NON-BINDING TERM SHEET FOR OMNIBUS AGREEMENT FOR SCIENCE EDUCATION AQUARIUM PROJECT BETWEEN MOTE MARINE LABORATORY, INC. AND SARASOTA COUNTY, FLORIDA

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1 NON-BINDING TERM SHEET FOR OMNIBUS AGREEMENT FOR SCIENCE EDUCATION AQUARIUM PROJECT BETWEEN MOTE MARINE LABORATORY, INC. AND SARASOTA COUNTY, FLORIDA THIS NON-BINDING TERM SHEET (the Term Sheet ) sets forth the basic terms and conditions of an omnibus agreement for proposed transactions (the Agreement ) between MOTE MARINE LABORATORY, INC., a Florida corporation not-for-profit ( Mote ) and SARASOTA COUNTY, FLORIDA, a political subdivision of the State of Florida (the County ) related to that certain real property located in Sarasota County, Florida, as graphically described in Exhibit A (the Property ). This Term Sheet is not a formal or legally binding document. Only a formal agreement, approved by legal counsel for the parties and signed by County and Mote, will be legally binding. BACKGROUND A. Mote is a world-class marine research institute headquartered in Sarasota, Florida. It is a tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code. Mote presently operates an aquarium in conjunction with its research laboratories and other facilities on it primary campus in the City of Sarasota, Florida. B. The County owns the Property. The Property is currently vacant, but it is utilized in major part for a surface water management and retention facility for Cattlemen Road, DeSoto Road, Nathan Benderson Park, and the University Town Center ( UTC ) that was developed and in part owned by affiliates of Benderson Development ( Benderson ), and part of it is a portion of the lake that connects to the rowing facility operated by the Suncoast Aquatic Nature Center Associates, Inc., a Florida corporation not-for-profit ( SANCA ) at Nathan Benderson Park. C. Mote proposes to construct a new state-of-the-art science education aquarium (the Aquarium ) on the Property. A copy of the draft conceptual plan for the Aquarium is attached as Exhibit B (the Concept Plan ). The Aquarium will be open to the public. Programs will be available for learning about the marine environment by students and the general public. In addition to providing a public science, technology and engineering education and workforce development function, the Aquarium will also be integrated with Mote s scientific research mission. D. Mote and the County acknowledge that the Sarasota County Zoning Code (the Code ) currently allows for the Aquarium as a permitted use in the Government Use (GU) zoning district if the Property is leased to Mote, and if Mote owns the Property, the Property would need to be zoned to an appropriate zoning district that allows the Aquarium as a permitted use. Accordingly, once the required pre-conditions have been satisfied and Mote s due diligence is complete, Mote and the County wish to make a short-term, two (2) year lease arrangement so that Mote will apply for the required land use and zoning changes to authorize Mote to own and develop 1

2 the Aquarium. In the event the land use/zoning changes are approved and become final and binding, the County shall convey the Property to Mote. However, if the land use/zoning changes are not approved by the Board of County Commissioners (the Board ), the County shall then convert the short-term lease into a long-term lease to allow Mote to construct and operate the Aquarium on the Property. E. The Board has determined that it would be in the best interest of the County and its citizens to execute an Agreement consistent with this term sheet, in accordance with Section , Florida Statutes. Mote and the County wish to set forth in this Non-Binding Term Sheet the basic provisions of the Agreement so that Mote may own, construct, maintain and operate the Aquarium on the Property. Mote and the County anticipate that if this Term Sheet is approved by them, a draft of legally binding documents will be prepared as soon as practicable thereafter. The preparation of those documents shall be the combined responsibility of the County Attorney and Mote s counsel. When the documents are mutually acceptable to the County Attorney and Mote s counsel, and have been approved by Mote, they will be submitted for consideration to the Board. The parties agree to use their best efforts to present to the Board a proposed Agreement on or before its January 30, 2019 Meeting. TERMS The significant terms of the proposed transaction are as follows. The parties anticipate that these terms will be included with an overall Agreement that is legally binding on Mote and the County. 1. Preliminary Items. Prior to entering into the Agreement, Mote shall provide the County with a Site Plan that includes preliminary boundaries, the existing condition of the Property, the proposed improvements, designated parking and access points. In order for the County to assess the parking requirements, Mote shall also provide a parking study/analysis with narrative showing the number of parking spots that are necessary and the location of the required parking spots. 2. Conditions Precedent and Due Diligence Phase. The Agreement will provide for a due diligence phase, which includes the following (this phase of the Agreement shall be called the Due Diligence Phase ): a. The legal description(s) for the Property, as well as for any necessary easements relating to use of the Property, shall be created by Mote, at Mote s cost and expense. b. Mote must demonstrate to the County s satisfaction that certain conditions are met before the short-term lease commences, including but not limited to modifying existing agreements and/or obtaining rights on the Property and easements surrounding the Property from: i. SANCA 2

