HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
HOUSE BILL 199
53rd legislature - STATE OF NEW MEXICO - first session, 2017
AN ACT
RELATING TO TRADE PRACTICES; ENACTING THE DISTRIBUTED GENERATION DISCLOSURE ACT; PROVIDING MINIMUM DISCLOSURES FOR THE LEASE OR SALE OF A DISTRIBUTED ENERGY GENERATION SYSTEM; PROVIDING FOR AN EXCEPTION; PROVIDING FOR REGULATIONS AND FORM DISCLOSURE STATEMENTS; EXEMPTING BROKERS, AGENTS AND FINANCIAL INSTITUTIONS; ENACTING A NEW SECTION OF THE REAL ESTATE DISCLOSURE ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of Chapter 57 NMSA 1978 is enacted to read:
"[NEW MATERIAL] SHORT TITLE.--Sections 1 through 5 of this act may be cited as the "Distributed Generation Disclosure Act"."
SECTION 2. A new section of Chapter 57 NMSA 1978 is enacted to read:
"[NEW MATERIAL] DEFINITIONS.--As used in the Distributed Generation Disclosure Act:
A. "annual percentage rate" means the cost of credit, expressed as a yearly rate, that relates the amount and timing of value received by the consumer to the amount and timing of payments made;
B. "business day" means any day Monday through Friday, unless such day falls on a legal holiday, in which case "business day" means the next day that is not a Saturday, Sunday or legal holiday;
C. "buyer" means a person that purchases a distributed energy generation system from a seller or marketer and includes a power purchaser;
D. "distributed energy generation system" means a device or system that is used to generate or store electricity, that has an electric delivery capacity, individually or in connection with other similar devices or systems, greater than one kilowatt or one kilowatt-hour, and that is used primarily for on-site consumption, but does not include an electric generator that is intended for occasional use;
E. "energized" means that a distributed energy generation system is installed and operational for its intended purposes of generating or storing electricity;
F. "interconnected" means that a distributed energy generation system is connected to the power grid and is able to transfer electricity to the power grid;
G. "lessee" means a person that leases a distributed energy generation system from the owner of the distributed energy generation system;
H. "person" means an individual person, corporation, trust, partnership, association, cooperative association, club, company, firm, joint venture or syndicate;
I. "power purchaser" means a buyer that agrees to purchase the power generated by a distributed energy generation system from the owner of the distributed energy generation system;
J. "renewable energy certificate" means a certificate or other record, in a format approved by the public regulation commission, that represents all the environmental attributes from one kilowatt-hour of electricity generation from a renewable energy resource; and
K. "seller or marketer" means a person acting through its officers, employees, brokers or agents that markets, sells or solicits the sale or lease of distributed energy generation systems or the sale of power to a power purchaser or negotiates or enters into agreements for the sale or lease of distributed energy generation systems or the sale of power to a power purchaser."
SECTION 3. A new section of Chapter 57 NMSA 1978 is enacted to read:
"[NEW MATERIAL] DISTRIBUTED ENERGY GENERATION SYSTEM DISCLOSURES--EXCEPTION.--
A. Any agreement governing the financing, sale or lease of a distributed energy generation system, or the sale of power to a power purchaser, shall include a written statement with font no smaller than ten points and no more than four pages, unless a font larger than ten points is used, separate from the agreement and separately acknowledged by the buyer or lessee, that includes the following provisions:
(1) the name, address, telephone number and email address of the buyer or lessee;
(2) the name, address, telephone number, email address and valid state contractor license number of the person responsible for installing the distributed energy generation system;
(3) the name, address, telephone number, email address and a valid state contractor license number of the distributed energy generation system maintenance provider, if different from the person responsible for installing the system;
(4) a provision notifying the buyer or lessee of the right to rescind the agreement for a period ending not less than three business days after the agreement is signed;
(5) a description of the distributed energy generation system design assumptions, including system size, estimated first-year production and estimated annual system production decreases, including the overall percentage degradation over the life of the distributed energy generation system;
(6) a description of any performance guarantees that a seller or marketer may include in an agreement;
(7) the purchase price of the distributed energy generation system, total projected lease or power purchase payments;
(8) a description of any one-time or recurring fees, including the circumstances triggering any late fees, estimated system removal fees, maintenance fees, Uniform Commercial Code notice removal and refiling fees, internet connection fees and automated clearing house fees;
(9) if the seller is financing or leasing the distributed energy generation system, the total amount financed, the total number of payments, the payment frequency, the amount of the payment expressed in dollars, the payment due dates and the applicable annual percentage rate; except that in the case of financing arrangements subject to state or federal lending disclosure requirements, disclosure of the annual percentage rate shall be made in accordance with the applicable state or federal lending disclosure requirements;
(10) if a seller or marketer uses a tax incentive or rebate in determining the price, a provision identifying each state and federal tax incentive or rebate used;
(11) a description of the ownership and transferability of any tax credits, rebates, incentives or renewable energy certificates in connection with the distributed energy generation system;
