Bill Text: CA SB1094 | 2011-2012 | Regular Session | Chaptered
Bill Title: Land use: mitigation lands: nonprofit organizations.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2012-09-28 - Chaptered by Secretary of State. Chapter 705, Statutes of 2012. [SB1094 Detail]
Download: California-2011-SB1094-Chaptered.html
BILL NUMBER: SB 1094 CHAPTERED
BILL TEXT
CHAPTER 705
FILED WITH SECRETARY OF STATE SEPTEMBER 28, 2012
APPROVED BY GOVERNOR SEPTEMBER 28, 2012
PASSED THE SENATE AUGUST 30, 2012
PASSED THE ASSEMBLY AUGUST 23, 2012
AMENDED IN ASSEMBLY AUGUST 20, 2012
AMENDED IN ASSEMBLY JUNE 19, 2012
AMENDED IN SENATE MAY 29, 2012
AMENDED IN SENATE MAY 15, 2012
AMENDED IN SENATE APRIL 19, 2012
AMENDED IN SENATE APRIL 16, 2012
AMENDED IN SENATE APRIL 9, 2012
INTRODUCED BY Senator Kehoe
FEBRUARY 16, 2012
An act to amend Sections 65965, 65966, 65967, and 65968 of the
Government Code, relating to land use, and declaring the urgency
thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 1094, Kehoe. Land use: mitigation lands: nonprofit
organizations.
(1) The Planning and Zoning Law provides that if a state or local
agency requires a person to transfer to that agency an interest in
real property to mitigate the environmental impact of a project or
facility, that agency may authorize specified entities to hold title
to, and manage that interest in, real property, as well as any
accompanying funds, provided those entities meet specified
requirements. Existing law requires that if accompanying funds, as
defined, are conveyed at the time the property is protected, then the
holder of those accompanying funds must meet specified requirements.
Existing law requires a state or local agency to exercise due
diligence in reviewing the qualifications of a special district or
nonprofit organization to effectively manage and steward land, water,
or natural resources, as well as the accompanying funds.
This bill would use the term "endowment" instead of "accompanying
funds." This bill would authorize an agency, in connection with the
provisions described above, to also permit a governmental entity, as
defined, to hold title to, and manage that interest in, real
property, as well as any endowment. This bill would remove the
requirement that a state or local agency exercise due diligence in
reviewing the qualifications of a special district or nonprofit
organization to effectively manage the endowment. This bill would
also modify the requirements that the holder of an endowment must
meet, and would provide that those requirements also apply to
endowments that are secured at the time the property is protected.
This bill would state that specified provisions of this bill relating
to the requirements on a holder of an endowment do not apply to
funds held for the long-term management and stewardship of property
pursuant to specified acts if certain requirements are met.
(2) Existing law, for purposes of these provisions, defines the
term "mitigation agreement" to mean a written agreement between a
public agency, the project proponent, and the special district,
nonprofit organization, for-profit entity, or other entity that holds
the property.
This bill would instead define the term "mitigation agreement" to
mean either a written agreement between the project proponent and the
entity qualified to hold the property and the endowment, which is
submitted to the state or local agency for the purpose of obtaining
any permit, clearance, or mitigation approval from that state or
local agency, or a written agreement between the project proponent
and the entity qualified to hold the property, including any
agreement with an entity qualified to hold the endowment, which is
submitted to the state or local agency for the purpose of obtaining
any permit, clearance, or mitigation approval from that state or
local agency.
(3) Existing law authorizes a state or local agency, if that
agency authorizes specified entities to hold property pursuant to
these provisions, to require an administrative endowment from the
project proponent to cover reasonable costs to the agency.
This bill would revise that provision to authorize a state agency
to require the project proponent to pay a one-time fee that does not
exceed the reasonable costs of the agency in reviewing qualifications
of potential holders of the property and approving those holders.
The bill would also authorize a local agency to require a project
proponent to pay a one-time fee that does not exceed the reasonable
costs of the agency in reviewing qualifications of the parties to the
mitigation agreement, approving those holders, and any regular
oversight over those holders to ensure that the holders are complying
with all applicable laws.
