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4 IN THE CIRCUIT COURT FOR THE STATE OF

5 FOR THE COUNTY OF MULTNOMAH

6 LLOYD ANDERSON, PAIGE CRAFORD, and MILLARD CHRISTNER, 7 Case No. 1112-15957 Plaintiffs, 8 PLAINTIFFS’ MEMORANDUM IN v. SUPPORT OF MOTIONS FOR 9 PARTIAL SUMMARY JUDGMENT No. CITY OF , an Oregon Municipal 5 and 6 (PARK FOUNTAINS AND 10 Corporation, CONTRIBUTIONS TO CITY OF NEW ORLEANS) 11 Defendant.

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13 INTRODUCTION 14 The parties previously filed cross-motions for partial summary judgment on four selected

15 categories of expenditures by the City of Portland (“City”) from the dedicated water and sewer

16 funds. The Court issued an Opinion on Cross-Motions for Partial Summary Judgment dated

17 March 10, 2014 (the “Opinion”) as to those particular expenditures, deciding that expenditures

18 relating to utility relocation and the Riverview Cemetery acquisition did not violate the Portland

19 City Charter (the “Charter”), but that significant portions of expenditures from the water and

20 sewer funds for campaign financing and public restrooms were not authorized under the Charter.

21 In so doing, the Court provided meaningful guidance to the parties as to the standard that the

22 Court will apply to the remaining challenged expenditures at issue in this lawsuit. This motion

23 seeks to apply the Court’s prior ruling to two additional categories of water fund expenditures

24 that, plaintiffs believe, constitute equally or more clear violations of the Charter provisions than

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1 those previously found by the Court.1

2 Specifically, this motion asks the Court to find that the following expenditures from the

3 water fund were not authorized under the relevant Charter provisions2:

4 5) Expenditures relating to decorative (and other City park) fountains,3 including the

5 costs of maintaining, operating, repairing, and improving such fountains; and

6 6) Contributions to the City of New Orleans to provide assistance after Hurricane

7 Katrina.

8 As before, plaintiffs wish to make clear that the basis for their claims is not that the City

9 lacks the authority to spend its general funds on the matters subject to challenges herein, or that

10 the foregoing expenditures are not worthwhile or appropriate uses of the City’s general fund

11 monies. Rather, plaintiffs simply contend that the protected water fund created by the City

12 Charter and funded by the water fees paid by plaintiffs and other ratepayers can only be used by

13 the City for purposes that are reasonably related to “water services” provided by the City, and

14 that these expenditures do not meet such standards required by the Charter. Plaintiffs certainly

15 sympathized with the citizens of New Orleans in the aftermath of Hurricane Katrina and do not

16 oppose private and governmental efforts to assist those affected thereby; however, the City

17 reached into the wrong “separate municipal operation” fund to provide aid to those affected by

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19 1 Plaintiffs note that they previously advocated for a more rigorous standard than that adopted in the Court’s prior Opinion, and plaintiffs expressly reserve the right to advocate for a higher 20 standard on appeal. While reserving all such arguments, this motion asks the Court to find that, 21 even under the standard articulated in its March 2014 Opinion, the water fund expenditures challenged herein are not authorized under the relevant Charter provisions. 22 2 Plaintiffs intend to file sequential motions for partial summary judgment relating to categories 23 of expenditures as sufficient information becomes available from the City. The court ruled on plaintiffs’ motions 1 through 4 in its March 2014 order. 24 3 As discussed herein, the types of fountains at issue in this motion are not drinking fountains 25 but, rather, are non-drinking park fountains that are either “decorative” (for aesthetic purposes 26 only) or “interactive” (designed for people to play in and around the fountain).

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1 Hurricane Katrina. Plaintiffs ask the Court to require reimbursement to the dedicated water fund

2 from the source of funds that the City should have used for this (or any other) humanitarian

3 program (the City general fund).

