My File Copy STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF GENESEE, WILLIAM SCOTT KINCAID ‘And ERAINA POOLE, JUDGE: Richard B. Yuille, intheir individual eapacites, (CASE NUMBER: 12-98490-CZ, and as class ropresenatives ofall other similarly situated plaintiff class members. PLAINTIFFS. FIRST AMENDED COMPLAINT v. AND RELIANCE UPON JURY DEMAND ‘THE CITY OF FLINT, MICHIGAN, ‘a municipal comporation. DEFENDANT. Valdemar. Washingion (27165) ‘MILLER, CANFIELD, PADI Atiomey for Plaintiffs snd STONE, PLC. 718 Beach Steet, Christopher M, Trebileock (P62 P.O. Box 187 John H. Willems (P31861) lini, MI 48501-0187 ‘Attomeys for Defendants 810.407.6868 130 West Jefferson, Suite 2500 Detroit, MI 48226 313.963.5420 David Roth (P77971) Atorneys for Defendants 1101S. Saginaw St 3 Floor nt, ML 48802 810.766.7146 NOW COME Plaintiffs, Wiliam Scott Kincaid, and Fraina Poole, individually, and on behalf of all other similarly situated Plaintiffs, pursuant to MCR 3.501 and MCL § 486.301, et seq by and through their attorney of record, Valdemar L. Washington, and {or their First Amended Complaint against Defendant complain as follows:PARTIES 1. William Seott Kincaid (hereinafter collectively referred to as Plaintifs) ‘was at all matrial times a resident ofthe Cty of Flint, located in Genesee County, State of Michigan and was a eal Water and Sewer customer of the City of Flint’s Water Supply System, also known a the Water and Sewer Department 2, etna Poole (eteinafer collectively referred to as Painif) was a al ‘material tines resident ofthe City of Fling, located in Genesee County, Stat of Michigan and retail Water and Sewer customers ofthe City of Flin’ Water Supply System, also known as the Water and Sewer Department 3, Members ofthe proposed Plaintiff Clas (hereinafter collectively referred to as Pini) were a ll material mes residents or nonresidents of the City of lint, located in Genesce Counly Michigan, who were customers of the City of Flint's Water Supply System, also know as the Water and Sewer Department between July 3, 2006 and September 15,2011 4. Defendant, City of lint, Michigan, (herein ered to as FLINT) is ongnnizcd under the las ofthe State of Michigan as @ Maniipal Coxpraton and designates its as «Home Re City, whose powers are govemed by is ordinances, sate statutes, nis ote in Genesee County Michigan GENERAL ALLEGATIONS Plaintiff estate and reallege each and every allegation set forth in all, ‘previous paragraphs and incorporate dhem by reference herein.6. FLINT operates a Water Supply System, also knovm asthe Water and Sewer Department that provides water and sewer services to its customers, many, ifnot all of whom, are residents of Flint 7. Water and sewer services provided by FLINT are provided to its «customers in exchange for payment of money by its customers, and water is considered 8 commodity being sold under a contrat crested by Flint City Ordinance 46 ~ 16 which provides that FLINT is the vendor of water services and its customers are the purchasers ‘ofthe water commodity 8, Pursuant to its ordinances FLINT’S water and sewer service rates and service charges (also known as readiness-o-serve charges) were a all material times mandatory for its water and sewer customers 9. ‘The payments of money made to FLINT by its customers for water and sewer Services are administered and collected by its Department of Finance, which includes FLINT'S Treasurer's office. 10, FLINT, acting through former city officials illegally, by Ultra Vires ‘misconduct, increased its water and sewer rates and service charges on or about January 15, 2011 by 22% in violation of Flint City Ordinances 46 ~ 52.1 and 46~57.1. 11, FLINT Ondinances 46-52.1 and 46~ 57.1 required that water and sewer zates be calculated and transmited on or before April 15 to the Mayor and City Council for the purpose of calculating all bills forthe forthcoming 12 months beginning July 1 of that year.12, FLINT Ordinances 46-52.1 and 46-57.1 do not, and did not authorize the implementation of an increase in rates and readiness to serve charges effective on or about January 15, 2011. 13, FLINT Ondinances 46-52.1 and 46-57.1 do not, and did not authorize the ‘increase of its readiness to serve charges on customers of is water and sewer services department effective on or about January 15, 2011 14, Atal! imes material hereto In 2011 adjustments to FLINT’S readiness to serve charges had to be enacted by Resolution of the Flint City Council. 15, The increase in FLINT'S readiness to serve charges implemented on or about January 15, 2011 was not approved by a Resolution ofthe Flint City Council, and ‘was therefore Ultra Vires actions. 