BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  July 15, 2015


                       ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT


                              Brian Maienschein, Chair


          SB  
          602 (Monning) - As Amended June 17, 2015


          SENATE VOTE:  38-0


          SUBJECT:  Seismic safety: California Earthquake Authority.


          SUMMARY:  Authorizes the California Earthquake Authority to  
          enter into voluntary contractual assessments with property  
          owners to finance the instillation of seismic strengthening  
          improvements.  Specifically, this bill:  


          1)Extends the authority granted to public agencies, cities, and  
            counties, to the California Earthquake Authority (CEA) to  
            enter into voluntary contractual assessments with property  
            owners to finance the installation of seismic strengthening  
            improvements that are permanently fixed to real property.  


          2)Makes changes to the definition of "public agency" to include  
            CEA and adds "governing body" to the authorization under  
            existing law related to contractual assessments granted to a  
            legislative body.  


          3)Authorizes the CEA, unless otherwise specified in a resolution  








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            of intention and a report pursuant to existing law, to enter  
            into voluntary contractual assessments with property owners to  
            finance the installation of seismic strengthening improvements  
            that are permanently fixed to real property throughout the  
            entire state.  


          4)Provides that the CEA is not required to designate, describe,  
            or provide a map of that area in the resolution of intention  
            or the report required under existing law, unless that area  
            covers an area smaller than the entire state.  


          5)Requires the CEA to publish notice of the hearing to create  
            the voluntary contractual assessment program to finance the  
            installation of seismic strengthening improvements solely in a  
            newspaper of general circulation within Sacramento County.  


          6)Provides that existing law that requires notification to water  
            and electric providers does not apply to a voluntary  
            contractual assessment program, which solely finances the  
            installation 


          of seismic strengthening improvements that are permanently fixed  
            to real property.  
          7)Requires that any voluntary contractual assessments entered  
            into with respect to a program established by CEA, be made  
            under the payment schedule set forth in the contract providing  
            for that voluntary contractual assessment, whether or not any  
            bonds secured by that voluntary contractual assessment have  
            been issued.  


          8)Adds the CEA to the definition of 'city' in the Improvement  
            Bond Act of 1915.  










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          EXISTING LAW:   


          1)Authorizes a public agency to enter into a contractual  
            assessment with a willing property owner to finance the  
            installation of seismic strengthening improvements.  
          2)Requires the governing body to adopt a resolution to use  
            voluntary contractual assessments, which would do the  
            following: 

             a)   Determine that it would be convenient, advantageous, and  
               in the public interest to designate an area within which  
               officials and property owners may enter into contractual  
               assessments and make related financing arrangements;  

             b)   Identify the kinds of public works, distributed  
               generation renewable energy sources, or energy or water  
               efficiency improvements which may be financed;

             c)   Describe the area where contractual assessments may be  
               used;

             d)   Describe the proposed financing arrangements, including  
               criteria for determining the creditworthiness of a property  
               owner; 

             e)   State the time and place for a public hearing; and,

             f)   Direct an official to prepare a detailed report about  
               the contractual assessment program and consult with the  
               county auditor and county controller regarding fees. 

          3)Requires the report to contain the following:

             a)   A map of the area where contractual assessments will be  
               offered;

             b)   A draft contract specifying the terms and conditions  
               that would be agreed to by a property owner and the public  








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               agency; 

             c)   A statement of public agency policies concerning  
               voluntary contractual assessments, including all of the  
               following:

               i)     A list of the types of facilities and improvements  
                 which may be financed; 

               ii)    The official authorized to enter into contractual  
                 assessments on behalf of the county or city;  

               iii)   The maximum aggregate dollar amount of contractual  
                 assessments; and,

               iv)    A method for prioritizing requests from property  
                 owners for financing;

             d)   Information about the county auditor's and county  
               controller's fees.

          4)Authorizes a public agency to issue bonds and to repay the  
            principal and interest with the voluntary contractual  
            assessment.  

          5)Authorizes a public agency to advance its own funds to finance  
            work to be repaid through voluntary contractual assessment,  
            and from time to time, sell bonds to reimburse itself.  
          6)Allows a public agency to enter into a relationship with an  
            underwriter or financial institution that would allow the  
            sequential issuance of a series of bonds, issuing each bond as  
            the need arises to finance work to be repaid through the  
            voluntary contractual assessments.  

