carmel's request for official notice in support of opening brief 02-26-16

8/18/2019 Carmel's Request for Official Notice in Support of Opening Brief 02-26-16

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BEFORE THE PUBLIC UTILITIES COMMISSION

2 OF THE STATE OF CALIFORNIA

3

4

Order Instituting Investigation And Order

to Show Cause on the Commission's Own

Motion into the Operations and Practices

of Pacific Gas and Electric Company with

Respect to Facilities Records for its

Natural Gas Distribution System

Pi

•peli•nes.

Investigation 14-1 1-008

Filed November 20, 2014)

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CITY OF CARMEL-BY-THE-SEA S REQUEST FOR OFFICIAL NOTICE IN

SUPPORT OF ITS OPENING BRIEF

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STEVEN R. MEYERS

BRITT K. STROTTMAN

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EMILIE E. DE LA MOTTE

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Meyers, Nave, Riback, Silver & Wilson

555 12th Street, Suite 1500

O aklan d , CA 9 4607

Phone: (510) 808-2000

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Fax: 510) 44 4-1108

E-mail: [email protected]

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Attorneys for Intervenor

CITY OF CARMEL-BY-THE-SEA

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February 26, 2016

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FILED2-26-16

04:59 PM


2/12

BEFORE THE PUBLIC UTILITIES COMMISSION

2

OF THE STATE OF CALIFORNIA

3

4

Order Instituting Investigation And Order

to Show Cause on the Commission's Own

Motion into the Operations and Practices

of Paciifc Gas and Electric Company with

Respect to Facilities Records for its

Natural Gas Distribution System

Pi•peli •nes.

Investigation 14-11-008

(Filed November 20, 2014)

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CITY OF CARMEL-BY-THE-SEA S REQUEST FOR OFFICIAL NOTICE IN

SUPPORT OF ITS OPENING BRIEF

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Pursuant to Rule 13.9 of the California Public Utilities Commission's ( Commission )

Rules of Practice and Procedure ( Rules ) and Evidence Code § 452 and in accordance with

California Rules of Court, Rule 3.1306(c), the City of Carmel-by-the-Sea requests official notice

of the following documents: Carmel-by-the Sea City Council Ordinance Nos. 82 C.S., 83 C.S.,

a nd 16 4 .

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Rule 13.9 permits the Commission to take official notice similar to evidence submitted for

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judicial notice under Evidence Code § 450

et seq.

Evidence Code § 452(b) permits this

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Commission to take official notice of regulations and legislative enactments of any public entity in

the United States, including local ordinances. Further, a request for judicial notice by this

Commission should be granted because the City of Carmel-by-the-Sea gave sufficient notice of

the request, through the pleading or otherwise, to enable such adverse party to prepare to meet the

request; and has furnished the Commission with sufficient information to enable it to take judicial

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notice of the matter. (Evid. Code § 453.)

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The following document meets the requirements for permissible official notice under Rule

13.9, Evidence Code §§ 452 and 453 and California Rules of Court, Rule 3.1306(c). True and

correct copies of the ordinances are attached as Exhibit A.

/ / /

/ / /

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Respectfully submitted,

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/s/ Steven R. Meyers

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Steven R. Meyers

Britt K. Strottman

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Emilie E. de la Motte

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Meyers, Nave, Riback, Silver

Wilson

555 12th Street, Suite 1500

O aklan d , CA 9 4607

Phon e: 510) 808-2000

7

E-mail: [email protected]

Attorneys for CITY OF CARMEL-BY-THE-

SEA

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February 26, 2016

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2614372.1

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EX IBIT A


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ORDINANCE NO.

81 C. S.

—

AN ORDINANCE AAENDING PART XI, DIVISION 2, OF THE MUNICIPAL CODE AND

GRANTING TO PACIFIC GAS AND ELECTRIC COMPANY, ITS SUCCESSORS AND ASSIGNS,

THE FRANCHISE TO CONSTRUCT, MAINTAIN AND USE POLES, WIRES, CONDUITS AND

APPURTENANCES, INCLUDING COMMUNICATION

CIRCUITS, NECESSARY OR PROPER FOR

TRANSMITTING AND DISTRIBUTING ELECTRICITY TO THE PUBLIC FOR ANY AND ALL

PURPOSES IN, ALONG, ACROSS, UPON, UNDER AND OVER THE PUBLIC STREETS AND

PLACES WITHIN THE

CITY OF CARMEL-BY-THE-SEA.

