HomeMy WebLinkAboutCRA-R-14-0055 Exhibit-SUBTHIS DOCUMENT IS A SUBSTITUTION TO
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AMENDMENT
THIS AMENDMENT is made as of this 30 day of July 2014 by and between Island
Living Apartments, Ltd., a Florida limited partnership (the "Developer") and the Southeast
Overtown/Park West Community Redevelopment Agency, a body corporate created pursuant to
Section 163.356, Florida Statues (the "CRA").
RECITALS
A. Developer and the CRA entered into that Development Agreement dated as
October 11, 2012 (the "Development Agreement").
B. Developer has requested the CRA approve the change of control of Developer in
accordance with the provisions of Section 18 of the Development Agreement approving the
transfer of control from CDG Island Living, LLC, a Florida limited liability company ("CDG")
to APC Island Living, LLC, a Florida limited liability company ("APC").
C. The CRA desires to approve the change in control of Developer from CDG to
APC, subject to the terms of this Amendment.
D. Developer and the CRA desire and modify and amend certain terms and
provisions of the Development Agreement as hereinafter set forth.
NOW THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Recitals. The Recitals to this Amendment are true and correct and are hereby
incorporated by reference and made a part hereof.
2. Defined Terms. All defined terms utilized in this Amendment but not defined in
this Amendment shall have the meanings ascribed to said terms in the Development Agreement.
3. Consent to Change of Control. In accordance with Section 18.1 of the
Development Agreement, the CRA hereby approves the change in control of Developer from
CDG to APC.
4. Acceptance of the Property. Developer acknowledges that Developer has had an
adequate opportunity to review and inspect all portions of the Property, including, without
limitation, the environmental condition of the Property and, Developer has determined that the
condition of all portions of the Property are satisfactory to Developer and Developer has
accepted every portion of the Property in its "AS -IS, WHERE -IS, WITH ALL FAULTS"
condition.
5. Survey. Developer acknowledges that the Commitment and the Survey obtained
by Developer with respect to the Property are satisfactory to Developer and Developer
acknowledges that as of March 4, 2013, the effective date of the Commitment, title to the
Property is acceptable to Developer, subject to the obligation of the CRA to cause the lien in
14-00742_.6xht - Su IS
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favor of the City of Miami recorded in Official Records Book 26072, at Page 1535 of the Public
Records of Miami -Dade County, Florida and the lien in favor of the City of Miami recorded in
Official Records Book 26117, at Page 3657 of the Public Records of Miami -Dade County,
Florida, to be released at least seventy-five (75) days prior to the Closing Date.
6. Plans and Specifications. The CRA and the Developer acknowledge and agree
that the Plans and Specifications described on Exhibit "A" attached hereto and made a part
hereof have been approved by the Executive Director.
7. Project Budget. The CRA and Developer acknowledge and agree that the
Executive Director has approved the Project Budget which is attached hereto as Exhibit "B" and
made a part hereof, subject to the Developer providing the Executive Director further back up
and breakdowns with respect to the various line items included in the Project Budget.
8. Development and Financial Approvals. The Developer acknowledges that
Developer has not submitted the Construction Contract, the Loan Commitment, evidence of
Equity or the proposed Funding Agreement to the Executive Director for review and approval in
accordance with Section 6 of the Development Agreement as of the date hereof.
9. General Partner. All references in the Development Agreement to the defined
term General Partner shall mean to be references to APC.
10. References to Matthew S. Greer. All references in the Development Agreement
and any exhibit to the Development Agreement to Matthew S. Greer shall be deemed references
to Howard D. Cohen.
11. Controlled Entity. All references in the Development Agreement to the
Controlled Entity shall be deemed references to an entity controlled by Howard D. Cohen.
12. Bond Issue Approval. Section 7.5 of the Development Agreement is hereby
amended to provide that if the CRA has not obtained closing and funding of the CRA Bond Issue
on terms and conditions acceptable to the CRA in its sole discretion, in an amount of not less
than Forty Three Million Five Hundred Thousand and No/100 Dollars ($43,500,000.00), which
terms and conditions have been approved by the Board of Commissioners of the CRA, on or
before December 31, 2014, then in such event the Development Agreement shall automatically
terminate as of December 31, 2014 and in which event the parties shall be released from all
further obligations under the Development Agreement except for those obligations that expressly
survive termination of the Development Agreement.
13. Closing Date. Section 12 of the Development Agreement is hereby amended and
restated to read as follows:
"12.1 Closing. The closing of the transaction contemplated by this Agreement (the
"Closing Date") shall occur on the earlier of (a) ten (10) days after all the CRA
Conditions Precedent to closing have been either satisfied or waived by the CRA but in
no event prior to the closing and funding of the CRA Bond Issue, or (b) one hundred
twenty (120) days after the closing and funding of the CRA Bond Issue, time being of the
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essence. On the Closing Date the following shall occur provided all of the CRA
Conditions Precedent have been satisfied or waived:
12.2 Extension of the Closing Date. In the event the CRA is not in exclusive
possession of the Property on the Closing Date, the CRA may extend the Closing Date up
to one hundred twenty (120) days to enable the CRA to obtain exclusive possession of
the Property. If the CRA is not in exclusive possession of the Property by the Closing
Date, as extended, Developer shall have the option of (a) waiving the requirements that
the CRA is in exclusive possession of the Property and proceed with the transaction in
which case the Developer will be responsible for obtaining possession of the Property; or
(b) terminating the Development Agreement in which event the parties shall be released
from any further obligations under the Development Agreement except for the
obligations that expressly survive termination."
