Witness Signature Name
Accepted for City Arts Nashua, (The “Fiscal Agent”):
Authorized Signer Name Title
Witness Signature Name
| THE CITY OF NASHUA “the Gate City’
Economic Development
To: James Donchess, Mayor
From: T. Cummings, Economic Development Director
Ce: Steve Bolton, Corporation Counsel
Date: April 3, 2019
Re: Contract for Legal Counsel Services for NMTC
The Office of Economic Development in partnership with the City’s Office of Corporation Counsel
solicited proposals for New Market Tax Credit (““NMTC”) legal services. Specifically, the services sought
are to assist with the development of the deal structure, provide a legal opinion on the NMTC transaction
and provide legal guidance as necessary to bring the NMTC transaction to a closure.
I along with Steve Bolton solicited proposals who have past experience closing NMTC transactions. Three
firms responded and after Steve and I reviewed the proposals and evaluated each proposal based on the
following criteria: qualifications and experience, past performance and service on similar projects,
proposed approach to scope of work, responses in interviews and cost.
Drummond Woodsum was chosen unanimously for their comprehensive knowledge and their strong past
experience working with municipalities, which translates into understanding the various perspectives and
priorities of a municipal corporation.
I am recommending awarding a contract for NMTC legal services for in the amount not to exceed $55,000
with an additional $1,500 for miscellaneous expenses to Drummond Woodsum for a grand total of
$56,500. However, the way the proposal is structured the city is only obligating to pay $5,000 for legal
work necessary in advance and in preparation of a NMTC closing.
It should be noted that the way you typically pay for this type of service is at the time of the NUTC
closing and it is bundled into the fees associated with the transaction. Should the transaction not
commence the city is only obligated to $5,000, which will come from the consulting budget set aside by
the Downtown Improvements Committee.
John S. Kaminski 253. i
DrummondWoodsum John S. Kaminski emcee etee
ATTORNEYS AT LAW 84 Marginal Way, Suite 800
Poriland, ME 04101-2480
207.772.1941 Main
207.772.3627 Fax
March 18, 2019
VIA EMAIL ONLY
Tim Cummings, Director of Economic Development
Steven A. Bolton, Esq., Corporation Counsel
City of Nashua
229 Main Street
Nashua, NH 03061-2019
Re: Nashua Performing Arts Center
Dear Tim and Steve:
Following up on my recent call with you, this letter contains our proposal regarding legal!
services involving the Nashua Performing Arts Center (the “Project”) and its financing through
the Federal New Markets Tax Credit (“NMTC”) program. We appreciate the opportunity to
submit a proposal to provide legal services for the Project to the City and its nonprofit affiliates
to be formed for the NMTC transaction. From our conversations and the materials you’ ve sent
me, it is an exciting project and would be a wonderful addition to downtown Nashua.
This letter is a proposal for the City’s review and consideration. If there are aspects of the
proposal on which you have questions or on which you want to discuss possible changes, please
let me know.
My previous letter dated February 20 (copy enclosed) provided detailed information about our
professional background and experience in NMTC transactions. As mentioned on our call, I
would lead our team here on this project and would involve other professionals here as needed to
deliver the services as efficiently as possible. Although Iam not admitted to the Bar in New
Hampshire, many of my colleagues are and we would involve New Hampshire-admitted
attorneys when needed.
We have discussed a proposal for our services in which we would be compensated based on our
tine spent charged at hourly rates subject to a not-to-exceed cap under the terms and conditions
described in this letter. In order to effectively set out this proposal, this letter describes the scope
of services we would provide, the applicable rates and the amount of that cap. Please bear in
mind that this cap is designed to allow the City to budget for these services and is not a fixed fee.
If the transaction goes smoothly the total fee could be less than that cap.
We also recognize that the City is most at risk financially prior to the receipt of notice that the
Project will receive a NMIC allocation. As ] mentioned on the call, we are willing to share that
tisk with the City by agreeing to limited fees (as more fully described below) if the Project does
not receive an allocation.
800.727.1941 | dwmlaw.com SFP MERITAS® LAW FIRMS WORLDWIDE
City of Nashua
March 18, 2019
Page 2
Our services in connection with the Project under the terms of this fee arrangement will consist
of the following tasks:
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8.
