BILL ANALYSIS                                                                                                                                                                                                    



                                                                AB 44
                                                                Page  1

        CONCURRENCE IN SENATE AMENDMENTS
        AB 44 (Blakeslee)
        As Amended  August 19, 2010
        Majority vote
         
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        |ASSEMBLY:  |     |(June 2, 2009)  |SENATE: |27-4 |(August 26,    |
        |           |     |                |        |     |2010)          |
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                (vote not relevant)


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        |COMMITTEE VOTE:  |8-0  |(August 30, 2010)   |RECOMMENDATION: |Concur    |
        |                 |     |                    |                |          |
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        Original Committee Reference:    U. & C.  

         SUMMARY  :  Expands the use of voluntary contractual assessments to  
        include financing electricity purchase agreements. 

         The Senate amendments  delete the Assembly version of this bill, and  
        instead:  

        1)Expand the use of voluntary contractual assessments to include  
          financing electricity purchase agreements by expanding the  
          definition of "permanently fixed to real property" to include  
          systems attached to a  residential, commercial, industrial,  
          agricultural, or other real property pursuant to an electricity  
          purchase agreement between the owner of the system and the owner  
          of the assessed property.  

        2)Require the electricity purchase agreement to contain all of  the  
          following provisions:

           a)   The attached system is an eligible renewable energy  
             resource pursuant to the California Renewables Portfolio  
             Standard Program; 

           b)   The term of the electricity purchase agreement is at least  
             as long as the term of the related assessment contract;

           c)   The owner of the attached system agrees to install,  
             maintain, and monitor the system for the entire term of the  








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             electricity purchase agreement;

           d)   The owner of the attached system cannot remove the system  
             before the end of the term of the contractual assessment lien;

           e)   After installation, the electricity is purchased by a  
             single payment using the funds from the contractual assessment  
             program;

           f)   The right to receive the electricity from the system is  
             tied to the ownership of the assessed real property and must  
             be automatically transferred with the title to the real  
             property whether the title is transferred by voluntary sale or  
             judicial or non-judicial foreclosure or by any other means;

           g)   The system must provide electricity to the assessed  
             property and to no other property or location.  The property  
             owner must not use the electricity generated from the system  
             for any location other than the assessed property;

           h)   The electricity purchase agreement identifies the public  
             agency that is a party to the assessment contract on the real  
             property as a third-party beneficiary of the electricity  
             purchase agreement until the assessment lien is fully paid  
             and, only until then, prohibits amendments to the electricity  
             purchase agreement without the public agency's consent; and,

           i)   The property owner is guaranteed the electric power from  
             the system, under the public agency criteria.

        3)Require a public agency's legislative body to establish criteria  
          to ensure that a real property owner is guaranteed the  
          electricity from a distributed generation renewable energy source  
          if the owner of the system files for bankruptcy, to the extent  
          permitted by federal law,  prior to authorizing public agency  
          officials and property owners to enter into voluntary contractual  
          assessments for financing the installation of distributed  
          generation renewable energy sources attached to a residential,  
          commercial, industrial, agricultural, or other real property  
          pursuant to an electricity purchase agreement.

        4)Require a public agency's legislative body to find that any  
          electricity purchase agreement funded with a contractual  
          assessment is structured, to the extent permitted by federal law,  
          to provide protections to the property owner in the event of a  








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          bankruptcy of the system's owner; the protections may include the  
          use of a special purpose entity or other adequate security.

         EXISTING LAW  :  

        1)Authorizes public agencies, as defined, in California to  
          designate areas within which legislative bodies and willing  
          property owners may enter into contractual assessments to finance  
          the installation of distributed generation renewable energy  
          sources or energy or water efficiency improvements.

        2)States legislative intent that the authorization listed above  
          should be used to finance the installation of distributed  
          generation renewable energy sources and energy or water  
          efficiency improvements that are fixed to residential,  
          commercial, industrial, agricultural, and other real property.

        3)States that for the purpose of financing the installation of  
          water efficiency improvements, "public agency" means a city,  
          county, city and county, municipal utility district, community  
          services district, sanitary district, sanitation district, or  
          water district.

        4)Prohibits the authorization from being used to finance the  
          purchase or appliances or installations not fixed to real  
          property.

        5)Makes findings and declarations concerning the need for energy  
          and water efficiency improvements in order to address global  
          climate change, the deterrent effect of high up-front costs on  
          making those improvements, and the need to authorize an  
          alternative procedure for authorizing assessments to finance the  
          cost of energy efficiency improvements in order to make them more  
          affordable and promote their installation.

        6)Declares that a public purpose will be served by a contractual  
          assessment program that provides the legislative body of  
          specified public agencies with the authority to finance the  
          installation of distributed generation renewable energy sources  
          or energy or water efficiency improvements to residential,  
          commercial, industrial, agricultural and other real property.

        7)Authorizes the legislative body to determine that it would be  
          convenient, advantageous, and in the public interest to designate  
          an area within the public agencies' jurisdiction, which may  








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          encompass the entire jurisdiction or a lesser portion, within  
          which authorized legislative body officials and property owners  
          may enter into contractual assessments to finance the  
          installation of distributed generation renewable energy sources  
          or energy or water efficiency improvements that are fixed to the  
          property.

        8)States that the term "energy efficient improvements" includes,  
          but is not limited to, the installation of distributed generation  
          renewable energy resources; and, that any energy efficiency  
          improvement must be fixed to the real property.

        9)Requires that the resolution adopted by the governing body direct  
          the appropriate city official to prepare a report including  
          specified provisions.

