Florida Senate - 2014 COMMITTEE AMENDMENT Bill No. HB 5601 Ì938816EÎ938816 LEGISLATIVE ACTION Senate . House Comm: RE . 04/25/2014 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Appropriations (Bean) recommended the following: 1 Senate Amendment to Amendment (477076) (with title 2 amendment) 3 4 Between lines 315 and 316 5 insert: 6 Section 7. Section 288.127, Florida Statutes, is created to 7 read: 8 288.127 Qualified television loan fund.— 9 (1) DEFINITIONS.—As used in this section, the term: 10 (a) “Fund administrator” means a private sector 11 organization under contract with the department to manage and 12 administer the QTV Fund. 13 (b) “Major broadcaster” means broadcasting organizations 14 that include, but are not limited to, television broadcasting 15 networks, cable television, direct broadcast satellite, 16 telecommunications companies, and internet streaming or other 17 digital media platforms. 18 (c) “Private investment capital” means capital from 19 private, nongovernmental funding sources that will be coinvested 20 with the QTV Fund in segregated accounts. 21 (d) “Qualified lending partner” means a financial 22 institution, as defined in s. 655.005, selected by a fund 23 administrator that has demonstrated capability in providing 24 financing to television production and specialized expertise in 25 intellectual property, tax credit programs, customary broadcast 26 license agreements, advertising inventories, and ancillary 27 revenue sources, and a combined portfolio in film, television, 28 and entertainment media of at least $500 million. 29 (e) “Qualified television content” means series, mini 30 series, or made-for-TV content produced by a qualified 31 production company that has in place a distribution contract 32 with a major broadcaster, under a customary broadcast license 33 agreement. The term does not include a production that contains 34 content that is obscene, as defined in s. 847.001. 35 (f) “QTV Fund” means the qualified television loan fund. 36 (2) PURPOSE.—The purpose of the QTV Fund is to create a 37 public-private partnership in the form of a revolving loan fund 38 to administer a loan program for television production. The QTV 39 Fund shall be privately managed under state oversight to 40 incentivize the use of this state as a site for producing 41 qualified television content and to develop and sustain the 42 workforce and infrastructure for television content production. 43 (3) CREATION.—The qualified television loan fund is created 44 within the department. The QTV Fund shall be a public fund that 45 is privately managed by the fund administrator under contract 46 with the department. The department shall disburse the funds 47 appropriated for this program to the fund administrator to 48 invest in the QTV Fund during the existence of the program 49 pursuant to this section and the contract between the fund 50 administrator and the department. State funds in the QTV Fund 51 may be used only to enter into loan agreements and to pay any 52 administrative costs or other authorized fees under this 53 section. 54 (a) The QTV Fund shall be a revolving loan fund that 55 invests and reinvests the principal and interest of the fund in 56 accordance with s. 617.2104 in a manner so as to not subject the 57 funds to state or federal taxes and to be consistent with the 58 investment policy statement adopted by the fund administrator. 59 As production companies repay the principal and interest to the 60 QTV Fund, state funds, less any QTV Fund expenses, shall be 61 returned to the account to be lent to subsequent borrowers. 62 (b) Funds from the QTV Fund shall be disbursed by the fund 63 administrator through a lending vehicle to make short-term loans 64 pursuant to this section. 65 (4) FUND ADMINISTRATOR.— 66 (a) The department shall contract with a fund administrator 67 by September 1, 2014, and award the contract in accordance with 68 the competitive bidding requirements in s. 287.057. 69 (b) The department shall select as fund administrator a 70 private sector entity that demonstrates the ability to implement 71 the program under this section and that meets the requirements 72 set forth in this section. Preference shall be given to 73 applicants that are headquartered in this state. Additional 74 consideration may be given to applicants that have experience in 75 the management of economic development or job creation-related 76 funds. The qualifications for the fund administrator must 77 include, but are not limited to: 78 1. A demonstrated track record of managing private sector 79 equity or debt funds in the entertainment and media industries. 80 2. The ability to demonstrate through a partnership 81 agreement that a qualified lending partner is in place, which 82 has the capability of providing leverage of a minimum of 2.5 83 times the capital amount of the QTV Fund, for financing the 84 production cost of qualified television content in the form of 85 senior debt. 86 (c) For overseeing and administering the QTV Fund, the fund 87 administrator shall be reimbursed for the costs the fund 88 administrator incurs in establishing and operating the fund 89 related to the state’s investment, which shall be paid from 90 state funds in the QTV Fund. Any additional private investment 91 capital in the segregated accounts is responsible for its own 92 management fees. The fund administrator is entitled to a 93 reasonable profit, but such distribution may not be made from 94 the principal funds from the original appropriation. 