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Advising the City regarding the structure of the proposed NMTC transaction
financing (including with reference to bond financing, leases, appropriate use of
proceeds) to ensure compliance with NMTC requirements. We expect to work
with a recognized NMTC accounting firm which will be retained to prepare the
projections:
Working with the City and its economic development / NMTC consultant to
present the Project to Community Development Entities in seeking an NMTC
allocation and presenting the Project to potential tax credit investors and in
evaluating / negotiating proposals;
Providing strategic advice on the formation of nonprofits to be formed as part of
the NMTC transaction structure to ensure they meet the multiple objectives
required and meet NMTC requirements;
Assisting with formation and preparation of organizational documents for one or
more nonprofit entities to participate in the NMTC transaction,
Preparing resolutions, certificates and other corporate documents necessary for
the approval and closing of the NMTC transaction;
Working with board members of nonprofits entities (and municipal officials if
needed) to explain the NMTC transaction that they will be considering for
approval;
Negotiating and preparing the leverage loan documents;
Reviewing and negotiating the documents by which the NMTC investor funds the
transaction:
Reviewing and negotiating the put and call and tax credit indemnification
documents;
Developing, preparing and negotiating with the investor and CDE the provisions
of the QLICI loan documents
Conducting required due diligence and preparing the qualified active low-income
community business (“QALICB”) tax opinion customarily provided by
developer's or sponsor’s counsel; and
Professional Engineer, and any other communication about the contract shall be addressed or be
delivered to the City of Nashua Representative.
CHANGES TO SCOPE OF WORK The City of Nashua may, at any time, by written order, make
changes to the general scope, character, or cost of this contract and in the services or work to be
performed, either increasing or decreasing the scope, character, or cost of Professional Engineer's
performance under the contract. Professional Engineer shall provide to the City of Nashua within
10 calendar days, a written proposal for accomplishing the change. The proposal for a change shall
provide enough detail, including personnel hours for each sub-task and cost breakdowns of tasks,
for the City of Nashua to be able to adequately analyze the proposal. The City of Nashua will then
determine in writing if Professional Engineer should proceed with any or all of the proposed
change. If the change causes an increase or a decrease in Professional Engineer's cost or time
required for performance of the contract as a whole, an equitable adjustment shall be made and the
contract accordingly modified in writing. Any claim of Professional Engineer for adjustment under
this clause shall be asserted in writing within 30 days of the date the City of Nashua notified
Professional Engineer of the change.
When Professional Engineer seeks changes, Professional Engineer shall, before any work
commences, estimate their effect on the cost of the contract and on its schedule and notify the City
of Nashua in writing of the estimate. The proposal for a change shall provide enough detail,
including personnel hours for each sub-task and cost breakdowns of tasks, for the City of Nashua
to be able to adequately analyze the proposal. The City of Nashua will then determine in writing
if Professional Engineer should proceed with any or all of the proposed change.
Except as provided in this paragraph, Professional Engineer shall implement no change unless the
City of Nashua in writing approves the change. Unless otherwise agreed to in writing, the
provisions of this contract shall apply to all changes. The City of Nashua may provide verbal
approval of a change when the City of Nashua, in its sole discretion, determines that time is critical
or public health and safety are of concern. Any verbal approval shall be confirmed in writing as
soon as practicable. Any change undertaken without prior City of Nashua approval shall not be
compensated and is, at the City of Nashua's election, sufficient reason for contract termination.
CITY OF NASHUA COOPERATION The City of Nashua agrees that its personnel will cooperate
with Professional Engineer in the performance of its work under this contract and that such
personnel will be available to Professional Engineer for consultation at reasonable times and after
being given sufficient advance notice that will prevent conflict with their other responsibilities.
The City of Nashua also agrees to provide Professional Engineer with access to City of Nashua
records in a reasonable time and manner and to schedule items that require action by the Board of
Public Works and Finance Committee in a timely manner. The City of Nashua and Professional
Engineer also agree to attend all meetings called by the City of Nashua or Professional Engineer to
discuss the work under the Contract, and that Professional Engineer may elect to conduct and record
such meetings and shall later distribute prepared minutes of the meeting to the City of Nashua.
DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR DISCREPANCIES
Professional Engineer warrants that it has examined all contract documents, has brought all
conflicts, errors, discrepancies, and ambiguities to the attention of the City of Nashua in writing.
and has concluded that the City of Nashua's resolution of each matter is satisfactory to Professional
Engineer. All future questions Professional Engineer may have concerning interpretation or
clarification of this contract shall be submitted in writing to the City of Nashua within 10 calendar
days of their arising. The writing shall state clearly and in full detail the basis for Professional
Engineer's question or position. The City of Nashua representative shall render a decision within
15 calendar days. The City of Nashua's decision on the matter is final. Any work affected by a
conflict, error, omission, or discrepancy which has been performed by Professional Engineer prior
to having received the City of Nashua's resolution shall be at Professional Engineer's risk and
expense. At all times, Professional Engineer shall carry on the work under this contract and
GC 3 of 11
City of Nashua
March 18, 2019
Page 3
12. Conducting required due diligence and preparing non-tax legal opinions on the
entities and leverage loan transactions customarily provided by developer's or
sponsor's counsel,
The transaction caps assume that the transaction will be structured such that the NMTC will be
allocated to a single investor and that a closing will be concluded with the first investor with
which the City and its affiliates enters into a term sheet or letter of intent. Ifa replacement for
this first investor is needed for any reason, we would need to re-negotiate the transaction cap
with the City and its affiliates.
Our compensation will be determined based on hourly rates subject to a not-to-exceed cap for the
above-described services. The hourly rates for this engagement will be our standard hourly rates
less a discount of ten percent (10%). So, for example, my hourly rate will be $342 instead of the
$380 referenced in my earlier letter. In addition, we will not charge for any travel time or
mileage to attend meetings in Nashua.
The not-to-exceed cap for the above-described services is Fifty-Five Thousand Dollars
($55,000), assuming that no different wansaction structure, unforeseen circumstances or delays
occur in closing the transaction. Such items could include, for example, additional sources of
financing, having a NMTC allocation from more than one CDE or lender / investor and/or due
diligence or legal opinion requirements that are more than is customary for NMTC transactions.
If such items arise, it is expected that the City and we would re-negotiate this cap.
Our legal fees will be payable at the closing of the NMTC transaction assuming it successfully
closes Ifthe NMTC transaction does not successfully close, our legal fees would be payable
thirty (30) days after the determination not to move forward with the NMTC transaction.
Further, in recognition of the risks to the City prior to being notified that the Project has received
a NMTC allocation, we propose an additional risk sharing arrangement. We understand that all
or part of the tasks listed in (1)-(3) above will need to be performed prior to the receipt of a
NMTC allocation. In the event that the City is not notified that a NTMC allocation is available
for the Project, and as a result the City determines not to move forward with the NMTC
financing, we will limit our total fees to a maximum payable by the City of Five Thousand
Dollars ($5,000).
The tasks listed in (4)-(12) will only be undertaken if the City is notified that a NMTC allocation
is available tor the Project.
We understand that legal services for real estate acquisition and transfer matters, leasing matters,
land use and permitting matters and bond matters are to be provided by the City’s Corporation
Counsel. Our proposal does not include any of those services or any other services beyond those
listed in (1)-(12) above. If the City later determines that it would like our services in any of
those or other matters related to the Project, we would be pleased to discuss working with the
City of Nashua
March 18, 2019
Page 4
City on those matters at the discounted hourly rate described in this letter but our work on those
would not be subject to the cap described in this letter.
In addition to the fees for services described above, the City will pay or reimburse us for state or
other governmental filing fees to organize and/or maintain the entities which will participate in
the transactions described, photocopying, faxes, telephone services and other out-of-pocket
disbursements to third parties in connection with the Project. For budgeting purposes, we expect
that the amounts described in this paragraph will be $1,500 or less.
We also discussed that this firm or our affiliate, Classic Title Co., is available to provide any
required title services or insurance that will be required in this transaction.
Either the City or Drummond Woodsum may terminate this agreement [other than the City’s
responsibility to pay previously earned fees and charges] if the City has not been notified by
September 30, 2019 that a NMTC allocation is available for the Project.
The services provided under this fee arrangement will be considered complete upon the closing
of the Project’s NMTC financing unless the agreement is terminated prior to that time.
Please sign both originals of this letter enclosed to acknowledge that you have read the above
agreement before signing il, and to evidence your agreement to the terms of this fee agreement.
We are pleased to serve as your counsel and we look forward to working with you on this
project.
Very truly yours,
DRUMMOND WOODSUM & MACMAHON
By, gt!
J ohp’S, . Kaminski
SEEN AND AGREED TO:
CITY OF NASHUA
By:
Name:
Title:
| THE CITY OF NASHUA "The Gate City’
Economic Development
To: James Donchess, Mayor
From: T. Cummings, Economic Development Director
Ce:
Date: April 4, 2019
Re: Notice of Change in Contract for residential brokerage services with Louise Brochu
The Office of Economic Development issued RFP 0019-060418 to request proposals for to
provide marketing and brokerage services to the City of Nashua, through the Officer of Economic
Development related to following residential property late last summer.
