120 West Fayette Street, LLLP v. Mayor of Baltimore City

BARBERA, Judge. In this appeal, we consider for the second time the controversy between 120 West Fayette Street, LLLP (“120 West Fayette”) and the Mayor and City Council for Baltimore City et al. (“the City”), in which 120 West Fayette alleges that the City illegally entered into a Land Disposition Agreement (“LDA”) to sell to Lexington Square Partners, LLC property in Baltimore’s westside known as the “Superblock.” When we first considered this case in 120 West Fayette Street, LLLP v. Baltimore, 407 Md. 253 , 964 A.2d 662 (2009), we held that 120 West Fayette had standing to challenge the LDA and that the Circuit Court for Baltimore City had erred in treating the City’s motion to dismiss as a motion for summary judgment. Id. at 258 , 964 A.2d at 664-65 . This case’s current incarnation arises in response to the Circuit Court’s grant of summary judgment in the City’s favor on 120 West Fayette’s original complaint and that court’s grant of the City’s motion to dismiss Count Two of 120 West Fayette’s amended complaint.

For the foregoing reasons, we shall affirm the judgment of the Circuit Court. I. “In 1999, the Baltimore City Council enacted an urban renewal plan 1 for the westside of downtown Baltimore. The ³¹⁸ renewal plan, known as the ‘Market Center Urban Renewal Plan,’ [“the Renewal Plan”] has been advertised as Baltimore’s largest urban renewal plan since the plan to revitalize the city’s Inner Harbor.” Id. at 258-59 , 964 A.2d at 665 . At issue in this case is an area within the westside redevelopment area known as the “Superblock.” “The ‘Superblock’ encompasses five blocks and is bound by Fayette Street, Howard Street, Lexington Street, Clay Street, and Park Avenue.” 2 Id. at 259 , 964 A.2d at 665 . “To implement [the Renewal Plan], the Baltimore Board of Estimates (“BOE”) delegated ‘ministerial and administrative’ functions to a nonprofit corporation known as the Baltimore Development Corporation, Inc. (“BDC”).” Id. at 258-59 , 964 A.2d at 665 .

The BDC is a not-for-profit corporation created, among other reasons, “[t]o develop and implement long-range development strategies for commercial, industrial, office, residential, and other development in the City of Baltimore[.]” Baltimore Dev. Corp. v. Carmel Realty Assocs., 395 Md. 299, 309 , 910 A.2d 406, 411 (2006) (quoting Amended Articles of Incorporation of the City of Baltimore Development Corporation, ART. FOURTH, October 4,1991). The BDC is governed by a board of directors comprising “not less than seven (7), nor more than fifteen (15) directors,” including the Commissioner of the City’s Department of Housing and Community Development and the Director of the City’s Department of Finance.

Id. at 325 n. 17, 910 A.2d at 421 -22 n. 17 (quoting SECTION 1 of the BDC’s bylaws as amended on November 4, ³¹⁹ 1997). Those directors not named in the bylaws, including the chairman of the board, are nominated by the Mayor of the City and elected by the corporation’s members. Id., 910 A.2d at 421 n. 17. The Mayor also has the authority to remove directors and fill vacancies on the board until the expiration of the absent director’s term.

Id., 910 A.2d at 422 n. 17. In Carmel Realty, we recognized that the Mayor, by virtue of the above-mentioned authority, effectively controls the BDC’s board of directors. Id. at 326 , 910 A.2d at 422 . In this case, the BDC’s relevant responsibility was to orchestrate the development and revitalization of the City-owned properties subject to the Renewal Plan, including the “Superblock.” To that end, “[t]he City asserts that it instructed the BDC to ‘work with developers and interested groups regarding the development of the westside, prepare and issue requests for development proposals, arrange and attend meetings between developers and business owners, and coordinate financial assistance.’ ” 120 West Fayette St., 407 Md. at 259 , 964 A.2d at 665 .

On October 27, 2003, the BDC issued a Request for Proposals (“RFP”) soliciting proposals from experienced real estate developers to develop the “Superblock.” The RFP provided that the BDC, on behalf of the City, was “seeking developers who [were] willing and able to develop [the “Superblock”] ... in accordance with revitalization objectives and goals as stated [in the RFP], as well as the rules and regulations for standards and controls established by the Mayor and City Council ... and implemented by the BDC.” In addition to other rules and regulations, the City’s efforts to redevelop the “Super-block” are subject to a Memorandum of Agreement (“MOA”) between the Mayor and City Council of Baltimore City, and the Maryland Historical Trust (“MHT”). Among other things, the MOA provides that in all City-issued RFPs “the City will use reasonable efforts” to preserve certain City-owned or acquired historic properties within the relevant development area. ³²⁰ Accordingly, the RFP provided, in part, that the proposed “[development should conform to the Memorandum of Agreement (MOA) executed between the City and the Maryland Historical] Trust ... and The West Side Strategic Plan.” The RFP also provided that the selected developers would receive an Exclusive Negotiating Privilege (“ENP”), which guaranteed them the exclusive privilege of negotiating a Land Disposition Agreement (“LDA”) with the City. 3 During the ENP’s term, the privileged developers would be granted an opportunity to enter the property and conduct any activities necessary to satisfy the City’s requirements within the ENP. After the expiration of the term, the City could extend the time period if negotiations were “proceeding satisfactorily.” In response to the RFP, the BDC received proposals from four competitive development teams and responded to each of those development teams with written questions. Additionally, each development team presented its proposal to BDC staff and members of the WestSide Renaissance and the MHT. 4 Among the prospective development teams was Next Genera ³²¹ tion Chera, LLC (“Next Generation”), with which the Mayor, members of the BDC, and members of the WestSide Renaissance met prior to awarding an ENP, on June 24, 2005, to Lexington Square Partners, LLC (“Lexington Square”), an affiliate of Next Generation. 5 The ENP lists the signatories as the Mayor and City Council of Baltimore, on whose behalf the president of the BDC signed; Lexington Square, represented by its managing member’s signature; and the City’s Chief Solicitor, who signed on his own behalf.