14. Payment and Performance Bond. In lieu of providing the Payment and
Performance Bond, Developer may provide a letter of credit or other security in such amounts
and in such forms as are acceptable to the Executive Director, in his sole discretion, to assure the
lien free completion of the Project.
15. Outstanding Notices of Violation. the CRA, at its sole cost and expense, shall
cause all notices of violation issued by the City of Miami and all liens associated with any such
violations, to be released at least seventy-five (75) days prior to the Closing Date including the
items recorded in Official Records Book 26117, at Page 3657 and in Official Records Book
26072, at Page 1535, all of the Public Records of Miami -Dade County, Florida.
16. Employment Training Program. Section 9.1 of the Development Agreement is
hereby amended in its entirety to read as follows:
"9.1 Developer shall cause its affiliate APC Island Living Development, LLC, a
Florida limited liability company ("APC Development") to develop a program for
Ariovistus P. Lundy of Palmetto Homes of Miami, Inc., designed to train Mr. Lundy to
become a self-sufficient developer to insure additional sources of local job creation,
economic empowerment and community enhancement. The program will be a mentoring
program for Mr. Lundy. Developer shall provide quarterly reports to the Executive
Director regarding the training program."
17. CRA Conditions Precedent.
a. Section 11.1.9 of the Development Agreement is hereby amended in its entirety to
read as follows:
"11.1.9 The Executive Director shall confirm that (i) Developer is controlled by APC;
(ii) APC is controlled by Howard D. Cohen; and (iii) that there has been no change in the
ownership interests in the Developer other than the transfer of up to 99.99% of the
limited partnership interests in the Developer to tax credit investors which 99.99%
ownership interest is currently owned by 79.992% by Howard D. Cohen, Revocable
Trust U/A/D 4/6/1993 and 19.998% by I.L.A. Community Developer, Inc. which is
controlled by Ariovistus P. Lundy.
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b. Section 11.1.10 of the Development Agreement is hereby amended in its entirety
to read as follows:
"11.1.10 The Executive Director has confirmed that Palmetto Homes of Miami, Inc., a
Florida corporation ("PHM"), has a ten percent (10%) interest in the developer fee and
profit earned by Developer or APC Development (collectively, the "Developer Entity") to
be paid pari passu with the amounts paid to the Developer Entity and PHM has a twenty
percent (20%) ownership interest in the Developer as reflected on Exhibit H."
18. Ownership Interest in Developer. Exhibit H to the Development Agreement is
hereby deleted and replaced by Exhibit "H" attached hereto and made a part hereof
19. Guaranty. Section 12.2.4 of the Development Agreement is hereby amended to
provide that the Guaranty shall be provided by Howard D. Cohen and Stanley Cohen.
20. Assignability. Section 18 of the Development Agreement is hereby amended and
restated in its entirety to read as follows:
"18. ASSIGNABILITY.
18.1 This Agreement may not be assigned without the approval of the CRA,
which approval may be granted or withheld by the CRA, in its sole discretion. For
purposes of this Section 18.1, each of the following events shall be deemed an
assignment requiring the approval of the CRA, which approval shall be granted or
withheld by the CRA in its sole discretion:
(i) The change in control of the Developer which is currently
controlled by APC Island Living, LLC, a Florida limited liability company ("APC").
(ii) Transfer of more than 20% of the membership interest in APC.
(iii) Change in control of APC which is currently controlled by Howard
D. Cohen."
21. Notices. Section 19 of the Development Agreement is hereby amended to
provide that notices to the Developer shall be as follows:
"If to Developer:
with a copy to:
Island Living Apartments, Ltd.
c/o APC Island Living LLC
2950 SW 27th Avenue, Suite 200
Miami, FL 33133
Attention: Kenneth Naylor
Ryan D. Bailine, Esq.
Greenberg Traurig, P.A.
333 NE 2"d Avenue
Miami, FL 33131
Fax: 305 961-5523"
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22. GP Loan. Developer acknowledges and agrees that Ariovistus P. Lundy or an
entity that he controls must have at least a 20% ownership interest in the GP Loan to be paid pari
passu with any payments made to the Controlled Entity.
23. Ratification. Except as hereby modified, the CRA and Developer hereby ratify
and reaffirm all the terms and provisions of the Development Agreement.
24. Conflict. To the extent of a conflict between the terms and provisions of this
Amendment and the terms and provisions of the Development Agreement, the terms and
provisions of this Amendment shall control.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first
above -written.
