03. Land Use Restriction Agreement (recorded)This document was prepared by and after
recording should be returned to:
Monique Spotts, Esq.
Foley & Lardner LLP
301 E. Pine Street, 1200
Orlando, Florida 328011
32-11'39q-7�s
OR BK 34013 Pss 2545-2576 (32Pss)
RECORDED 12/18/2023 :1.4:33.20
JUAN FERHANOEZ-BARQUIN
CLERK OF' 'THE COUR,r & C:OMP'rROLI...ER
MIAMI-OAOE COUNTY► FL
LAND USE RESTRICTION AGREEMENT
Owner's Vista Breeze, Ltd.
Name and Address: c/o Atlantic Pacific Communities, LLC
161 NW 6"' Street, Suite 1020
Miami, Florida 33136
Attention: Ken Naylor, Vice President
Location of Property: See legal description attached hereto as Exhibit "A"
Name of Project: Vista Breeze
Governmental Lender's Housing Finance Authority of Miami -Dade County, Florida
Name and Address: 7855 NW 12th Street, Suite 202
Doral, Florida 33126
Fiscal Agent's
Name and Address: The Bank of New York Mellon Trust Company, N.A.
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Department
Email: heidi.bowers@bnymellon.com
THIS LAND USE RESTRICTION AGREEMENT (this "Agreement"), made and entered into as
of December 1, 2023, by and among the Housing Finance Authority of Miami -Dade County, Florida (the
"Governmental Lender"), a public body corporate and politic created pursuant to the laws of the State of
Florida (the "State"); Vista Breeze, Ltd., a Florida limited partnership, formed under the laws of the State of
Florida, and its successors and assigns (the "Owner"), The Bank of New York Mellon Trust Company, N.A.,
a national banking association, with a representative corporate trust office in Jacksonville, Florida, as fiscal
agent (the "Fiscal Agent"), pursuant to the Funding Loan Agreement dated as of December 1, 2023, among
the Governmental Lender, the Fiscal Agent and Bank of America, N.A., a national banking association, as the
initial funding lender (its successors and assigns, the "Funding Lender"), authorizing and securing the
Governmental Lender's Multifamily Housing Revenue Note, Series 2023 (Vista Breeze) (the "Governmental
Lender Note"), as amended and restated, the proceeds of which are being loaned to the Owner for the
purposes described herein;
4865-4490-4323.6
3:
WITNESSETH:
WHEREAS, the Owner intends to acquire, construct and equip a multifamily residential rental
project located within Miami -Dade County, Florida (the "County"), to be occupied by Lower -Income
Tenants, all for the public purpose of assisting persons or families of low, moderate or middle income within
the County to afford the costs of decent, safe and sanitary housing; and
WHEREAS, the Governmental Lender has authorized the issuance and delivery of the Governmental
Lender Note in the aggregate principal amount of $32,500,000 pursuant to the Funding Loan Agreement in
order to provide a construction phase loan and a permanent phase loan (collectively, the "Loans") to the
Owner, pursuant to a Construction Phase Borrower Loan Agreement, dated as of December 1, 2023, as
amended and restated (the "Borrower Loan Agreement'), among the Governmental Lender, the Fiscal Agent
and the Owner, to finance the acquisition, construction and equipping of the Project (as hereinafter defined)
and certain costs incurred in connection with the issuance of the Governmental Lender Note, all under and in
accordance with the Constitution and laws of the State; and
WHEREAS, the Funding Loan Agreement and the Borrower Loan Agreement require, as a condition
of making the Loans, the execution and delivery of this Agreement; and
WHEREAS, in order to satisfy such requirement, the Governmental Lender, the Fiscal Agent and the
Owner have determined to enter into this Agreement to set forth certain terms and conditions relating to the
operation of the Project, which is located on the Land (as hereinafter defined); and
WHEREAS, this Agreement shall be properly filed and recorded by the Owner within the official
records of the County and shall constitute a restriction upon the use of the property subject to and in
accordance with the terms contained herein.
NOW THEREFORE, in consideration of providing the financing by the Governmental Lender to
the Owner, acknowledging that compliance with this Agreement is necessary to preserve the exclusion from
gross income for federal income tax purposes of interest on the Governmental Lender Note, the Owner
covenants and agrees with the other parties hereto as follows:
Section 1. Definitions and Interpretation.
(a) The following terms shall have the respective meanings set forth below (undefined terms
shall be given the meanings set forth in the Funding Loan Agreement):
"Affiliated Party" of any person means a person such that (i) the relationship between such persons
would result in a disallowance of losses under Section 267 or Section 707(b) of the Code, or (ii) such persons
are members of the same controlled group of corporations as defined in Section 1563(a) of the Code, except
that "more than 50 percent' shall be substituted for "at least 80 percent' each place it appears therein.
"Applicable Income Limit" means sixty percent (60% of area median gross income (within the
meaning of Section 142(d) of the Code) for Miami -Dade County, Florida, Standard Metropolitan Statistical
Area, determined by the Secretary of the United States Department of the Treasury in a manner consistent
with determinations of low income families and area median gross income under Section 8 of the Housing
Act of 1937, as amended (or if such program is terminated, under such program as in effect immediately
before such termination), including adjustment for family size.
"Available Units" means residential units in a residential rental project that are actually occupied and
residential units in the project that are unoccupied and have been leased at least once after becoming available
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4865-4490-4323.6
for occupancy, provided that a residential unit that is not available for occupancy due to renovations is not an
available unit and does not become an available unit until it has been leased for the first time after the
renovations are completed.
"Authority Program Fee" means the program fee in the amount of $203,125 due the Governmental
Lender upon the failure of the Governmental Lender Note to convert to the permanent period and the
mandatory prepayment of the Governmental Lender Note.
"Bond Counsel" means any attorney at law or firm of attorneys of nationally recognized standing in
matters pertaining to the exclusion from gross income of interest on bonds for federal income tax purposes
issued by states and political subdivisions selected by the Governmental Lender.
"Certificate Concerning Commencement and Termination of Qualified Project Period" means the
certificate, in the form attached hereto as Exhibit "C," required to be delivered by the Owner to the
Governmental Lender and the Fiscal Agent pursuant to Section 3(d) of this Agreement.
"Certificate of Continuing Program Compliance" means the certificate, in the form attached hereto as
Exhibit `B," required to be delivered by the Owner to the Governmental Lender and the Fiscal Agent
pursuant to Section 4(d) of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, and except as otherwise provided
herein or required by the context hereof, includes interpretations thereof contained or set forth in the
applicable regulations of the Department of the Treasury (including applicable final regulations or temporary
regulations), the applicable rulings of the Internal Revenue Service (including published Revenue Rulings and
private letter rulings) and applicable court decisions.
"Compliance Monitoring Fee" means a compliance monitoring fee in an annual amount equal to
$30.00 per rental unit in the Project (119 units; $3,570.00 annual fee) (subject to adjustment from time to time
by the Governmental Lender) to be paid by the Owner to the Governmental Lender commencing on the date
of issuance of the first certificate of occupancy on any unit in the Project and continuing through the Qualified
Project Period or for such longer period if the set -aside requirements required by the Code, Chapter 159, Part
IV, Florida Statutes, or other Governmental Lender requirements remain in force.
"County" means Miami -Dade County, Florida.
"Current Annual Family Income" is determined in accordance with Section 8 of the Housing Act of
1937, as amended (or, if such program is terminated, under such program as in effect immediately before such
termination), and includes salary, commissions, and other forms of compensation from employment, earnings
from assets and investments, income from government programs such as social security, unemployment
compensation and welfare, alimony and child support, and the other forms of income described in the Income
Certification but does not include earnings of children under age 18, lump sum insurance or capital gains,
scholarships, the value of food stamps or the other forms of income that the Income Certification specifies
may be excluded.
"Eligible Persons" means one or more natural persons or a family, irrespective of race, creed,
religion, color, national origin, familial status, mental or physical handicap or sex, who are either Lower -
Income Tenants or whose Current Annual Family Income does not exceed one hundred fifty percent (150%)
of the area median gross income (within the meaning of Section 142(d) of the Code) for Miami -Dade County,
Florida Standard Metropolitan Statistical Area, subject to family size adjustment, as indicated in the latest
published Decile Distributions of Family Income by Standard Metropolitan Statistical Areas and Non -
Metropolitan Counties prepared and published from time to time by HUD, or such other reliable compilation
4865-4490-4323.6
of income statistics as the Governmental Lender may determine to employ, as adjusted by the Governmental
Lender according to the most recent Consumer Price Index statistic; provided that persons 65 years of age or
older shall be defined as "Eligible Persons" regardless of their income.
"Exempt Elderly Unit" means a unit within the Project meeting the requirements for exemption from
the prohibitions against familial status discrimination contained in Title VIII of the Civil Rights Act of 1968
(known as the Fair Housing Act), as amended.
"Funding Loan Agreement" means the Funding Loan Agreement (Construction Phase), dated as of
December 1, 2023, among the Governmental Lender, the Funding Lender and the Fiscal Agent relating to the
issuance of the Governmental Lender Note, as amended and restated pursuant to the Amended and Restated
Funding Loan Agreement, as further amended or supplemented from time to time.
