99(b) Opinion of Co-Bond Counsel (Kuper)Law Offices of
Richard Kuper, P.A.
A Professional Association
2655 S Le Jeune Road, Suite 1014
Coral Gables, Florida 33134
December 15, 2023
Housing Finance Authority
of Miami -Dade County, Florida
Doral, Florida
Telephone: 305-373-1166
1sMail: rkuper@rkuperlaw.com
Re: $32,500,000 Housing Finance Authority of Miami -Dade County, Florida
Multifamily Housing Revenue Note, Series 2023 (Vista Breeze)
Ladies and Gentlemen:
We have acted as co -bond counsel in connection with the issuance by the Housing Finance
Authority of Miami -Dade County, Florida (the "Authority") of the above -referenced note (the
"Governmental Lender Note"), issued pursuant to the Funding Loan Agreement dated as of
December 1, 2023 (the "Funding Loan Agreement"), among the Authority, Bank of America, N.A.
(the "Initial Funding Lender") and The Bank of New York Mellon Trust Company, N.A., as fiscal
agent (the "Fiscal Agent"), and applicable provisions of law. We investigated the law and
examined such certified proceedings and other papers as we deemed necessary to render this
opinion.
Pursuant to the Construction Phase Borrower Loan Agreement dated as of December 1,
2023 (the "Borrower Loan Agreement"), by and among the Authority, the Fiscal Agent and Vista
Breeze, Ltd., a Florida limited partnership (the "Borrower"), the Authority has agreed to make a
mortgage loan pursuant to the Borrower Loan Agreement (the "Borrower Loan") to the Borrower
for the purpose of providing funds to finance the acquisition and construction of a multifamily
residential housing project located in the City of Miami Beach, Miami -Dade County, Florida, and
known as Vista Breeze (the "Project").
As provided in the Borrower Loan Agreement, the Borrower agrees to make loan payments
to the Fiscal Agent, on behalf of the Authority, in an amount which, when added to other funds
available under the Funding Loan Agreement, will be sufficient to enable the Authority to repay
the funding loan provided by the Initial Funding Lender under the Funding Loan Agreement and
to pay all costs and expenses related thereto when due.
To evidence its payment obligations under the Borrower Loan Agreement, the Borrower
has executed and delivered to the Authority its Construction Phase Project Loan Note (the
"Borrower Loan Note") and the obligations of the Borrower under the Borrower Loan Note are
secured by a lien on and security interest in the Project pursuant to a Leasehold Mortgage,
Assignment of Rents, Security Agreement and Fixture Filing dated as of December 1, 2023 (the
A0- OCAA 7CAO 'I
Honorable Chairman and Board Members
of the Housing Finance Authority
of Miami -Dade County, Florida
Page 2
"Security Instrument"), made by the Borrower in favor of the Authority and assigned to the Fiscal
Agent pursuant to the Assignment of Mortgage and Collateral Loan Documents dated as of
December 1, 2023 from the Authority to the Fiscal Agent (the "Assignment"), to secure the
performance by the Borrower of its obligations under the Borrower Loan Agreement.
The Governmental Lender Note does not constitute a debt, liability or obligation of the
Authority, the State of Florida (the "State"), or Miami -Dade County, Florida (the "County"), nor
any subdivision or instrumentality thereof, and neither the faith and credit nor the taxing power of
the State, the County, the Authority or any subdivision or instrumentality thereof is pledged to the
payment of the principal of, premium, if any, or interest on the Governmental Lender Note. The
Governmental Lender Note is a limited obligation of the Authority, payable solely from revenues
arising from the pledge and assignment by the Authority to the Funding Lender of certain payments
to be made by the Borrower under the Borrower Loan Agreement. The Authority has no taxing
power.