(4) Existing law provides that if a state or local agency, in the
development of its own project, is required to mitigate an adverse
impact upon natural resources, that agency may take any action it
deems necessary to meet its mitigation obligations, including, among
others, transferring an interest in the property to specified
entities and providing funds to specified entities to acquire land or
easements to satisfy the agency's mitigation obligations.
This bill would expand those provisions to authorize a state or
local agency to transfer an obligation to restore and enhance
property to specified entities and to provide funds to specified
entities to implement a restoration or enhancement project. This bill
would additionally authorize a state or local agency to hold an
endowment in an account administered by an elected official.
(5) Existing law generally requires that the accompanying funds
described above be held by the agency that requires the mitigation or
by the special district or nonprofit organization that holds the
property. Existing law excepts certain situations from this
requirement, including, among others, if the accompanying funds are
held by another entity pursuant to a natural community conservation
plan or a safe harbor agreement that is executed on or before January
1, 2012.
This bill would require that, in order to qualify for that
exception, the implementation agreement would be required to meet
certain requirements. This bill also would modify the exceptions to
that requirement by adding some and removing others, including, among
other changes, adding exceptions that would authorize a community
foundation, as defined, or a congressionally chartered foundation to
hold an endowment if specified conditions are met.
This bill would authorize a state or local agency to allow the
endowments to be temporarily held in an escrow account until a
specified date, after which time the bill would require the state or
local agency to transfer the endowments to the entity that will
permanently hold them.
This bill would make technical, nonsubstantive changes to those
provisions.
(6) This bill would declare that it is to take effect immediately
as an urgency statute.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of the Legislature, and in the best
interest of the public, that there is available a diversified pool of
eligible entities that are qualified to do business in California,
based in California, and that meet the requirements of this chapter
to hold, manage, invest, and disburse endowment funds in furtherance
of the long-term stewardship of the property set aside for mitigation
purposes.
SEC. 2. Section 65965 of the Government Code is amended to read:
65965. For the purposes of this chapter, the following
definitions apply:
(a) "Endowment" means the funds that are conveyed solely for the
long-term stewardship of a mitigation property. Endowment funds are
held as charitable trusts that are permanently restricted to paying
the costs of long-term management and stewardship of the mitigation
property for which the funds were set aside. Endowments shall be
governed by the underlying laws, regulations, and specific
governmental approvals under those laws and regulations pursuant to
which the endowments were exacted, consistent with subdivision (b) of
Section 65966 and with the Uniform Prudent Management of
Institutional Funds Act (Part 7 (commencing with Section 18501) of
Division 9 of the Probate Code). Endowments do not include funds
conveyed for meeting short-term performance objectives of a project.
(b) "Community foundation" means any community foundation that
meets all of the following requirements:
(1) Meets the requirements of a community trust under Section
1.170A-9(f)(10)-(11) of Title 26 of the Code of Federal Regulations.
(2) Is exempt from taxation as an organization described in
Section 501(c)(3) of the Internal Revenue Code.
(3) Is qualified to do business in this state.
(4) Is a "qualified organization" as defined in Section 170(h)(3)
of the Internal Revenue Code.
(5) Has complied with National Standards for U.S. Community
Foundations as determined by the Community Foundations National
Standards Board, a supporting organization of the Council on
Foundations.
(6) Is registered with the Registry of Charitable Trusts
maintained by the Attorney General pursuant to Section 12584.
(c) "Conservation easement" means a conservation easement created
pursuant to Chapter 4 (commencing with Section 815) of Title 2 of
Part 2 of Division 2 of the Civil Code.
(d) "Direct protection" means the permanent protection,
conservation, and preservation of lands, waters, or natural
resources, including, but not limited to, agricultural lands,
wildlife habitat, wetlands, endangered species habitat, open-space
areas, or outdoor recreational areas.
(e) "Governmental entity" means any state agency, office, officer,
department, division, bureau, board, commission, public
postsecondary educational institution, city, county, or city and
county, or a joint powers authority formed pursuant to the Joint
Exercise of Powers Act (Chapter 5 (commencing with Section 6500) of
Division 7 of Title 1) that meets either of the following
requirements:
(1) The joint powers authority was created for the principal
purpose and activity of the direct protection or stewardship of land,
water, or natural resources, including, but not limited to,
agricultural lands, wildlife habitat, wetlands, endangered species
habitat, open-space areas, and outdoor recreational areas.
