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ODOT - Relocation of Sewer Facilities AU&uat 1, 1975 ; Oregon State ,Highway Department State Hi'bhwgy. Building Salem, Oregon 97310 Rea Billing .Regn: No. AD 11227 State. Highway relocation o£ city's Sewer. facilities Gentlemeni . '. Enclosed is ourc.aheck' in the amount of $4,283..23 which represents our annual in$tallnient due. on the above prpjedt. Sit kerely, Doris Hartig - Ci Recorder. DHams Enclosure August 2p 1974 Oregon State Highway Department State Highway Building Salem, -Oregon "97310 Rea Billing Regn. No, AD 11227 State- Highway Relocation .of City's Stover. facilities Gentlemen Enclosed .is our check in the amount 83 of $4,2 .23 which represents our annual installment due on' the above project. Sincerely, Doris Hartig City Recorder .DHiIw { August 5, 1971 Oregon `State Highway Department State .Highway Building Salem, oregon 97310. Re= Billing. Reqn. No. AD 11227 State ,Highway Relocation of City's Sewer; faeilitids oentlem®n: Enclosed is ourl check in tine amount 'of $4,203.23 wlriOh represents our annual installment du® on the above project. D sincer®ly, Doris Hartig . City Recorder Enclosure A�iguat. �, -1978 Oregon State Yiiowoy Dapartmpnt Stet® III pi*q� :aildiv* qa1enD, pre on- 97310 Ree el.1"liog AD .1122 3 State location of .CitPs f li�ti� �� �l✓,v . En8loeed' i® � ;ch n t of $4 283 0 23 m n r®gr®e®nt� an1 ii at n dui`,an the v® - -- Doris ti City, #t''enr-dnr P r OREGON STATE , . F�ItGHWAY DIVISION HIGHWAY DIVISION .opMa,:,,..,,,a INVOICE NO. , DATE BILLING REQ. NO. YOUR ORDER NO. - - CREDIT DISTRIBUTION 7-23-76 9996=362.00-699 - e City of Tigard City Hall MAKE CHECKS PAYABLE TO Y - _ THE OREGON STATE HIGHWAY DIVISION - Tigard, OR .97223 SEND REMITTANCE TO: OREGON STATE HIGHWAY DIVISION e STATE HIGHWAY BUILDING SALEM, OREGON 9731.0 - DESCRIPTION QUANTITY UNIrPRICE TOTAL PRICE t - I Final Annual.Payment Due to Oregon State Highway �- Division for Relocation of City Sewer Facilities $4,283.50 i .. 1 i 3aa3 i 1 I i '1111mill �. ..�A � I I:imm ImllllImImlIIII 11 In mi 11 Sim. 111111 PI 11111 imililim, I lllmmllIlImil mIlIllmi IIIIIIIMI IIIIIIIIIIIIIIIIIIIIII'm 11 11 1 I 31 1 � �■1 I 1 MINIMUM 33 35 16 38. I� 39 40 loll 10,11111111111111 1 1 I�11 ■1 August 2, 1973 Oregon State Highway Department State Highway Building Salem, Oregon, 97302 Re: Billing Reqn. No. AD 11227 State Highway Relocation of City's Sewer Facilities Gentlemen: Enclosed is our check in the amount of . $9,283.23 which represents our annual installment due on the above project. Sincerely, Doris Hartig City Recorder dh enc. 1 t Anguat 3,. .197a .OregonState. Highway Deparhan®nt State Highw&1r Building Saje,, ., , Oregon Re. Si 6n4 Regi. No., AD 11227 State Highway Relocati©n o City'e Sewor Facilities. Gentlemen Enclosed -'is. aur. check 'inn ..the :amount of 1$ ;.783.23rriiah=' represerite.-our annua1 1 n a t a m"e, n due on. the above . pro Jact. .;' 5in►cese y. - Doris .klarti9 . . . City Recorder d - 10, enc. ;. OREGON STATE Iy 3HWAY DEPARTMENT 141CINWAY DEPARTMENT INVOICE NO. 93301 o0111d A-ISO (s...) DATE BILLING RHO. NO. YOUR ORDER NO. CREDIT DISTRIBUTION 11-17-67 AD 11227 A p 1 �v` 3119b� • �,� MAKE CHECKS PAYABLE TO • city of Tigard `/ THE OREGON STATE HIGHWAY DEPARTMENT • Tigard., ��� lamp R6MITTANC6 TO& OREGON STATE • Oregon STATE HI HWAY~IGHWAY BUILDING DEPARTMENT SALEM, OREGON 67210 DESCRIPTION QUANTITY UNIT PRICETOTAL PRICE Relocation of City's sewer facilities in the right of way limits in con keetion wit the construction of the Pacific Highway nest - South of Interch a Section of the Bea erton- Tigard Highway, Secondary State- tghaay-No. 144 in-Washingt n County. Payment to made by City in equal annual installments for ten year period be inning Auguj it 1, 1967. 467 Lin. Ft. 4" sewer pipe 3.00 1,401.00 2191 " " 8" sewer pipe 3.30 72230.30 1770 " of 15" sewer pipe 5.50 9,735.00 15 Concrete manholes 350.00 5,250.00 4040 Cu. Yds. Trench excavation . 3.00 122120.00 942 Lin. Ft. Extra for pipe underpavement 2.00 19884.00 325 Cu. Yds. Crushed rock 5.00 1,625.00 Construction Engineering 3,587.04 Total 42,832.34 .�G1 RECEIVED Installment due 8/1/68 4,283.23 AUG 6 , 1966 CITY OF TIGARD ORKMON STATE HIGHWAY DEPARTMENT 1416"AY DEPARTMENT 9830 JL INVOICE NO. ll .0ATIt BILLING RHO. NO. YOUR ORDER.NO. CREDIT DISTRIBUTION 1117-67 AD 11227 134-1036-291 *-632 . City of Tigard ` MAKE CHECKS PAYABLE TO THE OREGON STATE HIGHWAY DEPARTMENT Tigard, Oregon SEND REMITTANCE TO: • OREGON STATE HIGHWAY DEPARTMENT • STATE HIGHWAY BUILDING SALEM. OREGON 97310 DESCRIPTION QUANTITY UNIT PRICE TOTAL PRICE flslocation of City's sewer facilities in the right of way 31mits in comnectionwilh the -construction of the Pacific Highway West - South of Interckange Section of the Be rton- .14ard Highway, Secondary State Highway No. -144 in washingt on County. Paymnt to be made by Oit7 in equal annual installments for ten year period beginning August 1, 1967 j Lin. Ft. 40 sewer pipe 3.00 1,401.00 '1191 " 8" sewer pipe 3.30 71,230.30 '1770 11 a 150 sewer pipe 5.50 9,735.00 15 concrete manholes 35o.o0 1 5,250.00 4040 Cu.Yda. Trench excavation 3.00 129120.00 -942 Lin. F't. Extra for pipe underpavement 2.00 1,884.00 325 Cu. Yds. Crushed rock 5.00 11,625.00 Construction Engineering 3,587.4 Total2,832..34 OV' `z U 1967 AMOUNT DUE C TY OF TIGM11 4,283M 4' FORM E-121 • -I ' rte.. I J 4., �.��� . � — COMMISSIONERS �i"�,fl 1•�Vwr^,_t_A- // III, ., G6ENN L. JACKSON. CHAIRMAN MEDFORD KENN. FRIDLEY• MEMBER NETH DAVID B. SIMPSON. MEMBER ,i 9-' I �: �aE0 ■ -PORTLAND: STATE OF OREGON STATE HIGHWAY DEPARTMENT SALEM 97310 July 21, 1966 RFc�,V - Al04 2 �O Mrs. Monnie .Andrews 4141ar 1966 City Recorder T/WARD City of Tigard Tigard, Oregon Dear Mrs. Andrews: We are enclosing for your records a fully executed copy of an Agreement covering a sewer adjustment on the Beaverton-Tigard Highway at its intersection with US99W in Tigard, Washington County. A fully executed copy of the agreement has been retained for the Commission's files. Very truly yours, r � 2c.tiGc' Floyd Query, Secretary OREGON STATE HIGHWAY COMMISSION bb Enclosure JLS:j r 6-13-06 A G R E E M E N T THIS AGREEMENT, made and entered .into by and between the STATE OF OREGON, by and through its State Highway Commission, hereinafter called "State" , and. CITY OF TIGARD, a municipal corporation, acting by and through its city officials, here- inafter called "City" ; W I T N E S S E T H: RECITALS: WHEREAS, State proposes to construct the Pacific Highway West-South Tigard Interchange Section of the Beaverton-Tigard Highway, Secondary State Highway No. 144, in Washington County; and WHEREAS, in the construction of said highway it will be necessary to re- construct certain sewer facilities of City located within the existing right of way of Pacific Highway West, Primary State Highway No. 1W; and WHEREAS, City and State wish to enter into an agreement for the purpose of relocating City's sewer facilities as shown on the Oregon State Highway Department sketch attached hereto marked Exhibit "A" , and by this reference made a part hereof. Hereinafter all actions necessary to accomplish the proposed adjustment of the con- flicting sewer facilities shall be referred to as '.'project" ; and WHEREAS, City does not have funds available with which to pay for,the necessary adjustment of its facilities which conflict with the construction requirements of said project; City has submitted a plan for payment to be made by City to State in equal annual installments for a ten (10) year period. In the first instance, State will pay the contractor for the adjustment of City's facilities, as a part of the general contract; and WHEREAS, State is agreeable to the suggested plan for performing and finan- cing the sewer facilities adjustment; NOW, THEREFORE, the premises being in -general as stated in the foregoing RECITALS, it is agreed by and between the parties hereto as follows: THINGS TO BE DONE BY STATE: 1. State approves said Exhibit "A" , THINGS TO BE DONE BY CITY and GENERAL PROVISIONS hereof. /the 2. State shall prepare all plans, let and award all contracts and supervise construction of said project. 