HomeMy WebLinkAboutExhibit 32Exhibit "G"
Form of Disclosure Dissemination Agent Agreement
DISCLOSURE DISSEMINATION AGENT AGREEMENT
This Disclosure Dissemination Agent Agreement (the "Disclosure Agreement"), dated as
of June _, 2008, is executed and delivered by the City of Miami, Florida (the "Issuer") and its
Department of Off -Street Parking (the "Depai tinent") and Digital Assurance Certification, L.L.C.,
as the initial exclusive Disclosure Dissemination Agent (the "Disclosure Dissemination Agent" or
"DAC") for the benefit of the Holders (hereinafter defined) of the Bonds (hereinafter defined) and
in order to provide certain continuing disclosure with respect to the Bonds in accordance with Rule
15c2-12 of the United States Securities and Exchange Commission under the Securities Exchange
Act of 1934, as the same may be amended from time to time (the "Rule").
SECTION 1. Definitions. Capitalized terms not otherwise defined in this Disclosure
Agreement shall have the meaning assigned in the Rule or, to the extent not in conflict with the
Rule, in the Official Statement (hereinafter defined). The capitalized terms shall have the
following meanings:
"Annual Report" means an Annual Report described in and consistent with Section 3 of
this Disclosure Agreement.
"Annual Filing Date" means the date, set in Sections 2(a) and 2(f), by which the Annual
Report is to be filed with the Repositories.
"Annual Financial Information" means annual financial information as such term is used in
paragraph (b)(5)(i) of the Rule and specified in Section 3(a) of this Disclosure Agreement.
"Audited Financial Statements" means the financial statements (if any) of the Issuer for the
prior fiscal year, certified by an independent auditor as prepared in accordance with
generally accepted accounting principles or otherwise, as such term is used in paragraph
(b)(5)(i) of the Rule and specified in Section 3(b) of this Disclosure Agreement.
"Bonds" means the bonds as listed on the attached Exhibit A, with the 9-digit CUSIP
numbers relating thereto.
"Certification" means a written certification of compliance signed by the Disclosure
Representative stating that the Annual Report, Audited Financial Statements, Voluntary
Report or Notice Event notice delivered to the Disclosure Dissemination Agent is the
Annual Report, Audited Financial Statements, Voluntary Report or Notice Event notice
required to be submitted to the Repositories under this Disclosure Agreement. A
Certification shall accompany each such document submitted to the Disclosure
Dissemination Agent by the Issuer and include the full name of the Bonds and the 9-digit
CUSIP numbers for all Bonds to which the document applies.
"Department" means the Department of Off -Street Parking of the Issuer.
"Disclosure Representative" means the Finance Director for the Department or his
designee, the Finance Director of the Issuer or his or her designee, or such other person as
the Issuer shall designate in writing to the Disclosure Dissemination Agent from time to
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time as the person responsible for providing Information to the Disclosure Dissemination
Agent.
"Disclosure Dissemination Agent" means Digital Assurance Certification, L.L.C, acting in
its capacity as Disclosure Dissemination Agent hereunder, or any successor Disclosure
Dissemination Agent designated in writing by the Issuer pursuant to Section 9 hereof.
"Holder" means any person (a) having 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) treated as the owner of any
Bonds for federal income tax purposes.
"Information" means the Annual Financial Information, the Audited Financial Statements
(if any) the Notice Event notices, and the Voluntary Reports.
"Notice Event" means an event listed in Section 4(a) of this Disclosure Agreement.
"MSRB" means the Municipal Securities Rulemaking Board established pursuant to
Section 15B(b)(1) of the Securities Exchange Act of 1934.
"National Repository" means any Nationally Recognized Municipal Securities
Information Repository for purposes of the Rule. The list of National Repositories
maintained by the United States Securities and Exchange Commission shall be conclusive
for purposes of determining National Repositories. Currently, the following are National
Repositories:
1. DPC Data Inc.
One Executive Drive
Fort Lee, New Jersey 07024
(201) 346-0701 (phone)
(201) 947-0107 (fax)
Email: nrmsir@dpcdata.com
2. Interactive Data Pricing and Reference Data, Inc.
Attn: NRMSIR
100 Williams Street, 15th Floor
New York, New York 10038
(212) 771-6999 (phone); (800) 689-8466
(212) 771-7390
Email: NRMSIR@interactivedata.com
3. Bloomberg Municipal Repositories
100 Business Park Drive
Skillman, New Jersey 08558
(609) 279-3225 (phone)
(609) 279-5962 (fax)
Email: Munis@Bloomberg.com
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4. Standard & Poor's Securities Evaluations, Inc.