(2) The joint powers authority was created for the purpose of
constructing, maintaining, managing, controlling, and operating
transportation infrastructure, such as major thoroughfares and
bridges.
(f) (1) "Mitigation agreement" means either of the following:
(A) A written agreement between the project proponent and the
entity qualified to hold the property and the endowment pursuant to
this chapter, which is submitted to the state or local agency for the
purpose of obtaining any permit, clearance, or mitigation approval
from that state or local agency.
(B) A written agreement between the project proponent and the
entity qualified to hold the property pursuant to this chapter,
including any agreement with an entity qualified to hold the
endowment pursuant to this chapter, which is submitted to the state
or local agency for the purpose of obtaining any permit, clearance,
or mitigation approval from that state or local agency.
(2) A mitigation agreement shall govern the long-term stewardship
of the property and the endowment.
(g) "Congressionally chartered foundation" means a nonprofit
organization that meets all of the following requirements:
(1) Is chartered by the United States Congress.
(2) Is exempt from taxation as an organization described in
Section 501(c)(3) of the Internal Revenue Code.
(3) Is qualified to do business in this state.
(4) Is registered with the Registry of Charitable Trusts
maintained by the Attorney General pursuant to Section 12584.
(5) Has as a purpose the conservation and management of fish,
wildlife, plants, and other natural resources, which includes, but is
not limited to, the direct protection or stewardship of land, water,
or natural wildlife habitat, wetlands, endangered species habitat,
open-space areas, and outdoor recreational areas.
(h) "Nonprofit organization" means any nonprofit organization that
meets all of the following requirements:
(1) Is exempt from taxation as an organization described in
Section 501(c)(3) of the Internal Revenue Code.
(2) Is qualified to do business in this state.
(3) Is a "qualified organization" as defined in Section 170(h)(3)
of the Internal Revenue Code.
(4) Is registered with the Registry of Charitable Trusts
maintained by the Attorney General pursuant to Section 12584.
(5) Has as its principal purpose and activity the direct
protection or stewardship of land, water, or natural resources,
including, but not limited to, agricultural lands, wildlife habitat,
wetlands, endangered species habitat, open-space areas, and outdoor
recreational areas.
(i) "Project proponent" means an individual, business entity,
agency, or other entity that is developing a project or facility and
is required to mitigate any adverse impact upon natural resources.
(j) "Property" means fee title land or any partial interest in
real property, including a conservation easement, that may be
conveyed pursuant to a mitigation requirement by a state or local
agency.
(k) "Special district" means any of the following special
districts:
(1) A special district formed pursuant to Article 3 (commencing
with Section 5500) of Chapter 3 of Division 5 or Division 26
(commencing with Section 35100) of the Public Resources Code.
(2) A resource conservation district organized pursuant to
Division 9 (commencing with Section 9001) of the Public Resources
Code.
(3) A district organized or formed pursuant to the Metropolitan
Water District Act (Chapter 209 of the Statutes of 1969).
(4) A county water district organized under Division 12
(commencing with Section 30000) of the Water Code, that has more than
5,000 acres of mitigation lands.
(5) A special district formed pursuant to Chapter 2 (commencing
with Section 11561) of Division 6 of the Public Utilities Code that
provides water and wastewater treatment services.
(6) A district organized or formed pursuant to the County Water
Authority Act (Chapter 545 of the Statutes of 1943).
(7) A local flood control district formed pursuant to any law.
(l) "Stewardship" encompasses the range of activities involved in
controlling, monitoring, and managing for conservation purposes a
property, or a conservation or open-space easement, as defined by the
terms of the easement, and its attendant resources.
SEC. 3. Section 65966 of the Government Code is amended to read:
65966. (a) Any conservation easement created as a component of
satisfying a local or state mitigation requirement shall be perpetual
in duration, whether created pursuant to Chapter 6.6 (commencing
with Section 51070) of Part 1 of Division 1 of Title 5 of this code
or Chapter 4 (commencing with Section 815) of Title 2 of Part 2 of
the Civil Code.
