Amended and Restated Declaration of Restrictive Covenants 2,02 3-3 zL3
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This instrument prepared by:
Rafael A. Paz
City Attorney
Office of the City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
(Space reserved for Clerk of Court)
AMENDED AND RESTATED DECLARATION OF RESTRICTIVE COVENANTS
This Amended and Restated Declaration of Restrictive Covenants (hereinafter, this
"Declaration"), is made this 15th day of December, 2023 by VISTA BREEZE, LTD., a Florida
limited partnership, whose address is 161 NW 6th Street, Suite 1020, Miami, FL 33136
(hereinafter the "Leasehold Owner"), and is joined in by the HOUSING AUTHORITY OF THE
CITY OF MIAMI BEACH, a public body corporate and politic established pursuant to Chapter
421, Florida Statutes ("Fee Owner" or "HACMB"), whose address is 200 Alton Road, Miami
Beach, Florida 33139 and collectively with the Leasehold Owner, the "Owner") for the benefit of
the CITY OF MIAMI BEACH, FLORIDA, a Florida municipal corporation, whose address is 1700
Convention Center Drive, Miami Beach, Florida 33139/Attention: Office of Housing and
Community Services Director.
RECITALS:
WHEREAS, Fee Owner owns, in fee simple, the property located at 175 South Shore
Drive and 280 S. Shore Drive, Miami Beach, Miami-Dade County, Florida, Miami Beach, Florida
33141 (hereinafter referred to as the "Premises"), as more particularly described in Exhibit "A"
attached hereto and incorporated herein by reference, as evidenced by that certain Special
Warranty Deed dated December 21, 2012, and recorded in O.R. Book 28413, Page 324, of the
Public Records of Miami-Dade County, Florida and that certain Warranty Deed dated March 31,
2014 and recorded in O.R. Book 29089, Page 4805 of the Public Records of Miami-Dade County,
Florida. Fee Owner has leased the Premises to Leasehold Owner pursuant to that certain
Amended and Restated Ground Lease Agreement dated as of August 6, 2021, as amended by
the First Amendment to Amended and Restated Ground Lease Agreement, dated June 1, 2023,
memoranda of which are recorded in O.R. Book 33775, Page 3426 and O.R. Book 33775, Page
2421, each of the Public Records of Miami-Dade County, Florida, and as further amended by that
certain First Amendment to Amended and Restated Ground Lease, dated June 1, 2023, and that
certain Second Amendment to Amended and Restated Ground Lease Agreement dated as of
September 13, 2023, as amended and restated by that certain Second Amended and Restated
Ground Lease Agreement of even date herewith; and
WHEREAS, on June 22, 2022, the City Commission adopted Resolution No. 2022-32188,
approving the One-Year Action Plan for Federal Funds for the FY 2022, including the allocation
of HOME Investment Partnership ("HOME") Program funds, in the total sum of FIVE HUNDRED
THOUSAND AND 00/100 DOLLARS ($500,000)(the "Original Funds")for Fee Owner to replace
the seawall along the waterfront sections of the Premises, as the initial phase of the development
of the affordable housing rental Project (as defined herein) on the Premises; and
WHEREAS, Fee Owner has competitively selected Leasehold Owner as its development
partner for the development of one hundred and nineteen (119) affordable studio rental housing
units ("Affordable Units")of elderly rental housing, for Extremely-Low, Very-Low-and Low-Income
senior persons, to be known as Vista Breeze (the "Project"); and
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WHEREAS, on June 28, 2023, the Mayor and City Commission adopted Resolution No.
2023-32638, amending Resolution No. 2022-32188, replacing the Fee Owner with the
Leasehold Owner, as the recipient of the Original Funds; and
WHEREAS, additionally, on June 28, 2023, the Mayor and City Commission adopted
Resolution No. 2023-32637, approving an additional FIVE HUNDRED THREE THOUSAND NINE
HUNDRED SIXTY-NINE AND 00/100 DOLLARS ($503,969.00) ("Future Advance Funds") of
HOME Program funds to Leasehold Owner for the Project, for a total HOME Program fund
allocation of ONE MILLION THREE THOUSAND NINE HUNDRED SIXTY-NINE AND 00/100
DOLLARS ($1,003,969.00) (collectively, the "Funds"); and
WHEREAS, with respect to the Original Funds, Owner and the City have made and/or
entered into that certain Declaration of Restrictive Covenants dated as of September 215t, 2023
("Original Declaration"), and recorded on September 27, 2023, in Official Records Book 33902,
at Page 1195, of the Public Records of Miami-Dade County, Florida, and Owner and the City
hereby desire to amend, restate, replace and supersede the Original Declaration pursuant to the
terms of this Declaration.
