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HomeMy WebLinkAbout2011 08 17 Ltr to Sembler CI YOF SSTL6tN HOME OF PELICAN ISLAND 1225 MAIN STREET• SEBASTIAN, FLORIDA 32958 TELEPHONE: (772)589-5330• FAX(772)589-5570 August 17, 2011 Charlie Sembler, President Fisherman's Landing Sebastian PO Box 780206 Sebastian, FL 32978 Dear Mr. Sembler: Officials from the City of Sebastian have reviewed the proposed sublease between your tenant Indian River Seafood, Inc. and Fisherman's Landing Restaurant, LLC. The purpose of this sublease is to operate an eatery at 1540 Indian River Drive, which is in accordance with paragraph 8.B of the lease between the City and Fisherman's Landing Sebastian, Inc. This notice is to provide written consent to issuance of the sublease per paragraph 15 of the lease between the City of Sebastian and Fisherman's Landing Sebastian, Inc. Please note the City requests the following modifications to the proposed sublease: > Paragraph 6—Operational Adherence—Last Sentence. Change the word"conflict"to conflicting. > Paragraph 7.B—Building Utilities, Maintenance and Repairs— Forth Sentence. Change the words"informally arbitrate" to determined. > Paragraph 13.0—Miscellaneous Conditions. Change the sentence as follows: LLC agrees to prohibit unauthorized persons on the Leased Premises and to prohibit trespassing on the Leased Premises by use of appropriate signage, in accordance with subsection 1 below. > Paragraph 14.A. —Termination—First Sentence. Change the word "may"to shall. Upon execution of the sublease, please provide the Office of the City Manager with a fully executed sublease, with all exhibits. Should you have any questions concerning this matter, please contact me at your earliest convenience. R•s•ect ul , /7 anger Cc: Members of the Sebastian City Council Sally Maio, City Clerk Robert Ginsburg, City Attorney / I 1 /0( SU: EASE BETWEEN INDIAN RIVER SEAFOOD,INC., AN FISHERMAN'S LANDING RESTAURANT,LLC A SUBLEASE jade this day of August, 2011, between INDIAN RIVER SEAFOOD, INC., a Florio- corporation, whose address is 1540 Indian River Drive, Sebastian, FL 32958, hereinafter re : ed to as "SEAFOOD" and FISHERMAN'S LANDING RESTAURANT, LLC, a Flori o a limited liability company, whose address is 1540 Indian River Drive, Sebastian, FL 32958, here after referred to as "LLC",provides WITNESSETH: WHEREAS, SEAFOOD holds a sub -ase under FISHERMAN'S LANDING SEBASTIAN, INC., hereinafter referred to as "FLS", • certain real property owned by the City of Sebastian, hereinafter referred to as the "OWNER", . d is authorized to sublease portions of such land to businesses for the purpose of promoting 1.wful business activity in accordance with the Stan Mayfield Working Waterfront program; and WHEREAS, LLC is a Florida company whit offers food service that will complement the revitalization of Sebastian's Working Water ont and those activities benefitting local commercial fishermen and aquaculture; and WHEREAS,the property is subject to a Declaration ►f Restrictive Covenants and a management plan under the requirements of the Stan Mayfield Wor ' g Waterfront Grant; and WHEREAS, LLC has applied to SEAFOOD for a suo ease of certain portions of the upland real estate held by SEAFOOD; and WHEREAS, SEAFOOD has determined that the revit. ization and preservation of the Sebastian Working Waterfront will be promoted by the busine activities of LLC; and WHEREAS, SEAFOOD desires to sublease such property to L ►C for these purposes; NOW THEREFORE, in consideration of the foregoing and in further consideration of the mutual covenants contained herein, the parties agree as follows: 1. PREMISES. SEAFOOD hereby subleases unto LLC the Leases 'remises located at 1540 Indian River Drive as delineated in the site plan attached hereto as .xhibit "A", along with appurtenant use of the parking spaces shown on Exhibit"B". 2. PURPOSE. The LLC shall use the Leased Premises for limited foe• service, including beverage service of beer and wine, ancillary to and in furtherance of the Stan ayfield Working Waterfront program. 3. TERM. SEAFOOD subleases to the LLC the above premises for an initial ee year term commencing on the date first set forth above. LLC shall have the option to exten. the Sublease upon the same terms for an additional three year term upon written notice to SEA OOD of its intent to exercise said option no later than one hundred twenty (120) days prior to e .iration of the initial three year term. 1 DRAFT 7/29/1 4. RENT. LLC shall pay a base rent of$2,000 per month to SEAFOOD. The first month rent shall be paid upon execution hereof, and thereafter payment shall be made on the first day of each month for said month. If the full amount of rent is not paid by the fifth day of the month, a late fee in the amount of twenty dollars ($20.00) shall be added as additional rent on the sixth and for each day thereafter until rent is paid in full. 5. IMPROVEMENTS. The Leased Premises are accepted by the LLC "as is". A. As an Economic Development component of the Stan Mayfield Working Waterfront Grant, SEAFOOD may solicit and oversee additional