4 Plaintiffs also note that, at least with respect to the City expenditures for fountains, it

5 appears that the City’s legal position in this case might not reflect the views of its political

6 decision-makers. In April 2013, Mayor Charlie Hales publicly questioned the use of water funds

7 for such purpose:

8 The mayor has been critical of past water and sewer spending and said he is making sure water and sewer rates are actually going to 9 pay for water and sewer projects. That’s why his plan calls for a transfer of funding for such services as street sweeping and 10 decorative fountains back to the general fund. 11 Chris Woodward, “Portland mayor: Water, sewer bills will go up after all,” KOIN.com,

12 http://koin.com/2013/04/30/proposed-water-sewer-rate-hike/ (April 30, 2013). See Exhibit 1 to

13 Declaration of John DiLorenzo in Support of Motions for Summary Judgment No. 5 and 6 (Park

14 Fountains and Contributions to City of New Orleans) (“DiLorenzo Decl.”). Shortly thereafter,

15 the City transferred all the financial and other responsibility for the park fountains from the

16 Water Bureau to the Portland Parks and Recreation (the “Parks Bureau”). See, e.g.,

17 https://www.portlandoregon.gov/water/article/454859. (Exhibit 2 to DiLorenzo Decl.) Thus, the

18 City’s own actions appear to acknowledge that the City’s water ratepayers should not bear the

19 financial obligation of operating, maintaining, repairing and improving these park fountains.

20 While the recent decision by the City to discontinue the use of water fund monies for park

21 fountains is a positive development, the City still has failed to account for its prior misuse of the

22 dedicated water fund. Plaintiffs therefore seek the Court’s involvement to declare that the City

23 was not authorized to use water funds for its park fountains, and to require an accounting by the

24 City of all such amounts improperly appropriated from the water fund for park fountains.

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FACTUAL AND LEGAL BACKGROUND 1 A. City Charter Provisions and Standard Adopted by Court Thereunder 2 1. Water fund 3 Under Charter § 11-101, the City is authorized to: 4 “construct, reconstruct, purchase or otherwise acquire, keep, 5 maintain, approve, alter and change water works and all plants and facilities found appropriate by the Council for furnishing water to 6 the City, its property, its inhabitants, and the places and people along or in the vicinity of the pipes, conduits or aqueducts 7 constructed or used for that purpose.”

8 As part of this authority, the City is authorized to acquire property, employ

9 personnel, obtain materials and supplies, and make all other necessary

10 expenditures to supply water to the City and its inhabitants. Charter § 11-101 and 11-102. 11 Charter § 11-105 mandates that “[f]or each fiscal year the Council shall fix 12 water rates which will provide an estimated income to equal expenses and debt 13 service relating to water bonds.” The Portland City Code likewise provides that 14 the “Council approves and sets water rates for each fiscal year that will provide an 15 estimated income to equal expenses and debt service relating to water bonds.”

16 PCC 21.16.010. Charter § 11-104 mandates that all monies received from water 17 ratepayers shall be held in a dedicated fund and used only for specified purposes: 18

19 Money from the sale of water and charges related to water works or service shall be placed in the Water Fund. After deducting 20 sinking fund requirements, operating expenses of the water works and plant and the Water Bureau, which may include depreciation 21 on plant and property, and maintenance expense found necessary or appropriate, the Council may transfer any excess in the Water 22 Fund to the Water Construction Fund.

23 The Council may make transfers between funds in the Water Bureau, but the funds and accounts of the Water Bureau relating to 24 water plant and works shall be separate from other accounts and funds of the City and treated as a separate municipal operation. 25 The Council may impose charges it finds equitable upon the 26 operation of the water system for municipal services of other departments, bureaus and officers, and may impose fees of the Page 4 - PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY JUDGMENT No. 5 and 6 (PARK FOUNTAINS AND CONTRIBUTIONS TO CITY OF NEW ORLEANS) DWT 26769999v2 0094650-000002 DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue  Suite 2400 Portland, Oregon 97201  (503) 241-2300

same character as for public utilities. Otherwise, money in the 1 Water Fund or the Water Construction Fund shall not be 2 transferred to the General Fund of the City, nor to special funds unrelated to the water works, water system and the sinking funds 3 for water bond debt service.

4 2. Standard Adopted in Court’s Prior Opinion

5 After identifying the relevant authorities regarding the water and sewer funds, the Court’s

6 March 2014 Opinion set forth the standard by which it will assess all expenditures challenged by

7 plaintiffs in this action. The Court found that the text and context of the 1966 Charter

8 amendments (reflected in the Charter’s water and sewer fund limitations) “demonstrate that the

9 voters intended to limit Council’s authority, consistent with existing principles governing the use

10 of special or dedicated funds.” Opinion, p. 26. The Court further explained that if voters did not

11 intend to limit the City Council’s authority with respect to water and sewer funds, there would be

12 no reason to have adopted the language in Section 11-104 and 11-302 restricting the use of

13 monies in the water and sewer funds.

