Loading...
HomeMy WebLinkAboutExhibit FEXHIBIT F FORM OF THE DISSEMINATION AGENT AGREEMENT CONTINUING DISCLOSURE AGREEMENT This Continuing Disclosure Agreement (the "Disclosure Agreement") is executed and delivered by and between the City of Miami, Florida (the "Issuer") and Digital Assurance Certification LLC, a Florida limited liability company (the "Dissemination Agent"), in connection with the issuance of the Issuer's $ City of Miami, Florida Limited Ad Valorem Tax Bonds (Miami Forever Infrastructure Programs) Tax -Exempt Series 2024C (collectively, the "Series 2024C Bonds"). The Series 2024C Bonds are being issued under the authority of, and in full compliance with, the Constitution and the laws of the State of Florida, including Chapter 163, Chapter 166, Part II, and Chapter 159, Part VII, Florida Statutes, the Charter of the City, and other applicable provisions of law (the "Act") and pursuant to Resolution No. R-19-0062 adopted by the City Commission on February 14, 2019 (the "Master Resolution"), as supplemented and particularly as supplemented by Resolution No. R-24-[ 1 adopted by the City Commission on [July -I, 2024 (the "Series Resolution", together with the Master Resolution, the "Bond 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 2024C Bonds and in order to assist the Participating Underwriters in complying with the continuing disclosure requirements of the Rule defined below. 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 pursuant to Section 8 of this Disclosure Agreement. "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 E-1 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 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 Event" 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 2024C 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 2024C Bonds required to comply with the Rule in connection with offering of the Series 2024C Bonds. "Repository" shall mean each entity authorized and approved by the Securities and Exchange Commission from time to time to act as a repository for purposes of complying with the Rule. As of the date hereof, the Repository recognized by the Securities and Exchange Commission for such purpose is the MSRB, which currently accepts continuing disclosure submissions through EMMA. "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 June 30 after the end of the Issuer's last fiscal year (presently ends September 30), commencing with the report for the 2023-2024 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. E-2 (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. (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 [July ], 2024 (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: 1. Property Tax Rates; 2. Net Assessed Value and Estimated Actual Value of Taxable Property; 3. Property Tax Levies and Collections; 4. Ten Largest Tax Assessments; 5. Legally Available Non -Ad Valorem Revenues -Fiscal Year Ended September 30th; 6. Schedule of Principal and Interest for Non -Ad Valorem Revenue Bonds; 7 Summary Schedule of Revenues, Expenditures and Net Changes in Fund Balance for the General Fund; 8. Direct Debt; 9. Appendix A: Labor Force and Employment Statistics, Greater Miami Metropolitan Area; 10. Appendix A: Principal Employers; E-3 11. Appendix A: Record of Building Permits; 12. Appendix A: Population; 13. Appendix A: Direct and Overlapping Governmental Activities Debt; and 14. Appendix A: Summary of Debt Ratios, Measurements and Debt Constraints Criteria. 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 2024C Bonds, with the exception of the event described in number 17 below, which notice shall be given in a timely manner: 1. principal and interest payment delinquencies; 2. non-payment related defaults if material; 11 r 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 the Series 2024C Bonds, or other material events affecting the tax status of the Series 2024C Bonds; 7. modifications to rights of the holders of the Series 2024C Bonds, if material; 8. bond calls, if material, and tender offers; 9. defeasances; 10. release, substitution, or sale of property securing repayment of the Series 2024C Bonds; E-4 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; 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. IDENTIFYING INFORMATION. In accordance with the Rule, all disclosure filings submitted pursuant to this Disclosure Agreement to any Repository must be accompanied by identifying information as prescribed by the Repository. Such information may include, but not be limited to: (a) the category of information being provided; (b) the period covered by any annual financial information, financial statement or other financial information or operation data; (c) the issues or specific securities to which such documents are related (including CUSIPs, issuer name, state, issue description/securities name, dated date, maturity date, and/or coupon rate); (d) the name of any Obligated Person other than the Issuer; (e) the name and date of the document being submitted; and (f) contact information for the submitter. SECTION 7. 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 2024C Bonds, so long as there is no remaining E-5 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 2024C Bonds, the Issuer shall give notice of such termination in the same manner as for a Listed Event. SECTION 8. 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 (to be effective upon appointee filing with the Issuer a written acceptance of its designation as Dissemination), and may discharge any such Dissemination Agent, with or without appointing a successor Dissemination Agent. 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 Digital Assurance Certification LLC, a Florida limited liability company. SECTION 9. 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 2024C 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 2024C 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 2024C 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, 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. E-6 SECTION 10. 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. SECTION 11. DEFAULT. The continuing disclosure obligations of the Issuer set forth herein constitute a contract with the holders of the Series 2024C 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 2024C 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 12. DUTIES, IMMUNITIES AND LIABILITIES OF DISSEMINATION AGENT. The Dissemination Agent shall have no duty or obligation to review or verify any information, disclosures or notices provided to it by the Issuer under this Disclosure Agreement and shall not be deemed to be acting in any fiduciary capacity for the Issuer, the holders of the Series 2024C Bonds or any other party. 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 2024C Bonds. [Remainder of page intentionally left blank] E-7 SECTION 13. 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 2024C Bonds, and shall create no rights in any other person or entity. Dated: [July ], 2024. [SEAL] ATTEST: By: Todd B. Hannon City Clerk APPROVED AS AND CORREC CITY OF MIAMI, FLORIDA, as Issuer By: City Manager RAFT By: George K. Wysong III, Esq. City Attorney DIGITAL ASSURANCE CERTIFICATION LLC, a Florida limited liability company, as Dissemination Agent By: Name: Title: E-8 EXHIBIT A NOTICE TO REPOSITORY OF FAILURE TO FILE ANNUAL REPORT Obligated Person: City of Miami, Florida Name of Bond Issue: City of Miami, Florida Limited Ad Valorem Tax Bonds (Miami Forever Infrastructure Programs) Tax -Exempt Series 2024C Date of Issuance: [July ], 2024 CUSIP Number(s): 59338C [ ] 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 [July ], 2024. The Issuer has notified the Dissemination Agent that it anticipates that the Annual Report will be filed by Dated: MIAMI, F RIDA By: Name: Title: E-9 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 2024C Bonds to which this event notice relates: Number of pages attached: Description of Notice Events (Check One): 4 1. "Principal and interest payment delinquencies;" 2. "Non -Payment related defaults, if material;" 4 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;" 14. "Appointment of a successor or additional trustee, or the change of name of a trustee, if material;" 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;" E-10 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. "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: DRAFT E-11