Resolution No. 78931
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RESOLUTION NO. 7893
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
MEMORANDUM OF UNDERSTANDING BY AND BETWEEN THE
BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
AND THE CITY OF VERNON RELATING TO VIOLATIONS OF
CPUC GENERAL ORDER NUMBER 135 AND REPEALING
RESOLUTION NO. 7628
WHEREAS, California Public Utilities Commission's General
Order Number 135 ("G.O. 135") prohibits trains from blocking street
intersections for over ten (10) minutes unless certain exceptions
apply; and
WHEREAS, the Burlington Northern and Santa Fe Railway Company
("BNSF") has been issued citations by the Vernon Police Department for
violations of G.O. 135; and
WHEREAS, the Los Angeles County District Attorney's Office
has begun prosecution of the violations by BNSF of G.O. 135; and
WHEREAS, on September 19, 2000, the City Council of the City
of Vernon adopted Resolution No. 7628 approving a Memorandum of
Understanding (the "Original MOU") between the BNSF and the City of
Vernon; and
WHEREAS, the Original MOU sought to resolve (i) a dispute
regarding citations issued by the Vernon Police Department to BNSF for
violations of G.O. 135, and (ii) a seven -count complaint against BNSF,
Case No. OSE02192, filed by the Los Angeles County District Attorney's
Office in the Huntington Park Municipal Court alleging multiple
violations of G.O. 135; and
WHEREAS, following the City Council's approval of the
Original MOU, but before the Original MOU was signed by the parties,
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1 BNSF informed the City that their labor union was objecting to a
2 "change over" provision that might require their members to stay on
3 duty in order to avoid the switching of a crew within the City's
4 jurisdiction; and
5 WHEREAS, subsequently, the Los Angeles County District
6 Attorney's Office filed a ten -count complaint and a one -count
7 complaint against BNSF, Case Nos. 1SE01496 and 1SE03634, respectively,
8 in the Los Angeles Superior Court, Southeast Judicial District,
9 alleging multiple violations of G.O. 135; and
10 WHEREAS, the City, BNSF and the District Attorney's Office
11 have continued to meet in order to discuss a possible resolution of
12 pending cases with the Los Angeles County District Attorney's Office;
13 and
14 WHEREAS, the BNSF has agreed to a slight modification in the
15 Original MOU relating to the avoidance of a "change over" within the
16 City that may necessitate blocking crossings, unless required by
17 federal law or an emergency situation and has executed a revised
18 Memorandum of Understanding (the "Revised MOU"); and
19 WHEREAS, the Revised MOU does not resolve the City's
20 concerns regarding local jurisdiction but simply addresses the issue
21 of trains blocking the City's intersections and the criminal citations
22 that have resulted therefrom; and
23 WHEREAS, the City Council of the City of Vernon does not
24 intend, in any way, except as expressly stated herein or in the
25 Revised MOU, to limit its ability to enforce the provisions of the
26 Vernon City Code, to exercise its police powers, the powers under the
27 City Charter, or to prevent the City from issuing or filing any
28 citations against BNSF for violations of G.O. 135, or any other law,
1 after the effective date of the Revised MOU in order to protect the
2 health, safety and public welfare of the citizens of the City of
3 Vernon; and
4 WHEREAS, by letter dated January 3, 2002, Bruce V.
5 Malkenhorst, the City Administrator/City Clerk, has recommended the
6 execution of the Revised MOU and that Resolution No. 7628 be repealed.
7 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
8 CITY OF VERNON AS FOLLOWS:
9 SECTION 1: The City Council of the City of Vernon hereby
10 finds and determines that the recitals contained hereinabove are true
11 and correct.
12 SECTION 2: The City Council of the City of Vernon hereby
13 repeals Resolution No. 7628 and specifically rescinds the Original
14 MOU, it being the intent of the City Council that the Revised MOU
15 supersede the Original MOU.
16 SECTION 3: The City Council of the City of Vernon hereby
17 approves the Revised MOU with BNSF, a copy of which is attached hereto
18 as Exhibit "A" and made a part hereof.
19 SECTION 4: The City Council of the City of Vernon hereby
20 authorizes the Mayor and the City Clerk to execute said Revised MOU
21 for, and on behalf of, the City of Vernon.
