - or not practice religion - regardless of whether ther e is a flag flying at City Hall. The City's interest in avoiding an Establishment Clause violation would arguably be compelling even if an argument could be made that not allowing flags of a religious movement somehow im pacts the exercise of a religious belief.
Prohibition on Partisan Flags or Advocating a Certain Vote in an Election Under the government speech doctrine, the City may generally advance its own speech without requiring viewpoint neutrality, subject to Cons titutional and other legal limits. In considering other categories of speech that would be problematic, a flag of a political party would seem to violate the nonpartisan nature of local elections.15 Likewise, the use of City resources to make and fly a flag advocating a certain election result would likely violate the California Supreme Court's restriction on the use of public funds to assist the passage or defeat of a ballot measure.16
CONCLUSION
Flagpoles on City property, including those at the City Hall , are not traditionally intended to serve as a forum for free speech by the public. Instead, and in accordance with a written policy, these flagpoles can be treated as a nonpublic forum used by the city for expressing its own governmental speech. Under the governmental speech doctrine, the City can choose to fly only the flags of the United States, State of California and the City. The City could also choose to fly commemorative flags; although, this would increase the risk of a legal challenge once decisions are made to fly some flags but not others. Nonetheless, the government speech doctrine supports the City Council advancing its own government speech on City flagpoles without requiring viewpoint neutrality, so long as the City Council does not endorse a flag of a religion or political party or a particular outcome in an election or any other prohibited subjects under federal or state law.
The attached policy (“EXHIBIT A ”) complies with current legal and Co nstitutional restraints and would allow the City Council to select and display a Commemorative Flag.
Layne Long
City Manager
City of Marina
14 (Callahan v Woods {9th Cir 1984) 736 F2d 1269, 1273, citing EEOC v Pacific Press Publ'g Ass'n (9th Cir 1982) 676 F2d 1272, 1279) (on the issue of whether plaintiff could obtain welfare benefits without a social security number because of his belief that numbers are "the mark of the Antichrist")) 15 (Cal. Elections Code section 334)
16 (Stanson v. Mott (1976) 17 Cal. 3d 206)
5 RESOLUTION NO. 2022-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MARINA
APPROVING A FLAGPOLE POLICY
WHEREAS, the City of Marina displays and hand les all flags in accordance with Fe deral and State law, and
WHEREAS, the City does not have local rules or guidelines regarding the display of flags at City facilities and
WHEREAS, The City wishes to adopt a polic y to provide clear guidelines about the display of flags at City facilitie s that declares that the City’s flagpoles are not intended to be a forum for free expression by the public but rather are used to express official views of the City Co uncil of the City, and
WHEREAS, said City facilities and flagpoles are under the exclusive control of the city and are not public forums for the free expression of the view of the public.
NOW, THEREFORE, BE IT RESOLVED that the City Council of th e City of Marina does hereby:
1. Approve and adopt the poli cy fo r the di splay of flags at City faci lities contained in Exhibit A attached hereto.
PASSED AND ADOPTED by the City Council of the City of Marina at a regular meeting duly held on the 21st of June 2022 by the following vote:
AYES, COUNCIL MEMBERS:
NOES, COUNCIL MEMBERS:
ABSENT, COUNCIL MEMBERS:
ABSTAIN, COUNCIL MEMBERS:
_________________________
Bruce C. Delgado, Mayor
ATTEST:
______________________________
Anita Sharp, Deputy City Clerk
6 Exhibit A
CITY OF MARINA POLICY FOR FLYING FLAGS AT CITY
FACILITES
It is the policy of the City of Marina that the City's flag poles are not intended to serve as a forum for free expression by th e public but rather for the display of the Flags of the United States and the State of California. The flag poles located at all City facilities may also be used to display the flags of the City of Marina, Sister Cities, the existing POW Flag and any Commemorative Flags as may be authorized by the City Council as an expression of the City's official sentiments.
A Commemorative Flag under this policy means a flag that identifies with a specific date historical event, cause, nation or group of people, whereby the City honors or commemorates the date, event, cause, nation or people by flying the flag.
Commemorative Flags shall be displayed at City facilities only upon City Council direction, consistent with the City's vision, mission, and ongoing and strategi c priorities.