WHEREAS, with respect to the Original Funds, Leasehold Owner and the City have also
made and/or entered into (1) a HOME Program Development Agreement dated as of September
21, 2023 (the "Original HOME Agreement"), which Original HOME Agreement memorializes the
terms and conditions of said Original Funds, and which Original Funds are committed to be utilized
by Leasehold Owner in the construction of the Project, and specifically the hard costs of
construction of the new seawall during the initial phase of the Project, as amended and restated
pursuant to the Amended and Restated Home Program Development Agreement dated of even
date herewith (the "Amended and Restated HOME Agreement" and together with the "Original
HOME Agreement", collectively, the "HOME Agreement'), to include the allocation of the Future
Advance Funds, which will be used for hard costs of construction; (2) a Leasehold Mortgage,
Security Agreement and Fixture Filing dated as of September 21, 2023 and recorded in Official
Records Book 33902, Page 1175, of the Public Records of Miami-Dade County, Florida ("Original
Mortgage") securing the Original Funds, and amended and restated pursuant to the Amended
and Restated Leasehold Mortgage, Security Agreement and Fixture Filing dated of even date
herewith (the "Amended and Restated Mortgage" and together with the "Original Mortgage",
collectively, the "Mortgage") to include the Future Advance Funds, securing all of the Funds; and
(3) a Promissory Note dated as of September 21, 2023 ("Original Note"), evidencing the Original
Funds, and amended, restated, renewed and consolidated pursuant to an Amended, Restated,
Renewal and Consolidated Promissory Note dated of even date herewith, to include the Future
Advance Funds (the "Consolidated Note" and, together with the Original Note, collectively, the
"Note")in the aggregate principal amount of One Million Three Thousand Nine Hundred and Sixty-
Nine and 00/100 Dollars ($1,003,969.00); (the HOME Agreement, Mortgage, Note and this
Declaration shall be referred to herein, collectively, as the "Loan Documents"); and
WHEREAS, in consideration for the award and disbursement of the HOME Funds, the
City desires, and Owner hereby acknowledges and agrees, to impose certain covenants and
restrictions and recapture provisions ("Covenants") upon the Premises and any improvements
located, or hereinafter to be made, thereon for a period of thirty (30) years, to commence from
the Project Completion Date, as defined herein (the "Affordability Period"). The "Project
Completion Date" shall mean the date of issuance by the City of Miami Beach Building
Department of a Final Certificate of Occupancy for the Project.
NOW, THEREFORE, Owner voluntarily covenants and agrees that the Premises shall be
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subject to the following Covenants during the Affordability Period, that are intended and shall be
deemed to be covenants running with the land and binding upon Owner, and its successors in
interest and assigns(collectively, the"Owner"), for the benefit of the City and its successors and/or
assigns (collectively, the "City"), as follows:
1. The findings set forth in the Recitals of this Declaration are hereby adopted by
reference and incorporated herein, as if fully set forth in this Section.
2. Restrictive Covenants. Owner shall be subject to the following Covenants and
restrictions during the Affordability Period:
(I) Owner shall construct the Project, and from the Project Completion Date,
continuously use the Premises solely and exclusively as an affordable residential rental
property that is consistent with the stated use and purpose of the Project and ancillary
uses related to affordable housing but for no other purpose.
(ii) Owner must open and continuously (subject to temporary vacancies or
closures for repairs and alterations as reasonably necessary to maintain the Project in
good condition and repair and only for such time as reasonably required for such
purposes), operate the Premises as an affordable rental property for Extremely-Low,
Very-Low- and Low-Income elderly persons, that is consistent with the rules and
regulations promulgated by the United States Department of Housing and Urban
Development("HUD"), as same may be amended from time to time during the Affordability
Period; and the rents charged and the tenants thereof must qualify under the rules and
regulations promulgated by HUD at CFR Part 92, as same may be amended from time to
time("HOME Program"). Terms defined in 24 CFR Part 92, and any amendments thereto,
not otherwise defined in this Declaration, shall have the meaning set forth therein.
