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FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
Quarterly Report Under Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the quarter ended March 31, 2005 Commission file #0-16976
ARVIDA/JMB PARTNERS, L.P.
(Exact name of registrant as specified in its charter)
Delaware 36-3507015
(State of organization) (IRS Employer Identification No.)
900 N. Michigan Avenue., Chicago, IL 60611
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code 312/440-4800
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") during the preceding 12 months (or for such a
shorter period that registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes [ X ] No [ ]
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Rule 12b-2 of the Exchange Act). Yes [ ] No [ X ]
TABLE OF CONTENTS
PART I FINANCIAL INFORMATION
Item 1. Financial Statements . . . . . . . . . . . . . . . 3
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations . . . . . . . . . . . . . . . . . . . . 15
Item 4. Controls and Procedures. . . . . . . . . . . . . . 17
PART II OTHER INFORMATION
Item 1. Legal Proceedings. . . . . . . . . . . . . . . . . 18
Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . 18
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
ARVIDA/JMB PARTNERS, L.P.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED VENTURES
CONSOLIDATED BALANCE SHEETS
ASSETS
------
MARCH 31, DECEMBER 31,
2005 2004
(Unaudited) (See Note)
------------- ------------
Cash and cash equivalents . . . . . . . $ 3,524,106 $ 37,590,586
Restricted cash . . . . . . . . . . . . 670,190 718,633
Debt securities held-to-maturity. . . . 41,773,710 19,968,034
Accounts receivable . . . . . . . . . . 4,548 5,074
Property and equipment, net . . . . . . 8,036 11,528
Investments in and advances to
joint ventures, net . . . . . . . . . 165,416 164,325
Amounts due from affiliates, net. . . . 611 --
Prepaid expenses and other assets . . . 186,674 132,923
------------ ------------
Total assets. . . . . . . . . $ 46,333,291 $ 58,591,103
============ ============
ARVIDA/JMB PARTNERS, L.P.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED VENTURES
CONSOLIDATED BALANCE SHEETS (CONTINUED)
LIABILITIES AND PARTNERS' CAPITAL ACCOUNTS
------------------------------------------
MARCH 31, DECEMBER 31,
2005 2004
(Unaudited) (See Note)
------------- ------------
Liabilities:
Accounts payable. . . . . . . . . . . $ 111,270 $ 97,960
Amounts due to affiliates, net. . . . -- 5,372
Accrued expenses and other
liabilities . . . . . . . . . . . . 4,630,954 5,312,336
------------ ------------
Total liabilities . . . . . . 4,742,224 5,415,668
------------ ------------
Commitments and contingencies
Partners' capital accounts:
General Partner and
Associate Limited Partners:
Capital contributions . . . . . . . 20,000 20,000
Cumulative net income . . . . . . . 103,588,184 103,595,430
Cumulative cash distributions . . . (98,366,535) (97,244,327)
------------ ------------
5,241,649 6,371,103
------------ ------------
Limited Partners:
Capital contributions,
net of offering costs . . . . . . 364,841,815 364,841,815
Cumulative net income . . . . . . . 381,558,515 381,913,554
Cumulative cash distributions . . . (710,050,912) (699,951,037)
------------ ------------
36,349,418 46,804,332
------------ ------------
Total partners' capital
accounts. . . . . . . . . . 41,591,067 53,175,435
------------ ------------
Total liabilities and
partners' capital . . . . . $ 46,333,291 $ 58,591,103
============ ============
NOTE: The consolidated balance sheet at December 31, 2004 has been derived
from the audited consolidated financial statements at that date but
does not include all of the information and footnotes required by
U.S. generally accepted accounting principles for complete financial
statements.
The accompanying notes are an integral part
of these consolidated financial statements.
ARVIDA/JMB PARTNERS, L.P.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED VENTURES
CONSOLIDATED STATEMENTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 2005 AND 2004
(UNAUDITED)
2005 2004
----------- -----------
Revenues:
Other operating revenues. . . . . . . $ 51,744 $ 130,784
----------- -----------
Total revenues. . . . . . . . . . 51,744 130,784
----------- -----------
Cost of revenues:
Other operating expense . . . . . . . 213 23,986
----------- -----------
Total cost of revenues. . . . . . 213 23,986
----------- -----------
Gross operating profit. . . . . . . . . 51,531 106,798
Selling, general and
administrative expenses . . . . . . . (733,351) (791,329)
----------- -----------
Net operating loss. . . . . . . . (681,820) (684,531)
Interest income . . . . . . . . . . . . 322,155 80,963
Equity in losses of unconsolidated
ventures. . . . . . . . . . . . . . . (2,620) (13,435)
Interest and real estate taxes,
net of amounts capitalized. . . . . . -- (10,054)
----------- -----------
Net loss. . . . . . . . . . . . . $ (362,285) $ (627,057)
=========== ===========
Net loss per Limited
Partnership Interest. . . . . . $ (.88) $ (1.52)
=========== ===========
Cash distributions per
Limited Partnership Interest. . $ 25.00 $ --
=========== ===========
The accompanying notes are an integral part
of these consolidated financial statements.