55 Water Street
45th Floor
New York, New York 10041
(212) 438-4595 (phone)
(212) 438-3975 (fax)
Email: nrmsir_repository@sandp.com
"Official Statement" means that Official Statement prepared by the Issuer in connection
with the Bonds, as listed on Appendix A.
"Repository" means the MSRB, each National Repository and the State Depository (if
any).
"State Depository" means any public or private depository or entity designated by
the State of Florida as a state information depository (if any) for the purpose of the
Rule. The list of state information depositories maintained by the United States
Securities and Exchange Commission shall be conclusive as to the existence of a
State Depository. Currently there is no State Repository established for the State of
Florida.
"Voluntary Report" means the information provided to the Disclosure Dissemination
Agent by the Issuer pursuant to Section 7.
SECTION 2. Provision of Annual Reports.
(a) The Issuer shall provide, annually, an electronic copy of the Annual Report and
Certification to the Disclosure Dissemination Agent, together with a copy for the Trustee, not later
than 30 days prior to the Annual Filing Date. Promptly upon receipt of an electronic copy of the
Annual Report and the Certification, the Disclosure Dissemination Agent shall provide a copy
Annual Report to each National Repository and the State Depository (if any) not later than June 30
of each year, commencing with the fiscal year ending September 30, 2007. Such date and each
anniversary thereof is the Annual Filing Date. 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 3 of this Disclosure Agreement.
(b) If on the fifteenth (15th) day prior to the Annual Filing Date, the Disclosure
Disselination Agent has not received a copy of the Annual Report and Certification, the
Disclosure Dissemination Agent shall contact the Disclosure Representative by telephone and in
writing (which may be by e-mail) to remind the Issuer of its undertaking to provide the Annual
Report pursuant to Section 2(a). Upon such reminder, the Disclosure Representative shall either (i)
provide the Disclosure Dissemination Agent with an electronic copy of the Annual Report and the
Certification no later than two (2) business days prior to the Annual Filing Date, or (ii) instruct the
Disclosure Dissemination Agent in writing that the Issuer will not be able to file the Annual Report
within the time required under this Disclosure Agreement, state the date by which the Annual
Report for such year will be provided and instruct the Disclosure Dissemination Agent that a
Notice Event as described in Section 4(a)(12) has occurred and to immediately send a notice to
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each National Repository or the MSRB and the State Depository (if any) in substantially the form
attached as Exhibit B.
(c) If the Disclosure Dissemination Agent has not received an Annual Report and
Certification by 12:00 noon on the first business day following the Annual Filing Date for the
Annual Report, a Notice Event described in Section 4(a)(12) shall have occurred and the Issuer
irrevocably directs the Disclosure Dissemination Agent to immediately send a notice to each
National Repository or the MSRB and the State Depository (if any) in substantially the form
attached as Exhibit B.
(d) If Audited Financial Statements of the Issuer are prepared but not available prior to
the Annual Filing Date, the Issuer shall, when the Audited Financial Statements are available,
provide in a timely manner an electronic copy to the Disclosure Dissemination Agent,
accompanied by a Certificate, for filing with each National Repository and the State Depository (if
any).
(e) The Disclosure Dissemination Agent shall:
(i)
determine the name and address of each Repository each year prior to the
Annual Filing Date;
(ii) upon receipt, promptly file each Annual Report received under Section 2(a)
with each National Repository, and the State Depository (if any);
(iii) upon receipt, promptly file each Audited Financial Statement received
under Section 2(d) with each National Repository, and the State Depository
(if any);
(iv) upon receipt, promptly file the text of each disclosure to be made with each
National Repository or the MSRB and the State Depository (if any) together
with a completed copy of the MSRB Material Event Notice Cover Sheet in
the form attached as Exhibit C, describing the event by checking the box
indicated below when filing pursuant to the Section of this Disclosure
Agreement indicated:
1. "Principal and interest payment delinquencies," pursuant to
Sections 4(c) and 4(a)(1);
2. "Non -Payment related defaults," pursuant to Sections 4(c) and
4(a)(2);
3. "Unscheduled draws on debt service reserves reflecting financial
difficulties," pursuant to Sections 4(c) and 4(a)(3);
4. "Unscheduled draws on credit enhancements reflecting financial
difficulties," pursuant to Sections 4(c) and 4(a)(4);
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5. "Substitution of credit or liquidity providers, or their failure to
perform," pursuant to Sections 4(c) and 4(a)(5);
6. "Adverse tax opinions or events affecting the tax-exempt status of
the security," pursuant to Sections 4(c) and 4(a)(6);
7. • "Modifications to rights of securities holders," pursuant to Sections
4(c) and 4(a)(7);
8. "Bond calls," pursuant to Sections 4(c) and 4(a)(8);
9. "Defeasances," pursuant to Sections 4(c) and 4(a)(9);
10. "Release, substitution, or sale of property securing repayment of the
securities," pursuant to Sections 4(c) and 4(a)(10);
11. "Ratings changes," pursuant to Sections 4(c) and 4(a)(11);
12. "Failure to provide annual financial information as required,"
pursuant to Section 2(b)(ii) or Section 2(c), together with a
completed copy of Exhibit B to this Disclosure Agreement;
13. "Other material event notice (specify)," pursuant to Section 7 of this
Agreement, together with the summary description provided by the
Disclosure Representative.