"Governmental Lender Note" means the $32,500,000 Housing Finance Authority of Miami -Dade
County, Florida Multifamily Housing Revenue Note, Series 2023 (Vista Breeze).
"HUD" means the United States Department of Housing and Urban Development or any successor
agency.
"Income Certification" means the Certification of Tenant Eligibility in substantially the form attached
hereto as Exhibit "D."
"Land" means the real property located in the County, described in Exhibit "A" attached hereto.
"Loans" means, collectively, the loans originated by the Governmental Lender with respect to the
Project, made to the Owner in accordance with the Governmental Lender's program guidelines, this
Agreement and the Borrower Loan Agreement, as evidenced by the Project Notes, for the purpose of
financing a portion of the cost of the acquisition, construction and equipping of the Project.
"Loan Documents" means the Funding Loan Agreement, the Borrower Loan Agreement, the Project
Notes, the Mortgage, this Agreement, and all other instruments, documents and certificates evidencing and
securing the Loans.
"Lower -Income Tenants" means Eligible Persons whose Current Annual Family Income does not
exceed the Applicable Income Limit; provided, however, that the occupants of a unit shall not be considered
to be Lower -Income Tenants if all of the occupants of such unit are students (as defined in Section 152(f)(2)
of the Code), no one of whom is entitled to file a joint return under Section 6013 of the Code.
Notwithstanding the foregoing, a residential unit shall not fail to be treated as a residential unit that is
occupied by Lower -Income Tenants merely because such residential unit is occupied (a) by an individual who
is (i) a student and receiving assistance under Title IV of the Social Security Act, (ii) a student who was
previously under the case and placement responsibility of a foster care program (under Part B or Part E of
Title IV of the Social Security Act), or (iii) a student enrolled in a government supported job training
program, or (b) entirely by full-time students if such students are (i) single parents and their children and such
parents are not dependents of another individual and such children are not dependents of another individual
other than a parent of such children or (ii) married and file a joint return.
"Mortgage" means that certain Multifamily Leasehold Mortgage, Assignment of Rents, Security
Agreement and Fixture Filing dated as of December 1, 2023, from the Owner granting a first priority security
interest in the Project and the Land in favor of the Governmental Lender and assigned to the Fiscal Agent, to
secure the Owner's repayment of the Project Notes and the Owner's obligation to pay any other amounts due
pursuant to the Borrower Loan Agreement, the Project Notes and the Funding Loan Agreement.
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4865-4490-4323.6
"Project" means the multifamily residential rental housing development to be known as Vista Breeze,
consisting of 119 units and related facilities located on the Land and financed with proceeds of the Loans.
"Project Notes" means, collectively, the Construction Phase Borrower Note or Permanent Phase
Borrower Note, as applicable, and the Governmental Lender Note.
"Qualified Project Period" means the period beginning on the later of (i) the date the Governmental
Lender Note was issued and (ii) first day on which at least 10% of the units in the Project were first occupied
(which date shall be certified in writing by the Owner to the Governmental Lender and the Fiscal Agent
immediately following such date), and ending on the latest of (a) the date that is fifteen years after the date on
which at least 50% of the units in the Project were first occupied (which date shall be certified in writing by
the Owner to the Governmental Lender and the Fiscal Agent immediately following such date), (b) the first
date on which no tax-exempt private activity bond issued with respect to the Project is outstanding (as
interpreted pursuant to the Code); (c) the date on which any assistance provided with respect to the Project
under Section 8 of the U.S. Housing Act of 1937 terminates; and (d) the date thirty (30) years from the date of
issuance of the Governmental Lender Note.
"Regulations" means the Income Tax Regulations issued under the Code, as applicable (including
applicable final regulations or temporary regulations).
"State" means the State of Florida.
(b) Unless the context clearly requires otherwise, as used in this Agreement, words of the
masculine, feminine or neuter gender shall be construed to include any other gender when appropriate and
words of the singular number shall be construed to include the plural number, and vice versa, when
appropriate. This Agreement and all the terms and provisions hereof shall be construed to effectuate the
purposes set forth herein and to sustain the validity hereof.
(c) The titles and headings of the sections of this Agreement have been inserted for convenience
of reference only and are not to be considered a part hereof and shall not in any way modify or restrict any of
the terms or provisions hereof or be considered or given any effect in construing this Agreement or any
provisions hereof or in ascertaining intent, if any question of intent shall arise.
Section 2. Residential Rental Property. The Owner hereby represents, covenants, warrants and
agrees that:
(a) (i) The Owner will acquire, construct, equip, own and operate the Project for the purpose of
providing a "qualified residential rental project" as such phrase is used in Sections 142(a)(7) and 142(d)(1) of
the Code, (ii) the Owner shall own the entire Project for federal tax purposes, and (iii) the Project shall be
owned, managed and operated as multifamily residential rental properties, each comprised of a building or
structure or several buildings or structures containing similarly constructed units, together with any
functionally related and subordinate facilities and no other facilities, in accordance with Section 142(d) of the
Code and Sections 1.103-8(b)(4) and 1.103-8(a)(3) of the Regulations, and in accordance with such
requirements as may be imposed thereby and by the Code on the Project from time to time.
(b) Each residential unit in the Project shall be contained in one or more buildings or structures
located on the Land and shall be similarly designed, furnished and constructed (except as to the number of
bedrooms and bathrooms), each of which will contain separate and complete facilities for living, sleeping,
eating, cooking and sanitation for an individual or a family, including a living area, a sleeping area, bathing
and sanitation facilities and cooking facilities equipped with a cooking range, refrigerator and sink, all of
which are separate and distinct from the other units.
5
4865-4490-4323.6
(c) None of the units in the Project will at any time be (i) utilized on a transient basis, (ii) used as
a hotel, motel, dormitory, fraternity or sorority house, rooming house, nursing home, hospital, sanitarium, rest
home, trailer court or park, or (iii) rented for initial lease periods of less than six (6) months. No part of the
Project will, at any time during the term of this Agreement be owned or used by a cooperative housing
corporation or converted to condominiums.
(d) All of the units will be rented or available for rent on a continuous basis to members of the
general public (other than units for a resident manager or maintenance personnel), and the Owner will not
give preference to any particular class or group of persons in renting the units in the Project, except to the
extent that units are Exempt Elderly Units or are required to be leased or rented to Lower -Income Tenants or
Eligible Persons. Lower -Income Tenants will have equal access to and enjoyment of all common facilities of
the Project. The Owner will not discriminate against children of any age when renting the units in the Project
(except for units that are Exempt Elderly Units).
(e) Each component of the Land consists of a parcel of real property or parcels of real property
that are contiguous except for the interposition of a road, street, stream or similar property, and the Project
comprises buildings, structures and facilities that are geographically contiguous and functionally related. Any
common facilities (such as swimming pools, recreational facilities, parking areas and other facilities which
are reasonably required for the Project) are functionally related and subordinate to the respective Project and
are commensurate with its size and intended use. No units in the Project shall be occupied by maintenance,
security or managerial employees of the Owner or its property manager.
(f) Neither the Owner nor an Affiliated Party of the Owner shall occupy any of the units in the
Project; provided, however, that the Owner or an Affiliated Party of the Owner may occupy a unit in a
building or structure in the Project that contains five or more units.
(g) None of the proceeds of the Governmental Lender Note (including investment earnings) will
be used to provide a skybox or any other private luxury box, an airplane, or a store the principal business of
which is the sale of alcoholic beverages for consumption off premises or a facility used primarily for
gambling.
The requirements of this Section 2 shall remain in effect during the term of this Agreement (as
defined in Section 13 below).
Section 3. Lower -Income Tenants and Eligible Persons. The Owner hereby represents,
warrants and covenants as follows:
(a) At all times during the Qualified Project Period, not less than forty percent (40%) of the
Available Units (48 units), other than those units occupied by the Owner or an Affiliated Party to the Owner
pursuant to subsection 2(f) above, shall be occupied (or held available for occupancy) on a continuous basis
by persons or families who at the time of their initial occupancy of such units are Lower -Income Tenants.
(b) At all times during the term of this Agreement (as defined in Section 13 below), at least one
hundred percent (100%) of the Available Units in the Project shall be rented to or be available for rent by
Eligible Persons.
(c) For purposes of paragraphs (a) and (b) of this Section 3, a unit occupied by an individual or
family who at the commencement of the occupancy of such unit is a Lower -Income Tenant shall be counted
as occupied by a Lower -Income Tenant during such individual's or family's tenancy in such unit, even though
such individual or family ceases to be a Lower -Income Tenant; however, such unit shall cease to be treated as
occupied by a Lower -Income Tenant upon a determination that the tenant's most recently reported income
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4865-4490-4323.6
exceeds 140% of the Applicable Income Limit if after such determination, but before the next determination,
any residential rental unit of comparable or smaller size in the Project is occupied by a new tenant whose
income exceeds the Applicable Income Limit and the Project is again in compliance. In addition, a unit that
was occupied by a Lower -Income Tenant or an Eligible Person, as applicable, shall be counted as occupied by
a Lower -Income Tenant or an Eligible Person, as applicable, until it is reoccupied other than for a temporary
period of not more than thirty-one (31) days, at which time the unit shall be considered to be occupied by a
Lower -Income Tenant or an Eligible Person, as applicable, only if the individual or family then occupying the
unit satisfies the definition of a Lower -Income Tenant or an Eligible Person, as applicable.
