Kimco Realty v. United States

51 Fed. Cl. 257, 2001 U.S. Claims LEXIS 259, 2001 WL 1628943
CourtUnited States Court of Federal Claims
DecidedDecember 18, 2001
DocketNo. 98-736C
StatusPublished
Cited by3 cases

This text of 51 Fed. Cl. 257 (Kimco Realty v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kimco Realty v. United States, 51 Fed. Cl. 257, 2001 U.S. Claims LEXIS 259, 2001 WL 1628943 (uscfc 2001).

Opinion

OPINION

MARGOLIS, Senior Judge.

This contract action is before the Court on defendant’s motion for summary judgment and plaintiffs’ cross-motion for summary judgment. In the event that summary judgment is deemed inappropriate, the parties waived an evidentiary hearing and requested that the Court decide the issues upon the submitted pleadings. Plaintiffs filed suit seeking recovery of certain amounts plaintiffs allege are due and owing under a lease entered into with defendant. Defendant counterclaimed for reimbursement of taxes paid to plaintiffs that it now believes it did not owe. After full briefing and oral argument in the case, defendant’s motion for summary judgment is GRANTED on the common area maintenance issue. Summary judgment is inappropriate on the building value tax issue. However, the Court finds for defendant on the merits on that issue.

FACTS

Plaintiffs own and manage a shopping center, commonly known as the Centereach Mall (“shopping center”), located in the Town of Brookhaven, Suffolk County, New York. The United States (“defendant”), acting through the United States Postal Service, is a tenant in the shopping center pursuant to a ground lease with the original fee owner, Firstcent Shopping Center, Inc. (“Firsteent”). The defendant as tenant, and Firstcent as landlord, entered into the lease on March 13,1984.

The Postal Service’s leased parcel is 38,618 square feet (“SF”). The Postal Service originally intended to transfer and assign the ground lease to a non-governmental entity that would construct a postal facility on the leased premises and lease the building space back to the Postal Service. Instead, the Postal Service constructed the building itself. The building comprises 9,790 SF of the total space the Postal Service leases. Pursuant to the lease, all Postal Service vehicles are to be parked within the Postal Service’s 38,618 SF of leased space. Employees and customers of the Postal Service, however, are permitted [259]*259to use the shopping center’s general parking area at no extra cost to the defendant.

Plaintiff Centereaeh Mall Associates, L.P., acquired the shopping center through foreclosure in 1993, and is the successor-landlord pursuant to the lease. Plaintiff Kimeo Realty Corporation operates and manages the shopping center on behalf of Centereaeh Mall Associates. The original lease expired on December 31,1998. Defendant exercised the first five-year renewal option at that time. Since then, two disputes arose between the parties. First, the parties are in disagreement regarding the scope of defendant’s payment obligations with respect to common area maintenance (“CAM”) charges. Second, the parties disagree over whether the lease requires the defendant to reimburse plaintiffs for building value taxes. The specific facts relating to each dispute are discussed in turn.

1. The Common Area Maintenance Dispute

The Lease provisions at issue provide as follows:

33. It is mutually understood that the U.S. Postal Service will be responsible for their proportionate share of all applicable common area maintenance charges upon beneficial occupancy by the Postal Service. That amount begin [sic] agreed as three (3%) percent of all costs. Said costs shall include, but not limited to the following: general cleaning including maintenance personnel; snow removal, maintenance of lighting and cost of electricity; parking lot maintenance & stripping; maintenance of signs; landscaping & maintenance thereof; repair of curbing.

(emphasis added). Lease 1133, Pis’ App. 25.

Lease after H 34, Pis’ App. 25.

43. The Common Area Maintenance charge will be billed to the Tenant on a monthly basis based upon the immediate prior year’s total operating cost for said Common Area Maintenance, of which Tenant’s three (3%) percent responsibility will be applied so that the 3% will be divided into 12 monthly payments and adjusted at the years’ end up or down to reflect an accurate 3% of the current years’ operating expenses for said maintenance. Tenant will be responsible for any and all general maintenance for the common area maintenance for his 38,618 [SF], which shall include, but is not limited to general cleaning including maintenance personnel; snow removal; maintenance of lighting and cost of electricity; parking lot maintenance and stripping!;] maintenance of signs; landscaping & maintenance thereof, and repair of curbing.1

Lease at It 43, Pis’ App. 28.

On or about November 4, 1997, plaintiffs sent defendant a demand for payment totaling $90,139.36. Plaintiffs claim the amount represents defendant’s proportionate share of actual CAM charges for January 1, 1994 through January 31, 1997, and estimated CAM charges for February 1, 1997 through November 30, 1997. This figure equals 3% of the total CAM charges for the entire shopping center complex. Defendant replies that it is responsible for 3% of only those CAM charges attributable to the shopping center’s commonly used “parking areas,” not the entire shopping center, thus excluding CAM charges attributable to the shopping center buildings themselves. Defendant alleges that the original lessor, Firsteent, routinely billed defendant only for CAM charges relating to the parking lot. Defendant also points out that the building in which the Postal Service is located is a stand-alone building, and it is not necessary for patrons or employees to enter the other shopping center buildings in order to access the Post Office. On November 4, 1997, plaintiffs sent defendant a written request that the entire sum be paid. Pursuant to the Contract Disputes Act of 1978, the contracting officer denied plaintiffs’ request by letter dated May [260]*26026, 1998. Plaintiffs appealed the decision to this Court.

2. The Real Estate Tax Reimbursement Dispute

The tax reimbursement issues also are based on the lease, which includes a tax rider entitled “Percentage Reimbursement of Paid Taxes Rider.” The relevant portion of the original lease is paragraph 15, which states:

15. ... the tenant agrees to pay ... all municipal, county, and state taxes ... properly levied or assessed against the demised premises or the buildings or improvements thereon from and during the lease term and any renewal terms herein.

Lease 1115, Pis’ App. 23.

The relevant portions of the tax rider are paragraphs 1 and 5, which state:

1. ... From January 1, 1984 to the date of occupancy of the demised premises by the U.S. Postal Service, the Postal Service shall reimburse the Landlord three (3%) percent of the total General Real Estate Taxes attributed to land value, then from the date of the U.S. Postal Service’s occupancy of the demised premises for the balance of this lease, including all renewal periods Postal Service shall reimburse the Landlord three (3%) percent of the total General Real Estate taxes attributed to land, buildings, and improvements.
ijs %
5. In the event the improvements constructed on the leased property are Government owned rather than leased,* the U.S.

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Related

City Crescent Ltd. Partnership v. United States
71 Fed. Cl. 797 (Federal Claims, 2006)
Kimco Realty Corp. v. United States
187 F. App'x 986 (Federal Circuit, 2006)
Local Oklahoma Bank, N.A. v. United States
59 Fed. Cl. 713 (Federal Claims, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
51 Fed. Cl. 257, 2001 U.S. Claims LEXIS 259, 2001 WL 1628943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kimco-realty-v-united-states-uscfc-2001.