The ENP provided for a one-year negotiations period with an option to extend for six months, required Lexington Square to “comply in all material respects” with the MOA, and specified that the ultimate disposition of the property would be governed by the terms of an LDA subject to the approval of the BOE. The ENP did not guarantee that the BOE would approve an LDA with Lexington Square. After the one-year term expired, Lexington Square exercised the six-month extension. After that term expired, in a letter dated December 14, 2006, the BDC recommended to the BOE that the City enter into an LDA with Lexington Square.

At a public meeting on January 10, 2007, the BOE approved and authorized the execution of the LDA with Lexington Square. In November 2007, the BOE approved an amendment of the LDA to reflect changes in the property being transferred. Under the LDA, Lexington Square will receive upon closing a fee simple interest in all property conveyed pursuant to the agreement. Closing on the property is contingent on several conditions, including the City’s acquisition of any unowned property to be conveyed under the agreement, the “resolution of any legal and administrative challenges,” the MHT’s approval of the project plan, and sufficient evidence that Lexington Square has financing for the project.

In the event that the closing does not occur by December 31, 2010, the LDA ³²² provides that as long as the developer has not defaulted on the agreement, it will terminate automatically without liability or obligation to either party. Similarly, if the parties are unable to agree on a final project plan, the developer may terminate the agreement. 6 In the event that Lexington Square defaults on the terms of the LDA, it provides that the City will have a right of re-entry. The LDA also provides that Lexington Square will be reimbursed for its costs plus ten percent interest upon the City’s default. The Lawsuit On February 27, 2007, 120 West Fayette filed, as a taxpayer and landowner, a declaratory judgment action against the City to challenge the validity of the Lexington Square LDA. 120 West Fayette argued that “the City, and its agent, the BDC, unlawfully violated and manipulated the RFP process, in violation of the City’s Charter and laws, to award the LDA to a favored developer.” 120 West Fayette St., 407 Md. at 260 , 964 A.2d at 665 .

Accordingly, 120 West Fayette sought a declaratory judgment finding that the LDA awarded to Lexington Square was illegal and ultra vires. On April 30, 2007, the City filed a motion to dismiss the complaint, and on January 18, 2008, the Circuit Court issued a memorandum opinion and order granting the City’s motion to dismiss on the basis that 120 West Fayette did not have standing to bring the suit and that 1) There is no expenditure of public funds in connection with the development of the Superblock, 2) the Defendant City acted according to the City’s Code in authorizing the BDC to act on its behalf, 3) the Superblock is not a public work subject to the competitive bidding process outlined in the City’s Charter, and 4) the Defendant City did not engage in any illegal or ultra vires acts in the LDA or ENP. ³²³ 120 West Fayette St., 407 Md. at 260 , 964 A.2d at 666 (internal quotation marks omitted). 120 West Fayette timely appealed to the Court of Special Appeals, but this Court issued a writ of certiorari on its own motion before the intermediate appellate court considered the case. 120 West Fayette v. Baltimore, 405 Md. 290 , 950 A.2d 828 (2008). As previously mentioned, we held in 120 West Fayette Street that the Circuit Court had erred in granting the City’s motion to dismiss because it relied on factual and documentary matters outside of the pleadings in reaching its conclusion and effectively converted the City’s motion into a motion for summary judgment without allowing 120 West Fayette the requisite opportunity to engage in discovery. 407 Md. at 262-65 , 964 A.2d at 666-68 . We also held that 120 West Fayette had alleged sufficient facts to establish taxpayer standing, as well as property owner standing.

Id. at 269, 273 , 964 A.2d at 671, 673 . Therefore, we reversed the Circuit Court’s judgment and remanded the case to that court for further proceedings. Id. at 274 , 964 A.2d at 674 . Upon remand to the Circuit Court, the City filed a motion for summary judgment on April 13, 2009.

On April 29, 2009, 120 West Fayette filed an opposition to the City’s motion and on June 17, 2009, filed an amended complaint effectively alleging in Count Two that the proposed plans for the “Super-block” had not been approved by the MHT and violated certain provisions of the Renewal Plan as well as the MOA. Therefore, 120 West Fayette sought declaratory relief declaring the applicability to the “Superblock” of the MOA and the Renewal Plan development standards. On July 1, 2009, the City filed a “Motion to Dismiss or for Summary Judgment as to Count Two” and a request for a hearing. On July 8, 2009, 120 West Fayette filed an interim response to the City’s motion and on July 21, 2009, filed an opposition to the motion.

