Loading...
Exhibit F-Disclosure Commitment CONTINUING DISCLOSURE COMMITMENT E X H I I T F SS&D DRAFf #4 10/12/00 CONTINUING DISCLOSURE COMMITMENT THIS CONTINUING DISCLOSURE COMMITMENT dated as of , 2000, is made by the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation duly organized and existing under the Constitution and laws of the State of Florida (the "City"), for the benefit of the holders and beneficial owners from time to time of the City's $ Stormwater Revenue Bonds, Series 2000 dated as of , 2000 (the "Bonds''), under the circumstances sununarized in the following recitals (with each capitalized term used but not defined in this Commitment having the meaning assigned to it in Resolution No. adopted by the City on October 18,2000, authorizing issuance ofthe Bonds (the "Bond Resolution"): A. The City has determined to issue the Bonds pursuant to the Bond Resolution and the Underwriters described in the Bond Resolution (collectively, the "Original Purchaser") have agreed to purchase the Bonds. B. The City understands that the Original Purchaser will sell and deliver Bonds to other holders and beneficial owners and that the Bonds will be transferred from time to time from holders and beneficial owners to other holders and beneficial owners who may rely upon the continuing disclosure agreement made by the City in the Bond Resolution and this Commitment. C. As a condition to the purchase of the Bonds from the City and the sale of Bonds to holders and beneficial owners, the Original Purchaser is required to reasonably determine that the City has made an agreement for the benefit of holders and beneficial owners of the Bonds in accordance with paragraph (b)(5)(i) of Rule 15c2-12 (the "Rule") promulgated by the Securities and Exchange Commission (the "SEe'') pursuant to the Securities Exchange Act of 1934. D. The City made an agreement in the Bond Resolution, certain tenns of which were to be further described and specified in a Continuing Disclosure Commitment, to provide or cause to be provided such financial information and operating data, financial statements and notices, in such manner, as may be required for purposes of paragraph (b)( 5)(i) of the Rille. NOW, THEREFORE, in consideration of the purchase of the Bonds from the City by the Original Purchaser and the contemplated sale of the Bonds to, and transfer of Bonds between, holders and beneficial owners from time to time, the City hereby sets forth, pursuant to Section 208 of the Bond Resolution, certain terms of its continuing disclosure agreement made for purposes of the Rule and formed, collectively, by the applicable provisions of said Section 208 and this Commitment (the "Agreement"), for the benefit of the holders and beneficial owners from time to time of the Bonds, as follows: SECTION 1. Provision of Annual Information: Audited Financial Statements: and Notices of Events. The City shall provide or cause to be provided: (a) to each nationally recognized municipal securities information repository designated from time to time by the SEC ("NRMSIR") and to any state information Miuni;23074-000I.;DowmCllIII,S<l4Ov<l depository with which filings are required to be made by the City in accordance with the Rule ("SID''), (i) annual financial information and operating data of the type described in Section 2 ("Annual Information") for each Fiscal Year ending on or after September 30, 2001, not later than the 240th day following the end of each Fiscal Year, and (ii) when and if available, audited fmancial statements of the City with respect to the Stormwater Utility for each such Fiscal Year which may be a part of the City's consolidated audited fmancial report (the "Financial Statements"); and (b) to each NRMSIR or to the Municipal Securities Rulemaking Board established by the SEC ("MSRB"), and to the SID, in a timely manner, notice of (i) any Specified Event described in Section 2 if that Event is material, (ii) the City's failure to provide the Annual Information on or prior to the date specified above, and (iii) any change in the accounting principles applied in the preparation of the Financial Statements, any change in its Fiscal Year, and of the Agreement's tennination. The City expects that the Financial Statements will be prepared, any such statements will be available together with the Annual Information, and the accounting principles to be applied in the preparation of the Financial Statements will be generally accepted accounting principles as recommended from time to time by the Govemmental Accounting Standards Board. SECTION 2. Annual Information and Specified Events. (a) Annual Information to be provided by the City shall consist of financial information and operating data for the prior Fiscal Year concerning the Stormwater Utility and contained in the Official Statement with respect to the Bonds under the captions "THE STORMWATER UTILITY - Rates, Fees and Charges" and "HISTORICAL AND FORECASTED SCHEDULE OF NET REVENUE, DEBT SERVICE AND DEBT COVERAGE"; provided, however, that the City's obligation to provide such Annual Information may be satisfied by providing a copy of the City's comprehensive annual financial report to the extent that the Annual Information is contained therein. (b) Specified Events shall include the occurrence of the following events, within the meaning of the Rille, with respect to the Bonds: principal and interest payment delinquencies; non-payment related defaillts; unscheduled