3. State shall submit to City for its approval, completed construction plans relating'to City's facilities at such time as they become available. 4. State shall advise City of State's contractor's bid for the relocation:' �;' of City's facilities. JLS:ja 6-13-66 5. State shall, in the first instance, pay the cost of said project. City shall repay State said cost as provided under paragraph 5 of THINGS TO BE DONE BY CITY. THINGS TO BE DONE BY CITY: 1. City shall notify State in writing of its approval of the contractor's bid price for the relocation of the city sewer line, as provided in this agreement prior to State authorizing the contractor to proceed. 2. City shall provide all right of way required on which to construct said project which lies outside of right of way now owned by State. 3. City shall assist in the preparation of plans and specifications for the relocation of City's conflicting facilities when requested by State and shall. supply such engineering data as may be required by State to complete a satisfactory design. 4. City shall furnish an Inspector for all work performed by State's con- tractor in adjusting City's facilities. 5. City shall reimburse State the actual total cost incurred by State in the construction of said project. 6. Upon completion of the project, all maintenance and operation of City's relocated sewer facilities shall be performed by and at the sole cost of City. 7. On August 1, 1967, and for nine (9) years subsequent thereto, 'City shall pay to State one-tenth of amount resulting from the provisions of. paragraph 5 above, without interest. GENERAL PROVISIONS: 1. It is agreed that all work performed by State with respect to. the relocation of City's facilities shall be completed -to the satisfaction of City. ' 2. City by signing this agreement does not waive its right to bring a declaratory judgment in a court of competent jurisdiction to determine the liability of the parties hereto for the cost of relocating the sewer facilities concerned in this agreement, except that all cost in excess of the most economical adjustment which could be made by State shall be deemed a benefit to City and shall not be subject to such litigation. 3. City shall adopt such ordinances or resolutions as the case may be and do all other lawful acts necessary to authorize the mayor and recorder to sign this agreement on behalf of City and shall attached a copy of such ordinance or , resolution or such other lawful action as may be necessary to this agreement, which Agreement Page 2 JLS:ja 6-13-66 shall become a part hereof. Prior- to signing this. agreement, City shall also adopt such ordinances or resolutions as the case may be, and do all other lawful acts necessary to establish a fund from which the amount due State under this agreement shall be paid, so as to remove said amount due under this agreement from any and all debt limitations that_ may be provided by the City Charter for indebted- ness. IN WITNESS WHEREOF, the parties hereto have subscribed their names and affixed their seals as of the day and year hereinafter written. agreement was approved by the Oregon State Highway Commission on Thi f 4/ , 1966, at which time the Secretary for the Commission was au oriz d and directed to sign said agreement for and on behalf of the. Commission. Said authority is set forth in Volume Page , Minute Book of the Oregon State Highway Commission. Floyd query, Secretary _ APPRO D: Assistant/State Highway Engineer APPR7 AS TO FORM: Chief Counsel CITY OF TIGARD, by and through its city officials By eZL=,= //Mayor By_ Recorder. ATTEST: Agreement Page 3 August 1, 1976 Oregon State Highway Department State Highway Building Salem, Oregon 97310 - Res Billing regn. No.. AD 11227' State Highway Relocation of City's Sewer. facilities Gentlemen: Enclosed is our check in the amount of $4,283050 which represents our final installment due on the above project. Sincerely, Doris Hartig City Recorder DH:Iv Enclosure 1 FRIEDERtCK A. AP;DER50r' Y" ATTOPkEY AT LAW 8865 S. W. CENTER ST. _ TIGARD, OREGON 97223 y `�" •y' 639-1121 P. O. BOX 23006 JAN CyyJ January 29, 1968 G1TY 0'F TIGARO MEMORANDUM TO : City Administrator City of Tigard Re : Contract payment to State Highway Dept. on Sewer Relocation At the last Council meeting, payment to the State High- way Department pursuant to contract with respect to relocation of the City's sewer line at the intersection of Hwy. #99 with the new Baldock-Sunset Intertie, was approved by the Council subject to further advices from the undersigned concerning the applicability of Chapter 272 Oregon Laws of 1967, which reads as follows : "Section 1. (1 ) When location, construction, relocation, reconstruction, maintenance or repair of a state highway requires relocation of any facilities placed or maintained in or on. a public right of way by any municipal corporation, or a district or authority established under ORS chap- ters 264, 450, 451 or 545 , the State Highway Com- mission shall pay the municipal corporation, dis- trict or authority whose facilities are so re- quired to be relocated the reasonable expenses of. relocation, less any benefits and salvage of the relocation. 1+ (2) Subsection (1) of this section shall not apply to facilities located in or on the right of way of a state highway under permits issued by the State Highway Commission upon the condition that the permittee would bear the cost of any relocation. " As noted in subsection (2) , it appears that there .is no room for doubt but what the City must reimburse the State High- way Commission in accordance with the contract , and I , therefore , recommend that payment be made in compliance with the terms thereof.. Respectfully submitted, r Fred. A. Anderson Attorney forCity of Tigard FAA:cb 1 - To: Atty. F.A. Anderson 1/25/68 From: Doris Hartig Subject: Beaverton-Tigard. Sewer; Relocation I ant attaching copy of signed 'agreement with' State Highway Commission. _ Please review and make recommeAdation for next. Council Meeting, Vebruary 12, 1968. Thank you. dna t i =, Avoid Verbal Message,' - CITY OF TYGARD To Mr. Robert K. Logan g'=pm Keith C: Thompson Subject Beaverton-Tigard Highway Sanitary Sewer Date Dec. 21, 1967 Relocation Bob: I recommend that the City of Tigard not accept the above mentioned . sewer line. Several discrepancies have been noted on this line, for example: 1. Those manholes between the proposed stations 16 + 20 and 32 .+ 40 have. several leaks,, as a result of not properly grouting and setting pre-cast concrete manholesections in the base and between the sections. 2. The cast iron manhole frames have not been grouted. or sealed_ to the pre-cast concrete sections on any of the 15 manholes . This causes an excessive amount of leakage in the lower flood land areas. 3. An excessive amount of debris exist in the manholes and lines. Removal of concrete and other debris is necessary before flusYii-ng of the lines. 4 . Several manholes were built in the creek and low flood ground which is under water most of the year. The manhole lids were constructed below the water elevation without water tight lids , and results in unnecessary infiltration through the lid. The above discrepancies should be repaired before the City accepts the line as the City has no' other guarantee that the work-will be completed. Keith C. Thompson KCT/dl OREGON STATE HIGHWAY DEPARTMENT HIGHWAY DEPARTMENT 93301. NO. INVOICE ►ORM r_,ao taut DATE BILLING REQ. NO. YOUR ORDER NO. CREDIT DISTRIBUTION 11-17-67 • J 4 �.