CDucH WHITE

COUNSELORS AND ATTORNEYS AT LAW

540 Broadway PC. Box 22222 Albany, New York 12201-2222

James J B iere Partner email: jbarriere@couchwhite.com

(518) 426-4600

March 26, 2014

VIA E-MAIL and U.S. MAIL Hon. Rodney Wiltshire, Jr. President Troy City Counsel Troy City Nail 433 River Street Troy, New York 12180 Re: City of Troy Proposed Ordinance #7 Sale ofScolite Site to R.J. Valente Companies Monroe Street Ventures, LLC

Dear Mr. Wiltshire: We represent Adams Street Properties, LLC, Troy Products Company, Inc. and CD Perry & Sons. Inc. (collectively referred to herein as the Perry Companies). We are co-counsel with William Doyle of the firm Fowler, Doyle, Spain, Spiess & Florsch, PLLC. We have reviewed the terms and conditions of the Citys proposed sale with license (as set forth in Proposed Ordinance #7) of the Scolite Site to Monroe Street Ventures, LLC. We have serious concerns with the circumstances surrounding this transaction and we believe that the adoption of Ordinance #7 will violate several State laws and City of Troy Charter provisions. For the reasons set forth below, we strongly urge the City Council to reject Ordinance #7 and advertise a new Request for Proposal that accurately and completely reflects the true scope of the Citys plan for the redevelopment of the Scolite Property. In our view, the basic defect of Ordinance #7 is that it proposes to transfer City assets without complying with welt-settled public bidding requirements. We believe that an objective review or the transaction would lead one to conclude that the Citys Request for Proposal described a very different project scope from what the City proposes to move forward with now. To us, it looks like a classic bait and switch where the original bidders, including our client, were asked to consider a proposal scope that has now been substantially enhanced for the benefit of one bidder. We do not need to explore the reason why this occurred at this tim&, but it is clear that it

Unless Article 43 of the City Charter is implicated.

Offices in: Albany. New York City and Saratoga Springs, New York; Washington, D.C. and Fannington, Connecticut

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did occur. The only proper cure for this defect is to rebid the project in compliance with long standing public bidding requirements. The manner in which the original terms of the proposal have been modified to benefit the winning bidder include, but may not be limited to, (1) the acquisition of additional property via eminent domain and construction of a new access road at a tremendous cost to the City for the benefit of the bidder to traverse adjoining lands not currently owned by either the bidder or the City; (2) allowing the winning bidder to make a mere 10% down payment, rather than the purchase price delineated in its proposal, to begin its use and occupancy of the property (a benefit that we assure you any commercial developer would greatly enjoy and covet); and (3) a license for the bidder to begin work on the site with the apparent ability to abandon the site at any time before it obtains title. These post-award concessions represent material and improper changes to the basic terms of the RFP. They violate public policy and destroy the fairness of the bidding process. The City is no doubt aware of the requirement that a procuring agency should be guided by the underlying policy of treating all bidders alike so as to avoid the possibility of fraud, corruption or favoritism. Enibee Corp. v Ringler, 194 Misc.2d 400, 410 (Sup. Ct. Albany County 2002). Ordinance #7s post-bid modifications of material RFP specifications is improper and unlawful. Moreover, because the substance of the award conveyed by Ordinance #7 materially differs from that which was advertised, numerous State and local substantive and procedural laws and regulations will be violated by its passage. At a minimum, the public was not given appropriate or adequate notice of the actual material terms of the Citys proposal and was thereby precluded from offering any meaningful input. Laws and ordinances adopted in violation of notice and other procedural requirements will be deemed void and of no force or effect. Rather than any further consideration of Ordinance #7, the Citys time and taxpayer dollars would be better spent starting with a fair and fully disclosed RFP package, let in accordance with public bidding requirements. A fair process could save the City a great deal in costs, and will spare the City the time and expense of responding to legal challenges that its current course will surely engender. To be clear, if the City proceeds with adoption of Ordinance #7, it is all but certain to face legal challenges. Again, the Citys time and taxpayer dollars would be better spent rebidding this project rather than attempting to defend an inherently and ftindamentally flawed process.

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We respectfully request that you make this letter part of the record of proceedings of the Citys consideration of Ordinance #7. If you have any questions please do not hesitate to have your counsel contact my partner Adam Schultz or me. Very truly yours, CO

Barriere

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