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Home My WebLink About2011 09 02 Ltr from Stringer • THE STRINGER FIRM, CHARTERED A FLORIDA LAW FIRM P.O.Box 780206 Telephone: (772)581-0361 Sebastian,FL 32978-0206 E-mail: TheStringerFirm ' aol.com September 2, 2011 Al Minner, Sebastian City Manager 1225 Main Street Sebastian, FL 32958 Re: City Lease with Fisherman's Landing of Sebastian, Inc.; Food Service Compliance Dear Al: You have expressed concerns with the use of a portion of the Fisherman's Landing premises for food service. There has long been a tendency within our City to pass judgment on a project before it is complete. For example, many times I have heard one board or another for the City criticize the lack of trees at a development and declare that it was not in compliance with the project requirements when, in fact, the landscaping portion of that project had not yet been undertaken. There are elements of such reactive short-sightedness in the current situation. The food service operations at Fisherman's Landing are, in accordance with the subleases, to be "ancillary to and in furtherance of the Stan Mayfield Working Waterfront program" and "will complement the revitalization of Sebastian's Working Waterfront and those activities benefitting local commercial fishermen and aquaculture". The nature of the complaints seems to be that the current operations of the food service appear to be the predominant use of the Working Waterfront Project. It must be kept in mind that only the first phase of the Project, encompassing rehabilitation of a single building and construction of a small smokehouse, has been completed. There are three remaining phases requiring, among other things, total reconstruction of the Fish House, construction of two new buildings for a Hatchery and an Ice House, as well as a number of open-air improvements to the exterior of the site such as the "Touch Pond", interconnecting decks across the site, and final landscaping. Additionally, the museum aspect of the Project is still in the works. Artifacts have and will continue to be collected from the pioneering fishing families of the community and permanent displays will be put in place throughout the portions of the Premises designated as "Common Area" and, as space allows, within the subleased areas as well. Obtaining authentic artifacts, rather than replicas,takes time and the timelines for completion of this aspect of the Project have not yet passed. Rather than beginning operations with blank walls and empty spaces, however, the Project presents a better image to the public with activities throughout. The final product should not be judged by such stop-gap measures. From the beginning it has been openly stated that, as a logical means of providing an on-going funding mechanism for the massive undertaking represented by this building program, the commercial aspects of the Project would be implemented first. There is no question that the seafood market is an economic activity "benefitting local commercial fishermen and aquaculture". The food service features this locally-caught seafood and actively promotes the market as the source of its product. While the total area leased to the seafood market and the food service vendor is roughly equal in size, some have expressed a personal opinion that the food service is much more intense than the other uses, and the Working Waterfront Project has become little more than a City-subsidized "restaurant development". There are two fallacies with this thinking. First, it is impossible for the food service to be ancillary to the "pure" Working Waterfront uses until those portions of the Project are built and come into operation. Even without the vast majority of the Project being complete, there are currently three other uses on the site: the aquaculture operations, the fish docks, and the seafood market. The food service utilizes and promotes the end product from these operations, thus being "in furtherance of' and a "compliment" to these operations. More importantly, the food service, besides funding the remaining elements of the Working Waterfront Project, is intended to be an attraction to draw people to the Project so they can be exposed to many aspects of the City's historic fishing industry and be educated as to the importance of such water-based industries to the economy of our state. Secondly, those who complain that the City is subsidizing a restaurant to unfairly compete with free enterprise operations that are burdened by rent and other expenses completely misconstrue the relationship between the parties. The City and Fisherman's Landing of Sebastian, Inc., (FLS) are in a public-private partnership with the mutual objective of promoting the Working Waterfront Program within Sebastian's Waterfront District. The City obtained state funding to purchase the site, and has provided FLS with a limited amount of funding to undertake the first phase of the Project. FLS pours all funds generated by the operations of the Project's first and subsequent phases back into the continued development of this City-owned property. The vendors operating within the Project (such as the food service vendor) pay rent and have operating expenses like every other business. The money generated by this rent is the funding source for the remaining phases of the Working Waterfront Project. FLS does not make a profit gP g from these activities. The vendors do not get anything subsidized by the public. Because FLS has undertaken management of the development, in the end the City owns a prototype Working Waterfront Project worth significantly more than the public funds it has invested. While this process may result in more business getting a piece of the "pie", it has been accepted that the Project expands the overall size of this"pie". Beyond these "big picture" considerations, there have been concerns expressed over various operational features of the food service. Please keep in mind that this aspect of the Project is just completing its first week of service. With any business, the first week requires flexibility to address unanticipated demands, opportunities and issues that require adaptation and nuanced adjustments. We are working with our tenants to identify areas where reasonable modifications in their operations help everyone involved meet our goals and fulfill the objectives of the Working Waterfront Project. FLS will continue with this process and will keep you abreast of its progress in these regards. As a final matter, one thing must be noted going forward. It is the obligation of FLS to comply with its obligations to the City as a partner in the Working Waterfront Project. The City's contract is with FLS. The vendors have a contract with FLS and have no privity or legal relationship with the City. If there are issues involving the activities of a vendor, other than regulatory concerns that apply to all businesses within the jurisdiction, it is not appropriate for the City to address these matters directly with the vendor. Address these matters with FLS. If such"legal niceties"of contract law are ignored, and the vendors are getting directives from two "landlords", the potential for confusion greatly increases along with the potential liability of the City in a number of areas, including a claim for intentional interference with a contractual relationship. I am well aware of the pressures that government usually faces to be reactive and "do something" about perceived problems. Sometimes, however, patience and calm reflection will reveal that the situation is not as problematic as first perceived, or that a knee-jerk "solution" is much worse than the ill it was meant to cure. With that in mind, please take time, as FLS will, to look at the big picture and work towards fulfilling the mutual goals that brought the parties together for the Project. You will hear from me shortly to arrange a time to discuss our progress in advancing the Project and in fulfilling the intent of the Working Waterfront program. Res ectfully, r- 1 i Rich Stringer 4110 The Stringer Firm, Chartered Cc: City Council City Attorney City Clerk