The City of Marina may hold a ceremony for approved flag raising upon the first raising of the set flag.
PROCEDURE
In addition to the flags of the State of California and the United States of America, the City Council may, by resolution direct City staff to display any Commemorative Flag on the flag poles at City facilities as an expression of the City’s official sentiments, for those dates and times and on those terms and conditions as set forth in the resolution. A majority vote of the Council will be required to establish a flag as a commemorative flag of the City of Marina.
Commemorative Flags shall be displayed for a period of time that is reasonable or customary for the subject that is to be commemorated, but no longer than 30 continuous days or one calendar month. No more than one commemorative flag shall be displayed in any given period. This Policy shall remain in effect until modified by the City Council.
7 RESOLUTION NO. 2022-
A RESOLUTION OF THE CITY OF MARINA APPROVING THE FLYING OF THE RAINBOW
PRIDE FLAG AT CITY HALL THROUGHOUT THE REMAINDER OF THE MONTH OF JUNE AS FURTHER RECOGNITION OF JUNE 2022 AS LESBIAN, GAY, BISEXUAL, TRANSGENDER, QUEER, PLUS (LGBTQ+) PRIDE MONTH IN THE CITY OF MARINA
WHEREAS, the City of Marina has a diverse Lesbian, Gay , Bisexual, Tra nsgender, Queer, Plus (LGBTQ+) community and is committed to supporting visibility, dignity, and equity for all people in the community; and
WHEREAS, many of the residents, students, employees, and business owners within the City of Marina who contribute to the enrichment of our City are part of the LGBTQ+ community; and
WHEREAS, the City of Marina strives to be a place where all residents and visitors feel accepted and welcome; and
WHEREAS, the Rainbow Flag, also known as the LGBTQ+ Pride Flag or Gay Pride Flag, has b een used since the 1970s as a symbol of LGBTQ+ pride and social movements; and
WHEREAS, on June 7, 2022, the City Council of the City of Marina declared the month of June as Lesbian, Gay, Bisexual, T ransgender and Queer Pride month symbolizing the City ’s celebration o f diversity and support for the Lesbian, Gay, Bisexual, Transgender, Queer and Plus community; and
WHEREAS, the City Council has this date adopted a Flagpole Policy; and
WHEREAS, the Council of the City of Marina wishes to establish the Rainbow Prid e F lag as a commemorative flag of the City of Marina in accordance with the Flagpole Policy to communicate its support for diversity, inclusivity, equality, and respect in our City; and
WHEREAS, flying the City’s Rainbow Pride Flag during the month of Ju ne further symboli zes Marina’s official recogn ition of June as LGBTQ+ Pride month and reflects the City of Marina’s viewpoint, and symbolizes the City’s celebration of diversity and support for the LGBTQ+ community.
NOW, THEREFORE, BE IT RESOLVED that the City Council of Marina, California does hereby find, determine and approve as follows:
Section 1. Approving the flying of the Rainbow Pride Flag at City Hall throughout the remainder of month of June.
Section 2. This resolution shall become effective immediately upon its passage and adoption.
PASSED AND ADOPTED by the City Council of the City of Marina, California at a regular public meeting thereof held on the 21st day of June 2022 by the following recorded vote:
AYES, COUNCIL MEMBERS:
NOES, COUNCIL MEMBERS:
ABSTAIN, COUNCIL MEMBERS:
ABSENT, COUNCIL MEMBERS:
___________________________
Bruce C. Delgado, Mayor
ATTEST:
_____________________
Anita Sharp, Deputy City Clerk
8 Continued from June 7, 2022
June 2, 2022 Item No: 11c
Honorable Mayor and Members City Council Meeting
of the Marina City Council of June 7, 2022
CITY COUNCIL CONSIDER RECEIVING A PR ESENTATION
REGARDING THE LONG -TERM VISION AND FISCAL
SUSTANABILITY OF THE MARINA MUNICIPAL AIRPORT , EFFORTS
TO PROVIDE QUALITY GENERAL AVIATION FACILITIES TO MEET
DEMANDS, AND POTENTIAL SUPPORT FROM THE MILITARY
ASSISTANCE PROGRAM ( MAP) TO FUND INVESTMENTS IN
INFRASTRUCTURE TO S UPPORT HANGAR DEVELOPMENT AND
FACILITATE REVENUE SUPPORTING LAND USES
REQUEST:
It is requested that the City Council consider:
1. Receiving a presentation on the long-term vision and fiscal sustainability, hangar and infrastructure need s and solutions, and potential f inancial support from the M ilitary Assistance Program for the Marina Municipal Airport.