14 In its final determination of the intent of the Charter provisions at issue herein, the Court

15 concluded “that monies paid into the funds by water and sewer ratepayers [shall] be spent only

16 on matters that are reasonably related to the water and sewer services provided by the City.” Id.

17 (emphasis added). The Court further noted that “some weight” should be afforded to City

18 Council determinations (and more weight to decisions that resulted from “a transparent process

19 that fosters political accountability”). Id. at 27. However, in the final analysis, the Court’s

20 objective in deciding the challenges herein “is to determine whether the voters would have

21 intended to authorize the type of expenditure at issue when they adopted the relevant Charter

22 provisions.” Id.

23 B. Plaintiffs’ Claims

24 Plaintiffs are Portland residents and have, either directly or indirectly, paid for water and

25 sewer services provided by the City by and through the (“PWB”) and the

26 Bureau of Environmental Services. Second Amended Complaint, ¶¶ 2-4. Monies received by

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1 the City from plaintiffs and other Portland residents are to be placed into the dedicated water and

2 sewer funds to be used only for Charter-authorized purposes. Plaintiffs claim that the City has

3 used water and sewer fund monies for purposes unrelated to providing water and sewer services,

4 including the expenditures from the water fund at issue in this motion. Plaintiffs seek

5 declaratory relief, an equitable accounting, and other equitable relief, including the return to the

6 water and sewer funds of all monies wrongfully expended therefrom from January 1, 2000 to

7 present.

8 The Court’s prior Order found that plaintiffs have standing in this action, and that the

9 “inference that any relief granted by the court will likely result in rate relief for plaintiffs” is

10 “reasonable given the nature of those funds”:

11 “Both funds are ‘dedicated’ funds, that is, both are funded through rates paid by water and sewer ratepayers, respectively. The rates 12 are designed to cover the cost of water and sewer bonds and expenses of the water and sewer systems. The City may not freely 13 transfer money in those funds to the City’s general funds or use those fund for purposes unrelated to the water and sewer systems. 14 Under the circumstances, the inference that plaintiffs’ requested relief will redress their claimed injury is reasonable. That is 15 sufficient to give plaintiffs standing under Oregon law.” 16 Opinion, p. 18.

17 C. Facts Relating to Expenditures Challenged in these Motions 18 1. City Park Fountains 19 The City has long maintained city parks and other public spaces, and many of these

20 spaces have fountains that contain water during at least some portions of the year. See, e.g.,

21 https://www.portlandoregon.gov/parks/42348 “Fountains in Parks,” attached as Ex. 3to the

22 DiLorenzo Decl. (listing 22 different City fountains and the seasons during which each fountain

23 is in operation). Until 1988, such fountains were maintained by and at the expense of the City

24 Parks Bureau. See City Ordinance No. 161007, attached as Ex. 4 to DiLorenzo Decl. (“During

25 the FY 88-89 budget process, the City Council voted to transfer responsibility for twenty-five

26 decorative fountains from the Bureau of Parks to the Bureau of Water Works, effective July 1,

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1 1988.”). The City refers to most of these park fountains as “decorative fountains.” Decorative

2 fountains are, in the City’s words, “for visual appreciation, not for public play and interaction.”

3 City of Portland “Design Guidelines for Interactive Fountains,” at p. 5 (attached as Ex. 3 to

4 DiLorenzo Decl.) Other fountains, styled “interactive fountains,” are designed for “people [to]

5 interact with and play in the water[.]” Id. The water in both types of fountains is not for

6 drinking. See, e.g., “Fountains in Parks” (Ex. 4 to DiLorenzo Decl.), p. 1 (“water flowing in

7 decorative fountains is not for drinking”); p. 3 (“the interactive fountains are chlorinated to the

8 level of a swimming pool”). The City characterizes at least some of these fountains are “piece[s]

9 or artwork” and authorized PWB to disburse monies (from the dedicated water fund) to the

10 Regional Arts and Culture Council (“RACC”) to “oversee repair and maintenance in a way that

11 will not compromise the artistic integrity of the art.” See, e.g., City Ordinances 178765

12 (Shemanski Fountain), 179150 (), and 179960 (Dreamer Fountain), copies of

13 which are attached at Exs. 6-8 to DiLorenzo Decl.

