HomeMy WebLinkAboutExhibit DEXHIBIT D
FORM OF CONTINUING DISCLOSURE AGREEMENT
D-1
1097142993\9\
023084.00028
CONTINUING DISCLOSURE AGREEMENT
This Continuing Disclosure Agreement (the "Disclosure Agreement") is executed and delivered
by the City of Miami, Florida (the "Issuer") in connection with the issuance of its City of Miami, Florida
Special Obligation Non -Ad Valorem Bonds, Series 2023A (New Administrative Building) (the "Series
2023A Bonds"), the Special Obligation Non -Ad Valorem Bonds, Series 2023B (New Administrative
Building) (the "Series 2023B Bonds") and the Taxable Special Obligation Non -Ad Valorem Bonds, Series
2023C (the "Series 2023C Bonds", together with the Series 2023A Bonds and the Series 2023B Bonds, the
"Series 2023 Bonds") The Series 2023 Bonds are being issued under the authority of, and in full
compliance with, the Constitution and the laws of the State of Florida, Chapter 166, Part II, Florida
Statutes and the Charter of the Issuer, other applicable provisions of law, and pursuant to Resolution No.
R- adopted by the City Commission of the City on September [28], 2023 (the "Resolution").
Capitalized terms used but not otherwise defined herein shall have the same meaning as when used in
the Bond Resolution unless the context would clearly indicate otherwise. The Issuer covenants and agrees
as follows:
SECTION 1. PURPOSE OF THE DISCLOSURE AGREEMENT. This Disclosure Agreement is
being executed and delivered by the Issuer for the benefit of the holders and Beneficial Owners (defined
below) of the Series 2023 Bonds and in order to assist the Participating Underwriters in complying with
the continuing disclosure requirements of Securities and Exchange Commission Rule 15c2-12.
SECTION 2. DEFINITIONS. In addition to the definitions set forth in the Resolution which
apply to any capitalized term used in this Disclosure Agreement, unless otherwise defined in this Section,
the following capitalized terms shall have the following meanings:
"Annual Report" shall mean any Annual Report provided by the Issuer pursuant to, and as
described in, Sections 3 and 4 of this Disclosure Agreement.
"Beneficial Owner" shall mean any person which (a) has the power, directly or indirectly, to vote
or consent with respect to, or to dispose of ownership of, any Bonds (including persons holding Bonds
through nominees, depositories or other intermediaries), or (b) is treated as the owner of any Bonds for
federal income tax purposes.
"Dissemination Agent" shall mean Digital Assurance Certification, LLC, or any successor
Dissemination Agent designated in writing by the Issuer and which has filed with the Issuer a written
acceptance of such designation.
"EMMA" shall mean the Electronic Municipal Market Access web portal of the MSRB, located at
http://www.emma.msrb.org.
"Event of Bankruptcy" shall be considered to have occurred when any of the following occur:
the appointment of a receiver, fiscal agent or similar officer for an Obligated Person in a proceeding
under the U.S. Bankruptcy Code or in any other proceeding under state or federal law in which a court or
governmental authority has assumed jurisdiction over substantially all of the assets or business of the
Obligated Person, or if such jurisdiction has been assumed by leaving the existing governmental body
and officials or officers in possession but subject to the supervision and orders of a court or governmental
authority, or the entry of an order confirming a plan of reorganization, arrangement or liquidation by a
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court or governmental authority having supervision or jurisdiction over substantially all of the assets or
business of the Obligated Person.
"Financial Obligation" shall mean a (i) debt obligation; (ii) derivative instrument entered into in
connection with, or pledged as security or a source of payment for, an existing or planned debt
obligation; or (iii) a guarantee of (i) or (ii). The term Financial Obligation shall not include municipal
securities as to which a final official statement has been provided to the Municipal Securities Rulemaking
Board consistent with the Rule.
"Listed Events" shall mean any of the events listed in Section 5(a) of this Disclosure Agreement.
"MSRB" shall mean the Municipal Securities Rulemaking Board.
"Obligated Person" shall mean any person, including the Issuer, who is either generally or
through an enterprise, fund, or account of such person committed by contract or other arrangement to
support payment of all, or part of the obligations on the Series 2023 Bonds (other than providers of
municipal bond insurance, letters of credit, or other liquidity or credit facilities).
"Participating Underwriters" shall mean the original underwriters of the Series 2023 Bonds
required to comply with the Rule in connection with offering of the Series 2023 Bonds.