(v) provide the Issuer evidence of the filings of each of the above when made,
which shall be by means of the DAC system, for so long as DAC is the
Disclosure Dissemination Agent under this Disclosure Agreement.
(f) The Issuer may adjust the Annual Filing Date upon change of its fiscal year by
providing written notice of such change and the new Annual Filing Date to the Disclosure
Dissemination Agent, Trustee (if any) and the Repositories, provided that the period between the
existing Annual Filing Date and new Annual Filing Date shall not exceed one year.
SECTION 3. Content of Annual Reports.
(a) Each Annual Report shall contain Annual Financial Information with respect to the
Issuer (and the Department), including the information in the tables provided in the Official
Statement under the heading "THE PARKING SYSTEM" providing:
a) The total number of parking spaces contained within the Parking System for the
prior fiscal year.
b) The principal facilities owned and operated by the Department for the prior fiscal
year.
c) Parking System Rates and Charges for the prior fiscal year.
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d) Statement of Revenue and Expenses as presented in the table for the prior fiscal
year.
(b) Audited Financial Statements prepared in accordance with generally accepted
accounting principles ("GAAP") as described in the Official Statement will be included in the
Annual Report. If such Audited Financial Statements are unavailable at the Annual Filing Date,
unaudited financial statements, prepared in accordance with GAAP will be included in the Annual
Report. Audited Financial Statements (if any) will be provided pursuant to Section 2(d).
Any or all of the items listed above may be included by specific reference from other
documents, including official statements of debt issues with respect to which the Issuer is an
"obligated person" (as defined by the Rule), which have been previously filed with each of the
National Repositories or the Securities and Exchange Commission. If the document incorporated
by reference is a final official statement, it must be available from the MSRB. The Issuer will
clearly identify each such document so incorporated by reference.
SECTION 4. Reporting of Notice Events.
(a) The occurrence of any of the following events, if material, with respect to the
Bonds constitutes a Notice Event:
1. Principal and interest payment delinquencies;
2. Non-payment related defaults;
3. Unscheduled draws on debt service reserves reflecting financial difficulties;
4. Unscheduled draws on credit enhancements relating to the Bonds reflecting
financial difficulties;
5. Substitution of credit or liquidity providers, or their failure to perform;
6. Adverse tax opinions or events affecting the tax-exempt status of the Bonds;
7. Modifications to rights of Bond holders;
8. Bond calls;
9. Defeasances;
10. Release, substitution, or sale of property securing repayment of the Bonds;
11. Rating changes on the Bonds; and
12. Failure to provide annual financial information as required.
The Issuer shall promptly notify the Disclosure Dissemination Agent in writing upon the
occurrence of a Notice Event. Such notice shall instruct the Disclosure Dissemination Agent to
report the occurrence pursuant to subsection (c). Such notice shall be accompanied with the text of
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the disclosure that the Issuer desires to make, the written authorization of the Issuer for the
Disclosure Dissemination Agent to disseminate such information, and the date the Issuer desires
for the Disclosure Dissemination Agent to disseminate the information.
(b) The Disclosure Dissemination Agent is under no obligation to notify the Issuer or
the Disclosure Representative of an event that may constitute a Notice Event. In the event the
Disclosure Dissemination Agent so notifies the Disclosure Representative, the Disclosure
Representative will within five business days of receipt of such notice, instruct the Disclosure
Dissemination Agent that (i) a Notice Event has not occurred and no filing is to be made or (ii) a
Notice Event has occurred and the Disclosure Dissemination Agent is to report the occurrence
pursuant to subsection (c) of this Section 4, together with the text of the disclosure that the Issuer
desires to make, the written authorization of the Issuer for the Disclosure Dissemination Agent to
disseminate such information, and the date the Issuer desires for the Disclosure Dissemination
Agent to disseminate the information.