(iii) If at any time during the Affordability Period the Premises are no longer
used as an affordable residential rental property for elderly persons (in accordance with
subsections (i) and (ii) above), then Owner shall be deemed to be in default; should such
default remain uncured for a period of thirty(30) days after notice thereof shall have been
given by the City to Owner (or for an extended period not to exceed one hundred twenty
days (120) days as may be approved by the City Manager (as defined in the Amended
and Restated HOME Agreement), in the City Manager's sole discretion, if the City
Manager determines that such default stated in such notice can be corrected by Owner
but not within such thirty (30) day period, and further provided that Owner commences
such correction within such initial thirty (30) day period and thereafter diligently pursues
the same to completion within such approved extended period not to exceed one hundred
twenty (120) days), the City shall be entitled to avail itself of any and all remedies under
this Declaration and/or any other Loan Documents (as defined in the recital), including full
and immediate repayment of the Funds, together with all interest thereon, at the Default
Interest Rate (as defined in the Note). Notwithstanding the foregoing, City acknowledges
and agrees that Senior Lenders have the right, but not the obligation, to cure defaults as
expressly set forth in the Subordination Agreements (as defined herein).
(iv) In order to further ensure the enforcement of this Section 2, Owner hereby
recognizes, agrees, authorizes, and covenants that the Premises shall not be
encumbered, refinanced, sold, transferred, disposed of, or otherwise conveyed, except for
the following: (i) upon the prior written approval of the City Manager; or (ii) in the case of
a Permitted Transfer (as defined in the Mortgage, and which is anticipated to include
Additional Project Financing and use restrictions related thereto, subject to the City
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Manager's approval); or(iii)the lien of the Permitted Senior Mortgages(as defined herein),
as and to the extent set forth in each of the Subordination Agreements entered into by
Leasehold Owner, the City and each Senior Lender (as defined herein) of even date
herewith and recorded contemporaneously herewith in the Public Records of Miami-Dade
County, Florida (collectively, the "Subordination Agreements"). If at any time during the
Affordability Period the Premises are sold, transferred; or refinanced or encumbered(other
than by a Permitted Transfer or Permitted Senior Mortgage) without the prior written
consent of the City Manager, Owner shall be responsible for the full and immediate
payment to the City of the Funds (i.e. for purposes of this subsection "immediate payment"
shall be defined as delivery and receipt of payment in full of the Funds, to the City no later
than on the date of closing of the proposed mortgage, sale, transfer, or refinance), together
with all interest thereon, at the Default Interest Rate; provided that no such sale, transfer,
refinancing or encumbrance shall operate to impair the enforceability of this Declaration,
which, subject to the rights of the Senior Lenders as expressly set forth in the
Subordination Agreements, shall remain in full force and effect at all times during the
Affordability Period.
(v) With regard to any sale, conveyance or transfer of the Premises or any
direct or indirect general partner, managing member or similar interest in Leasehold
Owner (other than any (i) foreclosure or deed in lieu of foreclosure by a Senior Lender
under a Permitted Senior Mortgage or any pledge or collateral assignment to such Senior
Lender of partnership interests or other collateral or (ii) such sale, conveyance or transfer
to Fee Owner or an HACMB Affiliate (as defined herein) or (iii) such transfer to the tax
credit equity investor of Leasehold Owner in connection with a removal of the general
partner for cause), in addition to repayment of the Funds, together with all interest thereon,
at the Default Interest Rate, Owner shall pay the City, as additional interest, one and eight-
tenths percent (1.8%) of the profit realized from such sale, conveyance or transfer of the
Premises or any direct or indirect ownership interests in Leasehold Owner ("Profit
Recapture"). The "net profits" shall mean the greater of the fair market value or purchase
price of the Premises at the time of such sale, conveyance or transfer less (a) the
outstanding balances secured by each of(I)the Permitted Senior Mortgages, (II)the City's
Mortgage and (III) any subordinate mortgages approved by the City, (b) any unreturned
limited partnership equity contributions made to Leasehold Owner by its limited partners
at the closing of the construction loan (not to exceed $26,310,934.00), (c) any then-
outstanding amount of the deferred developer fee contributed to Leasehold Owner by its
partners or their affiliates at the closing of the construction loan (not to exceed
$3,228,043.00) and (d) reasonable and customary closing costs. For purposes of the
