2002 December 17

Mr. Chester J. Malesky, Assistant Director

Department of General Services

City of Pittsburgh

526 City-County Building

414 Grant Street

Pittsburgh, Pennsylvania 15219-2458

Re: Pennsylvania Right-to-Know Law Requests

Dear Mr. Malesky:

We are in receipt of your letter, dated December 6, which arrived in our post office box on December 10. Thank you for the copy of the letter, dated June 24, 2002, in which the City states that The Carnegie Science Center has been awarded the bids for preservation of the Zeiss II Planetarium Projector, 10-Inch Siderostat-type Refractor Telescope, and Mercator's Projection Map of the World.

However, your December 6 letter gives us great concerns about three things:

1) Your description of the three Memoranda of Understanding for the Zeiss II Planetarium Projector, 10-Inch Siderostat-type Telescope, and Mercator's Projection Map of the World, legally, as Lease Agreements.

2) The possibility that the City of Pittsburgh would consider leasing artifacts to an organization that clearly did not meet the specifications of the City's own Request for Proposals [RFP] document.

3) That, apparently, the City of Pittsburgh Department of General Services accepted an addendum, to the RFP Proposal issued by The Carnegie Science Center, after the City's designated RFP deadline of May 23, 2002; an addendum which we were not aware of and have not seen.

As we indicated in my earlier letter, the City RFP of April 2002, in two instances, clearly required that a Lease Agreement be executed to enable the winning bidder to implement their proposed project. To this day, we have only received three Memoranda of Understanding, with the word "lease" no-where to be found in any of the documents. We are concerned with the legal interpretation that the three Memoranda of Understanding are actually Lease Agreements, as you indicated in your December 6 letter, for the following reasons:

1) There is no mention of the word "lease" in the Memoranda of Understanding, while the Lease Agreements, between the City and the Pittsburgh Children's Museum for the Buhl Planetarium building and between the City and The Carnegie Library of Pittsburgh for the library buildings, are clearly identified as Lease Agreements.

2) Unlike the Lease Agreements for the Buhl Planetarium building and for the library buildings, the three Memoranda of Understanding do not provide for legal consideration, by both parties. Most similar Lease Contracts [such as the Lease Contracts for the Buhl Planetarium building and for the library buildings]

Mr. Chester J. Malesky 2002 December 17 Page 2 of 3

usually include the legal consideration [i.e. rent] of one dollar per year, paid by the lessee. Such a provision is not included in any of the Memoranda of Understanding.

3) Further, the three Memoranda of Understanding include no enforcement clause, to ensure that the lessee carries-through the promises made in Exhibit C of the Memoranda [i.e. Science Center's RFP Proposal]. Again, the Lease Agreements for the Buhl Planetarium building and for the library buildings include an enforcement clause.

It is our understanding that all of these documents were drawn-up and/or reviewed by the City Law Department. Considering the length of the Lease Agreements recently issued for the Buhl Planetarium and

Carnegie Library, it is clear that the City Law Department is meticulous in legal details and considers all contingencies.

As the documents regarding the Zeiss II Planetarium Projector, 10-inch Siderostat-type Refractor Telescope, and Mercator's Projection Map of the World were not called Lease Agreements, but titled Memoranda of Understanding, the intention seems to be that these documents were not intended to be Lease Agreements. These documents may serve as the basis of, and as attachments to, Lease Agreements sometime in the future. However, it seems that the intention of these Memoranda of Understanding was to formalize understandings between the City and the Science Center, perhaps anticipating Lease Agreements sometime in the future.

We are quite concerned that the City of Pittsburgh may consider leasing artifacts to an organization that clearly did not meet the specifications of the City's own RFP.

Again, we must remind you of what the City's own RFP stated, regarding funding sources:

"Funding Sources: Bidder must submit with proposal, a detailed description of funding sources available and secured, in order to accomplish the objective as set forth in this proposal by the City of Pittsburgh for the display and/or operation of each piece of equipment as specified herein. Complete and secured financing arrangements must be completed within thirty (30) days of notification of award."

Now that we have learned the date of notification of award [June 24, 2002] there is no doubt that The Carnegie Science Center did not comply with the last sentence in that paragraph, given that it is more than 30 days after notification and none of the evidence of financing was submitted within that time period. Thus, there is no legal basis whereby the City can enter into a Lease Contract with The Carnegie Science Center for "the display and/or operation" of the Zeiss II Planetarium Projector, 10-inch Siderostat-type Refractor Telescope, and Mercator's Projection Map of the World.

In your December 6 letter, you state:

"The Carnegie Science Center has a history of securing the funds necessary for the exhibit and utilization of equipment and artifacts."

On a legal basis, this sentence is completely irrelevant. The City RFP did not require that an organization solely demonstrate a "history of securing funds." The City RFP required that "Complete and secured financing arrangements must be completed within thirty (30) days of notification of award." This did not happen, and hence, a Lease Agreement between the City and The Carnegie Science Center, regarding the three artifacts in question, cannot be legally executed!

Mr. Chester J. Malesky 2002 December 17 Page 3 of 3

We would, respectfully, suggest that the City seriously reconsider any thought of converting the three Memoranda of Understanding into Lease Agreements with The Carnegie Science Center. However, should the City convert these three Memoranda of Understanding into Lease Agreements, or prepare separate Lease Agreements for the three artifacts in question, we, again, request copies of such Lease Agreements under the terms of the Pennsylvania Right-to-Know Law [Act of June 21, 1957, P.L. 390, No. 212, 60 P.S. 66.1 et seq., as amended.

1) On page 6 of The Carnegie Science Center's response to the City RFP document, which is attached to all three Memoranda of Understanding, it states, "CSC is prepared to raise funds to cover design and fabrication of display costs, but will require others [italic emphasis added] to meet the costs prior to storage." Your December 6 letter indicates that the City is not a part of these "others." Who are these "others" and what funding do they bring to the Science Center's proposed project?

2) The Award Letter sent from the City to The Carnegie Science Center [dated June 24, 2002] indicates that The Carnegie Science Center sent the City a letter on June 18, 2002, which was considered to be an addendum to their RFP response of May 23, 2002. As the June 18 letter would have reached the City after the May 23, 2002 deadline required of all RFP respondents, we are not sure how this can legally be considered an addendum to the original proposal. However, please send us a copy of this June 18, 2002 letter, so that our legal counsel can review this "addendum."

Sincerely yours,

Glenn A. Walsh

Project Director

< gawalsh@planetarium.cc >

gaw

Copy: Members of the Council of the City of Pittsburgh

Members of Friends of the Zeiss

News Media in Pittsburgh and Vicinity

Tom Murphy, Mayor, City of Pittsburgh

Dale A. Perrett, Director, City of Pittsburgh Department of General Services

Jacqueline R. Morrow, Solicitor, City of Pittsburgh

Yvonne S. Schlosberg, Assistant Solicitor, City of Pittsburgh

Representative Don Walko, Pennsylvania General Assembly

Senator Timothy F. Murphy, Pennsylvania General Assembly

Bryce McMinn, Legislative Assistant to Senator Timothy F. Murphy