(c) If the Disclosure Dissemination Agent has been instructed by the Issuer as
prescribed in subsection (a) or (b)(ii) of this Section 4 to report the occurrence of a Notice Event,
the Disclosure Dissemination Agent shall promptly file a notice of such occurrence with the State
Depository (if any) and (i) each National Repository, or (ii) the MSRB.
SECTION 5. CUSIP Numbers. Whenever providing information to the Disclosure
Dissemination Agent, including but not limited to Annual Reports, documents incorporated by
reference to the Annual Reports, Audited Financial Statements, notices of Notice Events, and
Voluntary Reports filed pursuant to Section 7(a), the Issuer shall indicate the full name of the
Bonds and the 9-digit CUSIP numbers for the Bonds as to which the provided information relates.
SECTION 6. Additional Disclosure Obligations. The Issuer acknowledges and
understands that other state and federal laws, including but not limited to the Securities Act of
1933 and Rule 10b-5 promulgated under the Securities Exchange Act of 1934, may apply to the
Issuer, and that the failure of the Disclosure Dissemination Agent to so advise the Issuer shall not
constitute a breach by the Disclosure Dissemination Agent of any of its duties and responsibilities
under this Disclosure Agreement. The Issuer acknowledges and understands that the duties of the
Disclosure Dissemination Agent relate exclusively to execution of the mechanical tasks of
disseminating information as described in this Disclosure Agreement.
SECTION 7. Voluntary Reports.
(a) The Issuer may instruct the Disclosure Dissemination Agent to file information
with the Repositories, from time to time pursuant to a Certification of the Disclosure
Representative accompanying such information (a "Voluntary Report").
(b) Nothing in this Disclosure Agreement shall be deemed to prevent the Issuer from
disseminating any other information through the Disclosure Dissemination Agent using the means
of dissemination set forth in this Disclosure Agreement or including any other information in any
Annual Report, Annual Financial Statement, Voluntary Report or Notice Event notice, in addition
to that required by this Disclosure Agreement. If the Issuer chooses to include any information in
any Annual Report, Annual Financial Statement, Voluntary Report or Notice Event notice in
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addition to that which is specifically required by this Disclosure Agreement, the Issuer shall have
no obligation under this Disclosure Agreement to update such information or include it in any
future Annual Report, Annual Financial Statement, Voluntary Report or Notice Event notice.
SECTION 8. Termination of Reporting Obligation. The obligations of the Issuer and
the Disclosure Dissemination Agent under this Disclosure Agreement shall terminate with respect
to the Bonds upon the legal defeasance, prior redemption or payment in full of all of the Bonds,
when the Issuer is no longer an obligated person with respect to the Bonds, or upon delivery by the
Disclosure Representative to the Disclosure Dissemination Agent of an opinion of nationally
recognized bond counsel to the effect that continuing disclosure is no longer required.
SECTION 9. Disclosure Dissemination Agent. The Issuer has appointed Digital
Assurance Certification, L.L.C. as the initial exclusive Disclosure Dissemination Agent under this
Disclosure Agreement. The Issuer may, upon thirty days written notice to the Disclosure
Dissemination Agent and the Trustee, replace or appoint a successor Disclosure Dissemination
Agent. Upon termination of DAC's services as Disclosure Dissemination Agent, whether by
notice of the Issuer or DAC, the Issuer agrees to appoint a successor Disclosure Dissemination
Agent or, alternately, agrees to assume all responsibilities of Disclosure Dissemination Agent
under this Disclosure Agreement for the benefit of the Holders of the Bonds. Notwithstanding any
replacement or appointment of a successor, the Issuer shall remain liable until payment in full for
any and all sums owed and payable to the Disclosure Dissemination Agent. The Disclosure
Dissemination Agent may resign at any time by providing thirty days' prior written notice to the
Issuer.
SECTION 10. Remedies in Event of Default. In the event of a failure of the Issuer or the
Disclosure Dissemination Agent to comply with any provision of this Disclosure Agreement, the
Holders' rights to enforce the provisions of this Agreement shall be limited solely to a right, by
action in mandamus or for specific performance, to compel performance of the parties' obligation
under this Disclosure Agreement. Any failure by a party to perform in accordance with this
Disclosure Agreement shall not constitute a default on the Bonds or under any other document
relating to the Bonds, and all rights and remedies shall be limited to those expressly stated herein.
SECTION 11. Duties, Immunities and Liabilities of Disclosure Dissemination Agent.
