BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON GOVERNANCE AND FINANCE
                         Senator Robert M. Hertzberg, Chair
                                2015 - 2016  Regular 

                              
          
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          |Bill No:  |SB 1233                          |Hearing    |4/27/16  |
          |          |                                 |Date:      |         |
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          |Author:   |McGuire                          |Tax Levy:  |No       |
          |----------+---------------------------------+-----------+---------|
          |Version:  |4/14/16                          |Fiscal:    |No       |
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          |Consultant|Weinberger                                            |
          |:         |                                                      |
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                   Joint powers authorities:  Water Bill Savings Act



          Enacts the Water Bill Savings Act, which allows joint powers  
          authorities to finance water conservation improvements to  
          private property paid for by charges collected through water  
          bills.


           Background 

           Property assessed clean energy (PACE) financing programs offer  
          government loans to private property owners to cover the initial  
          costs of renewable energy, energy efficiency, and water  
          efficiency improvements.  Property owners repay the loans  
          through voluntary annual assessments or parcel taxes, which are  
          secured by priority liens, on their property tax bills.  With  
          the free and willing consent of affected property owners, state  
          law lets public agencies use voluntary contractual assessments  
          or parcel taxes to finance water efficiency improvements that  
          are permanently fixed to real property (AB 474, Blumenfield,  
          2009 and SB 555, Hancock, 2011).

          The Joint Exercise of Powers Act allows two or more public  
          agencies to exercise their common powers by signing joint powers  
          agreements.  Sometimes an agreement creates a joint powers  
          authority (JPA).  The Marks-Roos Local Bond Pooling Act allows  
          public agencies to use JPAs to finance infrastructure.  These  
          JPAs issue Marks-Roos Act bonds and loan the capital to local  







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          agencies for public works, for working capital, and for  
          insurance programs.

          Building upon the precedent set by PACE financing programs, some  
          local officials want to be able to use charges that appear on a  
          water customer's water bill to help finance renewable water  
          efficiency improvements on private property.  They want the  
          Legislature to authorize a process by which water customers can  
          voluntarily use public financing to install water efficiency  
          improvements that will be repaid through water efficiency charge  
          on their water bills.  They also want the legislature to  
          authorize JPAs to issue bonds, pursuant to the Marks-Roos Act,  
          to finance water efficiency improvements by pooling the  
          voluntary water efficiency charges collected from participating  
          water customers.


           Proposed Law

           Senate Bill 1233 enacts the Water Bill Savings Act which,  
          notwithstanding any other law, allows a joint powers authority  
          (JPA) that meets specified requirements to provide funding for a  
          customer of a local agency or its publicly owned utility to  
          acquire, install, or repair a water efficiency improvement on a  
          customer property served by the local agency or its publicly  
          owned utility.

          I.   Establishing a financing program  .  To establish or extend a  
          program to provide funding for a customer of a local agency or  
          its publicly owned utility to acquire, install, or repair a  
          water efficiency improvement on a customer property served by  
          the local agency or its publicly owned utility, SB 1233 requires  
          a JPA to adopt a resolution that:
                 Identifies the geographic area in the state in which the  
               authority intends to operate the program.

                 Approves a standardized servicing agreement.

                 Authorizes one or more designated officials of the  
               authority to execute and deliver the servicing agreement on  
               behalf of the authority.

          SB 1233 allows a JPA to make a final and conclusive  
          determination that its proceedings to establish or extend a  








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          program were valid and in conformity with specified requirements  
          enacted by the bill.

          SB 1233 allows the legislative body of a local agency to provide  
          funding for its customers through a program established by a JPA  
          by adopting a resolution of intention, conducting a noticed  
          public hearing, and adopting a resolution to authorize the  
          program.  The resolution of intention must contain specified  
          information about the public hearing and must make a specified  
          declaration if the local agency wishes to pledge its water  
          enterprise revenue as security for the payment of the bonds  
          issued by a JPA in the event that efficiency charges are  
          insufficient for those purposes.  The resolution authorizing the  
          establishment or extension of a program within a local agency's  
          boundaries must:
                 Declare that the operation of the program by the JPA in  
               the local agency's geographic boundaries would provide  
               significant public benefits in accordance with specified  
               statutory criteria.

