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R-20-059

RESOLUTION

AUTHORIZING THE SALE OF CITY REAL PROPERTY LOCATED AT 141-143
BURKE STREET (MAP 11, LOT 158) TO BURKE STREET NASHUA, LLC

CITY OF NASHUA

in the Year Two Thousand and Twenty

RESOLVED by the Board of Aldermen of the City af Nashua that the Mayor is hereby
authorized to enter into a Purchase and Sale Agreement, substantially similar to the attached, for
the sale of City real property at 141-143 Burke Street (Map 11, Lot 158). The purchase price for
the property is three million six hundred and fifty thousand dollars ($3,650,000).

FURTHER RESOLVED by the Board of Aldermen of the City of Nashua that the
Mayor, with the assistance of the Office of Corporation Counsel, is authorized to prepare and
execute all necessary documents related to the Purchase and Sale Agreement,

LEGISLATIVE YEAR 2020
RESOLUTION: R-20-059

PURPOSE: Authorizing the sale of City real property located at 141-143
Burke Street (Map 11, Lot 158) to Burke Street Nashua, LLC

ENDORSERS: Mayor Jim Donchess
COMMITTEE
ASSIGNMENT: Committee on Infrastructure
Nashua Planning Board
FISCAL NOTE: The purchase of this building and land was funded through R-

15-172. (Authorizing the acquisition of property at 141-143
Burke Street, Tax Map 11, Lot 158, for a purchase price of
$4,200,000). Proceeds from this sale must be spent within 24
months of receipt as prescribed in the bond spending and
arbitrage requirements rule.

ANALYSIS
This resolution authorizes the Mayor to enter into a Purchase and Sale Agreement with Burke
Street Nashua, LLC and sell City-owned real property located at 141-143 Burke Street. The sale
price is $3,650,000. The City acquired the property in 2015 with the intent it would be used by
the Department of Public Works (DPW) (R-15-172). At the Board of Public Works meeting of
July 30, 2019, the Board voted unanimously to transfer to the Board of Aldermen the jurisdiction
for 141-145 Burke Street, Map 11, Lot 158 (excluding new Map 11, Lot 161, 2.5 acres
subdivided from the original parcel purchased by the City which is being retained for DPW).

Charter §77 provides that the Planning Board “shall review and make recommendations to the
mayor and board of aldermen on all locations for proposed municipal building and facilities,
including educational, [and] on the purchase and sale of any land by the city.”

Approved as to form: Office of Corporation Counsel
By: /s/ Celia Is. Leonard

Date: August 5, 2020

PURCHASE AND SALE AGREEMENT

THIS PURCHASE AND SALE AGREEMENT (this Agreement”), is made as of
, 2020 (the “Effective Date”), by and between Burke Street Nashua, LLC, a
limited liability company with an address at 124 Joliette Street, Manchester,
NH 03102 (“Purchaser”) and the City of Nashua, New Hampshire municipal with an address of
229 Main Street, Nashua, NH 03060 (‘Seiler’).

l. PURCHASE AND SALE.

Seller shall seil and convey to Purchaser, and Purchaser shall purchase from Seller, in
accordance with and subject to the provisions, terms and conditions of this Agreement, the
following:

(a) Premises. That certain parcel of land known as 141 Burke Street, Nashua, NH,
together with all rights, privileges, easements and other rights appurtenant to such land, and as
more particularly described in Exhibit A attached hereto (collectively, the “Premises”);

(b) Improvements. Together with all other structures and improvements located on
the Premises, including, without limitation, all fixtures belonging to the Seller and used in
connection therewith and all construction supplies and materials on site at the Premises, if any
(the “Improvements” and together with the Premises, the “Property”);

2. PURCHASE PRICE.

The “Purchase Price” to be paid by Purchaser to Seller for the Property shall be
$3,650,000.00, payable as follows:

(a) Simultaneously with the execution of this Agreement, Purchaser shall deliver a
deposit of $25,000.00 to the City of Nashua (the “Initial Deposit”) to be applied against the
Purchase Price. The Initial Deposit is nonrefundable;

(b) Within 2 days after the expiration of the Due Diligence Period (as defined below)
an additional deposit of $100,000 to be held by Sheehan, Phinney, Bass and Green (the “Escrow
Agent”), in a non- interest bearing account and applied against the Purchase Price or otherwise
disbursed according to the terms and conditions of this Agreement (the “Second Deposit,”
together with the Initial Deposit, the “Deposit”); and

(c) The balance of the Purchase Price, shall be payable by Purchaser to Seller at
closing of title, subject to the adjustments provided for herein, by wire transfer of immediately
available funds.

