Legislature(1993 - 1994)

03/16/1994 09:10 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
  SENATE BILL NO. 338                                                          
                                                                               
       An Act relating  to the issuance  of revenue bonds  for                 
       acquisition and  construction of  the Alaska  Discovery                 
       Center   for  the  Ship  Creek  Project  in  Anchorage;                 
       relating to a  study of  the feasibility and  financial                 
       viability of the Alaska  Discovery Center; relating  to                 
       construction  of  the   Alaska  Discovery  Center;  and                 
       providing for an effective date.                                        
                                                                               
  Co-chair  Pearce directed  that  SB 338  be  brought on  for                 
  discussion,  referenced  correspondence  of  this date  from                 
  Wohlforth,  Argetsinger, Johnson & Brecht as  well as a copy                 
  of the 1984 session law establishing the railroad, and noted                 
  the  teleconference   participation  of   Ken  Vassar   from                 
  Anchorage and Mark LoPatin from Detroit.                                     
                                                                               
  The Co-chair next directed attention to CSSB 338 (L&C), page                 
  1,  line  7,  and noted  need  to  correct  the session  law                 
  citation from  sec. 1(a) to  sec. 1(b).   NOTE - The  proper                 
  citation was  subsequently determined to be sec. 1(a)(1)(B).                 
  Senator  Kelly MOVED  to  effect the  technical change.   No                 
  objection having been raised, IT WAS SO ORDERED.                             
                                                                               
  MARK LoPATIN, of LoPatin & Company, spoke via teleconference                 
  from Detroit, Michigan.  He concurred in dovetailing aspects                 
  of SB 148 and SB  338.  He stressed need to  ensure that the                 
  railroad  understands  that   approval  of   SB  338  as   a                 
  legislative action should not impinge on the $10 million and                 
  $50 million limitations set forth in SB 148.                                 
                                                                               
  Addressing concerns raised by Senator Sharp regarding use of                 
                                                                               
                                                                               
  tax  exempt   financing  for  other  than  railroad  related                 
  purposes, Mr.  LoPatin acknowledged  that the  benefit is  a                 
  quirk in federal law which was part of the original transfer                 
  act.  He stressed that the federal government has no ability                 
  to prevent the  railroad, as  an agency of  the state,  from                 
  selling  tax  exempt  bonds  for  railroad purposes.    That                 
  includes rolling  stock, track,  storage, etc.   That  right                 
  will not be  impacted by "our using it."  If the benefit was                 
  abused or disappeared,  the railroad would continue  to have                 
  the federal  right  to  sell tax  exempt  bonds  for  public                 
  purposes/railroad purposes.   Mr. LoPatin  acknowledged that                 
  the federal government could eliminate  the benefit, but, in                 
  doing so, it would be eliminating the benefit for all public                 
  agencies.    He advised  that  he  could not  conceive  of a                 
  situation where it would "just apply  to the railroad."  The                 
  railroad receives this  benefit because it  is owned by  the                 
  State of Alaska.  The benefit allows the railroad to "go out                 
  and   do  non-railroad   purposes."     The   transfer   act                 
  contemplated  non-railroad  oriented  activities that  would                 
  generate revenue to support railroad oriented activity.                      
                                                                               
  In response to questions from  Co-chair Frank, Senator Kelly                 
  advised that provisions of  CSSB 338 (L&C) were intended  to                 
  guard against "a half  built building."  The bottom  line is                 
  that  if  the project  does  not  work, the  railroad  has a                 
  building which can be used for something.                                    
                                                                               
  Discussion followed regarding lease  arrangements and owner,                 
  bondholder, and railroad interest in  the project in case of                 
  default.   Mr.  LoPatin acknowledged  that  the  bondholders                 
  would stand in  primary position to  take over operation  of                 
  the facility.  They would not  do so without assurance of  a                 
  return on  capital.   They would,  however, continue  to pay                 
  rent to the railroad,  or they too would be in  default, and                 
  the railroad would  own the facility,  free and clear.   The                 
  railroad's  interest  is  prior  to  and superior  to  other                 
  interests.                                                                   
                                                                               
  Discussion  followed  concerning  lease  terms  for  the 120                 
  acres.  Mr. LoPatin explained that  the owner of the project                 
  is responsible  for rent payments  to the railroad.   Should                 
  the owner default, the bondholders have  a period of time to                 
  cure the default.   If they decline to do so, their interest                 
  is extinguished.    The railroad,  state,  and  municipality                 
  would  be  under  no  legal  or  moral  obligation  to  make                 
  payments.    He  further  advised  that  he  would  have  no                 
  objection to language, suggested by Co-chair Frank, that the                 
  state  and/or the railroad  would be under  no obligation to                 
  cure the default.                                                            
                                                                               