+ MAKE CHECKS PAYABLE TO -r • Tr.�v.li l��`,sO� THE OREGON STATE HIGHWAY DEPARTMENT • F'"+ BEND REMITTANCE TO: OREGON STATE HIGHWAY DEPARTMENT • STATE HIGHWAY BUILDING SALEM. OREGON 97310 DESCRIPTION QUANTITY UNIT PRICE TOTAL PRICE r4location of Citgls Bawer ractlttiz$f.r in the ri�izt of way i�j constructio:1 of c-1(3 P=acific ;t -„ .. `U �ts in cor ^cticn 1�ri th3 Tft,az'd Ii�'lL:t�1�. •�+e�-��, ry i. 8 v 1@&L ►Ol.}th oa lnteurwange s=vt�.o2 04 t!In y�an�.`�t7I'c v t r3T .J isc1 :'� K�. y1iS4�3V v� s.4 in r ashik-; Qn CGuntf. .-Iarneat o e made by Cita i.� eyJa3 A"nual ii'latallne to for ten year poriod WrPirming ku t is 19 7 L67 Urms Ft. 4"1 ager pkpe 2191 a a 8" sovmr pipe 3.00 1,04'�l.Co 1773 n a 150 so-mor yj e 3.3.0 7s23�.3 15 Concrete mt3r,,"coles 5.50 9073.. 3 4040 C11olds, rnab excavation 35-o.o0 5015'J.00 942 I:-In. int. .',xtra for uip ;mderpa ro- nt 3.00 1?21110,^* 2.00 li''?Is.C"'7 3?5 Cu• '_ttj'3• Cru4.`.:e$ rock ... ConstrLiction I'm-ineaorinC 5.00 is��,,�5.r0 3s5.)7.04 A!"O'11T VIE 8-1-67 LU 12 1967 4s?53•�'3 riTy OF TIGARD June 289 1966 Oregon' State High ty Department State of Oregon Salem$ Oregon, 97310 Rot State City Agreement Relocation of Tigard sawr facilities Attentions Mr. Jack L. Sollis, Staff Athorney. Gentlemen: At •rdque®ted in your:Mr. Klaboe'e several letters and the last letter from your office signed by Mr. Sollie, the proposed agreement between your Comission and the City of Tigard has been. executed. and is herewith for- warded to You, together together with a copy of the. ordinance authorising its execution establisshing asinking, fund, and covering other essent l: element® sinking, this matter. . I pect that we will receive an executed copy of, the' agreement as "soon as it. is approved by the Cote- very truly yours, Fred. A. Anderson FAA s lir► - Ehclosure CITY OF TIGARD, OREGON ORDINANCE No. 66 - 28 AN ORDINANCE ESTABLISHING A SPECIAL SINKING FUND FOR THE PURPOSE OF PROVIDING FOR PAYMENT OF THE COST OF RELOCATION OF SEWER FACILITIES AT THE INTERSECTION OF BEAVERTON-TIGARD HIGHWAY (Second- ary State Highway #144) and PACIFIC HIGHWAY WEST (Primary State Highway #1W) , PROVIDING FOR DEPOSIT THEREIN OF THE NECESSARY FUNDS, AND DECLARING AN EMERGENCY. WHEREAS, the State of Oregon through its Highway Commission proposes to construct the Pacific Highway West-South Tigard Inter- change section of the Beaverton-Tigard Highway, (Secondary State High- way' #144) in Washington County, Oregon, in connection with which the State has deemed it necessary to relocate and reconstruct certain sewer facilities of' the City of Tigard located within the existing right-of-way of Pacific Highway West (Primary State Highway #1W) ; and WHEREAS, the total cost. of said relocation and reconstruction approximates the sum of $-38,Q-00.00 ,, for the payment of a portion of, which the City has denieA liabiffEy, and for payment of all of which the City has no present ability to pay under its budget or otherwise ; and WHEREAS, the State and the City through negotiations have formulated a plan for financing of the costs of the relocation and reconstruction of said sewers by the State and for reimbursement to the State by the City, all in accordance with the terms set forth on the form of agreement hereto attached, marked Exhibit "A" and by this reference made a part hereof; and WHEREAS, it is the purpose of the City Council of Tigard to hereby establish a financial reserve or special sinking account wherefrom to meet the funding requirements of said agreement (Exhibit "A") and to provide for the deposit therein of revenues for said purposes, NOW, THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS: Section 1: That there is hereby established a financial reserve or special sinking fund" for the purpose of accumulating and reserving funds pursuant to Section 280.100 et seq. Oregon Revised Statutes, wherewith to meet the funding requirements of the agreement for the relocation and reconstruction of sewer service facilities by the Oregon State Highway Department as set forth on the attached Exhibit "A", by reference made a part hereof, the said fund to be known as "OREGON STATE HIGHWAY SEWER RELOCATION SINKING FUND". Section 2: That .there is hereby required to be deposited in said "Sinking Fund" from sewer connection and sewer service charge budgeted revenues of. the City. each month beginning with the month of July, 1966, a sum estimated to be 1/120 of the total Page 1 - ORDINANOE N0.66- _ 2.�,,,. estimated cost of the sewer relocation and reconstruction under the terms of said agreement (Exhibit "A"), for the time being, until the actual cost thereof becomes available, and effective with the month following the availability of said actual cost, said deposits from said source shall be equal each month to 1/120 of said actual cost; that the deposits by this Ordinance required to made into said "Sink- ing Fund" shall have priority as against all other purposes and uses for which said revenues may have been heretofore or hereafter dedi- cated, SAVE AND EXCEPT sewer revenue bonds heretofore issued by the City and outstanding on the date of passage of this Ordinance. Section 3: That the said proposed agreement as hereto attached and I by this reference made a part hereof, is hereby adopted, i and the Mayor and Recorder of the City of Tigard be, and each of them is hereby authorized and directed to execute the same for and on be- half of the City of Tigard in their respective official capacities , and upon execution of said agreement for and on behalf of the Oregon State Highway Commission, said agreement shall be and become binding in all respects insofar as the City of Tigard is concerned. Section 4: That there shall be disbursed from said "Sinking Fund" on the first day of August each year beginning with the year 1967; and for nine (9) years subsequent thereto; to the State of Oregon through its Highway Commission, such sum as necessary to conform to the requirements of Exhibit "A" . Section 5: That nothing herein contained shall be construed as a waiver or relinquishment by the City of Tigard of the right reserved in Paragraph 2 of the General Provisions of Exhibit "A" for the City to have determined its liability to make the payments therein provided. Section 6: Inasmuch as it is necessary to protect the health , peace and safety of' the people of the City of Tigard that pro- vision be made for continuance of sewer service to that portion of the City to which sewer service would otherwise be impaired or dis- continued unless said relocation and reconstruction be undertaken promptly, an emergency is hereby declared to exist, and this Ordinance shall become effective upon its passage by the City Countzil and approval by the Mayor. PASSED: By unanimous vote of all Council members present, after being read three times by title only this 27th day of June, 1966. Record&r - City of Tigard APPROVED: By the Mayor, this 27th day of June, 1966 . G Mayor - Ci t" Tigard Page 2 - ORDINANCE No. 66- 28 __-_ FORM E-129 COMMISSIONERS \ I` GLENN L. JACKSON. CHAIRMAN MEDFORD KENNETH N. FRIDLEY. MEMBER WASCD DAVID B: SIMPSON, MEMBER _ ■..