3 ii. Benderson iii. Florida Power & Light iv. The County v. Any other parties that have rights associated with the use of the Property c. Mote will have legal access to the Property to conduct due diligence on the Property, including but not limited to the following (collectively, the Due Diligence Activities ): i. Title; and necessary. ii. iii. iv. Survey; Environmental and geotechnical testing and investigation; Any other investigations that Mote reasonably deems d. Mote shall pay for all the Due Diligence Activities, the scope of which will be included in the Agreement; however, it is in Mote s sole and absolute discretion to conduct the Due Diligence Activities. e. Mote shall carry insurance, at a limit approved by the County s Risk Management Department, while conducting the Due Diligence Activities. f. Satisfying the conditions precedent and completing the Due Diligence Activities shall be finalized prior to the subsequent Phases of the Agreement. g. The Conditions Precedent and Due Diligence Phase shall commence upon the execution of the Agreement and expire six (6) months thereafter. Mote shall have the right to extend the Conditions Precedent and Due Diligence Phase for one (1) additional six-month term by giving written notice to the County. 3. Short-Term Lease Phase. Upon Mote s notification to the County and the County agreeing that the conditions precedent have been satisfied and the Due Diligence Activities have been completed, the County shall automatically commence a short-term lease (the Short- Term Lease ) of the Property to Mote based on the following terms and conditions (this Phase of the Agreement shall be called the Short-Term Lease Phase ): a. The Short-Term Lease will be for a term of two (2) years; Mote shall have the right to extend the Short-Term Lease Phase for 1 additional year by giving the County written notice. b. The rent will be $100 per year. 3

4 County. c. The rent, and the Short-Term Lease, will be absolutely net to the d. On or before ninety (90) days of commencement of the Short-Term Lease Phase, Mote shall apply for the appropriate land use and zoning approvals necessary for Mote to own and develop the Aquarium on the Property, including but not limited to the following: (1) any necessary comprehensive plan amendments; (2) rezoning from GU to a zoning district that allows an Aquarium as a permitted use on privately owned property and any other necessary land use entitlements or special exceptions (collectively, the Land Use Approvals ). These applications will be filed and processed consistent with the County s regulations. e. Once the Land Use Approvals have been submitted, Mote may submit a pre-application for Site and Development review and a pre-application for Building Permit review. Formal Site and Development and Building Permit application(s) shall only be submitted after the determination by the Board of the Land Use Approvals or after the commencement of the Long-Term Lease. However, the County and Mote plan to enter into a Construction Agreement for improvements to the parking lot on the westerly portion of the Property. The Construction Agreement shall include provisions that: i. Mote shall diligently pursue the site work at its sole expense. ii. Mote shall obtain a completed and approved Site and Development Plan and all required permits. iii. Mote shall furnish to the County evidence, to the County s satisfaction, of Mote s ability to pay for the site work prior to commencing construction. iv. Mote shall obtain, at its own cost, a construction and/or performance bond approved by the Office of the County Attorney equal to 110% of the construction amount for the parking lot to ensure that the construction is completed. v. Mote will arrange for liability insurance coverage during construction, at a limit approved by the County s Risk Management Department, and provide for the County to be an additional insured under the policy. vi. Mote shall agree to defend, indemnify and hold the County harmless. vii. Mote is prohibited, in accordance with Section , Florida Statutes, from imposing any liability upon the County for liens for improvements made by Mote, and the Property shall not be subject to such liens. 4