Because the City’s second motion “was not yet ripe for judicial review,” the Circuit Court held no hearing on the motion and issued an order and memorandum opinion on both motions on August 14, 2009. ³²⁴ The Circuit Court considered 120 West Fayette’s contention that the City’s disposition of the “Superblock” was subject to the competitive bidding requirements of the Baltimore City Charter (“the Charter”). The court found that “the statutory language in the Baltimore City Code, Baltimore City Charter, and Maryland Constitution clearly grants plenary authority to the City to dispose of the property for development or redevelopment without any mention of the requirement for competitive bidding.” Accordingly, the court determined that the City was not required to use competitive bidding for development or redevelopment initiatives. The court then addressed whether the “Superblock” LDA was a public work project subject to competitive bidding requirements under Article IV, § 11 of the Charter. The court determined that the LDA was not a public work because it contemplated development on the developer’s private land for the developer’s private use. 7 Moreover, the court rejected ³²⁵ 120 West Fayette’s suggestion that the RFP initiated a competitive bidding process subject to the Article VI, § 11 procurement laws.

Noting that the City would not own or operate the property developed under the RFP and would have minimal ongoing control over any development, the court found that the City had not intended the RFP to initiate a competitive bidding process and, therefore, that the City was not bound by the § 11 procurement laws when considering proposals to develop the “Superblock.” Additionally, the court considered whether the City had impermissibly delegated urban renewal powers to the BDC and found that, under Baltimore City Code, Article 13, § 2-7, the City Department of Housing and Community Development (“DHCD”) has the authority to contract with the BDC for urban renewal consulting services. 8 Further, the court ³²⁷ determined that the BDC’s recommendation of a developer to the BOE was an advisory act properly vested in the BDC and that the ultimate decision-making authority had remained with the BOE. Accordingly, the court found that the City was entitled to judgment as a matter of law on the original complaint. As to Count Two of 120 West Fayette’s amended complaint, the Circuit Court found that the facts as alleged did not present a controversy ripe for judicial consideration because the City has not yet adopted plans for the “Superblock.” On September 10, 2009, 120 West Fayette timely noted an appeal to the Court of Special Appeals, and on September 11, 2009, filed with this Court a petition for writ of certiorari, seeking to bypass review by the Court of Special Appeals. On September 15, 2009, the City filed an answer and cross-petition for writ of certiorari.

On September 16, 2009, 120 West Fayette filed an “Emergency Motion for Expedited Review,” seeking expedited consideration of its petition and the City’s cross-petition. On September 28, 2009, we granted 120 West Fayette’s motion and certiorari on both petitions, 120 West Fayette St., LLLP v. Baltimore, 410 Md. 701 , 980 A.2d 482 (2009). The petition and cross-petition presented five questions for our consideration. 9 To answer these questions, however, we ³²⁸ need only address (1) whether the Circuit Court properly found that the LDA was not subject to competitive bidding requirements, (2) whether the Circuit Court properly determined that the City’s delegation of authority to the BDC was lawful and therefore that the LDA was not an ultra vires act, and (3) whether the Circuit Court correctly concluded that it could not issue a declaratory judgment that the proposed plans for the “Superblock” are subject to the MOA and the Renewal Plan development standards because the controversy was not ripe for judicial consideration. For the following reasons, we shall affirm the judgment of the Circuit Court.

II

Before considering the questions of law, we must “make the threshold determination as to whether a genuine dispute of material fact exists, and only where such dispute is ³²⁹ absent will we proceed to review determinations of law.” O’Connor v. Baltimore County, 382 Md. 102, 110 , 854 A.2d 1191, 1196 (2004) (internal quotation marks and citations omitted). A trial court may grant summary judgment “when there is no genuine dispute of material fact and a party is entitled to judgment as a matter of law.” 120 West Fayette St., 407 Md. at 264 , 964 A.2d at 668 . Whether a trial court properly applied this standard is a question of law, which we review de novo. Rhoads v. Sommer, 401 Md. 131, 148 , 931 A.2d 508, 517-18 (2007).

To determine whether any genuine dispute of material fact precludes the grant of summary judgment, we review the record in the light most favorable to the non-moving party, construing against the moving party any reasonable inferences that may be drawn from the facts. Id., 931 A.2d at 518 . 120 West Fayette argues that the Circuit Court erred by construing disputed facts in favor of the City. We agree, however, with the Circuit Court’s determination that no dispute of material fact exists. 120 West Fayette and the City agree that the BDC issued an RFP on October 27, 2003, that the City received four viable proposals in response to the RFP, and that the proposals were presented to the BDC staff, the WestSide Renaissance, and the MHT. Moreover, the parties agree that, although the initial RFP did not include the former Greyhound Terminal, the ultimate LDA included the terminal as part of the property to be conveyed.