. .

THE CITY COUNCIL OF THE CITY OF CARMEL--BY

. . THESEA DOES ORDAIN as follows:

Section I. That Sections 1406 through 1409, inclusive, of the Municipal

Code be, and the same are hereby repealed, and that the Municipal Code be, and the

same is hereby amended by the addition of new sections which shall read as follows:

Section 1406.01

Whenever In this Ordinance the words or phrases

hereinafter in this section defined are used, they shall have the respecttve meanings

assigned to them in the following definitions:

(a) The word "Grantee" shall mean Pacific Gas and Electric

Company,

and

its lawful

successors or assigns;

(b) The word "City" shall mean the City

of

Carmel-by-the-Sea, a Municipal Corporation

of the State of California, in its present incorporated

1

or in any later

reorganized, consolidated, enlarged or reincorp.orated

fo rm;

(c) The word "streets" shall mean the public

ways, al

and places as the

same now or may hereafter exist within City,

l

tate' highways, now or

hereafter established within City, and freeway hereafter eitablished within City;

(d)

The phrase "poles, wires, conduits

and

appurtenances" shall mean poles, towers,

supports, wires, conductors, cables, guys, stubs, platforms, crossarms, braces,

transformers, insulators, conduits, ducts, vaultsmanholes, meters, cut-outs,

switches,

communication

circuits, appliances, attachments, appurtenances,

and,

„ . .

without limitation to the foregoing, any other property located or to be located

in, upon, along, across, under or over the streets of City, and used or useful

in transmitting and/or distributing electricity;

(a) The phrase construct, maintain and use shall mean to. construct, erect, install,

lay, operate, maintain, use, Tepair or replace.

"Section 1406.02- - The franchise

.

to-construct, maintain and

use poles,

wires, conduits and appurtenances necess ary

r

proper for transmitting and-diStributing

electricity to the public for any and all purposes, in, along, across, upon, under and

over the streets within City is hereby granted to Grantee.

"Section 1406.3

Grantee shall relocate, at its own expense, without

expense to City or adjacent property owners,

any

poles, wires, conduits and appurten43Le

tneretofore installed, and then maintained or used under this franchi

and when


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construction of any subway or viaduct, provided, however, that the cost of any such

relocation made necessary by the construction or any lawful change of grade, alignme

or width of

any freeway constructed by the State of Cflifornla shall be divided equa

between Grantee and the State

of

California.

Section

1406.04

Said franchise shall be 1ndeterminate, that is to

say, said franchise shall endure In full force and effect until the same shallwith

the consent of the Public Utilities Commission

of

the State of California, be

voluntarily surrendered or abandoned by Grantee, or until the State or some municipa

or public corporation thereunto duly authorized by law shall purchase by voluntary

agreement or shall condemn and take under the power of eminent domain, all property

actually used and useful in the exercise of said franchise and situate in the

territorial limits

of

the State, municipal or public corporation purchasing or

condemning such property, or until said franchise shall be forfeited for noncomplian

with its terms by Grantee.

Section

1406.05

Grantee shall during the term hereof pay to City

two per cent (2%) of the gross annual receipts of Grantee arising from the use,

operation or possession of said franchise; provided, however, that such payment shal

In no event be less than one per cent (1%) of the gross annual receipts of Grantee

derived from the sale of electricity within the limits of City.