                 Approve the standardized servicing agreement and  
               authorize one or more designated officials of the local  
               agency to execute and deliver the servicing agreement with  
               the authority.

                 Approve, if applicable, the pledge of water enterprise  
               revenue as security for the payment of the principal of,  
               and interest and redemption premium on, bonds issued by the  
               authority in the event that efficiency charges are  
               insufficient.

                 Authorize, if applicable, execution and delivery of one  
               or more pledge agreements to evidence a pledge.

          SB 1233 allows a local legislative body, in the resolution, to  
          make a final and conclusive determination that its proceedings  
          to establish or extend a program were valid and in conformity  
          with specified requirements enacted by the bill.

          II.   Efficiency charges  .  Senate Bill 1233 requires a customer  
          to repay the JPA for the costs of water efficiency improvements  
          through an efficiency charge on the customer's water bill that  
          is established and collected by the local agency or its publicly  
          owned utility.  The duty to pay the efficiency charge must arise  








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          from and be evidenced by a written agreement among the customer,  
          the JPA, and the local agency or its publicly owned utility.  

          SB 1233 requires that the written agreement must include:
                 An agreement by the customer to pay an efficiency charge  
               for the period and in the amount specified in the agreement  
               unless the efficiency charge is prepaid in the manner set  
               forth in the agreement.  The period designated for  
               repayment must not exceed the estimated useful life of the  
               funded efficiency improvements.

                 A description of the financial calculation, formula, or  
               other method that the authority used to determine the  
               efficiency charge.  The efficiency charge may include a  
               component for reasonable administrative expenses incurred  
               by the local agency or its publicly owned utility and the  
               authority in connection with the program and the funding.

                 A description of the efficiency improvement funded with  
               the efficiency charge. A determination in the agreement  
               that an improvement is an efficiency improvement must be  
               final and conclusive.

                 A representation by the customer that the customer  
               intends to acquire, install, or repair and use the  
               efficiency improvement on the customer's property for the  
               useful life of the efficiency improvement.  Any failure by  
               the customer to acquire, install, or repair and use the  
               efficiency improvement on the customer's property for the  
               useful life of the efficiency improvement must not affect  
               the customer's obligation to pay the efficiency charge as  
               set forth in the agreement.

          SB 1233:
                 Specifies that the timely and complete payment of an  
               efficiency charge by a customer that has agreed to pay an  
               efficiency charge may be a condition of receiving water  
               service from the local agency or its publicly owned  
               utility.

                 A local agency and its publicly owned utility are  
               authorized to use their established collection policies and  
               all rights and remedies provided by law to enforce payment  
               and collection of the efficiency charge. 








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                 A person liable for an efficiency charge is prohibited  
               from withholding payment, in whole or in part, of the  
               efficiency charge for any reason.

                 Requires that a customer's obligation to pay the  
               efficiency charge must run with title to the customer  
               property on which the efficiency improvement is located  
               until repaid in full. 

                 Requires a local agency or its publicly owned utility to  
               record a notice of an efficiency charge in the records of  
               the county recorder of the county in which the customer's  
               property is located. 

                 Specifies that any failure by the local agency or its  
               publicly owned utility to record that notice must not  
               excuse an owner of the customer property on which the  
               funded improvement is located from the obligation to pay  
               the efficiency charge.