Notably, 120 West Fayette argues that the Circuit Court erred by accepting the City’s assertion that the ultimate authority to approve the LDA was vested in the BOE. Yet, the record demonstrates that the BDC recommended that the BOE award the LDA to Lexington Square, and the BOE approved the LDA on January 10, 2007, at a public meeting. None of the facts in the record indicates that an entity other than the BOE had final approval of the LDA or that the BOE could not have refused to approve the LDA. The City does not contest 120 West Fayette’s version of the facts, but rather the legal effect of them.

Accordingly, we shall now address whether the City was entitled to judgment as a matter of law. ³³⁰ III. First, we consider whether all City urban renewal projects are subject to the competitive bidding requirements established in Article VI, § 11, regardless of whether those projects constitute public works. 120 West Fayette contends that, contrary to the Circuit Court’s finding, urban renewal projects are not exempt from the Charter’s competitive bidding requirements because the Charter does not explicitly exempt such projects from the requirements and applying the requirements is consistent with the statutory scheme. The City counters that none of the Charter or Code provisions relating to the disposition of land for development or redevelopment requires competitive bidding and that the Circuit Court correctly found that the LDA was not subject to competitive bidding requirements. In support, the City points to Article II, § 15 of the Charter, which establishes the City’s authority to engage in land development and redevelopment through property sales, and Article 13, § 2—7(f)(1), which allows the DHCD, on behalf of the City, to dispose of property for redevelopment “at public or private sale.” 10 Moreover, the City contends that the only caveats on the City’s authority to dispose of the property are that the prices and terms of the sale be “appropriate to the uses prescribed for such land or property by the applicable Renewal Plan,” and that the BOE approves the contract.

Art. 13, § 2—7(f)(2), (f)(3). The City ¿Iso points out that Article VI, § 11 is entitled “Board of Estimates-procurement” and therefore is intended to apply to City purchases of goods and services and the construction of City buildings, not the sale of land for redevelopment. ³³¹ We construe local ordinances and charters under the same canons of statutory construction as we apply to statutes. O’Connor, 382 Md. at 113 , 854 A.2d at 1198 . “The cardinal rule of statutory interpretation is to ascertain and effectuate the intent of the Legislature.” Kushell v. Dep’t of Natural Res., 385 Md. 563, 576 , 870 A.2d 186, 193 (2005) (citing Collins v. State, 383 Md. 684, 688 , 861 A.2d 727, 730 (2004)). In ascertaining legislative intent, “we assign the words their ordinary and natural meaning” and avoid adding or deleting words to impose a meaning inconsistent with the plain language of the ordinance or charter.

O’Connor, 382 Md. at 113-14 , 854 A.2d at 1198 . Moreover, “a court must read the language of the charter or ordinance in context and in relation to all of its provisions[.]” Howard Research Dev. Corp. v. Concerned Citizens for the Columbia Concept, 297 Md. 357, 364 , 466 A.2d 31, 34 (1983). Therefore, when two provisions “relate to the same subject matter, and are not inconsistent with each other, they should be construed together and harmonized where consistent with their general object and scope.” Md-Nat'l Capital Park & Planning Comm’n v. Anderson, 395 Md. 172, 183 , 909 A.2d 694, 700 (2006) (internal quotation marks and citations omitted).

Likewise, “when two statutes appear to apply to the same situation, this Court will attempt to give effect to both statutes to the extent that they are reconcilable.” Id., 909 A.2d at 700 (internal quotation marks and citations omitted). Whether Article II, § 15 and Article 13, § 2-7 must be construed in pari materia with Article VI, § 11 turns on whether these sections relate to the same subject matter or apply to the same situation and are not inconsistent with one another. 11 See id., 909 A.2d at 700 . Article II, § 15 and ³³² Article 13, § 2-7 address the City’s authority to acquire property and to sell or dispose of property. Article VI, § 11(a) provides that the BOE “shall be responsible for awarding all contracts and supervising all purchasing by the City as provided in this section and elsewhere in the Charter.” Because the acquisition or sale of property typically involves a contract of some sort, in this sense, these provisions relate to the same subject matter.

Our efforts to reconcile Article VI, § 11 with the other provisions, however, must not result in an illogical or unreasonable interpretation. When construing a statute, “we seek to avoid constructions that are illogical, unreasonable, or inconsistent with common sense.” Frost v. State, 336 Md. 125, 137 , 647 A.2d 106, 112 (1994). When contracting for public works, 12 Article VI, § 11(b) requires the City to obtain bids through a competitive bidding process, and § 11(g)(1) of that same article mandates that the BOE accept the lowest bid submitted in response to the City’s request for bids. 13 We have recognized that, gener ³³³ ally, the purpose of competitive bidding is “to prevent favoritism and collusion and thereby procure public improvements at the lowest cost to the taxpayers.” Bd. of Ed. v. Allender, 206 Md. 466, 475 , 112 A.2d 455, 459 (1955); Bennett v. Baltimore, 106 Md. 484 , 68 A. 14 (1907) (interpreting Baltimore Charter competitive bidding requirements). The language of Article VI, § 11(g)(1) that requires the BOE to accept the lowest bid or reject all bids confirms that the competitive bidding procedures established therein serve the same purpose.