5 applications. f. Mote shall pay all fees associated with any development g. Mote understands, acknowledges, and agrees that the County has no legal obligation whatsoever to approve the Land Use Approvals. h. The County shall provide any necessary owner s consents required for any applications. i. Mote shall use best efforts to file, process and pursue the Land Uses Approvals in a timely manner. 4. Post-Entitlement Phase: Following the determination by the Board of the Land Use Approvals requested by Mote to authorize Mote to own and develop the Aquarium on the Property, the parties shall take the following actions (this Phase of the Agreement shall be called the Post-Entitlement Phase ): a. Conveyance i. In the event the Land Use Approvals are approved and become final, binding and non-appealable, and Mote has obtained full funding for the Aquarium, the County shall within thirty (30) days thereafter automatically convey the Property to Mote for $ ii. Mote shall obtain, at its own cost, a construction bond and/or performance bond or alternative form of performance security approved by the Board equal to 110% of the construction amount to ensure the construction is completed or so the County can return the Property to original state or as close to its original state as possible. iii. All expenses of the conveyance, including documentary stamp tax on the deed, recording the deed, the cost of any title insurance desired by Mote, and any related expenses shall be paid by Mote. Each party shall be responsible for its own attorney s fees. iv. The conveyance deed shall include: (1) a reversionary clause in the event that construction of the Aquarium on the Property has not been commenced within 24 months from the conveyance; (2) a reversionary clause at the County s election in the event the construction has commenced but does not get completed; and (3) a reversionary clause at the County s election in the event the Aquarium use has discontinued and/or been abandoned for 6 months. v. The deed conveying the Property to Mote shall provide a deed restriction that it shall only be used as an Aquarium and that the Property cannot be transferred or conveyed to another party, except for a wholly-owned subsidiary of Mote. 5

6 vi. Upon taking title the Property, Mote may commence construction as legally authorized. vii. Property to Mote. The Agreement shall terminate upon conveyance of the b. Long-Term Lease i. In the event any of the Land Use Approvals are denied, the County shall immediately and automatically transition into a long-term lease (the Long-Term Lease ) as set forth in the Agreement. Additionally, in the event the Land Use Approvals are not obtained within 21 months after Mote submits applications for its Land Use Approvals, as deemed complete by County staff, then Mote can proceed with the Long-Term Lease as set forth in the Agreement, including the provision that Mote furnish to the County evidence, to the County s satisfaction, of Mote s ability to pay for the entire Aquarium and site work before any construction is commenced. ii. The lease term shall be 40 years, with five (5) subsequent ten (10) year renewal terms at the option of Mote. iii. Mote shall not encumber by mortgage or other such instrument its lease interest and estate in the Property, as security for any indebtedness. iv. The rent, and the lease, will be absolutely net to the County. The County shall have no obligations whatsoever for any care or maintenance of the Property or otherwise. If any real estate taxes or assessments are due and payable, Mote will pay them. The County shall have no obligations whatsoever with regard to the construction of any improvements on the Property for the Aquarium, or the care and maintenance of the improvements. v. Mote will arrange for liability insurance coverage for the Aquarium with policy limits of at least $10,000,000, at a limit approved by the County s Risk Management Department, and provide for the County to be an additional insured under the policy. harmless. vi. Mote shall also defend, indemnify and hold the County vii. Mote shall pay for any normal and customary taxes and assessments for a non-profit which come due subsequent to commencement of the lease. 6