ancillary business operations that will be located at 1540 Indian River Drive. B. LLC shall obtain the written approval of SEAFOOD and FLS prior to making any improvements to the Leased Premises and existing structures. LLC shall also obtain the written approval of SEAFOOD and FLS as to paint colors utilized prior to painting any existing or new structure on the Leased Premises, it being understood that existing natural wood surfaces that have not been painted before are not to be painted. At the end of the term of this Sublease, LLC shall deliver the premises to SEAFOOD in good repair and condition, reasonable wear and tear excepted. All installations and improvements on the Premises, except any privately-owned removable equipment shall become the property of FLS, and on termination of the Sublease Term shall be surrendered with the Leased Premises in good condition. C. All plans and specification for such renovations, improvements or construction shall be submitted in writing to SEAFOOD and FLS for approval which approval shall not be unreasonable withheld or delayed. LLC shall not install any compressor, satellite dish, air conditioning unit, or any other equipment or machinery, in or about the Leased Premises, or on the roof of the building, without the prior written consent of SEAFOOD and FLS. Any request for the same to SEAFOOD shall be accompanied by plans and specifications and the name and insurance information of the contractor who will perform the work. D. Unless otherwise expressly prohibited herein, it shall be LLC'S sole responsibility to obtain all necessary governmental approvals for its uses upon the Leased Premises, including, but not limited to all necessary development permits. It is expressly understood, and agreed by LLC, that SEAFOOD and FLS shall not be liable to LLC for any expense, loss or damage incurred by LLC resulting from the failure of any governmental entity to grant any or all necessary governmental approvals or permits required for the Leased Premises. LLC acknowledges that the Leased Premises are located within the Sebastian Community Redevelopment District and thus any change to the premises is subject to such District's authority as well as provision of Chapter 163, Florida Statutes and any future ordinances, statutes or other regulations applicable within the District. 2 DRAFT 7/29/11 6. OPERATIONAL ADHERENCE. In addition to the duties provided in this Sublease Agreement, LLC shall comply with all requirements of the Stan Mayfield Working Waterfront Grant Agreement, attached hereto as Exhibit "C", any State approved Management Plan and deed restrictions created pursuant to that grant agreement, and the terms of the underlying land leases between SEAFOOD, FLS and the OWNER. The intent and requirements of the Stan Mayfield Working Waterfront Grant Agreement and interpretations given that document by its administering agency shall take precedent over any conflicrovision of this Sublease or other document. 7. BUILDING, UTILITIES, MAINTENANCE AND REPAIRS. A. The LLC shall be responsible for the cost of installation and connection of necessary potable water, sewer, electric, natural/propane or other gas, telephone, cable, grease traps, solid waste, and information technology services to the Leased Premises beyond those being provided at the time this Sublease is executed. B. LLC and SEAFOOD agree to mutually obtain an assessment for equipment usage and to utilize the usage estimates to establish a pro-rata share of the utility bills for each. In the event that either party disagrees with the usage estimates, that party may obtain a second estimate at its expense. If the pro-rata share of utilities for LLC calculated under this second estimate is within twenty percent of the initial estimate, the two figures shall be averaged. If the parties cannot otherwise agree, the final determination of pro-rata utility charges shall be informally-arbitrated by FLS. Additionally, the parties shall each pay one half of the portion of the monthly bill for electrical service to the parking area on the west side of Indian River Drive delegated to 1540 Indian River Drive by the underlying lease with FLS. SEAFOOD shall promptly provide LLC with a copy of any utility bill and its calculation of the pro-rata share owed by LLC, and LLC shall pay the same to SEAFOOD as additional rent no less than five (5) days before the utility charge is due. C. LLC agrees that all portions of the Leased Premises shall be kept in good repair and condition by LLC. LLC shall maintain and make all necessary repairs and alterations with respect to the Leased Premises (including but not limited to necessary replacements) to keep it in good condition. LLC'S sole right of recovery shall be against its insurers for losses or damage to stock, furniture and fixtures, equipment, improvements and betterment. LLC agrees to make or contract for emergency repairs and provide protective measures necessary to protect the Leased Premises from damage and to prevent injury to persons or loss of life. LLC agrees to use its best efforts to insure that the property is maintained in an attractive condition and in a good state of repair. D. The interior and exterior of the Leased Premises shall be kept clean. It shall be LLC'S responsibility to provide and pay for maintenance services for the Leased Premises as well as the interior Common Areas shown on Exhibit"A". SEFOOD shall be responsible for providing and paying for maintenance services for the exterior Common Areas shown on Exhibit"A" 3 DRAFT 7/29/11 E. Upon issuance of a"Hurricane Warning" by the National Weather Service encompassing the Leased Premises, LLC shall promptly take protective measures including, but not limited to, putting hurricane shutters in place, and storing/securing movable items on the exterior of the Premises. 