DEVELOPER:
ISLAND LIVING APARTMENTS, LTD.
a Florida limited partnership
By: APC Island Living, LLC, a Florida limited liability company
Its managing general partner
By: APCHD MM Inc., a Delaware corporation, its Manager
By:
Name: Howard D. Cohen, CEO
CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Clarence E. Woods, III., Executive Director
ATTEST: Approved for legal sufficiency
Clerk of the Board
By:
William R. Bloom, Esq.
Holland & Knight LLP,
Special Counsel to CRA
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JOINDER
The undersigned join in this Amendment for the purpose of agreeing to comply with the
provisions of Section 6.1.4 of the Development Agreement and Section 7 of the Development
Agreement.
General Partner:
APC Island Living, LLC, a Florida limited liability company
By: APCHD MM Inc., a Delaware corporation, its Manager
By:
Name: Howard D. Cohen, CEO
Controlled Entity:
Howard D. Cohen, as Trustee of the Howard
D. Cohen Revocable Trust U/A/D 4/6/1993
6
Plans and Specification
Prepared by Corwil Architects
Entitled: "Waiver Set"
signed and sealed dated 6/7/13
Exhibit "A"
Plans and Specifications
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7
Exhibit "B"
Project Budget
Island Living - Miami, FL - Southeast
Sources & Uses
Permanent Phase
Sources Ref. Total % Per Unit
Permanent Tax Exempt Bond
2,300,000
10.36%
32,857
Construction Tax Exempt Bond
•
0.00%
CRA Funding
9,000,000
40.56%
128,571
Surtax
1,400,000
6.31%
20,000
Limited Partner Equity
9.080,000
40.92%
129,714
Deferred Developer Fee
412,023
1.86%
5.886
Total Sources
22,192,023 100.00% 317,029
Permanent Phase
Uses Total % Per Unit
Hard Construction Costs
13,677,351
61.63%
195,391
Recreational/Owner Items
350,000
1.58%
5,000
Hard Cost Contingency
5.0%
674,718
3.04%
9,639
Demolition
60,000
0.27%
857
Construction Interest Expense
357,255
1.61%
5,104
Permanent Loan Origination Fee
23,000
0.10%
329
Permanent Loan Closing Costs
17,250
0.08%
246
Construction Loan Origination Fee
104,800
0.47%
1,497
Construction Loan Closing Costs
39,300
0.18%
561
Costs of Issuance
308,350
1.39%
4,405
Other Loan Closing Costs
45,000
0.20%
643
Accounting Fees
40,000
0.18%
571
Application Fees
30,000
0.14%
429
Appraisal
16,000
0.07%
229
Architect Fee - Design
525,000
2.37%
7,500
Architect Fee - Supervision
70,000
0.32%
1,000
Buildefs Risk Insurance
1%
136,774
0.62%
1,954
Building Permit
108.500
0.49%
1,550
Credit Underwriting Fee
11,162
0.05%
159
Engineering Fee
50,000
0.23%
714
Environmental Report
100,000
0.45%
1,429
FHFC Administrative Fees
69,189
0.31%
988
FHFC Application Fees
3,000
0.01%
43
FHFC Compliance Mon. Fee
187,173
0.84%
2,674
Impact Fees
116,361
0.52%
1,662
Inspection Fees
180,000
0.81%
2,571
Insurance - Property/Liability
28,000
0.13%
400
Legal Fees - Partnership
350,000
1.58%
5,000
Legal Fees - Other
150.000
0.68%
2,143
Market Study
15,000
0.07%
214
Marketing & Advertising
75,000
0.34%
1,071
Stabilization Operating Expenses
75,000
0.34%
1,071
Property Taxes
57,750
0.26%
825
Soil Test Report
10,000
0.05%
143
Survey (Including As -Built)
40,000
0.18%
571
Title Insurance & Recording
140,000
0.63%
2,000
Utility Connection Fee
105,560
0.48%
1,508
CRA Compliance Monitoring Fee
75,000
0.34%
1,071
Soft Cost Contingency
5.0%
138.223
0.62%
1,975
Sub -Total
18.559,716
Reserves Required by Lender
291.637
1.31%
4,166
Developer's Admin. & Overhead
4.0%
742,381
3.35 %
10,605
Developer's Profit
14.0 %
2.598.289
11.71 %
37,118
Total Project Cost
22,192.023
100.00% 317,029
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Construction Phase
Total % Per Unit
0.00%
$13,100,000
45.97%
187,143
9,000,000
31.59%
128,571
1,400,000
4.91%
20,000
4,994,000
17.53%
71,343
000%
-
28,494,000 100.00% 407,057
Construction Phase
Total % Per Unit
13,677,351
66.68%
195,391
350,000
1.71%
5,000
674,718
3,29%
9,639
60,000
0.29%
857
357,255
1.74%
5,104
23,000
0.11%
329
17,250
0.08%
246
104,800
0.51%
1,497
39,300
0.19%
561
308,350
1.50%