■ae a111 ,1z,y '■, '■• ■ PORTLAND c STATE OF :OREGON STATE HIGHWAY DEPARTMENT SALEM 97310 June 17, 1966 Mr. Fred Anderson Attorney at Law 8865 S. W. Center Tigard, Oregon Re: State-City Agreement Sewer Relocation Dear Mr. Anderson: The State Highway Department feels that the agreement as now written amply protects the City's right to a legal determination of the question of the validity of the permit provisions allowing the sewer pipe to be placed on state highway right of way. We will need to know if the City has signed the agreement no later than June 28, and I would appreciate a call from you on that date confirming that they have signed the agreement. We would also appreciate a return of the signed copies of the agreement with the necessary resolutions attached as soon thereafter as possible so that we may get the agreement approved by the Highway Commission at its next meeting. Very truly yours, G. E. ROHDE Chief Counsel By CK L. SOLLIS aff Attorney JLS:ja cc: F. B. Klaboe Frank C. McKinney T. W. Litchfield D. D. Rohrbough 'I FORM E-129'- COMMISSIONERS GLENN L. JACKSON. CHAIRMAN MEDFORD ` KENNETH N. FRIDLEY. MEMBER IT�WASCODAVID B. SIMPSON, MEMBER ■. ��PORTLAND / STATE'O',F OREGON STATE HIGHWAY DEPARTMENT SALEM 97310 June 13, 1966 City of 'Tigard 12420 S. W. Main Street Tigard, Oregon 97223 Attention: The Honorable E. G. Kyle Mayor Re: Agreement for relocation of City of Tigard sewer facilities outside of city limits. Pacific Highway West- So. Tigard Interchange Section Beaverton-Tigard Highway Dear Mayor Kyle: Attached please find 5 copies of an agreement between the State of Oregon and the City of Tigard concerning the above subject matter. Please execute and return the 5 bluebacked copies of the agreement and as soon as the agreement is signed by the Highway Commission we will return to you an executed copy. Also enclosed are 2 extra copies that you may keep for reference. Very truly yours, G. E. ROHDE Chief Counsel By; 1 ACK L. SOLLIS Staff Attorney JLS:ja Encls. cc: R. L. Porter F. B. Klaboe Frank C. McKinney T. W. Litchfield r I I June 3, 1966 Oregon State Highway Department Salem, Oregon 97310 Attentions F. B. Klaboe, Asst. State Hwy. Engineer Re: Agreement for relocation of City of Tigard sewer facilities outside of city limits . Pacific Hwy. West, East Tualatin Inter- Be avert on-Tigard nter-Beaverton-Tigard Highway Gentlemen: The matter treated in your letter of May 20 as above referenced, was discussed by the members of the City Council at a special meeting held on May 31, 1966. It is, of course, recognized that provision must be made for continuation of sewer service through the line that is being disrupted by your construe tion activi- ties, and in consideration of the attitude of your office, there appears to be no alternative but to capitulate to your demands. Accordingly, the City will undertake to establish the requisite arrangements to cover the financial and other aspects of the matter as generally set forth in your letter. I would suggest that you may, therefore, re-state the proposed agreement in the light of the foregoing and forward a copy for our further examination. Very truly yours, Mayor - City of Tigard EGK/cb FCORM'@=139 i✓ COMMISSIONERS ���� _ GLENN L- JACKSON. CHAIRMAN MEDFORD `e `■ '� ,,„,.-{s --" /' `e KENNETHN. FRIDLEY, MEMBER WASCo ►�i�f G 1 r i Y:: aapG �: DAVID B. SIMPSON. MEMBER 'r.■:�j�■r ;o ?l li, n ;0 a ■ PORTLAND STATE OF OREGON STATE HIGHWAY DEPARTMENT SALEM 97310 May 20, 1966 City of Tigard 124:2')5. W. Main Street Tigard, Oregon 97223 Attention The Honorable E. G. Kyle Mayor Dear Mayor Kyle: Re: Agreement for relocation of City of Tigard sewer facilities outside of city limits. Pacific Highway West, East Tualatin Interchange Section, Beaverton-Tigard Highway In reply to your letter of May 11 concerning the above subject, please be advised as follows: We have reviewed the proposed additional provisions you wish to incorporate into the agreement submitted to you with Mr. Klaboe's letter of April 22 and find that we cannot accept these provisions. As you know, we have opened bids for this project on May 19, 1966. Inasmuch as we did not receive a reply to our letter of April 22 by May 11, we could not allow prospec- tive bidders to include sewer reconstruction in their bids since the City had not made a decision in this regard. There- fore, we deleted all items pertaining to the sewer line as shown on the construction plans from the contract and provided that the adjustment of this sewer line should be handled as extra work by our contractor. This still does not preclude handling the utility adjustment in the manner you desire if you will approve the following additions to the general provisions of the agree- ment that has previously been submitted to you: City by signing this agreement does not waive its right to bring a declaratory judgment in a court of competent jurisdiction to determine the liability City of Tigard Page two May 20, 1966 of the parties hereto for the cost of relocating the sewer facilities concerned in. this agreement, except that all cost in excess of the most eco- nomical adjustment which could. be made by State shall be deemed a.benefit to City and shall not be subject to such. litigation. City ,shall adopt such ordinances or resolutions as the case may be and do all other lawful acts necessary to authorize the mayor and recorder to sign this agreement on behalf of the City and shall attach a copy of such ordinance or resolu- tion or such other lawful action as may be nec- essary to this agreement, which shall become a part hereof. Prior to signing this agreement, City shall also adopt such ordinances or resolu- tions as the case may be, and do all other lawful acts necessary to establish a fund from which the amount due State under this agreement shall be paid, so as to remove said amount due under this agreement from any and all debt limitations that may be provided by the City Charter for indebted- ness. If the City is willing to proceed with the construc- tion of the sewer on this basis, the State, upon awarding of this contract to the low bidder, will negotiate 'a price agree- ment for the work that is presently proposed on the construc- tion plans. If the City is not willing to proceed on this basis, the State will proceed on'the basis as outlined in Mr. Klaboe's letter of April 22. Please advise us of your decision at an early date. Very truly yours, Forrest Cooper State Highway Engineer By 2 F. Klaboe Assistant State Highway Engineer cc: Mr. .Robert Logan, Tigard City Administrator Mr. Frederick A. Anderson, Tigard City Attorney May 11, 1966 State of Oregon State Highway 'Department Salem, Oregon, 97310 Attn: F.B. Klaboe Assistant State Highway Engineer Rel Agreement for relocation of City Tigard sewer facilities outside of city its. . pacific 'Highway West, East Tualat Inter- change Section, Beaverto hway Gentlemen: . This will acknowledge your lett of Apri 2 ,concerning.. the above referenced topic,, involving- rel tion o ity sewer facilities- in connection with construction o i y 99 within the corporate limits of .the City of Tigard. This matter has .been sidered . the ht of the several legal outlooks expressed .i he attorne ©ner 's opinion and circuit court decision how or, in the ,a ence of any .sul reme court or other 'f final authokita N ve decis io some questioni questionremains .as to the ultimate res pons,i ity in c s of- this -kind.. `Phe . C,ity of Tigard, th eq i flowing proposbd additional provision men , companying your April '22, 1966, . letters. . 1. hashall be bound by . the agreement only to the extian lawfully 'assent thereto, .and if at any time in thin the repayment period a final deter- mination oP ity for relocation of city utility services on state 'highways is made .by, the Supreme• Court. of Oregon .with respect to the statutes as now in effect, any- inconsistencies between. the Court ruling and the provis.ions. 4f_ the agreement shall require an amendment of the agreement retroactive to its . effective date to bring the agreement. into conformity with the. law as thus :declared by. the Supreme Court. To: State of Oregon Page 2 State highway Department May 11, 1966 Attn: Mr. F. B. Klaboe 24 In the event that during the continuance. of the agreement ` the question of responsibility for costs of relocation of` ei y utilities within state highways is defined 'by legislative enactment, the subject agreement shall be amended effective with the. effective date of such enactment to reflect the salient provisions ,of such legislation.. It is. respectfully suggested that the foregoing provisions .be in. cluded.,under .the general provisions of the- proposed agreement, and if you have no objection thereto .or .