16, According to FLINT'S Ordinance 46-52 (b1), Flin’s water readiness to serve charges forts retail residential, small commercial and industrial accounts ‘customers with and without remote water meters, must be established from time to time by resolution ofthe City Couneil and that resolution kept on file by the City Clerk contained in Appendix A of the City Code. 17, FLINT'S calelaton ofthe amount ofits water readiness to serve charge and its collection ofthe water readiness o serve charge from its real water customers tween January 15,2011 and September 15,2011 was not approved by a Resolution of the Flint City Couel contained in Appendix A of the City Code and kept on file by the City Clesk, and was therofore an Ultra Vires action, 18, FLINT'S ordinances do not now, and did not on or about January 15, 2011 authorize the calculation of, nor collection of, a water readiness to serve chargefrom its retail residential, small business and industrial water customers with and ‘without remote water meters without a resolution showing how it was calculated and ‘kept on file with the City Clerk in conformity with FLINT City Ordinance 46-52(bX1). 19, FLINTilgaly charged and collected, hrough vious city officals, ‘without legal authority based on #sondinances, rom its etal residential, small busines, and industrial eustomers with and without remote water meters a water readines to serve charge between January 15,2011 and September 15,2011, and as such was an Ultra Vires action. 20. FLINT illegally charged and collected, through various city officials, ‘without legal authority based on its ordinances, from its retail residential, small business, and industil eustomers with and without remote water meters a water readiness fo serve charge between July 3, 2006 and June 30, 2012, and as such was an Ultra Vires action, 21, Atallsimes relevant herein FLINT'S City Code of Ordinanees in general and section 46 ~ 16 jn particule, established contractual relationship between FLINT and Plains which incuded but was not limited to FLINT providing of water and sower servioes andthe water comm tis etal water and sewer costomes in exchange for ‘te payment of money in confomnity with FLINT City Ondinances. 22, The water ate implemented on or bout January 15,2011 constiuted a ‘olation of MCL § 486315 es the 22% water rate inereases andthe ilegathiautorized ‘water service charge was excessive charges for the supply of water to PlaintiffsCLASS ACTION ALLEGATIONS 23, Plaintifs sestate and reallege each and every allegation set forth in all, previous paragraphs and incorporate them by reference herein, 24, ‘The members ofthe proposed class are belived to be customers of FLINT’ water and sewer department from July 3, 2006 through September 15,2011, numbering into the tens of thousands. 25, Customers of FLINT’s water and sewer department numbering into the tens of thousands are too numerous to make Joinder of them practical in this ease. 26, There are questions of law or fact common tothe members ofthe proposed class that predominate over questions affecting only individual members and they are, whether or not FLINT's rate increases and inereased readiness to serve charges ‘were legally permitted under Flint’ City Ordinances 27, ‘The claims of the proposed class members wil all be typical to the claims othe representative partis, a they have al been required to pay lint’s Ultra Vies water an sewer rt increases between Jamsty 15,201 and September 15,2011 and increased water raness o serve charges between June 30,2012 and July 3, 2006 28, Plants will inl and adequately assert and protect the interests ofthe proposed clas as their interests of seeking refunds for having had o pay FLINT's Ultra ‘Vite legally charged and collected water and sewer rae incenses between January 15, 2011 and September 15,201 and increased water readines to serve charges between June 30,2012 and Sly 3, 2006 are all he same which proximately caused all proposed class members, including Piss to make overpayments of water and sewer ils f0 FLINT and which should be ordered refunded to Plaintifs and the class by FLINT29, Permitting the maintenance ofthis action asa classaction willbe superior to other avilable methods of adjudication in promoting the convenient administration of justice. COUNT. BREACH OF CONTRACT — VIOLATION OF FLINT CITY ‘ORDINANCE 46-52 — ILLEGAL WATER SERVICE CHARGE, 30. Plaintiffs restate and reallege each and every allegation set forth in all, previous paragraphs and incorporate them by reference herein, 31, FLINT charged and collected, through various former city officials, from Plaintiffs and all similarly situated water and sewer customers an illegal water readiness to serve charge, also known as a water service charpe between January 15, 2011 and September 15, 2011 in violation of FLINT City Code Ordinance 46-52, and as such was an Ulter Vir action, former city officials from 32, FLINT charged and collected through Plants and ll similarly situated water and sewer customers an illogal water readiness to serve charge, also known as a water service charge betwesa June 30, 2012 and July 3, 2006 in volton of FLINT City Code Ordinance 46-52 and as uch was an Ula Vires action 33, FLINT recived the benefit of charging and collecting said _unaathoriedillegal, Ultra Vies, water service charge payments from Plants and roposed class members between January 15,2011 and September 15,2011. 