Eberhart v. Mayor of Baltimore

433 A.2d 1118, 291 Md. 92, 1981 Md. LEXIS 254
Court of Appeals of Maryland·Decided August 25, 1981·No. [No. 3, September Term, 1981.]·Published·Cited by 5 cases

Opinions

Murphy, C. J.,

delivered the opinion of the Court. Smith and Digges, JJ., dissent. Smith, J., filed a dissenting opinion at page 115 infra, in which Digges, J., concurred.

The primary issue in this case is whether a sale-leaseback transaction, which the Mayor and City Council of Baltimore (the City) proposes to enter into, contravenes the debt limitation provisions of Art. XI, § 7 of the Constitution of Maryland:

"[N]o debt ... shall be created by the Mayor and City Council of Baltimore ... unless such debt ... be authorized by an Act of the General Assembly of [95]*95Maryland, and by an ordinance of the Mayor and City Council of Baltimore, submitted to the legal voters of the City of Baltimore ... and approved by a majority of the votes cast ...

In 1975, the City purchased for approximately $110,000 a parcel of land (the Land) and a building and improvements thereon (the Building) known as 19-21 South Gay Street, Baltimore, Maryland (collectively, the Property). The City spent $1,450,000 remodeling and renovating the Building, making it suitable for use as a specialized cooking school. The Building is now occupied, under a rent free at will lease, by Baltimore’s International Culinary Arts Institute, Inc. (the Institute), a non-profit charitable and educational corporation. Under an agreement with the City, the Institute uses the Property as a cooking school, providing educational and training programs to prepare students for employment in the food service and hospitality industries and operating a restaurant and general catering service.

The City now proposes to extract the capital it has invested in the Property without affecting the Institute’s continued rent free use of the Property. In order to do this, the City proposes to engage in a series of transactions with Culinary Associates, a limited partnership. The City will sell the Building to Culinary Associates for $1,550,000. The Land will be leased to Culinary Associates for a period of thirty-five years (the Ground Lease). Both the Land and the Building then will be leased back to the City by Culinary Associates under a thirty-year lease (the Ground and Building Lease).

Of the $1,550,000 that Culinary Associates needs to purchase the Building, $1,270,000 will be provided from the proceeds of the sale of Industrial Development Revenue Bonds (the Bonds) to be issued by the Industrial Development Authority of the Mayor and City Council of Baltimore (the Authority). The Authority is a body politic and corporate and "a political subdivision of the State,” organized under Maryland Code (1957, 1978 Repl. Vol., 1980 Cum. Supp.), Art. 41, §§ 266 A-l to A-3, and [96]*96authorized to issue bonds for certain enumerated public purposes. The proceeds of the sale of the Bonds will be loaned by the Authority to Culinary Associates pursuant to a loan agreement (the Loan Agreement) yet to be prepared. Culinary Associates’ repayments under the Loan Agreement will be sufficient to enable the Authority to meet its obligation to make periodic payments of principal of and interest on the Bonds.

By resolution adopted on October 29, 1979 (the Authority Resolution), the Authority’s Board of Directors authorized the issuance of the Bonds and the loan of the proceeds to Culinary Associates.1 The Resolution provided that the Bonds will be limited obligations of the Authority, with debt service thereon payable solely from repayment of the loan by Culinary Associates: "Neither the Bonds, nor the interest, nor redemption premium, if any, thereon, shall ever constitute an indebtedness or a charge against the general credit or taxing powers of the Authority, the Mayor and City Council of Baltimore, the State of Maryland, or any other body corporate or politic of the State of Maryland, within the meaning of any constitutional or charter provision or statutory limitation, and neither shall they ever constitute or give rise to any pecuniary liability thereof.” The Resolution also provided, pursuant to Art. 41, §§ 266 A-2 and 266 B (f), that conditions of unemployment exist in Baltimore City, and that helping Culinary Associates to acquire the Building will serve to relieve such conditions of unemployment, will promote the economic development of Baltimore City, will aid in the creation of a balanced economy in Baltimore City, and will promote the health, safety and welfare of the residents of Baltimore City.

As security for payment of principal of and interest on the Bonds, Culinary Associates will grant a mortgage on the Building and its leasehold interest in the Land, which will [97]*97be assigned to the trustee for the Bonds (the Trustee). This mortgage will be subordinate to the City’s interests as tenant under the Ground and Building Lease and as fee simple owner of the Land. The right to receive the City’s rent payments under the Ground and Building Lease also will be collaterally assigned to the Trustee as security for the Bonds.

Culinary Associates will raise the remaining $280,000 of the purchase price for the Building through capital contributions of its limited partners. The annual rent to be paid by the City to Culinary Associates under the Ground and Building Lease will be equal to the sum of (i) the annual rent reserved under the Ground Lease, (ii) an amount sufficient to enable Culinary Associates to meet its obligations to the Authority under the Loan Agreement, and (iii) an amount sufficient to return a profit to Culinary Associates of 3% per annum of its total equity investment of $315,000 ($280,000 contributed toward the purchase price of the Building, plus $35,000 in incidental financing costs). Because the amount of the City’s obligation to pay rent to Culinary Associates is dependent in part on the amount of Culinary Associates’ obligation to the Authority under the Loan Agreement and the amount of this obligation, in turn, is dependent on the amount of the Authority’s debt service on the Bonds, the exact amount of the City’s annual rent under the Ground and Building Lease cannot be fixed until the Bonds have been sold and their interest rate determined. According to uncontroverted expert testimony, however, the City’s annual rent payments during the entire term of the Ground and Building Lease would be $141,635, plus the amount of the annual rent reserved under the Ground Lease. These rental payments will come from the City’s general funds, and were deemed to represent the fair rental value of the property by a qualified expert.

Under the Ground Lease and the Ground and Building Lease, the obligations of Culinary Associates and the City, as the respective tenants, to make rent payments will not be reduced or affected by damage, destruction or partial taking [98]*98by condemnation (or sale in lieu thereof) of the Property. Both the Ground Lease and the Ground and Building Lease will terminate upon a complete taking by condemnation (or sale in lieu thereof) of the Property. In the event of damage, destruction or partial taking of the Property, the City will be obligated under the Ground and Building Lease to repair or restore the Property, but Culinary Associates will make available to the City for this purpose all insurance or condemnation proceeds it receives with respect to such damage, destruction or partial taking.

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Eberhart v. Mayor of Baltimore, 433 A.2d 1118, 291 Md. 92, 1981 Md. LEXIS 254 (Md. 1981).

433 A.2d 1118 (Eberhart v. Mayor of Baltimore) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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