-are 'generally., agreeabl® to this" approach and desire to :reword the forego g to clarify. same, I will be glad to have .your further commen You, o ,course, should appreciate that the_ City i subject to statutory regulation and financial limi same as .your Commission; and there would not appea be a unreasonable. in this request May ;I have your further outloo an ear date. Very t rs,. C T E. G. " d" Kyle Mayor egls.s dh_. t• 1FORM'E4129 {{ f COMMISSIONERS GLENN L. LNNL. JACKSON. CHAIRMANMEDFOD a w s KENNETH oN. FRIDLEY, MEMBER - ! �,��� ." ■ ���:� - DAVID B. SIMPSON. MEMBER.-..`.,.s' .r ,( , `}"; r .a■ PORTLAND ,Y„Y STATE OF"OREGON STATE HIGHWAY DEPARTMENT SALEM 97310 April 25, 1966 Mr. Frederick A. Anderson Attorney at Law 12035 S. W. Pacific Highway Tigard, Oregon Re: Agreement for relocation of City of Tigard sewer facilities. outside of city limits. Pacific Highway West East Tualatin Interchange Section Beaverton-Tigard Highway Dear Mr. Anderson: In conformance with your telephone conversation with Mr. McKinney.on last Friday, enclosed please find a copy of the Attorney General Opinion relating to the payment for the relocation of utilities, and also the recent Circuit Court Decision where the State Highway Commission sued the Clackamas Water District for re- covery of costs for the relocation of their facilities. I trust these will be of assistance to you in determining the liability of the City of Tigard to pay us relocation costs for the sewer project. Very truly yours, G. E. ROHDE Chief Counsel ByC! ACK L. SOLLIS JIS:ja aff. Attorney Encls. cc: F. B. Klaboe Frank C. McKinney T. W. Litchfield i' f 166 OPINIONS OF'ATTO Y GENERAL i., by any other officer or department,-are for- ter 450 may install or maintain its facilities bidden by a necessary and unavoidable im- in or on the right of way of a state highway. (; plication. Every positive delegation of power "(2) When.relocation,reconstruction,main- f to one officer or department, implies a nega- tenance or repair of a state highway requires tion of its exercise by any other officer, de- relocation of facilities placed or maintained i` partment or person. If it did not, the whole in or on the highway under subsection (1) 1! constitutional fabric might be undermined and of this section, the State Highway Commis- destroyed. This result could be as effectively sion shall pay the corporation, district. or i f. ; accomplished by the creation of new officers authority whose facilities are so required to ' and departments exercising.the same power be relocated the reasonable expenses of re- the; and jurisdiction, as by direct and formal location." abrogation of those now existing. And, al- though the exercise of this power by the.. The objections to the above provisions legislature, is nowhere expressly prohibited, as stated by the Governor are: nevertheless they cannot do so. The people (1) Such use of highway funds violates having in their sovereign capacity exerted Article IX, $3, Oregon Constitution. j the power and determined who shell be-their auditor, there is nothing left for the legis- (2) It would be lending the credit of the. 1' lature to act upon. This principle or rule of state contrary to Article XI, 17, Oregon Con- construction of constitutions, has been often stitution. laid down and acted upon by courts. It is (3) The classification of persons benefiting j fully sustained by the following cases recently from this bill is arbitrary and discriminatory. decided by the court of appeals of New York. Articla IX Barto vs. Himrod, 4 Seld., 483; Sill vs. The §3 Oregon Constitution, Village of Corning, 15 N.Y., 297; People vs. provides as follows: Draper, id., 532." (Emphasis supplied) "No tax shall be levied except in pursu- In V1eW of.this case and our answer ance of law, and every law imposing a tax j !' shall state distinctly the object of the same to your first question, your second ques- to which only it shall be applied. The pro - tion as we have interpreted it must be ceeds from any tax levied on, with respect, answered in the ".agativc to, or measured by the storage, withdrawal, y use, sale, distribution, importation or receipt ROBERT Y. THORNTON, of motor vehicle fuel or any other product Attorney.General, used for the propulsion of motor vehicles, and By Peter S.Herman,Assistant. the proceeds from any tax or excise levied on the ownership, operation or use of motor vehicles shall, after providing for the cost of . administration and any refunds or credits i Senate Bill No. 510 of the 1961 session authorized by law, be used exclusively for of the Oregon legislature violates Ar- the construction, reconstruction, improve- tieie 11X, §3, and Article 71, .7, Oregon ment, repair, maintenance, operation, use and Teloca Policing of public highways, roads and streets Constitution, by providing within the state of Oregon, including the tion for certain utility face.les at the retirement of bonds for the payment of which expense of the State Highway Commis- such revenues have been pledged: an('. also Sion. may be used for the acquisition, develo,;.;ant,. i maintenance, care and use of parks, recre- !1 i No.5379 February 1,1962 tional, scenic or other historic places and for the publicizing of any of the foregoing uses f, Mr.Richard L.Kennedy and things." (Emphasis supplied) - Executive Secretary The State Highway Department and Legislative Interim Committee on highway system are operated and main- Local Government tained through taxes levied upon vehicle You have requested on opinion which fuel and ownership or use of motor ve- will set forth what changes, if any, hicles as provided in Article IX, §3. 1 would be necessary to meet the consti- With respect to this fund ORS 366,505 tutional questions raised by the Gover- (2) provides: 4 nor in his veto of Senate Bill No. 510 "The highway fund shall be deemed and of the 1961 Session of the Oregon legis- held as a trust fund and may be used only i lature. for the purposes authorized by law and t' Initially, Of course, it 15 necessary to hereby is continually appropriated for such t analyze the constitutional objections. Purposes." [I a, Thepertinent provision of Senate Bill The purposes authorized in Article' No. 510 which has given rise to these IX, §3, do not include the expenditure objections reads as follows: set forth in § 1 (2) of Senate Bill No. "Section 1. (1) Subject to such reasonable 510. The legislature in passing such a rules and regulations with respect to location, provision would thus be e. -,6ravening i construction or repair as the State Highway the constitutional limitatioi. is: Article Commission prescribes under ORS 374.310,any Iii, §3. domestic water supply corporation operating under ORS chapter 264 or any sanitary dis- In opinion 'X_ j211, dated May 1, trict or authority operating under ORS chap- 1961,.this office :•ated that House Bill' f, i ` OF THE STATE OREGON_ 367 No. 1653, which would have required v. Southern Bell Telephone & Telegraph I the State Highway Commission to use Company, (1958) 204 Tenn.207, 319 S.W. funds to reimburse irrigation districts (2d) 90; Mulkey v. Quillian, (1957). 