BACKGROUND
The Marina Municipal Airport is the newest general aviation airport on the Monterey Peninsula, residing on 845 acres o f form er Fort Ord property, with over 400 acres dedicated to aviation.
The City of Marina owns and operates the airport. The airport provides support to commer cial, military, and private aircraft. Services and facilities currently available include hang ar storage, tie-downs, minor aircraft maintenance, skydiving, and fueling. The airport has been open for public use since 1995.
The airport is included in the FAA ’s National Plan of Integrated Airport Systems (NPIAS). As such, the Airport is eligible fo r fede ral de velopment grants. The airfield layout consists of a single runway, measuring 3,483 feet in length and 75 feet in width. Airport facilities currently include five large hangar buildings (approximately 30,000 s q.ft. each), 24 T -hangars, 20 box hangars, 170 tie downs, a n airport administration building and six ancillary buildings for non - aviation tenants.
There are estimated to be 50 based aircraft (including 42 single engine piston aircraft, three turboprops, 1 business jet) and 30,000 annual operations. Key tenants today include the U.S.
Navy Center for Interdisciplinary Remotely Piloted Aircraft Study (CIRPAS), Skydive Monterey Bay, Light & Motion and most recently Joby Aviation, a leader in the vertical Take-off and Landing (eVTOL) industry, employing hundreds at the Marina Airport with expansion plans for a new large aeronautical manufacturing facility.
The Marina Municipal Airport is committed to supporting the aviation, economic, environmental, and recreational n eeds of the airport and th e Marina community. Key strategies of this vision are:
• Expanding aviation related business by partnering with existing businesses or attracting new businesses.
• Phasing in the expansion of aviation needs
1 • Identifying revenue genera ting possibilities and par tnering with the community fo r economic development
• Identifying highest and best use of airport land area • Making the airport financially self-sustaining
To operate the airport at a bare minimum costs about $900,000 annually. This includes salaries for two full-time staff, professional services, and minimum maintenance and repair to keep the airport operating. Revenues generated by box hangers, cell to wers, aviation use han gers, and fuel sales total about $550,000 annually. Joby Aviation leases bring in about $1,000,000 annually in revenues to the airport. Attracting new aviation and non -aviation businesses to the airport are critical to the fiscal sustainability of the airport.
DISCUSSION:
Staff and representatives of the Federal Avia tion Administratio n (FAA ) have be en in close communication for the last couple of years to support growth at the Marina Munici pal Airport and tenants such as Joby Aviation. These talks have resulted in the FAA’s greater understanding and attention to the needs and challenges of the airport.
The airport was deeded to the City directly from the federal government following the closure of Fort Ord. The former helicopter airport contained large hangar buildings in need of a great deal of maint enance. While it was documented in th e Airport Master P lan that an estimated 43 private small planes could be stored in the 5 large conventi onal hangars, utilizing these large buildings in this way is not the highest and best use as it is not efficient, is not the highest and best use, and does not provide for fiscal sustainability of the Airport. In comparison, leasing the entire bui lding to single tenant generates much greater revenue for the airport that is used to reinvest in the maintenance and upkeep of the buildings. Below is a n example using a large hanger building to compare the rents generated by several small tenants in contrast to one single tenant.
Large Hangar Individual Tenants Singe Tenant
Lease Rates Max capacity of 9 aircraft
@ $250 mo. each = $2,250
Office space 5,000 s.f. x $.50 p/s.f. = $2,500
Total = 4,750 mo.
35,000 sf x .36 p/s.f.
= $12,600 mo.
At current rates the differ ence betw een indi vidual ten ants v ersus one tenant is approximately $7,850 a month or $94,250 annually. The total annual re venue under these two s cenarios are summarized below.