3. CLOSING DATE.

The delivery of the deed and the closing of title (the “Closing” or the “Closing Date”)
shall take place at the offices of Escrow Agent, or such other place and time as the parties may
agree, no later than that date which is 30 days after the expiration of the Due Diligence Period,
but in no event no later than December 31, 2020. TIME IS OF THE ESSENCE with respect to
the Closing Date and all other dates for performance set forth in this Agreement. If the
Purchaser requests an extension of the Closing Date in order to perform its obligations, a
monthly payment of $10,000 shall be paid to the Seller which payment will be non-refundable
and will not be credited to the purchase price. Ifthe Closing Date is extended for any other
reason, no additional payment shall be required.

4, USE OF MONEY TO CLEAR TITLE.

To enable Seller to make conveyance as herein provided, Seller may, at the time of
delivery of the Deed, use the purchase money or any portion thereof to clear the title of any or all
encumbrances or interests, provided that such encumbrances shall be discharged out of the
closing funds, or, in the case of any mortgage or other security instrument held by an institutional
lender, shall be paid off pursuant to written instructions from the holders of such encumbrances
(a) setting forth the amount due as of the Closing Date with a per diem interest amount, (b)
providing wiring instructions for payment of such amount to such holder and (c) confirming that
the holder will execute and deliver discharges of such encumbrances upon receipt of the amount
due.

5. EXAMINATION OF TITLE.

The cost of examination of title shall be borne by Purchaser. During the Due Diligence
Period, Purchaser may conduct such investigations of the condition of title to the Property,
including such title searches and land title surveys as Purchaser shall elect to perform (the “Title
Examination”). Purchaser shall notify Seller in writing on or before 5:00 p.m. on the last day of
the Due Diligence Period of any Title Objections (the “Title Notice”). As used herein,
Purchaser’s “Title Objections” may include any defects, exceptions, encumbrances to Seller’s
title to the Property, and may include both monetary encumbrances and non-monetary
encumbrances. Seller shall have 10 days (the “Cure Notice Period”) after the timely receipt of a
Title Notice to give Purchaser written notice (“Cure Notice”) as to which, if any, Title
Objections Seller agrees to cure on or before the Closing Date (the “Cured Title Objections”). If
Seller does not give a Cure Notice within such period, Seller shall be deemed to have elected not
to cure any of the Title Objections, and in that event, or if Seller gives Purchaser a Cure Notice
within such period but does not agree therein to cure all Title Objections, then Purchaser may
elect to terminate this Agreement by giving Seller written notice of such election prior to the
Closing Date, If Purchaser so elects, then this Agreement shall terminate as of the date of
Purchaser’s termination notice, whereupon the Second Deposit shall be promptly returned to
Purchaser by Escrow Agent, and this Agreement shall become void and without recourse to the
parties hereto. In any event, Seller shall cause all monetary encumbrances reported in the Title
Notice to be discharged, terminated or otherwise removed from the title to pursuant to Section 4.
If Seller fails to remove or cure any such non-monetary encumbrances for which Seller is

responsible under the Cure Notice on or before the Closing, Purchaser shall have the option of
either terminating this Agreement by written notice to Seller and or proceeding to Closing
without any deduction, reduction or offset in the Purchase Price, except to pay any monetary
liens encumbering the Premises. If Purchaser terminates this Agreement as a result of Seller’s
failure to cure any matter set forth in the Cure Notice, the Second Deposit shall be promptly
returned to Purchaser.

