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HomeMy WebLinkAboutItem 06.k Date: Item No. AGREEMENT WITH PROGRESSIVE RAIL FOR SUPPORT OF CRISI GRANT APPLICATION Proposed Action Staff recommends adoption of the following motion: Move to approve an agreement with Progressive Rail, Inc. in support of a Consolidated Rail Infrastructure and Safety Improvements (“CRISI”) grant through the Federal Railroad Administration (“FRA”). Overview Progressive Rail leases rail lines in the City of Lakeville from Canadian Pacific and over the past several years has used these lines to store rail cars on these tracks. The federal government has opened their Consolidated Rail Infrastructure and Safety Improvements (CRISI) grant program, which Progressive Rail is applying for. If awarded, the grant would help fund rail storage capacity outside the City of Lakeville. Progressive Rail asked for city support for this application, and the terms of the city’s support include: 1) $10,000 payment to Progressive Rail (only if the grant is awarded and the project is constructed) 2) Rail car storage will be prohibited north and west of Dodd Boulevard and will only be allowed for 10 days at a time between County Road 70 and Dodd Boulevard. Primary Issues to Consider What enforcement mechanisms are in place to ensure the agreement’s terms are complied with? The agreement states that “Progressive acknowledges and agrees that in the event of any violation hereof, the City shall be authorized and entitled to obtain, from any court of competent jurisdiction, preliminary and permanent injunctive relief, and any damages for breach of this Agreement which may be applicable, including reimbursement of reasonable attorneys’ fees.” Financial Impact: $ Budgeted: Y☐ N☒ Source: Related Documents: (CIP, ERP, etc.): Envision Lakeville Community Values: Safety Throughout the Community Report Completed by: Justin Miller, City Administrator 10,000 Fund Balance September 4, 2018 198976v3 1 AGREEMENT THIS AGREEMENT made this ____ day of _______________, 2018, by and between the CITY OF LAKEVILLE, a Minnesota municipal corporation (“City”) and PROGRESSIVE RAIL INC., a Minnesota corporation (“Progressive”). WHEREAS, Progressive leases railways from Canadian Pacific Railway in the City of Lakeville (“Progressive Railways”); WHEREAS, the City is substantially developed and many residential neighborhoods abut Progressive Railways; WHEREAS, Progressive has stored rail cars on the Progressive Railways; WHEREAS, it is in the best interest of the City of Lakeville to reduce complaints associated with rail car storage; WHEREAS, the City has been restricted from regulating rail car storage within the City by federal regulations; WHEREAS, Progressive is applying for a Consolidated Rail Infrastructure and Safety Improvements (“CRISI”) grant through the Federal Railroad Administration (“FRA”) for a rail project to include construction of a rail car storage facility outside the Lakeville city limits (“Rail Project”); WHEREAS, Progressive is requesting the City to pledge financial support for the Rail Project and a letter of support from the City’s Mayor for the CRISI grant application; WHEREAS, the City has agreed to pledge financial support and a letter of support for Progressive’s CRISI grant application, provided Progressive no longer stores rail cars on the Progressive Railways; NOW, THEREFORE, the parties agree as follows: 1. CITY OBLIGATIONS. The City agrees as follows: A. City will provide to Progressive $10,000 in financial support upon Progressive’s successful receipt of the CRISI grant and construction of Progressive’s new storage facility outside the City of Lakeville. B. The City will provide a letter of support for Progressive’s CRISI grant application in the form attached hereto as Exhibit A. 198976v3 2 2. PROGRESSIVE’S COVENANTS. Progressive covenants, on behalf of itself, its successors and assigns, as follows: A. Progressive will substantially complete construction of a new rail car storage facility outside of the City of Lakeville within six (6) months of receipt of CRISI grant funds; B. Upon construction of Progressive’s new storage facility, Progressive will not store rail cars on the Progressive Railways north and west of Dodd Boulevard and will limit the placement of cars between County Road 70 and Dodd Boulevard to not more than 10 days at a time. 3. DEFAULT. Progressive acknowledges that each of the restrictions contained herein is reasonable and necessary in order to protect the legitimate interest of the City and that any violation thereof would cause irreparable injury to the City. Progressive acknowledges and agrees that in the event of any violation hereof, the City shall be authorized and entitled to obtain, from any court of competent jurisdiction, preliminary and permanent injunctive relief, and any damages for breach of this Agreement which may be applicable, including reimbursement of reasonable attorneys’ fees. The aforesaid rights and remedies shall be independent, severable and cumulative and shall be in addition to any other rights or remedies to which the City may be entitled. Cumulatively, the damages received by the City under this Agreement shall be limited to the amount provided to Progressive hereunder. The foregoing restrictions are intended to be reasonable. In the event, however, that any restriction contained herein is held by a court of competent jurisdiction to be in any respect unreasonable, then the court so holding may limit the territory to which it pertains or the period of time in which it operates, or effect any other change to the extent necessary to make it enforceable. The remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect, and any invalid and unenforceable provision shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceable to the maximum extent permissible. 4. TERM. The Term of this Agreement shall be perpetual. 5. NO WAIVER. The failure of any party to insist upon strict performance of any of the terms, covenants or conditions hereof shall not be deemed a waiver of any rights or remedies which that party may have hereunder at law or in equity and shall not be deemed a waiver of any subsequent breach or default in any of such terms, covenants or conditions. No waiver by any party of any default under this Agreement shall be effective or binding on such party unless made in writing by such party, and no such waiver shall be implied from any omission by a party to take action in respect to such default. No express written waiver of any default shall affect any other default or cover any other period of time other than any default and/or period of time specified in such express waiver. One or more written waivers of any default under any provisions of this Agreement shall not be deemed to be a waiver of any subsequent default in the performance or the same provision or any other term or provision contained in this Agreement. 198976v3 3 6. ENTIRE AGREEMENT. This Agreement contains the entire understanding and agreement of the parties hereto and shall not be modified in any manner except by an instrument in writing executed by both parties. In the event that any term, covenant or condition herein contained is held to be invalid or void by any court of competent jurisdiction, the invalidity of such term, covenant or condition shall in no way affect any other term, covenant or condition herein contained. 7. GOVERNING LAW. The laws of the State of Minnesota govern the interpretation of this Agreement. CITY OF LAKEVILLE BY: Douglas P. Anderson, Mayor AND: Charlene Friedges, City Clerk PROGRESSIVE RAIL INC. BY: ITS:_____