Large Hangar Individual Tenants Singe Tenant
Lease Rates 4,750 mo. / $57,000 annually $12,600 mo. / $151,200 annually
As part of staff ’s recent analysis of airport fiscal sustainability included long ran ge maintenance costs required to preserve the 50–70-year-old structures constructed by the Army. The engineer’s analysis of the needed capital reserve costs over th e next 30 -years and ongoing annual maintenance costs to preserve each large hanger building requires an approximate total of $200,000 annually. In addition to the ca pital and maint enance costs, there are also ongoing operations costs.
2 After reviewing the financial data presented above the FAA staff agreed that tenants such as Joby Aviation are critical to the long-term sustainability of the airp ort and the continue d quality facilities for the general aviation community. This education for the FAA staff has fortunately opened discussions of the airport partic ipating in the highly selective M ilitary Assistance Program. Nationwide, there are only a few general aviation airport s th at are selected to participate in MAP at one time. And the funding can be significate (up to $35 million) over the 5-year funding cycles.
While the FAA staff is supportive of helping our airport to be financially sustainable, they are also concerned that we continue to provide a quality general aviation airport for pilots while also fostering Joby ’s expansion. In this effo rt, staff has worked with the Tartaglia Engi neering to develop hangar complex plans on the airport that can be phased in o ver 30 -years to meet the demands of the general aviation users of the airport. Also provided were engineering estimates of the costs to develop these complexes.
The presentation attached was presented the FAA staff on May 6, 2022 and was received well.
This presentation includes the vision for Airport and how the future expansion of tenants such as Joby Avia tion will work in concert with expansion of hangar space to servi ce the general aviation community and provide for re venue supporting land uses to be devel oped in the future further adding to the financial sustainability of the Airport.
The conclusion of the meeting with the FAA staff was that the City will continue to develop its phasing plan for the Airport and how we propose to use MAP funding towards meeting the vision and fin ancial sustainable future. Staff has met with Tartaglia Engineers to discuss including estimat es for in frastructure development to support the Airport Business Park and revenue support area on the north side of the Airport property. The FAA staff also encouraged City staff to meet with Airport tenants and share future vision and hangar plans. This meeting is being planned for evening of June 8th and will be reported back to the FAA at our next meeting.
In addition to these efforts to provide for the Airport’s future, staff also continues to try and gain the approval of the FAA for the Joby future factory bu ilding on the South Tarmac area. These discussions and meetings are critical to that effort as w ell and we look forward to having the FAA approval this summer.
Respectfully submitted,
_____________________________
Matt Mogensen
Assistant City Manager
City of Marina
REVIEWED/CONCUR:
___________________________
Layne Long
City Manager
City of Marina
3 MARINA
MUNICIPAL
AIRPORT
Vision and efforts to meet current and future aviation demands May 6, 2022
4 VISION FOR THE MARINA MUNICIPAL
AIRPORT
Airport Master Plan Adopted May 2018
Provides guidance for future development to
meet existing and future needs
Project included public review and input
5 PAC meetings,2 workshops, Council adoption
Several Landside Alternatives incorporated
Annual Budget & CIP review and approval
5 MARINA MUNICIPAL AIRPORT VISION
STATEMENT
Mission Statement
The Marina Municipal Airport’s mission is to provide a safe, efficient, customer focused airport to serve the Marina community and Monterey Peninsula area.
Vision
The Marina Municipal Airport is committed to supporting the economic, environmental, and recreational needs of the airport and Marina community through safe and secure operations and fiscal self-sustainability. Key strategies of our vision are:
1. Expanding aviation related business by partnering with existing businesses or attracting new businesses.
2. Phasing in the expansion of aviation needs
3. Identifying revenue generating possibilities and partnering with the community for economic development
4. Identifying highest & best use of airport land area
5. Making the airport financially self-sustaining
6 MARINA MUNICIPAL AIRPORT VISION
STATEMENT (CONT.)
Goals and Objectives
1. Address the needs of the general aviation users
2. Address the general aviation needs of the businesses
3. Maintain and retain current facilities and airport assets including real property, runways, taxiways, ramps, hangers, etc.