22 SECTION 5: The City Council of the City of Vernon hereby
23 directs the City Clerk, or his designee, to transmit a certified copy
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24 of an executed Revised MOU to the following:
25 Los Angeles County District Attorney's Office
Attn: Carol Rash, Head Filing Deputy District Attorney
26 2958 E. Florence Avenue
27 Huntington Park, CA 90255
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SECTION 6: The City Council of the City of Vernon hereby
directs the City Clerk, or his designee, to transmit an executed
Revised MOU to:
McKenna & Cuneo, L.L.P
Attorneys at Law
Attn: Gregory L. Evans
444 S. Flower Street
Los Angeles, CA 90071-2901
SECTION 7: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 10th day of January, 2002.
ATTEST:
BRUCE V..MALKENHORST, City Clerk
LEONIS C. MA BURG, Aayor
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STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
7893, was duly adopted by the City Council of the City of Vernon at an
adjourned regular meeting of the City Council duly held on Thursday,
January 10, 2002, and thereafter was duly signed by the Mayor of the
City of Vernon.
((SEAL)
BRUCE V. MALKENHORST, City Clerk
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SUPPORTING
DOCUMENTS
EXHIBIT
AV
JAN-08-2002 TUE 10:45 AM OLIVO & PLASCENCIA FAX NO. 562 869 1883 P. 01.
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MEMORANDUM OF UNDERSTANDING
CITY OF VERNON
AND
THE BURLING ON NORTHERN AND SANTA FE RAILWAY COMPANY
T111S MEMORANDUM OF UNDERSTANDING (the "MOU'), executed on January
2002, is made by and between the Burlington Northern and Santa. Fe Railway ("BNSF")
and the City of Vernon (The "City). BNSF and the City are referred to collectively as the
"Parties" and each individually as a "Party".
RECITALS
A. The City is a municipality located in the southeast area of Los Angeles County and is
organized pursuant to the laws of the State of California.
B. BNSF is an interstate railroad corporation that operates in California and owns various
railroad tracks that run through the streets of the City.
C. Pursuant to the California Public Utilities Commission's General Order Number 135
("G.O. 135'), unless certain exceptions apply, BNSF is prohibited from allowing its trains to
block street intersections for over ten (10) minutes,
D. The City's Police Department has issued several citations to BNSF for violations of G.O.
135 bwause the City alleges that the alleged actions by the BNSF do not fall under any of the
exceptions recognized under G.Q. 135.
E. Case No. ISE01496 is assigned to Division 1 of the Los Angeles Superior Court,
Southeast Judicial District. The case involves a ten -count complaint against BNSF for alleged
violations of G,O.135. The complaint alleges that count 1 occurred on June 27, 2000; count 2
occurred on June 27, 2000; count 3 occurred on June 29, 2000; count 4 occurred on July 23,
2000; count 5 occurred on July 28, 2000; count 6 occurred on August 4, 2000; count 7 occurred
on August 21, 2000; count 8 occurred on September 9, 2000; count 9 occurred on October 10,
171121 02.1
MEMORANDUM OF: UNDERSTANDING
JAN-08-2002 TUE 10:45 AM OLIVO & PLASCENCIA FAX NO. 562 869 1883 P. 02
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2000; and count 10 occurred on October 20, 2000_ It is alleged that none of the exceptions
recognized by G.O. 135 apply.
F. Case No. ISE03634 was originally assigned to Division 4 of the Los Angeles Superior
Court, Southeast Judicial District, but has been reassigned to Division I for consistent handling.
This case involves a one -count complaint against BNSF also for an alleged violation of G.O.
135. The complaint alleges that the single count occurred on June 14, 2001.1
G. Pursuant to California Public Utilities Code Section 2107, the Los Angeles County
District Attorney's Office is seeking fines of twenty thousand dollars ($20,000) for each of the
alleged offense. Neither Caso No. ISE01496 nor Case No. ISE-03634 is currently sot for trial.
I:i. Pursuant to BNSF's request, the Parties and the District Attorney's Office have'niet in
order to discuss a potential resolution of the problems that have resulted in the issuance of the
citations against the BNSF. On November 7, 2001, the Parties met again for the same purpose.