8. INSURANCE,INDEMNIFICATION AND DAMAGE BY CASUALTY. A. SEAFOOD and FLS are under contractual obligations with the OWNER as owner of the leased land for procurement and maintenance of public liability risk, fire and other casualty insurance adequate to protect against liability for any and all damage claims that may arise due to the activities on the premises during the term of this Sublease. FLS may obtain such reasonable reinsurance, additional or increased coverage as, in its sound business discretion, is necessary to adequately protect its interests. B. LLC shall pay one half of the portion of the insurance premiums as are charged to SEAFOOD by FLS and OWNER under the terms of the underlying leases, and as may be charged for any other coverage obtained under subparagraph 8(A), for the use of the Leased Premises. SEAFOOD shall annually bill and LLC shall reimburse these insurance costs as additional rent. C. It is anticipated that LLC may carry additional coverage amounts or may carry additional types of business-related insurance at its sole costs, including but not limited to business interruption coverage, coverage for service of alcohol and raw shell fish, and coverage for loss from electrical outage. D. LLC agrees to take out and maintain, during the term of this Sublease, applicable worker's compensation insurance for all its employees employed in connection with the business operated under this Sublease. Such insurance shall fully comply with the Workers Compensation Law, Chapter 440, Florida Statutes. The workers compensation insurance policy required by this Sublease shall also include Employers Liability. LLC shall provide proof of worker's compensation insurance as required by law, if applicable. E. Neither SEAFOOD, FLS nor the OWNER shall be liable for any loss, injury, death or damage to persons or property which at any time may be suffered or sustained by LLC or by any person whosoever may at any time be using or occupying or visiting the Leased Premises, or be in, on or about the same, whether such loss, injury, death or damage shall be caused by or in any way result from or arise out of any act, omission or negligence of LLC or of any occupant, subtenant, visitor or user of any portion of the Leased Premises unless affirmatively and directly caused by the intentional acts of agents of SEAFOOD. F. LLC shall indemnify SEAFOOD, FLS and OWNER against all claims, liabilities, loss or damage whatsoever on account of any such loss, injury, death or damage. LLC hereby waives all claims against SEAFOOD for damages to the improvements that are now on or hereinafter placed or built on the premises and to the property of LLC in, on or about the premises, and for injuries to persons or property on the premises, from any cause arising at any time. LLC agrees to hold harmless SEAFOOD, FLS and OWNER from and against any and all claims, lawsuits,judgments, or similar causes of action, for 4 DRAFT 7/29/11 any injuries to persons or property arising out of the activities conducted by the LLC on the property described herein. Further LLC agrees to defend SEAFOOD, FLS and OWNER against any and all such claims and suits as described above at the LLC'S sole cost and expense with no cost and expense to be incurred by SEAFOOD and FLS. 9. TAXES. LLC will be required to pay all taxes or other levies or assessments lawfully levied against the subject business during the term of the Sublease, if any, and to evenly divide any such levies or assessments that are imposed upon the property at 1540 Indian River Drive, Sebastian, with SEAFOOD. 10. LLC'S RESPONSIBILITIES. LLC, its agents, employees and invitees, when on the premises, agrees to follow and abide by all local, state and federal laws and regulations and to follow and abide by the rules and regulations of the City of Sebastian, Community Redevelopment Agency and the State of Florida FIori as may be amended from time to time. 11. INSPECTION BY SEAFOOD. SEAFOOD, FLS, OWNER and their agents, upon reasonable prior notice, may make periodic inspections of the Leased Premises to determine whether LLC is operating in compliance with the terms of this Sublease. The LLC shall be required to make any and all changes required by SEAFOOD which are necessary to ensure compliance with the terms and conditions of this Sublease and/or any applicable law(s) or regulations(s). 