Update: On Monday, the county attorney issued an updated proposed agreement that dropped Captain’s right of first use of the pavilion to just six holidays, not 18 weeks, while the restaurant would have to go through the usual county reservation system for the rest of the year.
A long-awaited proposed settlement agreement, the result of mediation between Flagler County government lawyers and Captain BBQ at Bing’s landing, goes before county commissioners Monday for their approval.
The settlement is remarkably generous to Captain’s, and in key parts even more generous than the controversial 2018 lease amendment the county eventually killed under pressure from a public backlash. If precedent is any indication in the Captain’s saga, nothing says commissioners’ agreement is assured, nor does it appear to have the county administrator’s backing.
“Because of the manner in which it addresses critical issues to the County, the final offer constitutes impasse in the mediation in the County Administrator’s judgment,” the administrative memo attached to the proposed settlement states.
Captain’s sued the county just over a year ago claiming breach of contract. Captain’s did so after commissioners reversed themselves after they’d agreed to a new lease with Captain’s in November 2018. That new lease would have allowed the restaurant to build a new, bigger structure closer to the middle of the popular park on the Intracoastal in the Hammock. Restaurant owners would have built it at their expense. But the larger footprint, the new location and generous county discounts on rent for the first five years, among other issues, triggered an angry backlash from Hammock residents and others and months of controversy and protests.
The commission rescinded the 2018 lease on June 3, 2019. Captain’s sued on June 7. The two sides participated in a mediation conference in February 2020. The county commission and its attorney discussed the mediation in a closed-door meeting on July 2, and County Administrator Jerry Cameron further negotiated with Captain’s representatives after that meeting.
“As a result of these efforts, the Parties have reached an agreement that will avoid the risk and expense of prolonged litigation,” the proposed settlement states.
The proposal calls for a series of commitments by the county and little in return from Captain’s other than running the restaurant, with exclusive rights on food sales at Bing’s and several other benefits.
The county’s commitment includes payment of up to $50,000 to reimburse Captain’s for the design and other costly work it did in advance of its previously planned building, assuming Captain’s can document the expenses.
The proposed agreement sets the new rent at at $1,500 a month starting in 2026, when the current lease, signed in 2011, expires, though the 2018 lease had foreseen a monthly rent of $4,000 starting in 2026 (it would have locked in a $1,000-a-month rent until then), with 3 percent annual increases. The proposed agreement sets forth nowhere near that kind of rent until 2041, and even then, it’ll be $3,500 a month.
The 2011 lease called for $500 a month rent, with increases of $40 a month at each annual anniversary, making today’s rent about $860 a month. (See the 2011 lease here.)
The proposed agreement allows four four five-year renewals of the lease, with rent rising to $1,750 a month in 2031, $2,500 five years later, and $3,500 by 2041. The proposal makes no provisions for inflation, no 3 percent a year adjustments.
Captain’s will be permitted to sell alcoholic drinks, and it will have exclusive rights to sell food at Bing’s, while Captain’s will have the right to sell or assign all its interests to a third party for the duration of the lease–without the county’s consent.
The county will also be repairing and renovating the existing building at its own expense through a top-down makeover: the county would be relocating and upgrading the bathroom, allowing Captain’s to install propane tanks at the south end of the building, enclosing the exterior patio (which in effect will enlarge the restaurant’s indoor dining area) and repair the heating and air system. The county will be exclusively responsible for maintaining Captain’s septic system, though it may also connect the business to a central sewer system in the future should that become available.
In future the county will be responsible for all repairs and maintenance of the building, including all replacement costs for foundations, wall sidings, the roof and so on. If the building is somehow destroyed, or more than half the structure loses its value because of a fire or a disaster, the county must rebuild it immediately, at its own expense, limiting business interruptions. Starting in 2026, the county will have to carry out all interior and exterior repairs that cost more than $2,000 and “periodically paint the exterior,” with Captain’s alerting the county to any needed repairs.
The 2018 lease had called for Captain’s to be solely responsible for maintenance of the new building it was to build, except for landscaping.
Before the 2018 controversy, Captain’s had frequently boasted of having itself spent some $300,000 “for improvements to the original location.”
The county would have to renovate the parking area and ensure that all parking spaces are preserved while maintaining the restaurant’s surrounding areas “consistent with its overall maintenance obligations of the park.”
Construction would begin within two weeks of the agreement’s approval. Captain’s during construction requiring closure of the building itself would get exclusive use of one of the pavilions in the park. Otherwise, the county would perform the work outside of business hours.
Captain’s will get additional perks: “Captain’s BBQ shall, at no cost, have the first right of priority to use the covered pavilion located south of the Existing Building for 18 weeks per year, beginning at 6:00 a.m. on Monday and ending at 9:00 p.m. on Sunday, and may, at no cost, have additional exclusive use of the pavilion for six holidays,” the agreement states, those periods being “the months of May, June, July, August and the first week of September as well as Memorial Day, July 4th, Labor Day, Easter, Mothers Date and Father’s Day.”
That doesn’t preclude members of the public from at least applying to use the pavilion during Captain’s time, but at that point, it’ll be Captain’s decision whether to allow the public to use it or not, in essence making Captain’s the de facto landlord of the pavilion for 18 weeks a year and those holidays. And if Captain’s does grant the use of the pavilion during the period when it controls it, then it will be credited additional days outside of that period.
The county commission holds an in-person meeting at the Government Services Building, 1769 East Moody Boulevard, Bunnell, Monday at 9 a.m. The proposed settlement agreement is on the agenda for the commission’s action.