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Palm Coast Tuesday, May 19, 2020 6 months ago

County, Captain's BBQ reach tentative agreement over restaurant's use of Bings Landing property

If the County Commission votes during a future meeting to approve the agreement, the restaurant's lawsuit against the county will not proceed to a jury trial.
by: Jonathan Simmons News Editor

Almost a year after the county government and Captain's BBQ entered mediation over the restaurant's use of county-owned Bings Landing park, the county and the restaurant have reached a tentative agreement that would keep the restaurant in its current building in the park, with the county performing some renovations.

"This benefits the longevity of this building in the county’s interest, but also in the interest of the tenant, Captain's BBQ." 


— AL HADEED, Flagler County attorney

The County Commission indicated its approval of the agreement May 18, and will vote on it at a future meeting. 

"You know what's going to happen as we get closer to the final decision — there will be some squabbling from the local people out there," County Commission Chairman David Sullivan said. "But that’s OK; we’ll get through that.”

By approving the agreement, the county would avoid a potential jury trial.

The restaurant had sued the county for breach of contract after the commission in November 2018 voted 3-2 to approve — then two weeks later, after a new commissioner was seated, decided to cancel — a new lease that would have allowed the restaurant to build a larger building at a different location within the park.

The proposal for a new building had developed after county staff found structural problems with existing county-owned building. The county had a contractual obligation to maintain the building for the restaurant's use, and judged the problems too costly to repair.

Captain's was not interested in constructing a new building in the exact same location because that would have meant closing the restaurant and losing revenue during the construction process.

But the new restaurant building Captain's proposed engendered protest from locals who said the structure would overwhelm the park, and that the restaurant had been paying far too little to lease the property. When the county reversed its vote on the lease, it proposed keeping Captain's in its existing building, as the protesters had wanted, and completing repairs. 

The arrangement produced by mediation and presented to the County Commission at its May 18 meeting would do that, but also includes a commitment from the county to relocate and modify the building's bathrooms, enclose its exterior patio, install removable windows and allow the restaurant to add propane gas tanks, County Attorney Al Hadeed said during the meeting.

"This benefits the longevity of this building in the county’s interest, but also in the interest of the tenant, Captain's BBQ," Hadeed said. 

The county would also reimburse Captain's BBQ for up to $50,000 for money the restaurant spent, with verified invoices, on architectural design and engineering for the proposed new building that it will not be able to construct.

Renovations of the existing building would be conducted during non-business hours as much as possible, but the restaurant would also close for two weeks for the construction process, Hadeed said.

Captain's would be permitted to book the park's pavilion to cater special events there, using the county's online booking system just like any other entity, Hadeed said.

Captain's would agree to consider the November 2018 lease null and void and not to make a claim for lost profits from the two-week closure.

Going forward, Captain's would pay the initial $2,000 for any exterior structure repairs in the existing building, and the county would cover the rest. The proposed new lease contains the same renewal terms as the November 2018 lease, but adds built-in increases to gradually bring it up to market rate.

The county would also begin to meter Captain's BBQ's water use separately from the rest of the park, Hadeed said. 

Under the proposed agreement, if the building were ever damaged beyond 50% of its value, the county could opt not to repair it, Hadeed said. Captain's would have the option to build a new building on the same site. 




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