Wiggs v. City of Albuquerque

• Decision Date: 19 January 1952
• Docket Number: No. 5441,5441
• Citation: 242 P.2d 865,56 N.M. 214,1952 NMSC 13
• Parties: WIGGS v. CITY OF ALBUQUERQUE et al.
• Court: New Mexico Supreme Court

Page 865

242 P.2d 865

56 N.M. 214

WIGGS v. CITY OF ALBUQUERQUE et al.

No. 5441.

Supreme Court of New Mexico.

Jan. 19, 1952.

As Corrected on Denial of Rehearing April 4, 1952.

O'Sullivan & Dunleavy, Albuquerque, for appellant.

C. Vance Mauney, City Atty., Thomas G. Cornish, Asst. City Atty., Albuquerque, and Don Wilson, pro se, all of Albuquerque, for appellees.

COMPTON, Justice.

This controversy involves a proposal to construct a municipal auditorium in the City of Albuquerque.

In April, 1946, appellees submitted to the qualified electors of the city the proposition whether the municipality should issue its general obligation bonds in amount of $500,000 for the acquisition of a site for a civic auditorium, including cost of construction, equipment, etc. The proposition was duly adopted, whereupon negotiable bonds in said amount were issued.

Appellees thereafter decided that the amount raised was insufficient and submitted a second proposition to the qualified electors of the city, whether additional general obligation bonds in amount of $115,000 should be issued. The second proposition was also adopted and the city issued its bonds accordingly.

It was then found that the funds were still insufficient to construct the required auditorium. To augment the funds thus raised appellees, under the provisions of an Act of Congress of June 9, 1906, 34 Stat. 227, as amended by Public Law 695, Chapter 717, approved August 16, 1950, 64 Stat. 448, sold certain of its real estate realizing therefor the sum of $249,050. The Act contains the following limitation, as amended: '* * * Provided, however, That all the proceeds derived from such sale or sales shall be used for the construction of a public auditorium, erected either under the sole sponsorship of the city of Albuquerque or, if located upon land owned by the University of New Mexico, as a joint project with that university.'

Meanwhile, cost of construction continued to spiral. It became evident to all that the amount raised was still inadequate, even for the bare construction of the auditorium. It was at this stage, the city and the University of New Mexico undertook the proposition jointly. A contract for its construction, financing, maintenance, etc., was entered into, which reads:

'1. The University hereby lets and leases to the City, for the period of Ninety-nine (99) years, from and after this date, and for such period of extension thereafter as hereinafter mentioned, that triangular tract of land in the City of Albuquerque, where Las Lomas Road and Campus Boulevard intersect, being bounded on the North by Las Lomas Road, on the South by Campus Boulevard, and upon the East by a line, all as shown upon a map or plat thereto hereunto annexed and made a part hereof, and the rental for the full period of this lease shall be deemed to have been fully paid.

'2. The City agrees that it shall and will, at its own cost and expense, proceed with all diligence to construct and complete, upon the said land, a municipal auditorium, according to plans and specifications prepared and to be prepared by Gordon Ferguson, architect, by and with the advice and approval of John Gaw Meem and Associates, architects for the University, and said municipal auditorium shall be of a theater-type, with sloping floor, fixed seats and adequate stage, and shall be designed and built to seat as many persons as the funds of the City, applicable to the construction of said auditorium, may permit; and the said auditorium shall, when built and completed, throughout the term of this lease, be under the control and in the care and custody of the City, acting by and through an 'Auditorium Board', to be appointed by the City, in the manner hereinafter set forth.

'3. When the auditorium is constructed and completed, the University agrees that it will, at its own expense, fill and grade the site around the same to street level, and, in addition, the University shall and will, at its own cost and expense, prepare and maintain, upon its property across Campus Boulevard to the South of the auditorium, parking space for the less than One Thousand (1,000) cars, but the University shall not be expected to pay any part of the cost of an underpass, or other facilities, for reaching the auditorium entrances, all of which shall be a part of the City's expense. The City shall install at least one cross-walk, not less than one hundred feet wide, from the parking area to the auditorium, and shall furnish and operate an efficient automatic control system, and maintain the same for the protection of pedestrians, and by the through the use of such traffic control system shall regulate vehicular traffic across the cross-walk while the auditorium is in use.