Section

1406.06

Grantee shall file with the City Clerk of City,

within three (3) months after the expiration of the calendar year, or fractional

calendar year, following the date of the granting hereof, and within three (3) month

after the expiration of each and every calendar year thereafter, a duly verified

statement showing in detail the total gross receipts of Grantee during the preceding

calendar year, or such fractional calendar year, from the sale of electricity within

City. Grantee shall pay to City within fifteen (15) days after the time for filing

such statement,

In lawful money of the United States, the aforesaid porcentage

of

its gross receipts for such calendar year, or such fractional calendar year, covered

by such

staterant. Any neglect, omission or refusal by Grantee to file such verified

statement, or to pay said percentage at the time and In the manner specified, shall

be grounds for the declaration of a forfeiture of this franchise and of all rights

of Grantee hereunder.

"Section 140607

Said franchise is granted under the Franchise

Act of 1937.

Section 1406.08

All poles, wires, conduits and appurtenances

d;W

shall be constructed, maintained and used under and pursuant to the provisions of

-h ,

n► ► imAnce

lnd in the enerclse of the right, privilege and franchise herein


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E l

prescribed by C

ity under its police power.

Grantee shall not use any portion

of any street in

City for the construction, maintenance or use of poles, wires, conduits and appurtenances

in such manner as to injure or destroy any tree or tree shrub therein, unless a permit

in writing is first obtained for such purpose from said Superintendent of Streets, or

other officer having charge thereof. In the event said Superintendent of Streets or

other officer refuses to issue any such permit when applied for by GranteeGrantee

may appeal such refusal by filing an appeal in writing with the City Clerk of City,

addressed to the City Council. Such appeal shall be heard at the next ensuing regular

meeting of said City Council,

and

the determination of said City Council thereupon

after such hearing shall be final and conclusive,

and

binding on all parties interested.

"Section 1406.09

Grantee shall, immediately upon installing,

replacing or repairing any poles, wires, conduits and appurtenances, at its own cost

and

expense, place said streets, or so much thereof as may have been damaged thereby,

in as good order and condition as that in which they were before being disturbed or

excavated for the purpose of

installing,

replacing or repairing said poles, wires,

conduits and appurtenances.

"Section 1406.10

Grantee shall

comply with

the terms and provisions

MUNICIPAL CODE SECTIONS

in existence on the effective date of this ordinance of City's

qelh mmixbkm

addIXX 1137

AND 1409 01

THROUGH 1409.12, INCLUSIVE.

Section 1406.11

Grantee shall pay to City a sum of money sufficient

to reimburse it for all publication expenses incurred by it in connection with the

granting hereof; such payment to be made within thirty

(30)

days after City shall

have furnished Grantee with a written statement of such expenses."

Section 2. The franchise granted hereby shall not become effective until

written acceptance thereof shall have been filed by Grantee with the City Clerk of City.

Section

3

Effective Date.

his Ordinance shall become effective thirty

(30)

days

after its final

passage and adoption, unless suspended by a referendum petition

filed as provided by law.

—

CERTIFICATION OF CITY CLERK

I, HUGH BAYLESS, the undersigned, City Clerk of the City of Carmel-by-the-

Sea, California, do hereby certify that the foregoing is a true and correct

copy of Ordinance No.

83-

C.S. which was given its First Reading at a Regular

Meeting of the City Council of the City of Carmel-by-tho-Sea, held on

the 4th day of September,

1963

and finally adopted at a Regular Meeting of

the said Council on the 9th day of October,

1963.

I further certify that

its passage the foregoing Ordi

signed


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N

ORDINANCE NO.

82

_

AN ORDINANCE AMENDING PART XI,

GRANTING TO PACIFIC GAS AND ELECTRK COMPANY, IT SUCCESSORS AND ASSIGNS,

THE FRANCHISE TO INSTALL, MAINTAIKAND USE PIPES AND APPURTENANCES FOR

TRANSMITTING AND

ACROSS OR UPON THE

FOR ANY AND ALL PURPOSES UNDER, ALONG,

PUBLIC STREETS

AND PLACES AS THE SAME NOV OR MAY

HEREAFTER EXIST WITHIN THE CITY OF CARMEL -0Y-THE -SEA.

THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA DOES ORDAIN as follows:

Section I. That Sections 1400 through 1405, Inclusive, of the Municipal

Code be, and the same are hereby repealed, and that the Nunicipel Code be, and the

same Is hereby amended by the addition of new sections which shall read as follows:

Section 1400.01

Whenever in this Ordinance the words or phrases

hereinafter in this section defined are used, they shall have the respective meaning

assigned to then in the following definitions:

(a) The word "Grantee" shall mean Pacific Gas and Electric Company, and its lawful

successors or assigns;

(b) The word City shall mean the City of Carmel -by -the -Sea, • Municipal Corporati

of the State of California, in its present incorporated form or in any later

reorganized, consolidated, enlarged or reincorporated form;

(c) The word "streets" shall mean the public streets, ways, alleys, and places as

the same now or may hereafter exist within City, Including State highways, now

or hereafter established within City, and freeways hereafter established within

City;

(d) The word "gas" shall mean natural or artificial gas, or a mixture of natural

and artificial gas;

(e) The phrase "pipes and appurtenances" shall mean pipes, pipelines, mains, servic

traps, vents, vaults, manholes, meters, gauges, regulators, valves, conduits,

appliances, attachments, appurtenances and, without limitation to the foregoing

any other property located or to be located In, upon, along, across, under or

over the streets of City, and used or useful In transmitting and/or distributin

gas;

;

•

(f) The phrase "install, maintain and use" shall mean to lay, construct, erect.

Install, operate, maintain, use, repair or replace.

"Section 1400.02

The franchise to install, maintain and use In the

streets of City all pipes and appurtenances for transmitting and distributingps to

the public for any and all _purposes is hereby granted to Grantee.

"Section 1400.03

Grantee shall relocate, at its own expense,

vitho

e

x

pense to City or adjacent property owners, any pipes and appurtenances theretofore


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.

or the bringing of the traveled portion of such streets to lawful grade, including

the construction of any

subway or viaduct, provided, however, that the cost of any

such relocation made necessary by the construction or any lawful change of grade,

alignment or width ofany freeway constructed by the State of California shall be

A

divided equally between Grantee and the State of California.

Section 1400.04

Said franchise shall be indeterminate, that is to

say, said franchise shall endure in full force and effect until the same shall, with

the consent of the Public Utilities Commission of the State ofCalifornia, be

voluntarily surrendered or abandoned by Granteeor untilthe State or some municipal

or public corporation thereunto duly authorized by law shall purchase by voluntary

agreement or shall condemn and take under the power of eminent domain, all property

actually used

and

useful in the exercise of said franchise and situate

in

the

territorial limits of the State, municipal or public corporation purchasing or

condemning such property, or until said franchise shall be forfeited for noncompliance

with its terms by Grantee.

"Section 1400.05 Grantee shall during the term hereof pay to City

two per cent (2%) of the gross annual receipts of Grantee arising from the use,

operation or possession of said franchise; provided, however, that such payment shal/

in no event be less than one per cent (1 Ø of the gross annual receipts of Grantee

derived from the sale of gas within the limits of City..

"Section 1400.06

Grantee shall file with the City Clerk of City,

within three (3) months after the expiration of the calendar year, or fractional

calendar year, following the date of the granting hereof, and within three (3) months

after the expiration of each and every calendar year thereafter, a duly verified

statement showing in detail the total gross receipts of Grantee during the preceding

calendar year, or such fractional calendar year, from the Sale of gas within City.

Grantee shall pay to City within fifteen (15) days after the time for filing such

statement, In lawful money of the United States, the aforesaid percentage of its

gross receipts for such

calendar year, or such fractional

i

calendar year, covered by

such statement. Any neglect, omission or refusal by Grantee to file such verified

statement, or to pay said percentage at the time and in the manner specified, shall

be grounds for the declaration of a forfeiture of this franchise and of all rightS

of Grantee hereunder.

"Section 1400.07

Said franchise is granted under the Franchise Act

of 1937.

"Section 1400.08 All pipes and appurtenances which shall be installe


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.

_

and workmanlike manner and at least eighteen (18") inches below the surface of said

streets under the direction of

the Superintendent of Streets of

City, or other office

having charge thereof. and In

compliance

with all valid ordinances and regulations

which are now or hereafter shall be enacted and prescribed by City under its police

power.