ARVIDA/JMB PARTNERS, L.P.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED VENTURES
CONSOLIDATED STATEMENTS OF CASH FLOWS
THREE MONTHS ENDED MARCH 31, 2005 AND 2004
(UNAUDITED)
2005 2004
----------- -----------
Net loss. . . . . . . . . . . . . . . . $ (362,285) $ (627,057)
Charges (credits) to net loss
from operations not requiring
(providing) cash:
Depreciation. . . . . . . . . . . . . 3,493 4,276
Amortization of discount on
held-to-maturity debt securities. . (116,054) --
Equity in losses of unconsolidated
ventures. . . . . . . . . . . . . . 2,620 13,435
Changes in:
Restricted cash . . . . . . . . . . . 48,443 (555)
Trade and other accounts receivable . 526 295,469
Amounts due to/from affiliates, net . (5,983) 569,114
Prepaid expenses and other assets . . (53,751) 72,942
Accounts payable, accrued expenses
and other liabilities . . . . . . . (682,552) (2,894,569)
------------ ------------
Net cash used in
operating activities. . . . (1,165,543) (2,566,945)
------------ ------------
Investing activities:
Acquisition of held-to-maturity
debt securities . . . . . . . . . . (31,689,622) --
Proceeds from held-to-maturity
debt securities . . . . . . . . . . 10,000,000 --
Joint venture distributions . . . . . 10,768 17,000
------------ ------------
Net cash (used in)
provided by investing
activities. . . . . . . . . (21,678,854) 17,000
------------ ------------
Financing activities:
Distributions to General Partner
and Associate Limited Partners. . . (1,122,208) --
Distributions to Limited Partners . . (10,099,875) --
------------ ------------
Net cash used in
financing activities. . . . (11,222,083) --
------------ ------------
Decrease in Cash and
cash equivalents. . . . . . . . . . . (34,066,480) (2,549,945)
Cash and cash equivalents,
beginning of period . . . . . . . . . 37,590,586 65,450,117
------------ ------------
Cash and cash equivalents,
end of period . . . . . . . . . . . . $ 3,524,106 $ 62,900,172
============ ============
The accompanying notes are an integral part
of these consolidated financial statements.
ARVIDA/JMB PARTNERS, L.P.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED VENTURES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 2005
(UNAUDITED)
Readers of this quarterly report should refer to the Partnership's
audited financial statements for the fiscal year ended December 31, 2004,
which are included in the Partnership's 2004 Annual Report on Form 10-K
(File No. 0-16976) filed on March 31, 2005, as certain footnote disclosures
which would substantially duplicate those contained in such audited
financial statements, and which are required by U.S. generally accepted
accounting principles for complete financial statements, have been omitted
from this report. Capitalized terms used but not defined in this quarterly
report have the same meanings as in the Partnership's 2004 Annual Report.
GENERAL
In the opinion of the General Partner, all adjustments (consisting
solely of normal recurring adjustments) necessary for a fair presentation
have been made to the accompanying consolidated financial statements as of
March 31, 2005 and December 31, 2004 and for the three months ended
March 31, 2005 and 2004. The results of operations for the three month
period ended March 31, 2005 are not necessarily indicative of the results
to be expected for the fiscal year ending December 31, 2005.
Debt Securities Held-to-Maturity
The Partnership purchased investments during 2004 and 2005 which
generally mature between three months and eighteen months from the date of
purchase. The investments consist of U.S. Government obligations. The
Partnership intends to hold these obligations to maturity, and therefore,
classifies these investments as Held-to-maturity securities in accordance
with SFAS No. 115, Accounting for Certain Investments in Debt and Equity
Securities.
Investments in debt securities held-to-maturity as of March 31, 2005
and December 31, 2004 consist of the following:
2005 2004
------------ ------------
Amortized cost . . . . . . . . . . $ 41,773,710 $ 19,968,034
Gross unrealized losses. . . . . . 77,057 29,302
------------ ------------
Market value . . . . . . . . . . . $ 41,696,653 $ 19,938,732
============ ============
Warranty Reserves
In the normal course of business, the Partnership will incur warranty
related costs associated with homes which have previously closed. Warranty
reserves are established by charging cost of sales and recognizing a
liability for the estimated warranty costs for each home that is closed.
The Partnership monitors this reserve on a quarterly basis, at a minimum,
by evaluating the historical warranty experience and the reserve is
adjusted as appropriate for current quantitative and qualitative factors.
Actual future warranty costs could differ from the currently estimated
amounts.
For the periods ended March 31, 2005 and December 31, 2004, changes in
the warranty accrual consisted of the following:
2005 2004
---------- ----------
Accrued warranty costs,
beginning of year . . . . . . . $ 808,000 $1,569,000
Estimated liability recorded. . . -- 235,000
Payments made . . . . . . . . . . (140,000) (996,000)
---------- ----------
Accrued warranty costs,
end of year . . . . . . . . . . $ 668,000 $ 808,000
========== ==========
Accrued warranty costs are included in Accrued expenses and other
liabilities on the accompanying consolidated balance sheets.