14 As noted above, the City transferred the financial responsibility for 25 fountains to the

15 PWB in 1988. Other fountains were subsequently transferred to PWB, including, for example,

16 the McCoy Park Fountain in 2005 and the Teachers Fountain (located on SW Park Ave., in

17 ) in 2011. Among the many fountains that were until recently maintained and

18 operated with water fund monies were the following: the Ira Keller Fountain (located on SW

19 Third Avenue, in what is now called ), the Fountain

20 (located in Waterfront Park), Fountain (located on NW 10th Ave in Jamison

21 Square), and the Bill Naito Legacy Fountain (located in Waterfront Park). These and other City

22 fountains in Southwest and Northwest Portland are described (with photographs and locations) in

23 the City’s “Portland’s Municipal Fountains A Self-Guided Tour.” See

24 https://www.portlandoregon.gov/parks/article/521803 (a copy of which is attached as Ex. 9 to

25 DiLorenzo Decl.). The Municipal Fountains tour emphasizes that “[m]aintaining these fountains

26 is no small feat[,]” requiring two full time “maintenance mechanics” for general maintenance,

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1 and collaboration “with the Regional Arts and Culture Council to maintain aesthetics at each

2 fountain.” Id. at p. 1.

3 In 2004, a “Decorative Fountain Interagency Agreement” (the “Fountain IGA”) was

4 entered into by the City Commissioners charged with oversight of the Parks Bureau and PWB

5 (and other Parks Bureau and PWB representatives). A copy of the Fountain IGA is attached as

6 Ex. 10 to the DiLorenzo Decl. The stated purpose of the Fountain IGA was to “minimize the

7 confusion and to establish clear boundaries for the maintenance of the fountains and the

8 surrounding property[.]” Fountain IGA, p. 1. Under the Fountain IGA, all operation of the

9 fountains was required to be done by PWB personnel (absent specific writing permission) and

10 PWB was required to incur all financial obligations for the following:

11 • All utility charges pertaining to fountains

12 • All maintenance and repair of the fountains within certain boundaries of the fountain

13 feature. For instance, unless otherwise specified for particular fountains, the Fountain

14 IGA made PWB responsible for all maintenance and repair within the following

15 boundaries:

16 Water supply lines from meter to fountain; fountain water recirculating lines; fountain drain and vent lines; electrical supply 17 lines from meter to fountain vault; fountain vaults, including all mechanical and electrical equipment, vault access and ladders; 18 fountain wind speed sensing equipment, water level probes, and related equipment, including all associated wiring; and all 19 mechanical and electrical equipment within the fountain, including lighting found within the fountain. 20

21 • All water used in connection with the fountains.

22 After this lawsuit was filed, the City transferred the fountains, and all attendant financial

23 and operational responsibilities, back to the Parks Bureau. From 1988 to 2014, however, the City

24 used dedicated water funds instead of City general funds for the repair, improvement, operation

25 and maintenance of the park fountains. The City has not provided to plaintiffs financial

26 information for all fountain expenditures from the water fund from 1988 to present. Instead,

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1 counsel for the City provided the following information by letter date March 19, 2012 (at which

2 time, the fountains had not yet been returned to the Parks Bureau):

3 The Water Bureau has operated decorative fountains in the City since 1988. Ordinance 161007. In the last few years, the Bureau has invested in 4 improvements to several fountains. Bureau accounts record the following 5 numbers for capital and O&M [operating and maintenance] since FY 2006-07 as follows. Capital expenditures, of course, included capitalized overhead. 6 FY FY FY FY FY FY 7 2006-07 2007-08 2008-09 2009-10 2010-11 2011-12 O&M $282,702 $302,639 $26,015 $487,571 $600,019 $151,078 8 Capital $153,463 $126,179 $258,367 $418,365 9

10 See DiLorenzo Decl., Ex. 11, p. 4. According to the City’s numbers, the City took from the

11 water fund $2,806,398 for the park fountains between July 2006 and June 2012. Were the court

12 to extrapolate, the City may well have unlawfully expended in excess of $5.6 million for these

13 purposes. An accounting should be required with respect to all of these amounts acknowledged

14 by the City, and to determine all amounts taken from the water fund for the City fountains from

15 January 1988 through June 2006 and from July 2012 until the City finally transferred financial

16 responsibility to the Parks Bureau.