(d) Upon 50% occupancy of the Project, the Owner shall submit a completed Certificate
Concerning Commencement and Termination of Qualified Project Period to the Governmental Lender and the
Fiscal Agent to evidence the foregoing. The Governmental Lender shall execute the Certificate Concerning
Commencement and Termination of Qualified Project Period and return it to the Owner for recording in the
official public records of the County. In the event the Owner does not submit the Certificate Concerning
Commencement and Termination of Qualified Project Period, the Governmental Lender shall utilize
information provided to it by or on behalf of the Owner in satisfaction of the monthly reporting requirements
for purposes of calculating the commencement and termination of the Qualified Proj ect Period for the Project.
(e) In addition to the set aside requirements set forth in paragraphs (a) and (b) of this Section 3,
the Owner has agreed in the regulatory agreements entered into in connection with the Subordinate Loan
Documents (as defined in the Funding Loan Agreement) (the "Subordinate Regulatory Agreements"), that not
less than the following number of the Available Units shall be occupied (or held available for occupancy) on a
continuous basis by persons or families who at the time of their initial occupancy of such units are Lower -
Income Tenants; except that the following percentages will be substituted for 60% in the definition of Lower -
Income Tenants:
Program
#of Units
% Area Median Income
SAIL/ELI/Housin Credits
20
30%
SAIL/Housing Credits
69
60%
SAIL/Housing Credits
30
80%
NHTF
5
22%
The Owner expressly agrees that it will not agree to, or enter into, any modification or amendment to the
Subordinate Regulatory Agreements without the prior written consent of the Governmental Lender, if such
proposed modification or amendment modifies the set aside requirements set forth in this Section 3(e).
Section 4. Reporting Requirements; Payment of Compliance Monitoring Fee and
Authority Program Fee. During the term of this Agreement (as defined in Section 13 below):
(a) The Owner shall obtain and maintain on file an Income Certification in the form attached
hereto as Exhibit "D" from each occupant (i) prior to the time of initial occupancy for such tenant, and (ii)
upon the vacancy and re -occupancy of any residential rental unit in the Project, and with respect to each
Lower -Income Tenant, such Income Certifications shall be obtained as often as necessary to comply with the
requirements of Section 142(d) of the Code.
(b) The Owner shall file with the Governmental Lender, on or before the tenth (1 Oth) day of each
month (or, if such tenth (loth) day of a month falls on a weekend or holiday, submission must be made the
business day immediately preceding such tenth day), copies of the Income Certifications specified in
7
4865-4490-4323.6
Section 4(a) hereof obtained by the Owner during the previous month. The initial Income Certifications shall
be prepared as of the last day of the calendar month during which the rental of the initial unit in the Project
occurred.
(c) The Owner shall maintain complete and accurate records pertaining to the incomes of (as of
the date of initial occupancy of each tenant) and rentals charged to Lower -Income Tenants residing in the
Project, and shall permit during normal business hours and upon five (5) business days' notice to the Owner,
any duly authorized representative of the Governmental Lender to inspect the books and records of the Owner
pertaining to the incomes of and rentals charged to all tenants residing in the Project.
(d) The Owner shall prepare and submit to the Governmental Lender, at the beginning of the
Qualified Project Period and on or before the tenth (1 Oth) day of each month (or, if such tenth (1 Oth) day of
the month falls on a weekend or holiday, submission must be made the business day immediately preceding
such tenth day), rent rolls and a Certificate of Continuing Program Compliance in the form attached hereto as
Exhibit "B," as such form may be revised by the Governmental Lender from time to time upon the advice of
Bond Counsel, executed by the Owner or its designee authorized in writing by the Owner stating: (i) the
percentage of residential rental units that were occupied by Lower -Income Tenants, (ii) that, other than those
units occupied by the Owner or an Affiliated Party to the Owner pursuant to Section 2(f) above, at all times
during the previous month 100% of the residential rental units were occupied (or deemed occupied) by
Eligible Persons, and (iii) that no default has occurred under this Agreement or, if such a default has occurred,
the nature of such default and the steps, if any, the Owner has taken or proposes to take to correct such
default. If the Owner reports to the Fiscal Agent and the Governmental Lender that the vacancy rate at the
Project is ten percent (10%) or higher, the Governmental Lender shall be permitted during normal business
hours and upon five (5) business days' notice to the Owner, to inspect all or some of the vacant units to
determine to the Governmental Lender's reasonable satisfaction that such vacant units are ready and available
for rental. The initial rent roll and Certificate of Continuing Program Compliance shall be prepared as of the
last day of the calendar month during which the rental of the initial unit in the Project occurred.
In the event that the Owner fails to timely submit to the Governmental Lender the items which the
Owner is required to submit under paragraphs (b) and (d) above on or before the tenth day of each month, the
Owner shall pay to the Governmental Lender a late fee equal to $100.00 multiplied by the number of days
elapsing between the due date for such submission and the date on which such submission is delivered to the
Governmental Lender. Any such late fee shall be payable on or before the tenth business day following the
date the Governmental Lender delivers written notification of the amount of such late fee to the Owner (or, if
such tenth day falls on a weekend or a holiday, submission must be made on the business day immediately
preceding such tenth day). The failure of the Owner to timely pay a late fee shall be an event of default by the
Owner under this Agreement.
(e) On or before the annual deadline established by the Internal Revenue Service, during the
Qualified Project Period, the Owner will submit the completed Internal Revenue Code Form 8703-Annual
Certification of a Residential Rental Project or such other annual certification required by the Code to the
Secretary of the Department of Treasury as to whether the Project continues to meet the requirements of
Section 142(d) of the Code.
(f) At all times during the term of this Agreement, the Owner shall be responsible for paying to
the Governmental Lender the Compliance Monitoring Fee. The Owner shall deliver payment of the initial
Compliance Monitoring Fee to the Governmental Lender together with the initial Certificate of Continuing
Program Compliance delivered pursuant to Section 4(d) of this Agreement. The initial Compliance
Monitoring Fee shall be equal to the annual amount prorated from the issuance of the first certificate of
occupancy on any unit in the Project to the following December 1. Thereafter, the Owner shall pay the annual
Compliance Monitoring Fee in advance on or before December 1 of each year. At any time the Governmental
4865-4490-4323.6
Lender Note is paid in full prior to the expiration of the Qualified Project Period, the Compliance Monitoring
Fee (calculated for the period commencing on the date the Governmental Lender Note is paid in full and
ending on the last date of the Qualified Project Period) will be due in a lump sum payment on the date the
Governmental Lender Note is paid in full.
(g) If the Conversion does not occur, upon receipt by the Governmental Lender of written notice
from the Lender notifying the Fiscal Agent that the Conversion has not occurred, the Owner shall pay to the
Governmental Lender the Authority Program Fee.
(h) Any report or disclosure to be made by the Borrower under the Surtax Regulatory Agreement
with respect to the set aside requirements therein shall be provided to the Governmental Lender.
Section 5. Indemnification. The Owner hereby covenants and agrees that it shall indemnify
and hold harmless the Governmental Lender, its past, present and future members, employees, agents and
representatives, and the County, its past, present and future officers of its governing body, employees,
attorneys, agents and representatives, and the Fiscal Agent and its past, present and future officers, directors,
officials, employees and agents (any or all of the foregoing being hereinafter referred to as the "Indemnified
Persons") from and against any and all losses, costs, damages, expenses and liabilities of whatsoever nature or
kind (including but not limited to, reasonable attorneys' fees, litigation and court costs related to trial and
appellate proceedings, amounts paid in settlement and amounts paid to discharge judgments) directly or
indirectly resulting from, arising out of, or related to issuance, offering, sale or delivery of the Governmental
Lender Note, or the design, construction, installation, operation, use, occupancy, maintenance or ownership of
the Project other than for their own negligent, illegal or unlawful acts or omissions. In the event that any
action or proceeding is brought against any Indemnified Person with respect to which indemnity may be
sought hereunder, the Owner, upon timely written notice from the Indemnified Person, shall assume the
investigation and defense thereof, including the employment of counsel and the payment of all expenses. The
Indemnified Person shall have the right to participate in the investigation and defense thereof and may employ
separate counsel either with the approval and consent of the Owner, which consent shall not be unreasonably
withheld, or in the event the Indemnified Person reasonably determines that a conflict of interest exists
between such Indemnified Person and the Owner in connection therewith, and in either such event the Owner
shall pay the reasonable fees and expenses of such separate counsel. The foregoing provisions shall be subject
in all respects to the limitations on liability contained in the Borrower Loan Agreement.