6. TRANSFER TAXES; ADJUSTMENTS.

Pursuant to statute, Seller is exempt from New Hampshire Real Estate Transfer Tax.
Purchaser shall pay Purchaser’s portion of the New Hampshire Real Estate Transfer Tax
imposed on the transaction contemplated by this Agreement. Sewer liens or any other
governmental lien or assessment and use taxes will be apportioned in accordance with standard
conveyancing practice in New Hampshire. Should any tax, assessment or rate be undetermined
on the Closing Date, the last determined tax, assessment or rate shall be used for the purpose of
the apportionment; provided, however, at Closing the parties shall enter into an agreement to
adjust said apportionment between them upon issuance of the final tax bill for the tax period in
which the Closing occurs. All revenues and expenses, including, but not limited to, installment
payments of special assessment liens, utility charges, reimbursement of maintenance and repair
expenses and normally prorated operating expenses billed or paid as of the Closing Date shall be
prorated as of the Closing. Gas, electricity, water, sewer and other utility charges for which
Seller is responsible, if any, and such charges shall be apportioned at Closing on the basis of the
most recent meter reading occurring prior to the Closing. Any other operating expenses and other
items pertaining to the Property which are customarily prorated between a buyer and seller in the
area where the Property is located, such as costs arising from any service contracts assumed by
Purchaser, shall be apportioned in accordance with such local customs.

7. INSURANCE AND RISK OF LOSS.

All risk of loss until recordation of deed required herein, whether in whole or in part,
shall be bome by the Seller.

8. POSSESSION.

Full possession of the Property, shall be delivered on the Closing Date, the Property to be
then in the same condition as it is now, except for reasonable use and wear or as otherwise
expressly stated herein.

9. SALE “AS-IS”; REPRESENTATIONS AND WARRANTIES.

The Property shall be sold and conveyed strictly on an “as is”, “where is” and “with all
defects” basis and, except as otherwise expressly stated herein, without representation, warranty
or covenant, express, implied or statutory, of any kind whatsoever, including, without limitation,
representation, warranty or covenant as to condition (environmental or otherwise), past or
present use, investment potential, tax ramifications or consequences, income, compliance with
law, suitability for any particular purpose, all of which are hereby expressly disclaimed. Without

limiting the generality of the foregoing, Purchaser acknowledges that, except as otherwise
expressly stated herein, Seller has made no representations, warranties or covenants as to the
compliance of the Property with any federal, state, municipal or local statutes, laws, rules,
regulations or ordinances, including, without limitation, those pertaining to land use, zoning, lead
paint, urea formaldehyde, asbestos, environmental conditions, hazardous or toxic wastes or
substances, pollutants, contaminants, other environmental matters or any other matter, Purchaser
further agrees, acknowledges and represents that Purchaser is entering into this Agreement and
shall perform all of its obligations hereunder and consummate the transaction contemplated by
this Agreement solely in reliance on and as a result of Purchaser’s own investigations and efforts
(including Purchaser’s inspection of the Property and such other investigations, examinations
and inspections as Purchaser has chosen to make or has made) and the representations of Seller
herein and at Purchaser’s sole risk, cost and expense, including, without limitation, the risk that
Purchaser’s inspection of the Property and such other investigations, examinations and
inspections may not reveal any or all adverse or existing conditions, aspects or attributes of the
Property. Purchaser acknowledges that Seller has afforded Purchaser the opportunity for full and
complete investigation, examination and inspection of the Property pursuant to this Agreement.
Purchaser acknowledges that this paragraph was a negotiated part of this Agreement and serves
as an essential component of consideration for the same. It is acknowledged that Seller will
deliver to Purchaser various information and documentation relating to the Property, including
Seller’s Property Documentation (as such term is defined below), without representations and
warranties of any kind, except as set forth herein. The provisions of this Section 9 shall survive
the Closing and the delivery of the Deed or any expiration or termination of this Agreement.

(a) Notwithstanding the forgoing, Seller makes the following express representations
and warranties to Purchaser, and agrees with Purchaser that all such representations and
warranties shall be true and accurate on the date of this Agreement and on the Closing Date:

(i) Seller has the legal right, power and authority to enter into this Agreement
and to perform all of its obligations hereunder.