          Because the efficiency charge will be made pursuant to a written  
          agreement between the customer, the authority, and the local  
          agency or its publicly owned utility, SB 1233 contains a  
          legislative finding and declaration that efficiency charges  
          levied under the bill's provisions are not taxes, assessments,  
          fees, or charges for the purposes of Articles XIII C and XIII D  
          of the California Constitution and therefore the provisions of  
          Articles XIII C and XIII D and Article 4.6 (commencing with  
          Section 53750) of Chapter 4 of Part 1 of Division 2 of Title 5  
          are not applicable to those efficiency charges.

          III.  Bond issuance  .  SB 1233 allows a JPA to issue bonds for the  
          purpose of providing funds for the acquisition, installation,  
          and repair of an efficiency improvement on customer property  
          pursuant to the bill's provisions.  The bill:
                 Specifies information that a JPA issuing a bond must  
               include in its preliminary notice and final report for the  
               bonds submitted to the California Debt and Investment  
               Advisory Commission.

                 Allows a JPA to pledge one or more efficiency charges as  
               security for the bonds.  









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                 Allows a local agency to pledge water enterprise revenue  
               as security for the payment of the principal of, and  
               interest and redemption premium on, bonds issued by the JPA  
               if the efficiency charges are insufficient for that  
               purpose.  The local agency may execute one or more pledge  
               agreements, pursuant to state law, for the benefit of the  
               JPA or for the exclusive benefit of the persons entitled to  
               the financing costs to be paid from the efficiency charges.

          SB 1233 requires a JPA and a local agency or its publicly owned  
          utility to enter into a servicing agreement for the collection  
          of one or more efficiency charges and requires the local agency  
          or its publicly owned utility to act as a servicing agent for  
          purposes of collecting the efficiency charge.  The bill imposes  
          requirements on the handling of funds collected by a servicing  
          agent and specifies provisions that must be included in a  
          servicing agreement to help ensure the collection of efficiency  
          charges and repayment of JPA debts.

          IV.   Other provisions  .  SB 1233 specifies the manner in which  
          its provisions will continue to be enforced if a local agency  
          for which bonds have been issued and remain outstanding ceases  
          to operate a water utility, either directly or through its  
          publicly owned utility.

          SB 1233 defines numerous terms that are used throughout the  
          bill.

          If a local agency, its publicly owned utility, and the JPA have  
          complied with procedures specified in the bill, SB 1233 exempts  
          them from complying with existing statutes that would otherwise  
          prohibit a JPA from authorizing bonds to construct, acquire, or  
          finance a public capital improvement unless: 
                 The authority reasonably expects that the public capital  
               improvement is to be located within the geographic  
               boundaries of one or more local agencies of the authority  
               that is not itself an authority.

                 A local agency that is not itself an authority, within  
               whose boundaries the public capital improvement is to be  
               located, has approved the financing of the public capital  
               improvement and made a finding of significant public  
               benefit in accordance with the criteria specified state law  
               after a public hearing held by that local agency within  








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               each county or city and county where the public capital  
               improvement is to be located after notice of the hearing is  
               published once at least five days prior to the hearing in a  
               newspaper of general circulation in each affected county or  
               city and county. 

                 A notice is sent by certified mail at least five  
               business days prior to the hearing to the Attorney General  
               and to the California Debt and Investment Advisory  
               Commission, containing specified information.

          SB 1233 declares that is provisions are severable.


           State Revenue Impact

           No estimate.


           Comments

           1.  Purpose of the bill  .  In response to the recent drought and  
          growing concerns about the effects of climate change on  
          California's long-term water supply, local governments are  
          looking for ways to help their residents use less water.  The  
          initial installation costs of some types of water efficiency  
          improvements like high-efficiency toilets or drip irrigation  
          systems can deter property owners from making those  
          improvements.  The Legislature recently authorized so-called  
          PACE programs, which allow local governments to offer property  
          owner financing for water-efficiency improvements which are  
          repaid through voluntary charges on their property tax bills.   
          SB 1233 builds on this precedent by providing local governments  
          with a new tool to help promote the widespread installation of  
          water efficiency improvements on private property.  The bill  
          would allow JPAs to offer consumers competitive financing costs  
          for these improvements by pooling the revenues generated by  
          voluntary water efficiency charges paid by participating  
          property owners.  This new tool could help JPAs pay for regional  
          responses to California's water supply challenges through the  
          installation of improvements that will significantly reduce  
          individual consumers' water use.  

