Search

CPCNH JPA — Articles of Agreement (p. 14)

Incorporated as a NH nonprofit corporation per Secretary of State format

SECOND: The purpose of CPCNH is:

* to promote the common good and general welfare by supporting the economic vitality and
prosperity of local communities by enabling municipalities and counties to support and
jointly exercise authorities granted to them pursuant to NH RSA 33-B, NH RSA 53-E, NH

RSA 53-F, and NH RSA 374-D (including by reference NH RSA 33), all in accordance with
NH RSA 53-A;

* to assist member municipalities and counties in complying with the provisions of NH RSA 53-E
in developing and implementing Electric Aggregation Plans and Programs known as
Community Power Agegregations (“CPAs”);

* to provide supportive services and technical assistance to community power aggregations
serving member towns, cities, counties, unincorporated places, and village districts;

¢ and to support and promote public education and civic engagement by the residents and
businesses of member communities in developing and implementing energy and climate

policies and actions and the role of CPAs in advancing such policies and actions for the
common good.

13

CPCNH JPA — Articles of Agreement (pp. 15-17)

POWERS: (similar to other joint power agencies & governmental instrumentalities)

7.13 Incur debts, liabilities, and obligations, provided that all debts, liabilities
and obligations shall be non-recourse to any and all of the Members unless expressly
agreed to by such Members through a Member's Cost Sharing Agreement or Project
Contract as those terms are defined in the JPA;

7.14 Issue revenue bonds, and incur other forms of indebtedness including but
not limited to loans from private lending sources, pursuant to NH RSA 33-B, RSA 53-E,
RSA 53-F, and RSA 374-D, provided that any such bond or debt issuance is approved
by participating Members’ governing and legislative bodies as required by statute; . . .

7.21 Defend, hold harmless, and indemnify, to the fullest extent permitted by
law, each Member from any liability, claims, suits, or other actions.

14

CPCNH JPA — Articles of Agreement (p. 17)

Limitation of Personal Liability
EIGHTH:. . . There shall be no personal liability of a director, an officer, or
both, to the corporation for monetary damages for breach of fiduciary duty as a

director, an officer, or both, except with respect to:

1. Any breach of the director's or officer's duty of loyalty to the
corporation. [fiduciary & good faith governance duties]

2. Acts or omissions which are not in good faith or which involve
intentional misconduct or a knowing violation of law.

3. Any transaction from which the director, officer, or both, derived
an improper personal benefit.

15

CPCNH JPA — Initial By-Laws (pp. 19-29)

Art. 2 - Purpose & Powers repeat
Art. 3 - Membership:

3.5 Manner of Becoming a Member

pp. 19-21
p. 22

3.6 Designation of Member Representatives; Voting
- ONE VOTE PER MEMBER AS REQUIRED BY LAW

3.7-8 Withdrawal/Termination of Membership

Art. 4 - Membership Meetings pp. 22-23
4.6 All CPNH meetings to comply with RSA 91-A

Art. 5 - Board of Directors pp. 23-26

5.3 Composition: 5-21 w/1 Director per Member
until more than 21 members then:

- Annual elections of 11-21 Directors by Membership
- Staggered 3-year terms; no term limits

5.15 Board positions voluntary; compensation by
Member not precluded (e.g. could be an employee)

5.16 Director may not serve as CEO — 6 mo. stay-out

Art. 6 — Committees — Limitations p. 27

Art. 7 — Officers pp. 27-28
Elected annually by Board, 1 yr. term, 3 yr. term limit
- Chair, Immediate Past Chair, V. Chair, Sec. & Treas.
7.8 — Removal by 2/3 of Board if in interest of CPNH

Art. 8 — Chief Executive Officer p. 29
- Working title to be determined
- Serves at pleasure of Board
- Prior to hiring CEO Board may retain consultants,
interim staff, and/or an acting manager

Art. 9— Amendments to By-Laws p. 29

- Require 2/3 vote of Members @ membership mtg.
- Minimum 14 days advance notice.

- Amendments to this Article IX; Art. Xl — Dissolution,
Liquidation, and Distribution; and Art. XIll -
Indemnification & Insurance require approval of all

Member governing bodies.
16

CPCNH JPA — Initial By-Laws (pp. 30-32)

Art. 10 - Financial Report & Audits p. 30

- Annual independent financial report by CPA
required — provide to each Director & Member

Art. 11 — Dissolution & Liquidation p. 30
- Require unanimous consent of all Members
- Responsible winding-up required
- All remaining proceeds & assets to Members

Art. 12 — Conflict of Interest pp. 30-31
12.1 Duty to Disclose & Voting Requirements
12.2 Compliance with pecuniary benefit transactions
Statutes in NH law.

Art. 13 — Indemnification & Insurance p.31

- Broad Indemnification; exceptions consistent with
Articles of Agreement (e.g., breach of duty, bad faith,
intentional misconduct, improper personal benefit

13.2 Insurance required

¢ By-Laws crafted for compliance with NH law

regarding charitable trusts if deemed a
charitable entity by NH Attorney General.

Rather than charity status under IRS Code

§ 501(c)3, CPCNH is structured to qualify for
tax exemption under § 501(c)4 as a “social
welfare” organization that is created to carry
out governmental and utility type functions as
an affiliate of governmental entities that is
controlled exclusively by them and and is
accountable to them.

CPCNH expected to seek a private ruling letter
from IRS that it is exempt from taxation per IRS
Code §115 as a governmental instrumentality.

As such the By-Laws are drafted to require full

compliance with RSA 91-A. -

R-21-134

RESOLUTION

RELATIVE TO THE SUPPLEMENTAL APPROPRIATION OF $30,000 OF
UNANTICIPATED REVENUE INTO DEPARTMENT #160 “PUBLIC WORKS
ADMINISTRATION & ENGINEERING”

In the Year Two Thousand and Twenty-One

RESOLVED by the Board of Aldermen of the Citv of Nashua to appropriate $30,000 of
FY2021 unanticipated revenue from Department #160 “Public Works Administration &
Engineering”, Account #45999 “Miscellaneous Revenue” into Department #160 “Public Works
Administration & Engineering, Account #53107 “Architect and Engineering Services”.

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.