4,405
45.000
0.22%
643
40,000
0.20%
571
30,000
0.15%
429
16,000
0.08%
229
525,000
2.56%
7,500
70,000
0.34%
1,000
136,774
0.67%
1,954
108,500
0.53%
1,550
11,162
0.05%
159
50,000
0.24%
714
100,000
0.49%
1,429
69,189
0.34%
988
3,000
0.01%
43
187,173
0,91%
2,674
116,361
0.57%
1,662
180,000
0.88%
2,571
28,000
0.14%
400
350,000
1.71%
5,000
150,000
0.73%
2,143
15,000
0.07%
214
75,000
0.37%
1,071
75,000
0,37%
1,071
57,750
0.28%
825
10,000
0.05%
143
40,000
020%
571
140,000
0.68%
2,000
105,560
0.51%
1,508
75,000
0.37%
1,071
138,223
0.67%
1,975
18,559,716
0.00%
0
742,381
3 62%
10.605
1,210,172
5.90%
17,288
20,512,269 100.00% 293,032
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Exhibit "H"
Ownership Structure
OWNERSHIP/DEVELOPER-STRUCTURE
ISLAND LIVING
Applicant Entity:
Managing General Partner:
(.008% ownership)
Officers:
Member/Manager:
(1% owner)
Officers:
Sole Shareholder:
Sole Trustee:
Sole Beneficiary:
Co -Member:
(99% owner)
Sole Trustee:
Sole Beneficiary:
General Partner:
(.002% ownership)
(To be admitted at financial closing)
Limited Partner (79.992% owner):
Sole Trustee:
Sole Beneficiary:
Limited Partner (19.998% ownership):
(To be admitted at financial closing)
Island Living Apartments, Ltd.
A Florida Limited Partnership
APC Island Living, LLC
A Florida Limited Liability Company
Howard D. Cohen, Chief Executive Officer
Kenneth Cohen, Vice President
Stanley Cohen, Vice President
Randy Weisburd, President
Kenneth Naylor, Secretary
APCHD MM Inc.
A Delaware corporation
Howard D. Cohen, Director
Howard D. Cohen, Chief Executive Officer
Kenneth Cohen, Vice President, Treasurer and Secretary
Stanley Cohen, Vice President
Randy Weisburd, President
Howard D. Cohen Revocable Trust U/A/D 4/6/1993
Howard D. Cohen
Howard D. Cohen
Howard 0. Cohen Revocable Trust U/A/D 4/6/1993
Howard D. Cohen
Howard D. Cohen
Palmetto Homes of Miami, Inc.
A Florida corporation
Ario Lundy, President (100% owner)
Howard D. Cohen Revocable Trust U/A/D 4/6/1993
&/or assigns
Howard D. Cohen
Howard D. Cohen
I.L.A. Community Developer, Inc.
A Florida corporation
Ario Lundy, President (100% owner)
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OWNERSHIP/DEVELOPER STRUCTURE
ISLAND LIVING
Developer: island Living Development, LLC
A Florida Limited Liability Company
Member/Manager (Lead Developer): APC Island Living Development, LLC
(80% Ownership Interest) A Florida Limited Liability Company
Howard D. Cohen, Manager
Officers:
Howard D. Cohen, Chief Executive Officer
Kenneth Cohen, Vice President
Stanley Cohen, Vice President
Randy Weisburd, President
Kenneth Naylor, Secretary
Liz Wong, Secretary
Member: Atlantic Pacific Communities, LLC
A Delaware limited liability company
Members: Howard D. Cohen Revocable Trust U/A/D 4/6/1993 (44.5% Owner)
Randy Weisburd (18.5% Owner)
Kenneth Cohen (18.5% Owner)
Stanley Cohen (18.5% Owner)
Officers:
Manager:
Members:
Officers:
Co -Member:
(20% Ownership Interest)
Howard D. Cohen, Chairperson and Chief Executive Officer
Randy Weisburd, President
Kenneth Cohen, Vice President, Treasurer and Secretary
Stanley Cohen, Vice President
Appreciation Holdings -Manager, LLC
A Delaware limited liability company
Howard D. Cohen, Manager
Howard D. Cohen Revocable Trust U/A/D 4/6/1993 (40% Owner)
Randy Weisburd (25% Owner)
Kenneth Cohen (17.5%Owner)
Stanley Cohen (17.5% Owner)
Howard D. Cohen, President
Randy Weisburd, Chief Operating Officer
Kenneth Cohen, Vice President, Treasurer and Secretary
Stanley Cohen, Vice President
Palmetto Homes of Miami, Inc.
A Florida corporation
Ario Lundy, President (100% owner)
#27647724_v6
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SUBSTITUTED
AMENDMENT
HIS AMENDMENT is made as of this 30 day of July 2014 by and between Island
Living •artments, Ltd., a Florida limited partnership (the "Developer") and the Southeast
Overtow k West Community Redevelopment Agency, a body corporate created pursuant to
Section 163. 6, Florida Statues (the "CRA").