213 for operation and maintenance charges Ga. 507, 100 S.E. (2d) 7.68; Opinion of which the district would lose by reason the Justices, (1957) 152 Me. 449, 132 of the exclusion of land from the dis- A. (2d) 440; Southern Bell Telephone & trict for highway purposes, was uncon- Telegraph Company v. Commonwealth, stitutional since it violated said Article (Ky. 1954) 266 S.W. (2d) 308. ' §3' We are aware that there have been The opinion stated in part: decisions.in other states which, for vari- "It is clear from the above provision that ous reasons, have held utility reimburse- the revenues derived from such taxes must ment laws proper under their constitu- �, be used exclusively for the construction, re- tions. Minneapolis Gas Co. v. Zimmer- construction, etc., of public highways, roads man, (1958) 253 Minn. 164, 91 N.W. (2d) and streets within the State of Oregon. It 642; Opinion of the Justices, (1957) 101 II. . is also clear that House Bill No. 1653 purports N. H. 527, 132 A. (2d) 613; State Road to authorize payment from the State Highway Commission Fund moneys to an irrigation district for nonssion of Utah V. Utah Power & - Light ssi highway purposes not included within the gCo., (1960) 10 Utah (2d) 333, above constitutional provision. + + •" 353 P. (2d) 171. We believe, however, `hat the above cited provisions of the Article XI, §7, Oregon Constitution, Oregon Constitution require the con- provides: struction we have expressed herein. "The legislative assembly.shall not lend i the credit of the state nor in any manner The final objection made by the Gov- create any debt or liabilities which shall error relates to the arbitrary and dis- singly or in the aggregate with previous debts criminatory classification,of persons who j or liabilities exceed the sum of fifty thousand will benefit from Senate Bill No. 510. dollars, except in case of war or to repel Those who might benefit include "any invasion or suppress insurrection or to build domestic water supply Corporation op- and maintain permanent roads; and the legis- of under ORS chapter 264 or any lative assembly shall not lend the credit oY sanitary district or authority operating the state nor in any manner create any debts under ORS Chapter 450.".Generally dis- or liabilities to build and maintain perma- nentcriminatory classification may roads which shall singly or in the aggre- rY y exist gate with previous debts or liabilities in- where the Act does not affect all per- i'. curred for that purpose exceed four per cept sons Or things equally within a partic- ii the assessed valuation of all the property ular class, and whether or not a bill of the state; and every contract of indebted- is arbitrary depends upon the existence ness entered into or assumed by or on behalf of a reasonable basis for the classifica- of the state in violation of the provisions of tion. Since the bill under consideration this section shall be void and of no effect." includes all domestic water supply cor- It is noted that Senate Bill No. 510 porations and all sanitary districts, no makes no reference as to any limit on discriminatory classification is apparent. '! the amount of money which could be There is a presumption in favor of the spent on the relocation of the utilities validity of legislative classification. In facilities. In view of the monetary re- providing a classification the legislature striction and the prohibition against the has a wide discretion that will not be state lending its credit, as provided in questioned by the courts if any reason- Article XI, §7, it appears that the pro- able grounds exist justifying the distinc- visions.of § 1 (2) of Senate Bill No. 510 tion. Thompson v. Dickson, (1954) 202 would also violate this constitutional Or. 394, 403, 275 P. (2d) 749; Foeller provision. v.Housing Authority of Portland, (1953) Laws similar to Senate Bill No. 510, 198 Or. 205, 261; 256 P. (2d) 752; 16A requiring a state or one of its agencies C.J.S., Constitutional Law, §489. But to pay utility relocation costs when a , see Webb v. State of Oregon, (1959).217 highway was to be improved, relocated Or. 1, 340 P. (2d) 968: or reconstructed, have been passed in In view of the foregoing analysis of i. several states. In the following cases. the constitutional objections raised i such laws have been held to be uncon- against Senate Bill No. 510, we find stitutional as violating either one or that § 1 (2) of that bill violates Article both of the above mentioned sections IX, §3, and Article XI, §7, Oregon of the respective state's .constitutions: Constitution. It is doubtful, however, Washington State Highway Commission whether the bill can also be struck v. Pacific Northwest Bell Telephone Co., down .as arbitrary and discriminatory !. Case No. 36151, — P. (2d) — (decided legislation. In conclusion, it is our opin- .: .December 21, 1961); State of Idaho v. ion that Senate Bill No. 510 .cannot be Idaho Power Company, (1959) 81 Idaho rewritten in valid foxm..without elimi- ;487; 346 P. (2d) 596; State of Tennessee' nating the provision providing for free r 1". • OPINIONS OF ATTORD GENERAL 1 relocation of domestic water supply cor- It is therefore my opinion that the porations and sanitary districts. board may not provide for a mail ballot i ROBERT Y. THORNTON, election in its rules of practice and pro- Attorney General, cedure. It necessarily follows, in answer By Walter L.Barrie,Assistant. to your second question, that the board p cannot direct the conciliator to conduct li- an election by mail. The State Labor-Management Rela- Finally, you have inquired as to the tions Board cannot direct a mail ballot validity of a mail ballot election where election since such an election is con- the parties have stipulated an agree- trary to the plain meaning of §5 (2) ment to that effect. The answer to this of chapter 690, Oregon Laws 1961. question depends upon whether the leg- �.; islation under consideration is manda- No.5380 February 2,1962 tory or merely directory. Courts have Mr,Thomas H.Tongue Chairman held that statutes regulating the manner `i State Labor-Management Relations of marking ballots are mandatory be- I Board cause of the potentialities for fraud re- Board from a directory construction. You have asked for an opinion on Taylor v. Bleakley, (1895) 55 Kan. 1, 39 j ;., the following questions: P. 1045; Higgins v. Gray, (1929) 54 S. I1 "1. Whether in view of the provisions of Dak.488, 223 N.W. 711. See also 3 Suth- Section 5 (2) of the [State Labor-Management erland, Statutory Construction, 3d ed., Relations] Act that the Board 'Shall direct §5820, pp. 113-114, where the author 1 the conciliator to conduct an election by states: secret ballot marked at the place of election,' "Provisions of statutes governing the con- thu Board may properly provide under its duct of elections which have the purpose of 'Rules of Practice and Procedure, Section 5.12, securing a complete and enlightened vote or that: preventing fraud, where failure :_> :cmply is All elections shall be by secret ballot capable of influencing the outcome of the (either by mail or at a place or time set by election, are mandatory. Y • +" the Conciliator).' A stipulation by the parties provid- "2. Whether the Board, at the request of ing for an election by mail ballot could the conciliator,may direct that elections shall conceivably meet the above objections be by mail. "3. Whether, if the parties stipulate that which, among other things, would be an election under the Act shall be held by capable of affecting the outcome of an mail, such a stipulation may be approved by election under the State Labor-Manage- the Board and whether, if so,such an election ment Relations Act. If an election by would be a valid election." mail had been desirable the legislature The language in §5 (2), chapter 690, could have so provided in express Ian- Oregon Laves 1961, providing that the guage.Parties cannot enlarge the powers board "shall direct the conciliator to set forth in the statute by consent. conduct an election by secret ballot Schneider v. Manion, (1950) 217 La. i marked at the place of election"appears 118, 46 So. (2d) 58; 83 C.J.S., Stipula- to be plain and unambiguous. (Emphasis tions, § 10. supplied) "Place," when used in this Having decided that this provision