4. Provide services and economic value to the City of Marina
5. Be a welcoming gateway for private aircraft access to the Monterey Peninsula
6. Provide a safe environment for all at the airport
7. Enabling the support, acquisition and construction of new airport assets
8. Identifying development projects to fulfill the preferred development plan in the ALP
9. Establish a phasing plan for development projects to meet forecasted needs and review possible funding sources
7 ON-
AIRPORT
LAND USE
8 AIRPORT
BUSINESS PARK
LAND USE
CONCEPT
9 LONG-
TERM
MASTER
PLAN
CONCEPT
10 AIRCRAFT STORAGE AND PARKING
INVENTORY
Aviation building space by type Estimated Total
Aircraft Positions
Maintenance/ Office
Space (s.f)
Aircraft Storage Space
(s.f.)
Total T‐Hangar 24 1,000 23,500
Total Box Hangar 20 2,300 27,200
Total Conventional Hangar 43 22,200 125,500*
North Tarmac Tie Down Area 170 388,800
*Actual usage of hangars, especially if there is a single lessee, may result in fewer available aircraft positions. 11 POTENTIAL AIRCRAFT STORAGE DEMAND
Airport maintains and interest list for hangar storage List is a few years old and needs to be cleaned up for those that have found storage elsewhere.
Potential Interest List Category
(has not been verified to see if still interested)
Total Units in Potential Demand
Total T‐Hangar Waitlist 16
Total Box Hangar Waitlist 27
Total Unspecified Hanger Waitlist 51
12 HANGAR
DEVELOPMENT
PLANNING
13 PROPOSED ADDITIONAL SUPPL Y
Hangar Project Total Number of Hangars Size of Hangars
North Tower Hangar Complex 44 40' x 40’ 30' x 30’ 50' x 50’ 60' x60’ 80' x 100’ 80' x 80'
160' x 130'
Neesen Road West Hangar Complex 21 60' x 50’ 100' x 100’ 116' x 120'
50' x 120’ 80' x 100'
West Apron Hangar 5 60' x 50'
West End Hangar Complex 48 47'6" x 39’ 40' x 40’ 160' x 130'
Taxi lane Hangar – Small 1 100' x 100'
Taxi lane Hangar - Large 1 300' x 150'
Total 120
14 AIRPORT
DEVELOPMENT
PHASES
15 HANGER ADDITION PHASING
Priority
Phase 1 (Years 1 – 15) Number
of
Hangars
Size of Hangars Percent of Current
Potential Demand
1 Tower North Hangar Complex Buildings A, B, C 26 40' x 40’ 30' x 30'
28%
2 Tower North Hangar Complex Building D 10 50' x 50' 11% 3 Tower North Hangar Complex Buildings H 2 160' x 130' 2% 4 Tower North Hangar Complex Buildings E 4 60' x60' 4%
5 Neesen Road West Hangar Complex Building A 11 60' x 50' 12% 6 West Apron Hangar 5 60' x 50' 5%
7 Neesen Road West Hangar Complex Building D 4 80' x 100' 4% 8 Neesen Road West Hangar Complex Building B 1 100' x 100' 1% Total 63 67%
16 HANGER ADDITION PHASING
Priority
Phase 2 (Years 15 – 30) Number
of
Hangars
Size of Hangars Percent of Current
Potential Demand
Tower North Hangar Complex Buildings F and G 2 80' x 100’ 80' x 80'
2%
Neesen Road West Hangar Complex Building C 21 116' x 120' 22% Taxilane Hangar - Small 1 100' x 100' 1%
Taxilane Hangar - Large 1 300' x 150' 1%
West End Hangar Complex Buildings A - F 48 47'6" x 39'
40' x 40'
160' x 130'
51%
17 PHASE 1 – PRIORITY 1
Bldg
A
Bldng
B
Bldng
C
Total
Total
Units
12 6 8 26
Unit
Size
40' x
40'