Grantee shall not use

any

portion of any street in

City for the installation, maintenance or use of pipes and appurtenances in such

manner 1s

to injure or destroy any tree or tree shrub therein, unless a permit in

writInfris first obtained for such purpose from said Superintendent of Streets, or

other officer having charge thereof. In the event said Superintendent of Streets or

other officer refuses to issue any such permit when applied for by Grantee, Grantee

may appeal.such efusal by

filing an

appeal in writing with the City Clerk'of City,

addressed to the City Council. Such appeal shall be heard at the next ensuing

regular meeting

o said City Council, and the determination of said City Council

thereupon after such hearing shall be final and conclusive, and binding

on

all

parties interested.

Section 1400.09

Grantee shall,

immediately

upon laying, replacing,

or repairing any piper, and appurtenances, at its own cost and expense, place said

streets, or so much thereof as may have been damaged thereby, in as good order and

(*.condition as that In which they were before being disturbed or ex cavated for the

purpose of laying, replacing or rcpmlring said pipes

and appurtenances.

Seption

1400.1co

Grantee shall pay to City a sum of money sufficient

to reimburse it for all publication expenses incurred by it 1ln connection with the

granting hereof;

q

uch payment to be made within thirty (30) days after City shall

have furnished Grantee with a written statement of such expenses."

Section

he franchise granted hereby shall not become effective until

writtin acceptance thereof shall have been filed by Grantee with the City Clerk of Cit

Section

3

Effective Date.

his Ordinance shall become effective

toirty (30) days after Its final passage and adoption, unless suspended by a

•

eferendum petition filed as provided by

law.

CERTIFICATION OF CITY CLERK

I, HUGH BAYLESS, the undersigned, City Clerk of the City of Carmel-by-the-

Sea, California, do hereby certify that the foregoing is a true and correct

copy of Ordinance No. 82 C.S., which was given its First Reading at a Regular

Meeting of the City Council of the City of Carmel-by-the-Sea, California,

held on the 4th.day of September, 1963, and finally adopted at a Regular

Meeting of the said Council on the 9th day of October, 1963.

I further

certif

y

that u p on Its

p assa g

e the fore

g

oin g

Ordi

sicine0


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090I ER1: OEO

N: 164

CHI l I

GRRHTI N

G TO P- CI

FI C G- S AND ELECTRI C OO; ; : P. RKY T76

- SUCCES

i OHi - SSI GNS

, THE FRN

CHI SE

O

F ERP CTI NG CON-

RND USING

CONDUITS,

CONDUO

P

P

LI RNCES

N

SO

TORSSTRUCT-

u s

WRES I =

NEOESSRRY AUL PROPER A

SUCH P- RTS o

PUBLIC

STREETS 7i YS

LNCES

T E E OF S . . 1 1 :

FRANC

FOR

TKE PURPCSE

I TTI NG 1, 1: D DI STRI BUTI NG ELECTRI C ENERGY TO THE PUB-

CI TY OF C- RLEL- BY-THE-SEA

Rs

THE GRRE

17 FROM TIME TO TIla ELZ3T TO USE

OF

L I C

R LI GHT HEAT

POWER = LL L-WFUL USES:

Tt e Ci t y Counci l of t he Ci t y

of Carmel - by- t he-Sea do ordai n

as f ol l ows:

Sect i on 1:

The f r anchi se of er ect i ng, const r uct i n

p

s, mai nt a i n-

i ng and usi ng condui t s, conduct or s, st r uct ur es,

p

ol esw r es and nec-

essar y and

p

r oper appl i ances i n so many and i n suchLpart s of t he

p

ubl i c st r eet s, ways and pl aces w t hi n t he Ci t y of Carmel - by- t he- Sea

as the gr ant ee of sai d f r anchi se may f r omt i me to t i me el ect t o use,

f or t he pur pose of t r ansm t t i ng and di st r i but i ng el ectr i c ener gy to

t he publ i c f or l i ght , heat , power and al l l awf ul uses

, i s her eby

gr ant ed t o Paci f i c Gas

and El ect r i c Company, i t s successor s and as -

s i gns , f o r t h e t er m of f i f t y year s f r o m and af t er t he ef f ec t i v e dat e

o f t hi s o rd i nance upon t he te rms and cond i t i ons i n th i s o rd i nance

p r e sc r i bed .

