Summerfield Housing Ltd. Partnership v. United States

42 Cont. Cas. Fed. 77,397, 42 Fed. Cl. 160, 1998 U.S. Claims LEXIS 255, 1998 WL 760178
CourtUnited States Court of Federal Claims
DecidedOctober 29, 1998
DocketNo. 97-423C
StatusPublished
Cited by4 cases

This text of 42 Cont. Cas. Fed. 77,397 (Summerfield Housing Ltd. Partnership 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
Summerfield Housing Ltd. Partnership v. United States, 42 Cont. Cas. Fed. 77,397, 42 Fed. Cl. 160, 1998 U.S. Claims LEXIS 255, 1998 WL 760178 (uscfc 1998).

Opinion

OPINION

FUTEY, Judge.

This contract case is before the court on plaintiffs motion for summary judgment and defendant’s cross-motion for summary judgment. Plaintiff claims that, according to the terms of a lease agreement with defendant, defendant is obligated to pay an annual Solid Waste Service Charge (SWSC) assessed by the Department of Environmental Resources (DER) of Prince George’s County, Maryland (the County). Plaintiff seeks the amount it has paid for the SWSC to the County to date, as well as a declaratory judgment stating that defendant is obligated to pay the SWSC over the remaining years of the lease. Plaintiff also maintains that defendant owes additional interest for late rental payments. Defendant alleges the SWSC is a special assessment tax, and therefore, plaintiff is obligated to pay it under the lease. Defendant further maintains that plaintiff is not entitled to the additional interest it seeks.

Factual Background

On March 29, 1991, the Department of the Navy (defendant) issued a request for proposals (RFP) no. N6247791RP00017 for the design, construction and lease of: (1) 1,242 new housing units; (2) an 8,650 square foot community center; (3) a thirty-four acre park; (4) an 8,000 square foot manage-menVmaintenance facility; and (5) three 450 square foot meeting rooms on a site in the Landover area of Prince George’s County, Maryland (the Facility). The RFP contained a form of lease agreement to be executed for a period of twenty years commencing upon the date of issuance of a Certificate of Acceptance from the contracting officer (CO).

The contract was awarded to Hunt Building Corporation (Hunt) on September 26, 1991. Construction began after the lease was entered into. On August 25, 1993, defendant executed an Estoppel Certificate and Consent, in which defendant agreed to make all rent payments under the lease directly to Texas Commerce Bank-El Paso, N.A. (Texas Commerce Bank), as plaintiffs trustee, after issuance of the Certificate of Acceptance. At approximately the same time, Texas Commerce Bank executed a Notice of Assignment of Rents (Notice of Assignment) under the lease, directing the CO to remit rental payments to Texas Commerce Bank when payment commenced upon the issuance of the [163]*163Certificate of Acceptance.1 On August 25, 1993, the CO acknowledged receipt of the Notice of Assignment and a copy of the instrument of assignment executed by Hunt. Further, on December 1, 1995, Hunt assigned its right, title and interest in the Facility to plaintiff.2 On that same day defendant issued a Certificate of Acceptance, establishing the commencement of the twenty-year lease term.

Pursuant to the lease, defendant is required to pay plaintiff rental payments in monthly arrears, with payment due on the first workday of the month.3 The lease also provides that rent consists of the fixed rent as well as increases in the required insurance and property taxes.4 The lease further provides in pertinent part:

Rent reflects the cost of ownership to the Lessor for the newly-constructed facilities provided to the Government over the term of the lease including, but not limited to, the cost of land, improvements, property taxes, utility connection fees, insurance, the cost of borrowing money, and profits earned thereon. Rent shall be fixed for the lease term with the exception of general real estate tax and insurance increases after the second full year following issuance of the Certificate of Acceptance for the entire Premises by the Government.5

In addition, the lease provides that in the event that a rent payment is late, defendant automatically must pay interest on the amount outstanding.6

A. Solid Waste Service Charge

Pursuant to the lease, defendant agreed to contract with a private waste hauler for the removal of refuse from the Facility. On October 27, 1995, defendant modified an existing contract with Priority One Services, Inc. (Priority One), a private solid waste hauler, to include the collection, removal and disposition of refuse from the Facility. After contracting with Priority One, defendant inquired with the DER about the County’s refuse collection service. In a letter dated September 3, 1997, from Maclane Gibson of the DER to the CO, Mr. Gibson stated that the County only provided collection services to privately owned single family homes, and also would not be able to provide refuse dumpsters for defendant to use. He stated, however, that the County could collect bulky trash and recyclable garbage from the residents at the Facility.

By letter on May 17, 1996, Samuel Wyn-koop, Jr., Director of the County DER, informed plaintiff of the new SWSC that the County instituted on July 1, 1995. Prior to July 1, 1995, only tipping fees were charged to users of the County’s two landfills. The letter states in part:

In 1994, a Supreme Court Ruling [C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994)], invalidated a County law requiring waste haulers to dispose of solid waste collected in Prince George’s County at County-owned waste acceptance facilities. The result of this decision was an immediate decline in tonnage delivered to County landfills and a subsequent reduction in revenue.
Because the County can no longer fund the costs associated with its solid waste programs solely from tipping fee revenues, several service charges have been implemented to help fund the system. These charges, which appear as the “Solid Waste Service Charge” (SWSC) on the County tax bills, provide a more stable revenue [164]*164source and decrease the fluctuations in revenues available for solid waste programs. These charges will be assessed to all single family and multifamily dwellings in the County.7

On July 15, 1996, plaintiff received a tax bill from the County, for the tax year July 1, 1996 through June 30, 1997, which included the new SWSC. Pursuant to the implementation of the SWSC, the DER assessed three separate charges against plaintiff for the Facility: (1) a base benefit charge amounting to $50.00 per unit for all single family homes and apartments; (2) a bulky trash charge amounting to $18.00 per unit for all single family homes and apartments; and (3) a recycling charge amounting to $50.00 per unit for single family homes and apartments.8

Based upon this criteria, the SWSC assessed against plaintiff amounted to $114,-732.00 per year. On September 13, 1996, Ronald Pyke (Controller of Hunt), on behalf of plaintiff, sent the CO a letter that included both a copy of plaintiffs tax bill from the County and a letter from Mr. Wynkoop. Specifically, Mr. Pyke stated that plaintiff believed the SWSC was an operating expense under the lease, and therefore defendant’s obligation to pay. Additionally, Mr. Pyke stated that plaintiff would advance the funds to pay the amount due, but that plaintiff wanted to be reimbursed by defendant. Plaintiff paid $114,732 to the County for the SWSC on September 23, 1996 for the July 1996 to June 1997 tax year. By letter dated January 9, 1997, the CO denied Mr. Pyke’s request.

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Cite This Page — Counsel Stack

Bluebook (online)
42 Cont. Cas. Fed. 77,397, 42 Fed. Cl. 160, 1998 U.S. Claims LEXIS 255, 1998 WL 760178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/summerfield-housing-ltd-partnership-v-united-states-uscfc-1998.