County attorney asked to prepare draft of terms, by Oct. 24, for lease and eventual sale of county property to Mote for new aquarium

County commissioners discuss need for rezoning of land prior to sale and concern about completing some sort of agreement before a proposed Charter amendment could thwart Mote’s plans

A rendering shows the design of the new Mote Aquarium and science center at Benderson Park. Image from CambridgeSeven via Mote

With Sarasota attorney John Patterson representing Mote Marine Laboratory during an impromptu exchange on Oct. 9, the Sarasota County Commission authorized County Attorney Stephen DeMarsh to proceed with drafting a “term sheet” outlining facets of a deal designed ultimately to enable Mote to purchase the site of a new aquarium on county-owned land at Nathan Benderson Park.

At Patterson’s suggestion, the term sheet will cover a process calling for Mote to lease acreage at the park until such time as the rezoning of the property has been completed, to provide for a use such as an aquarium. “That would be fine,” Patterson said. “Unless something comes totally out of left field … I think it’s doable” by Oct. 24.

As County Administrator Jonathan Lewis explained — and Commissioner Alan Maio fleshed out — Mote’s leaders want to be able to announce, during an event at the end of the month, that the nonprofit has achieved sufficient commitment from the county regarding the land to assuage any philanthropists’ concerns about donating to the approximately $130-million aquarium project.

Mote will host its annual Oceanic Evening event on Oct. 27, according to materials provided to county staff and the commission.

County Attorney Stephen DeMarsh replies to a question. File photo

DeMarsh told the board members he and his staff could have the term sheet by their Oct. 24 meeting. Nonetheless, he said, “I’m concerned about entering into a long-term lease at the front end of this when I think we can accomplish every business objective of both parties through an agreement that deals with purchase and sale.”

One of the concerns DeMarsh noted earlier in the approximately 55-minute discussion was the fact that if the board leased the property to Mote without rezoning the land first, the lease would imply the board would make certain the rezoning were accomplished. “I think that could put the rezone at legal risk,” he said.

The “trigger point” for the sale would be the approval of the necessary county Comprehensive Plan amendment to make the rezoning possible, along with completion of the rezoning, Patterson pointed out. “It could be a legally binding obligation: ‘You will accept title [at that time].’”

“Could that [trigger point] be built into a term sheet with very clear direction?” Commissioner Michael Moran asked DeMarsh.

“It can be written,” DeMarsh replied. “It includes considerably more risk for the county, so it’s not my recommendation to [the commission].”

Yet, DeMarsh continued, if the board told him to write such a term sheet, regardless of the advice he had provided, he would do that. “It’s ultimately your decision.”

Commissioner Maio told his colleagues that, prior to his 2014 election to the board, he was involved in the creation of many term sheets. Such documents can be “so strongly worded,” he continued, that they declare “exactingly what everybody’s intentions are.”

When Chair Nancy Detert asked if the other board members were comfortable with having DeMarsh and his staff work on the term sheet, Commissioner Charles Hines replied, “I’m fine with it.”

John Patterson. Image from the website of the law firm Shutts & Bowen

In response to a question from Hines, Patterson said construction of the aquarium is expected to take 18 to 24 months.

It is possible then, Hines responded, that Mote might be able to take ownership of the land before the new aquarium opens.

“The point of this,” Commissioner Paul Caragiulo summed up the Oct. 9 discussion, is that it “further illustrates to the benefactors [of Mote] that this organization is very serious about getting this [project] done.”

“I think it was extremely useful,” Patterson concurred with Caragiulo. “It’s certainly helpful to me” to hear the commissioners’ comments, Patterson added. “The goal is ownership. That’s really it.”

“The goal is a successful, wonderful facility,” Caragiulo said.

A change in strategy

Detert voiced concern at a couple of points during the discussion about Mote’s more recent communications with county staff indicating its interest in 27 acres at Benderson Park, instead of the original 9 acres it proposed. “I was pretty surprised at that.”

County Administrator Lewis explained that the nonprofit’s leaders are seeking not only the ground for the site, but also parking space used for events — including major rowing competitions — within Benderson Park, as well as the stormwater ponds on the property.

The Suncoast Nature Center Associates Inc. (SANCA) already leases part of the area in which Mote is interested, Lewis added. That and the parking, he noted, “are the kind of … process issues that may add some time” to working out a final agreement.