A. Deve
October 11, 2012 (the
RECITALS
er and the CRA entered into that Development Agreement dated as
evelopment Agreement").
B. Developer requested the CRA approve the change of control of Developer in
accordance with the provi 'ns of Section 18 of the Development Agreement approving the
transfer of control from CD land Living, LLC, a Florida limited liability company ("CDG")
to APC Island Living, LLC, a F ida limited liability company ("APC").
C. The CRA desires to
APC, subject to the terms of this Ame
prove the change in control of Developer from CDG to
ment.
D. Developer and the CRA esire and modify and amend certain terms and
provisions of the Development Agreement a iereinafter set forth.
NOW THEREFORE, in consideration o e foregoing and other good and valuable
consideration, the receipt and sufficiency of whic ' hereby acknowledged, the parties agree as
follows:
1. Recitals. The Recitals to this Amen. t are true and correct and are hereby
incorporated by reference and made a part hereof.
2. Defined Terms. All defined terms utilized in s Amendment but not defined in
this Amendment shall have the meanings ascribed to said terms ' the Development Agreement.
3. Consent to Change of Control. In accordance 'th Section 18.1 of the
Development Agreement, the CRA hereby approves the change in . ntrol of Developer from
CDG to AFC.
4. Acceptance of the Property. Developer acknowledges that ► -veloper has had an
adequate opportunity to review and inspect all portions of the Property, . eluding, without
limitation, the environmental condition of the Property and, Developer has deined that the
condition of all portions of the Property are satisfactory to Developer and ' eveloper has
accepted every portion of the Property in its "AS -IS, WHERE -IS, WITH AL . FAULTS"
condition.
5. Survey. Developer acknowledges that the Commitment and the Survey o . ained
by Developer with respect to the Property are satisfactory to Developer and Deve ' .er
acknowledges that as of , the effective date of the Commitment, title to e
Property is acceptable to Developer, subject to the obligation of the CRA to cause the lien i
fa
Rec
Officia
Florida,
SUBSTITUTED
of the City of Miami recorded in Official Records Book 26072, at Page 1535 of the Public
of Miami -Dade County, Florida and the lien in favor of the City of Miami recorded in
ecords Book 26117, at Page 3657 of the Public Records of Miami -Dade County,
e released at least seventy-five (75) days prior to the Closing Date.
6. ' lans and S . ecifications. The CRA and the Developer acknowledge and agree
that the Plans d Specifications described on Exhibit "A" attached hereto and made a part
hereof have been proved by the Executive Director.
7. Pro'e Bud h et. The CRA and Developer acknowledge and agree that the
Executive Director has .proved the Project Budget which is attached hereto as Exhibit "B" and
made a part hereof, subj , t to the Developer providing the Executive Director further back up
and breakdowns with respe to the various line items included in the Project Budget.
8. Development . Financial A..rovals. The Developer acknowledges that
Developer has not submitted Construction Contract, the Loan Commitment, evidence of
Equity or the proposed Funding A: ement to the Executive Director for review and approval in
accordance with Section 6 of the De opment Agreement as of the date hereof.
9. General Partner. All re
nces in the Development Agreement to the defined
term General Partner shall mean to be refe . ces to APC.
10. References to Matthew S. Gree All references in the Development Agreement
and any exhibit to the Development Agreement Matthew S. Greer shall be deemed references
to Howard D. Cohen.
11. Controlled Entity. All references i the Development Agreement to the
Controlled Entity shall be deemed references to an entity ntrolled by Howard D. Cohen.
12. Bond Issue Approval. Section 7.5 of the
amended to provide that if the CRA has not obtained closing
on terms and conditions acceptable to the CRA in its sole disc
than Forty Three Million Five Hundred Thousand and No/100 D
terms and conditions have been approved by the Board of Commi
before December 31, 2014, then in such event the Development Agre
terminate as of December 31, 2014 and in which event the parties sh
further obligations under the Development Agreement except for those obl
survive termination of the Development Agreement.
13. Closing Date. Section 12 of the Development Agreement is here amended and
restated to read as follows:
evelopment Agreement is hereby
funding of the CRA Bond Issue
tion, in an amount of not less
rs ($43,500,000.00), which
oners of the CRA, on or
ent shall automatically
be released from all
tions that expressly
"12.1 Closing. The closing of the transaction contemplated by this Agre- ent (the
"Closing Date") shall occur on the earlier of (a) ten (10) days after all CRA
Conditions Precedent to closing have been either satisfied or waived by the CRA . t in
no event prior to the closing and funding of the CRA Bond Issue, or (b) one hun.. - d
twenty (120) days after the closing and funding of the CRA Bond Issue, time being of
2
SUBSTITUTED
essence. On the Closing Date the following shall occur provided all of the CRA
onditions Precedent have been satisfied or waived:
12,. Extension of the Closing Date. In the event the CRA is not in exclusive
poss ion of the Property on the Closing Date, the CRA may extend the Closing Date up
to one dred twenty (120) days to enable the CRA to obtain exclusive possession of
the Prop. . If the CRA is not in exclusive possession of the Property by the Closing
Date, as e nded, Developer shall have the option of (a) waiving the requirements that
the CRA is exclusive possession of the Property and proceed with the transaction in
which case the eveloper will be responsible for obtaining possession of the Property; or
(b) terminating Development Agreement in which event the parties shall be released
from any furthe obligations under the Development Agreement except for the
obligations that exp sly survive termination."
