BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 44
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          Date of Hearing:   August 30, 2010

                       ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
                                Cameron Smyth, Chair
                   AB 44 (Blakeslee) - As Amended:  August 19, 2010
           
          SUBJECT  :   Improvement Act of 1911: contractual assessments.

           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  
               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;









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

           EXISTING LAW  :  









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          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 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  








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            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.

          15)Defines "city" for purposes of these sections as a city,  








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            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., under grounding of power lines  
          or installation of streetlights).  The local government then  








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          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  








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          adds yet another improvement to the laundry list of improvements  
          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.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          SunRun [SPONSOR]
          County of San Luis Obispo
          Natural Resources Defense Council
          Solar Alliance

           Opposition 
           
          None on file

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