Staff would have to ensure that the county would continue to have access to a sufficient number of parking spaces, for example, Lewis explained.

Past and present

At the outset of the Oct. 9 discussion, during the commission’s regular meeting in Venice, Lewis reminded the board members that they authorized staff in September to separate the proposed land transaction with Mote from any discussion about potential county funding for the new aquarium.

A rendering shows the proposed Great Hall in the new aquarium. Image from CambridgeSeven via Mote

Earlier that morning, in unanimously approving their Consent Agenda of routine business items, the commissioners affirmed their willingness to do that, he pointed out. The action was requested by Mote to facilitate its fundraising efforts for the project, he noted.

Since the September board discussion, Lewis continued, “We’ve had some very productive meetings with Dr. Crosby and his team …”

Michael Crosby is president and CEO of Mote Marine Laboratory.

Mote provided staff a proposed term sheet for the land transaction, Lewis said. Staff then gave Mote leaders an alternative resolution to consider. Mote responded with a document he emailed the board members the previous evening, Lewis said. “I think there is a realistic opportunity to get a term sheet done fairly quickly.”

Among the documents the county and Mote had exchanged was a Sept. 27 letter from attorney Patterson. “I realize that the Commissioners have expressed a desire to immediately convey the Aquarium Property to Mote,” Patterson wrote. “However, the Aquarium Property is currently zoned Governmental Use (GU). The GU District allows a very wide array of uses, including an aquarium. However, the GU District is only applicable and available as long as the County owns the Aquarium Property. Accordingly, for Mote to accept ownership of the [property], the zoning must first be changed …”

Patterson added, “Mote cannot secure the funding which it needs for the aquarium project through private sector donations and public sector grants until it has legal rights to use the [property] through a lease or conveyance. It cannot seek and obtain permits for the Aquarium Property that is not zoned for use as an aquarium. Furthermore,” Patterson pointed out, “neither Mote nor any other organization will spend millions of dollars on design and permitting for a project like this unless its right to use the property is legally secured.”

In that letter, Patterson proposed a 99-year lease, “but with the County and Mote having the right to convert the lease to outright ownership if the property is properly zoned so that an aquarium is a permitted use.”

A draft term sheet accompanying the letter called for Mote to pay $100 per year.

The urgency issue

A rendering shows a teaching lab in the new aquarium. Image courtesy of Mote Marine

Early on during the discussion, County Attorney DeMarsh cautioned the commissioners “that working on a lease at this point would take us away from what we should be spending time on,” which they had indicated should be the term sheet. “I don’t see how we could do both a term sheet and then a lease [within two weeks].”

The term sheet, he continued, “would be the building blocks of the [sales] transaction.”

When Chair Detert initially asked whether DeMarsh could complete a term sheet for sale of the land before the board’s Oct. 24 meeting, Lewis told her, “That would be an extremely accelerated process …”

DeMarsh pointed out that it took him and his staff 18 months to draft a term sheet when the county was negotiating about 10 years ago with the Baltimore Orioles to bring the team to Sarasota for Spring Training. It took two years to complete a term sheet for the Atlanta Braves to make a new complex in the West Villages in North Port its Spring Training home, he added. “To say [two weeks is] fast would be a massive understatement.”

Yet, “We own this property,” Commissioner Caragiulo responded.

Commissioner Hines pointed to one other significant issue, which he also alluded to during the board’s Sept. 11 discussion of the Mote aquarium project: The commissioners fear passage of a proposed Sarasota County Charter amendment on the Nov. 6 General Election ballot. If it were to pass, it would prevent the county from selling any property with a view of a waterway; therefore, it would negate transfer of title of the Benderson Park property to Mote. “Can we have a deal in place that would allow [the sale] to occur prior to the passage of the Charter amendment?” Hines asked.

“You all have to decide what is the strongest method you are willing to go to,” Lewis said, adding that staff would “drop everything [else]” to achieve whatever the board members wanted.

Although Crosby of Mote had asked for a term sheet and lease by Oct. 24, Lewis added, he was worried about rushing that work. “What details would we miss?”

Nonetheless, “It’s your land,” Lewis said. “We’re going to follow your direction. We’re not following their direction.”

Then, at the commissioners’ request, when Mote attorney Patterson came to the podium, Patterson told the board, “[The process] could go forward as a lease. That’s not Mote’s preference, but it’s certainly viable.”

Leave a Comment