foregoing, the mortgage made by Leasehold Owner, as mortgagor, to HACMB, as
mortgagee, to secure indebtedness in the amount of $8,800,000.00 is an approved
subordinate mortgage as and to the extent set forth in that certain Subordination
Agreement dated as of the date hereof by and between the City, as senior lender, HACMB,
as subordinate lender, and Leasehold Owner, as borrower. In the event of a sale,
conveyance or transfer of less than all of the direct or indirect general partnership,
managing member or similar interests in Leasehold Owner (other than any such transfer
to Fee Owner or an HACMB Affiliate), the City's Profit Recapture shall be calculated in
accordance with the formula set forth herein and further multiplied by the percentage of
such direct or indirect ownership interests being sold, conveyed or transferred. Any
subordinate mortgages which are not approved in writing by the City Manager shall not be
considered in determining the net profits. Notwithstanding anything in the foregoing
paragraph or otherwise in the Loan Documents to the contrary:
(A) the Profit Recapture shall be treated as interest for solely federal income
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tax purposes and each of the parties agrees to report it as such on any applicable returns;
and
(B) the amount of Profit Recapture shall in no event exceed the maximum
interest rate that at any time or from time to time may be contracted for, charged or
received under the laws of the State of Florida.
(vi) In the event of a sale, conveyance or transfer of the Premises at any time
prior to the expiration of the Affordability Period, other than (i) by foreclosure or deed in
lieu of foreclosure by a Senior Lender under a Permitted Senior Mortgage or any pledge
or collateral assignment to Senior Lender of partnership interests or other collateral or(ii)
a sale conveyance or transfer to HACMB or any of the following entities (and no others)
provided that such entities are at all times 100% wholly-owned by HACMB(or,with respect
to HACMB — VB (as defined herein), wholly-owned by an entity that is wholly-owned by
HACMB): Vista Breeze HACMB, Inc., a Florida nonprofit corporation ("VBHI"); Miami
Beach Housing Initiatives, Inc., a Florida nonprofit corporation ("MBHI"); or HACMB—Vista
Breeze, LLC, a Florida limited liability company ("HACMB - VB") (each such entity 100%
wholly-owned by HACMB (or, with respect to HACMB — VB, wholly-owned by MBHI), an
"HACMB Affiliate" and, together, the "HACMB Affiliates"), pursuant to any purchase
option, right of first refusal, or otherwise, the City shall be given the right of first refusal to
purchase the Premises (and the City's acquisition of the Property pursuant to such right
of first refusal shall be subject to and not extinguish any purchase option or right of first
refusal in favor of HACMB or an HACMB Affiliate) and, unless the City otherwise agrees
in writing, shall not extinguish the City's Mortgage. In such case, Owner shall provide the
City with a written notice of the intent to sell, convey or transfer the Premises, and, at the
City's option, an appraisal of the Premises (the "Offer Notice"), along with a copy of any
applicable signed purchase and sale agreement (the "Purchase Offer"), which Purchase
Offer shall be contingent upon the City's refusal to exercise its Right of First
Refusal. Within fifteen (15)days from receipt of said Offer Notice, the City Manager or his
designee may request additional information related to the sale, conveyance or transfer
of the Premises ("Additional Information"). The City Manager, on behalf of the City, shall
have sixty (60) days from receipt of said Offer Notice or the Additional Information,
whichever occurs later("Acceptance Period"), to elect to exercise the right of first refusal,
on its behalf and/or on behalf of its assignee to purchase the Premises for continued
occupancy by eligible persons. If the City elects to exercise the right of first refusal, the
City shall provide Owner with written confirmation of said election to consummate the
transaction within the Acceptance Period. If the City elects not to exercise the right of first
refusal, as confirmed in writing by the City Manager, or fails to respond, in writing, to Owner
within the Acceptance Period, Owner shall have the right to consummate the Purchase
Offer. Any favorable change in the material terms of the Purchase Offer (such as a
decrease in the purchase price)or any new purchase offers shall require Owner to provide
the City with a new written Offer Notice. Fee Owner hereby represents and warrants to
the City that Fee Owner has formed and is the sole member of VBHI and MBHI and that
MBHI is the sole member of HACMB - VB. For the avoidance of doubt, notwithstanding
anything to the contrary set forth in this Declaration or any of the Loan Documents, if at
any time any of VBHI, MBHI and/or HACMB - VB ceases to be 100% wholly-owned by
HACMB (or, in the case of HACMB — VB, wholly-owned by MBHI), then all such entities
shall cease to be "HACMB Affiliates" for all purposes of this Declaration and the Loan
Documents.