  End:      SFC-94, #32, Side 2                                                
  Begin:    SFC-94, #34, Side 1                                                
                                                                               
  Co-chair Frank  inquired concerning  fair market  aspects of                 
                                                                               
                                                                               
  the  rental  agreements  with  the  railroad.   Mr.  LoPatin                 
  explained that as each piece of  land is "carved out," there                 
  is a new  appraisal, and  a new rental  rate is  structured.                 
  Discussion of lease assignments followed.                                    
                                                                               
  Senator Sharp noted  that it appears that,  statutorily, the                 
  board of directors  of the  Alaska Railroad  is required  to                 
  exercise substantial discretionary power over the project in                 
  review  of  studies  to  determine  whether  the  center  is                 
  feasible and  financially viable,  etc.   He then  suggested                 
  that  the  foregoing  exudes  a   sense  of  direct  project                 
  involvement  and  responsibility.    He  further  questioned                 
  language  at  page  2,  line  3,  stating  that  the "Alaska                 
  Railroad Corporation  may loan the proceeds from the sale of                 
  revenue bonds  . . . ."   Mr. LoPatin  directed attention to                 
  correspondence  (copy   appended  as   Attachment  A)   from                 
  Wohlforth,  Argetsinger, Johnson  &  Brecht  and noted  that                 
  requirements  for a feasibility study make a strong case for                 
  the fact that the railroad has  no obligation to repay these                 
  bonds.  They are purely revenue bonds.                                       
                                                                               
  KEN VASSAR, Wohlforth, Argetsinger,  Johnson & Brecht,  next                 
  testified   via   teleconference   from   Anchorage.      He                 
  acknowledged  the connection  between the  railroad and  the                 
  project but stressed that the  connection does not translate                 
  to a legal  or moral obligation  with respect to the  bonds.                 
  The legislation is extremely clear on that point.  The bonds                 
  are  payable solely from revenues  pledged for the bonds and                 
  not from any other  source.  Railroad control of  aspects of                 
  the project does not impact that issue.                                      
                                                                               
  As  background information,  Mr.  Vassar explained  that  in                 
  order for the bonds to be tax exempt, they must be issued by                 
  the railroad.  The proceeds of bond sales will accrue to the                 
  railroad  which will,  in  turn, lend  the  proceeds to  the                 
  developer.   Repayment of  the loan and  land lease payments                 
  will  be  made from  revenues from  the  project.   The loan                 
  payments will  then repay  the bonds.   Mr.  Vassar stressed                 
  that the proposed bonds will not create state debt.                          
                                                                               
  Senator Sharp again voiced  need to hear from the  railroad.                 
  Co-chair Pearce asked if the railroad board had taken action                 
  on the project.   Mr. Hickey responded negatively.   He said                 
  the board had reviewed the project, and there is support for                 
  the overall proposal.  The board has not yet made a decision                 
  as to  whether or  not the  railroad will  issue the  bonds.                 
  That  decision  will not  be made  until  a number  of thing                 
  happen,   including   the  independent   feasibility  study.                 
  Senator Kelly asked if the board  was "gun-shy."  Mr. Hickey                 
  acknowledged that since the proposed project represents "the                 
  first use of this authority," the board has reservations.                    
                                                                               
  In response  to questions  from Co-chair  Frank, Mr.  Vassar                 
  described  the  sequence  of events  should  the  project be                 
                                                                               
                                                                               
  approved.  The  railroad corporation would issue  its bonds,                 
  and underwriters selected  by the corporation would  buy the                 
  bonds.   Proceeds from  the sale of  bonds would  flow to  a                 
  trustee--a large bank with trust powers, capable of handling                 
  the  accounts and  doing the  paperwork.  The  trustee would                 
  deposit the proceeds of  the bond sale into an  account that                 
  would be used to make the loan to the developer.  Mr. Vassar                 
  voiced his  belief  that  the  bank would  handle  the  loan                 
  similar  to a construction  loan with release  of funds upon                 
  completion  of   phases  until  the  project   is  complete.                 
  Following  distribution  of  the  loan,  the  trustee  would                 
  thereafter be responsible for collection  of revenues to pay                 
  back bond holders.                                                           
                                                                               
  Co-chair Pearce  noted that  the board  must feel  a certain                 
  level  of  comfort  with  the  LoPatin  proposal  since  the                 
  railroad  hired  Mr. LoPatin  to  "do the  development" over                 
  strenuous objections by  AEDC and others in Anchorage.   She                 
  then directed that  SB 148 and  SB 338 be HELD  in committee                 
  pending future discussion  with Mr. Hatfield and  members of                 
  the board of directors of the railroad.                                      
                                                                               

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