Section 6. Reliance. The Governmental Lender and the Owner hereby recognize and agree that
the representations and covenants set forth herein may be relied upon by all persons interested in the legality
and validity of the Governmental Lender Note and in the exclusion from gross income for federal income tax
purposes of the interest on the Governmental Lender Note. In performing their duties and obligations
hereunder, the Governmental Lender and the Fiscal Agent may rely upon statements and certificates of the
Owner, the Eligible Persons and the Lower -Income Tenants reasonably believed by the Owner, its agents and
employees to be genuine and to have been executed by the proper person or persons, and upon audits of the
books and records of the Owner pertaining to occupancy of the Project. In addition, the Governmental Lender
and the Fiscal Agent may consult with counsel, and the opinion of such counsel shall be full and complete
authorization and protection with respect to any action taken or suffered by the Governmental Lender or the
Fiscal Agent hereunder in good faith and in conformity with the opinion of such counsel. In performing its
duties and obligations hereunder, the Owner may rely upon certificates of the Eligible Persons and the Lower -
Income Tenants reasonably believed to be genuine and to have been executed by the proper person or
persons.
Section 7. Fair Housing Laws. The Owner will comply with all applicable fair housing laws,
rules, regulations or orders applicable to the Project and shall not discriminate on the basis of race, creed,
color, sex, age (except for units that are Exempt Elderly Units), familial status (except for units that are
4865-4490-4323.6
Exempt Elderly Units) or national origin in the lease, use or occupancy of the Project or in connection with
the employment or application for employment of persons for the operation and management of the Project.
All advertising and promotional material used in connection with the Project shall contain the phrase "Fair
Housing Opportunity."
Section 8. Tenant Lists. All tenant lists, applications, and waiting lists relating to the Project
shall at all times be kept separate and identifiable from any other business of the Owner which is unrelated to
the Project, and shall be maintained, as required by the Governmental Lender from time to time, in a
reasonable condition for proper audit and subject to examination during business hours by representatives of
the Governmental Lender or the Fiscal Agent. Failure to keep such lists and applications or to make them
available to the Governmental Lender or Fiscal Agent will be a default hereunder.
Section 9. Tenant Lease Restrictions. All tenant leases shall be expressly subordinate to the
Mortgage, and shall contain clauses, among others, wherein each individual lessee:
(a) Certifies the accuracy of the statements made in the Income Certification;
(b) Agrees that the family income, family composition and other eligibility requirements shall be
deemed substantial and material obligations of such lessee's tenancy; that such lessee will comply promptly
with all requests for information with respect thereto from the Owner, the Fiscal Agent or the Governmental
Lender, and that such lessee's failure to provide accurate information in the Income Certification or refusal to
comply with a request for information with respect thereto shall be deemed a violation of a substantial
obligation of such lessee's tenancy; and
(c) Agrees not to sublease to any person or family who does not execute and deliver to the
Governmental Lender an Income Certification.
Section 10. Sale, Lease or Transfer of Project. The Owner shall not sell, assign, convey or
transfer any material portion of its interest in the land, fixtures or improvements constituting a part of the
Project or any material portion of the personal property constituting a portion of the Project during the term of
this Agreement without (i) the prior written consent of the Governmental Lender, which consent shall not be
unreasonably withheld, and (ii) the Fiscal Agent and the Governmental Lender having received an opinion of
Bond Counsel to the effect that, in reliance upon such factual certificates as it deems appropriate and subject
to such qualifications as may be generally acceptable in the industry, such sale, conveyance, transfer, or
assignment will not result in interest on the Governmental Lender Note, or any part thereof, becoming
includable in the gross income of the holders thereof for federal income tax purposes (except in the hands of a
"substantial user" as defined in the Code),If a material portion of the Project financed or refinanced with
proceeds from the Loans are sold during the term hereof and such material portion of such Project consisted
of personal property or equipment, the proceeds from the sale thereof may be used by the Owner to purchase
property of similar function to be used in connection with the Project, otherwise, the proceeds from such sale
shall be applied in accordance with the Loan Documents. If such material portion of the Project consists of
real property and improvements, the purchaser thereof must execute and deliver to the Owner and the Fiscal
Agent a document in form and substance reasonably satisfactory to the Governmental Lender pursuant to
which such purchaser shall agree to operate such property in compliance with the terms and conditions of this
Agreement.
(b) The Owner shall not sell or otherwise transfer the Project in whole, or transfer or sell any
membership or partnership interest in the Owner, without the prior written consent of the Governmental
Lender (which shall respond within a reasonable period of time and shall not unreasonably withhold such
consent) provided that (i) the Owner shall not be in default hereunder, (ii) it is reasonably expected that
continued operation of the Project will comply with the requirements of this Agreement, (iii) the subsequent
10
4865-4490-4323.6
purchaser or assignee shall execute any document reasonably requested by the Governmental Lender with
respect to assuming the obligations of the Owner under this Agreement, (iv) the Governmental Lender shall
not have any reason to believe that the purchaser or assignee is incapable, financially or otherwise, of
complying with or may be unwilling to comply with, the terms of all agreements binding on such purchaser or
assignee relating to the Project, (v) the purchaser or assignee shall have satisfied such other conditions as may
be reasonable under the circumstances, (vi) if the Governmental Lender Note has not been paid in full and
discharged, the purchaser or assignee shall have first executed a document in recordable form addressed to the
Governmental Lender and the Fiscal Agent to the effect that such purchaser or assignee will comply with the
terms and conditions of the Loan Documents, (vii) if the Governmental Lender Note has not been paid in full
and discharged, the Fiscal Agent and the Governmental Lender shall receive an opinion of counsel reasonably
acceptable to the Governmental Lender to the effect that the purchaser's or assignee's obligations under the
Loan Documents are enforceable against such purchaser or assignee in accordance with their terms, and
(viii) the Fiscal Agent and the Governmental Lender shall have received an opinion of Bond Counsel to the
effect that, in reliance upon such factual certificates as it deems appropriate and subject to such qualifications
as may be generally acceptable in the industry, such sale, transfer, disposition or assignment will not result in
interest on the Governmental Lender Note, or any part thereof, becoming includable in the gross income of
the holder thereof for federal income tax purposes. It is hereby expressly stipulated and agreed that any sale,
transfer or other disposition of the Project in violation of this Section 10 shall be null, void and without effect,
shall cause a reversion of title to the Owner and shall be ineffective to relieve the Owner of its obligations
under the Loan Documents. In the event that the purchaser or assignee shall assume the obligations of the
Owner under the Loan Documents, the Owner shall be released from its obligations thereunder and hereunder,
other than its obligations to pay the Compliance Monitoring Fee for the term of this Agreement.
(c) Notwithstanding anything in this Section 10 to the contrary, ownership of the Project may be
transferred in connection with a foreclosure thereof under the Mortgage, or the acceptance of the Project by
the mortgagee in lieu of foreclosure under the Mortgage, without complying with the requirements of Section
10(a) or Section 10(b) of this Agreement, and this Agreement shall terminate as provided in Section 13;
provided, however, that this sentence shall cease to apply if, at any time during that part of the Qualified
Project Period subsequent to such transfer, the Owner or an Affiliated Party with respect to any such parties
obtains an ownership interest in the Project for federal tax purposes.
(d) Notwithstanding anything in this Section 10 to the contrary, the restrictions set forth above on
the sale, transfer or other disposition or encumbrance of the Project or any portion thereof, or sale of any
membership or partnership interest of the Owner, shall not be applicable to any of the following: (i) leases of
apartment units as contemplated by this Agreement, (ii) grants of utility related easements and service or
concession related leases or easements, including, without limitation, coin -operated laundry service leases
and/or television cable easements on the Project, providing same are granted in connection with the operation
of the Project as contemplated by this Agreement, (iii) any sale or conveyance to a condemning governmental
authority as a direct result of the condemnation or a governmental taking or a threat thereof, (iv) Permitted
Encumbrances under the Mortgage, (v) the placing of a subordinate mortgage lien, assignment of leases
and/or rents or security interest on or pertaining to the Project which is made expressly subject and
subordinate hereto and to the Mortgage, or (vi) transfers of non -managing member interests or limited partner
interests in the Owner to Affiliates of the Equity Investor, (vii) the removal of the managing member or
general partner of the Owner for cause under the Owner's partnership agreement and the temporary
replacement of such managing member or general partner with an Affiliate of the Equity Investor (provided,
that the ultimate replacement managing member or general partner shall be subject to the consent of the
Governmental Lender not to be unreasonably withheld) or (viii) the replacement of HACMB-Vista Breeze
LLC with Vista Breeze HACMB, Inc., as general partner, or change of APC Vista Breeze, LLC from general
partner to special partner.
11
4865-4490-4323.6
The Project name may not be changed after the issuance of the Governmental Lender Note, unless the
Owner submits a written request clearly stating the proposed new name. The Governmental Lender shall act
promptly upon any such requests that are received at least ten (10) days before the next meeting of the Board
of the Governmental Lender.