(vii) Notwithstanding the prohibition in subsection (iv) hereof, Owner may be
allowed to refinance the Premises during the Affordability Period and this Declaration will
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remain in full force and effect, and the City will subordinate its Mortgage, subject to
Owner's compliance with the following conditions:
(A) The total amount of the indebtedness senior to the City's Mortgage (I)shall
not, without the City's prior written consent, which may be granted or
withheld in the City's sole discretion, exceed the total project costs as
identified in the construction budget for the Project delivered to and
approved by the City as of the date of execution of this Declaration and (II)
shall consist solely of (a) the lien of a senior leasehold mortgage in the
amount of $32,500,000.00 in favor of the Housing Finance Authority of
Miami-Dade County, Florida (the "HFA"), as assigned to The Bank of New
York Mellon Trust Company, N.A., as fiscal agent (the `Fiscal Agent" and
together with the HFA, ''Bond Lender"); (b) the lien of a senior leasehold
mortgage in the amount of $4,300,000.00 in favor of Florida Housing
Finance Corporation, a public corporation and a public body corporate and
politic created and existing under the laws of the State of Florida ("Florida
Housing") as the Viability lender ("Viability Lender"); (c) the lien of a senior
leasehold mortgage in the amount of $3,000,000.00 in favor of Florida
Housing as the SAIL lender ("SAIL Lender"); (d) the lien of a senior
leasehold mortgage in the amount of $600,000.00 in favor of Florida
Housing as the ELI lender("ELI Lender"); (e)(the lien of a senior leasehold
mortgage in the amount of$1,301,500.00 in favor of Florida Housing as the
NHTF lender ("NHTF Lender"); and (f) the lien of a senior leasehold
mortgage in the amount of$5,950,000.00 in a favor of Miami-Dade County,
Florida as the Surtax lender ("Surtax Lender" and together with Bond
Lender, Viability Lender, SAIL Lender, ELI Lender and NHTF Lender,
collectively, the "Senior Lender" and such senior leasehold mortgages,
collectively, the "Permitted Senior Mortgages");
(B) that if subordination of the City's Mortgage to any refinancing of any of the
Permitted Senior Mortgages is required as a condition of the refinance, it
shall be approved by resolution of the Miami Beach City Commission,
which approval, if given at all, shall be in the City Commission's sole
discretion; and
(C) that no "cash outs" will be permitted.
For the avoidance of doubt and notwithstanding anything to the contrary set forth
in this Declaration or any of the Loan Documents, nothing contained herein or therein does
or shall restrict the City's ability to enforce the terms of this Declaration, which shall remain
in full force and effect at all times during the Affordability Period.
(viii) Monitoring: Owner agrees to cooperate with the City in connection with
the monitoring requirements of the HOME Program. Owner shall provide any information
requested by the City within thirty (30) days. This information may include, without
limitation:
(A) annual report on rents and occupancy of HOME-assisted Affordable Units to
verify compliance with affordability requirements;
(B) reports (including financial reports) that enable the City to determine the
financial condition and continued financial viability of the rental project; and
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(C) annual certified tenant rolls.
(ix) Except with respect to the Permitted Senior Mortgages, the Funds, together
with all interest thereon, the Mortgage and this Declaration shall remain a lien superior in
dignity to all other liens, titles, claims, Agreements, and/or other encumbrances, until
satisfied; provided, however, that upon expiration of the Affordability Period, and provided
that Owner has complied with all terms and conditions of the Loan Documents including,
without limitation, the terms and conditions of this Declaration, then the Declaration shall
be released by the City. Owner shall not make any distributions or other payments to any
direct or indirect partners, members or other owners of Owner at any time after the
occurrence and during the continuance of a default (after the expiration of any applicable
notice and/or cure period) under this Declaration or any of the other Loan Documents.
(x) Owner will keep the improvements now or hereafter erected on the
Premises in good condition and repair, will not commit or suffer any waste and will not do
or suffer to be done anything which will increase the risk of fire or other hazard to the
Premises or any part thereof.