Section 11(g) applies to “all bids made to the City in response to the formal advertising procedures contained in [§ 11].” Applying § 11(g) to the sale of City property, however, would require the City to accept the lowest bid for the property. This is entirely inconsistent with one of a seller’s main objectives—to obtain the highest value for the property. 14 Therefore, because applying Article VI, § 11 to property sales contracts would reach an illogical and unreasonable result, we conclude that the Circuit Court correctly determined that dispositions of City property, pursuant to Article II, § 15 and Article 13, § 2-7, are not subject to the competitive bidding requirements of Article VI, § 11. See D & Y, Inc. v. Winston, 320 Md. 534 , ³³⁴ 538, 578 A.2d 1177, 1179-80 (1990) (“It has been called a golden rule of statutory interpretation that unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result.” (internal quotation marks and citations omitted)). 15 Even though City contracts involving solely the disposition of property for redevelopment are not subject to competitive bidding requirements, we must still consider whether the LDA was a public work contract rather than a sales contract. 120 West Fayette asserts that the LDA is a public work contract because the RFP solicited proposals from a developer, not a buyer, and the LDA described a development project in terms common to public works contracts rather than terms common to property sales agreements. 120 West Fayette further argues that the LDA is a public work contract subject to competitive bidding requirements because the LDA’s purpose is to effect urban renewal, “a decidedly public function.” 120 West Fayette asserts that the public nature of the development is further evidenced by the City’s “ongoing control” of the development after the transfer of the property to Lexington Square. Moreover, 120 West Fayette argues that the LDA is a public work contract because it requires expenditure of City funds to obtain any unowned property subject to the LDA, to relocate any remaining business within the “Super-block,” and to reimburse Lexington Square for the actual cost of any environmental remediation, demolition, and streetscape improvements completed after the purchase of the property.

In response, the City argues that the LDA is not a public work contract. The City asserts that a public work contract is one in which the City is “spending public funds to acquire goods or services for the City to use” and, in this case, the City is receiving money from Lexington Square for the sale of ³³⁵ the “Superblock.” (Emphasis in original). Additionally, because the Charter does not expressly define public work, the City suggests that we refer to the definition of public work in the State’s Prevailing Wage Law. As to whether the LDA is paid for by public money, the City asserts that it is not paying for the construction or development of the “Superblock” and that the acquisition of the properties comprising the “Super-block” involves expenditures entirely separate from the LDA with Lexington Square.

Maryland case law and legislative history shed no light on the meaning of public work as it appears in Art. VI, § 11(b). Thus, our interpretation of the provision shall be governed by the “ordinary and natural meaning” of the words. O’Connor, 382 Md. at 113 , 854 A.2d at 1198 . Black’s Law Dictionary defines “public works” as “[structures (such as roads or dams) built by the government for public use and paid for by public funds.” 1639 (8th ed. 2004); see also Kramer v. Liberty Prop.

Trust, 408 Md. 1, 21 , 968 A.2d 120, 131 (2009) (referring to the dictionary to determine the ordinary meaning of a statutory term). Not only is this definition consistent with the commonly understood meaning of public work but also it is consistent with the definition of public work established by the Maryland Prevailing Wage Law, Md.Code Ann. (2009 RepLVol.) § 17-201 et seq. of the State Finance & Procurement Article, and the definitions adopted in many of our sister jurisdictions. 16 § 17—201(j) of the State Finance & Procurement Article (“ ‘[PJublic work’ means a structure or work, including a bridge, building, ditch, road, alley, water- ³³⁶ work, or sewage disposal plant, that: (i) is constructed for public use or benefit; or (ii) is paid for wholly or partly by public money.”); see also, e.g., Mo.Rev.Stat. § 290.210(7) (2000) (“ ‘Public works’ means all fixed works constructed for public use or benefit or paid for wholly or in part out of public funds.”); Pa. Stat. Ann. § 165-2(5) (“ ‘Public work’ means construction, reconstruction, demolition ... done under contract and paid for in whole or in part out of the funds or a public body[.]”); Bessemer Water Serv. v. Lake Cyrus Dev. Co., 959 So.2d 643, 650 (Ala.2006) (“The construction, repair, renovation, or maintenance of public buildings, structures, sewers, waterworks, roads ... as well as any other improvement to be constructed, repaired, renovated, or maintained on public property and to be paid, in whole or in part, with public funds[.]” (internal quotation marks, citations, and emphasis omitted)); Raley v. Cal.

Tahoe Regional Planning Agency, 68 Cal.App.3d 965 , 137 Cal.Rptr. 699, 710 (1977) (“For general purposes public works are defined as ‘fixed works (as schools, highways, docks) constructed for public use or enjoyment [especially] when financed and owned by the government.’” (internal citations omitted)); Carson-Tahoe Hosp. v. Bldg. & Constr. Trades Council of N. Nev., 122 Nev. 218 , 128 P.3d 1065, 1067 (2006) (“A public work is defined as any project for the new construction, repair, or reconstruction of ... a project financed in whole or in part from public money[.]” (internal quotation marks and citations omitted)). To determine whether a particular project constitutes a public work—a project built by the government for public use and paid for by public funds—courts perform a fact-intensive analysis that employs various factors, none of which is determinative. L. Suzio Concrete Co. v. New Haven Tobacco, Inc., 28 Conn.App. 622, 611 A.2d 921, 925 (1992) (“While the cases ... have identified various factors that are used in determining whether a particular construction project qualified as a public work ... no one factor is determinative.”); see also Vulcan Affordable Housing Corp. v. Hartnett, 151 A.D.2d 84 , 545 N.Y.S.2d 952, 953-54 (1989) (holding that a housing development project was not a public work contract because ³³⁷ the structure was not for public use, was not owned by the public, was not open to the public, and was not intended for public enjoyment).