7 viii. The Long-Term Lease shall prohibit, in accordance with Section , Florida Statutes, any liability of the County for any liability for liens for improvements made by Mote, and the Property shall not be subject to any such liens. ix. The Aquarium shall be constructed in substantial accord with the Concept Plan subject to revisions as required by Mote. However, as owner of the Property the County has approval rights for any revisions to the Concept Plan and any required site plan. x. The Long-Term Lease will provide for a site work phase to commence on or before approximately six (6) months after commencement of the Long-Term Lease. Mote shall diligently pursue the work at its sole expense. Mote shall furnish to the County evidence, to the County s satisfaction, of Mote s ability to pay for the entire Aquarium and site work before any construction is commenced. xi. The Long-Term Lease will provide for a vertical construction phase which shall commence on or before approximately six (6) months after the site work is completed. Mote shall diligently pursue the work at its sole expense. xii. Mote shall obtain, at its own cost, a construction bond and/or performance bond approved by the Office of County Attorney equal to 110% of the construction amount to ensure the construction is completed. xiii. Mote shall own and operate the Aquarium, following its completion, which shall be open to the public. However, Mote may charge admission to be determined at its sole discretion. The Aquarium plans to have a restaurant/cafeteria to serve its guests. In addition to the facilities open to the public on a general basis, the Aquarium plans to have facilities for special events that will be available to the public for a charge to be determined at Mote s sole discretion. The Aquarium also plans to have facilities for offices that will not be open to the public and facilities for research that will not be open to the public on a general basis. xiv. The Long-Term Lease shall not be assignable except to a wholly-owned subsidiary of Mote. xv. The Long-Term Lease shall provide for default provisions by either party as well as applicable remedies. xvi. In the event Mote is subsequently able to obtain the Land Use Approvals to allow Mote to own and operate the Aquarium, the County shall convey the Property to Mote and Mote shall accept the conveyance upon notification of same at no additional costs to the County. 7

8 5. Other Agreement Terms a. During the term of the Agreement, the County shall not convey any rights to the Property to any third party without Mote s written consent. b. Mote may terminate the Agreement, including any applicable leases, at any time prior to commencement of construction in the event Mote is not able to secure adequate funding or permitting to construct the Aquarium on the Property. c. The parties recognize that easements will be established for the mutual benefit of Mote and the County. These easements will address ingress, egress, utilities, sidewalks, stormwater, drainage, and matters related to shoreline maintenance and improvement. These easements will be determined in the course of the development of a formal site plan. d. The parties also recognize that the lake and pond immediately adjacent to the Aquarium and north of the North Cattlemen Road should not be used for any purposes that are incompatible with both a public park and the Aquarium. The parties will develop mutually agreeable covenants and restrictions to assure compatibility. e. Mote is solely responsible for any and all site modifications and permitting, and shall make the County whole, for items including but not limited to costs, liability, integrity of existing infrastructure, interconnectivity of the park, and stormwater capacity for Cattlemen Road, DeSoto Road, and Nathan Benderson Park. f. The Short-Term Lease, Long Term Lease, and/or Conveyance Deed, as applicable, shall provide for the exclusive use by the County of 50 parking spaces in the southernly portion of the westerly parking lot area, together with the rights of ingress and egress to the 50 parking spaces. The remaining parking spaces on the Property are for the exclusive use by Mote. Any such document shall also include a restriction stating that the westerly parking lot area shall be for use for parking and be maintained and improved by Mote at its expense. There shall also be a restriction stating that no structures shall be constructed on the westerly parking lot area within the FPL easement area or in any other parking area; however, the County may approve a parking or transportation related structures in its sole and absolute discretion in parking areas outside of the FPL easement. By signing below, the parties acknowledge the acceptability of these terms and conditions but further acknowledge that this is not a legally binding agreement. [REMAINDER OF PAGE INTENTIONALLY BLANK.] 8

9 IN WITNESS WHEREOF, the parties have executed this document as of the date last below written this day of, SARASOTA COUNTY: BOARD OF COUNTY COMMISSIONERS OF SARASOTA COUNTY, FL By: Chair ATTEST: KAREN E. RUSHING, Clerk of the Circuit Court Ex-Officio Clerk of the Board of County Commissioners, Sarasota County, Florida By: Deputy Clerk Approved as to form and correctness: By: County Attorney 9

10 MOTE: Mote Marine Laboratory, Inc., a Florida corporation not-for-profit By: Michael P. Crosby Its: President and CEO Signed, sealed and delivered in the presence of: Witness Signature Print Name: 10

11 KEY Aquarium Site Water Proposed Easement - Overlook and Boardwalk sa Exclusive Use Area Proposed Easement Proposed Easement Proposed Easement Proposed Easement Exhibit A Proposed Easement Proposed Easement Proposed Easement - Ingress, Egress and Utilities Exclusive Use Area for 50 Spaces for County (approximate) October 17, 2018, Rev 1

12 Exhibit B

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