BILL ANALYSIS Ó SENATE COMMITTEE ON GOVERNANCE AND FINANCE Senator Robert M. Hertzberg, Chair 2015 - 2016 Regular ------------------------------------------------------------------ |Bill No: |SB 1233 |Hearing |4/27/16 | | | |Date: | | |----------+---------------------------------+-----------+---------| |Author: |McGuire |Tax Levy: |No | |----------+---------------------------------+-----------+---------| |Version: |4/14/16 |Fiscal: |No | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant|Weinberger | |: | | ----------------------------------------------------------------- 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 SB 1233 (McGuire) 4/14/16 Page 2 of ? 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 SB 1233 (McGuire) 4/14/16 Page 3 of ? 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 SB 1233 (McGuire) 4/14/16 Page 4 of ? 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. SB 1233 (McGuire) 4/14/16 Page 5 of ? 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. SB 1233 (McGuire) 4/14/16 Page 6 of ? 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 SB 1233 (McGuire) 4/14/16 Page 7 of ? 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 SB 1233 (McGuire) 4/14/16 Page 8 of ? 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 SB 1233 (McGuire) 4/14/16 Page 9 of ? 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. -- END --