95 (d) The fund administrator shall provide services defined 96 under this section for the duration of the QTV Fund term unless 97 removed for cause. Cause shall be further defined under the 98 contract with the fund administrator and must include, but is 99 not limited to, the engagement in fraud or other criminal acts 100 by board members, incapacity, unfitness, neglect of duty, 101 official incompetence and irresponsibility, misfeasance, 102 malfeasance, nonfeasance, or lack of performance. 103 (5) FUND ADMINISTRATOR POWERS AND DUTIES.— 104 (a) Authority to contract.—The fund administrator may enter 105 into agreements with qualified lending partners for concurrent 106 lending through the QTV Fund. A loan made by the qualified 107 lending partner must be accounted for separately from the state 108 funds or other private investment capital. Such loan shall be 109 made as senior debt. The fund administrator may raise private 110 investment capital for mezzanine equity and other equity or 111 raise junior capital for concurrent lending through the QTV 112 Fund. However, loans from private investment capital may not be 113 made at more favorable terms and conditions than the terms and 114 conditions of the state funds in the QTV Fund. The state 115 appropriation must be maintained in a separate account from 116 private investment capital and administered in a separate legal 117 investment entity or entities. Private investment capital and 118 loans shall be segregated from each other, and funds may not be 119 commingled. 120 (b) General duties.—The fund administrator: 121 1. Shall prudently manage the funds in the QTV Fund as a 122 revolving loan fund. 123 2. Shall contract with one or more qualified lending 124 partners. 125 3. Shall provide improvement of the credit profile of a 126 structured financial transaction for qualified production 127 companies that produce qualified television content meeting the 128 criteria in subsection (7). 129 4. May raise additional private investment capital to be 130 held in separate accounts, in addition to the leverage provided 131 by the qualified lending partner. 132 5. Shall administer the QTV Fund in accordance with this 133 part. 134 6. Shall agree to maintain the recipient’s books and 135 records relating to funds received from the department according 136 to generally accepted accounting principles and in accordance 137 with s. 215.97(7) and to make those books and records available 138 to the department for inspection upon reasonable notice. The 139 books and records must be maintained with detailed records 140 showing the use of proceeds from loans to fund qualified 141 television content. 142 7. Shall maintain its registered office in this state 143 throughout the duration of the contract. 144 (c) Financial reporting.—The fund administrator shall 145 annually submit to the department by February 28 audited 146 financial statements for the preceding tax year which are 147 audited by an independent certified public accountant after the 148 end of each year in which the fund administrator is under 149 contract with the department. In addition to providing an 150 independent opinion on the annual financial statements, such 151 audit provides a basis for verifying the segregation of state 152 funds from those of any private investment capital. 153 (d) Program reporting.—The fund administrator shall submit 154 a report to the department by February 28 after the end of each 155 year in which the fund administrator is under contract with the 156 department. The report must include information on the loans 157 made in the preceding calendar year, including: 158 1. The name of the qualified television content. 159 2. The names of the counties in which the production 160 occurred. 161 3. The number of jobs created and retained as a result of 162 the production. 163 4. The loan amounts, including the amount of private 164 investment capital and funds provided by a qualified lending 165 partner. 166 5. The loan repayment status for each loan. 167 6. The number and amounts of any loans with payments past 168 due. 169 7. The number and amounts of any loans in default. 170 8. A description of the assets securing the loans. 171 9. Other information and documentation required by the 172 department. 173 (e) Plan of accountability.—The fund administrator shall 174 submit an annual plan of accountability of economic development, 175 including a report detailing the job creation resulting from the 176 QTV Fund loans made during the current year and cumulatively 177 since the inception of the program. The fund administrator shall 178 also provide any additional information requested by the 179 department pertaining to economic development and job creation 180 in the state. 181 (f) Conflict-of-interest statement.