(il) The execution and delivery of this Agreement and the performance by
Seller of its obligations hereunder will not conflict with, or result in a
breach of, any of the terms, covenants and provisions of any agreement or
instrument to which Seller is a party or by which Seller is bound.

(iii) Seller has not received any notices of any violations of federal or state law
or municipal ordinances, orders or requirements issued by any
governmental department having authority as to use and operations, lands,
health or environmental conditions affecting the Property.

(iv) There are no actions, suits or proceedings pending or, to the best of
Seller’s knowledge, threatened against or affecting Seller or the Property,
at law or in equity or before any federal, state, municipal or governmental
department, commission, board, bureau, agency or instrumentality
(including but not limited to zoning changes, and proceedings related to

(v)

(vi)

(vii)

hazardous waste, harmful substances or the environment) regarding the
Premises.

There are no leases, licenses, occupancy or related agreements or
tenancies (written or unwritten) affecting the Property except those in the
public record.

To Seller’s knowledge, there are no taxes, charges or assessments of any
nature or description arising out of the ownership or operation of the
Property which would constitute a lien against the Property and that will
be unpaid at the Closing Date or not paid from the Seller’s closing
proceeds, except for the lien of ad valorem property taxes for the year in
which the closing occurs.

To Seller’s knowledge, Seller has provided Purchaser with all material and
relevant facts and information pertaining to the Property that Seller has in
its possession and has made no misrepresentation or errors in any
materials pertaining to the Property.

(b) Purchaser makes the following representations and warranties to Seller, and
agrees with Seller that all such representations and warranties shall be true and accurate on the
date of this Agreement and on the Closing Date:

(i)

(it)

(iii)

Purchaser has the legal right, power and authority to enter into this
Agreement and to perform all of its obligations hereunder.

The execution and delivery of this Agreement and the performance by
Purchaser of its obligations hereunder will not conflict with, or result in a
breach of, any of the terms, covenants and provisions of any agreement or
instrument to which Purchaser is a party or by which Purchaser is bound.

No consent, approval, waiver, authorization or novation is required to be
obtained by Purchaser from, and no notice or filing is required to be given
by, Purchaser to, any governmental entity or other person or entity in
connection with the consummation of the transactions contemplated
hereby or the execution, delivery and performance by Purchaser of this
Agreement and each of the documents to be executed by Purchaser
pursuant to this Agreement.

(c) The representations and warranties set forth in this Article 9 shall survive the
Closing and shall not be merged with the execution and delivery of the Deed and other closing

documents hereunder.

10. DEFAULT.

(a) Default by Purchaser: If Purchaser shall fail to timely close on the Closing Date
due to a breach of any material term of this Agreement, then Seller, as its sole and exclusive
remedy for Purchaser’s default, shall be entitled to obtain from the Escrow Agent and retain the
Deposit as reasonable liquidated damages.

(b) Default by Seller: If Seller shall materially default in the performance of Seller’s
obligations under this Agreement, Purchaser shall have the option of terminating this Agreement
and requiring the Escrow Agent to return the Second Deposit to Purchaser, and pursuing an
action for specific performance. In the event Purchaser elects to pursue an action for specific
performance for a breach of this Agreement by Seller, Purchaser shall be entitled to collect as
damages for such breach the reasonable cost of such action for specific performance if Purchaser
obtains an injunction ordering specific performance of this Agreement from a court of competent
jurisdiction.

11. BROKERS.

Each party represents to the other that no broker or agent has brought about this sale on its
behalf. Each party hereby indemnifies and holds harmless the other party from any demand, action,
claim or suit by any person claiming a fee or commission through Seller or Purchaser as a result of
this sale. The indemnification provisions of this Section 11 shall survive the Closing.