34, FLINT received the benefit of charging and collecting said unautorizedillgs, Ultra Vires, water service charge paytens from Pits and ‘proposed class members between June 30, 2012 and July 3, 2006.35. FLINT’S charging, collecting, and retaining, its unauthorizedillegal water servic charge fiom Paints and proposed clas members breached is contract with Plants and proposed class members and has resulted in overpayment of contractually obligated expenses by Plants and proposed class members, and as such was an Ulta Vite action 36, FLINT’s actions described herein constitute breach ofits contact with Plaintits and proposed class members, by Ultra Vires actions, to provide them with the water commodity and to recive payment as desorbed in FLINT's City ‘Ozinances and for having violated the same, FLINT that proximately caused Plans to make overpayments fo FLINT which shouldbe ordered refunded by FLINT to Pins and proposed class members forthe period of time between January 15,2011 and September 15,2011 and Jane 30,2072 and uly 3, 2006 COUNT I= UNJUST ENRICHMENT = VIOLATION OF = IMPLIED CONTRACT IN BREACH OF FLINT CITY ORDINANCES - ILLEGAL, WATER SERVICE CHARGE. 37, Plaintfs restate and reallege each and every allegation set forth in all previous paragraphs and incorporate them by reference herein 38, Inthe alternative, FLINT charged and collected an illegal water readiness to ere charge also nov as the water service charge between January 15,2011 and September 15, 201 i violation of the implied contact between FLINT and its water and sewer customer rete by FLINT City Ordinanoes 39. Inthe altratve, FLINT chargot and collected an illegal water readiness to serve charge, also known as the water service charge between June 30, 2012 andJuly 3, 2006 in violation ofthe implied contract between FLINT and its water and sewer customers erated by FLINT City Ordinances. 40, FLINThas unjustly reocived the benefit of ssid unauthorized/llegal water service charge payments from Plaintiffs between January 15,2011 and September 15,2011 41, FLINT has unjustly received the benefit of said unauthorized/tlegal water service charge payments from Plaintiffs between June 30, 2012 and July 3, 2006, 42, FLINT’S charging, collecting, and retaining ofits unauthorized/llegal ‘water sevice charge from Plaintiffs has resulted in an inequity to Plaintiffs in the {orm of forced payments that were not authorized by FLINT"S City Ordinances. 43, FLINT’S actions alleged herein, through the Ultra Vires actions and ‘misconduct of various former city officals constitute unjust enrichment to FLINT ‘hat proximately caused Plaintiffs to make overpayments to FLINT which should be ordered refunded by FLINT to Plaintiffs COUNT IIL’ BREACH OF CONTRACT — VIOLATION OF RLINT CITY ORDINANCES 46-82.1 AND 46 57.1 - MCL § 486.315 EXCESSIVE 22% % RATE SETTING JANUARY 15, 2011 — SEPTEMBER 15, 2011 44, Plaintiffs restate and reallege each and every allegation set forth in all previous paragraphs and incorporate them by reference herein 45. FLINT charged and collected, through vatious formes city officals from Plains onal smiley stated water and sewer customers illegal water and sewer rales ston January 15,2011 and continuing to September 15,2011 which were in violation of FLINT City Code Oninancss 46-521 and 46-57. and as such were Ultra Vires ations46, FLINT received the benefit of those unuthorizedillegally set 22% water and sewer rate payments from, Plaintiffs, between January 15, 2011 and September 15, 2011 and thereby breached its contract with, Plaintiffs, by causing them to make overpayments forthe unreasonable overcharges that FLINT Ultra Vires actions caused tobe submited to Plait for payment. 47, BLINT's UleaVires ations described herein constitute beach ofits contract for water and services and FLINT tht proximately caused Plaintiffs to make overpayments to FLINT which shouldbe olered funded by FLINT to Plants COUNT IV - UNJUST ENRICHMENT — VIOLATION OF FLINT CITY. ORDINANCES 46-52.1 AND 46~57.1 = MCL § 486.315 EXCESSIVE 22% % RATE SETTING JANUARY 15, 2011 — SEPTEMBER 15, 2011 48, Plaintiffs restato and relloge each and every allegation set forth in all srevious paragraphs and incorporate them by reference herein. 49. Inthe alternative, FLINT charged and collected an illegal and ‘unreasonable 29% water and sewer rte from Plaintiffs through Ultra Viresaetions of its former city officials betwoon January 15, 2011 and September 15,2011 in violation of the implied contrat between FLINT and Plaintiff created by FLINT ty Ordinances 50, FLINT has unjustly resved the benefit of sid unsuthorizedillegal and unreasonable water and sewer payments fom Plaintiffs between January 15,2011 and September 15,2011 51. FLINTS charging, oletng, and rotsining of ts nauthorizeditlegal ‘and unreasonable water and sewer payments from Plaintiffs between January 15, 102011 and September 15, 2011 has ested in an net to Panis inthe form of| forced payments hat were not authorized by FLINT'S City Ordinances 52, FLINTS actions allege herein, trough he Uta Virs actions and misconduct of varios former city ffi constitute unjust esicmentto FLINT that proximately caused Plaintiffs to make overpayments to FLINT which should be oered refunded by FLINT to Pitt (COUNT V- EQUITABLE REMEDY — RECOUPMENT BY REFUNDS OF ‘THE 22% WATER AND SEWER RATES OF JANUARY 15,201 AND THE WATER SERVICE, CHARGES FROM JULY 3, 2006 ~ SEPTEMBER 15,2011 53. Pints restate and reallge cach and every allegation st forth nll previous paragraphs and incorporate them by reference herein. 