"Rule" shall mean the continuing disclosure requirements of Rule 15c2-12 adopted by the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as the same may be
amended from time to time.
SECTION 3. PROVISION OF ANNUAL REPORTS.
(a) The Issuer shall, or shall cause the Dissemination Agent to, not later than after
the end of the Issuer's last fiscal year (presently ends September 30), commencing with the report for the
2022-2023 fiscal year, provide to any Repository in the electronic format as required and deemed
acceptable by such Repository an Annual Report which is consistent with the requirements of Section 4 of
this Disclosure Agreement. The Annual Report may be submitted as a single document or as separate
documents comprising a package, and may cross-reference other information as provided in Section 4 of
this Disclosure Agreement; provided that the audited financial statements of the Issuer may be submitted
separately from the balance of the Annual Report and later than the date required above for the filing of
the Annual Report only if they are not available by that date so long as they are provided when they
become available. If the Issuer's fiscal year changes, it shall give notice of such change in the same manner
as for a Listed Event under Section 5.
(b) Not later than fifteen (15) Business Days prior to the date set forth in (a) above, the Issuer
shall provide the Annual Report to the Dissemination Agent (if other than the Issuer). If the Issuer is
unable to provide EMMA an Annual Report by the date required in subsection (a), the Issuer shall send a
notice to EMMA, in substantially the form attached as Exhibit A, accompanied by a cover sheet in the
form set forth as Exhibit B.
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(c) The Dissemination Agent shall, if the Dissemination Agent is other than the Issuer, file a
report with the Issuer certifying that the Annual Report has been provided pursuant to this Disclosure
Agreement, stating the date it was provided to EMMA.
SECTION 4. CONTENT OF ANNUAL REPORTS. The Issuer's Annual Report shall contain or
include by reference the following:
(a) the audited financial statements of the Issuer for the prior fiscal year, prepared in
accordance with generally accepted accounting principles as promulgated to apply to governmental
entities from time to time by the Governmental Accounting Standards Board. If the Issuer's audited
financial statements are not available by the time the Annual Report is required to be filed pursuant to
Section 3(a), the Annual Report shall contain unaudited financial statements in a format similar to the
financial statements contained in the final Official Statement dated , 2023 (the "Official
Statement"), and the audited financial statements shall be filed in the same manner as the Annual Report
when they become available; and
(b) updates to the historical financial information and operating data presented in the
Official Statement in the following tables:
[to come]
The information provided under Section 4(b) may be included by specific reference to other
documents, including official statements of debt issues of the Issuer or related public entities, which have
been submitted to EMMA or the Securities and Exchange Commission. If the document included by
reference is a final official statement, it must be available from EMMA. The Issuer shall clearly identify
each such other document so included by reference.
SECTION 5. REPORTING OF SIGNIFICANT EVENTS.
(a) Pursuant to the provisions of this Section 5, the Issuer shall give, or cause to be given,
notice with EMMA of the occurrence in a timely manner not in excess of ten (10) business days after the
occurrence of any of the following events with respect to the Series 2023 Bonds, with the exception of the
event described in number 15 below, which notice shall be given in a timely manner:
1. principal and interest payment delinquencies;
2. non-payment related defaults if material;
3. unscheduled draws on the debt service reserves reflecting financial difficulties;
4. unscheduled draws on credit enhancements reflecting financial difficulties;
5. substitution of credit or liquidity providers, or their failure to perform;
6. adverse tax opinions, the issuance by the Internal Revenue Service of proposed
or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701-
TEB) or other material notices or determinations with respect to the tax status of
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the Series 2023 Bonds, or other material events affecting the tax status of the
Series 2023 Bonds;
7. modifications to rights of the holders of the Series 2023, if material;
8. Bond calls, if material, and tender offers;
9. defeasances;
10. release, substitution, or sale of property securing repayment of the Series 2023
Bonds;
11. ratings changes;
12. an Event of Bankruptcy or similar event of an Obligated Person;
13. the consummation of a merger, consolidation, or acquisition involving the Issuer
or the sale of all or substantially all of the assets of the Issuer, other than in the
ordinary course of business, the entry into a definitive agreement to undertake
such an action or the termination of a definitive agreement relating to any such
actions, other than pursuant to its terms, if material;
14. appointment of a successor or additional trustee or paying agent or the change of
name of a trustee or paying agent, if material; and
15. incurrence of a Financial Obligation of the Issuer or Obligated Person, if material,
or agreement to covenants, events of default, remedies, priority rights, or other
similar terms of a Financial Obligation of the Issuer or Obligated Person, any of
which affect security holders, if material;
16. default, event of acceleration, termination event, modification of terms, or other
similar events under the terms of the Financial Obligation of the Issuer or
Obligated Person, any of which reflect financial difficulties; and
17. notice of any failure on the part of the Issuer to meet the requirements of
Section 3 hereof.