A project’s primary purpose is often indicative of whether that project is for public use. Daniels v. City of Ft. Smith, 268 Ark. 157 , 594 S.W.2d 238, 241 (1980) (holding that an industrial facility was not for public use, in part, because it only indirectly benefitted the public); Hart v. Holtzman, 215 A.D.2d 175 , 626 N.Y.S.2d 145, 146 (N.Y.App.Div.1995) (considering whether the primary objective and function of the project is public); R.I. Bldg. & Constr. Trades Council v. R.I. Port Auth., 700 A.2d 613, 616 (R.I.1997) (weighing heavily “the nature of the use to which the ultimate project is to be put rather than the source of the funding”).

When a developer’s primary motivation to construct a project is private economic benefit, that project is not for public use even if it confers upon the public secondary, incidental benefits such as economic development, neighborhood revitalization, employment opportunities, or additional affordable housing. See Daniels, 594 S.W.2d at 241 (citing reduced unemployment and economic improvement as indirect public benefits); L. Suzio Concrete Co., 611 A.2d at 925 (describing economic development as an incidental, rather than primary benefit, of a private construction project); Town of Normal v. Hafner, 395 Ill.App.3d 589 , 335 Ill.Dec. 455 , 918 N.E.2d 1268, 1274 (2009) (noting that economic development resulting from private construction is an incidental public benefit); Hart, 626 N.Y.S.2d at 145-46 (determining that low-income housing construction was to benefit primarily private developers and to benefit secondarily the public); R.I. Bldg., 700 A.2d at 615-16 (concluding that an economic development project was not a public work project because it was primarily intended for private commercial and industrial pursuits). The LDA’s avowed purposes—to provide “quality jobs for City residents,” generate additional tax revenues, create “opportunities for minority ... and women business enterprises ... to participate in the ownership and development,” and to ³³⁸ contribute “to the City’s long term economic growth objectives,”—are unequivocally public. Nevertheless, the project at issue is not for public use.

See Erie County Indus. Dev. Agency v. Roberts, 94 A.D.2d 532 , 465 N.Y.S.2d 301, 306 (1983) (“The promotion of economic development is an incidental benefit which is distinct from the primary objective and function of this project as a private business.”); cf. Cattaraugus Cmty. Action, Inc. v. Hartnett, 166 A.D.2d 891 , 560 N.Y.S.2d 550, 551 (1990) (“The public purpose behind the financing scheme of a project should not be confused with the private purpose or function of the venture itself.”).

Even though the LDA is intended to benefit the public by revitalizing the neighborhood and stimulating the economy in and around the “Superblock,” the public benefit is indirect and subsidiary to the primary and direct benefit to Lexington Square, which is developing the “Superblock” for private financial gain. See Daniels, 594 S.W.2d at 241 (holding that an industrial facility intended to spur economic development was not for public use); L. Suzio Concrete Co., 611 A.2d at 925 (holding that the “publicly assisted construction of buildings for private use” was not for public use because economic development was secondary purpose); Hafner, 335 Ill.Dec. 455 , 918 N.E.2d at 1274 (holding that a private housing development was not for public use); 60 Mkt. St. Assocs. v. Hartnett, 153 A.D.2d 205 , 551 N.Y.S.2d 346, 348 (N.Y.App.Div.1990) (holding that the construction of a building to house the county social services department was not for public use because the primary goal was private profit); Hart, 626 N.Y.S.2d at 146 (holding that a low-income housing development was not for public use); R.I. Bldg., 700 A.2d at 616 (holding that a commercial economic development project was not for public use). Of course, the primary purpose of a project is only one factor in the public use analysis.

Whether a project is for public use also depends on whether the completed project will be government owned or operated and accessible to the general public. See Lake Cyrus Dev. Co., 959 So.2d at 650 (considering whether the project was on public property); Daniels, 594 S.W.2d at 240-41 (considering ownership of the buildings ³³⁹ and property involved in the project and accessibility to the general public); Hafner, 335 Ill.Dec. 455 , 918 N.E.2d at 1274 (concluding that the redevelopment project at issue was not a public work contract because the project consisted of building private residences rather than public fixtures, did not include a public work facility, and was not a public service provider); Carson-Tahoe Hosp., 128 P.3d at 1067-68 (holding that hospital construction was not a public work contract because the hospital was constructed on private property); Elliott v. Morgan, 214 Wis.2d 253 , 571 N.W.2d 866, 870-71 (Ct.App.1997) (holding that improvements to a city river walk did not constitute a public work project because it was not operated by the city and was not for city use). The LDA expressly provides that “the City hereby agrees to sell its fee simple interest” in the property comprising the “Superblock” to Lexington Square and that Lexington Square “agrees to purchase the Property from the City.” The City will not retain an ownership interest and will not operate any of the completed facilities.