          7)Provides that assessments and the interest and penalties shall  
            constitute a lien against the lots and parcels of land on  
            which they are made, until they are paid.  

          FISCAL EFFECT:  According to the Senate Appropriations  








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          Committee, minor, absorbable one-time costs to the Department of  
          Insurance (Special Fund).  The Department of Insurance indicates  
          one-time costs of less than $5,000 to review and evaluate the  
          proposed financing programs.  All costs for the retrofitting  
          program are paid from non-state sources through the CEA.





          COMMENTS:  


          1)Voluntary Contractual Assessments.  AB 811 (Levine), Chapter  
            159, Statutes of 2008, proposed to further the public interest  
            of addressing climate change through energy conservation  
            efforts by authorizing public agencies (cities and counties)  
            to provide up-front financing to property owners to install  
            renewable energy sources or energy efficiency improvements  
            that are permanently fixed to their properties through a  
            system of contractual assessments.  


            Many local governments utilize the authorization granted by AB  
            811 to do PACE (Property Assessed Clean Energy), a financing  
            tool that residential or commercial property owners can use to  
            pay for renewable energy upgrades, energy or water efficiency  
            retrofits, or electric vehicle charging stations for their  
            homes or buildings.  Local agencies create PACE assessment  
            districts in their jurisdictions via a resolution of their  
            legislative body, allowing the local agency to issue bonds to  
            finance the up-front costs of improvements.  In turn, property  
            owners enter into a voluntary contractual assessment agreement  
            with the local agency to re-pay the bonds via an assessment,  
            secured by a priority lien, on their property tax bill.  The  
            intent of the program is that the assessment remains with the  
            property even if it is sold or transferred, and the  
            improvements must be permanently fixed to the property.  









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            In California, instead of local governments administering  
            their own PACE programs, the majority of local governments  
            partner with a third-party to carry out their PACE programs.   
            The cost of third-party administration is not borne by the  
            local agency, but is built into PACE loan financing.  Some of  
            these programs focus on residential projects, others target  
            commercial projects, and some handle both residential and  
            commercial portfolios.  Joint powers authorities (JPAs) also  
            administer PACE programs and/or are involved in issuing bonds  
            for third-party administrators.  


            The use of voluntary contractual assessments has been expanded  
            by the Legislature several times.  AB 474 (Blumenfield),  
            Chapter 444, Statutes of 2009, added water efficiency  
            improvements, SB 1340 (Kehoe), Chapter 649, Statutes of 2010  
            added electric vehicle charging infrastructure, and most  
            recently, AB 184 (Swanson), Chapter 28, Statutes of 2011,  
            added seismic strengthening improvements that are permanently  
            fixed to real property to the list of improvements that can be  
            paid for through a contractual assessment between a willing  
            property owner and a public agency.  


            Only a few local governments have begun to use voluntary  
            contractual assessments for seismic improvements.  For  
            example, the City of Berkeley and the City and County of San  
            Francisco began to offer financing for improvements to soft,  
            weak and open front (SWOF) buildings and additional voluntary  
            seismic retrofits by a voluntary contractual assessment  
            program administered by Alliance NRG.  


          2)Bill Summary.  This bill extends the authority currently  
            granted to cities and counties to establish voluntary  
            contractual assessment programs for seismic improvements to  
            the CEA.  Under this bill, the CEA can create a statewide  
            program, in which they are not subject to mapping and other  
            reporting requirements applied to local governments under  








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            current law. This bill also exempts the CEA from specified  
            reporting requirements for local governments, and instead,  
            requires the CEA to publish notification of a hearing to  
            establish a contractual assessment program in a newspaper of  
            general circulation within Sacramento County.  


            Additionally, this bill would expand the authorized uses of  
            funds in the Earthquake Loss Mitigation Fund within CEA to  
            include the seismic strengthening improvements authorized in  
            the statutes governing voluntary contractual assessments.  


            This bill also exempts voluntary contractual assessment  
            programs for seismic improvements from complying with  
            notification requirements to water and electric providers.  


            This bill is author-sponsored.  


          3)Author's Statement.  According to the author, "Currently,  
            fewer than 11% of California homeowners purchase earthquake  
            insurance, despite predictions that the state will experience  
            a major earthquake sometime in the next 30 years.  Homeowners  
            can, however, greatly reduce their exposure to earthquake  
            damage by taking relatively simple, low cost steps to  
            strengthen their structures to better withstand earthquakes.  