The Authority, the Borrower and the Fiscal Agent have executed a Land Use Restriction
Agreement (the "Land Use Restriction Agreement") recorded in the public records of Miami -Dade
County, Florida. The Land Use Restriction Agreement imposes certain restrictions on the use,
operation and disposition of the Project, so that the Project will constitute a "qualified residential
rental project" within the meaning of Section 142(d) of the Internal Revenue Code of 1986, as
amended (the "Code"), and the applicable regulations promulgated thereunder.
We have not been engaged to express and do not express any opinion with respect to title
to the real or personal property covered by the Security Instrument, the validity and enforceability
of the Borrower Loan Note, the Security Instrument or any other contract which may be entered
into by any of the Borrower or the status of any lien or security interest purported to be created in
connection with the foregoing.
The Assistant County Attorney in the Office of the Miami -Dade County Attorney, Miami,
Florida, as counsel to the Authority, has rendered an opinion of even date herewith (the "Authority
Counsel Opinion") regarding, among other things, the limited obligations of the Authority under
the Funding Loan Agreement, the Borrower Loan Agreement and the Land Use Restriction
Agreement. In rendering this opinion, we are relying on the Authority Counsel Opinion with
respect to the valid creation and existence of the Authority, the validity of the proceedings had and
actions taken by the Authority and the County leading up to and coincident with the issuance of
the Governmental Lender Note, the right of the members of the Authority's governing body and
its officers participating in the issuance of the Governmental Lender Note to hold their respective
offices, and the due authorization of the officers of the Authority to enter into the Funding Loan
Agreement, the Borrower Loan Agreement and the Land Use Restriction Agreement on behalf of
the Authority.
AQCF0')CIA 7rnn 'I
Honorable Chairman and Board Members
of the Housing Finance Authority
of Miami -Dade County, Florida
Page 3
As to factual matters material to our opinion, we have relied upon representations and
covenants made on behalf of the Authority, the Borrower, the Fiscal Agent and other parties
contained in the Funding Loan Agreement, the Borrower Loan Agreement and the Land Use
Restriction Agreement, certificates of the Authority, the Borrower, the Fiscal Agent and public
officials (including certifications, representations and covenants as to the use of Governmental
Lender Note proceeds and the operation and use of the Project), without undertaking to verify the
same by independent investigation.
We express no opinion herein as to the accuracy, completeness or sufficiency of any
offering material relating to the Governmental Lender Note. We have not passed upon any matters
relating to the business, affairs or condition (financial or otherwise) of the Borrower and no
inference should be drawn that we have expressed any opinion on matters relating to the ability of
the Borrower to perform its obligations under the contracts described herein.
Based upon the foregoing, we are of the opinion that, under existing law:
1. The Authority has the power to issue the Governmental Lender Note and to
enter into and perform the Funding Loan Agreement, the Borrower Loan Agreement, the
Assignment and the Land Use Restriction Agreement.
2. The Funding Loan Agreement, the Borrower Loan Agreement, the
Assignment and the Land Use Restriction Agreement have been duly authorized, executed and
delivered by the Authority and are valid, binding and enforceable obligations of the Authority. All
rights of the Authority under the Borrower Loan Agreement, the Borrower Loan Note and the
Security Instrument (except for certain Unassigned Rights (as defined in the Funding Loan
Agreement)) have been validly assigned to the Funding Lender under the Funding Loan
Agreement and the Assignment.
3. The Governmental Lender Note has been duly authorized, executed and
delivered by the Authority and is a valid and binding special and limited obligation of the
Authority, payable in accordance with the terms of the Funding Loan Agreement.
4. The interest on the Governmental Lender Note is excludable from gross
income of the owners of the Governmental Lender Note for federal income tax purposes, except
that such exclusion shall not apply to any interest on the Governmental Lender Note during any
period it is held by a person who is a "substantial user" of the facilities financed by the
Governmental Lender Note or a "related person" within the meaning of Section 147(a) of the Code.
