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LEGISLATIVE YEAR 2021
RESOLUTION: R-21-134
PURPOSE: Relative to the supplemental appropriation of $30,000 of

FY2021 unanticipated revenue into Department #160 “Public
Works Administration & Engineering”

SPONSOR(S): Mayor Jim Donchess
COMMITTEE
ASSIGNMENT: Budget Review Committee
FISCAL NOTE: This resolution will reduce FY2021 year-end General Fund
surplus.
ANALYSIS

This resolution appropriates $30,000 of FY2021 unanticipated revenue into the Public Works
Administration & Engineering operating budget. The unanticipated revenue was realized by the
Purchase and Sales agreement of 141 Burke Street, Nashua, between the City (‘‘Seller) and
Burke Street Nashua, LLC (“Buyer”). Whereas, the agreement states if the Buyer requests an
extension of a December 30, 2020 closing date, a monthly non-refundable payment of $10,000
shall be paid to the City. Funds will be used to contract engineering services for review of
development plans.

Charter Sec. 53 permits specific non-budget, supplementary appropriations. There should be
notice and a public hearing. A two-thirds vote is required under Charter Sec. 56-b for an item or
amount not in the mayor’s budget. A roll call is required under Charter Sec. 49.

Approved as to account Financial Services Division
structure, numbers, _
and amount: By: /s/ John Griffin

Approved as to form: Office of ae a
By: Co

Date: “4 fi —_ \

R-21-135

RESOLUTION

AUTHORIZING A FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
FOR REAL PROPERTY LOCATED AT 141-143 BURKE STREET (MAP 11, LOT 158)

CITY OF NASHUA

In the Year Two Thousand and Twenty-One

WHEREAS, Amended Resolution R-20-059, Authorizing the sale of City real property
located at 141-143 Burke Street Tax Map 11, Lot 158 (’Property”), was passed by the Nashua
Board of Aldermen on September 22, 2020;

WHEREAS, the Purchase and Sale agreement was executed November 6, 2020 for the
Property (“Purchase and Sale”);

WHEREAS, the Purchaser requested the City grant an easement over City real property
known as Tax Map 11, Lot 161 (“City Lot”) that allows for trucks to maneuver in and out of the
back loading dock area on the Property;

WHEREAS, the City is amendable to granting Purchaser such an access easement,
subject to the terms set forth herein; and

WHEREAS, Section 17 of the Purchase and Sale allows for written amendments.

NOW, THEREFORE, BE IT RESOLVED by the Board of Aldermen of the City of
Nashua that the Mayor is hereby authorized to amend the Purchase and Sale Agreement by
entering into a First Amendment to Purchase & Sale Agreement substantially similar to the
attached.

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 First Amendment to Purchase & Sale Agreement.

FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
ACCESS EASEMENTS

This FIRST AMENDMENT is made as of __, 2021 by and between
Burke Street Nashua, LLC a New Hampshire limited liability company with an address of 124 Joliette
Street, Manchester, New Hampshire 03105 and the City of Nashua, a New Hampshire municipality with
an address of 229 Main Street, New Hampshire 03060.

WHEREAS, Amended Resolution R-20-059, Authorizing the sale of City real property located at
141-143 Burke Street Tax Map 11, Lot 158 (’Property”), was passed by the Nashua Board of Aldermen
on September 22, 2020;

WHEREAS, the Purchase and Sale agreement was executed November 6, 2020 for the Property
(“Purchase and Sale”);

WHEREAS, the Purchaser requested the City grant an easement over City real property known as
Tax Map 11, Lot 161 (“City Lot”) that allows for trucks to maneuver in and out of the back loading dock
area on the Property;

WHEREAS, the City is amendable to granting Purchaser such an access easement, subject to the
terms set forth herein; and

WHEREAS, Section 17 of the Purchase and Sale allows for written amendments.

NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree
as follows:

1. Section ? of the Purchase and Sale is amended to add a new section as follows:

(d) (i) as additional consideration, Purchaser and Seller agree to grant access
easements to the other substantially similar to the attached Exhibit B for
access easements shown on the plan attached as Exhibit C hereto, as access
easements “G”, “F”, and “E”, which easements shall be recorded at Closing at
Purchaser’s expense.

(ii) Purchaser, at its sole expense, shall demolish the existing | story building
on the City Lot and remove all resulting debris.

(iii) Purchaser shall perform all required permitting and construct at least 50
parking spaces on the City Lot and an adjacent parcel of land owned by the
City commonly known as 2? Sawmill Road and now identified as Map 5, Lot
26 on the City of Nashua in the area shown as “Location of Future 50 Space
Parking Lot” on the plan attached hereto as Exhibit C. The City must approve
plans for the parking. The City will cooperate in any permit filings and shall
grant a temporary construction license in the form attached hereto as Exhibit
D in favor Purchaser to construct such parking spaces.