Obligations Under Sale Agreements
In connection with the sale of The Shoppes of Town Center (the
"Shoppes") in Weston on February 7, 2003, certain consolidated entities of
the Partnership undertook certain indemnity obligations to the purchaser or
its lender. In general, these obligations relate to indemnification
against loss, costs or expenses arising out of a breach of representation
or warranty, possible claims of tenants, certain rent obligations,
restrictions on the leasing or use of the property, litigation relating to
the property, claims occurring or accruing prior to the closing and certain
other usual and customary matters. Some of these indemnity obligations
terminate as to claims made after the first anniversary date of the sale
while other of these indemnity obligations have no specified termination.
In accordance with such indemnification, the seller deposited $100,000 and
the buyer deposited $50,000 in escrow to secure the obligation to indemnify
the buyer's lender for such claims. The Partnership received $50,000 of
the $100,000 noted above during 2003 and received the remaining $50,000 in
October 2004. The seller also deposited $50,000 in escrow as security for
completion of remediation work for compliance with the Americans with
Disabilities Act. The remediation work has been completed and in February
2005, the Partnership received $50,000 which was the final refund of monies
escrowed by the seller. The Partnership believes that it has no material
remaining indemnity liabilities relative to such sale as of March 31, 2005.
Accrued Expenses and Other Liabilities
Accrued expenses and other liabilities includes estimated project
completion costs on real estate inventory sold in prior years, warranty
reserves, and reserves for contingencies.
Indemnification of Certain Persons
Under certain circumstances, the Partnership indemnifies the General
Partner and certain other persons performing services on behalf of the
Partnership for liability they may incur arising out of the indemnified
persons' activities conducted on behalf of the Partnership. There is no
limitation on the maximum potential payments under these indemnification
obligations, and, due to the number and variety of events and circumstances
under which these indemnification obligations could arise, the Partnership
is not able to estimate such maximum potential payments. However,
historically the Partnership has not made payments in material amounts
under such indemnification obligations, and no amount has been accrued in
the accompanying consolidated financial statements for these
indemnification obligations of the Partnership.
Recent Accounting Pronouncements
In December 2004, the Financial Accounting Standards Board (FASB)
issued Statement of Financial Accounting Standards No. 123(R) "Share-Based
Payment" (FAS 123(R)), a revision of FAS 123 "Accounting for Stock Based
Compensation". FAS 123(R) requires compensation costs related to share-
based payments to be recognized in the income statement over the vesting
period. The amount of the compensation cost will be measured based on the
grant-date fair value of the instrument issued. FAS 123(R) is effective no
later than the beginning of the first fiscal year beginning after June 15,
2005, for all awards granted or modified after that date and for those
awards granted prior to that date that have not vested. FAS 123(R) will
have no impact on the Partnership.
Partnership Distributions
During January 2005, the Partnership made a distribution of
$10,099,875 to its Holders of Interests ($25 per Interest) and $1,122,208
to the General Partner and Associate Limited Partners, collectively.
Reclassifications
Certain reclassifications have been made to the 2004 financial
statements to conform to the 2005 presentation.
Use of Estimates
The preparation of financial statements in conformity with U.S.
generally accepted accounting principles requires management to make
estimates and assumptions that affect the amounts reported or disclosed in
the financial statements and accompanying notes. Actual results could
differ from those estimates.
RESTRICTED CASH
Restricted cash are amounts restricted under escrow agreements, and
cash which collateralizes both letters of credit and outstanding
performance bonds.
TRANSACTIONS WITH AFFILIATES
The Partnership, subject to certain limitations, may engage affiliates
of the General Partner for insurance brokerage and certain other
administrative services to be performed in connection with the
administration of the Partnership and its assets. The total of such costs
for the three months ended March 31, 2005 was approximately $6,250 all of
which was paid as of April 30, 2005. The total of such costs for the three
months ended March 31, 2004 was approximately $1,100. In addition, the
General Partner and its affiliates are entitled to reimbursements for
salaries and salary-related costs relating to the administration of the
Partnership and the operation of the Partnership's properties. The
Partnership reimbursed such costs totalling approximately $373,000 and
$82,000 for the three months ended March 31, 2005 and 2004, respectively,
including amounts due for prior periods.
For the three month periods ended March 31, 2005 and 2004, the
Partnership reimbursed St. Joe Towns and Resorts, LP, formerly known as St.
Joe/Arvida Company L.P. ("St. Joe T&R") or its affiliates approximately
$69,000 and $2,245,000, respectively, for the services provided to the
Partnership by St. Joe T&R pursuant to a sub-management agreement for
development and management supervisory and advisory services (and personnel
with respect thereto). Such reimbursements included amounts owing in
connection with the Partnership's achievement of certain profit and cash
flow levels prior to 2003.
In January 2005, the General Partner and Associate Limited Partners,
collectively, received cash distributions in the aggregate amount of
$1,122,208.
All amounts receivable from or payable to the General Partner or its
affiliates do not bear interest and are expected to be paid in future
periods.
COMMITMENTS AND CONTINGENCIES
As security for performance of certain development obligations, the
Partnership is contingently liable under performance bonds for
approximately $2,400,000 and $2,949,000 at March 31, 2005 and December 31,
2004, respectively.