            "Existing law establishes the Earthquake Loss Mitigation Fund  
            (ELMF) within the California Earthquake Authority to provide  
            grants or loans to dwelling owners who wish to retrofit their  
            homes.  The ELMF is allocated five percent of CEA's investment  
            income, or $5 million, whichever is less, annually.  The fund  
            currently has about $24 million available for mitigation loan  
            financing.  










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            "This bill will allow the CEA to create a new voluntary  
            financing tool for homeowners to mitigate and retrofit their  
            homes.  The Property Secured Mitigation Program (PSMP) would  
            allow the CEA to provide 100% financing for residential  
            mitigation projects that meet approved engineering guidelines.  
             The loan would become a lien on the property and allow  
            homeowners to pay for the costs in installments in the form of  
            debt service payments collected through existing property tax  
            collection mechanisms.  The lien would "run with the land,"  
            staying with the property upon sale.  Such seismic  
            retrofitting would reduce the likelihood of serious damage in  
            the event of a major earthquake, and make the property  
            eligible for earthquake insurance premium discounts."  


          4)CEA.  The CEA was formed by the Legislature in 1995/96 to  
            address an insurance-availability crisis that followed the  
            1994 Northridge earthquake.  After that earthquake, many  
            homeowners found it difficult or impossible to find basic  
            homeowner's insurance.  The CEA is a publicly managed,  
            privately funded entity with a governing board that provides  
            oversight of their operations.  The governing board has three  
            voting members, the Governor, State Treasurer, and Insurance  
            Commissioner, and two non-voting members: the Speaker of the  
            Assembly and the Chair of the Senate Rules Committee.   
            According to CEA, they are the largest earthquake insurer in  
            California, with over 75% of the  
            residential-earthquake-insurance marker.  Additionally, CEA  
            participating insurers are responsible for almost 80% of  
            California's residential property insurance.  The CEA also  
            offers seismic retrofit incentives to homeowners through the  
            ELMF in the form of grants, loans, and loan guarantees for  
            homeowners to protect their homes against earthquake damage.  



            In August 2011, the California Residential Mitigation Program  
            (CRMP) was established as a joint-exercise-of-powers entity by  
            the CEA and the Governor's Office of Emergency Services (Cal  








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            OES), to carry out mitigation programs to assist California  
            homeowners to seismically retrofit their houses.  CRMP's goal  
            is to provide grants and other types of assistance and  
            incentives for these mitigation efforts.  The CRMP's first  
            program, launched  in 2013, is the "Earthquake Brace and Bolt"  
            (EBB) program, providing grants of up to $3,000 for homeowners  
            who have qualifying homes and meet specified building code  
            requirements.  In the Budget, the EBB Program received a $3  
            billion allocation for the 2015-16 Fiscal Year to expand the  
            program.  According to the CEA, 16 homes have qualified and  
            completed retrofits under the program, and 650 retrofits are  
            planned in 2015.  CEA estimates that there are approximately  
            1.6 million owner-occupied houses in California that have meet  
            the criteria of the EBB - 1.2 million of those are in  
            higher-hazard areas.  





            The cost of EBB retrofits is between $3,000 and $6,000 for the  
            single-family dwellings presently eligible.  However, more  
            complicated retrofits (e.g., for "soft-story" and hillside  
            houses), are more expensive.  Proponents of this bill argue  
            that this bill could be used for projects similar to the EBB,  
            as well as for retrofitting houses with soft first-stories  
            (e.g., living space over the garage), which can cost $10,000  
            to $20,000.  The CEA ELMF has 


            $25 million available today and is projected to accommodate  
            about 6,000 homes in the next six years.  
          5)Federal Housing Finance Agency Concerns with Residential PACE.  
             The authority granted by this bill is specific to seismic  
            improvements, not energy efficiencies, however, absent any  
            direction from Federal Housing Finance Agency (FHFA) on their  
            position to distinguish PACE from the authority granted by  
            this bill, concerns expressed over residential PACE may extend  
            to the voluntary contractual assessment program established by  








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            CEA.  