14. Pa ment and formance Bond. In lieu of providing the Payment and
Performance Bond, Developer provide a letter of credit or other security in such amounts
and in such forms as are acceptabl- • the Executive Director, in his sole discretion, to assure the
lien free completion of the Project.
15. Outstandin: Notices of elation. the CRA, at its sole cost and expense, shall
cause all notices of violation issued by th- ity of Miami and all liens associated with any such
violations, to be released at least seventy-fi (75) days prior to the Closing Date including the
items recorded in Official Records Book 26 7, at Page 3657 and in Official Records Book
26072, at Page 1535, all of the Public Records o iami-Dade County, Florida.
16. Employment Training Program. Se 'on 9.1 of the Development Agreement is
hereby amended in its entirety to read as follows:
"9.1 Developer shall cause its affiliate APC land Living Development, LLC, a
Florida limited liability company ("APC Develo Is ent") to develop a program for
Ariovistus P. Lundy of Palmetto Homes of Miami, I , designed to train Mr. Lundy to
become a self-sufficient developer to insure additionsources of local job creation,
economic empowerment and community enhancement. - program will be a mentoring
program for Mr. Lundy. Developer shall provide quart- reports to the Executive
Director regarding the training program."
17. CRA Conditions Precedent.
a. Section 11.1.9 of the Development Agreement is hereby ame s ed in its entirety to
read as follows:
"11.1.9 The Executive Director shall confirm that (i) Developer is cont led by APC;
(ii) APC is controlled by Howard D. Cohen; and (iii) that there has been no • , ange in the
ownership interests in the Developer other than the transfer of up to 99.' ' ° o of the
limited partnership interests in the Developer to tax credit investors which ' 9.99%
ownership interest is currently owned by 79.992% by Howard D. Cohen, Re cable
Trust U/A/D 4/6/1993 and 19.998% by I.L.A. Community Developer, Inc. whi. , is
controlled by Ariovistus P. Lundy.
3
SUBSTITUTED
b. Section 11.1.10 of the Development Agreement is hereby amended in its entirety
to read as follows:
"1 .10 The Executive Director has confirmed that Palmetto Homes of Miami, Inc., a
Flori • corporation ("PHM"), has a ten percent (10%) interest in the developer fee and
profit - . ed by Developer or APC Development (collectively, the "Developer Entity") to
be paid p. ' passu with the amounts paid to the Developer Entity and PHM has a twenty
percent (20 ownership interest in the Developer as reflected on Exhibit H."
18. Owner
hereby deleted and repla
Interest in Develo 'er. Exhibit H to the Development Agreement is
d by Exhibit "H" attached hereto and made a part hereof.
19. Guaranty. S ion 12.2.4 of the Development Agreement is hereby amended to
provide that the Guaranty shal e provided by Howard D. Cohen and Stanley Cohen.
20. Assignability. Sec
restated in its entirety to read as foll
"18. ASSIGNABILITY.
n 18 of the Development Agreement is hereby amended and
s:
18.1 This Agreement ma ' of be assigned without the approval of the CRA,
which approval may be granted or held by the CRA, in its sole discretion. For
purposes of this Section 18.1, each the following events shall be deemed an
assignment requiring the approval of the CRA, which approval shall be granted or
withheld by the CRA in its sole discretion:
(i) The change in control the Developer which is currently
controlled by APC Island Living, LLC, a Florida 1 'ted liability company ("APC").
(ii) Transfer of more than 20% of thembership interest in APC.
(iii) Change in control of APC which is • rently controlled by Howard
D. Cohen."
21. Notices. Section 19 of the Development Agreemen s hereby amended to
provide that notices to the Developer shall be as follows:
"If to Developer: Island Living Apartments, Ltd.
c/o APC Island Living LLC
2950 SW 27th Avenue, Suite 200
Miami, FL 33133
Attention: Kenneth Naylor
with a copy to: Ryan D. Bailin, Esq.
Greenberg Traurig, P.A.
333 NE 2" d Avenue
Miami, FL 33131
Fax: 305 961-5523"
4
SUBSTITUTED
22. GP Loan. Developer acknowledges and agrees that Ariovistus P. Lundy or an
entity t t he controls must have at least a 20% ownership interest in the GP Loan to be paid pari
passu wi y payments made to the Controlled Entity.
23. ' atification. Except as hereby modified, the CRA and Developer hereby ratify
and reaffirm al e terms and provisions of the Development Agreement.