On August 29, 2002, the Partnership entered into an agreement with St.
Joe T&R for the prospective assignment to and assumption by St. Joe T&R of
the Partnership's rights and obligations under the lease for its offices
(approximately 19,100 rentable square feet of space) in Boca Raton,
Florida. The assignment and assumption of the lease was made effective
January 1, 2004.
Rental expense of approximately $13,000 and $34,000 was incurred for
the three month periods ended March 31, 2005 and 2004, respectively.
The Partnership was named a defendant in a purported class action
entitled Lakes of the Meadow Village Homes Condominium Nos. One, Two,
Three, Four, Five, Six, Seven, Eight and Nine Maintenance Associations,
Inc., v. Arvida/JMB Partners, L.P. and Walt Disney World Company, Case No.
95-23003-CA-08, filed in the Circuit Court of the Eleventh Judicial Circuit
in and for Miami-Dade County, Florida ("Lakes of the Meadow" litigation).
In the lawsuit, plaintiffs sought unspecified damages, attorneys' fees and
costs, recission of specified releases, and all other relief that
plaintiffs might be entitled to at equity or at law on behalf of the 460
building units they allegedly represented for, among other things, alleged
damages discovered in the course of making Hurricane Andrew repairs.
Plaintiffs alleged that Walt Disney World Company was responsible for
liabilities that might arise in connection with approximately 80% of the
buildings at the Lakes of the Meadow Village Homes and that the Partnership
was potentially liable for the approximately 20% remaining amount of the
buildings. In the three count amended complaint, plaintiffs alleged breach
of building codes and breach of implied warranties. The Partnership
tendered this matter to The Walt Disney Company (n/k/a Disney Enterprises,
Inc., "Disney") pursuant to the Partnership's indemnification rights and
filed a third-party complaint against it pursuant to the Partnership's
rights of contractual indemnity. The Partnership also answered the amended
complaint and filed a cross-claim against Disney's affiliate, Walt Disney
World Company, for common law indemnity and contribution. The Partnership
completed settlements in this case with the condominium associations and
their members during the second quarter of 2004.
The Partnership continues to pursue claims for indemnity or
contribution against Disney or its affiliates ("Disney cross-defendants")
in connection with the Lakes of the Meadow condominium units that were
constructed in whole or in part prior to September 10, 1987 (the date that
the Partnership acquired the assets of Arvida Corporation from Disney) but
were sold by the Partnership on or after that date. The Partnership's
claims for indemnity and contribution have been severed for separate
proceedings and trial from the remaining case-in-chief in the Lakes of the
Meadow litigation. The Disney cross-defendants have answered the cross-
claim denying liability and have filed their own claims for indemnity and
contribution. The Partnership will be filing its response to the cross-
claim and working towards scheduling this matter. No discovery cutoff or
trial date has been set for these claims.
The Partnership also sought payment or reimbursement of the foregoing
settlement amounts from U.S. Fire and an excess insurance carrier, The Home
Insurance Company, that is in liquidation proceedings. On December 10,
2004, the Partnership and one of its insurance carriers, U.S. Fire, entered
into an agreement (the "Settlement Agreement") to settle their respective
claims against each other relating to insurance coverage under a policy of
insurance for the period from June 1, 1992 to June 1, 1993 (the "Policy").
The dispute between the Partnership and U.S. Fire concerned whether the
Policy covered third-party claims asserted against the Partnership in the
Lakes of the Meadow Village matter and claims asserted against the
Partnership in an insurance subrogation lawsuit involving certain homes in
the Country Walk Community (the "Juarez action"). The Partnership settled
the claims asserted against it in the Lakes of the Meadow matter in 2004
for approximately $6.9 million while the claims asserted in the Juarez
action continue in litigation.
Pursuant to the terms of the Settlement Agreement in December 2004,
U.S. Fire paid the Partnership the settlement amount and the Partnership
dismissed with prejudice U.S. Fire from the Partnership's Illinois
insurance action seeking, among other things, to hold U.S. Fire liable
under the Policy for claims the Partnership paid relating to the Lakes of
the Meadow Village Homes. U.S. Fire has represented to the Partnership
that upon its payment of the settlement amount, U.S. Fire had exhausted the
products/completed operations aggregate limit of coverage under the Policy.
In addition, the Partnership and U.S. Fire released each other for all
past, present and future claims, whether currently known or unknown, that
arise out of or relate in any way to (i) Hurricane Andrew, which struck
Miami-Dade County, Florida on August 24, 1992, and the Policy, and (ii)
insurance coverage under the products/completed operations coverage of the
Policy. U.S. Fire also released any claim for subrogation that it might
have for amounts it has paid or will pay under the Policy and the
Settlement Agreement. The Settlement Agreement supercedes prior discussions
and understandings, both written and oral, between the parties in regard to
their respective claims arising out of or relating to Hurricane Andrew
under the Policy and the discharge and release of the products/completed
operations aggregate limit of the Policy, including without limitation, all
positions taken by U.S. Fire in respect of its reservations of rights in
regard to such claims and all positions taken by the Partnership in regard
to such claims. As a result, the settlement clarifies that the Partnership
has no obligation to reimburse U.S. Fire for any amount that U.S. Fire
previously paid for settlements of various lawsuits arising out of or
relating to Hurricane Andrew. Shortly after the dismissal of U.S. Fire
from the Illinois action, the Partnership dismissed its Illinois action
without prejudice, as to the remaining defendants.