            In 2010, FHFA, which oversees the nation's largest mortgage  
            finance companies, Fannie Mae and Freddie Mac, raised concerns  
            that residential PACE financing could pose a risk for federal  
            mortgage enterprises (Fannie Mae and Freddie Mac), because  
            PACE loans are a first-priority lien in the case of  
            foreclosure and lenders would have to pay outstanding PACE  
            assessments before paying mortgage costs.  In August of 2010,  
            Fannie Mae and Freddie Mac announced they would not purchase  
            mortgages for homes with first lien priority PACE obligations.  
             The FHFA's action triggered many local governments to suspend  
            their residential PACE programs.


            To address this concern, the Legislature enacted SB 96  
            (Committee on Budget and Fiscal Review), Chapter 356, Statutes  
            of 2013.  This budget trailer bill tasks the California  
            Alternative Energy and Advanced Transportation Financing  
            Authority (CAEATFA) with administering a PACE loss reserve  
            program of $10 million to keep mortgage interests whole during  
            a foreclosure or a forced sale.  CAEATFA recently filed its  
            regulations for the program, and is now accepting applications  
            from PACE administrators.


            The PACE Loss Reserve Program will compensate first mortgage  
            lenders for losses resulting from the existence of a PACE lien  
            in a foreclosure or forced sale.  The program will cover PACE  
            payments made during foreclosure, if a mortgage lender  
            forecloses on a home that has a PACE lien, and any losses to a  
            first mortgage lender up to the amount of outstanding PACE  
            payment, if a county conducts a forced sale on a home for  
            unpaid taxes.  The intent of the Program is to put the first  
            mortgage lender in the same position it would be in without a  
            PACE lien.  










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            The FHFA issued clarity to their position following the  
            creation of the PACE Loss Reserve Program, in a letter to the  
            Governor dated May 1, 2014, which reads, "I am writing to  
            inform you that FHFA is not prepared to change its position on  
            California's first-lien PACE program and will continue to  
            prohibit the Enterprises from purchasing or refinancing  
            mortgages that are encumbered with first-lien PACE loans?In  
            making this determination, FHFA has carefully reviewed the  
            Reserve Fund created by the State of California and, while I  
            appreciate that it is intended to mitigate these increased  
            losses, it fails to offer full loss protection to the  
            Enterprises.  The Reserve Fund is not an adequate substitute  
            for Enterprise mortgages maintaining a first lien position and  
            FHFA also has concerns about the Reserve Fund's ongoing  
            sustainability. "  


          6)Policy Considerations: The Committee may wish to consider the  
            following:


             a)   Intent of Voluntary Contractual Assessments.  The  
               Committee may wish to consider 


             if the authorization granted by this bill continues to push  
               the statutes governing voluntary contractual assessments  
               further away from their original intent.  Very few local  
               governments have taken advantage of the authorization to do  
               seismic improvements and the majority of local governments  
               do not administer their own PACE programs, but rather  
               contract with a third-party.  

             The Committee may wish to consider, given outstanding and  
               unresolved issues with FHFA and the evolution of other  
               voluntary contractual assessment programs, if this is an  
               appropriate time to further expand the authority to  
               administer voluntary contractual assessments to entities  
               beyond local governments.   








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             b)   Priority Lien.  The California Association of Realtors  
               in opposition, argues, "In light of the ongoing harsh  
               policy rhetoric from the FHFA in regard to PACE  
               assessments, we are concerned that encouraging the same  
               super-lien priority of seismic funding will endanger the  
               availability of mortgage financing for the property.  It  
               would be a cruel irony for a homeowner to strengthen the  
               home to protect his or her equity from earthquake, only to  
               find that the very mechanism to protect it makes the home  
               unmarketable."  Further, opposition, in a joint letter,  
               states "The consequences are substantial and may preclude a  
               borrower from completing a necessary transaction.   
               Ultimately, a borrower needing to refinance or sell their  
               property will be forced to pay the entirety of the balance  
               of the seismic strengthening improvements.  Depending on  
               the amount financed for the seismic strengthening  
               improvement loan and the borrower's financial condition,  
               they may not have the ability to achieve payoff."  


             c)   Notification to Homeowners.  One of the concerns  
               previously expressed in an FHFA statement included a  
               concern that PACE loans lack adequate consumer protections,  
               including those provided under the federal Truth-in-Lending  
               Act.  The Press Enterprise reported in June that the  
               Riverside County District Attorney's office is  
               investigating the HERO program and the way consumers are  
               being sold energy efficient products, which includes an  
               examination of current disclosure practices.  