(xi) Owner will maintain the insurance requirements set forth in the Loan
Documents.
(xii) Inspector General Audit Rights:
(A) Pursuant to Section 2-256 of the Code of the City of Miami Beach,
the City has established the Office of the Inspector General which may, on a
random basis, perform reviews, audits, inspections and investigations on all City
contracts, throughout the duration of said contracts. This random audit is separate
and distinct from any other audit performed by or on behalf of the City.
(B) The Office of the Inspector General is authorized to investigate City
affairs and empowered to review past, present and proposed City programs,
accounts, records, contracts and transactions. In addition, the Inspector General
has the power to subpoena witnesses, administer oaths, require the production of
witnesses and monitor City projects and programs. Monitoring of an existing City
project or program may include a report concerning whether the project is on time,
within budget and in conformance with the contract documents and applicable law.
The Inspector General shall have the power to audit, investigate, monitor, oversee,
inspect and review operations, activities, performance and procurement process
including but not limited to project design, bid specifications, (bid/proposal)
submittals, activities of Owner, its officers, agents and employees, lobbyists, City
staff and elected officials to ensure compliance with the contract documents and
to detect fraud and corruption. Pursuant to Section 2-378 of the City Code, the
City is allocating a percentage of its overall annual contract expenditures to fund
the activities and operations of the Office of Inspector General.
(C) Upon ten (10) days written notice to Owner, Owner shall make all
requested records and documents available to the Inspector General for inspection
and copying. The Inspector General is empowered to retain the services of
independent private sector auditors to audit, investigate, monitor, oversee, inspect
and review operations activities, performance and procurement process including
but not limited to project design, bid specifications, (bid/proposal) submittals,
activities of Owner, its officers, agents and employees, lobbyists, City staff and
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elected officials to ensure compliance with the contract documents and to detect
fraud and corruption.
(D) The Inspector General shall have the right to inspect and copy all
documents and records in Owner's possession, custody or control which in the
Inspector General's sole judgment, pertain to performance of the contract,
including, but not limited to original estimate files, change order estimate files,
worksheets, proposals and agreements from and with successful subcontractors
and suppliers, all project-related correspondence, memoranda, instructions,
financial documents, construction documents, (bid/proposal) and contract
documents, back-change documents, all documents and records which involve
cash, trade or volume discounts, insurance proceeds, rebates, or dividends
received, payroll and personnel records and supporting documentation for the
aforesaid documents and records.
(E) Owner shall make available at its office at all reasonable times the
records, materials, and other evidence regarding the acquisition (bid preparation)
and performance of this Agreement, for examination, audit, or reproduction, until
three (3) years after final payment under this Agreement or for any longer period
required by statute or by other clauses of this Agreement. In addition:
(1) If this Agreement is completely or partially terminated,
Owner shall make available records relating to the work terminated until
three (3) years after any resulting final termination settlement; and
(2) Owner shall make available records relating to appeals or
to litigation or the settlement of claims arising under or relating to this
Agreement until such appeals, litigation, or claims are finally resolved.
(F) The provisions in this section shall apply to Owner, its officers,
agents, employees, subcontractors and suppliers. Owner shall incorporate the
provisions in this section in all subcontracts and all other agreements executed by
Owner in connection with the performance of this Agreement.
(G) Nothing in this section shall impair any independent right to the City
to conduct audits or investigative activities. The provisions of this section are
neither intended nor shall they be construed to impose any liability on the City by
Owner or third parties.
(xiii) Florida Public Records Law:
(A) Owner shall comply with Florida Public Records law under Chapter
119, Florida Statutes, as may be amended from time to time.
(B) The term "public records" shall have the meaning set forth in
Section 119.011(12), which means all documents, papers, letters, maps, books,
tapes, photographs, films, sound recordings, data processing software, or other
material, regardless of the physical form, characteristics, or means of transmission,
made or received pursuant to law or ordinance or in connection with the transaction
of official business of the City.
