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HomeMy WebLinkAbout2011 06 07 Ltr to Sembler CITY OF SE • HOME OF PELICAN ISL' ND 1225 MAIN STREET• SEBASTIAN, FLS IDA 32958 TELEPHONE: (772)589-5330 • FAX(7 2)589-5570 June 7, 2011 Charlie Sembler, President Fisherman's Landing Sebastian c/o Rich Stringer PO Box 780206 Sebastian, FL 32978 Dear Mr. Sembler: Officials from the City of Sebastian have reviewed the propos;d sublease between Fisherman's Landing Sebastian and Indian River Seafood, Inc. (herein afte referred to as sublease)for use of facilities at 1540 Indian River Drive. The purpose of the sublease is to operate a fish market and provide limited food service which is in accordance with parag aph 8.B of the lease between City of Sebastian and Fisherman's Landing Sebastian, Inc. The purpose of this notice is to provide written consent to issu_nce the sublease per paragraph 15 of the lease between the City of Sebastian and Fisherman'. Landing Sebastian. Upon execution of the sublease, please provide the Office oft e City Manager a fully executed copy of the sublease, with all exhibits. Should you have any q estions concerning this matter, please contact me at your earliest convenience. Raspe, Ify, Jr 1 ,- C' y Manager Cc: Members of the Sebastian City Council Sally Maio, City Clerk Robert Ginsburg, City Attorney '7(-4/ LEASE BETWEEN FISHERMAN'S LANDING SEBASTIAN,INC. AND INDIAN RIVER SEAFOOD,INC. A LEASE m.a: this day of June, 2011, between FISHERMAN'S LANDING SEBASTIAN, who : address is 1532 Indian River Drive, Sebastian, FL 32958, hereinafter referred to as the "L SOR" and INDIAN RIVER SEAFOOD, INC., a Florida corporation whose address is 1540 Aim dian River Drive, Sebastian, FL 32958, hereinafter referred to as the "LESSEE",provides WITNESSETH: WHEREAS, the LESSOR ho s the leasehold to certain real property owned by the City of Sebastian, hereinafter referred to . the "OWNER", and is authorized to sublease portions of such land to businesses for the purp se of promoting lawful business activity in accordance with the Stan Mayfield Working Waterfro program; and WHEREAS,LESSEE is a Florida co .'any furthering the revitalization of Sebastian's Working Waterfront with activities benefitting loc: commercial fishermen and aquaculture; and WHEREAS, the property will be subje4. to a Declaration of Restrictive Covenants and a management plan under the requirements of e Stan Mayfield Working Waterfront Grant; and WHEREAS, LESSEE has applied to LESSO' for a sublease of certain portions of the upland real estate held by LESSOR; and WHEREAS, LESSOR has determined that the re italization and preservation of the Sebastian Working Waterfront will be promoted by the busines activities of LESSEE; and WHEREAS,LESSOR desires to lease such property t• LESSEE for these purposes; NOW THEREFORE, in consideration of the foregoin; and in further consideration of the mutual covenants contained herein,the parties agree as folio s: 1. PREMISES. LESSOR hereby leases unto LESSEE the eased Premises located at 1540 Indian River Drive as legally described in Exhibit "A" attached +ereto and incorporated herein. A site plan is attached hereto as Exhibit"B". Parking spaces are sh,wn on Exhibit"C". 2. PURPOSE. The LESSEE shall use the Leased Premises for an lawful business activities which are in furtherance of and compliant with the Stan Mayfield Wor g Waterfront program. 3. TERM. LESSOR leases to the LESSEE the above premises for a to a' commencing on the date a Certificate of Occupancy is issued for the LESSOR improvements currently underway, and terminating at the end of the initial ten-year lease term for the underlyin lease between the OWNER and LESSOR,unless extended by mutual written agreement of the p: ies. 4. RENT. LESSEE shall pay a base rent of$3,000 per month to the LESS• ' . Said rental amount may be reduced upon subletting portions thereof as set forth in Paragrap' 12. Payment shall be made on the first day of each month for said month. If the full amount of re s, is not paid by the fifth day of the month, a late fee in the amount of twenty dollars ($20.00) sh. be added as additional rent on the sixth and for each day thereafter until rent is paid in full. 6 , 11 DRAFT 5. IMPROVEMENTS. The Leased Premises are accepted by the LESSEE "as is". A. As an Economic Development component of the Stan Mayfield Working Waterfront Grant, LESSEE agrees to solicit and oversee additional ancillary business operations that will be located at 1540 Indian River Drive. Enterprises that may be located in 1540 Indian River Drive will support commercial fishing operations and may include: (1) Ice Depot; (2) Fish Market, with limited seating for food and beverage service, including beer and wine service if licensed in conjunction with the food service use; (3) Hosting of community events and demonstrations educating and celebrating the contribution,history and heritage of Sebastian's commercial fishing industry; (4) Smoke House and Seafood Operations; and (5) Other ancillary business/activities as approved by the LESSOR in accordance with its operational guidelines and restrictions. B. LESSEE shall obtain the written approval of LESSOR prior to making any improvements to existing structures or placing new structures on the Leased Premises. LESSEE shall also obtain the written approval of LESSOR 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 Lease, LESSEE shall deliver the premises to LESSOR 