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Transcript of 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)
5
6
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10
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CITY OF CARMEL-BY-THE-SEA S REQUEST FOR OFFICIAL NOTICE IN
SUPPORT OF ITS OPENING BRIEF
13
14
1 5
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STEVEN R. MEYERS
BRITT K. STROTTMAN
19
EMILIE E. DE LA MOTTE
20
Meyers, Nave, Riback, Silver & Wilson
555 12th Street, Suite 1500
O aklan d , CA 9 4607
Phone: (510) 808-2000
1
22
Fax: 510) 44 4-1108
E-mail: [email protected]
23
Attorneys for Intervenor
CITY OF CARMEL-BY-THE-SEA
24
25
February 26, 2016
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FILED2-26-16
04:59 PM
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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 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)
5
6
7
8
9
CITY OF CARMEL-BY-THE-SEA S REQUEST FOR OFFICIAL NOTICE IN
SUPPORT OF ITS OPENING BRIEF
10
11
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 .
12
13
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16
Rule 13.9 permits the Commission to take official notice similar to evidence submitted for
17
judicial notice under Evidence Code § 450
et seq.
Evidence Code § 452(b) permits this
18
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
19
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notice of the matter. (Evid. Code § 453.)
24
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,
2
/s/ Steven R. Meyers
3
Steven R. Meyers
Britt K. Strottman
4
Emilie E. de la Motte
5
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
8
9
February 26, 2016
10
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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