The Partnership is a defendant in an insurance subrogation matter. On
or about May 10, 1996, a subrogation claim entitled Juarez v. Arvida
Corporation et al., Case No. 96-09372 CA13 was filed in the Circuit Court
of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida.
Plaintiffs filed this suit for the use and benefit of American Reliance
Insurance Company ("American Reliance"). In this suit, plaintiffs seek to
recover damages, pre-and post-judgment interest, costs and any other relief
the court may deem just and proper in connection with $3,200,000 American
Reliance allegedly paid on specified claims at Country Walk in the wake of
Hurricane Andrew. The Walt Disney Company (n/k/a Disney Enterprises, Inc.,
"Disney") is also a defendant in this suit. The Partnership filed a motion
to dismiss this action that has been pending since 1996. The Partnership
is advised that the amount of this claim (including prejudgment interest)
that allegedly relates to units it sold is a range of approximately
$360,000 to $800,000. As a result of, among other things, the settlement
agreement with U.S. Fire discussed in Item 3, the Partnership has assumed
the cost of defense and any obligations created by judgment or otherwise
arising in connection with this matter. The Partnership believes that a
material loss for the Partnership as a result of this lawsuit is remote.
The accompanying consolidated financial statements do not reflect any
accruals related to this matter.
The Partnership, the General Partner and certain related parties as
well as other unrelated parties have been named defendants in an action
entitled Rothal v. Arvida/JMB Partners Ltd. et al., Case No. 03-10709 CACE
12, filed in the Circuit Court of the 17th Judicial Circuit in and for
Broward County, Florida. In this suit that was originally filed on or
about June 20, 2003, plaintiffs purport to bring a class action allegedly
arising out of construction defects occurring during the development of
Camellia Island in Weston, which has approximately 150 homes. On May 9,
2005, plaintiffs filed a nine count second amended complaint seeking
unspecified general damages, special damages, statutory damages,
prejudgment and post-judgment interest, costs, attorneys' fees, and such
other relief as the court may deem just and proper. Plaintiffs complain,
among other things, that the homes were not adequately built, that the
homes were not built in conformity with the South Florida Building Code and
plans on file with Broward County, Florida, that the roofs were not
properly attached or were inadequate, that the truss systems and
installation thereof were improper, and that the homes suffer from improper
shutter storm protection systems. The Partnership is reviewing the second
amended complaint and will file an appropriate response to the second
amended complaint. The Arvida defendants believe that they have
meritorious defenses and intend to vigorously defend themselves. Due to,
among other things, the early stage of the litigation, the Partnership is
not able to determine what, if any, loss exposure that it may have for this
matter, and the accompanying consolidated financial statements do not
reflect any accruals related to this matter. This case has been tendered
to one of the Partnership's insurance carriers, Zurich American Insurance
Company (together with its affiliates collectively, "Zurich"), for defense
and indemnity. Zurich is providing a defense of this matter under a
purported reservation of rights. The Partnership has also engaged other
counsel in connection with this lawsuit. The Partnership is unable to
determine the ultimate portion of the expenses, fees and damages, if any,
which will be covered by its insurance.
The following three lawsuits in large part allegedly arise out of
landscaping issues at certain subdivisions in the Weston Community. These
lawsuits are collectively referred to as the "landscape cases."
A case, The Ridges Maintenance Association, Inc. v. Arvida/JMB
Partners, et al., Case No. 03-10189 (05) (the "Ridges Case"), was filed on
or about June 6, 2003 in the Circuit Court of the 17th Judicial Circuit in
and for Broward County, Florida. The defendants in this action include
Arvida/JMB Partners, Arvida/JMB Managers, Inc., Arvida Management Limited
Partnership, CCL Consultants, Inc. ("CCL"), Bamboo Hammock Nursery, Inc.
("Bamboo Hammock"), and Lagasse Pool Construction, Co. ("Lagasse").