SECTION 6. TERMINATION OF REPORTING OBLIGATION. The Issuer's obligations under
this Disclosure Agreement shall terminate upon the legal defeasance, prior redemption or payment in full
of all of the Series 2023 Bonds, so long as there is no remaining liability of the Issuer, or if the Rule is
repealed or no longer in effect. If such termination occurs prior to the final maturity of the Series 2023
Bonds, the Issuer shall give notice of such termination in the same manner as for a Listed Event under
Section 5.
SECTION 7. DISSEMINATION AGENT. The Issuer may, from time to time, appoint or engage a
Dissemination Agent to assist it in carrying out its obligations under this Disclosure Agreement, and may
discharge any such Dissemination Agent, with or without appointing a successor Dissemination Agent.
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The Dissemination Agent shall not be responsible in any manner for the content of any notice or report
prepared by the Issuer pursuant to this Disclosure Agreement. The initial Dissemination Agent shall be
the Issuer.
SECTION 8. AMENDMENT; WAIVER. Notwithstanding any other provision of this Disclosure
Agreement, the Issuer may amend this Disclosure Agreement, and any provision of this Disclosure
Agreement may be waived, provided that the following conditions are satisfied:
(a) If the amendment or waiver relates to the provisions of Sections 3(a), 4, or 5(a), it may
only be made in connection with a change in circumstances that arises from a change in legal
requirements, change in law, or change in the identity, nature or status of the Issuer, or the type of
business conducted;
(b) The undertaking, as amended or taking into account such waiver, would, in the opinion
of nationally recognized bond counsel, have complied with the requirements of the Rule at the time of the
original issuance of the Series 2023 Bonds, after taking into account any amendments or interpretations of
the Rule, as well as any change in circumstances; and
(c) The amendment or waiver either (i) is approved by the holders or Beneficial Owners of
the Series 2023 Bonds in the same manner as provided in the Resolution for amendments to the
Resolution with the consent of holders or Beneficial Owners, or (ii) does not, in the opinion of nationally
recognized bond counsel, materially impair the interests of the holders or Beneficial Owners of the Series
2023 Bonds.
Notwithstanding the foregoing, the Issuer shall have the right to adopt amendments to this
Disclosure Agreement necessary to comply with modifications to and interpretations of the provisions of
the Rule as announced by the Securities and Exchange Commission from time to time.
In the event of any amendment or waiver of a provision of this Disclosure Agreement, the Issuer
shall describe such amendment in the next Annual Report, and shall include, as applicable, a narrative
explanation of the reason for the amendment or waiver and its impact on the type (or in the case of a
change of accounting principles, on the presentation) of financial information or operating data being
presented by the Issuer. In addition, if the amendment relates to the accounting principles to be followed
in preparing financial statements, (i) notice of such change shall be given in the same manner as for a
Listed Event under Section 5, and (ii) the Annual Report for the year in which the change is made should
present a comparison (in narrative form and also, if feasible, in quantitative form) between the financial
statements as prepared on the basis of the new accounting principles and those prepared on the basis of
the former accounting principles.
SECTION 9. ADDITIONAL INFORMATION. Nothing in this Disclosure Agreement shall be
deemed to prevent the Issuer from disseminating any other information, using the means of
dissemination set forth in this Disclosure Agreement or any other means of communication, or including
any other information in any Annual Report or notice of occurrence of a Listed Event, in addition to that
which is required by this Disclosure Agreement. If the Issuer chooses to include any information in any
Annual Report or notice of occurrence of a Listed Event in addition to that which is specifically required
by this Disclosure Agreement, the Issuer, as applicable, shall have no obligation under this Disclosure
Agreement to update such information or include it in any future Annual Report or notice of occurrence
of a Listed Event.