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 LESSOR, and on termination of the Lease 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 the LESSOR for approval which approval shall not be unreasonable withheld or delayed. D. Unless otherwise expressly prohibited herein, it shall be LESSEE'S sole responsibility to obtain all necessary governmental approvals for the Leased Premises, including, but not limited to all necessary development permits. It is expressly understood, and agreed by LESSEE, that LESSOR shall not be liable to LESSEE for any expense, loss or damage incurred by LESSEE resulting from the failure of any governmental entity to grant any or all necessary governmental approvals or permits required for the Leased Premises. LESSEE 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. E. All structures and fixtures to be constructed upon the Leased Premises shall be owned by LESSEE during the term of the Lease and shall be exclusively controlled by LESSEE. However, upon expiration, termination, revocation or surrender of this Lease, LESSOR shall become owner of all structures, fixtures and improvements. LESSEE agrees to execute bills of sale, documents of conveyance and assignments of warranties upon request. However, this provision does not apply to display cases, reach-in refrigerator/freezer units or other portable equipment purchased by LESSEE. 6. OPERATIONAL ADHERENCE. In addition to the duties provided in this Lease Agreement, LESSEE shall comply with all requirements of the Stan Mayfield Working Waterfront Grant Agreement, attached hereto as Exhibit "D", any State approved Management Plan and deed restrictions created pursuant to that grant agreement, and the terms of the underlying land lease between LESSOR 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 conflict provision of this Lease or other document. 7. BUILDING,UTILITIES,MAINTENANCE AND REPAIRS. A. The LESSEE shall be responsible for the cost of installation, connection and usage of potable water, sewer, electric, natural/propane or other gas, telephone, cable, necessary grease traps, solid waste, and information technology services to the Leased Premises, as well as electrical service to the parking area on the west side of Indian River Drive, throughout the term of this Lease. B. LESSEE agrees that all portions of the Leased Premises shall be kept in good repair and condition by LESSEE. LESSEE 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. LESSEE'S sole right of recovery shall be against its insurers for losses or damage to stock, furniture and fixtures, equipment, improvements and betterment. LESSEE 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. LESSEE agrees to use its best efforts to insure that the property is maintained in an attractive condition and in a good state of repair. LESSEE shall also keep the Leased Premises, as well as the parking area on the west side of Indian River Drive and the fish pond, free of trash and debris, including but not limited to the sidewalks, decks, docks, children's Cast-a-way tree house and stairs,boardwalk,porches, and dog fountain. C. The interior and exterior of the Leased Premises shall be kept clean. It shall be LESSEE'S responsibility to provide and pay for landscaping and exterior maintenance services. LESSEE shall be responsible for operating the irrigation system in a manner that keeps the landscaping sufficiently watered. D. Upon issuance of a"Hurricane Warning"by the National Weather Service encompassing the Leased Premises,LESSEE shall promptly take protective measures including, but not limited to, putting hurricane shutters in place, storing/securing movable items on the exterior of the Premises, and securing the docks in accordance with accepted practices. 8. INSURANCE,INDEMNIFICATION AND DAMAGE BY CASUALTY. A. LESSOR is 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 Lease. LESSOR may obtain such reasonable reinsurance, additional or increased coverage as, in its sound business discretion, is necessary to adequately protect its interests. B. LESSEE shall pay the portion of the insurance premiums as are charged to LESSOR by OWNER and are charged for any other coverage obtained under subparagraph 8(A), for the use of the Leased Premises. LESSOR shall annually bill and LESSEE shall reimburse these insurance costs. C. It is anticipated that LESSEE 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. LESSEE agrees to take out and maintain, during the term of this Lease, applicable worker's compensation insurance for all its employees employed in connection with the business operated under this Lease. Such insurance shall fully comply with the Workers Compensation Law, Chapter 440, Florida Statutes. The workers compensation insurance policy required by this Lease shall also include Employers Liability. LESSEE shall provide proof of worker's compensation insurance as required by law, if applicable. E. Neither LESSOR 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 LESSEE or by any person whosoever may at any time be using or occupying or visiting the Lease 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 LESSEE 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 LESSOR. F. LESSEE shall indemnify LESSOR and OWNER against all claims, liabilities, loss or damage whatsoever on account of any such loss, injury, death or damage. LESSEE hereby waives all claims against LESSOR for damages to the improvements that are now on or hereinafter placed or built on the premises and to the property of LESSEE in, on or about the premises, and for injuries to persons or property on the premises, from any cause arising at any time. LESSEE agrees to hold harmless LESSOR and OWNER from and against any and all claims, lawsuits,judgments, or similar causes of action, for any injuries to persons or property arising out of the activities conducted by the LESSEE on the property described herein. Further LESSEE agrees to defend LESSOR and OWNER against any and all such claims and suits as described above at the LESSEE'S sole cost and expense with no cost and expense to be incurred by the LESSOR. 