Plaintiff is alleged to be a homeowners' association representing the
owners of approximately 1,500 homes and extensive common areas in the
Ridges subdivision in Weston. In the six-count amended complaint that was
filed on September 20, 2004, plaintiff seeks unspecified compensatory
damages, prejudgment interest, court costs and such other and further
relief as the court might deem just and proper. In Count I, plaintiff
seeks damages from the Arvida defendants for alleged negligent design,
construction and/or maintenance of the landscaping and common elements that
allegedly resulted in defects of the landscaping, sidewalks, irrigation
systems, and community pool. With respect to the landscaping claims, the
plaintiff alleges that it evaluated the condition of the common areas after
the turnover of the community in January 2000 and discovered numerous
construction, design and maintenance defects and deficiencies including,
but not limited to, improper planting of inferior quality/grade of
landscaping contrary to controlling government codes, shallow planting of
landscaping, landscape planting in inappropriate areas, and the planting of
landscaping that would uproot sidewalks. In Count II, plaintiff seeks
damages from CCL, the alleged civil engineer for the community, in
connection with the alleged negligent design, construction or maintenance
of the common areas and elements. In Count III, plaintiff seeks damages
from Bamboo Hammock, the alleged landscape engineer, architect, supplier,
installer and/or designer, in connection with alleged defects in the
landscaping resulting in damage to, among other things, the landscaping and
sidewalks. In Count IV, plaintiff seeks damages from Lagasse for alleged
defects in the community pool. In Count V, plaintiff seeks damages from
Arvida/JMB Partners, a general partnership in which the Partnership owns a
99.9% interest, and Arvida/JMB Managers, Inc., the General Partner of the
Partnership, seeking to hold these entities vicariously responsible for the
acts of CCL, Bamboo Hammock, and/or Lagasse. In Count VI, plaintiff seeks
damages from the Arvida/JMB Partners and Arvida/JMB Managers, Inc. for
various breaches of fiduciary duty. In this count, plaintiff alleges that
prior to the turnover of the community, these defendants engaged in acts
that amounted to a breach of fiduciary duty to plaintiff in that they,
among other things, (i) allegedly improperly executed an amendment to the
declarations of covenant for their sole benefit and to the financial
detriment of the plaintiff; (ii) allegedly engaged in acts that constituted
a conflict of interest; (iii) allegedly failed to maintain appropriate
care, custody and control over the financial affairs of the homeowners'
association by failing to pay for common expenses; (iv) allegedly
improperly transferred funds by and between plaintiff and a non-party, The
Town Foundation, Inc., which transfers allegedly amounted to a violation of
these defendants' obligations to fund operating deficits and a breach of
fiduciary duty; and (v) allegedly transferred funds by and between various
entities under their common control in violation of Florida statute and
their fiduciary duty to plaintiff. The Arvida defendants' motion to
dismiss or in the alternative for a more definite statement was denied with
the exception of defendants' motion to dismiss Count V which is still
pending without ruling. The Arvida defendants filed their answers to all
relevant counts except Count V on March 9, 2005. The Arvida defendants
believe that they have meritorious defenses and intend to vigorously defend
themselves.
A case entitled The Falls Maintenance Association, Inc. v. Arvida/JMB
Partners, Arvida/JMB Managers, Inc., CCL Consultants, Inc. and Stiles
Corporation f/k/a Stiles Landscape Service Co., Case No. 0302577 (the
"Falls Maintenance Case"), was filed on or about February 10, 2003, in the
17th Judicial Circuit in and for Broward County, Florida. Plaintiff is
alleged to be the homeowners' association responsible for the maintenance,
repair, and replacement of the common areas within the Falls subdivision in
Weston, which contains approximately 600 homes. Plaintiff complains that
on turnover of the Falls subdivision, it discovered numerous construction,
design and maintenance defects and deficiencies including, but not limited
to, the quality/grade of the landscaping, landscaping planted too shallow,
landscaping planted too deep, landscaping planted in narrow swale areas,
landscaping planted in shallow soil areas, poor fertility of road rock
under locations where landscaping is planted and poor maintenance.
Plaintiff has filed a six count complaint with five counts against
Arvida/JMB Partners and Arvida/JMB Managers, Inc. for breach of implied
warranty of merchantability, breach of implied warranty of fitness, breach
of express warranty, fraudulent misrepresentation/concealment, and
negligent design, construction and/or maintenance. Plaintiff seeks an
unspecified amount of compensatory damages, interest, costs, and such other
and further relief as is just and equitable. Arvida/JMB Partners and
Arvida/JMB Managers, Inc. have filed an answer to the complaint denying
substantive liability and raising various defenses. The Arvida defendants
believe that they have meritorious defenses and intend to vigorously defend
themselves.
On October 22, 2003, a case entitled Weston Lakes Maintenance
Association v. Arvida/JMB Partners and Arvida/JMB Managers, Inc., Case No.
0318490, was filed in the Circuit Court of the Seventeenth Judicial Circuit
in and for Broward County, Florida Civil Division. In the four-count
complaint, which was served on the Partnership in February 2004, plaintiff,
Weston Lakes Maintenance Association, alleges that defendants negligently
selected and installed inferior landscaping materials in the common areas
and elements of the Weston Lakes subdivision, which contains approximately
570 homes. Plaintiff alleges that defendants' actions have caused higher
than expected maintenance fees and that the landscaping is causing injury
and damage to sidewalks and roadways that must be repaired or replaced.
Plaintiff alleges that an unspecified large sum of money will be required
to replace the alleged substandard landscaping and that significant expense
for remedial maintenance, repair and replacement of elements throughout the
community will be incurred. The four-count complaint is for negligent
construction and design of landscaping allegedly based on a violation of a
Broward County ordinance regarding plant materials, common law negligence,
breach of implied warranty of fitness, and breach of implied warranty of
merchantability. Plaintiff seeks a judgment in an unspecified amount and
type of damages, attorney's fees and such other relief as the court may
deem proper. Defendants have briefed and argued a motion to dismiss. The
court has not issued its decision on the motion. Defendants believe they
have meritorious defenses and intend to vigorously defend themselves.