'4. The City shall keep and maintain the auditorium in good order and repair, at its own cost and expense, including seats, furnishing, stage appliances, fixtures and all other accessories of the building, and shall furnish janitor and custodian service, and insurance against fire, windstorm and other casualty; Provided, however, that the University agrees, during the term of this lease, to furnish, at its expense, one full-time janitor, to serve under the direction of the Auditorium Board appointed by the City; and the University will also furnish all electricity for light and power and all gas necessary for heating and other use about the auditorium premises.

'5. The Construction, completion and the furnishing, use, operation and maintenance of the auditorium shall be under the exclusive care, jurisdiction and authority of an Auditorium Board of five persons, to be appointed by the governing body of the City, pursuant to such ordinance or law as the City may indicate, and for such terms as may be therein provided.

'6. The Auditorium Board shall have the right and authority to name and appoint a superintendent or manager to handle and manage the auditorium, and such other necessary agents, servants and employees as it shall deem proper, and to provide by all necessary rules, regulations and orders, for the use by the public, including the students and faculty of the University of New Mexico, of the auditorium and its facilities. When the auditorium is used by the University of New Mexico, or by any committee of its Regents or faculty, or for any University purpose, there shall be no charge made for its use; but where it is used for any other purpose deemed proper and suitable by the Auditorium Board, such Board may charge a reasonable fee for such use, and all funds so received shall be under the management and control of the Auditorium Board and shall be used only for its purposes; Provided, however, that since the purpose of building and operating the municipal auditorium is, in general, to afford a place where the public may gather to witness and hear educational and cultural events, including conventions and gatherings of public importance and interest, in no event shall the auditorium ever be used for any wrestling match, boxing contest, basketball game or other competitive exhibition of athletic skill or prowess. After the auditorium shall have been constructed and completed in accordance with the present plans of Gordon Ferguson, architect, as approved by John Gaw Meem and Associates, as architects for the University of New Mexico, no substantial change, alteration or additions shall be placed upon or to the auditorium building, without the consent of both parties to this contract.

'7. In consideration of the commitments of the University hereinabove set forth: to provide a site for the auditorium, a parking space, the services of a janitor, and the electricity and gas necessary to the operation of the auditorium, the University shall be entitled to at least one-fifth of the total utilization of the auditorium and its facilities within any calendar year, the dates and hours of such utilization, whether by day or by night, or both, to be scheduled on a reasonable and equitable basis by agreement between the parties; Provided, however, that the auditorium and its facilities shall be made available to the University:

'(a) At each Commencement season, including the Baccalaureate ceremony or address and Commencement exercises and ceremonies, and at such other regular convocations as shall be scheduled in the calendar of the University as published in its catalogue.

'(b) On all other occasions when, at the time the Auditorium Board receives notice from the University of its desire to use the auditorium and its facilities, no previous commitment by the Auditorium Board shall have been made for the date requested.

'8. In the event a disagreement or controversy shall arise between the Auditorium Board and the Regents of the University with respect to the use of the auditorium or any matter which is not covered herein specifically or by fair implication, then at the request of either party to this agreement, each shall appoint one arbitrator, and the two shall appoint another, who shall arbitrate the matter, and the decision of the majority of whom shall be final.

'9. The University reserves the right to use the parking space above mentioned for its own purposes at all times when it is not required for persons attending at the auditorium, but the University agrees that it will never make any charge for parking space of persons attending public functions at the auditorium. At all times when the auditorium is being used by the University or for any University purpose, the University shall provide all necessary attendants to handle the crowds and police the parking space; at all other functions, the City shall provide the same.

'10. In case the auditorium is damaged or destroyed by any cause against which insurance coverage is carried at the expense of the City, the proceeds of such coverage shall be used to repair or resore the auditorium for use under the terms of this agreement throughout the remainder of the lease period, but should the...