(iv) all work to be performed by Purchaser in this subsection (d) shall comply
with all applicable laws and regulations, be done in a workmanlike manner
and be completed no later than the earlier of (i) five (5) years from the Closing

Date and (11) the completion of construction of the City’s expansion of the
sewer facility on the City Lot.

(v) the provisions of this subsection (d) shall survive Closing.

2. Exhibits B, C, and D attached hereto are incorporated by reference and made a part hereof.

3. All other terms and conditions of the Purchase and Sale remain unchanged unless previously
amended.

EXECUTED by the parties, by their duly authorized undersigned representatives, as of the date first
written above.

Burke Street Nashua, LLC

Name:
Title:

CITY OF NASHUA
Pursuant to Board of Alderman Resolution dated

Name: James W. Donchess
Title: Mayor

Exhibit B
Form of Reciprocal Easement Agreement

[to be attached]

RECIPROCAL EASEMENT AGREEMENT

This RECIPROCAL EASEMENT AGREEMENT (this “Agreement”) is entered into as of
the _ day of April, 2021 (the “Effective Date”), by and among City of Nashua (hereinafter
"City"), a municipal corporation with a principal place of business of 229 Main Street, Nashua,
New Hampshire 03060 (the “City”), and 141 Burke Subsidiary LLC, a New Hampshire limited
liability company, having an address 124 Joliette Street, Manchester, New Hampshire 03105 (the
“141 Property Owner’).

BACKGROUND

A. The City is the owner of that certain improved parcel of land located in Nashua,
New Hampshire, and commonly known as 143 Burke Street, and now identified on the City of
Nashua tax maps as Map 11-161, as more particularly described on EXHIBIT A-1 attached hereto
and made a part hereof (the “City Land” and together with any improvements now or hereafter
located thereon, the “City Property”).

B. 141 Property Owner is the owner of that certain improved parcel of land located in
Nashua, New Hampshire, and commonly known as 141 Burke Street, and now identified on the
City of Nashua tax maps as Map 11-158, as more particularly described on EXHIBIT A-2 attached
hereto and made a part hereof (the “147 Land” and together with any improvements now or
hereafter located thereon, the “747 Property”, and together with the City Property, the “ZLand’).

On The City and the 141 Property Owner intend hereby to grant certain easements for
vehicular and pedestrian access and egress, and construction of certain site improvements for the
mutual benefit of the City Property and the 141 Property subject to the terms and conditions set
for the herein.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants contained herein and for
good and valuable consideration paid, the receipt and sufficiency of which are hereby

acknowledged, the parties hereto hereby establish the following easement rights and agreements
affecting the Land:

Section 1. Grant of Easement to 141 Property Owner. The City hereby grants the
following easement on the City Land to 141 Property Owner:

a) 141 Access Easement. The City hereby grants to 141 Property Owner a permanent,
perpetual, irrevocable non-exclusive easement for purposes of pedestrian and vehicular ingress
and egress and right of passage, in the area described as “Proposed Access Easement ‘F’” on that
certain easement plan entitled “Exhibit Plan of Tax Map 11, Lot 158 and Lot 161, 141 & 143
Burke Street, Nashua, NH dated April _, 2021 prepared by Hayner/Swanson, Inc., and recorded
in the Hillsborough County Registry of Deeds as Plan # (the “Easement Plan”) and
as is more particularly described on EXHIBIT B-1 (the “147 Access Easement Area”) attached
hereto and made a part hereof for the benefit and use of the 141 Land, together with rights of
access and egress with motor vehicles, equipment or otherwise to construct, pave, maintain and
relocate the surface, landscaping and other materials located within said 141 Access Easement
Area (the “141 Access Easement’).

b) Scope of 141 Access Easement. The 141 Access Easement is authorized: (i) on a
twenty-four (24) hours a day seven (7) days a week basis.

c) Demolition of Existing Structures. The 141 Access Easement expressly includes
the right to demolish the improvements and relocate utility lines existing within the 141 Access
Easement Area and the City hereby authorizes any such demolition and relocation, subject to the
prior approval, if necessary or advisable, of the impacted utility.

d) Indemnification. 141 Property Owner agrees to indemnify and hold harmless the
City of Nashua for any and all property damage, bodily injury or personal injury which arises as a
result of its use of the 141 Access Easement. This obligation survives termination or revocation
of this Agreement.

e) Insurance. At all times during the use and exercise of this Agreement, 141 Property
Owner agrees to maintain comprehensive general liability insurance covering its operation under
this Agreement in a commercially reasonable amount as determined by the City Manager of the
City. Such insurance shall name the City as an additional insured and a certificate evidencing the
same shall be delivered to the City upon five (5) days’ prior written notice to the 141 Property
Owner.

f) Use of 141 Access Area. The 141 Property Owner shall take such commercially
reasonably measures as may be necessary to maintain pedestrian and vehicular safety during its
use of the 141 Access Easement Area.