24. Con. ct. To the extent of a conflict between the terms and provisions of this
Amendment and the terms and provisions of the Development Agreement, the terms and
provisions of this Ame ment shall control,
IN WITNESS WH • ' OF, the parties have executed this Amendment as of the date first
above -written.
DEVELOPER.:
ISLAND LIVING APARTMENTS,
a Florida limited partnership
By: APC Island Living, LLC, a orida limited liability company
Its managing general partner
By: APC HTM, Inc., a Delawa ' corporation, its Manager
By:
Name: Howard D. Cohen, CEO
CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Clarence E. Woods, III., Executive Director
ATTEST:
Clerk of the Board
Approved for legal sufficiency
By:
William R. Bloom, Esq.
5
SUBSTITUTED
olland & Knight LLP,
-cial Counsel to CRA
SUBSTITUTED
JOINDER
undersigned join in this Amendment for the purpose of agreeing to comply with the
provision Section 6.1.4 of the Development Agreement and Section 7 of the Development
Agreement \
General ' er:
APC Island L ng, LLC, a Florida limited liability company
By: AHTM, Inc., a Delaware corporation, its Manager
By:
Name: H
Controlled Entity:
By:
Name: Howard D. Cohen
d D. Cohen, CEO
7
SUBSTITUTED
Exhibit "A"
Plans and Specifications
(Description of Plans and Specifications to be inserted)
8
Exhibit "13"
Project Budget
IsIan. Living - Miami, FL - Southeast
Source & Uses
Permanent Phase
Sources Ref. Total % Per trrlit
Permanent Tax Exe Rend
2,300,000
10.36%
32,657
Construction Tax Exem and
-
0,00%
CRA Funding
9,006,000
40,56%
126,571
Surtax
1,400,000
8.31%
20,000
Limited Partner Equity
0,080,000
40,92%
129,714.
Deferred Developer Fee
412,023
1.66°/v
, 5,886
`rota: Sources
2.21_92,023 106,08% 317,029
Po
Uses Total
'3,677,351
manent 1,1hase
%1
01,63%
1,68%
3.04%
0,27%
1.51%
0.10%
0.08%
0.47%
0.18%
1.39%
0,20'4
-
Per Unit
195,391
5,000
9,639
057
5,104
329
246
1,497
561
4,405
643
Tlard CensUuotiOn Costs
Recreational/Owner Items
Hard Cost Contingonoy
Demolition
6,0%
350,000
674,718
60,000
Construction Interest Expense
Permanent Loan Origination Fee
Permanent Loan Closing Costa
Construction Loan Origination Fee
Construction Loan Closing Costa
Costs of Issuance
Other Loan Closing Costs
'157,55
'3,000
50
104, ►0
39,3►
308,360
Ateeirelfng Foes
�4,6,90,0
41,000
►,18►
071
Application Fees
30,000
4%
429
Approtsal
16,000
0.►
229
Architect Fee - Design
525,000
2,3'
7,500
Architect Fee - Supervision
70,000
0,32%
1,000
Builder's Risk Insurance
1%
135,774
0.62%
1,954
Building Permit
108,500
0.49%
1,550
Credit Underwriting Foe
11,162
0,05%
159
Engineering Fee
50,000
0.23%
4
Environmental Report
10(1,000
0.45%
1,4
FHFC Administrative Foea
69,189
0.31 %
988
FHFC Application Fees
3,000
0.01%
43
FHFC Compliance Mon. Fee
187,173
0.84%
2,674
impact Fees
116,361
0.52%
1,662
Inspection Fees
180,000
0.61%
2,571
Insurance - Property/Llablllty
28,000
0.13%
400
Legal Fees - Partnership
350,090
1.58%
5,000
Legal Fees - Other
150,000
0.88%
2,143
Markel Study
15,000
0.07%
214
Marketing &Advertising
76,000
0.34%
1,071
Stabilization Operating Expenses
78,000
0.34%
1,071
Property Taxes
57,750
0.26%
825
Soil Test Report
10,000
0.06%
143
Survey (Including As -Built)
40,000
0.16%
571
Title Insurance & Recording
140,000
0.63%
2,000
Utility Conneclbn Foe
106,560
0,48%
1,508
OM Compliance Monitoring Fee
76,000
0,34%
1,071
SQtt Cog1,9p11U11Aogey
5.0°/9
138,223
0:62%
1,975
Sub -Total
46,559,716
4
Reserves Required 4y Lender
291,637
,31.t
4, 8A
Developer's Admin. & Overhead
.f.0%
742,381
3.35%
10, 05
Developers Profit
14,07s,
2,598,289
11.71%
37,118
Tote1 Pro(ect Coat
22,192,023
106..0% 317,029
9
SUBSTITUTED
Construction Phase
Total % Par Unit
-
b,00%
-
S13,100,000
45.97%
187,143
9,000,000
31.5915
126,571
1,400,000
4,9115'
20,000
4,994,000
17.53%
71,343
9,00.1
28,494,109 ¶p0i0b3i 407,067
di a ruc ion P nee
1jpf % Per Untt
13,677,351
66.68%
195,391
350,000
1,7115
5,000
674,716
3.2914
9,639
60,000
0.20%
857
367,255
1,74 '
5,104
23,000
0.11%
329
17,250
0.08%
246
104,800
0.51%
1,497
39,300
0.19%
561
308,350
1.50%
4,405
45,000
0r22%
_
' 40,aoo
0.20%
_.94
87
30,000
0.16%
429
16,000
0.08%
229
525,900
2.5615
7,500
70,000
0.34%
1,000
136,774
0.87%
1,954
108,600
0,53%
1,550
11,162
0,05%
169
50,000
0.24%
714
100,000
0.49%
1,429
69,189
0.34%
988
3,000
0.01%
43
187,173
0,0115
2,674
116,361
0.57%
1,582
180,000
0.68%
2,671
28,000
0.14%
400
350,000
1.71°,4
5,000
150,000
0.73%
2,143
15,000
0r07"/0
214
75,000
0.37%
1,071
5,000
0.37%
1,071
760
0,26%
825
10, r0
0.0 %
143
40,0q
0.20%'
571
140,001
0,68%
2,000
105,560
0.61%
1,508
75,000
0.37%
1,071
138,223
1%
1,975
18,569,718
..0'.