12. RESTRICTIONS ON ENCUMBRANCES, SUBLETTING AND ASSIGNMENT. LLC shall not mortgage, pledge, or encumber this Sublease, in whole or in part, or the leasehold estate granted under this Sublease. Any attempted mortgage, pledge, or encumbrance of this Sublease, or the leasehold estate granted under this Sublease, shall be void and may, at the sole option of SEAFOOD, be deemed an event of default under this Sublease. This covenant shall be binding on the successors in interest of LLC. LLC shall not pledge SEAFOOD'S credit or make it a guarantor for payment or surety for any contract debt, obligation, judgment, lien or any form of indebtedness. LLC warrants and represents that it has no obligation or indebtedness, which would impair its ability to fulfill the terms of this Sublease. LLC may not assign its interest in this Sublease, nor sublet any portion of the Leased Premises without the written consent of SEAFOOD, FLS and OWNER. If there shall occur any change in the ownership of and/or controlling interest in LLC, whether such change of ownership is by sale, assignment, bequest, inheritance, operation of law or otherwise, LLC shall promptly notify SEAFOOD. If SEAFOOD, FLS and OWNER do not consent in writing to such change within thirty (30) days (which consent may be withheld for any reason), SEAFOOD may terminate this Sublease upon thirty(30) days notice to LLC. 13. MISCELLANEOUS CONDITIONS. A. LLC agrees that its employees, agents, officers, and vendors engaged in activities on the Leased Premises shall be at all times subject to the LLC'S sole direction, supervision and 5 DRAFT 7/29/11 control and shall not be considered employees, agents or servants of SEAFOOD, FLS or the OWNER. B. LLC agrees to park its vehicles and those of its employees in places specifically designated in writing from time to time by SEAFOOD and further agrees that no parking will occur in landscaped areas or blocking any sidewalk or street. LLC shall prohibit commercial truck parking on the premises for any duration other than what is reasonable for loading or unloading purposes. The parties recognize that the ongoing redevelopment efforts within the Sebastian CRA may result in changes in parking as well as the configuration of vehicle parking on or adjacent to the Leased Premises. Accordingly, Exhibit `B" may be modified at times in the future within the discretion of OWNER. LLC agrees to cooperate and coordinate with SEAFOOD, FLS and OWNER in connection with parking projects and/or reconfiguration. C. LLC agrees to prohibit unauthorized persons on the Leased Premises and to prohibit trespassing on the Leased Premises by use of appropriate signage; D. LLC for itself, and its permitted successors in interest, as a part of the consideration for this Sublease, does hereby covenant and agree that: (1) No person shall be subject to discrimination in connection with LLC'S use of the Leased Premises on the basis of age, sex, physical handicap or other disability, race, color, national origin,religion or ancestry; (2) LLC shall not discriminate against any employee or applicant for employment in connection with the Leased Premises and the leasehold estate granted hereunder with respect to hiring, tenure, terms, conditions, or privileges or employment or any matter directly or indirectly related to employment on the basis of age, sex, physical handicap or other disability, race, color, religion, national origin or ancestry; and (3) LLC agrees that its facilities and program shall from at all necessary times comply with the American with Disabilities Act (ADA), if applicable. SEAFOOD and LLC recognize that hat some commercial fishing operations s ma Y not be a public accommodation, however, LLC shall cause the Leased Premises to at all times comply with all applicable ADA requirements that may be in effect from time to time. E. Except as necessary for immediate use for restaurant purposes, LLC shall not keep or permit to be kept at, in, or about the Leased Premises, any substance or material of an explosive or flammable nature in such quantities which may endanger any part of the Leased Premises. F. LLC shall not use or permit the Leased Premises to be used in any way which will injure the reputation of the same or may be a nuisance, annoyance, or inconvenience to the neighborhood, including, without limiting the generality of the foregoing, permitting loud noise by the playing of musical instruments or radios or television, or the use of microphones, loudspeakers, electrical equipment, or utilizing flashing lights or search lights, or permitting the emission of odors from the Leased Premises, any of which, in the 6 DRAFT 7/29/11 judgment of SEAFOOD or FLS, might cause disturbance, impairment, or interference with the use or enjoyment by other nearby premises. G. Upon thirty (30) calendar days written notice from FLS, LLC shall make provision for FLS to use the food service area on the east side of the building in conjunction with fundraising events held upon the Premises. This privilege may be utilized up to six times in any calendar year. Unless