is context, clearly means one specific mandatory in nature it is thus my opin- geographical location. It would be ab- ion, in answer to your last question, surd to imagine that "place" meant, for that the clear language of the statute instance, the living room of every em- may not be abrogated by stipulation. ploye eligible to vote in an election. Yet ROBERT Y. THORNTON, this would be the end result if that Attorney General, language were construed to allow for a By Walter L.Barrie,assistant: mail ballot. See Opinions of the At- torney General, 1944-1946, p. 12; 1958- 1960, p. 131. State Board of Dental Examiners' au- In Feero v. Housley, (1955) 205 Or. thority to employ attorneys to enforce it 404, 415, 288 P. (2d) 1052, the court law is limited by the provisions of ORS stated: chapter 180 and ORS 8.610 to 8.650. "In our opinion, the language used in the No.5381 February 2,1962 statute is perfectly plain,understandable, and wholly unambiguous. Being such, the legis- C.M.Wheeler,D.M D. 15: lative intent must be and is gathered there- Executive Secretary from. It is presumed that the legislature Oregon State Board of Dental meant precisely what its words imply. Such Examiners being the case,we are not permitted to resort to rules of statutory construction in inter- You state that the board has had preting the statute. [citing cases]" under discussion the question of crim- t ' 1. CIRCUIT COURT OF OREGON FIFTH JUDICIAL DISTRICTIl f � 9 n OREGON CITY �~ �.JIrI4? li 3 April 21 , 1966 WINSTON L.2RADSHAW '"- "--••• ,. JUDGE ;kir. G. 1' . Rohde Chief Counsel Sta-ce highway Commission j State Highway Building i Salem, Oregon Re : State highway Commission v . Clackamas Water District No.' 62444 Mr. E{o�•aa_d A. Rankin . Shuler Icayer,Ranki.n & Myers , Attorneys at Law 1016 Oregon Hank Building Porti , nd, Oregon eT?t1-_men '1'11c following is a Memorandum Opinion of the Court ' s decision in the above entitled case : This is an action brought by the plaintiff to recover from defendant the cost of relocating certain water pipelines belonging to defendant which originally were placed within the right of way of county roads and subsequently came within the boundaries of the right of way of the relocation of the Lake Road-Oregon City section of the Cascade Highway, w}1101 by resolution was declared to be a throughway. This realigned right of way crossed a number of county roads at various locations within which county roads the defendant maintained water pipelines . Because of the changes in grade , etc. , necessarily affected at these locations in establishing said throughway, it was necessary that f , these water pipelines be relocated to a greater depth. The plaintiff made demand upon defendant to affect said relocation and defendant refused to do so without being compensated for the cost thereof. Thereafter the ' plaintiff carried out the relocation and seeks to re- cover its costs in doing so. Defendant encompasses a large area within Clackamas County and has served as supplier of water to residents of this area since 1926. klany of its pipelines have been located throughout this period within the boundaries of: county roads within the area, pursuant to a permit to lay such water mains issued to defendant by Clackamas County June 2 , 1927 , as evidenced by plaintiff' s Exhibit #5 and defendant' s Exhibit #1. All those portions of the county roads which came within the right of way boundaries of the relocated Cascade -2- Highway became vested in the plaintiff pursuant to statute and an agreement between the plaintiff and Clackamas County as evidenced by plaintiff's Exhibit #4. Plaintiff contends that defendant has not been deprived of a vested property right through any exercise of eminent Q omain and therefore is not entitled 'to be compensated, and in fact defendant had the responsibility of relocating its mains upon notice to do so from plaintiff. Defendant contends that it has been deprived of property without due process of law and without just compensation. Defendant contends that plaintiff has exercised its right of eminent domain in causing said water mains to be re- located and therefore the plaintiff should bear the cost. Defendant bases such claim on a contention that by virtue of the county permit , it obtained a prior property right which cannot be interferred with or divested by this plaintiff without just compensation. There were several other theories suggested by plaintiff and defendant in argument and brief such as the constitu- tional permission of payment by plaintiff for such reloca- tion .costs ; the effect of the plaintiff having made such payments in prior instances to water districts and cities , and the equities of who can better pay the costs of such relocation. The Court finds it unnecessary to comment upon these facts in light of the Court ' s decision in this case as fully set forth hereafter. It is the opinion of this Court that requiring the reloca- tion of defendant ' s water mains by the plaintiff did not constitute an exercise of the right of eminent domain , or in other words , a taking of a vested property right in defendant without due process of law or without paying just compensation for such taking. The original permit issued to defendant by Clackamas County in no way vested in defendant or created any property right . Such permit can only be construed as a license to use the county roads to lay water mains . This permit specifically requires the defendant to "move or relay any pipes that may in the future interfere with any change of grade or relocation or other work on any road, Clearly this language would require the. defendant to re- locate its lines if the county desired to do such work on the road as would require such relocation. This then takes us to the question of whether or not the -3- plaintiff can require such relocation by the defendant and at its own expense . A uerusal of that section of ORS dealing with the subject of hihxaays reveals in a variety of situations that the legis- lature has recognized a necessity to empower the State to take over or acquire certain public and county roads entirely or in part for the purpose of estab.lishing an orderly system of state highways for the benefit of the public. ORS 374. 075 , relating to establishment of throughways , provides that a county may do anything or all things necessary to cooperate with the State in laying out , acquiring and con- structing any section or portion of any street or highway within the county as a throughway, and to convert any exist- ing street or highway into a throughway. ORS 366 . 320 (3) provides that all right of ways owned or held by counties over and along any roads adopted as state highways , are vested in the state . This does not apply to city streets . The agreement dated December 15 , 1960 , between Clackamas County and the State and made plaintiff' s Exhibit #t4 herein, was apparently entered into pursuant to chapter 374 , ORS. , and particularly under the provisions of ORS 374. 075 , this agreement specifically adopts the provisions of ORS 366 . 