1. The 13NSI• has advised the City and the District Attorney's Office that it will take
specific steps to address the problems that have resulted in the citations.
J. The BNSF and the City are willing to enter into a. Civil Compromise pursuant to Section
1377 of the California Penal Code.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
SECTION 1: The BNSF will not initiate crew changes within the City that may
necessitate blocking crossings, unless required by a federal law,
regulation, an emergency or other exigent circumstances.
Sr,CTION 2: The BNSF will arrange its operating schedule so that it does not conflict
with the operation schedules of passenger trains. Regardless of
scheduling, when a BNSF train is preparing to travel through the City, a
radio call will be made the central dispatcher in San Bernardino to
determine whether any interfering passenger train traffic exists, or is
expected. If so, BNSF's trains will not be moved through the City until it
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MEMORANDUM OF UNDERSTANDING
JAN-08-2002
TUE 10:45 AM OLIVO & PLASCENCIA FAX NO. 562 869 1883 P. 03
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appears that the passenger train traffic will not interfere so as to cause
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crossing blockages in the City,
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SECTION 3:
The BNSF will enhance employee educational efforts in order to
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emphasize the importance of avoiding all unpermitted public grade
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crossing blockages in the City. This shall include an obligation by BNSF
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train crews to document and to report the cause of any and all public
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grade crossing blockages exceeding 10 minutes in the City.
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SECTION.4:
The BNSF will designate Harbor Subdivision Superintendent, David
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Leathers {cellular no. (310) 890-0493; business no. (323) 267-4252), as
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the BNSF representative who will address questions and/or concerns by
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the City relating to any future train blockages.
it
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SECTION 5:
The BNSF Operations Department will actively monitor all factors and
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miy changes that may lead to blocked crossings in the City in an enhanced
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effort to eliminate the: potential of blocked crossings in the future within
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the City.
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SECTION 6:.
Pursuant to Penal Code Section 1378, the City will advise the Los
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Angeles District Attorneys Office that a civil compromise has been
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reached and that it is agreeable to the dismissal of Case No. l SE01496
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and Case No. 1SE03634, in the interests of the justice.
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MEMORANDUM OF UNDERSTANDING ^�
JAN-08-2002 TUE 10:46 AM OLIVO & PLASCENCIA FAX NO. 562 869 1883 P. 04
s 1
1 I SRCTION 7: The Parties recognize that this MOU does not prevent the City from
2 issuing or filing any citations against the BNSF for violations of G.O.
3 135, or any other law, after the effective date of the MOU,
4
5 .ATTEST:
G
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8 LEONIS C. MALBURG, Mayor Data
City oC Vernon
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11 -. BRUC E V. MALKLNHURKST, —Date
City Clerk
12 City of Vernon
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14.ti..
Y B. WRIGHT Date
15 sg-q
tr
ePresident BNSF
If
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1$
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23 APPROVED AS TO FORM: APPROVED AS TO FORM:
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EDUARDO OLIV'O Date GREGO Y' L EVANS Date
26 City Attorney MCKENNA & CUNEO, LLP
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•~ MEMORANDUM OF UNDERSTANDING
FULLY EXECUTED
AGREEMENT
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MEMORANDUM OF UNDERSTANDING
BETWEEN
CITY OF VERNON
AND
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
nn THIS MEMORANDUM OF UNDERSTANDING (the "MOU"), executed on January
2002, is made by and between the Burlington Northern and Santa Fe Railway ("BNSF")
and the City of Vernon (The "City"). BNSF and the City are referred to collectively as the
"Parties" and each individually as a "Party".
RECITALS
A. The City is a municipality located in the southeast area of Los Angeles County and is
organized pursuant to the laws of the State of California.
B. BNSF is an interstate railroad corporation that operates in California and owns various
railroad tracks that run through the streets of the City.
C. Pursuant to the California Public Utilities Commission's General Order Number 135
("G.O. 135"), unless certain exceptions apply, BNSF is prohibited from allowing its trains to
block street intersections for over ten (10) minutes.