—The fund administrator 182 shall provide a conflict-of-interest statement from its 183 governing board certifying that no board member, director, 184 employee, agent, immediate family member thereof, or other 185 person connected to or affiliated with the fund administrator is 186 receiving or will receive any type of compensation or 187 remuneration from a production company that has received or will 188 receive funds from the loan program or from a qualified lending 189 partner. The department may waive this requirement for good 190 cause shown. 191 (6) LOAN STRUCTURE.— 192 (a) The QTV Fund may make loans to production companies to 193 fund production costs or provide improvement of the credit 194 profile of a structured financial transaction for qualified 195 television content that meets the criteria requirements of 196 subsection (7). To make a loan, the fund administrator shall 197 consider the types of eligible collateral, the credit worthiness 198 of the project, the producer’s track record, the possibility 199 that the project will encourage, enhance, or create economic 200 benefits, and the extent to which assistance would foster 201 innovative public-private partnerships and attract private debt 202 or equity investment. 203 (b) The QTV Fund loan package shall be secured by 204 contractual and predictable sources of repayment such as 205 domestic and international broadcaster license agreements and 206 other ancillary revenues that are derived from media content 207 rights. Unsecured loans may not be made. 208 (c) The loans shall be made on the basis of a second lien 209 or primary security rights on the media assets listed in 210 paragraph (b). 211 (d) The QTV Fund shall provide funding only in conjunction 212 with senior loans provided by a qualified lending partner. Loans 213 from the fund may be subordinated to senior debt from the 214 qualified lending partner and may not exceed 30 percent of the 215 total production funding cost of any particular project. 216 (e) The production company’s repayment of a loan shall be 217 in accordance with the broadcast license agreement and the 218 delivery of qualified television content to the major 219 broadcaster and shall be within 60 days after such delivery. 220 (f) Loans made by the QTV Fund may not exceed 36 months in 221 duration, except for extenuating circumstances for which the 222 fund administrator may grant an extension upon making written 223 findings to the department specifying the conditions requiring 224 the extension. 225 (g) The fund administrator or a board member, employee, or 226 agent thereof, or an immediate family member of a board member, 227 employee, or agent, may not have a financial interest in an 228 entity that is awarded a loan under a loan program and may not 229 benefit directly or indirectly from the making of such loan. A 230 loan may not be made to a person if it violates this paragraph. 231 As used in this section, the term “immediate family” means a 232 parent, child, or spouse, or other relative by blood, marriage, 233 or adoption, of a board member, employee, or agent of the loan 234 administrator. 235 (h) Except for funds appropriated to the department for the 236 loan program, the credit of the state may not be pledged. The 237 state is not liable or obligated in any way for claims against 238 the QTV Fund or against the fund administrator, the qualified 239 lending partner, or the department. 240 (7) QUALIFIED TELEVISION CONTENT CRITERIA.—The fund 241 administrator must, at a minimum, consider the following 242 criteria for evaluating the qualifying television content: 243 (a) The content is intended for broadcast by a major 244 broadcaster on a major network, cable, or streaming channel. 245 (b) The content is produced in this state, or a minimum of 246 80 percent of the production budget must be spent in this state. 247 This requirement may be amended by the fund administrator upon 248 notice to the department. Such notice must include a specific 249 justification for the change and must be transmitted to the 250 department in writing. The department has 10 business days to 251 object to the change. If the department does not object within 252 10 business days, the change is deemed acceptable by the 253 department, and the fund administrator may grant the amendment. 254 (c) If the content is a series, there is a programming 255 order for at least 13 episodes. This requirement may be amended 256 by the fund administrator upon notice to the department. Such 257 notice must include a specific justification for the change and 258 must be transmitted to the department in writing. The department 259 has 10 business days to object to the change. If the department 260 does not object within 10 business days, the change is deemed 261 acceptable by the department, and the fund administrator may 262 grant the amendment. 263 (d) The producer must have a contract in place with a major 264 broadcaster to acquire content programming under a customary 265 broadcast license agreement and the contract must cover at least 266 60 percent of the budget. 267 (e) The producer must retain a foreign sales agent and must 268 be able to provide the fund administrator with the foreign sales 269 agent’s official estimates of foreign and ancillary sales. 