9. TAXES. LESSEE will be required to pay all taxes or other levies or assessments lawfully levied against the subject business during the term of the Lease, if any. 10. LESSEE'S RESPONSIBILITIES. LESSEE, 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 as maybe amended from time to time. 11. INSPECTION BY LESSOR. The LESSOR and its agents, upon reasonable prior notice, may make periodic inspections of the Leased Premises to determine whether LESSEE is operating in compliance with the terms of this Lease. The LESSEE shall be required to make any and all changes required by the LESSOR, which are necessary to ensure compliance with the terms and conditions of this Lease and/or any applicable law(s) or regulations(s). 12. RESTRICTIONS ON ENCUMBRANCES AND ASSIGNMENT. LESSEE shall not mortgage, pledge, or encumber this Lease, in whole or in part, or the leasehold estate granted under this Lease. Any attempted mortgage, pledge, or encumbrance of this Lease, or the leasehold estate granted under this Lease, shall be void and may, at the sole option of the LESSOR, be deemed an event of default under this Lease. This covenant shall be binding on the successors in interest of LESSEE. LESSEE shall not pledge the LESSOR'S credit or make it a guarantor for payment or surety for any contract debt, obligation, judgment, lien or any form of indebtedness. LESSEE warrants and represents that it has no obligation or indebtedness, which would impair its ability to fulfill the terms of this Lease. It is anticipated between the parties that LESSEE shall solicit subtenants for ancillary business furthering the goals of the Stan Mayfield Working Waterfront program. However,LESSEE shall not assign this Lease or sublet the Leased Premises to any other party without the prior express written approval of LESSOR which shall not be unreasonably withheld, conditioned or delayed. Any attempt to assign this Lease or sublet the premises without the prior express written approval of LESSEE will constitute an automatic termination of this Lease. This covenant shall be binding on the successors in interest of LESSEE. Rents collected from subleases shall be to the benefit of both LESSOR and LESSEE. LESSEE shall be entitled to a pro-rata reduction of its base rent upon approval of any such sublease by LESSOR, said reduction to be calculated as follows: The pro-rata reduction shall be based the number of square feet sublet multiplied by an adjusted square footage rate,which shall be the average between a) The lease amount charged the new tenant per square foot in the sublease, and b) The lease amount charged LESSEE hereunder for each square foot of Total Usable Area, which amount shall be stipulated in writing between the parties upon completion of LESSOR's improvements. In the event that the rental rate per square foot for the sublet area is less than the rate paid hereunder by LESSEE, then the rental amount to be paid by LESSEE shall be reduced dollar-for-dollar by the amount paid and collected under the Sublease. It is expressly understood between the parties that this rent reduction provision only applies to permanent subtenants, and will not be applicable to use of the Leased Premises for fund-raiser, special events, seminars and classes held at the facility. 13. MISCELLANEOUS CONDITIONS. A. LESSEE agrees that its employees, agents, officers, vendors and subtenants engaged in activities on the Leased Premises shall be at all times subject to the LESSEE'S sole direction, supervision and control and shall not be considered employees, agents or servants of the LESSOR or the OWNER. B. LESSEE agrees to park its vehicles in places specifically designated in writing from time to time by the LESSOR and further agrees that no parking will occur in landscaped areas or blocking any sidewalk or street. LESSEE 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 "C" may be modified at times in the future within the discretion of the property owner. LESSEE agrees to cooperate and coordinate with LESSOR and OWNER in connection with parking projects and/or reconfiguration. C. LESSEE agrees to prohibit unauthorized persons on the Leased Premises and to prohibit trespassing on the Leased Premises by use of appropriate signage. D. LESSEE for itself, and its permitted successors in interest, as a part of the consideration for this Lease, does hereby covenant and agree that: (1) No person shall be subject to discrimination in connection with LESSEE'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) LESSEE 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) LESSEE agrees that its facilities and program shall from at all necessary times comply with the American with Disabilities Act (ADA), if applicable. LESSOR and LESSEE recognize that some