40' x
40'
30’ x
30'
Estimated
Cost
$6,102,479
Annual
Revenue
$153,600
18 PHASE 1 – PRIORITY 2
Bldg
D
Total
Total
Units
10 10
Unit
Size
50' x
50'
Estimated
Cost
$4,423,056
Annual
Revenue
$72,000
19 PHASE 1 – PRIORITY 3
Bldg
H
Total
Total
Units
2 2
Unit
Size
160'
x 130'
Estimated
Cost
$6,073,848
Annual
Revenue
$53,760
20 PHASE 1 – PRIORITY 4
Bldg
E
Total
Total
Units
4 4
Unit
Size
60'
x60'
Estimated
Cost
$3,520,968
Annual
Revenue
$48,384
21 PHASE 1 – PRIORITY 5
Bldg
A
Total
Total
Units
11 11
Unit
Size
60’ x
50'
Estimated
Cost
$5,449,497
Annual
Revenue
$79,200
22 PHASE 1 – PRIORITY 6
Bldg Total
Total
Units
5 5
Unit
Size
60’ x
50'
Estimated
Cost
$6,044,465
Annual
Revenue
$50,400
23 PHASE 1 – PRIORITY 7
Bldg
D
Total
Total
Units
4 4
Unit
Size
80’ x
100'
Estimated
Cost
$7,317,050
Annual
Revenue
$86,016
24 PHASE 1 – PRIORITY 8
Bldg
B
Total
Total
Units
1 1
Unit
Size
100’ x
100'
Estimated
Cost
$3,130,248
Annual
Revenue
$33,600
25 PHASE 1 TOTAL COSTS
Priority PHASE 1 (YEARS 1-15)
Engineer
Estimated Cost
Principle with
Interest Cash/Grant
Total Project
Cost (D + E)
1 Tower North Hangar Complex Buildings A, B, C $ 6,102,479 $ 4,583,152 $ 3,850,000 $ 8,433,152 2 Tower North Hangar Complex Buildings D $ 4,423,056 $ 2,132,495 $ 3,375,000 $ 5,507,495 3 Tower North Hangar Complex Buildings H $ 6,073,848 $ 1,574,560 $ 5,300,000 $ 6,874,560 4 Tower North Hangar Complex Buildings E $ 3,520,968 $ 1,263,493 $ 2,900,000 $ 4,163,493 5 Neesen Road West Hangar Complex Building A $ 6,044,465 $ 2,328,659 $ 4,900,000 $ 7,228,659 6 West Apron Hangar $ 6,044,465 $ 1,209,566 $ 5,450,000 $ 6,659,566 7 Neesen Road West Hangar Complex Building D $ 7,317,050 $ 2,578,086 $ 6,050,000 $ 8,628,086 8 Neesen Road West Hangar Complex Building B $ 3,130,248 $ 773,696 $ 2,750,000 $ 3,523,696 Total Phase I $ 42,656,579 $ 34,575,000 $ 51,018,707 26 PHASE 2
Bldg
F
Bldg
G
Total
Total
Units
1 1 2
Unit
Size
80’ x
100'
80’ x
80'
Estimate
d Cost
$12,990,641
Annual
Revenue
$48,384
27 PHASE 2
Bldng
C
Total
Total Units 3 3
Unit
Size
116' x
120'
Estimated
Cost
$13,412,274
Annual
Revenue
$141,120
28 PHASE 2
Bldg Total
Total
Units
1 1
Unit
Size
100’
x 100'
Estimated
Cost
$4,230,863
Annual
Revenue
$42,000
29 PHASE 2
Bldg Total
Total
Units
1 1
Unit
Size
300’ x
150'
Estimated
Cost
$15,654,732
Annual
Revenue
$151,200
30 PHASE 2
Bldg
A - D
Bldng
E
Bldng
F - G
Total
Total
Units
40 6 2 48
Unit
Size
47'6"
x 39'
40' x
40'
160' x
130'
Estimated
Cost
$35,425,870
Annual
Revenue
$461,232
31 PHASE 2 TOTAL COSTS
Priority PHASE 2 (YEARS 15-30)
none set
yet
Engineer
Estimated Cost
Principle with
Interest Cash/Grant
Total Project
Cost (D + E)
Tower North Hangar Complex Buildings F and G $ 12,990,641 $ 26,432,248 $ - $ 26,432,248 Neesen Road West Hangar Complex Building C $ 13,412,274 $ 27,290,149 $ - $ 27,290,149 Taxilane Hangar - Small $ 4,320,863 $ 8,791,723 $ - $ 8,791,723 Taxilane Hangar - Large $ 15,654,732 $ 31,852,912 $ - $ 31,852,912 West End Hangar Complex Buildings A - F $ 35,425,870 $ 72,081,535 $ - $ 72,081,535 $ 81,804,380 $ 177,545,139 $ 166,448,568
32 33
34