(b) Any local or state agency that requires property to be
protected pursuant to subdivision (a) or (b) of Section 65967 may
identify how the funding needs of the long-term stewardship of the
property will be met. Nothing in this chapter shall be construed as
otherwise precluding other methods of funding for the long-term
stewardship of the property. If an endowment is conveyed or secured
at the time the property is protected, all of the following shall
apply:
(1) The endowment shall be held, managed, invested, and disbursed
solely for, and permanently restricted to, the long-term stewardship
of the specific property for which the funds were set aside.
(2) The endowment shall be calculated to include a principal
amount that, when managed and invested, is reasonably anticipated to
cover the annual stewardship costs of the property in perpetuity.
(3) The endowment shall be held, managed, invested, disbursed, and
governed as described in subdivision (a) of Section 65965 consistent
with the Uniform Prudent Management of Institutional Funds Act (Part
7 (commencing with Section 18501) of Division 9 of the Probate
Code).
(c) If a nonprofit corporation holds the endowment, the nonprofit
shall utilize generally accepted accounting practices that are
promulgated by the Financial Accounting Standards Board or any
successor entity.
(d) If a local agency holds the endowment, the local agency shall
do all of the following:
(1) Hold, manage, and invest the endowment consistent with
subdivision (b) to the extent allowed by law.
(2) Disburse funds on a timely basis to meet the stewardship
expenses of the entity holding the property.
(3) Utilize accounting standards consistent with standards
promulgated by the Governmental Accounting Standards Board or any
successor entity.
(e) (1) Unless the mitigation agreement provides that another
person or entity shall prepare the annual fiscal report described
below, a governmental entity, community foundation, special district,
a congressionally chartered foundation, or a nonprofit organization
that holds funds pursuant to this chapter, including an endowment or
moneys for initial stewardship costs, shall provide the local or
state agency that required the endowment with an annual fiscal report
that contains at least the following elements with respect to each
individual endowment dedicated and held by that entity:
(A) The balance of each individual endowment at the beginning of
the reporting period.
(B) The amount of any contribution to the endowment during the
reporting period including, but not limited to, gifts, grants, and
contributions received.
(C) The net amounts of investment earnings, gains, and losses
during the reporting period, including both realized and unrealized
amounts.
(D) The amounts distributed during the reporting period that
accomplish the purpose for which the endowment was established.
(E) The administrative expenses charged to the endowment from
internal or third-party sources during the reporting period.
(F) The balance of the endowment or other fund at the end of the
reporting period.
(G) The specific asset allocation percentages including, but not
limited to, cash, fixed income, equities, and alternative
investments.
(H) The most recent financial statements for the organization
audited by an independent auditor who is, at a minimum, a certified
public accountant.
(2) If an entity is required to submit an identical annual fiscal
report pursuant to paragraph (1) to the Department of Fish and Game
and any other state or local agency, then that report shall be
provided only to the Department of Fish and Game. In that instance,
the Department of Fish and Game shall provide a copy of that annual
fiscal report on its Internet Web site for a minimum of five years.
(f) If a state agency authorizes a governmental entity, special
district, or nonprofit organization to hold property pursuant to
subdivision (a) or (b) of Section 65967 in connection with a
development project, the agency may require the project proponent to
pay a one-time fee that does not exceed the reasonable costs of the
agency in reviewing qualifications of potential holders of the
property and approving those holders. This one-time fee shall be
collected only if the agency can demonstrate its actual review of
qualifications and approval of holders.
(g) If a local agency authorizes a governmental entity, special
district, or nonprofit organization to hold property or an endowment
pursuant to this chapter, the agency may require the project
proponent to pay a one-time fee that does not exceed the reasonable
costs of the agency in reviewing qualifications of the parties
identified in the mitigation agreement, approving those parties, and
any regular oversight over those parties to ensure that the parties
are complying with all applicable laws. This one-time fee shall be
collected only if the agency can demonstrate its actual review of
qualifications, approval of parties, or regular oversight of
compliance and performance.
