Agenda Report
Fullerton City Council
MEETING DATE: APRIL 5, 2022
TO: CITY COUNCIL
SUBMITTED BY: JEFFREY W. COLLIER, ACTING CITY MANAGER
PREPARED BY: GREGORY PFOST, INTERIM DIRECTOR OF COMMUNITY AND ECONOMIC DEVELOPMENT
SCOTT PORTER, ASSISTANT CITY ATTORNEY
SUBJECT: RESTORATION OF PUBLIC RIGHT-OF-WAY AT HARBOR AND COMMONWEALTH AND TERMINATION OF ENCROACHMENT AT 100 NORTH HARBOR BOULEVARD
SUMMARY
At the February 16, 2022 Planning Commission meeting, the Planning Commission approved a Conditional Use Permit for two new restaurants located at 100 North Harbor Boulevard (northeast corner of Harbor Boulevard and Commonwealth). Prior to their decision, the Planning Commission received correspondence and heard testimony opposed to the continued use of a portion of the public right-of-way (sidewalk) along the Commonwealth frontage for private restaurant use. The use of the public right-of-way was approved by the City Council in 2004 for a prior tenant through a Site Lease Agreement and Encroachment Agreement. The Planning Commission directed Staff to inform the Council of this issue as it was not within the Planning Commission’s purview to render a decision on the private use of the sidewalk since the Agreement was entered into by a prior City Council. Staff is recommending that if the City Council desires to restore the public right-of-way sidewalk at Harbor and Commonwealth, then direct staff to give notice to the property owner of 100 North Harbor Boulevard that the site lease and encroachment agreement originally entered into with its previous tenant in 2004 is terminated due to breach by the tenant and the City’s determination that the restoration of the right-of-way for public use is necessary and appropriate, requiring removal of existing encroachments.
RECOMMENDATION
If it is desired to restore the public right-of-way, then Find that the Site Lease and Encroachment Agreement is terminable based on default by abandonment and failure to pay required rent.
Find that restoration of the full width of the public sidewalk adjacent to 100 N. Harbor Blvd. is necessary and appropriate.
Direct staff to notify the property owner of 100 N. Harbor Blvd. to remove any and all encroachments into the public right-of-way within sixty (60) days of such notice and to restore the right of way to its previous condition.
BUDGET POLICY PRIORITY STATEMENT
Infrastructure and City Assets
Public Safety
FISCAL IMPACT
None.
DISCUSSION
In November 2004 the City entered into a “Site Lease Agreement and Encroachment Agreement” (the “Original Agreement”) with Intimate Inns of California, Inc. DBA Florentine’s Tuscany Club (“Prior Tenant”) to allow Florentine’s to use certain portions of the City’s sidewalk area on Commonwealth Avenue adjacent to the Property (the “Encroachment Area”) for its business purposes. The agreement was not with the Property Owner, but rather with the Prior Tenant. On July 18, 2017, the City and the Prior Tenant entered into the “First Amendment to Encroachment License Agreement” (the “First Amendment”). The Original Agreement and the First Amendment will collectively be referred to as the “Agreement.” The Encroachment Area is approximately 384 square feet.
Florentine’s closed in October of 2020. To Staff’s knowledge it appears that the required rent for the leased area (approximately $485 per month) has not been paid to the City. By its terms, the Agreement would terminate on May 30, 2023. The Agreement is expressly made non-assignable except with the City’s consent. No such assignment has been sought. Further, the Agreement states that vacating the Premises is a material default. If it is the desire of the City Council to restore the public right-of-way to a full width sidewalk, then Staff requests that the City Council declare the lease in default and direct staff and the City Attorney to send notice of termination of the Agreement to the Prior Tenant as the Lessee with a copy to the property owner.
It may be desirable for the public right-of-way at this location to be fully restored for pedestrian use. Since the onset of the COVID-19 pandemic, there has been an increase in outdoor recreation activity and particularly pedestrian activity in the downtown area. The northeast corner of Commonwealth and Harbor, where the encroachment is located, is the only one of the four corners at this intersection with the narrowed pedestrian corridor caused by the encroachment. Removal of the encroachment will allow for additional pedestrian capacity. Numerous members of the public have requested restoration of the public right-of-way to its full width. If the City Council desires to restore the sidewalk to its full width, then Staff is recommending that the City Council declare that it is necessary and appropriate to restore the public right-of-way at this location to public use.
The property owner of 100 N. Harbor Blvd. has been making renovations at the location and previously executed an acknowledgement that the encroachment into the right-of-way would have to be removed at the owner’s expense should the City determine that the full public right of way should be restored to public use. Therefore, if it is the City Council’s desire, staff recommends that the City Council direct staff and the City Attorney to send notice to the property owner that the lease has been terminated and directing the property owner to remove the encroachments in the public right-of-way within sixty days.
Attachments:
Attachment 1 – Original Agreement
Attachment 2 – First Amendment to Encroachment License Agreement Site Lease and Encroachment Agreement
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