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SECTION 10. DEFAULT. The continuing disclosure obligations of the Issuer set forth herein
constitute a contract with the holders of the Series 2023 Bonds. In the event of a failure of the Issuer to
comply with any provision of this Disclosure Agreement, any Holder or Beneficial Owner of the Series
2023 Bonds may take such actions as may be necessary and appropriate, including seeking mandamus or
specific performance by court order, to cause the Issuer, as applicable, to comply with its obligations
under this Disclosure Agreement; provided, however, the sole remedy under this Disclosure Agreement
in the event of any failure of the Issuer to comply with the provisions of this Disclosure Agreement shall
be an action to compel performance. A default under this Disclosure Agreement shall not be deemed an
Event of Default under the Resolution.
SECTION 11. DUTIES, IMMUNITIES AND LIABILITIES OF DISSEMINATION AGENT. The
Dissemination Agent shall have only such duties as are specifically set forth in this Disclosure
Agreement, and the Issuer agrees to indemnify and save the Dissemination Agent, its officers, directors,
employees and agents, harmless against loss, expense and liabilities which it may incur arising out of or
in the exercise or performance of its powers and duties hereunder, including the costs and expenses
(including attorney's fees) of defending against any claim of liability, but excluding liabilities due to the
Dissemination Agent's negligence or willful misconduct. The obligations of the Issuer under this Section
shall survive resignation or removal of the Dissemination Agent and payment of the Series 2023 Bonds.
[Remainder of page intentionally left blank]
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SECTION 12. BENEFICIARIES. This Disclosure Agreement shall inure solely to the benefit of
the Issuer, the Dissemination Agent, the Participating Underwriters and holders and Beneficial Owners
from time to time of the Series 2023 Bonds, and shall create no rights in any other person or entity.
Dated: , 2023
[SEAL]
ATTEST:
By:
City Clerk
DIGITAL ASSURANCE CERTIFICATION,
L.L.C., as Disclosure Dissemination Agent
By:
Name:
Title:
THE CITY OF MIAMI, FLORIDA,
as Issuer
By:
City Manager
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EXHIBIT A
NOTICE TO REPOSITORY OF FAILURE TO FILE ANNUAL REPORT
Obligated Person: The City of Miami, Florida
Name of Bond Issue: The City of Miami, Florida Special Obligation Non -Ad Valorem Bonds,
Series 2023A (New Administrative Building)
The City of Miami, Florida Special Obligation Non -Ad Valorem Bonds,
Series 2023B (New Administrative Building)
The City of Miami, Florida Taxable Special Obligation Non -Ad Valorem
Bonds, Series 2023C
Date of Issuance: , 2023
CUSIP Number:
NOTICE IS HEREBY GIVEN that the Issuer has not provided an Annual Report with respect to the
above -named Bonds as required by Sections 3 and 4(b) of the Continuing Disclosure Agreement dated
2023. The Issuer has notified the Dissemination Agent that it anticipates that the Annual Report
will be filed by
Dated:
THE CITY OF MIAMI, FLORIDA
By:
Name:
Title:
A-1
EXHIBIT B
EVENT NOTICE COVER SHEET
This cover sheet and accompanying "event notice" will be sent to the MSRB, pursuant to Securities and
Exchange Commission Rule 15c2-12(b)(5)(i)(C) and (D).
Issuer's and/or Other Obligated Person's Name:
Issuer's Six -Digit CUSIP Number:
or Nine -Digit CUSIP Number(s) of the Series 2023 Bonds to which this event notice relates:
Number of pages attached:
Description of Notice Events (Check One):
1. "Principal and interest payment delinquencies;"
2. "Non -Payment related defaults, if material;"
3. "Unscheduled draws on debt service reserves reflecting financial difficulties;"
4. "Unscheduled draws on credit enhancements reflecting financial difficulties;"
5. "Substitution of credit or liquidity providers, or their failure to perform;"
6. "Adverse tax opinions, IRS notices or events affecting the tax status of the security;"
7. "Modifications to rights of securities holders, if material;"
8. "Bond calls, if material;"
9. "Defeasances;"
10. "Release, substitution, or sale of property securing repayment of the securities, if material;"
11. "Rating changes;"
12. "Bankruptcy, insolvency, receivership or similar event of the obligated person;"
13. "Merger, consolidation, or acquisition of the obligated person, if material;" and
14. "Appointment of a successor or additional trustee, or the change of name of a trustee, if
material."
Failure to provide annual financial information as required.
I hereby represent that I am authorized by the Issuer or its agent to distribute this information publicly:
Signature:
Name: Title:
Date:
B-1