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(C) Pursuant to Section 119.0701 of the Florida Statutes, if Owner
meets the definition of "Contractor" as defined in Section 119.0701(1)(a), Owner
shall:
(1) Keep and maintain public records required by the City to
perform the service;
(2) Upon request from the City's custodian of public records,
provide the City with a copy of the requested records or allow the records
to be inspected or copied within a reasonable time at a cost that does not
exceed the cost provided in Chapter 119, Florida Statutes or as otherwise
provided by law;
(3) Ensure that public records that are exempt or confidential
and exempt from public records disclosure requirements are not disclosed,
except as authorized by law, for the duration of the contract term and
following completion of the Agreement if Owner does not transfer the
records to the City;
(4) Upon completion of the Agreement, transfer, at no cost to
the City, all public records in possession of Owner or keep and maintain
public records required by the City to perform the service. If Owner
transfers all public records to the City upon completion of the Agreement,
Owner shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. If
Owner keeps and maintains public records upon completion of the
Agreement, Owner shall meet all applicable requirements for retaining
public records. All records stored electronically must be provided to the
City, upon request from the City's custodian of public records, in a format
that is compatible with the information technology systems of the City.
(D) Request for Records; Noncompliance
(1) A request to inspect or copy public records relating to the City's
contract for services must be made directly to the City. If the City does not possess
the requested records, the City shall immediately notify Owner of the request, and
Owner must provide the records to the City or allow the records to be inspected or
copied within a reasonable time.
(2) Owner's failure to comply with the City's request for records shall
constitute a breach of this Agreement, and the City, at its sole discretion, may: (i)
unilaterally terminate the Agreement; (ii)avail itself of the remedies set forth under
the Agreement; and/or(iii) avail itself of any available remedies at law or in equity.
(3) A Sub-Recipient who fails to provide the public records to the City
within a reasonable time may be subject to penalties under s. 119.10.
(E) Civil Action
(1) If a civil action is filed against a Sub-Recipient to compel production
of public records relating to the City's contract for services, the court shall assess
and award against the Sub-Recipient the reasonable costs of enforcement,
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including reasonable attorneys' fees, if:
(a) The court determines that the Sub-Recipient unlawfully refused to
comply with the public records request within a reasonable time; and
(b) At least 8 business days before filing the action, the plaintiff
provided written notice of the public records request, including a statement that the
Sub-Recipient has not complied with the request, to the City and to the Sub-
Recipient.
(2) A notice complies with subparagraph (1)(b) if it is sent to the City's
custodian of public records and to Owner at Owner's address listed on its contract
with the City or to Owner's registered agent. Such notices must be sent by common
carrier delivery service or by registered, Global Express Guaranteed, or certified
mail, with postage or shipping paid by the sender and with evidence of delivery,
which may be in an electronic format.
(3) If Owner complies with a public records request within 8 business
days after the notice is sent, Owner not liable for the reasonable costs of
enforcement.
(F) IF OWNER HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO
OWNER'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS AGREEMENT, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADO@MIAMIBEACHFL.GOV
PHONE: 305-673-7411
3. The foregoing Covenants shall be considered and construed as covenants and
restrictions running with the land, and the same shall bind all persons claiming ownership of all,
or any portion of, the Premises. The Owner hereby acknowledges and agrees that the City is
intended to be the sole beneficiary of this Declaration, and nothing in this Declaration shall confer
upon any person or entity, other than the City, any rights or remedies under or by reason of this
Declaration.
4. The Owner shall not release or amend this Declaration without the prior written
consent of the City.
5. Invalidation of any of these Covenants by a court of competent jurisdiction shall in
no way affect any of the other Covenants, which shall remain in full force and effect.
6. This Declaration shall be recorded in the Public Records of Miami-Dade County,
Florida, at the cost of the Owner.
Page 10 of 14
7. It is understood and agreed that any official of the City may have the right at any
time during normal working hours and upon reasonable prior written notice to the Leasehold
Owner (and in all cases, subject to the rights of tenants under leases), of entering and
investigating the use of the Premises, to determine whether the conditions of this Declaration and
the requirements set forth herein, are being complied with.
8. An action to enforce the terms and conditions of this Declaration may be brought
by the City and may be by action at law or in equity against any party or person violating or
attempting to violate any provision of this Declaration, either to restrain violations or to recover
damages. The prevailing party in the action or suit shall be entitled to recover costs and
reasonable attorneys'fees, at all levels of trial and appeal. This enforcement provision shall be in
addition to any other remedies available under the law.