          2.   Voluntary  ?  SB 1233's provisions explicitly assert that the  








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          water efficiency charges authorized by the bill are established  
          voluntarily through an agreement among a water customer, a  
          public agency, and the JPA providing financing for water  
          efficiency improvements.  However, the bill appears to allow a  
          water customer who is not the owner of the property where the  
          improvements are being financed to enter into a water financing  
          agreement without the approval of the property owner.  As a  
          result, the efficiency charge remains the obligation of any  
          customers receiving water service at that property even after  
          the customer who entered into the agreement no longer resides  
          there.  To ensure that the water efficiency charges authorized  
          by SB 1233 are truly voluntary, the Committee may wish to  
          consider amending the bill to require that a local government  
          must must obtain the consent of a property owner, in addition to  
          that of a customer, before a water efficiency improvements can  
          be financed with a water efficiency charge collected from  
          customers.

          3.   Permanent improvements  ?  The statutes authorizing local  
          governments to finance water efficiency improvements through a  
          PACE program, specifically limit the types of improvements that  
          can be financed to improvements that are "affixed" to real  
          property.  This requirement guarantees that the improvements are  
          of a substantially permanent nature.  SB 1233 does not contain a  
          similar requirement, thereby allowing local government to  
          finance improvements that may be less permanent, like shower  
          heads or drip-irrigation systems.  It is unclear whether it  
          makes sense to provide long-term financing for projects that may  
          not continue to provide water savings over the full life of the  
          obligation to repay the financing.  For example, if low flow  
          shower heads are removed from a property, or a drip irrigation  
          system is not properly maintained, the customer receiving water  
          at that property will remain obligated to pay the water  
          efficiency charges for those improvements, even if they are not  
          producing any actual water savings.  The Committee may wish to  
          consider amending SB 1233 to require that improvements financed  
          under the bill's provisions must be "affixed" to real property,  
          just like state law requires for PACE financing programs.

          4.   Notice and compliance  .  Although SB 1233 says that a local  
          government must record a notice of an efficiency charge in the  
          land records maintained by a county recorder, the bill also  
          specifies that the obligation to pay the efficiency charge  
          remains enforceable even if no notice is filed with the  








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          recorder.  The bill also provides no enforcement mechanism for  
          verifying that the improvements financed under SB 1233's  
          provisions are installed properly or whether they were completed  
          at all.  Advocates for the title insurance industry suggest that  
          the lack of strict notice and enforcement provisions will  
          provide insufficient information to new property purchasers  
          about financial obligations that are attached to the property.   
          This lack of information, in turn, could expose new buyers and  
          real estate agents to unanticipated financial obligations and  
          have a chilling effect on some real estate transactions.  To  
          avoid unintended consequences for property owners and parties to  
          real estate transactions, the Committee may wish to consider  
          amending SB 1233 to:
                 Impose stronger requirements for recording a notice of  
               an efficiency charge, and

                 Verifying that the financed improvements are installed  
               and functioning properly.  


           Support and  
          Opposition   (4/21/16)


           Support  :  Association of Bay Area Governments; Bay Area Regional  
          Energy Network; California Apartment Association; California  
          Association of Realtors; California Building Industry  
          Association; California Business Properties Association;  
          California Chamber of Commerce; Center for Climate Protection;  
          Mayors Councilmembers' Association of Sonoma County; Nexus  
          eWater, Inc.; School Project for Utility Rate Reduction; Sierra  
          Club California; Sonoma County Water Agency; Sonoma Regional  
          Climate Protection Authority; StopWaste; Town of Windsor.

           Opposition  :  California Land Title Association.


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