Two specific properties are to be sold: 11 Baldwin Street and 9 Hillcrest Avenue both properties
where at one time part of the Broad Street Parkway project. The City awarded the business to
Louise Brochu in the fall.
This memo is being provided to update and provide notice to the Finance Committee that Louise
Brochu changed brokerage firms last winter and is now with Cameron Prestige instead of Keller
Williams whom we originally entered into contract. Upon learning of the above development my
office placed the contract on hold until Louise was operating under the new brokerage firm and to
allow for the spring to arrive where a better selling price would be achieved.
At this time, Louise is now established and working in her new brokerage firm and we are satisfy
to move forward.
2) THE CITY OF NASHUA “the Gate Ci
Economic Development
To: J. Donchess, Mayor/Chair of Finance Committee
From: T. Cummings, Economic Development Director
Ce: | Members of the Finance Committee
Date: April 4, 2019
Re: Memorandum of Agreement with Spectacle Management
The Office of Economic Development issued RFP 0275-102418 to request proposals for
operations and management services of the future performing arts center. The idea is to procure
on behalf of the future performing arts center a 3 party private sector entity that would manage
the day-to-day operations, book acts/performances and provide technical expertise as necessary
for the benefit of the community. We received 1 proposal from Spectacle Management.
A sub group of the PAC Steering Committee met with Spectacle Management and then the entire
Steering Committee met with Spectacle Management to discuss, interview and assess how
Spectacle Management would possibly manage the facility.
The overall PAC Steering Committee recommend to the Board of Aldermen in December of 2018
that the city engage Spectacle Management based on Spectacle stellar competent track record as
being a qualified operator. It should be noted, since this summer in good faith Spectacle
Management has worked alongside the PAC Steering Committee to design and continue
developing a feasible project that will make the city proud.
Relative to the process, this MOA is the 1“ step in a multi-step contracting process. This initial
MOA was developed to give both parties a comfort level that once a design is further along a
more detailed operator agreement will be put into place.
The Office of Economic Development recommends entering into this MOA for operational
services with Spectacle Management.
REPORT OF THE FINANCE COMMITTEE
APRIL 3, 2019
A meeting of the Finance Committee was held on Wednesday, April 3, 2019, at 7:00 p.m. in the Aldermanic
Chamber.
Mayor Jim Donchess, Chairman, presided.
Members of the Committee present: Alderman Michael B. O’Brien, Vice Chair
Alderwoman-at-Large Shoshanna Kelly
Alderman-at-Large Brandon Michael Laws
Alderman Patricia Klee
Alderman June M. Caron
Alderman Linda Harriott-Gathright
Also in Attendance: Dan Kooken, Purchasing Manager
David G. Fredette, Treasurer/Tax Collector
Sarah Marchant, Director Community Development
David Boucher, Superintendent of Wastewater
PUBLIC COMMENT - None
COMMUNICATIONS
From: Dan Kooken, Purchasing Manager
Re: Contract Award of Transit Service Operations (Value $10,945,301)
MOTION BY ALDERWOMAN KELLY TO ACCEPT, PLACE ON FILE AND, CONTINGENT UPON BOARD
OF ALDERMEN APPROVAL, AWARD THE CONTRACT TO FIRST TRANSIT, INC., IN THE AMOUNT OF
$10,945,301. FUNDS ARE AVAILABLE IN DEPARTMENT
186, TRANSPORTATION; GRANT FUNDS
ON THE QUESTION
Mayor Donchess
And Ms. Marchant is here to brief us on this item.
Sarah Marchant, Director Community Development
Good evening, thank you. The Transit Operations subcontracts out for the driver’s dispatch and regular
movement of the buses every day; management of general safety and those things. So First Transit has been
our provider for the past 20+ years. We went out to bid and solicited from 7 firms and received 2 qualified
responses. We interviewed both qualified responses and had quite a bit of negotiations over insurance this
time. There has been substantial changes to insurance which changed some of the fee structures. So we
went back for several months on that; got two final offers and those are before you are tonight. We are
recommending going forward with First Transit which is almost $2 million dollars less than the other response.
It is a lot of money, it is a 5 year contract and it is about $2 million dollars a year and it is budged for. If there
are any questions | am happy to answer them.