Section 11. Negative Covenants. During the term of this Agreement, the Owner shall not:
(a) Except pursuant to the provisions of this Agreement and the Loan Documents, or except upon
a sale or transfer of the Project in accordance with the terms of this Agreement and the other Loan
Documents, encumber any of the mortgaged property, including the grant of commercial leases (other than for
vending machines, coin operated laundry facilities and similar amenities functionally related and subordinate
to the Project and granted in connection with the day to day operation of an apartment complex), or permit the
conveyance, transfer or encumbrance of such property (except for such leases and for apartment leases) for
the Qualified Project Period except as otherwise provided herein. Nothing in this paragraph shall prohibit the
granting of easements for the purpose of providing utility services (including cable television or private
satellite television) to the Project.
(b) Demolish any part of the Project necessary for the operation thereof for its intended purposes
or substantially subtract from any real or personal property of the Project; or
(c) Permit the use of the dwelling accommodations of the Project for any purpose except rental
residences in compliance with Section 142(d) of the Code.
Section 12. Covenants to Run with the Land. This Agreement and the covenants, reservations
and restrictions set forth herein shall be deemed covenants running with the Land and, except as provided in
Section 13 hereof, shall pass to and be binding upon the Owner's assigns and successors and all subsequent
owners of the Land or the Projector any interest therein; provided, however, that upon the termination of this
Agreement in accordance with the terms hereof said covenants, reservations and restrictions shall expire.
Except as provided in Section 13 hereof, each and every contract, deed or other instrument hereafter executed
covering or conveying an interest in the Land or the Project or any portion thereof or interest therein shall
conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations
and restrictions, regardless of whether such covenants, reservations and restrictions are set forth in such
contract, deed or other instruments. If a portion or portions of any interest in the Land or the Project are
conveyed, all of such covenants, reservations and restrictions shall run to each portion of the Land or the
Project.
Section 13. Term. This Agreement shall become effective upon its execution and delivery, and
shall remain in full force and effect during the Qualified Project Period; provided, however, that this
Agreement shall terminate in the event of (a) involuntary noncompliance with the provisions of this
Agreement caused by fire or other casualty, seizure, requisition, foreclosure or transfer by deed in lieu of
foreclosure, (b) a change in a federal law or an action of a federal agency that prevents the Governmental
Lender from enforcing the provisions hereof, or (c) a condemnation or a similar event (as determined by Bond
Counsel), but only if within a reasonable period thereafter or prior thereto (i) the Governmental Lender Note
is or has been retired in full or (ii) the proceeds received as a result of such event are used to finance a
development that complies with the provisions hereof and any other applicable requirements of the Code and
the Regulations. In the case of foreclosure or transfer of title by deed in lieu of foreclosure or similar event (as
determined by Bond Counsel), such termination will cease to be in effect if, at any time during the remainder
of the Qualified Project Period, the Owner or an Affiliated Party to the Owner, or either of them, obtains an
ownership interest in the Project for federal tax purposes.
12
4865-4490-4323.6
Section 14. Correction of Noncompliance. The failure of the Owner to comply with any of the
provisions of this Agreement shall not be deemed a default hereunder unless such failure has not been
corrected within a period of sixty (60) days following the date that any of the parties hereto learned of such
failure or should have learned of such failure by the exercise of reasonable diligence (which 60-day period
may be extended if (a) such failure cannot reasonably be corrected within such 60-day period, (b) diligent
action to correct such failure commences within such 60-day period, (c) such action is diligently pursued until
such failure is corrected, and (d) the Owner delivers to the Governmental Lender and the Fiscal Agent an
opinion of Bond Counsel to the effect that such longer cure period will not adversely affect the exclusion of
interest on the Governmental Lender Note from gross income for federal income tax purposes). Not later than
five (5) business days after the Governmental Lender learns of such failure, the Governmental Lender shall
attempt with reasonable diligence to notify the Owner of such failure by written communication; provided,
however, failure of the Governmental Lender to notify the Owner of such failure does not excuse compliance
or extend the period for cure set forth above.
Section 15. Modification of Tax Covenants. Notwithstanding the provisions of Section 23(b)
hereof, to the extent any amendments, modifications or changes to the Regulations or the Code shall, in the
written opinion of Bond Counsel addressed to the Governmental Lender and the Fiscal Agent, impose
requirements upon the ownership, occupancy or operation of the Project different than those imposed by the
Regulations or the Code and stated herein, and the Owner's failure to comply with such different requirements
would produce a material and substantial risk that interest on the Governmental Lender Note will become
includable in gross income for federal income tax purposes, then this Agreement shall be amended and
modified in accordance with such requirements. The parties hereto agree to execute, deliver, and record, if
applicable, any and all documents or instruments necessary in the opinion of and in the form approved by
Bond Counsel to effectuate the intent of this Section 15.
Section 16. Burden and Benefit. The Governmental Lender, the Fiscal Agent and the Owner
hereby declare their understanding and intent that the burden of the covenants set forth herein touch and
concern the Land in that the Owner's legal interest in the Land and the Project is rendered less valuable
thereby. The Fiscal Agent, the Governmental Lender and the Owner hereby further declare their
understanding and intent that the benefit of such covenants touch and concern the Land by enhancing and
increasing the enjoyment and use of the Land and the Project by Lower -Income Tenants, the intended
beneficiaries of such covenants, reservations and restrictions, and by furthering the public purposes for which
the Governmental Lender Note was issued. The Owner hereby expressly acknowledges that this Agreement is
necessary to preserve the exclusion from gross income for federal income tax purposes of interest on the
Governmental Lender Note issued by the Governmental Lender to finance the Loans and covenants and
agrees that in connection with the acquisition, construction, ownership and operation of the Project, it shall
and shall require any subsequent purchaser of the Project to fully comply with all terms and conditions of this
Agreement.
Section 17. Uniformity; Common Plan. The covenants, reservations and restrictions hereof
shall apply uniformly to the entire Project.
Section 18. Maintenance of Insurance; Application of Insurance and Condemnation
Proceeds. The Owner shall maintain insurance with respect to the Project of the type and in the amount of
coverage required by the Mortgage, which requirements may not be amended without the consent of the
Governmental Lender and which requirements are incorporated herein and will survive the termination of the
Mortgage. Funds for the payment of premiums for such insurance policies shall be escrowed with the Fiscal
Agent, or the Funding Lender, so long as the Governmental Lender Note remain outstanding. Evidence in a
form satisfactory to the Governmental Lender of all renewals of any policy of insurance maintained pursuant
to this Section 18 shall be provided to the Governmental Lender no later than ten (10) days prior to the
expiration of any policy period and copies of the renewed policy or certificate (or binder) of insurance shall
13
4865-4490-4323.6
be provided to the Governmental Lender no later than thirty (30) days after the expiration of any policy
period. In the event that copies of all renewals are not received timely, the Governmental Lender may direct
the Fiscal Agent to procure such policies with funds escrowed with the Fiscal Agent. In the event that funds
are escrowed with the Purchaser, the Governmental Lender shall provide notice to the Funding Lender (or to
the Owner in the event the Governmental Lender Note is no longer outstanding) requesting copies of such
renewals. In the event that the Governmental Lender does not receive copies of such renewals within 30 days
of providing such notice to the Funding Lender or Owner, as applicable, the Governmental Lender may, at the
expense of the Owner, procure such insurance with respect to the Project.
If during the Qualified Project Period the Project is damaged or destroyed or if all or a portion thereof
is taken through eminent domain proceedings, or under threat thereof, proceeds from insurance on the Project
or any condemnation awards pertaining to such eminent domain proceedings shall be applied as provided in
the Funding Loan Agreement and the Mortgage.
Section 19. Remedies; Enforceability. The benefits of this Agreement shall inure to, and may be
enforced by, respectively, the Governmental Lender, the Fiscal Agent and its successors, the holders of the
Governmental Lender Note and their successors and assigns to the extent permitted by the Funding Loan
Agreement, and the Lower -Income Tenants and their successors who shall reside or be eligible to reside in the
units set aside for their occupancy pursuant to Section 3 of this Agreement for the period set forth in
Section 13 hereof, whether or not the Loans may be paid in full, and whether or not the Governmental Lender
Note is outstanding. If a material violation of any of the provisions hereof which is not being corrected as
provided in Section 14 hereof occurs or is attempted, such parties may institute and prosecute any proceeding
at law or in equity to abate, prevent or enjoin any such violation or attempted violation; and to compel
specific performance hereunder, it being recognized that the beneficiaries of the Owner's obligations
hereunder cannot be adequately compensated by monetary damages in the event of the Owner's default. In
addition to such other remedies as may be provided for herein, if a violation of any of the provisions hereof
which is not being corrected as provided in Section 14 hereof occurs or is attempted, the Governmental
Lender (with the consent of the Funding Lender if the Governmental Lender Note has not been paid in full
and discharged) may appoint a receiver to operate the Project in compliance with this Agreement. In lieu of
the appointment of a receiver on the conditions provided in the preceding sentence, the Governmental Lender
(with the consent of the Funding Lender if the Governmental Lender Note has not been paid in full and
discharged) shall have the right (but not the obligation) and is specifically authorized by the Owner hereunder
(but only in the event the default is caused by an act or omission of the manager of the Project and only after
such manager is given thirty (30) days' prior notice and right to cure), to appoint a new manager of the Project
to operate the Project in accordance with this Agreement and the other Loan Documents and take all actions
necessary, in the reasonable judgment of the Governmental Lender, to cure any default by the Owner
hereunder, and such new manager assuming such management hereunder shall be paid by or on behalf of the
Owner, from the rents, revenues, profits and income from the Project, a management fee not to exceed the
prevailing management fee paid to managers of similar housing projects in the area of Miami -Dade County,
Florida. Subject to Section 13 hereof, the provisions hereof are imposed upon and made applicable to the
Land and shall run with the Land and shall be enforceable against the Owner or any other person or entity that
has or had an ownership interest in the Project at the time of such violation or attempted violation. No delay in
enforcing the provisions hereof as to any breach or violation shall impair, damage or waive the right of any
party entitled to enforce the provisions hereof or to obtain relief against or recover for the continuation or
repetition of such breach or violation or any similar breach or violation hereof at any later time or times.