        10)Provides that, upon the written consent of an authorized city  
          official, the proposed arrangements for financing the program  
          pertaining to the installation of distributed generation  
          renewable energy resources, energy or water efficiency  
          improvements fixed to real property may authorize the property  
          owner to purchase directly the related equipment and materials  
          and to contract directly for the work on the property owner's  
          residential, commercial, industrial, and other real property.

        11)Specifies that assessments may be levied only with the free and  
          willing consent of the owner of each lot or parcel on which an  
          assessment is levied at the time the assessment is levied.

        12)States that assessments levied pursuant to this chapter, and the  
          interest and any penalties thereon shall constitute a lien  
          against the lots and parcels of land on which they are made until  
          they are paid.

        13)Requires that a specified city official enter into consultations  
          with the office of the county auditor or controller in order to  
          reach agreement on what additional fees, if any, will be charged  
          to the city or county for incorporating the proposed contractual  
          assessments into the assessments of the general taxes of the city  
          or county on real property, and to include a report on the  
          results of these consultations in the report to be submitted to  
          the legislative body of the city.

        14)Requires a legislative body to publish notice of a hearing  
          regarding contractual assessments.








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        15)Defines "city" for purposes of these sections as a city, county,  
          or city and county.

        16)Defines "water district" as any district or other political  
          subdivision, other than a city or county, a primary function of  
          which is the irrigation, reclamation, or drainage of land or the  
          diversion, storage, management, or distribution of water  
          primarily for domestic, municipal, agricultural, industrial,  
          recreation, fish and wildlife enhancement, flood control, or  
          power production purposes.

        17)Specifies for the purpose of financing the installation of  
          distributed generation renewable energy sources or energy  
          efficiency improvements, "public agency" means a county, city,  
          city and county, or a municipal utility district, an irrigation  
          district, or public utility district that owns and operates an  
          electric distribution system.

        18)Authorizes, under the Mello-Roos Community Facilities Act of  
          1982, a community facilities district to pay for work deemed  
          necessary to bring buildings or real property, including  
          privately owned buildings or real property, into compliance with  
          seismic safety standards or regulations.  Only work certified as  
          necessary to comply with seismic safety standards or regulations  
          by local building officials may be financed.

         AS PASSED BY THE ASSEMBLY  , this bill created incentives for  
        investor owned utilities and non-utility companies to build energy  
        storage devices that store energy produced from renewable  
        facilities.

         FISCAL EFFECT  :  Unknown 
         
        COMMENTS  :  AB 811 (Levine), Chapter 159, Statutes of 2008, proposed  
        to further the public interest of addressing climate change through  
        energy conservation efforts by authorizing cities to provide  
        up-front financing to property owners to install solar or other  
        renewable energy-generating devices or make specified energy  
        efficiency improvements to their properties through a system of  
        contractual assessments.  Prior to AB 811, contractual assessments  
        were only authorized for certain types of public works projects.   
        Under contractual assessments, the property owner or owners within  
        a designated area choose to assess themselves for the cost of  
        energy efficiency improvements or public works projects (i.e.,  








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        under grounding of power lines or installation of streetlights).   
        The local government then provides the up-front funds for the  
        project, and the property owners pay an annual assessment until  
        those funds, plus interest, are repaid.  The underlying purpose is  
        to create a means by which a project that provides both a public  
        benefit and an incidental benefit to particular property owners can  
        be financed without imposing the cost on property owners in other  
        parts of the city who derive no benefit.

        AB 474 (Blumenfield), Chapter 444, Statutes of 2009, added water  
        efficiency improvements to the list of improvements that can be  
        paid for through a contractual assessment between a willing  
        property owner and a public agency.  Since the 2008 Levine bill  
        took effect, communities throughout California have developed  
        financing programs to help property owners pay for renewable energy  
        improvements.  Financing solar power through electricity purchase  
        agreements offers significant advantages over financing  
        individually-owned solar systems.

        Electricity purchase agreements alleviate the property owner's  
        responsibility for maintaining the system and provide incentives  
        for the third-party service-provider to operate systems at maximum  
        efficiency.  Third-party providers can also take full advantage of  
        federal tax credits and accelerated depreciation schedules,  
        significantly reducing the costs of solar systems.  Economies of  
        scale also allow third-party providers to deliver solar power at  
        lower costs.  This bill improves on the Levine bill's success and  
        benefits property owners by combining voluntary contractual  
        assessment programs' low-cost financing with electricity purchase  
        agreements' advantages over individually-owned solar systems.
         
         Support arguments:  Supporters state that the cost associated with  
        purchasing renewable energy improvements can be very cost  
        prohibitive for many property owners.  Even with the use of  
        contractual assessments many property owners still cannot make the  
        costs and the projected savings pencil out.  Supporters believe  
        that by allowing the third-party provider to own the actual system,  
        where they are able to receive the bulk tax credits and discounts,  
        more property owners will be able to participate in renewable  
        energy programs.  Supporters argue that providing additional  
        options for the financing of these important projects is vital to  
        reducing the use of electricity from the grid. 

        Opposition arguments:  Opposition could argue that this measure  
        adds yet another improvement to the laundry list of improvements  








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        that a local government can finance through contractual  
        assessments; the Legislature may wish to consider whether it is  
        prudent to continue to authorize local governments to become a  
        glorified bank to help pay for on-site property improvements.  The  
        Legislature may also wish to consider if it would be wise to place  
        some type of cap on the amount of contractual assessments a local  
        government may enter into at any one time in order to reduce the  
        financial risk for the local agency.


         Analysis Prepared by  :    Katie Kolitsos / L. GOV. / (916) 319-3958 

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