(h) A local agency may require a project proponent to provide a
one-time payment that will provide for the initial stewardship costs
for up to three years while the endowment begins to accumulate
investment earnings. The funds for the initial stewardship costs are
distinct from the funds that may be conveyed for long-term
stewardship, construction, or other costs. If there are funds
remaining at the completion of the initial stewardship period, the
funds shall be conveyed to the project proponent.
(i) The local agency may contract with or designate a qualified
third party to do any of the following:
(1) Review the qualifications of a governmental entity, special
district, or nonprofit organization to effectively manage and steward
natural land or resources pursuant to subdivision (c) of Section
65967.
(2) Review the qualifications of a governmental entity, community
foundation, or nonprofit organization to hold and manage the
endowment that is set aside for long-term stewardship of the
property.
(3) Review reports or other performance indicators to evaluate the
stewardship of lands, natural resources, or funds, and compliance
with the mitigation agreement.
(j) If a property conserved pursuant to subdivision (a) or (b) of
Section 65967 is condemned, the net proceeds from the condemnation of
the real property interest set aside for mitigation purposes shall
be used for the purchase of property that replaces the natural
resource characteristics the original mitigation was intended to
protect, or as near as reasonably feasible. Any endowment held for
the condemned property shall be held for the long-term stewardship of
the replacement property.
(k) Unless prohibited by law, no provision in this chapter is
intended to prohibit for-profit entities from holding, acquiring, or
providing property for mitigation purposes.
(l) Nothing in this section shall prohibit a state agency from
exercising any powers described in subdivision (d), (g), or (h).
(m) A governmental entity, special district, or nonprofit
organization may contract with a community foundation or
congressionally chartered foundation at any time to hold, manage, and
invest the endowment for a mitigation property and disburse payments
from the endowment to the holder of the mitigation property
consistent with the fund agreement.
(n) Except as expressly authorized in paragraph (1) of subdivision
(e), the mitigation agreement shall not include any provision to
waive or exempt the parties from any requirement, in whole or part,
of this chapter.
(o) Subdivisions (b) to (e), inclusive, shall not apply to funds,
including funds from mitigation fees, held for the long-term
management and stewardship of property pursuant to either an interim
or approved habitat conservation plan pursuant to Chapter 35
(commencing with Section 1531) of Title 16 of the United States Code
or an interim or approved natural community conservation plan
pursuant to Chapter 10 (commencing with Section 2800) of Division 3
of the Fish and Game Code, if, in the interim or approved plan
documents, the permitting agency determines the endowment to be
established with those funds will be adequate and provides a schedule
for funding the endowment.
SEC. 4. Section 65967 of the Government Code is amended to read:
65967. (a) If a state or local agency requires a project
proponent to transfer property to mitigate any adverse impact upon
natural resources caused by permitting the development of a project
or facility, the agency may authorize a governmental entity, special
district, a nonprofit organization, a for-profit entity, a person, or
another entity to hold title to and manage that property.
(b) If a state or local agency, in the development of its own
project, is required to protect property to mitigate an adverse
impact upon natural resources, the agency may take any action that
the agency deems necessary in order to meet its mitigation
obligations, including, but not limited to, the following:
(1) Transfer the interest, or obligation to restore and enhance
property, to a governmental entity, special district, or nonprofit
organization that meets the requirements set forth in subdivision
(c).
(2) Provide funds to a governmental entity, nonprofit
organization, a special district, a for-profit entity, a person, or
other entity to acquire land or easements, or to implement a
restoration or enhancement project, that satisfies the agency's
mitigation obligations.
(3) Hold an endowment in an account administered by an elected
official provided that the state or local agency is protecting,
restoring, or enhancing its own property.
(c) A state or local agency shall exercise due diligence in
reviewing the qualifications of a governmental entity, special
district, or nonprofit organization to effectively manage and steward
land, water, or natural resources. The local agency may adopt
guidelines to assist it in that review process, which may include,
but are not limited to, the use of or reliance upon guidelines,
standards, or accreditation established by a qualified entity that
are in widespread state or national use.