17 2. Hurricane Katrina Contributions 18 Relying for purposes of this motion solely on facts provided by the City, and without

19 discovery (which plaintiffs do not believe to be necessary unless fact issues emerge that preclude

20 summary judgment in their favor), plaintiffs provide the following information that was received

21 from the City’s counsel:

22 On October 12, 2005, City Council authorized an intergovernmental agreement with the Oregon Office for Emergency Management to 23 provide personnel and equipment to the City of New Orleans for hurricane assistance. The Water Bureau provided two teams of about 24 35 staff along with equipment and supplies for 30-days to help with clean up and repair. The Bureau assisted Sewerage and Water Board 25 of New Orleans with condition assessments of their water system and repaired damaged water mains and services from October 8, to 26 November 26, 2005. During this period the Bureau incurred a total Page 9 - PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY JUDGMENT No. 5 and 6 (PARK FOUNTAINS AND CONTRIBUTIONS TO CITY OF NEW ORLEANS) DWT 26769999v2 0094650-000002 DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue  Suite 2400 Portland, Oregon 97201  (503) 241-2300

of $2,079,312 in expenses to the Water Fund. The Bureau applied 1 for reimbursement to the State of Louisiana, but the entire request was not met. The Bureau ultimate received $1,681,150 in 2007. 2

3 DiLorenzo Decl., Ex. 11, p. 8. Thus, the City used water fund monies to provide PWB

4 personnel, equipment and supplies to assist New Orleans with post-Katrina clean up and repair.

5 Based on the unverified numbers received from City Council, the water fund expended amounts

6 in 2005, was partially reimbursed (without interest) in 2007, and has not been (and will not be)

7 reimbursed in the amount of $461,162.

8 POINTS AND AUTHORITIES

9 A. Summary judgment standard 10 Summary judgment is appropriate where “there is no genuine issue as to any material fact

11 and that the moving party is entitled to prevail as a matter of law.” Miller v. City of Portland,

12 255 Or App 771, 776 (2013) (quoting ORCP 47 C and O’Dee v. Tri-County Metropolitan Trans.

13 Dist., 212 Or App 456, 460 (2007)). There is no genuine issue of material fact if, “‘based upon

14 the record before the court viewed in a manner most favorable to the adverse party, no

15 objectively reasonable juror could return a verdict for the adverse party on the matter that is the

16 subject of the motion for summary judgment.’” Miller, 255 Or App at 776-77 (quoting ORCP 47

17 C).

18 B. Expenditures at issue are improper under the Charter. 19 1. Park Fountains 20 As Mayor Hales and other decision-makers at the City appear to acknowledge, the

21 expenditures for the maintenance, improvement, repair and operation of decorative and

22 interactive fountains at the City parks are not reasonably related to the water services provided

23 by the City. Rather, these expenditures for park fountains serve to enhance the aesthetic value of

24 the City parks (the City regards the fountains as “pieces of art” and pays for the Regional Arts

25 and Culture Council’s involvement in fountain maintenance) and/or to provide a location at

26 which residents can engage in playful activity (akin to other park spaces, such as fields or

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1 swimming pools). In either case, the City is not providing water services, but is instead

2 providing the services and park/recreational amenities that fall squarely within the province of

3 Parks Bureau.

4 While the park fountains certainly use water as part of their decorative or interactive

5 functions, there can be no serious contention that, on that basis alone, the fountains themselves

6 are somehow related to the City’s water services. Indeed, were that the case, the City could

7 divert water fund monies to virtually anything involving water that the City might expend money

8 on (whether a public swimming pool, a building with plumbing, a car with water in the radiator,

9 etc.). That, however, is not permitted under the relevant Charter provisions. Court’s Opinion, p.

10 26 (voters enacting Charter provisions at issue in this case “did not intend to give the Council

11 authority to spend water and sewer funds for anything as long as the City can articulate some

12 relationship or connection, no matter how tenuous, to the water and sewer systems”).

13 In its prior Opinion, the Court found that the City expenditures for the construction,

14 maintenance and cleaning of the Portland loos – which unquestionably use water – were not

15 reasonably related to the City water service (and, thus, were not proper expenditures from the

16 water fund). As with the expenditures for the Portland loos, monies expended to make

17 improvements to the decorative and interactive fountains, to repair them, and to maintain and

18 operate them have only the most tangential relationship to the City water system.

19 In spending over $2.8 million over a six-year period (and possibly in excess of $5.6

20 million during the periods relevant to plaintiffs’ claims) to enhance the “visual appreciation” of

21 its parks and to provide additional play opportunities in its parks, the City did not provide water

22 services for which voters would have intended that the dedicated water fund could be used.