D. The City's Police Department has issued several citations to BNSF for violations of G.O.
135 because the City alleges that the alleged actions by the BNSF do not fall under any of the
exceptions recognized under G.O. 135.
E. Case No. 1 SE01496 is assigned to Division 1 of the Los Angeles Superior Court,
Southeast Judicial District. The case involves a ten -count complaint against BNSF for alleged
violations of G.O. 135. The complaint alleges that count 1 occurred on June 27, 2000; count 2
occurred on June 27, 2000; count 3 occurred on June 29, 2000; count 4 occurred on July 23,
2000; count 5 occurred on July 28, 2000; count 6 occurred on August 4, 2000; count 7 occurred
on August 21, 2000; count 8 occurred on September 9, 2000; count 9 occurred on October 10,
17112492.1 11 MEMORANDUM OF UNDERSTANDING
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2000; and count 10 occurred on October 20, 2000. It is alleged that none of the exceptions
recognized by G.O. 135 apply.
F. Case No. 1 SE03634 was originally assigned to Division 4 of the Los Angeles Superior
Court, Southeast Judicial District, but has been reassigned to Division 1 for consistent handling.
This case involves a one -count complaint against BNSF also for an alleged violation of G.O.
135. The complaint alleges that the single count occurred on June 14, 2001.
G. Pursuant to California Public Utilities Code Section 2107, the Los Angeles County
District Attorney's Office is seeking fines of twenty thousand dollars ($20,000) for each of the
alleged offense. Neither Case No. 1 SE01496 nor Case No. 1 SE03634 is currently set for trial.
H. Pursuant to BNSF's request, the Parties and the District Attorney's Office have met in
order to discuss a potential resolution of the problems that have resulted in the issuance of the
citations against the BNSF. On November 7, 2001, the Parties met again for the same purpose.
I. The BNSF has advised the City and the District Attorney's Office that it will take
specific steps to address the problems that have resulted in the citations.
J. The BNSF and the City are willing to enter into a Civil Compromise pursuant to Section
1377 of the California Penal Code.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
SECTION 1: The BNSF will not initiate crew changes within the City that may
necessitate blocking crossings, unless required by a federal law,
regulation, an emergency or other exigent circumstances.
SECTION 2: The BNSF will arrange its operating schedule so that it does not conflict
with the operation schedules of passenger trains. Regardless of
scheduling, when a BNSF train is preparing to travel through the City, a
radio call will be made the central dispatcher in San Bernardino to
determine whether any interfering passenger train traffic exists, or is
expected. If so, BNSF's trains will not be moved through the City until it
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MEMORANDUM OF UNDERSTANDING
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appears that the passenger train traffic will not interfere so as to cause
crossing blockages in the City.
SECTION 3: The BNSF will enhance employee educational efforts in order to
emphasize the importance of avoiding all unpermitted public grade
crossing blockages in the City. This shall include an obligation by BNSF
train crews to document and to report the cause of any and all public
grade crossing blockages exceeding 10 minutes in the City.
SECTION 4: The BNSF will designate Harbor Subdivision Superintendent, David
Leathers (cellular no. (310) 890-0493; business no. (323) 267-4252), as
the BNSF representative who will address questions and/or concerns by
the City relating to any future train blockages.
SECTION 5: The BNSF Operations Department will actively monitor all factors and
any changes that may lead to blocked crossings in the City in an enhanced
effort to eliminate the potential of blocked crossings in the future within
the City.
SECTION 6: Pursuant to Penal Code Section 1378, the City will advise the Los
Angeles District Attorney's Office that a civil compromise has been
reached and that it is agreeable to the dismissal of Case No. 1 SE01496
and Case No. 1 SE03634, in the interests of the justice.
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MEMORANDUM OF UNDERSTANDING
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SECTION 7: The Parties recognize that this MOU does not prevent the City from
issuing or filing any citations against the BNSF for violations of G.O.
135, or any other law, after the effective date of the MOU.