Sec t i o n 2 :

Al l c ons t r u c t i on d one und er sa i d f r anc hi se shal l

be done subj ec t t o t he gener a l super v i s i on and di r ec t i on o f t he

pr oper

aut ho r i t i es of s ai d Ci t y and i n c o mp l i anc e wi t h al l v al i d o r d i -

nances and r egul at i ons whi ch are now

or

shal l her eaf t er be enact ed

and p r e sc r i bed by s ai d Ci t y und er i t s p o l i c e pc v er .

Sec t i o n 3: Al l p ubl i c s t r eet s , ways o r p l ac es di s t u r bed o r

i t s successo rs o r ass i gns , her eunder , sha l l a t

xcavat ed by grantee,

i t s or t hei r own cost and expense i mmedi at el y be

p

l aced as good

or der and condi t i on as same

l

Aere i n 1: el ' s : i re bei ng so di s tu rbed or

excavat ed.

Sec t i on 4 : The g rant ee o f sa i d f r anchi se

i t s

successo r s o r

as si gns , s hal l dur i ng t he l i f e of

sa

i d

f r anchi se pay t o sai d Ci t y

t wo per c ent ( 2 ) o f t he gr o ss annual r ec ei p t s o f s ai d gr a nt ee, i t s

s uc c es s or s o r a s si gns , ar i s i ng f r o m t he u se, o p er at i o n o r p o s s es s i o n

o f s a i d f r anc hi s e. No

percentage s hal l be p ai d f o r t he f i r s t f i v e

years succeed i ng the dat e of t hi s f r anchi se, bu t t her eaf t er such

per cent age shal l be payabl e annual l y, and i n t he event sai d payment

shal l not be made sai d f r anch i se

s ha l l be f or f ei t e d, p r ov i d ed,

- -

- - -


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-

_

however , t hat i f sai d f r anchi se be a r enewal

of a r i ght al r eady

i n exi st ence the payment of sai d per

cent age of

g

r oss recei pt s shal l

begi n at once.

Sec t i o n 5:

Thi s ordi ce shal l become ef f ect i ve thi r t y

days

an

af t er i t s passage, unl ess suspended by a r ef erendum peti t i on as

pr ovi ded by l aw

Sect i on 6:

Thi s ordi nance shal l be publ i shed once w t hi n

age i n The Car mel Pi ne Cone a

went y days af t er i t s f i nal pass

newspaper of general ci r cul at i on publ i shed and ci r cul ated i n sai d

Ci t y .

irst r ead at a regul ar meet i ng of t he Ci t y Counci l of t he

Ci t y of Carmel - by- t he- Sea hel d on t he 4t h day of December , 1935,

and f i nal l y adopt ed and or dered publ i shed at an adj our ned r egul ar

me et i ng o f s a i d Counc i l on t he 18 t h day o f De ee t t i b er , 193

5, by t he

f ol l ow ng vot e:

AYES:

COUNCI LMEN:

Thoburn, Bur-- BroWnell,

Catlin

i Rowntree

NOES: COUNCILMEN:

Non e

ABSENT:: COUNCILMEN: None

*

*

*

APPROVED: Peeembsr leth,1935

Mayor of said

City.

TTEST

° Z

1

///(214

=

Clerk of

said ity

First read

at a regular meeting of the

my Connell

o to City of Carm el by the h5ea held

on the

a

day of

IfFi

ermwari

193O

and finally dopted

ordered

a, 4z10_i 7.

4

published ntap regular meeting of seid Council held on the

j/-

Y

of

A

19,35 4 by t h e f o l l o wi ng

A2,

te/

YES:

Councilmen; ,,

p,,d-fird,t,(-

1

.-

rS4-4

Couucilmen /6/2

ABSENTr

Councilmen

9

ATTEST

MEIRAI

carmel's request for official notice in support of opening brief 02-26-16

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