Interest on the Governmental Lender Note is not item of tax preference for purposes of the federal
alternative minimum tax; however, interest on the Governmental Lender Note is taken into account
in determining "average annual adjusted financial statement income" for purposes of computing
the alternative minimum tax imposed on certain corporations for taxable years beginning after
December 31, 2022. The opinions set forth in the first and second sentences of this paragraph are
AOCO Or -IA 7GAn I
Honorable Chairman and Board Members
of the Housing Finance Authority
of Miami -Dade County, Florida
Page 4
subject to the condition that the Authority and the Borrower comply with all requirements of the
Code that must be satisfied subsequent to the issuance of the Governmental Lender Note in order
that interest thereon be, or continue to be, excluded from gross income for federal income tax
purposes. The Authority and the Borrower have covenanted to comply with such requirements.
Failure to comply with certain of such requirements could cause the interest on the Governmental
Lender Note to be so included in gross income retroactive to the date of issuance of the
Governmental Lender Note. Other provisions of the Code may give rise to adverse federal income
tax consequences to particular owners of the Governmental Lender Note. We express no opinion
regarding other federal tax consequences cause by ownership of, or the receipt or accrual of interest
on, or the disposition of the Governmental Lender Note.
5. The Governmental Lender Note and the interest thereon are exempt from taxation
under the laws of the State of Florida, except as to estate taxes and taxes imposed by Chapter 220,
Florida Statutes, as amended, on interest, income or profits on debt obligations owned by
corporations, as defined therein.
6. The Governmental Lender Note are exempt from registration under the Securities Act
of 1933, as amended, and the Funding Loan Agreement is exempt from qualification under the
Trust Indenture Act of 1939, as amended. No opinion is expressed with respect to the necessity
of the registration of the Note under the "Blue Sky" or securities laws of any state, territory or
possession of the United States or the District of Columbia.
In rendering the opinion in paragraph 4 above, we have relied upon federal tax law and
interpretations thereof, as in effect on the date hereof. We call to your attention that, pursuant to
Internal Revenue Service Notice 2010-81, as amended and supplemented by Internal Revenue
Service Notice 2011-63, for certain purposes (other than for purposes of volume cap limitations
on private activity bonds under Section 146 of the Code) each draw of principal on the
Governmental Lender Note is treated as a separate bond, issued on the date on which the Authority
receives the purchase price (the proceeds of such draw). Accordingly, the treatment for federal
income tax purposes of interest on advances of principal of the Governmental Lender Note after
the date hereof may be subject to changes in federal income tax law which occur subsequent to the
date hereof. We express no opinion as to the impact of changes in federal income tax law which
occur subsequent to the date hereof on the exclusion from gross income of such changes and
assume no duty to update this opinion or provide notice of changes in federal tax law or the impact
thereof on the opinions rendered hereby.
Our opinions expressed herein are based upon present laws, facts and circumstances and
interpretations thereof, and we assume no affirmative obligation to update the opinions expressed
herein if such laws, facts or circumstances change after the date hereof. Our opinions represent
our legal judgment based on our review of the law and the facts that we deem relevant to render
such opinions and are not at guarantee of result.
AQr_n 7F9n 7Gnn 9
Honorable Chairman and Board Members
of the Housing Finance Authority
of Miami -Dade County, Florida
Page 5
"The rights of the owners of the Governmental Lender Note and the enforceability of the
Govermnental Lender Note, the Funding Loan Agreement, the Borrower Loan Agreement, the
Borrower Loan Note, the Land Use Restriction Agreement and the Security Instrument may be
subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting
creditors' rights heretofore or hereafter enacted, to the extent constitutionally applicable, and their
enforcement may be subject to the exercise of judicial discretion in accordance with general
principles of equity. In addition, certain of the specific remedies provided for may not be
enforceable, but such unenforceability does not make the remedies provided for in such
instruments and agreements (taken as a whole) inadequate for the practical realization of the
benefits intended to be afforded thereby.
Res ubmitted,
4.
A RFQ_ 7rI A_7rn n i