Notwithstanding anything herein to the contrary, the liability of the Owner under this Agreement is and shall
be limited to the assets of the Owner, it being specifically understood and agreed that neither the Owner nor
the shareholders, members, limited partners (except a limited partner that is also a general partner), managers,
directors, officers, employees or agents thereof, shall have any personal liability with respect to the
obligations of the Owner set forth herein, and that any party seeking to enforce personal liability against any
shareholder, member, limited partner (except a limited partner which is also a general partner), director,
14
4865-4490-4323.6
officer, employee or agent thereof, shall look only to said assets of the Owner for the satisfaction of such
liability. The remedies of Lower -Income Tenants shall be limited to specific performance.
The Owner hereby agrees that the appointment of a receiver may be necessary to preserve the
exclusion from gross income for federal income tax purposes of interest on the Governmental Lender Note
following a violation of the provisions of this Agreement which presents a material risk of an adverse impact
on the excludability from gross income for federal income tax purposes of interest on the Governmental
Lender Note. The Owner hereby expressly consents to, and agrees not to contest, the appointment of a
receiver to operate the Project following a violation by the Owner of the provisions of Sections 2 or 3 of this
Agreement which is not being corrected as provided in Section 14 hereof and hereby waives any and all
defenses and objections that might otherwise be raised to any such appointment of a receiver. The Owner
further agrees that the Governmental Lender (with the consent of the Funding Lender if the Governmental
Lender Note has not been paid in full and discharged) shall have the right to require the Owner to remove any
manager or managing agent of the Project whose actions or inactions present a material risk of an adverse
impact on the excludability from gross income for federal income tax purposes of interest on the
Governmental Lender Note and which action or inaction is not being corrected as provided in Section 14
hereof, upon such manager or managing agent being given thirty (30) days' written notice of any violation
hereof, and such right shall be expressly acknowledged in any contract between the Owner and any such
manager or managing agent.
Section 20. Filing. Upon execution and delivery by the parties hereto, the Owner shall cause this
Agreement and all amendments and supplements hereto to be recorded and filed in the official public records
of Miami -Dade County, Florida, and in such manner and in such other places as the Governmental Lender or
the Fiscal Agent may reasonably request and shall pay all fees and charges incurred in connection therewith.
Section 21. Governing Law. This Agreement shall be governed by the laws of the State.
Section 22. Assignment. The Owner shall not assign its interest hereunder, except by writing
and in accordance with the provisions of Section 10 hereof.
Section 23. Amendments.
(a) This Agreement shall not be amended, revised, or terminated except by a written instrument,
executed by the parties hereto (or their successors in title), and duly recorded in the official public records for
Miami -Dade County, Florida and, except with respect to amendments contemplated by the next sentence,
consented to in writing by the Funding Lender. Anything to the contrary notwithstanding, the parties hereby
agree to amend this Agreement to the extent required, in the opinion of Bond Counsel, in order for interest on
the Governmental Lender Note to remain exempt from federal income taxation under Section 103 of the
Code. The Owner agrees, from time to time, to take such other actions and steps necessary to comply, and to
cause the Project to comply, with the requirements of Section 142(d) of the Code and to enter into
modifications and amendments to this Agreement to the extent required by any interpretation of federal law,
by any amendment to the Code or by any Regulation promulgated thereunder (and the parties hereto agree
that this Agreement shall be deemed to be automatically amended to impose such requirements pending
execution of any such amendment), in each case so that interest on the Governmental Lender Note remains
exempt from federal income taxes. If either the Owner or the Governmental Lender fails to perform its
obligations under this clause (a), the Fiscal Agent shall be authorized by the Owner and the Governmental
Lender (and is hereby appointed as their respective true and lawful attorney -in -fact) to execute, deliver and
record, on behalf of the Owner or the Governmental Lender, as applicable, any such amendment; provided
that the Fiscal Agent shall take no action pursuant to this sentence without first notifying the Owner and the
Governmental Lender in writing of its intention to take such action and without first providing the Owner or
the Governmental Lender, as applicable, an opportunity to comply with the requirements of this clause (a).
15
4865-4490-4323.6
(b) Subject in all respects to the other provisions of this Agreement, the Governmental Lender,
the Fiscal Agent and the Owner may from time to time enter into one or more amendments or supplements to
this Agreement for any of the following purposes:
(i) To correct or amplify the description of the Project;
(ii) To evidence the succession of another person or entity to the Governmental Lender,
the Fiscal Agent or the Owner and the agreement by any successor to perform the covenants of their
predecessor;
(iii) To make such changes to the covenants hereof to the extent required by Sections 15
and 23(a) hereof in order to maintain the exclusion from gross income for federal income tax
purposes of interest on the Governmental Lender Note;
(iv) To cure any ambiguities, to correct or supplement any provisions of this Agreement
which may be inconsistent with any other provision herein, or to make any other provision with
respect to matters or questions arising under this Agreement, which will not be inconsistent with the
provisions of this Agreement, provided that such action will not adversely affect the interests of the
owners of the Governmental Lender Note; or
(v) Upon delivery of an opinion of Bond Counsel to the effect that such amendment or
supplement will not adversely affect the exclusion from gross income for federal income tax purposes
of interest on the Governmental Lender Note, to amend the covenants of the Owner hereunder to the
extent consistent with any applicable amendment to the Code or Regulations.
Section 24. Notice. Any notice required to be given hereunder shall be given by certified or
registered mail, postage prepaid, return receipt requested, to the Governmental Lender, the Fiscal Agent and
the Owner at their respective addresses set forth in the first paragraph hereof, or at such other addresses as
may be specified in writing by the parties hereto.
Notice shall be deemed given on the third business day after the date of mailing.
Section 25. Provisions Relating to the Fiscal Agent. At such time as the Governmental Lender
Note has been paid in full, the Fiscal Agent shall be released from all duties and obligations under this
Agreement, and all provisions throughout this Agreement related to the duties of, or notice to or from, the
Fiscal Agent shall be of no further force and effect. If any approval or consent of the Fiscal Agent is required,
such approval or consent shall be obtained from the Governmental Lender; however, multiple notices need
not be provided. Notwithstanding the foregoing, any such references shall remain in effect when needed to
construe land use restriction obligations under this Agreement or to provide definitions. The Fiscal Agent's
rights to indemnification shall survive such release and discharge.
Section 26. Severability. If any provision hereof shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or
impaired thereby.
Section 27. Multiple Counterparts. This Agreement may be simultaneously executed in
multiple counterparts, all of which shall constitute one and the same instrument, and each of which shall be
deemed to be an original.
[Remainder of page intentionally left blank]
16
4865-4490-4323.6
IN WITNESS WHEREOF, the Governmental Lender, the Fiscal Agent, and the Owner have
executed this Agreement by duly authorized representatives, all as of the closing date.
[SEAL] 2 MIAMI•DADE•' S,
COUNTY
O,S':•• FLORID •:
,'If
• • ``.
ATTEST:
YV�
s s S etary David Moscoso
HOUSING FINANCE AUTHORITY OF MIAMI-
DADE COUNTY, FLORIDA, as Governmental
Lender
By:
0/—
Name: Don L. H r
Title: Chair
[SIGNATURE PAGE TO LAND USE RESTRICTION AGREEMENT — VISTA BREEZE]
S-1
4865-4490-4323.5
ACKNOWLEDGEMENT OF GOVERNMENTAL LENDER
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing A D USE RESTRICTION AGREEMENT was executed and ackno edged before
me by means of ��/ physical presence or online notarization this —I— day of IZCXM
2023, by Don L. Horn, as Chair of the HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY,
FLORIDA, who executed the within LAND USE RESTRICTION AGREEMENT and acknowledged to me
that they did such on behalf of the Governmental Lender.
��►%� � Notary Public State of Florida
Taquan W Aranha
• My Commission HH 022090
a Expires 08/16/2024
(SEAL)
Personally Known
OR
Produced Identification
Type of Identification Produced
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
%_ A-f I �JAA& n La -
NOTARY VBLIC - STATE OF FLORIDA
The foreg oing I,P TD USE RESTRICTION AGREEMENT was executed and acknowl ed before
me by me s of 1/ physical presence or [ online notarization this A— day of jXUM
2023, byas Assistant Secretary, of the HOUSING FINANCE AUTHORITY OF
MIAMI-DADE COUNTY, FLORIDA, who executed the within LAND USE RESTRICTION AGREEMENT
and acknowledged to me that they did such on behalf of the Governmental Lender.