23 When the relevant provisions in the Charter were adopted by Portland voters, these expenditures

24 to improve, repair, operate and maintain park fountains were made from City general funds, not

25 out of protected ratepayer monies. While the City’s decision-makers in 2013 decided to put an

26 end to the raiding of the water fund for these park fountains, the City has still not accounted for

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1 the many years in which it burdened water system ratepayers with the significant costs of this

2 obvious park (and not water) project. Plaintiffs therefore ask the Court to declare that the monies

3 expended from the water fund for the improvement, repair, maintenance and operation of the

4 City park fountains were not authorized under the City Charter.

5 2. Contributions to New Orleans for clean-up and repair projects 6 The expenditures from the water fund to assist the City of New Orleans and its residents

7 after Hurricane Katrina has no relation whatever to the provision of water services provided by

8 the City of Portland. Instead, the contributions (of manpower, equipment and supplies) were for

9 benevolent purposes, to help clean up and repair parts of New Orleans and to provide assistance

10 to New Orleans in its efforts to provide water service to its water customers. That is, the

11 contributions to New Orleans had nothing at all to do with the provision of water service by the

12 City of Portland, although some portion of the City’s donation to New Orleans may well have

13 helped the New Orleans with its own water service. Plaintiffs submit that voters adopting the

14 relevant Charter provisions would certainly not have intended to authorize expenditures from the

15 City of Portland water fund for this type of charitable contribution to an out-of-state

16 municipality. The water services that the City of Portland provides, and for which it charges and

17 collects service fees from plaintiffs and others, does not extend to Louisiana. The expenditures

18 from the dedicated water fund for Hurricane Katrina assistance were not authorized under the

19 Charter.

20 C. The City should be required to provide an accounting of the improper expenditures at issue in this motion. 21 Assuming that the Court provides a declaration that the water fund expenditures 22 challenged in this motion were not authorized under the Charter, plaintiffs request that the Court 23 also require the City to provide an accounting of all amounts improperly expended from the 24 water fund. An accounting is appropriate to enable plaintiffs and the Court to determine the 25 precise amounts that have been improperly taken from the water fund (and the dates of such 26

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1 unauthorized expenditures). Once that accounting has been provided, other equitable remedies

2 can also be pursued (including a constructive trust and reimbursement of all amounts wrongfully

3 appropriated from the water fund).

4 CONCLUSION 5 In light of the foregoing, plaintiffs seek an order granting their motion for partial

6 summary judgment. Plaintiffs ask the Court to declare that the City of Portland has improperly

7 expended monies from the water fund for park fountains and contributions for Katrina Hurricane

8 the two categories of expenditures referenced in this memorandum, and should require an

9 accounting by the City of the water fund monies improperly used for such projects.

10 DATED this 8th day of July, 2015.

11 DAVIS WRIGHT TREMAINE LLP

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13 By /John A. DiLorenzo, Jr. John A. DiLorenzo, Jr., OSB #802040 14 [email protected] 15 Aaron Stuckey, OSB# 954322 [email protected] 16 Telephone: (503) 241-2300 Facsimile: (503) 778-5299 17 Of Attorneys for Plaintiffs 18

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1 CERTIFICATE OF SERVICE 2 I certify that on July 8, 2015, I served one copy of the foregoing PLAINTIFFS’

3 MEMORANDUM IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY

4 JUDGMENT No. 5 and 6 (PARK FOUNTAINS AND CONTRIBUTIONS TO CITY OF

5 NEW ORLEANS) by using the court’s electronic filing system, and by electronic mail:

6 Terence L Thatcher, OSB #841229 Deputy City Attorney 7 Portland Office of City Attorney 1221 SW 4th Ave, Ste 430 8 Portland, OR 97204 [email protected] 9

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11 DAVIS WRIGHT TREMAINE LLP

12 By s/ John A. DiLorenzo, Jr. 13 John A. DiLorenzo, Jr., OSB #802040 [email protected] 14 Aaron Stuckey, OSB# 954322 15 [email protected] Telephone: (503) 241-2300 16 Facsimile: (503) 778-5299

17 Of Attorneys for Plaintiffs 18

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Page 1 – CERTIFICATE OF SERVICE DAVIS WRIGHT TREMAINE LLP DWT 26769999v2 0094650-000002 1300 S.W. Fifth Avenue  Suite 2400 Portland, Oregon 97201  (503) 241-2300