Moreover, by transferring public property to a private entity, which may limit the general public’s access to the property, the LDA ensures that any projects completed pursuant to the LDA are not for the general public use. Cf. Cattaraugus Cmty. Action, 560 N.Y.S.2d at 551 (holding that a privately developed and owned home that limited access to only homeless young mothers was not a public work project).

The construction contemplated by the LDA, private residential and commercial properties, neither publicly owned nor open to the general public and only indirectly benefitting the public, is not a project for public use. See R.I. Bldg., 700 A.2d at 615 (“By no stretch of the imagination can the [processing] plant be considered a public building; it is not open to the general public and no governmental functions are conducted on its premises.” (internal quotation marks and citations omitted)). To determine whether a project is funded wholly or in part by the government, the most obvious consideration is whether any government funding associated with the project ³⁴⁰ directly pays project costs. See Lake Cyrus Dev.

Co., 959 So.2d at 650 (considering whether the city paid for part of the construction of a waterworks project); Hafner, 335 Ill.Dec. 455 , 918 N.E.2d at 1274 (rejecting the argument that city payment of thirty percent of a developer’s interest payment on private loans to finance a redevelopment project was tantamount to funding the project); Carson-Tahoe Hosp., 128 P.3d at 1067-68 (holding that a hospital was not publicly funded because hospital public revenue bond financing did not “obligate county funds” and no public body was party to the construction contract). On its face, the LDA does not obligate the City to fund construction within the “Superblock.” Schedule D of the LDA provides that “[t]he purchase price payable by [Lexington Square] will be $21,613,100 less the cost of demolishing and remodeling the Property.” Moreover, the LDA provides that Lexington Square owed a $100,000 deposit upon signing the LDA and an additional payment upon closing that would bring Lexington Square’s total payments to ten percent of the purchase price. Lexington Square will pay the remaining balance, up to 50 percent, of the purchase price over time as construction is completed. After construction is complete, Lexington Square must pay the remaining fifty percent of the purchase price, plus 6 percent interest, at intervals set by the LDA.

Although the City is permitting Lexington Square to pay the purchase price over time, the LDA’s terms make clear that the City is not directly funding construction. At no point will the City advance construction costs or any other development costs to Lexington Square, and, as noted, Lexington Square must pay interest on the fifty percent of the purchase price paid in installments after construction is completed. Nevertheless, 120 West Fayette contends that the City’s acquisition of any unowned property subject to the LDA and payment for relocation of any remaining business within the “Superblock” constitute project funding. In Demory Bros., we addressed whether the cost of land acquisition for a school construction project constituted construction costs as contemplated by the Prevailing Wage Law. 273 Md. at 329-330, 329 ³⁴¹ A.2d at 679.

We held that “[cjonstruction costs, in the accepted sense, are the costs of the improvements or structures located on a site, and ... acquisition is not to be considered a cost of construction of public works[.]” Id. at 330-31, 329 A.2d at 679 (internal quotation marks omitted). Although the Prevailing Wage Law and the Charter’s competitive bidding requirements serve different purposes, 17 the Demory Bros, distinction between property acquisition costs and construction costs is instructive in this case. We are not persuaded that the purpose of the competitive bidding requirements, to eliminate the risk of collusion and government overspending, is served by including the costs of property acquisition within the scope of the cost of a public work project when the development site is selected and acquired apart from any contracts to develop the site. Under these circumstances, in which the property is acquired from sources other than the developer, through contracts separate from the development contract, adding the cost of the property acquisition to the cost of the development defies common sense.

Once the transaction through which the property is acquired is complete, labeling the property acquisition costs as public work costs, and thereby subjecting the entire project to competitive bidding requirements, would not serve the public interest. ³⁴² Additionally, 120 West Fayette argues that the purchase price offsets for the cost of environmental remediation and streetscaping improvements constitute City funding for the development of the “Superbloek .” The LDA provides that the purchase price for the “Superblock” will be reduced by the amount of the actual cost incurred by Lexington Square for environmental remediation and the demolition of existing improvements, the cost of which is currently estimated to be $8,000,000. The LDA also provides that the City will offset the purchase price by the cost of any streetscape improvements Lexington Square performs. Contrary to 120 West Fayette’s assertions, providing financial incentives to private developers to encourage economic development and investment in areas in need of revitalization does not necessarily constitute publicly funding the development. See Vulcan Affordable Housing, 545 N.Y.S.2d at 954 (recognizing that “imaginative financial schemes, including giving tax exemptions to a project, [does] not transform an essentially private venture into a public one”); Erie County Indus.