54, FLINT’sexcessvelilegal/Ultr Vies water and sewer rte, and water service charges, charged and collected betwoen January 15,2011 and September 15, 2011 wer illegal charges that were collected fr an improper purpose in violation of| law, incding but not Finite to using resteted water and sewer revenues ofan the general fund or other funds o general operations of FLINT. 55, FLINT’sexcessvefilegal/Uta Vites water service charges, charged and collected between July 3,2006 and September 15,2011 were illegal charges that were collected for an improper purpose in violation of aw, ineloding but not limited to using restuicted water sevice charge revenues o fund the general fund o other funds or general operations of FLINT. 56. FLINT'S actions alleged herein, through the Ulta Vire ations and ‘misconduct of various former ety officials constitute illegal charges and collections n‘ror plaintiffs that proximately caused Plaintiffs to make overpayments to FLINT which should be ordered refunded by FLINT to Plaintiffs. COUNT VI- CLAIMS FOR DELCARATROY RELIEF, 57, Plaintiffs restate and reallege each and every allegation set forth in all previous paragraphs and incorporate them by reference herein, 58. Many members of he proposed clas have boen unable to pay the illegal 2% water and sewer rue increases implemented on o about January 15,2011 and which extended up to September 15,2011 and as a consequence had liens placed gins th tes oftheir eal property an ad ther water sevice disconnected by PUNT. 59. Many members ofthe proposed class have been unable to pay he illegal water service charge implemented on or out July 3,2006 and which extended up to September 15,2011, and asa consequence had liens placed against the tiles oftheir real property and had ther water service disconnected by FLINT: 60, FLINT shouldbe temporaity and permanently enjoined from placing any further ins agsins the tiles of Plinsffs and disconnecting the water sevice of Plainstfs where the dtingueney prompting sid ations included the ilegal water servic charges between Jay 3, 2006 and September 15,2011 and the filegl 2% ‘ator and sewer mt increases between January 15,2011 and Septembor 18,2011 61. Inaddition, FLINshoold be permanently ejoned from using water and sewerrevenes to supplement the general fand or any oter Fund orto in any way contbute tthe general operations of FLINT not pemited by ils own FLINT City ‘Ordinances or Sate Statutes. 2REQUEST FOR RELIEF WHEREFORE, Plaintiffs pray that this Honorable Court will grant them individually, and on behalf ofall others similarly situated, the following requested relief A Enter an Onler that temporatly and permanently enjoins FLINT from collecting water and sewer payments and depositing them into its pooled ‘cash investment account ‘inter an Order that temporarily and permanently enjoins FLINT from. using collected water and sewer payments to pay its general obligations, Enter an Order certifying that there is a clas of people defined as, ‘customers of FLINT's water and sewer services department between July 43, 2006 and September 15, 2011 who are subject to elit in this cause, and that Plaintifs are fair and adequate representatives of said class. "Enter an Order that declares that FLINT's 22% rate increases and increased readiness to serve charges to its water and sewer customers ‘charged and collected ftom its customers between January 15,2011 and September 15,2011 were illegal rates and orders FLINT to account for said increase in rates and charges and to refund the same to Pla Enter and Order that declares that FLINT’S charging and collecting ofits ‘water eadiness to serve charpe hetwern July 3, 2006 and Senternher 15, 2011 from Plaintiffs was ilega, brought about by the Ultra Vir actions of various former ity officials, without authority and onder the same plus interest, costs, and attomey fees soF,— Enteran Onder awarding Plaintiffs reasonable atomey fees and costs. G, Enter an Onder granting such further relief as is warranted in equity and ‘p00d conscience, Respectflly Submitted, ‘VALDEMAR L. WASHINGTON, PLLC Attomey for Plaintfls 718 Beach Street P.O. Box 187 Flint, MI-48501-0187 810.407.6868 RELIANCE UPON JURY DEMAND eins herewith state ther reliance upon the demand for wal by jury previously sade herein. Respectfully Submited, \VALDEMAR L, WASHINGTON, PLLC Dated: July 6, 2016 ByWaldermL. Washingion P7163) Attorney for Plsintifts ‘718 Bosch Streev/P 0, Box 187 lint, MI 48501-0187 810.407.6868