FLS arranges otherwise, food and beverage preparation shall be done through LLC at mutually agreeable terms. There will be no charge for use of the facilities. H. At all times the Common Areas delineated in Exhibit "A" shall be available to FLS for public use and activities in furtherance of the Stan Mayfield Working Waterfront program. G. LLC shall cooperate with SEAFOOD, FLS and OWNER in providing information and documentation as it relates to providing the Florida Communities Trust with an annual report relating to the Stan Mayfield Working Waterfront program. H. The Smoke House and cut-room, which remain under the control and use of FLS, and shall be made available for use by LLC when not needed for FLS's operations. I. SIGNS: LLC shall not place any additional signage on the exterior of the Leased Premises. LLC shall submit a drawing of any proposed interior signage within or viewable from the Common Areas to SEAFOOD for approval, and such signs shall comply with applicable governmental requirements. 14. TERMINATION. A. SEAFOOD may have the right to terminate this Sublease upon the occurrence of any of the following, hereinafter referred to as "Event of Default". (1) Institution of proceedings in voluntary bankruptcy by the LLC. (2) Institution of proceedings in involuntary bankruptcy against the LLC if such proceedings continue for a period of ninety (90) calendar days and are not dismissed. (3) Assignment of this Sublease for the benefit of creditors. (4) Abandonment by LLC of the Leased Premises or discontinuance of operation of the Leased Premises for the permitted uses for more than thirty (30) calendar days. (5) Dissolution whether voluntary or involuntary of LLC business organization. (6) Default, non-performance or other noncompliance with any covenant, requirement or other provision of any nature whatsoever under this Sublease. (7) Failure to pay rent for fifteen calendar days after it is due. 7 DRAFT 7/29/11 B. Upon the occurrence of an Event of Default, SEAFOOD shall send a written notice to LLC setting forth the Event of Default in specific detail and the date this Sublease shall terminate in the event LLC does not cure the default. C. Except for default under subparagraphs 14.A. (4) or(7) above, within thirty (30) calendar days following receipt of a default notice, LLC shall have cured the default to the reasonable satisfaction of SEAFOOD. D. In the event LLC fails to cure the Event of Default within thirty (30) calendar days, this Sublease shall be deemed to be terminated with no further action by SEAFOOD. However, there is no requirement that SEAFOOD provide said period for cure of a default under subparagraphs 14.A. (4)or(7) above. E. In no event,however, shall such termination relieve LLC of its obligation to pay any and all remaining rent due and owing to SE OOD for the period up to and including the date of termination, the remainder of at month and for up to three full months thereafter. 15. INTEGRATION. The drafting, execution and delivery of this Sublease by the parties has been induced by no representations, statements, warranties or agreements other than those expressed in it. This Sublease contains the entire agreement between the parties and there are no further or other agreements or understandings written or oral in effect between the parties relating to its subject matter. This Sublease cannot be changed or modified except by written instrument executed by all parties hereto. This Sublease and the terms and conditions hereto apply to and are binding upon the heirs, legal representatives, successors and assigns of both parties. 16. SEVERABILITY. If any term of this Sublease or the application thereof to any person or circumstances shall be determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Sublease, or the application of such term to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term of this Sublease shall be valid and enforceable to the fullest extent permitted by law. 17. PROPERTY INTERESTS. Nothing contained in this Sublease shall be deemed to create or be construed as creating in LLC any property interest in or to the Leased Premises. 18. NOTICES. All notices required under this Sublease shall be sent by certified mails as follows: SEAFOOD: Indian River Seafood, Inc., 1540 Indian River Drive Sebastian, FL 32958 LLC: Fisherman's Landing Restaurant, LLC 1540 Indian River Drive Sebastian, FL 32958 8 DRAFT 7/29/11 19. GOVERNING LAW/VENUE. This Sublease shall be governed and construed in accordance with Florida law. In the event that litigation arises involving the parties to this Agreement, venue for such litigation shall be in Indian River County, Florida. The parties hereto expressly waive trial by jury in any action to enforce or otherwise resolve any dispute arising hereunder. IN WITNESS WHEREOF, the Parties have executed this Sublease on the dates set forth above. SEAFOOD LLC Indian River Seafood, Inc., Fisherman's Landing Restaurant, LLC, a Florida corporation. a Florida limited liability company. By: Susan Andrews, President By: Debbie McManus, Managing Member 9 DRAFT 7/29/11