Dev., 465 N.Y.S.2d at 306 (holding that a project is not publicly financed when “[t]he public involvement concerns only the creation of the economic conditions and incentives which will encourage and foster this type of private development”). As a practical matter, reducing the total purchase price of the property comprising the “Superblock” does not obligate the City to pay Lexington Square anything; instead, Lexington Square will merely pay the City an amount less than the $21, 613,100 purchase price set forth in the LDA. Moreover, though the City is conveying the property for a lower price in exchange for Lexington Square’s performance of the necessary remediation, demolition, and streetscaping, the City is not funding that work, and, in the event that the costs of remediation and demolition exceed $10,000,000, the LDA provides that Lexington Square is responsible for the excess costs. Environmental remediation is a complicated and often expensive process, the specter of which serves as a disincentive for developers considering potential development sites.

See Brian C. Walsh, Statute, Seeding the Brownfields: A ³⁴³ Proposed Statute Limiting Environmental Liability for Prospective Purchasers, 34 Harv. J. on Legis. 191 , 199 (1997) (describing the challenges of environmental remediation as involving “uncertain cleanup standards, long delays, expenses and uncertainty in recovering costs from [potentially responsible parties], and a lack of finality”). By offsetting part of the cost of remediation up to the cap, the City avoids directly paying the diffieult-to-estimate cost of remediation, limits the City’s potential liability, and offers an incentive to developers. The portion of the offset that compensates Lexington Square’s demolition costs similarly benefits the City while serving as an incentive to the developer.

Redeveloping previously developed property may cost more than developing an open lot because the existing structures and improvements do not meet the developer’s needs. The offset for demolition costs reflects the impact the cost of demolition has on the property value to the developer. Yet, the City is not contracting for the demolition and does not fund the work. As for the streetscaping, it too will be completed and paid for by Lexington Square, not the City.

The corresponding purchase price reduction reflects the time, effort, and expense the developer will incur to transform the existing streetscape to accommodate the new development. Accordingly, we agree with the City that these offsets are not costs borne by the City, but rather are incentives for a developer to purchase the property “as is.” Complex financial schemes such as this one, coupled with government oversight of a development project, arguably create ambiguity as to whether a project is publicly or privately contracted. Nonetheless, we cannot conclude that the financial incentives offered to Lexington Square convert a privately funded project into a public one. “[Wjhere ... a public agency merely sells land to a private entity to develop for its own private purpose ... the agency has not ‘contracted for’ the construction, even if the agency retains some control over the type or style of the development to ensure that the development is compatible with the agency’s objectives.” Portland Dev. Comm’n v. State, 216 Or.App. 72 , 171 P.3d 1012, 1017 (2007) (holding that Portland Development Com ³⁴⁴ mission did not contract for public work, in part, because the agency would not own or use the development).

Even though under the LDA the City retains the right to review and approve the final construction and design plans for the “Superblock,” the City is not funding the project. Lexington Square is funding the design and planning of the “Superblock” redevelopment, and Lexington Square, not the City, will own the finished product. See Daniels, 594 S.W.2d at 240 (concluding that an industrial facility was not publicly funded because financing from the city would be repaid and a private corporation would ultimately own the property); Nat’l R.R. Passenger Corp. v. Hartnett, 169 A.D.2d 127 , 572 N.Y.S.2d 386, 389 (1991) (holding that a railroad construction project was not a public work project even though the construction was partially funded by the state because “Amtrak, a private corporation, retains ownership of the lines to be installed in the project”); Elliott, 571 N.W.2d at 870 (noting “ [significant is the factor that the public will not ‘own’ the Riverwalk” even though the project was partially funded through city grant money). Moreover, unlike typical publicly funded public works projects, the “Superblock” development’s final product, whether residential or commercial, will be privately operated and maintained.

Elliott, 571 N.W.2d at 870-71 (considering whether the project in question would be privately operated and maintained). After closing, Lexington Square and any subsequent private investors in the project will own, operate, and maintain the project; in addition, they, not the City, will bear the risks of the investment. See Hart, 626 N.Y.S.2d at 146 (holding that publicly financed construction project did not constitute public work contract when private developers retain the “ownership and the construction risk”); Nat’l R.R. Passenger Corp., 572 N.Y.S.2d at 389 (weighing that Amtrak “bears the risk of future financial losses or physical destruction”). In sum, because the City is not directly funding the work on the “Superblock”; the financial offsets provided for in the LDA do not constitute payments for work on behalf of the City; and the City will not own, operate, maintain, or bear the ³⁴⁵ financial risks of the project, we hold that the City has not funded the redevelopment of the “Superblock.” Accordingly, we hold that the LDA is not a public work contract as contemplated by Art. VI, § 11 and, therefore, is not subject to the competitive bidding requirements set forth in that same section.

IV

We shall now turn to the issue of whether the RFP process through which the BDC considered and recommended the Lexington Square proposal to the BOE constituted an unlawful delegation of the City’s urban renewal powers that renders the LDA ultra vires. 120 West Fayette argues that the City unlawfully delegated urban renewal powers to the BDC. The delegation was unlawful, according to 120 West Fayette, because the BDC is not a qualified entity to exercise authority under Article II, § 15, which allows the City to seek assistance in carrying out its renewal powers from any “suitable board, commission, department, bureau or other agency.” 120 West Fayette contends, more specifically, that because the BDC does not qualify to exercise renewal authority under Article II, § 15, the BDC had no authority to consider the proposals submitted in response to the RFP outside of public meetings, to