               In light of these concerns relative to existing residential  
               PACE programs and the potentially statewide nature of the  
               CEA program authorized by this bill, the Committee may wish  
               to ask the author to accept  amendments that would require  
               additional notification to homeowners prior to entering  
               into voluntary contractual assessments for seismic  
               improvements, which identify not only the terms and  
               conditions, but also the impact of the assessments on  








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               existing mortgages and the property owner's ability to sell  
                                                                or refinance their home.  


             d)   Requirements for Public Agencies.  Current law  
               establishes a number of requirements for a local agency  
               upon passage of a resolution to authorize voluntary  
               contractual assessments.  One of these requirements is a  
               report which must include specified information regarding  
               the contractual assessment program.  For example, the  
               report must include a brief description of criteria for  
               determining the underwriting requirements and safeguards  
               that will be used to ensure that the total annual property  
               tax and assessments on the property will not exceed 5% of  
               the property's market value, and a plan for raising a  
               capital amount required to pay for work performed pursuant  
               to contractual assessments.  This bill explicitly exempts  
               CEA from a number of requirements, based on the statewide  
               nature of the proposed program.  The bill does not  
               explicitly require CEA to comply with a number of other  
               requirements, as mentioned above.  


               The Committee may wish to ask the author to accept an  
               amendment to make it clear that a legislative body and a  
               governing body (CEA) must comply with the requirements to  
               establish a voluntary contractual assessment program for  
               seismic strengthening improvements under existing law.  


             e)   Stop-Gap.  The PACE Loss Reserve Program does not apply  
               to seismic improvements, therefore, the Committee may wish  
               to ask the author to accept an amendment for the CEA to  
               create its own internal loss reserve program at an amount  
               relative to its program.  


             f)   Qualified Property Owners.  Due to its enabling  
               legislation, the CEA would only be able use the authority  








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               granted by this bill for residential seismic improvements.   
               The Committee may wish to ask the author to narrow the  
               scope of the authority granted by this bill to homes that  
               require seismic improvements in order to comply with  
               building code requirements.  


          7)Arguments in Support.  Supporters argue that this bill is  
            imperative to ensure that California infrastructure is  
            prepared for the next big earthquake that will inevitably  
            occur within the state.  This bill will provide funding to  
            allow retrofitting of California infrastructure to defend  
            against an earthquake.  The R Street Institute argues,  
            "Concerns about the impact of PACE-like programs have been  
            expressed by federal lending authorities in the past.  Their  
            concerns, centered on the seniority of PACE liens, have proven  
            to be illusory?To date, 31 states have enabled PACE programs  
            and California's approach has been a terrific success.   
            Applying a similar principle to seismic retrofitting would be  
            both a national first and a step toward addressing  
            California's urgent vulnerability to earthquakes."


          8)Arguments in Opposition.  Opposition argues that while this  
            bill relates to seismic strengthening improvements and not  
            clean energy, the methodology for funding the seismic  
            strengthening improvements is identical and contained within  
            the same body of law.  Specifically, opposition points to the  
            following concerns: 1) PACE lending dries up liquidity for  
            making loans; 2) PACE lending hurts consumers; 3) PACE lending  
            methods increase the risk of loss to taxpayers; and, 4) a lack  
            of underwriting standards.  Therefore, because of the concerns  
            and issues surrounding the FHFA and treatment of PACE liens,  
            opposition argues that an expansion of tax lien-based funding  
            mechanisms are anti-consumer for unwary homeowners and  
            potentially have a negative impact on California's real estate  
            economy.  










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          9)Double Referral.  This bill was heard by the Insurance  
            Committee on June 24, 2015, where it passed with a 13-0 vote.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          American Red Cross


          Association of Bay Area Governments (ABAG)


          Automobile Club of Southern California


          California Department of Insurance


          R Street Institute




          Opposition


          California Association of Realtors


          California Bankers Association


          California Credit Union League








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          California Independent Bankers 


          California Land Title Association 


          California Mortgage Association


          California Mortgage Bankers Association




          Analysis Prepared by:Misa Lennox / L. GOV. / (916)  
          319-3958