Agenda Report
Fullerton City Council
MEETING DATE: JUNE 7, 2022
TO: CITY COUNCIL / SUCCESSOR AGENCY
SUBMITTED BY: ERIC J. LEVITT, CITY MANAGER
PREPARED BY: KELLEE FRITZAL, CONSULTANT / SPECIALIST
SCOTT PORTER, DEPUTY CITY ATTORNEY
SUBJECT: PUBLIC RIGHT-OF-WAY RESTORATION AT HARBOR AND COMMONWEALTH AND TERMINATION OF ENCROACHMENT AT 100 NORTH HARBOR BOULEVARD
SUMMARY
Consideration of restoring the public right-of-way sidewalk at Harbor and Commonwealth to public use which requires adoption of a resolution and directing staff to terminate the existing Site Lease and Encroachment Agreements and notify property owners of such termination.
RECOMMENDATION
Adopt Resolution No. 2022-XXX.
RESOLUTION NO. 2022-XXX - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FULLERTON, CALIFORNIA, DECLARING THE NEED TO RETURN PUBLIC RIGHT-OF-WAY AT THE NORTHEAST CORNER OF HARBOR BOULEVARD AND COMMONWEALTH AVENUE TO PUBLIC USE Find that the Site Lease and Encroachment Agreement is terminable and should be terminated 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 North Harbor Boulevard is necessary and appropriate.
Direct staff to notify the property owner of 100 North Harbor Boulevard to remove any and all encroachment into the public right-of-way within 60 days of such notice and to restore the right-of-way to its previous condition.
Approve allowing the City Manager to authorize up to a 60-day extension, if circumstances merit an extension to remove all encroachments.
PRIORITY POLICY STATEMENT
This item matches the following Priority Policy Statements:
Infrastructure and City Assets
Public Safety.
FISCAL IMPACT
No fiscal impact.
DISCUSSION
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 Avenue) on February 16, 2022. 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. City Council approved the use of the public right-of-way in 2004 for a prior tenant through a Site Lease Agreement and Encroachment Agreement. The Planning Commission directed staff to inform City 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 a prior City Council entered into the Agreement.
Staff recommends that if City Council desires to restore the public right-of-way sidewalk at Harbor and Commonwealth, City Council should direct staff to give notice to the 100 North Harbor Boulevard property owner that the City has terminated the site lease and encroachment agreement originally entered into with its previous tenant in 2004 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 encroachment. City Council continued this item at the April 5, 2022 City Council meeting at the request of the property owner.
Background
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 City made the agreement 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”). This report will refer to the Original Agreement and the First Amendment will collectively as the “Agreement.” The Encroachment Area is approximately 384 square feet.
Florentine’s closed in October 2020. To staff’s knowledge, it appears that the tenant has not paid the required rent for the leased area (approximately $485 per month) 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 party has sought such assignment. Further, the Agreement states that vacating the premises is a material default. If City Council desires to restore the public right-of-way to a full width sidewalk, then staff requests that 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.
City Council may find it desirable to fully restore the public right-of-way at this location for pedestrian use. Since the onset of the COVID-19 pandemic, the downtown area has seen an increase in outdoor recreation activity, particularly pedestrian activity. 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 City Council desires to restore the sidewalk to its full width, then staff recommends that City Council declare that it is necessary and appropriate to restore the public right-of-way at this location to public use and adopt Resolution No. 2022-XXX declaring the need to do so.
The property owner of 100 North Harbor Boulevard has made renovations at the location and previously executed an acknowledgement that the owner would have to remove the encroachment into the right-of-way at the owner’s expense, should the City decide to restore the full public right-of-way to public use. If City Council desires, staff recommends that City Council direct staff and the City Attorney to send notice to the property owner that the City has terminated the lease and direct the property owner to remove the encroachment in the public right-of-way within 60 days.
Attachments:
Attachment 1 – Draft Resolution No. 2022-XXX
Site Lease and Encroachment Agreement
June 7, 2022 - Page 4