12. ACCESS.

During the Due Diligence Period, Purchaser shall have the right to enter onto the
Property with prior approval of Seller (for inspection, testing, survey, engineering, and
permitting); provided, however, Purchaser shall not perform any invasive testing without having
obtained Seller’s prior written approval. Seller shall reasonably cooperate with Purchaser’s due
diligence efforts, provided that such cooperation shall not cause Seller to incur any expenditure
(unless Purchaser reimburses Seller in advance for any such expenses). Purchaser understands
and agrees that any on-site inspections of the Property shall be conducted during normal business
hours unless otherwise approved by Seller and, at Seller’s option, in the presence of Seller or its
representative. Prior to Purchaser or any such other party entering the Property in the exercise of
the access rights hereunder, Purchaser shall have procured comprehensive public liability
insurance in an amount of not less than $1,000,000.00 per occurrence. Purchaser agrees to
defend, indemnify against, and hold Seller harmless from any actions, causes of action, losses,
claim, liabilities, costs, expenses (including reasonable attorneys’ fees actually incurred),
damages or injuries arising out of or resulting from the inspection of the Property by Purchaser
or its agents or representatives. Notwithstanding anything to the contrary in this Agreement, such
obligation to defend, indemnify, and hold harmless Seller and the other obligations of Purchaser
under this paragraph shall survive any termination of this Agreement or the Closing.

13. DUE DILIGENCE.

During the period that begins on the Effective Date and ends on the later of 45 days
thereafter or November 12, 2020 (the ‘Due Diligence Period”), Purchaser may perform, at
Purchaser’s sole cost and expense, an evaluation of the Property including:

(a) An appraisal and site assessment, investigations, inspections, and review of use,
zoning, permitting, engineering, wetlands, ledge, access and other construction issues;

(b) Whatever non-invasive environmental inspection of the Property that Purchaser
may desire, in its sole discretion and at Purchaser’s sole cost and expense, including a Phase |
environmental site assessment; and

(c) Any other items that Purchaser considers necessary and appropriate to evaluate
the Premises and the suitability of the Premises for use by Purchaser.

14. CLOSING.

(a) Seller’s Closing Deliveries. On the Closing Date, Seller shall deliver or cause to
be delivered each of the following items to Purchaser:

(i) Duly executed and acknowledged quit claim deed in the statutory form
(the “Deed”) conveying the Property to Purchaser;

(ii) ~—s- Certificate of non-foreign status from Seller;

Gil) Customary affidavits sufficient for the title company issuing a title
insurance policy to Purchaser (the “Title Company”) to confirm the
absence of (i) parties in possession under unrecorded leases or similar
agreements, and (ii) mechanic’s or materialmen’s liens affecting the
Premises;

(iv) Evidence reasonably satisfactory to Purchaser and the Title Company of
Seller’s authority to convey the Property pursuant to this Agreement in
form and substance reasonably satisfactory to Purchaser and the Title
Company;

(v) | Acounterpart executed original of the closing statement setting forth the
Purchase Price, the closing adjustments and the application of the
Purchase Price as adjusted (the “Closing Statement’);

(vi) All books, records, plans, specifications, contracts, agreements and other
instruments or documents to the extent reasonably requested by Purchaser
and in the possession of Seller related to the operation and maintenance of
the Property;

(vil) Keys to all locks on the Property in Seller’s possession or control, if any;

(viii) Such other instruments as Purchaser may reasonably request to effectuate
the transaction contemplated by this Agreement without additional liability
or expense to Seller.

(b) Purchaser’s Closing Deliveries. On the Closing Date, Purchaser shall deliver or
cause to be delivered each of the following to Seller:

(i) A counterpart executed original of the Closing Statement;

(ii) The balance of the Purchase Price, payable in accordance with Section 2
hereof;

(iii) Acertificate updating Purchaser’s representations and warranties under
Section 10; provided any updates set forth therein which either are
permitted or contemplated by this Agreement and are not materially
adverse to Seller are herein collectively called “Purchaser Permitted
Changes”:

(iv) Such other instruments as Seller may reasonably request to effectuate the
transaction contemplated by this Agreement without additional liability or
expense to Purchaser.

15. NOTICES.

Any notice required under this Agreement shall be sufficient only if in writing and
delivered (a) by certified mail postage prepaid, (b) by nationally-recognized overnight express
mail service, or (c) by e-mail, to a party at its address set forth below:

if to Seller:

cummmiungst@nashuanh.gov
and
leonardc@nashunh.gov

If to Purchaser:

John R. Allard
john(@allardventures.com
and
jdibrigida@sheehan.com