draws on the Reserve Account established under the Bond Resolution reflecting fmancial difficulties; unscheduled draws on credit enhancements reflecting fmancial difficulties; substitution of credit or liquidity providers, or their failure to perform; adverse tax opinions or events affecting the tax- exempt status of the Bonds; modifications to rights of beneficial owners; Bond calls; defeasances; release, substitution, or sale of property securing repayment of the Bonds; and rating changes. SECTION 3. Amendments. The City reserves the right to amend the Agreement, and noncompliance with any provision of the Agreement may be waived, as may be necessary or appropriate to achieve its compliance with any applicable federal securities law or rule, to cure any ambiguity, inconsistency or formal defect or omission, and to address any change in circumstances arising from a change in legal requirements, change in law, or change in the identity, nature, or 2 Miomi;2J07<l-00014;DowmCllIII'S440v4 status of the City, or type of business conducted by the City. Any such amendment or waiver shall not be effective unless the Agreement (as amended or taking into account such waiver) would have complied with the requirements of the Rule at the time of the primary offering of the Bonds, after taking into account any applicable amendments to or official interpretations of the Rille, as well as any change in circumstances, and until the City shall have received either (a) a written opinion of bond or other qualified independent special counsel selected by the City that the amendment or waiver woilld not materially impair the interests of holders or beneficial owners, or (b) the written consent to the amendment or waiver of the holders of at least a majority of the principal amount of the Bonds then outstanding. Annual1nformation containing any revised operating data or financial information shall explain, in narrative form, the reasons for any such amendment or waiver and the impact of the change on the type of operating data or financial information being provided. SECTION 4. Remedv for Breach. The Agreement shall be solely for the benefit of the holders and beneficial owners from time to time of the Bonds. The exclusive remedy for any breach of the Agreement by the City shall be limited, to the extent permitted by law, to a right of holders and beneficial owners to institute and maintain, or to cause to be instituted and maintained, such proceedings in Miami-Dade County, Florida as may be authorized at law or in equity to obtain the specific performance by the City of its obligations under the Agreement. Any holder or beneficial owner may exercise individually any such right to require the City to specifically perform its obligation to provide or cause to be provided a pertinent filing if such a filing is due and has not been made. Holders and beneficial owners shall not be entitled to institute or maintain any such proceedings individually that assert a breach of the Agreement that is based on the alleged inadequacy of any pertinent filing that has been made. Notwithstanding any other provisions of the Bond Resolution or the Agreement, any failure by the City to comply with any provisions of the Agreement shall not constitute an Event of Default under the Bond Resolution. SECTION 5. Sources ofPaVIDents: Extent of Covenants: No Personal Liabilitv. The City shall be required to use only Revenues to pay any costs and expenses to be incurred in the performance of this Agreement by it, and the performance of its obligations hereunder shall be subject to the availability of Revenues for that purpose; provided, that any such costs and expenses shall constitute Current Expenses under the Bond Resolution. This Agreement does not and shall not constitute a general obligation of the City. All covenants, stipulations, obligations and agreements of the City contained in this Agreement are and shall be deemed to be covenants, stipulations, obligations and agreements of the City to the full extent authorized by law. No covenant, stipulation, obligation or agreement of the City contained in this Agreement shall be deemed to be a covenant, stipulation, obligation or agreement of any present or future officer, agent or employee of the City in other than that person's official capacity. SECTION 6. Termination. The obligations of the City under the Agreement shall remain in effect only for such period that the Bonds are outstanding in accordance with their tenns and the City remains an obligated person with respect to the Bonds within the meaning of the Rule. The obligation of the City to provide the Annual Information and notices of the events described above shall tenninate, if and when the City no longer remains such an obligated person. IN WITNESS WHEREOF, the City has caused this Commitment to be duly signed and delivered to the Original Purchaser, as part of the Bond proceedings and in connection with the 3 Miami;2307<l-00014;Dowmf:ltlll,SoWOv4 original delivery of the Bonds to the Original Purchaser, on its behalf by its Finance Director, all as of the date set forth above, and the holders and beneficial owners from time to time of the Bonds, shall be deemed to have accepted the Agreement, as contained in Section 208 of the Bond Resolution and further described and specified herein, in accordance with the Rule. CITY OF MIAMI BEACH, FLORIDA By: Finance Director 4 Miami;2307<l-OOOI.;\loI;umf:lt!II,S440v4