320 (3) . The effect then of the resolution of the plaintiff to construct this throughway, the statutes enumerated above , and the agreement referred to , was to transfer the vesting of ownership of the county roads included in the new right of way , from the county to the state . Whether this can be considered a conveyance or a transfer of title by operation of lata , is immaterial . The state acquired all right , title and interest of the county in and . to that portion of the county roads within the right of way, along with the obliga- tion to maintain as a public highway. Of course , such transfer of title or vesting in the state would be subject to such rights that others might have acquired in and to such right of way. Therefore , the state took subject to whatever right the defendant may have had. What was defendant ' s right? As pointed out earlier, this was simply a license to lay water mains subject to be relocated at its expense, if necessary work on the public road required such relocation. Such a permit or license is not a vested property right but merely a permissive use subject to revocation or change whenever the use of the right of way for the benefit of the public requires it. Therefore, upon the State giving notice to the defendant to relocate such pipelines , the Y -4 defendant had the obligation to do so. Plaintiff shall have judgment against defendant for $99839 .98, which the Court finds to be the reasonable cost incurred by plaintiff for relocating the pipelines in question. Sincerely yours Winston L . Bradshaw Circuit Judge WLB :mc I FORM E_123 •'}ice':.:..: € COMMISSIONERS GLENN L. JACKSON. CHAIRMAN _ fL M EDFORD _' KENNETH N. FRIDLEY, MEMBER WASCO DAVID B. SIMPSON. MEMBER ,_h. rBO Bi 'r ` �;� B$ ■y . PORTLAND STATER OF`'OREGON STATE HIGHWAY DEPARTMENT SALEM 97310 April 22, 1966 The Honorable E. G..Kyle Mayor of Tigard City Hall Tigard, Oregon Dear Mayor Kyle: Re: Agreement for relocation of City of Tigard sewer facilities outside of city limits. Pacific' Highway West, East Tualatin Inter- change Section, Beaverton Tigard Highway Attached hereto is the draft of an agreement between the City of Tigard and the State Highway Commission relating_ to the relocation of certain of the Cityts sewer facilities in connection with the construction of the above section of highway. On April 20, a discussion was held between represent- atives of the Highway Department, Mr. Robert Logan City Admin- istrator, and Mr. Fred Anderson, City Attorney, with reference. to the above agreement, at which time we were informed.by Mr. Anderson that he would not advise the City to sign the agreement. With reference to the agreement, it is our feeling that since the State Highway Department has offered to relo- cate your sewer facilities on a route which will fit into your plans for the future development of your sewer facilities, and has also offered to let you pay for this relocation over a 10- year period, we cannot, as demanded by Mr. Anderson, recommend Commission approval of an agreement which would require the State to initiate litigation to recover its costs. I am sure you are aware that the Cityts facilities are located on state highway right-of-way under permit, which requires the City to relocate the facilities at its expense upon due notification by the State Highway Department that such relocation is necessary for a highway improvement. The-Ho n.1 E. G. Kyle Page two April 22, 1966 If you do not wish to approve the attached agreement, we must, in the best interest of the State, relocate your sewer facilities by the most economical means possible. This would be by installing a pumping station and carrying the existing 8 inch sewer line across our structure and' dropping it down on the other side of the structure. The estimated cost of this method of relocation is $10,000.00. If you believe you cannot approve the attached agree— ment, then we shall proceed to relocate the 8—inch sewer line as indicated in the preceding paragraph and, upon completion of the project, will bill you for the cost of such relocation. Very truly yours, Forrest Cooper State Highway Engineer By Assistant State Highway Engineer Enclosure cc: Mr. Robert Logan, Tigard City Administrator Mr. Frederick A. Anderson, Tigard City Attorney uraiti JLS:j 'v 4-22-66 A .G R E E M E N T THIS AGREEMENT, made and entered into by and between the STATE OF OREGON, by and through its State Highway Commission, hereinafter called "State", and CITY OF TIGARD, a municipal corporation, acting by and through its city officials, hereinafter called "City"; W I T N E S S E T H: RECITALS: WHEREAS, State proposes to construct the Pacific Highway West-South Tigard Interchange Section of the Beaverton-Tigard Highway, Secondary State Highway No. 11,.[,•, in Washington County; and WHEREAS, in the construction of said highway it will be necessary to reconstruct certain sewer facilities of City located within the existing right of way of Pacific Highway West, Primary State Highway No. 1W; and WHEREAS, City and State wish to enter into an agreement for the purpose of relocating Cityls sewer facilities as shown on the Oregon State Highway Department sketch attached hereto marked Exhibit "A", and by this reference made a part hereof. Hereinafter all actions necessary to accomplish the pro- posed adjustment of the conflicting sewer facilities shall be refex•red -co as "project"; and WHEREAS, City does not have funds available with which to pay for the necessary adjustment of its facilities which conflict with the construction re- quirements of said project; City has submitted a plan for payment to be made by City to State in equal annual installments for a ten (10) year period. In the first instance, State will pay the contractor for the adjustment of Cityts facilities, as a part of the general contract; and Draft - Page 2 - Agree- t • JLS:ja • 4-22-66 WHEREAS, State is agreeable to the suggested plan for performing and financing the sewer facilities adjustment; NOW, THEREFORE, the premises being in general as stated in the foregoing RECITALS, it is agreed by and between the parties hereto as follows: THINGS TO BE DONE BY STATE: 1. State approves said Exhibit ttAn, THINGS TO BE DONE BY CITY and GRO AL PROVISIONS hereof. 2. State shall prepare all plans, let and award all contracts and supervise the construction of said project. 3. State shall submit to City for its approval, completed construction plans relating to City?s facilities.at such time as they become available. 4. State shall advise City of Statels contractorfs bid for the relo- cation of.City's facilities. 5. State shall, in the first instance, pay the cost of said project. „ I City is to repay that portion of said cost as stated under paragraph 4 of THINGS TO BE DONE BY CITY. THINGS TO BE DONE BY CITY: 1. City shall provide all right of way required on which to construct said project which lies outside of right of way now owned by State. 2. City shall assist in the preparation of plans and specifications for the relocation of Ci.tyls conflicting facilities when requested by State and shall supply such engineering data as may be required by State to complete a satisfactory design. Page 3 - Agreement JLS:ja 4-22-66 3. City shall furnish an Inspector for all work performed by Statets contractor in adjusting Cityfs facilities. 4. City shall reimburse State the actual total cost incurred by State in the construction of said project. 5. Upon completion of the project, all maintenance and operation of City?s relocated sewer facilities shall be performed by and at the sole cost of City. 6. On August 1, 1967, and for nine (9) years subsequent thereto, City shall pay to State one-tenth of amount resulting from the provisions of paragraph 4 above, without interest. GENERAL PROVISIONS: It is agreed that all work performed by State with respect to the relo- cation of Cityts facilities shall be completed to the satisfaction of City. IN WITNESS WHEREOF, the parties hereto have subscribed their names and affixed their seals as of the day and year hereinafter written. This agreement was approved by the Oregon State Highway Commission on , 1966, -at which time the Secretary for the Commission was authorized and directed to sign said agreement for and on behalf of the Commission. Said authority is set forth in Volume , Page , Minute Book of the Oregon State Highway Commission. Floyd Query, Secretary APPROVED: Assistant State Highway Engineer APPROVED AS TO FORM: Chief Counsel CITY OF TIGARD, by and through its city officials Mayor ATTEST: By Recorder