LOUIS WIENER, JR., Appellant, v. THE CITY OF RENO and MAPES ENTERPRISES, INC., Respondents
Wiener v. City of Reno
Batjer and Gunderson, JJ., concur.
LOUIS WIENER, JR., Appellant, v. THE CITY OF RENO and MAPES ENTERPRISES, INC., Respondents.
LOUIS WIENER, JR., Appellant, v. THE CITY OF RENO and MAPES ENTERPRISES, INC., Respondents.
No. 6546
February 28, 1972
494 P.2d 277
[Rehearing denied March 29, 1972]
Lohse and Lohse, of Reno, and Wiener, Goldwater, Galatz & Raggio, of Las Vegas, for Appellant.
Robert L. Van Wagoner, Reno City Attorney, for Respondent City of Reno.
Cooke & Roberts, of Reno, for Respondent Mapes Enterprises, Inc.
OPINION
By the Court,
Thompson, J.:
The appellant unsuccessfully sought to enjoin the City of Reno and Mapes Enterprises, Inc., from formalizing a concession agreement for specified concessions at the Reno International Airport, and has appealed to this court for relief.
Mapes Enterprises has been the concessionaire at the airport since 1959. In 1962 the base agreement was amended to allow Mapes, during a specified period in 1970, to give the City written notice of its desire to extend the lease for another ten years upon terms mutually to be agreed upon. If agreement was not reached, the City was to request bids from other parties, granting to Mapes, however, the "right of first refusal and the right to meet the terms of such bids or offers by making the same or a higher or better offer." If Mapes made the same or a higher or better offer, the City agreed to grant the concession contract to Mapes.
Negotiations for an extension of the lease failed, and the City, faithful to its agreement, advertised for bids. The published notice to bidders explicitly advised that "the existing concessionaire has the right of first refusal and the right to meet the terms of the bid determined by the City as the best bid by making the same or a higher or better offer. Concessionaire has a reasonable time limit to meet the best offer and the City will permit the present concessionaire to 12:00 o'clock (noon) on December 21, 1970 to exercise that right. If the best offer is not met by the present concessionaire, the City Council will award a contract agreement to the party submitting the best proposal, or may reject all proposals as determined by the City Council."
Several bids were submitted to the City, and on December 14, 1970, the Council determined that the bid of Louis Wiener, Jr., was the best bid, but withheld action thereon until December 21 to allow the existing concessionaire to meet or improve upon Wiener's bid. On December 18, Mapes Enterprises submitted its proposal meeting the bid of Wiener and increasing the annual minimum guarantee to the City by approximately $1,000. On December 21 the City Council unanimously accepted the proposal of Mapes Enterprises.
1. Wiener's complaint for injunctive relief does not charge bad faith, fraud or collusion. Cf. Clark Sanitation, Inc. v. Sun Valley Disposal Co., 87 Nev. 338, 487 P.2d 337 (1971). It does not assert that the bidding process itself was unlawful, nor suggest that Wiener's bid was better than the proposal submitted by Mapes. Cf. Douglas Co. Board v. Pederson, 78 Nev. 106, 369 P.2d 669 (1962). There is not the slightest hint that the action of the City in granting the airport concessions to Mapes worked to the disadvantage of the City and the public interest. None of these claims is made.
The thrust of the complaint is that the 1962 amendment to the base agreement was invalid and unenforceable as between the parties thereto, and that such invalidity somehow nullified everything that followed. This contention rests upon the decision of City of Reno v. Silver State Flying Serv., 84 Nev. 170, 438 P.2d 257 (1968), where we held that a lease covenant granting the lessee the right of first refusal to extend the lease on the same terms offered to any other person was unenforceable as between the parties and irrelevant to the determination of damages in an action by the lessee for breach of the lease. That decision is inapposite to this case. Here, there exists no dispute between the contracting parties. Neither of them considered the 1962 amendment to the base lease to be unenforceable. Each of them honored that agreement and fully performed according to its terms and are prepared to execute a formal concession agreement in the form supplied by the City. Cf. Harmon v. Tanner Motor Tours, 79 Nev. 4, 14, 377 P.2d 622 (1963). The district court correctly found that the City of Reno v. Silver State case, supra, has no bearing upon the merits of this litigation.
2. The City need not put airport concessions out to bid. NRS ch. 496, Municipal Airports Act; Reno, Nev., Municipal Code ch. 9.04.010-9.04.020. It may enter into private agreements for such concessions "upon such terms and conditions as the governing body deems proper" [NRS 496.090(3)], and under "such terms and conditions as are most advantageous to the city," Reno, Nev., Municipal Code, supra. This is the declared public policy. Accordingly, it must follow that the City, once having decided to bid, may impose thereon "such terms and conditions as are most advantageous to the city."
Although the bid form here used admittedly gave an advantage to the existing concessionaire, Mapes Enterprises, this manner of handling it also produced an advantage to the City. The bidding process was not chilled. Eight bids were received. All bidders knew that Mapes had the right to meet or improve upon the best bid and submitted their bids notwithstanding this knowledge. The entire procedure was open and above-board. The result of the procedure was to produce a higher return for the City and also to avoid disruption of the airport operation attendant upon a change of the concessionaire. In awarding the concession contract to Mapes, the Council apparently had in mind the municipal code direction to do so on "terms most advantageous to the city." This was proper. Clark Sanitation, Inc. v. Sun Valley Disposal Co., supra.
3. Our disposition of this appeal avoids any need to decide whether Wiener has standing to question the validity of right of first refusal contractually granted to Mapes by the City, or whether he is estopped to deny the validity of that contract provision, the notice to bidders and the bidding procedures employed, by reason of having submitted his bid with full notice and knowledge thereof.
Affirmed.
Batjer and Gunderson, JJ., concur.