(12) a list of the following tax obligations that the buyer may be required to pay or incur as a result of the contract's provisions, including:
(a) the cost of any business personal property taxes assessed on the distributed energy generation system in the event of a power purchase agreement or lease;
(b) gross receipts taxes for any equipment purchased and services rendered;
(c) obligations of the power purchaser or lessee to transfer tax credits or tax incentives of the distributed energy generation system to any other person; and
(d) in the case of a commercial installation, a change in assessed property taxes in the event of a purchase of a distributed energy generation system;
(13) a disclosure regarding whether the warranty or maintenance obligations related to the distributed energy generation system may be sold or transferred to a third party;
(14) a disclosure regarding any restrictions pursuant to the agreement on the buyer's or lessee's ability to modify or transfer ownership of the distributed energy generation system, including whether any modification or transfer is subject to review or approval by a third party and the name, mailing address and telephone number of the entity responsible for approving the modification or transfer, if known to the seller or marketer at the time the agreement is made;
(15) a description of all options available to the buyer or lessee in connection with the continuation, termination or transfer of the agreement between the buyer or lessee and the seller or marketer in the event of the transfer of the real property to which the distributed energy generation system is affixed;
(16) a description of the assumptions used for any savings estimates that were provided to the buyer or lessee;
(17) a disclosure that states: "Actual utility rates may go up or down and actual savings may vary. For further information regarding rates, you may contact your local utility or the public regulation commission. Tax and other state and federal incentives are subject to change.";
(18) a disclosure notifying the buyer or the lessee of transferability of any warranty obligations to subsequent buyers or lessees; and
(19) a disclosure notifying the buyer or lessee that interconnection requirements, including time lines, are established by rules of the public regulation commission and may be obtained from either the public regulation commission or the local utility.
B. The seller or marketer shall provide the buyer or lessee with proof that, within thirty days of completion of installation or modification:
(1) all permits required for the installation or any modification of the distributed energy generation system were obtained prior to installation; and
(2) installation or any modification of the distributed energy generation system received the approval of an inspector authorized by the governmental authority having jurisdiction over the permitting and enforcement authority.
C. In the event that a seller or marketer causes a financing statement to be filed pursuant to the Uniform Commercial Code-Secured Transactions, the seller or marketer, or any successor in interest to the seller or marketer, shall provide to the buyer or lessee a copy of the filed financing statement within thirty calendar days of the filing.
D. If a promotional document or sales presentation related to a distributed energy generation system states that the system will result in certain financial savings for the buyer or lessee, the document or sales presentation shall provide the assumptions and calculations used to derive those savings.
E. If a promotional document or sales presentation related to a distributed energy generation system states that the system will result in certain energy savings in terms of production, the document or sales presentation shall provide the assumptions and calculations used to derive those energy savings and any comparative estimates. If historical information is used, it shall be accompanied by the following statement: "Historical data are not necessarily representative of future results."."
SECTION 4. A new section of Chapter 57 NMSA 1978 is enacted to read:
"[NEW MATERIAL] ADDITIONAL REQUIREMENTS--EXCEPTION.--
A. Recurring payments under a distributed energy generation system lease or purchase agreement shall not begin until the distributed energy generation system is energized and interconnected.
B. The Distributed Generation Disclosure Act does not apply to an individual or company, acting through its officers, employees, brokers or agents, that markets, sells, solicits, negotiates or enters into an agreement for the sale, financing or lease of a distributed energy generation system as part of a transaction involving the sale or transfer of the real property to which the distributed energy generation system is or will be affixed.
C. The Distributed Generation Disclosure Act does not apply to third-party financial institutions that enter into an agreement for the financing of a distributed energy generation system."
SECTION 5. A new section of Chapter 57 NMSA 1978 is enacted to read:
"[NEW MATERIAL] DISCLOSURE STATEMENT FORMS.--
A. The attorney general shall adopt rules necessary to implement and enforce the provisions of the Distributed Generation Disclosure Act. The attorney general shall, by January 1, 2018, issue form disclosure statements that may be used to provide the disclosures required by the Distributed Generation Disclosure Act for agreements with buyers or lessees.
B. Disclosure statements provided in substantially the form issued by the attorney general shall be regarded as complying with the disclosure statements required by Subsection A of Section 3 of the Distributed Generation Disclosure Act."
SECTION 6. A new section of the Real Estate Disclosure Act is enacted to read:
"[NEW MATERIAL] DISCLOSURE OF CERTAIN DISTRIBUTED ENERGY GENERATION SYSTEMS.--The requirements of the Distributed Generation Disclosure Act shall not apply to a transaction involving the sale or transfer of the real property on which the distributed energy generation system is located."
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