9. This Declaration shall be governed by, and construed in accordance with, the laws
of the State of Florida, both substantive and remedial, without regard to the principles of conflict
of laws. The exclusive venue for any litigation arising out of this Declaration shall be Miami-Dade
County, Florida, if in State court, or the U.S. District Court, Southern District of Florida, if in federal
court.
10. This Declaration shall survive any proceedings in bankruptcy, probate or any other
proceedings at law or in equity, but will terminate in the event of foreclosure or deed in lieu of
foreclosure with respect to any mortgage permitted in accordance with Section 2(vii) hereof and
recorded with lien priority senior to the Mortgage, if and as permitted by 24 CFR 92.252(e)(1(ii).
11. The City acknowledges and agrees that, at all times, this Declaration shall be
subject and subordinate to: (i) that certain Land Use Restriction Agreement (SAIL/ELI) to be
entered into with respect to the Project by and between VBL and Florida Housing Finance
Corporation ("FHFC"); (ii)that certain Land Use Restriction Agreement(NHTF) to be entered into
with respect to the Project by and between VBL and FHFC; and (iii) to the extent expressly set
forth in the Subordination Agreements, the rights of the Senior Lenders whose interests are
secured by the Permitted Senior Mortgages.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the Leasehold Owner has hereunto caused these presents to
be signed and, attested by the respective witnesses on this day of , 2023.
WITNESSES: LEASEHOLD OWNER:
VISTA BREEZE, LTD
a Florida limited partnership
By: APC Vista Breeze, LLC
a Florida limited liability compa
its Managing Genera Part r
By:
K nn th Nay or, Vice Pr sident
` ) (-412—'—'
Print Na e: ►Z becc. arrum
Print Name -4/P SGyf r
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
The foregoing Declaration was acknowledged before me, by means of %ysical
presence or ( ) online notarization, this 21-141 day of 14ovomber , 2023, in the
County and State aforesaid, by Kenneth Naylor, as Vice-President of APC Vista Breeze, LLC. a
Florida limited liability company, the managing general partner of VISTA BREEZE, LTD., a Florida
limited partnership, on behalf of said entity. He is personally known to me or has produced
as identification.
Name:-Re cc a rri
Notary Public
Notary Public State of Florida State of Florida at Large
A Rebeca Martinez My commission expires: k k (ZED
.....,r- My Commission
mi..'.. HH 213501
Exp. 1/4 2026
[Signature Page—City HOME Declaration]
Page 12 of 14
IN WITNESS WHEREOF, the Fee Owner has hereunto caused these presents to be
signed and, attested by the respective witnesses on this day of , 2023.
WITNESSES: FEE OWNER:
HOUSING AUTHORITY OF THE CITY OF MIAMI
BEACH, a public body corporate and politic
established pursuant to Chapter 421, Florida
Statu
•
Print Name: rG u O' u!ti
By: �L
Name: l►'13i.eil I 4. ei ll�
Print Name: ,�, Title: Exe«.fire .D •ec-Nr
STATE OF FLORIDA
COUNTY OF MIAMI-DADE }
The foregoing Declaration was acknowledged before me, by means of 2< physical
�p esence or online notarization, this //7 day of � 71 , 2023, by
�iG ('gin/v'«c'as r)4-CC�71-E--D/440- L of HOUSING AUTHORITY OF THE
CITY OF MIAMI BEACH, a public body corporate and politic established pursuant to Chapter 421,
Florida Statutes, on behalf of said entity. He/she is personally known to me or has produced
as identification.
ROBERTODIAZ Name: �oege7ZJ) 2),,►/7
" MY COMMISSION#HH 313355
w•'a`�P EXPIRES:October 30,2026
Notary Public
:FOFi
State of Florida at Large
My commission expires: Ocr-30 ?026,
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
rer City AttorneyJ'
[Signature Page—City HOME Declaration]
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EXHIBIT A
(Legal Description)
PARCEL 1:
Lots 3, 4 and 5, Block 55, of NORMANDY GOLF COURSE SUBDIVISION, according to the
Plat thereof, as recorded in Plat Book 44, at Page 62, of the Public Records of Miami-Dade
County, Florida.
AND
PARCEL 2:
Lots 6, 7 and 8, Block 56, NORMANDY GOLF COURSE SUBDIVISION, according to the Plat
thereof recorded in Plat Book 44, Page 62, of the Public Records of Miami - Dade County,
Florida.
4883-3732-3402,v. 12
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