Due to, among other things, the early stages of litigation, the
Partnership is not able to determine what, if any, loss exposure that it
may have for the landscape cases, and the accompanying consolidated
financial statements do not reflect any accruals related to the landscape
cases. Each of the landscape cases has been tendered to Zurich for defense
and indemnity. The Partnership has also engaged other counsel in
connection with the landscape cases. Zurich has issued letters purporting
to reserve its rights in the Ridges and Falls Maintenance Cases. The
Partnership is unable to determine the ultimate portion of the expenses,
fees and damages allegedly relating to the landscape cases, if any, which
will be covered by its insurance.
Other than as described above, the Partnership is not subject to any
material legal proceedings, other than ordinary routine litigation
incidental to the business of the Partnership.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Reference is made to the notes to the accompanying consolidated
financial statements ("Notes") contained in this report for additional
information concerning the Partnership and its operations.
This report, including this Management's Discussion and Analysis of
Financial Condition and Results of Operations, contains forward-looking
statements. Words like "believes," "expects," "anticipates," "likely," and
similar expressions used in this report are intended to identify forward-
looking statements. These forward-looking statements give the
Partnership's current estimates or expectations of future events,
circumstances or results, including statements concerning possible future
distributions and the amount of time and money that may be involved in
completing the liquidation, winding up and termination of the Partnership
or, if applicable, a Liquidating Trust as a successor to the Partnership.
Any forward-looking statements made in this report are based upon the
Partnership's understanding of facts and circumstances as they exist on the
date of this report, and therefore such statements speak only as of that
date. In addition, the forward-looking statements contained in this report
are subject to risks, uncertainties and other factors that may cause the
actual events or circumstances, or the results or performances of the
Partnership, to be materially different from those estimated or expected,
expressly or implicitly, in the forward-looking statements. In particular,
but without limitation, the accuracy of statements concerning possible
future distributions to the Holders of Interests or the timing, proceeds or
costs associated with completion of a liquidation, winding up and
termination may be adversely affected by, among other things, various
factors discussed below.
Pursuant to Section 5.5J of the Partnership Agreement, on October 23,
1997, the Board of Directors of the General Partner met and approved a
resolution selecting the option set forth in Section 5.5J(i)(c) of the
Partnership Agreement for the Partnership to commence an orderly
liquidation of its remaining assets that was to be completed by October
2002. In November 2002 the Holders of a majority of the outstanding
Interests gave their consent to an amendment (the "Amendment") to the
Partnership Agreement providing for an extension of the term of the
Partnership's liquidation period to not later than October 31, 2005.
Accordingly, the term of the Partnership's liquidation period has been
extended.
In addition, under the terms of the Amendment, the General Partner is
authorized in its sole discretion, to complete the liquidation of the
Partnership by forming a Liquidating Trust. The remaining Partnership
assets would be contributed to the Liquidating Trust subject to all
outstanding obligations and liabilities of the Partnership. Subsequently,
after liquidating any remaining non-cash assets and providing for the
payment or satisfaction of all such obligations and liabilities, the
trustee(s) of the Liquidating Trust would distribute any remaining proceeds
to the General Partner, Associate Limited Partners and Holders of Interests
in proportion to their respective interests in the Liquidating Trust. The
General Partner currently anticipates that a Liquidating Trust will be
formed by October 31, 2005.
Pending the completion of the liquidation, winding up and termination
of the Partnership (or if applicable, the Liquidating Trust), it is
anticipated that the Partnership (or the Liquidating Trust, as the case may
be) will retain a substantial amount of funds in reserve to provide for the
payment of, the defense against, or other satisfaction or resolution of
obligations, liabilities (including contingent liabilities) and current and
possible future claims, including those for possible construction repairs,
homeowner warranty claims, completion of work for certain homeowner
associations and master associations and pending and possible future
litigation and environmental matters. The amount of funds to be retained
in reserve for these purposes has not yet been determined. However, the
Partnership intends to take a cautious approach in determining the amount
of funds to be retained in reserve since it is not possible to estimate
with preciseness the amount of time or money that it will take to effect
the Partnership's (or, if applicable, the Liquidating Trust's) liquidation,
winding up and termination. The Partnership expects that any trustee
appointed to manage the Liquidating Trust would take a similarly cautious
approach. The Partnership currently expects that any available funds in
excess of the amount determined to be held in reserve would be distributed
during 2005 to the partners and Holders of Interests. That portion, if
any, of the funds held in reserve that are not ultimately used to pay,
defend or otherwise resolve or satisfy obligations, liabilities or claims
would subsequently be distributed to the partners and Holders of Interests
as a final liquidating distribution at a later date.
Various factors may affect the timing of completing the liquidation,
winding up and termination of the Partnership (and, if applicable, the
Liquidating Trust) and the amount of a final liquidating distribution of
funds, if any, out of those retained in reserve. These factors include the
time and expense to resolve all obligations, liabilities and claims,
including contingent liabilities and claims that are not yet asserted but
may be made in the future. Among other things, contingencies (including,
without limitation, contingencies relating to potential homeowner warranty
or other homeowner or homeowners' association claims), delays in resolving
pending or threatened litigation or other asserted claims, delays in
satisfying conditions or obligations under permits obtained by the
Partnership, including those for mitigation for the Weston Increment III
area, a delay in obtaining an acknowledgement from the City of Weston of
its responsibility for maintenance of the Weston Increment III mitigation
area, currently unasserted claims that arise in the future and other
factors could require increases in reserves and a reduction in future
distributions to Holders of Interests and could extend the time, and
significantly increase the cost, to complete the liquidation, winding up
and termination.