270 (f) The project must be bonded and secured by an industry 271 approved completion guarantor if the production cost per episode 272 exceeds $1 million. This requirement may be waived if the loan 273 applicant provides the fund administrator with evidence of 274 adequate structure to protect the state’s funds. 275 (8) AUDITOR GENERAL AUDIT.—The Auditor General may conduct 276 operational audits, as defined in s. 11.45, of the QTV Fund and 277 fund administrator. The scope of audit must include, but is not 278 limited to, internal controls evaluations, internal audit 279 functions, reporting and performance requirements for the use of 280 the funds, and compliance with state and federal law. The fund 281 administrator shall provide to the Auditor General any detail or 282 supplemental data required. 283 (9) RULEMAKING AUTHORITY.—The department may adopt rules to 284 administer this section. 285 (10) EXPIRATION.—This section expires December 31, 2024, at 286 which point all funds remaining in the QTV Fund revert to the 287 General Revenue Fund. 288 (11) EMERGENCY RULES.— 289 (a) The executive director of the department is authorized, 290 and all conditions are deemed met, to adopt emergency rules 291 pursuant to ss. 120.536(1) and 120.54(4) for the purpose of 292 implementing this section. 293 (b) Notwithstanding any other law, the emergency rules 294 adopted pursuant to paragraph (a) remain in effect for 6 months 295 after adoption and may be renewed during the pendency of 296 procedures to adopt permanent rules addressing the subject of 297 the emergency rules. 298 (c) This subsection expires October 1, 2015. 299 Section 10. Paragraph (b) of subsection (2) of section 300 288.0001, Florida Statutes, is amended to read: 301 288.0001 Economic Development Programs Evaluation.—The 302 Office of Economic and Demographic Research and the Office of 303 Program Policy Analysis and Government Accountability (OPPAGA) 304 shall develop and present to the Governor, the President of the 305 Senate, the Speaker of the House of Representatives, and the 306 chairs of the legislative appropriations committees the Economic 307 Development Programs Evaluation. 308 (2) The Office of Economic and Demographic Research and 309 OPPAGA shall provide a detailed analysis of economic development 310 programs as provided in the following schedule: 311 (b) By January 1, 2015, and every 3 years thereafter, an 312 analysis of the following: 313 1. The entertainment industry financial incentive program 314 established under s. 288.1254. 315 2. The entertainment industry sales tax exemption program 316 established under s. 288.1258. 317 3. TheVISITFlorida Tourism Industry Marketing Corporation 318 and its programs established or funded under ss. 288.122, 319 288.1226, 288.12265, and 288.124. 320 4. The Florida Sports Foundation and related programs 321 established under ss. 288.1162, 288.11621, 288.1166, 288.1167, 322 288.1168, 288.1169, and 288.1171. 323 5. The qualified television loan fund established under s. 324 288.127. 325 326 ================= T I T L E A M E N D M E N T ================ 327 And the title is amended as follows: 328 Delete lines 378 - 398 329 and insert: 330 An act relating to economic development; amending s. 331 202.12, F.S.; reducing the tax rate applied to the 332 sale of communications services; reducing the tax rate 333 applied to the retail sale of direct-to-home satellite 334 services; amending s. 202.12001, F.S.; conforming 335 rates to the reduction of the communications services 336 tax; amending s. 202.18, F.S.; revising the 337 distribution of tax revenues received; amending s. 338 203.001. F.S.; conforming rates to the reduction of 339 the communications services tax; amending s. 212.20, 340 F.S.; providing for a monthly distribution of a 341 specified amount of sales tax revenue to a complex 342 certified as a motorsports entertainment complex by 343 the Department of Economic Opportunity; amending s. 344 288.1171, F.S.; authorizing the department to certify 345 a single applicant as a motorsports entertainment 346 complex if it meets specified criteria; authorizing 347 the Auditor General to verify the expenditure of 348 specified distributions and to notify the Department 349 of Revenue of improperly expended funds so that it may 350 pursue recovery; creating s. 288.127, F.S.; providing 351 definitions; providing a purpose; creating the 352 qualified television loan fund; requiring the 353 Department of Economic Opportunity to contract with a 354 fund administrator; providing fund administrator 355 qualifications; providing for the fund administrator’s 356 compensation and removal; specifying the fund 357 administrator powers and duties; providing the 358 structure of the loans; providing qualified television 359 content criteria; permitting the Auditor General to 360 conduct an operational audit of the fund and the fund 361 administrator; authorizing the department to adopt 362 rules; providing for expiration of the act; providing 363 emergency rulemaking authority; amending s. 288.0001, 364 F.S.; requiring an analysis of the qualified 365 television loan fund in the Economic Development 366 Programs Evaluation; specifying a period during which 367 the