(a) The Disclosure Dissemination Agent shall have only such duties as are specifically
set forth in this Disclosure Agreement. The Disclosure Dissemination Agent's obligation to
deliver the information at the times and with the contents described herein shall be limited to the
extent the Issuer has provided such information to the Disclosure Dissemination Agent as required
by this Disclosure Agreement. The Disclosure Dissemination Agent shall have no duty with
respect to the content of any disclosures or notice made pursuant to the terms hereof. The
Disclosure Dissemination Agent shall have no duty or obligation to review or verify any
information or any other information, disclosures or notices provided to it by the Issuer and shall
not be deemed to be acting in any fiduciary capacity for the Issuer, the Holders of the Bonds or any
other party. The Disclosure Dissemination Agent shall have no responsibility for the Issuer's
failure to report to the Disclosure Dissemination Agent a Notice Event or a duty to determine the
materiality thereof. The Disclosure Dissemination Agent shall have no duty to determine, or
liability for failing to determine, whether the Issuer has complied with this Disclosure Agreement.
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The Disclosure Dissemination Agent may conclusively rely upon certifications of the Issuer at all
times.
TO THE EXTENT PERMITTED BY LAW, THE ISSUER AGREES TO INDEMNIFY
AND SAVE THE DISCLOSURE DISSEMINATION AGENT AND ITS RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, HARMLESS AGAINST ANY
LOSS, EXPENSE AND LIABILITIES WHICH THEY MAY INCUR ARISING OUT OF OR IN
THE EXERCISE OR PERFORMANCE OF THEIR POWERS AND DUTIES HEREUNDER,
INCLUDING THE COSTS AND EXPENSES (INCLUDING ATTORNEYS FEES) OF
DEFENDING AGAINST ANY CLAIM OF LIABILITY, BUT EXCLUDING LIABILITIES
DUE TO THE DISCLOSURE DISSEMINATION AGENT'S NEGLIGENCE OR WILLFUL
MISCONDUCT.
The obligations of the Issuer under this Section shall survive resignation or removal of the
Disclosure Dissemination Agent and defeasance, redemption or payment of the Bonds.
(b) The Disclosure Dissemination Agent may, from time to time, consult with legal
counsel (either in-house or external) of its own choosing in the event of any disagreement or
controversy, or question or doubt as to the construction of any of the provisions hereof or its
respective duties hereunder, and neither of them shall incur any liability and shall be fully
protected in acting in good faith upon the advice of such legal counsel. The fees and expenses of
such counsel shall be payable by the Issuer.
SECTION 12. Amendment; Waiver. Notwithstanding any other provision of this
Disclosure Agreement, the Issuer and the Disclosure Dissemination Agent may amend this
Disclosure Agreement and any provision of this Disclosure Agreement may be waived, if such
amendment or waiver is supported by an opinion of counsel expert in federal securities laws
acceptable to both the Issuer and the Disclosure Dissemination Agent to the effect that such
amendment or waiver does not materially impair the interests of Holders of the Bonds and would
not, in and of itself, cause the undertakings herein to violate the Rule if such amendment or waiver
had been effective on the date hereof but taking into account any subsequent change in or official
interpretation of the Rule; provided neither the Issuer or the Disclosure Dissemination Agent shall
be obligated to agree to any amendment modifying their respective duties or obligations without
their consent thereto.
Notwithstanding the preceding paragraph, the Disclosure Dissemination Agent 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 by giving not less than 20 days written notice of the
intent to do so together with a copy of the proposed amendment to the Issuer. No such amendment
shall become effective if the Issuer shall, within 10 days following the giving of such notice, send
a notice to the Disclosure Dissemination Agent in writing that it objects to such amendment.
SECTION 13. Beneficiaries. This Disclosure Agreement shall inure solely to the benefit
of the Issuer, the Trustee of the Bonds, the Disclosure Dissemination Agent, the underwriter, and
the Holders from time to time of the Bonds, and shall create no rights in any other person or entity.
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SECTION 14. Governing Law. This Disclosure Agreement shall be governed by the
laws of the State of New York (other than with respect to conflicts of laws).
SECTION 15. Counterparts. This Disclosure Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the
same instrument.
[Remainder of page intentionally left blank.]
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The Disclosure Dissemination Agent, the Issuer and the Department have caused this
Continuing Disclosure Agreement to be executed, on the date first written above, by their
respective officers duly authorized.
DIGITAL ASSURANCE CERTIFICATION,
L.L.C., as Disclosure Dissemination Agent
By:
Name:
Title:
THE CITY OF MIAMI, FLORIDA
as Issuer
By:
Name: Pedro G. Hernandez
Title: City Manager
THE DEPARTMENT OF OFF-STREET
PARKING
as Issuer
By:
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Name: Arthur Noriega, V.
Title: Executive Director