During January 2005, the Partnership made a distribution of
$10,099,875 to its Holders of Interests ($25 per Interest) and $1,122,208
to its General Partner and Associate Limited Partners, collectively.
At March 31, 2005 and December 31, 2004, the Partnership had
unrestricted Cash and cash equivalents and debt securities held-to-maturity
of approximately $45,298,000 and $57,559,000, respectively. At April 30,
2005, the Partnership had unrestricted Cash and cash equivalents and debt
securities held-to-maturity of approximately $44,785,000. The decrease
from December 31, 2004 to March 31, 2005 is primarily due to the
distribution made in January totaling approximately $11,222,000. Cash and
cash equivalents and debt securities held-to-maturity are available for
remaining operations (including warranty work), payment of liabilities,
costs of winding up, reserves and distributions to partners and Holders of
Interests. The source of both short-term and long-term future liquidity
generally is expected to be derived from these funds since the Partnership
has no continuing business operations.
RESULTS OF OPERATIONS
The decrease in assets on the balance sheet at March 31, 2005 as
compared to December 31, 2004 is primarily due to the January 2005
distribution. The decrease in Accrued expenses and other liabilities is
due primarily to the payment of miscellaneous legal fees, the payment of
warranty costs, and other expenditures relating to the Weston Community
during the three months ended March 31, 2005.
The Partnership has completed construction and closed on the sale of
all its remaining housing units. The Partnership closed on the sale of its
final 128 townhomes, which were in the Partnership's Weston Community
located in Broward County, Florida during 2003. A reserve for estimated
warranty costs is included in Accrued expenses and other liabilities in the
accompanying consolidated balance sheets.
Other operating revenues for the three months ended March 31, 2005
were generated from the sale of a small parcel of land in Boca Raton,
Florida, the carrying value of which was $0. Other operating revenues for
the three months ended March 31, 2004 included the receipt of a payment for
the Partnership granting the release of a deed restriction on a land parcel
sold by the Partnership in a prior year.
Selling, general and administrative expenses decreased for the three
months ended March 31, 2005 as compared to the same period in 2004 due
primarily to decreased support service costs and project administrative
costs resulting from the continued orderly liquidation of the Partnership's
business operations.
Interest income increased during the three months ended March 31, 2005
as compared to the same period in 2004 due primarily to the purchase of
debt securities which earn higher interest rates than the Partnership's
previous cash investments.
ITEM 4. CONTROLS AND PROCEDURES
Pursuant to Section 302 of the Sarbanes-Oxley Act and Rule 13a-15 of
the Securities Exchange Act of 1934 (the "Exchange Act") promulgated
thereunder, the principal executive officer and the principal financial
officer of the Partnership have evaluated the effectiveness of the
Partnership's disclosure controls and procedures as of the end of the
period covered by this report. Based on such evaluation, the principal
executive officer and the principal financial officer have concluded that
the Partnership's disclosure controls and procedures were effective as of
the end of the period covered by this report to ensure that information
required to be disclosed in this report was recorded, processed, summarized
and reported within the time period specified in the applicable rules and
form of the Securities and Exchange Commission for this report.
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
See Item 1 of the Financial Statements included in Part I of this
report.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
3.1. Amended and Restated Agreement of Limited Partnership.*
3.2. Acknowledgment and Amendment of Partnership Agreement.*
3.3. Assignment Agreement by and among the General Partner, the
Initial Limited Partner and the Partnership.*
31.1. Certification of the Principal Executive Officer pursuant to
Rule 13a-14(a)/15d-14(a) of the Securities Exchange Act of
1934, as amended, is filed herewith.
31.2. Certification of the Principal Financial Officer pursuant to
Rule 13a-14(a)/15d-14(a) of the Securities Exchange Act of
1934, as amended, is filed herewith.
32. Certifications of Chief Executive Officer and Chief Financial
Officer pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 are
furnished herewith.
------------------------------
* Previously filed with the Securities and Exchange
Commission as Exhibits 3.1, 3.2 and 3.3, respectively, to the
Partnership's Form 10-Q/A Report (File No. 0-16976) filed on
June 6, 2002 and incorporated herein by reference.
(b) No reports on Form 8-K have been filed during the
quarter for which this report is filed.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Partnership has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
ARVIDA/JMB PARTNERS, L.P.
BY: Arvida/JMB Managers, Inc.
(The General Partner)
By: GAILEN J. HULL
Gailen J. Hull, Vice President
Date: May 13, 2005
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed on behalf of Arvida/JMB Partners, L.P. by the
following person in the capacities and on the date indicated.
By: GAILEN J. HULL
Gailen J. Hull, Chief Financial Officer
and Principal Accounting Officer
Date: May 13, 2005