commercial fishing operations may not be a public accommodation, however, LESSEE 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. Upon thirty (30) calendar days written notice from LESSOR, LESSEE shall make provision for LESSOR 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 LESSOR arranges otherwise, food and beverage preparation shall be done through the food service vendor operating on-site at mutually agreeable terms. There will be no charge for use of the facilities. F. At all times the Common Areas delineated in Exhibit "B" shall be available to LESSOR for public use and activities in furtherance of the Stan Mayfield Working Waterfront program. G. LESSEE shall cooperate with LESSOR 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 LESSOR, and shall be made available for use by LESSEE when not needed for LESSOR's operations. I. LESSOR shall reimburse LESSEE fifty dollars ($50.00) per month for co-use of dumpster service by LESSOR, as well as half the monthly electric service charge for the property on the west side of Indian River Drive. LESSEE shall submit a copy of the electric bill along with proof of payment each month in order to receive this payment and, for clarity of accounting, said reimbursement shall be made by separate check. 14. TERMINATION. A. The LESSOR may have the right to terminate this Lease upon the occurrence of any of the following,hereinafter referred to as"Event of Default". (1) Institution of proceedings in voluntary bankruptcy by the LESSEE. (2) Institution of proceedings in involuntary bankruptcy against the LESSEE if such proceedings continue for a period of ninety (90) calendar days and are not dismissed. (3) Assignment of this Lease for the benefit of creditors. (4) Abandonment by LESSEE of the Leased Premises or discontinue of operation of the Leased Premises to the permitted uses for more than thirty (30) calendar days. (5) Dissolution whether voluntary or involuntary of LESSEE business organization. (6) Default, non-performance or other noncompliance with any covenant, requirement or other provision of any nature whatsoever under this Lease. (7) Failure to pay rent for fifteen calendar days after it is due. B. Upon the occurrence of an Event of Default, the LESSOR shall send a written notice to LESSEE, setting forth the Event of Default in specific detail and the date this Lease shall terminate in the event LESSEE 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, LESSEE shall have cured the default to the reasonable satisfaction of the LESSOR. D. In the event LESSEE fails to cure the Event of Default within thirty (30) calendar days, this Lease shall be deemed to be terminated with no further action by the LESSOR. However, there is no requirement that LESSOR 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 LESSEE of its obligation to pay any and all remaining rent due and owing to the LESSOR for the period up to and including the date of termination, the remainder of that month and for up to three full months thereafter. F. LESSEE shall have the right, upon providing ninety (90) calendar days prior written notice to the LESSOR in the manner set forth below, to terminate this Lease for any reason. 15. INTEGRATION. The drafting, execution and delivery of this Lease by the parties has been induced by no representations, statements, warranties or agreements other than those expressed in it. This Lease 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 Lease cannot be changed or modified except by written instrument executed Electronic Articles of Incorporation P L. 80052034 For June 02 22011 Sec. Of State jshivers INDIAN RIVER SEAFOOD INC The undersigned incorporator, for the purpose of forming a Florida profit corporation, hereby adopts the following Articles of Incorporation: Article I The name of the corporation is: INDIAN RIVER SEAFOOD INC Article II The principal place of business address: 1540 INDIAN RIVER DR SEBASTIAN, FL. 32958 The mailing address of the corporation is: 1540 INDIAN RIVER DR SEBASTIAN, FL. 32958 Article III The purpose for which this corporation is organized is: ANY AND ALL LAWFUL BUSINESS. Article IV The number of shares the corporation is authorized to issue is: 1000 Article V The name and Florida street address of the registered agent is: SUSAN ANDREWS 1540 INDIAN RIVER DR SEBASTIAN, FL. 32958 I certify that I am familiar with and accept the responsibilities of registered agent. Registered Agent Signature: SUSAN ANDREWS P11000052034 FILED 2 Article VI June 01_2011 state The name and address of the incorporator is: jshivers SUSAN ANDREWS 1540 INDIAN RIVER DR SEBASTIAN FLORIDA 32958 Electronic Signature of Incorporator: SUSAN ANDREWS I am the incorporator submitting these Articles of Incorporation and affirm that the facts stated herein are true. I am aware that false information submitted in a document to the Department of State constitutes a third degree felony as provided for in s.817.155, F.S. I understand the requirement to file an annual report between January 1st and May 1st in the calendar year following formation of this corporation and every year thereafter to maintain"active" status. Article VII The initial officer(s) and/or director(s)of the corporation is/are: Title: DPST SUSAN ANDREWS 1540 INDIAN RIVER DR SEBASTIAN, FL. 32958 Title: DVP WILLIAM '1'1EDGE 1540 INDIAN RIVER DR SEBASTIAN, FL. 32958 Article VIII The effective date for this corporation shall be: 06/02/2011