R
Notary Public State of Florida
Taquan W Aranha
• My Commission HH 022090
a, Expires 08/16/2024
(SEAL)
Personally Known
OR
Produced Identification
Type of Identification Produced
NOTAR UBLIC - STATE OF FLORIDA
[SIGNATURE PAGE TO LAND USE RESTRICTION AGREEMENT — VISTA BREEZE]
S-2
4865-4490-4323.5
WITNESSES:
Prin ame: Marlene IqLafichez
Print Name: Rebeca Martin
STATE OF FLORIDA
COUNTY OF Miami nad
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC, a Florida limited
liability company, its managin"eneral partner
ACKNOWLEDGEMENT OF OWNER
The foregoing LAND USE RESTRICTION AGREEMENT was executed and acknowledged before
me by means of [ X 1 physical presence or r online notarization this 14th day of November
2023, 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, who
executed the within LAND USE RESTRICTION AGREEMENT and acknowledged to me that he did such on
behalf of the Owner.
`i*V+u� MARLENE CASAR SANC4Ei
'- - Notary Public • State of Florida
' . Commission 4 HH 415083
My Comm. Expires Oct 19, 2027'
(SEAL) Bonded through National Notary Assn,
Personally Known X
OR
Produced Identification
Type of Identification Produced
ze
NOT7CRY PUBLIC - STAT FLORIDA
[SIGNATURE PAGE TO LAND USE RESTRICTION AGREEMENT — VISTA BREEZE]
S-3
4865-4490-4323.5
WITNESSES: THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., as fiscal agent
By: ��Ado kt'e
Print Name: shanna Cooke Nam : Stephanie A. Greene4&tthews
Title: Vice President
Print Name: Lori -Ann Soriano
ACKNOWLEDGEMENT OF TRUSTEE
STATE OF FLORIDA
COUNTY OF DUVAL
The foregoing LAND USE RESTRICTION AGREEMENT was executed and acknowledged before
me by means of [ X ] physical presence or[ ' ] online notarization this 1 6th day of November , 2023,
by Stephanie A. Greene -Matthews, as Vice President of THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., a national banking association, who executed the within LAND USE RESTRICTION
AGREEMENT and acknowledged to me that he/she did such on behalf of the Fiscal Agent.
Notary Public State of Florida
Nathan Turner
flit my Commtsston HH 35021e Expires 1/17/2027 NOTARY C -STATE OF FLORIDA
(SEAL)
Personally Known x
OR
Produced Identification _
Type of Identification Produced
[SIGNATURE PAGE TO LAND USE RESTRICTION AGREEMENT — VISTA BREEZE]
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4865-4490-4323.5
EXHIBIT A
LEGAL DESCRIPTION OF LAND
That leasehold estate created by that Second Amended and Restated Ground Lease, by and between Vista
Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City of Miami Beach, a public
body corporate and politic, as evidenced by that Amended and Restated Memorandum of Lease to be recorded
over the following described lands:
PARCEL 1:
LOT 3,4 and 5, Block 55, OF NORMANDY GOLF COURSE, ACCORDING TO THE PLAT
THEREOF, AS RECORDED IN PLAT BOOK 44, AT PAGE 62, OF THE PUBLIC RECORDS OF
MIAMI-DADE COUNTY, FLORIDA.
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.
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4865-4490-4323.6
EXHIBIT B
FORM OF CERTIFICATION OF CONTINUING PROGRAM COMPLIANCE
Witnesseth that on this day of , 20_, the undersigned, having
borrowed certain funds from the Housing Finance Authority of Miami -Dade County, Florida for the purpose
of acquiring, constructing and equipping of Vista Breeze, does hereby certify that such multi -family rental
housing project is in continuing compliance with the Land Use Restriction Agreement executed by the
undersigned and filed in the official public records of Miami -Dade County, Florida (including the requirement
that all units be and remain rental units), that an Income Certification has been submitted for each new tenant
in such multi -family rental housing project since the filing of the last such certification and that the same are
true and correct to the best of the undersigned's knowledge and belief. At all times during the previous month,
at least 40% of the residential units were occupied (or deemed occupied) by Lower -Income Tenants and
100% of the residential units were occupied (or deemed occupied) by Eligible Persons. No default has
occurred under the Land Use Restriction Agreement, or, if a default has occurred, the nature of the default and
the steps, if any, Owner has taken or proposes to take to correct such default are outlined on the Schedule
attached hereto. As of the date of this Certificate, the following percentages of completed residential units in
the Project are occupied by Lower -Income Tenants and Eligible Persons (as such terms are defined in the
Land Use Restriction Agreement), non -revenue units, and vacant units:
Total number of units available for
occupancy as of , 20
Percentage Number
Lower -Income Tenants %
Eligible Persons %
Non -Revenue Units %
Vacant Units %
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4865-4490-4323.6
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC, a Florida limited
liability company, its managing general partner
By:
Kenneth Naylor, Vice President
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4865-4490-4323.6
EXHIBIT C
FORM OF CERTIFICATE CONCERNING COMMENCEMENT
AND TERMINATION OF QUALIFIED PROJECT PERIOD
THIS CERTIFICATE is being executed pursuant to the provisions of the Land Use Restriction
Agreement, dated as of December 1, 2023 (the "Agreement), among the Housing Finance Authority of
Miami -Dade County, Florida (the "Governmental Lender"), The Bank of New York Mellon Trust Company,
N.A. (the "Fiscal Agent") and Vista Breeze, Ltd., (the "Owner"), in connection with the financing by the
Governmental Lender of Vista Breeze (the "Project") in Miami -Dade County, Florida located on real property
described on Exhibit "A" hereto, through the issuance of the Governmental Lender's $32,500,000
Multifamily Housing Revenue Note, Series 2023 (Vista Breeze) (the "Governmental Lender Note").
The period for which the restrictions set forth in the Agreement are applicable to the Project is
referred to as the "Qualified Project Period" and is defined in the Agreement as follows:
"Qualified Project Period" means the period beginning on the later of (i) the date the Governmental
Lender Note was issued and (ii) the first day on which at least 10% of the units in the Project were first
occupied (which date shall be certified in writing by the Owner to the Governmental Lender and the Fiscal
Agent immediately following such date), and ending on the latest of (a) the date that is fifteen years after the
date on which at least 50% of the units in the Project were first occupied (which date shall be certified in
writing by the Owner to the Governmental Lender and the Fiscal Agent immediately following such date),
(b) the first date on which no tax-exempt private activity bond issued with respect to the Project is outstanding
(as interpreted pursuant to the Code); and (c) the date on which any assistance provided with respect to the
Project under Section 8 of the U.S. Housing Act of 1937 terminates. Upon 50% occupancy of the Project, the
Owner shall submit a completed Certificate Concerning Commencement and Termination of Qualified
Project Period to the Governmental Lender and the Fiscal Agent to evidence the foregoing; and (d) the date
thirty (30) years from the date of issuance of the Governmental Lender Note.
To evidence the Qualified Project Period with respect to the Project, the Owner certified to the
following:
The Governmental Lender Note was issued on December 15, 2023.
2. The date of acquisition of the Project was , 20_
The maturity date of the Governmental Lender Note with the longest maturity is July 1, 2057.
4. The first day on which at least ten percent (10%) of the units in the Project were first
occupied was , 20_
5. The date on which at least fifty percent (50%) of the units in the Project were first occupied
was , 20
6. The date of initial occupancy of any unit in the Project was , 20
7. Assistance is being provided with respect to the Project under Section 8 of the United States
Housing Act of 1937, as amended. Such assistance will end on , 20_ unless further
extended.
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4865-4490-4323.6
8. The date thirty (30) years from the date of issuance of the Governmental Lender Note is
, 20_.
Prior to the recording of this Certificate in the land records of the County, the Owner has supplied the
Governmental Lender with documentation to establish the facts relating to the Project set forth in this
Certificate, which documentation has been found satisfactory to all parties. Nothing in this Certificate is
intended to modify the requirement that all units in the Project be rented as residential rental property for the
term during which any of the Governmental Lender Note is outstanding or any provision of the Agreement.
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4865-4490-4323.6
IN WITNESS WHEREOF, the Owner has caused this Certificate to be executed by its duly
authorized representative, and the Governmental Lender has caused this Certificate to be accepted by its duly
authorized representative as of this day of , 20_
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC, a Florida limited
liability company, its managing general partner
By:
Kenneth Naylor, Vice President
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was executed and acknowledged before me by means of physical
presence or [ ] online notarization this day of , 20 , by , as
of APC VISTA BREEZE, LLC, a Florida limited liability company, the managing general
partner of VISTA BREEZE, LTD., a Florida limited partnership (the "Owner"), on behalf of the Owner.
NOTARY PUBLIC - STATE OF FLORIDA
(SEAL)
Personally Known
OR
Produced Identification:
Type of Identification Produced:
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4865-4490-4323.6
Acceptance by Governmental Lender HOUSING FINANCE AUTHORITY OF
MIAMI-DADE COUNTY, FLORIDA
ATTEST:
[Assistant Secretary] [TITLE]
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me by means of F ] physical presence or
[� online notarization this day of 20 , by , as
and , as , of the Housing Finance Authority of
Miami -Dade County, Florida.