0
/42,381
3.82".
10,605
1,210,172
6.9015
17,288
20,612,269 100.00% '93,032
SUBSTITUTED
Exhibit "H"
Ownership Structure
OWNERSHIP/DEVELOPER• STRUCTURE
Applicant Entity:
ISLAND LIVING
Managing General Part
(.008% ownership)
Officers:
Member/Manager:
(1% owner)
Officers:
Sole Shareholder:
Sole Trustee:
Sole Beneficiary:
Co -Member:
(99% owner)
Sole Trustee:
Sole Beneficiary:
General Partner:
(.002% ownership)
(To be admitted at financial closing)
Limited Partner (79.992% owner):
Sole Trustee:
Sole Beneficiary:
Limited Partner (19.998% ownership):
(To be admitted at financial closing)
Island Living Apartments, Ltd.
A Florida Limited Partnership
APC Island Living, LLC
A Florida Limited Liability Company
Howard D, Cohen, Chief Executive Officer
Kenneth Cohen, Vice President
Stanley Cohen, Vice President
Randy Weisburd, President
Kenneth Naylor, Secretary
APCHD MM Inc.
Delaware corporation
ward D. Cohen, Director
How. ' D. Cohen, Chief Executive Officer
Kennet ohen, Vice President, Treasurer and Secretary
Stanley C• •n, Vice President
Randy Weis• rd, President
Howard D, Cohe ' evocable Trust U/A/D 4/6/1993
Howard D. Cohen
Howard D. Cohen
Howard D. Cohen Revocab . rust U/A/D 4/6/1993
Howard D. Cohen
Howard D. Cohen
Palmetto Homes of Miami, Inc.
A Florida corporation
Ario Lundy, President (100% owner)
Howard D. Cohen Revocable Trust U/A/D 4/6/
&/or assigns
Howard D. Cohen
Howard D. Cohen
I.L.A. Community Developer, Inc.
A Florida corporation
Arlo Lundy, President (100% owner)
10
SUBSTITUTED
OWNERSHIP/DEVELOPER STRUCTURE
ISLAND LIVING
Developer: Island Living Development, LLC
A Florida Limited Liability Company
Member/Mans: (Lead Developer): APC Island living Development, LLC
(80% Ownership I rest) A Florida Limited Liability Company
Howard D. Cohen, Manager
Officers:
Member:
Members:
Officers:
Manager:
Members:
Officers:
Co -Member:
(20%Ownership Interest)
Howard D. Cohen, Chief Executive Officer
Kenneth Cohen, Vice President
Stanley Cohen, Vice President
Randy Weisburd, President
Kenneth Naylor, Secretary
Liz Wong, Secretary
tlantic Pacific Communities, LLC
elaware limited liability company
Howe . D. Cohen Revocable Trust U/A/D 4/6/1993 (44,5% Owner)
Randy isburd (18,5% Owner)
Kenneth ► en (18.5% Owner)
Stanley Coh (18.5% Owner)
Howard D. Coh- Chairperson and Chief Executive Officer
Randy Weisburd, silent
Kenneth Cohen, Vic resident, Treasurer and Secretary
Stanley Cohen, Vice P . ident
Appreciation Holdings -Ma
A Delaware limited liability c
Howard D, Cohen, Manager
er, LLC
pany
Howard D. Cohen Revocable Trust
Randy Weisburd (25% Owner)
Kenneth Cohen (17,5% Owner)
Stanley Cohen (17.5% Owner)
A/D 4/6/1993 (40% Owner)
Howard D. Cohen, President
Randy Weisburd, Chief Operating Officer
Kenneth Cohen, Vice President, Treasurer and Se -tary
Stanley Cohen, Vice President
Palmetto Homes of Miami, Inc.
A Florida corporation
Ario Lundy, President (100% owner)
11
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