Section 2. Grant of Easement to City. The 141 Property Owner hereby grants the
following easement on the 141 Land to the City:

a) City Access Easement. The 141 Property Owner hereby grants to the City a
permanent, perpetual, irrevocable non-exclusive easement for purposes of pedestrian
and vehicular ingress and egress and right of passage, in the areas described as
“Proposed Access Easement ‘E’” and “Proposed Access Easement ‘G’” on the
Easement Plan and as is more particularly described on EXHIBIT B-2 (the “City
Access Easement Area’) for the benefit and use of the City Land (the “City Access
Easement’).

b) Scope of City Access Easement. The City Access Easement is authorized: (i) on a
twenty-four (24) hours a day seven (7) days a week basis, unless the 141 Property
Owner requires the use of the City Access Easement on a temporary basis to construct,
maintain and relocate the surface, landscaping and other materials located within said
City Access Easement Area, in which case the 141 Property Owner will provide the
City with three (3) days written notice of any such activities.

c) Indemnification. The City agrees to indemnify and hold harmless the 141 Property
Owner for any and all property damage, bodily injury or personal injury which arises
as a result of its use of the City Access Easement. This obligation survives termination
or revocation of this Agreement.

d) Insurance. At all times during the use and exercise of this Agreement, the City agrees
to maintain comprehensive general liability insurance covering its operation under this
Agreement in a commercially reasonable amount. Such insurance shall name the 141
Property Owner as an additional insured and a certificate evidencing the same shall be
delivered to the 141 Property Owner upon five (5) days’ prior written notice to the City.

Section 3. Limited Liability. Except as herein otherwise expressly provided, each party
hereto shall be liable only for any breach of its obligations hereunder occurring during such party's
period of ownership of its respective Land and such liability shall extend only to the interest in the
Land, as the case may be.

Section 4. No Merger. The rights and easements hereby created shall not merge into the title
of any benefited land notwithstanding common ownership of any parcels, or any part thereof.

Section 5. Bind and Inure. The rights and obligations established herein inure to the benefit
of and are binding upon the parties hereto, and their respective successors and assigns from time
to time of all or any portion of the Land and shall run with the Land, and shall be recorded in the
Hillsborough County Registry of Deeds. The benefits and burdens of the 141 Access Easement
and the City Access Easement and rights and responsibilities granted under this Agreement
shall extend to the employees, agents, guests, lessees, and invitees of the City and the 141 Property
Owner.

Section 6. Severability. If any provision of this Agreement shall to any extent be invalid or
unenforceable, the remainder of this Agreement (or the application of such provision to persons or
circumstances other than those in respect of which it is invalid or unenforceable) shall not be

tad

affected, and each provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.

Section 7. Dedication. Nothing herein contained shall be deemed to be a gift or dedication of
any part of the real estate affected hereby to the public or for any public purpose whatsoever, it
being the intention of the parties that this Agreement shall be strictly limited to and for the purpose
herein expressed.

Section 8. Termination; Amendments. This Agreement may not be terminated, released,
relocated, modified or amended in whole or in part except by written instrument executed by the
parties hereto and of each and every mortgagee and mortgage holder under any mortgage covering
all or any part of the Land. This Agreement contains the entire agreement of the parties with
respect to its subject matter.

Section 9. Governing Law. This Agreement shall be construed and governed in accordance
with the laws of the State of New Hampshire.

Section 10. Counterparts. This Agreement may be executed in one or more counterparts, all
of which, when taken together, constitute one and the same instrument.

Section 11. |. No Waiver. No waiver of any condition or agreement in this Agreement by any
party shall imply or constitute a further waiver by such party of the same or any other condition or
agreement, and any such waiver must be in writing to be effective.

Section 12. | Maintenance and Snow Removal. 141 Property Owner shall be responsible for the
repair, replacement and maintenance of and the snow and ice removal from the 141 Access
Easement and City Access Easement. The City may, but is not required to, remove winter snow
and ice from said easements in order to maintain the City’s access to City facilities. The City
may, but is not required to, preform repairs, maintenance or replace improvements or
landscaping in said easements and shall be reimbursed by 141 Property Owner for any and all
such costs.

Section 13. Notice and Approval. Each party shall provide prior written notice of any work,
including plans, to the other and, subject to section 14 below, receive approval from the other
party prior to commencing any work allowed by this Agreement and the work shall be done at a
mutually agreeable time. Approval shall not be unreasonably withheld by either party. Routine
maintenance and snow and ice removal! are exempt from this provision.

Section 14. Relocation. Each party reserves the right to relocate, in its sole discretion, the
easements on its land at its sole expense and with prior written notice of such relocation to, and
the reasonable approval of, the other party. The City acknowledges and agrees that it will not be
unreasonable for the 141 Property Owner to object to a relocation of the 141 Access Easement if
such relocation would unreasonably interfere the ability of a tractor trailer truck to access the
rear of the “Existing 1 Story Warehouse Building” as shown on the Easement Plan in the area
facing the 141 Access Easement Area.