��C�- �T�w', /0 2 op Z
,LEONIS C. MAL URG, Mayor Date
City of Vernon
ATTEST:
',<-- ,,, , //'q �d )�
BRUCE V. MALKENHORST, Date
City Clerk
City of Vernon
Z'0 o Z
Date
APPROVED AS TO FORM: APPROVED AS TO FORM:
EDUARDO OLIVO Date GREGORY L. EVANS Date
City Attorney MCKENNA & CUNEO, LLP
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MEMORANDUM OF UNDERSTANDING
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator J-City Clerk
FAX (323) 826-1438
City Council
City of Vernon
G�
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
January 3, 2001
EDUARDO OLIVO
City Attorney
FAX: (562) 927-8722
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 826-1435
KENNETH J. DeDARIO
Director of Municipal Utilities
FAX: (323) 826-1425
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
BRUCE W. OLSON
Police Chief
FAX: (323)826-1481
Honorable Members:
®n (a► e�_00()
T.<._ ijnQ „f.2nnn this legislative body approved, by Resolution No.
7628, a Memorandum of Understanding by and between the City of Vernon
and Burlington Northern & Santa Fe Railway (BNSF) to solve the
continued blockage of the City's Streets.
BNSF subsequently advised that their labor union objected to a
provision that might require members to stay on duty in order to avoid
a "change over" (the switching of a crew) within the City's
jurisdiction.
BNSF has now agreed to make a slight modification to the MOU to
provide that BNSF will avoid a "change over" within the City unless
required by Federal Law or in an emergency situation.
This has been reviewed by the City Attorney and it is hereby
recommended that the MOU be amended, Resolution No. 7628 be rescinded,
and the amendment to the MOU be approved and executed.
Very truly yours,
v
Bruce V. Malkenhorst
City Administrator/City Clerk
BVM/ng
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator / City Clerk
FAX (323) 581-7924
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
January 3, 2002
Mr. Bruce V. Malkenhorst
City Administrator
CITY OF VERNON
4305 Santa Fe Avenue
Vernon, California 90058
EDUARDO OLIVO
City Attorney
FAX: (562) 927-8722
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 588-2761
KENNETH J. DeDARIO
Director of Municipal Utilities
FAX: (323) 583-1983
STEVEN E. PARKER
Fire Chief
FAX: (323) 581-1385
BRUCE W. OLSON
Police Chief
FAX: (323) 583-5236
Re: People of the State of California v. Burlington Northern
& Santa Fe
Dear Bruce:
As you may recall, last year the Los Angeles County
District Attorney's office filed criminal charges against
Burlington Northern & Santa Fe for blocking streets within the
City of Vernon for more than ten minutes. A hearing was held on
September 7, 2000, during which BNSF represented in open court
that all parties had reached an agreement and that it was just a
matter of waiting for BNSF to sign the Memorandum of
Understanding ("MOU"). Nevertheless, the BNSF subsequently
advised that their labor union was objecting to a provision that
might require their members to stay on duty in order to avoid a
"change over" (the switching of a crew) within the City's
jurisdiction.
Subsequently, a new case was filed by the Los Angeles
County District Attorney's office alleging seven separate
criminal counts. My office has had further meetings with the
District Attorney's office and the BNSF regarding the continued
blockage of the City's streets. As a result of those
discussions, and after pressure by the District Attorney's
office, the BNSF has agreed to a slight modification in the MOU
and has executed the document. The revision provides that the
v
Mr. Bruce V. Malkenhorst
January 3, 2002_
Page 2
BNSF-will avoid a "change over" within the City unless
required by Federal law or an emergency situation.
As with the original MOU, the revised MOU will not resolve
the City's concerns regarding local jurisdiction. It simply
addresses the issue of trainsblockingthe City's intersections
and the criminal citations that have resulted. Because those
matters are within the District Attorney's jurisdiction, the
City has very little leverage in the matter. In fact, it is up
to the District Attorney alone to decide what it wants to do
with the citations against the-BNSF.
Nevertheless, I believe that the MOU will be of some help
and will establish precedence that "may" be useful to us in the
future. Further, we have nothing to lose by executing the MOU.
Therefore, I recommend that the City execute the MOU.
Because the City Council had previously approved the MOU in
June of 2000,"I will prepare a resolution rescinding thatMOU
and approving the new MOU.
Please call me if you have any questions
Sincerely,
r4"
Eduardo Olivo
City Attorney