NOTARY PUBLIC, STATE OF FLORIDA
(SEAL)
Personally Known:
OR
Produced Identification:
Type of Identification Produced:
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4865-4490-4323.6
EXHIBIT A
to
Certificate Concerning Commencement
and Termination of Qualified Project Period
REAL PROPERTY DESCRIPTION
That leasehold estate created by that Second Amended and Restated Ground Lease, by and between Vista
Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City of Miami Beach, a public
body corporate and politic, as evidenced by that Amended and Restated Memorandum of Lease to be recorded
over the following described lands:
PARCEL 1:
LOT 3,4 and 5, Block 55, OF NORMANDY GOLF COURSE, ACCORDING TO THE PLAT
THEREOF, AS RECORDED IN PLAT BOOK 44, AT PAGE 62, OF THE PUBLIC RECORDS OF
MIAMI-DADE COUNTY, FLORIDA.
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.
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4865-4490-4323.6
EXHIBIT D
CERTIFICATION OF TENANT ELIGIBILITY
4865-4490-4323.6
FLORIDA HOUSING FINANCE CORPORATION
TENANT INCOME CERTIFICATION
❑ Initial Certification ❑ Recertification F7Other
lndlcale Type
Enter Full Date (mWddlyyyy)
Effective Date:
Move -in Date:
PART I - DEVELOPMENT DATA
Key Number Development County
Unit ID: BIN # Address City
PART II - HOUSEHOLD COMPOSITION
HH
Mbr #
Last Name
First Name &
Middle Initial
Relationship to
Head of Household
Date of Birth
mmlddlyy ,'
Age as of
Effective Date
Full Time Student
(Y or N)
1
H - Head
2
3
4
5
6
7
8
PART III - GROSS ANNUAL ANTICIPATED HOUSEHOLD INCOME (USE ANNUALIZED AMOUNTS
HH
Mbr #
(A)
Employment
or Wages
(B)
Social Security/
Pensions
(C)
Public
Assistance
(D)
Other
Income
If Other,
Indicate Type
Calculate sum of (A) through (D), above (E) TOTAL ANTICIPATED INCOME:
$ -
PART IV - CASH VALUE OF ASSETS AND ANNUALIZED ANTICIPATED HOUSEHOLD INCOME FROM ASSETS
HH
Mbr #
(F)
C / I
(G)
Checking
(H)
Savings
(1)
CD
P)
Other
If Other,
Indicate Type
(K)
Asset Income
(L) TOTAL CASH VALUE: Calculate sum of (G) through (J) above: $
(M) Total Anticipated Actual Asset Income:
(N) Enter Item (L) amount if
total exceeds $5,000: $ - X Passbook Rate 2.00% = (0) Imputed Income: $ -
(P) TOTAL INCOME FROM ASSETS: Enter the greater of Item (M) or Item (0) $ -
A -( L HOUSEHOLD INCOMEM ALL SOURCES -Add E+ P -
HOUSEHOLD CERTIFICATION AND SIGNATURES
The information on the form will be used to determine maximum Income eligibility. I/we have provided for each person(s) set forth in Part II acceptable verification of current
anticipated gross annual Income. Uwe agree to notify the landlord immediately upon any member of the household moving out of the unit or any new member moving in. Ilwe
agree to notify the landlord Immediately upon any member becoming a full time student.
Under penalties of perjury, Uwe certify that the information presented in this Certification Is true and accurate to the best of my/our knowledge and belief. The undersigned further
understands that providing false representakons herein constitutes an act of fraud. False, misleading or Incomplete Information may result In the termination of the lease agreement.
Signature (Date) Signature (Date)
Signature (Dale) Signature (Dale)
PART VI -STUDENT STATUS
Is every household member a full-time student? Student Explanation
(refer to Part ll)
1 TANF assistance
Yes No 2 Job training program
3 Single parent / dependent child
If YES, enter Student Explanation number
4 Married / joint return
5 Former foster child in transition to independence
PART VII - PROGRAM NAME
PART VIII - DETERMINATION OF INCOME ELIGIBILITY
Indicate AMI category served by household for
Current total household Income $
set-asido requirement of each Florida Housina
aroaram
(refer to Part V)
Most restrictive AMI catenory met bV household
AMI
Catenory CAP "`
(refer to Part VlQ
MMRB %
"' Upon
150 AMI % Current Income Limit $ 105,450
SAIL %
recertification
Recertification only
the household
Housing Credit %
exceeded the
Household size at move in
HOME %
income cap
Total household Income at move in $
AHL %
according to
Current Income Limit x 140% $
HUD Risk Sharing %
program(s)
eligibility
Household Income exceeds 140% at Recertification:
SHIP %
requirements.
Yes No
County Bond 150 %
PART IX - RENT
Rental Assistance
$ Unit meets ELI / Housing Credit / HUD Risk
If Section 8, Indicate assistance type:
Sharing rent restriction at AMI Category
Tenant Based
Unit meets HOME Program rent restriction at
Project Based
Number of bedrooms in this unit
Utility Reimbursement
$ Current rent limit for this unit $
Tenant -Paid Rent
(Refer to applicable schedule of maximum allowable rents)
(Include non -optional charges)
$
Utility Allowance
$ Rent Concession Amount $
TOTAL TENANT PAYMENT
Frequency
(Tenant paid rent plus utility allowance)
$ Duration
PART X - CATEGORICAL OR PUBLIC PURPOSE SET ASIDE OR TARGETING
Requirement Types
(Select ALL that apply to this household)
Commercial fishing worker
_ Elderly _ Family (SAIL only)
Farmworker
Homeless (SAIL only) _ Prior substandard (MMRB only)
_
Rental Assistance (MMRB only)
_
_ Special Needs Number of BR's (MMRB only)
SIGNATURE OF OWNER REPRESENTATIVE
Based on the representations herein and upon the proofs and documentation required to be submitted, the indivldual(s) named in Part
II of this Tenant Income Certification is/are eligible under the provisions of the program(s) Indicated In Part VII, and the Extended Use
Agreement and/or Land Use Restriction Agreement (if applicable), to live in a unit in this Development.
Signature:
Printed Name:
Title:
Date:
OR BK 34013 PG 2576
LAST lF'AGE
PART XI - STATISTICAL DATA
Note: Information In this Part XI is gathered for statistical use only. No resident Is required to give such Information
unless they desire to do so.
Refusal to provide Information In this Part will not affect any rights the household has as residents. There Is
no penalty for households that do not complete the form.
For` Ofttce Use :`Hnu"sg6o(drelg`ctstl riot to` `articl ate;�,
New Households
Prior Housing Information
(Answer for household head)
Monthly rent payment
Monthly house payment
ZIP Code
,All Households
Current Employment
(Answer for household head)
Occupation
ZIP Code
Primary Transportation Mode
(Answer for household head)
Motor vehicle _
Public transportation
Other
Additional Household Information
A member of the household:
(Check all that Apply)
Receives Medicare benefits
Receives Medicaid benefits
Is a Person With a Disability `
Raeiei. CategO�l@si#($616Ct dtyApj7ly)% . *'' , j t s' 't '
4, 'ATOtaIFJumbehot
Hou[ holda�Nltinbofs t
Fe�.Cate o
ToNumberof
(
ino
}ivagh►tc ar ( 64"
� " HoUsgholi( Ip�o`"M or's:
American Indian or Alaska Native
Asian
Black or African American
Native Hawaiian or Other Pacific Islander
White
American Indian or Alaska Native and White
Asian and White
Black or African American and White
American Indian or Alaska Native and Black or African American
Asian and Black or African American
Other mutt le race combination
TOTALS
` Definitions
Person With a Disability
A parson who has a mental or physical Impairment that substantially limits one or more of such persons' Major Life Activities; has a record of
such impairment; or is regarded as having such an Impairment.
Major Llfe Activities
Functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, sitting, standing, lifting, reaching,
thinking, concentrating, reading, Interacting with others, learning, sleeping and working.
Hispanic or Latino
A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race. The term'Spnnlsh
origin" can be used In addition to "Hispanic" or "Latino'
Not -Hispanic or Latino
A person not of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race,
American Indian A person having origins In any of the original peoples of North and South America (including Central America), and who maintains tribal affillation
or Alaska Native or community attachment.
Asian A person having origins In any of the oflglnal peoples o1 the Far East, Southeast Asia, or the Indian subcontinent, for example, Cambodia, China,
India, Japan, Korea, Malaysia, Paklslan, the Philippine Islands, Thailand, and Vietnam.
Black or African American A person having origins In any of the black racial groups of Africa. Terms such as "Haitian" or "Negro" can be used In addition to "Black' or
°Arrican American.'
Native Hawaiian A person having origins in any of the odglnal peoples of Hawaii, Guam, Samoa, or other Pacific Islands.
or Other Pacific Islander
White A person having origins In any of the original peoples of Europe, the Middle East or North Africa.