(d) The state or local agency may require the governmental entity,
special district, or nonprofit organization to submit a report not
more than once every 12 months and for the number of years specified
in the mitigation agreement that details the stewardship and
condition of the property and any other requirements pursuant to the
mitigation agreement for the property.
(e) The recorded instrument that places the fee title or partial
interest in real property with a governmental entity, special
district, nonprofit organization, or for-profit entity, pursuant to
subdivision (a) or (b) shall include a provision that if the state or
local agency or its successor agency reasonably determines that the
property conveyed to meet the mitigation requirement is not being
held, monitored, or stewarded for conservation purposes in the manner
specified in that instrument or in the mitigation agreement, the
property shall revert to the state or local agency, or to another
public agency, governmental entity, special district, or nonprofit
organization pursuant to subdivision (c) and subject to approval by
the state or local agency. If a state or local agency determines that
a property must revert, it shall work with the parties to the
mitigation agreement, or other affected entities, to ensure that any
contracts, permits, funding, or other obligations and
responsibilities are met.
SEC. 5. Section 65968 of the Government Code is amended to read:
65968. (a) Notwithstanding Section 13014 of the Fish and Game
Code, if an endowment is conveyed pursuant to Section 65966 for
property conveyed pursuant to Section 65967, the endowment may be
held by the same governmental entity, special district, or nonprofit
organization that holds the property pursuant to this section.
(b) (1) Except as permitted pursuant to paragraph (2), the
endowment shall be held by one of the following:
(A) The agency or agencies that required the mitigation.
(B) The governmental entity, special district, or nonprofit
organization that either holds the property, or holds an interest in
the property, for conservation purposes.
(C) The governmental entity or special district that retains the
property after conveying an interest in the property for conservation
purposes if that governmental entity or special district is
protecting, restoring, or enhancing the property that was retained.
(2) The exceptions to paragraph (1) are the following:
(A) An endowment that is held by an entity other than the state or
holder of the mitigation property as of January 1, 2012.
(B) An endowment that is held by another entity, which is
qualified pursuant to this chapter, pursuant to the terms of a
natural community conservation plan (Chapter 10 (commencing with
Section 2800) of Division 3 of the Fish and Game Code) or a safe
harbor agreement (Article 3.7 (commencing with Section 2089.2) of
Chapter 1.5 of Division 3 of the Fish and Game Code). In order for
this paragraph to apply, prior to setting aside any endowments, the
implementation agreement that is a part of an approved natural
community conservation plan, the planning agreement for any natural
community conservation plan that has not yet been approved, or the
safe harbor agreement shall specifically address the arrangements for
the endowment including, but not limited to, qualifications of the
endowment holder, capitalization rate, return objectives, and the
spending rule and disbursement policies.
(C) If existing law prohibits the holder of the mitigation
property to hold the endowment, including for-profit entities.
(D) If the project proponent and the holder of the mitigation
property or conservation easement agree that a community foundation
or a congressionally chartered foundation shall hold the endowment.
(E) If the mitigation property is held or managed by a federal
agency.
(F) If any of the same mitigation property is required to be
conveyed pursuant to both a federal and state governmental approval,
and under the federal governmental approval the federal agency does
not approve one of the entities described in paragraph (1) of
subdivision (b) as chosen to hold the endowment by the agreement of
the project proponent and the holder of the mitigation property or
conservation easement.
(c) A community foundation or congressionally chartered foundation
that holds an endowment pursuant to subparagraphs (A) to (F),
inclusive, of paragraph (2) of subdivision (b), shall meet all the
qualifications and requirements of this chapter for holding,
managing, investing, and disbursing the endowment funds.
(d) Any entity that holds an endowment under this chapter shall
hold, manage, invest, and disburse the funds in furtherance of the
long-term stewardship of the property in accordance with subdivision
(a) of Section 65965.
(e) The holder of an endowment shall certify to the project
proponent or the holder of the mitigation property or a conservation
easement and the local or state agency that required the endowment
that it meets all of the following requirements:
(1) The holder has the capacity to effectively manage the
mitigation funds.
(2) The holder has the capacity to achieve reasonable rates of
return on the investment of those funds similar to those of other
prudent investors for endowment funds and shall manage and invest the
endowment in good faith and with the care an ordinarily prudent
person in a like position would exercise under similar circumstances,
consistent with the Uniform Prudent Management of Institutional
Funds Act (Part 7 (commencing with Section 18501) of Division 9 of
the Probate Code).
(3) The holder utilizes generally accepted accounting practices as
promulgated by either of the following:
(A) The Financial Accounting Standards Board or any successor
entity for nonprofit organizations.
(B) The Governmental Accounting Standards Board or any successor
entity for public agencies, to the extent those practices do not
conflict with any requirement for special districts in Article 2
(commencing with Section 53630) of Chapter 4 of Part 1 of Division 2
of Title 5.
(4) The holder will be able to ensure that funds are accounted
for, and tied to, a specific property.
(5) If the holder is a nonprofit organization, a community
foundation, or a congressionally chartered foundation, it has an
investment policy that is consistent with the Uniform Prudent
Management of Institutional Funds Act (Part 7 (commencing with
Section 18501) of Division 9 of the Probate Code).
(f) If a governmental entity, community foundation, special
district, nonprofit organization, or a congressionally chartered
foundation meets the requirements of this chapter, it is qualified to
be a holder of the endowment for the purpose of obtaining any
permit, clearance, or mitigation approval from a state or local
agency.
(g) Except for a mitigation agreement prepared by a state agency,
the mitigation agreement that authorizes the funds to be conveyed to
a governmental entity, community foundation, special district, a
congressionally chartered foundation, or nonprofit organization
pursuant to subdivision (a) shall include a provision that requires
the endowment be held by a governmental entity, special district, or
a nonprofit organization to revert to the local agency, or to a
successor organization identified by the agency and subject to
subdivision (e), if any of the following occurs:
(1) The governmental entity, community foundation, special
district, a congressionally chartered foundation, or nonprofit
organization ceases to exist.
(2) The governmental entity, community foundation, special
district, a congressionally chartered foundation, or nonprofit
organization is dissolved.
(3) The governmental entity, community foundation, special
district, a congressionally chartered foundation, or nonprofit
organization becomes bankrupt or insolvent.
(4) The local agency reasonably determines that the endowment held
by the governmental entity, community foundation, special district,
or nonprofit organization, or its successor entity, is not being
held, managed, invested, or disbursed for conservation purposes and
consistent with the mitigation agreement and legal requirements. Any
reverted funds shall continue to be held, managed, and disbursed only
for long-term stewardship and benefit of the specific property for
which they were set aside. If the funds revert from the governmental
entity, community foundation,
special district, or nonprofit organization, the special district
or nonprofit organization may choose to relinquish the property. If
the property is relinquished, the local agency shall accept title to
the property or identify an approved governmental entity, community
foundation, special district, or nonprofit organization to accept
title to the property.
(h) Nothing in this section shall prohibit a state or local agency
from determining that a governmental entity, community foundation,
special district, a congressionally chartered foundation, or
nonprofit organization meets the requirements of this section and is
qualified to hold the endowment, or including a provision in the
mitigation agreement as described in subdivision (g).
(i) A state or local agency may allow the endowment to be held
temporarily in an escrow account until December 31, 2012, after which
time the funds shall be transferred to the entity that will
permanently hold the endowment.
(j) Subject to subdivision (g), any endowment that is conveyed to
and held by a governmental entity, special district, or nonprofit
organization pursuant to this section shall continue to be held by
the entity if this section is repealed.
(k) A state or local agency shall not require, as a condition of
obtaining any permit, clearance, agreement, or mitigation approval
from the state or local agency, that a preferred or exclusively named
entity by the state or local agency be named as the entity to hold,
manage, invest, and disburse the funds in furtherance of the
long-term stewardship of the property for which the funds were set
aside.
(l) This section shall remain in effect only until January 1,
2022, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2022, deletes or extends
that date.
SEC. 6. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to ensure that mitigation projects are approved in a
timely manner, particularly in relation to desert renewable energy
projects, it is necessary that this act take effect immediately.
