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Case 4:17-cv-00311-ALM-KPJ Document 1 Filed 05/09/17 Page 1 of 25 PageID #: 1

UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

EXIDE TECHNOLOGIES

Plaintiff,

v. Civil Action No. ___________

THE CITY OF FRISCO, FRISCO ECONOMIC
DEVELOPMENT CORPORATION, and
FRISCO COMMUNITY DEVELOPMENT
CORPORATION,

Defendants.

EXIDES ORIGINAL COMPLAINT


AGAINST FRISCO FOR BREACH OF CONTRACT

Plaintiff Exide Technologies files this complaint against Defendants the City

of Frisco (the City), Frisco Economic Development Corporation (FEDC), and

Frisco Community Development Corporation (FCDC, and collectively with the

City and FEDC, the Frisco Parties), and alleges as follows:

NATURE OF THE ACTION

1. Five years ago, in the face of the Citys permitting delays and threats

of forced closure, Exide agreed to shutter its battery recycling facility and sell much

of the surrounding land to the Citys two public development corporations. The

negotiated agreement was a boon to the City, trumpeted as a tremendous

opportunity in the heart of Frisco, providing approximately 180 acres of

undeveloped land the City had long coveted for new development. But while Exide

works to live up to its end of the bargain, the City has embarked upon a pattern and

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practice of delay and withholding that is in breach of the parties agreement.

2. Before the land-sale deal can close, per the parties agreement, Exide

must first complete the remediation of the undeveloped land being sold to the Frisco

Parties under the Texas Commission on Environmental Quality (TCEQ) voluntary

cleanup program (VCP). Exide agreed that this remediation will clean lead-

impacted soil to a more stringent level than required under the TCEQs residential

cleanup standard, and the Frisco Parties agreed to reimburse Exide for

substantially all of the associated costs. The Frisco Parties deposited $1 million

into an escrow account for this purpose soon after the agreement was signed, but

are required to deposit up to an additional $500,000 into that account if Exide, in

good faith, determines that it will incur at least that much in additional costs. The

Frisco Parties and Exide agreed to share equally in any VCP remediation costs in

excess of the $1.5 million. Exide now estimatesbased on assessments from

qualified contractors experienced in the remediation work requiredthat the

proper and complete remediation of that parcel to achieve the agreed upon standard

will cost approximately $2.7 million. Exide thus has requested, pursuant to the

parties agreement, that the Frisco Parties deposit an additional $500,000 into the

escrow account.

3. The Frisco Parties have refused, insistingin the face of all competent

evidence to the contrary, including the Citys own estimatesthat the work can be

completed for no more than the $1 million they have already deposited. The Frisco

Parties insistence that Exide perform the remediation on the cheap is in breach of

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the parties agreement and would otherwise jeopardize compliance with the VCP if

Exide were to perform the remediation pursuant to the Frisco Parties arbitrary cost

estimates. Remediation of this parcel will, under any reasonable estimate, cost in

excess of $1.5 million. Exide is proceeding at this very moment with the fieldwork

to finalize the remediation of the undeveloped land to a cleanup level that is twice

as stringent as even residential-level regulatory standards. Exide is implementing

the Response Action Plan that was driven by the heavily negotiated terms of the

agreement between Exide and the City, and reviewed and commented on by the

City prior to submission to, and approval by, the TCEQ. The approved Response

Action Plan includes many rigorous, protective measures, such as detailed

perimeter air monitoring and dust control measures that must be maintained

during remediation activities. Failure to fund the necessary work is a breach of

contract that demonstrates the Citys intention to obstruct Exides performance

under the contract. Despite the Citys breach, Exide continues to perform fieldwork

pursuant to its agreement with the City.

4. Funding necessary agreed remediation costs is not the only area in

which the City is in breach of the agreement. The North Texas Municipal Water

District (the NTMWD) is a regional water district contracted by the City of Frisco

to, among other things, process permits for wastewater discharges to the publicly

owned treatment works (POTW). More than three years ago, Exide applied to the

NTMWD for a permit necessary to discharge certain wastewater streams from the

former operating plant area. Exide had previously possessed such a permit during

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and following operations, but now requires a new permit. With the plant shut down

and demolished, the wastewater proposed to be treated and discharged includes

fewer streams and is of better quality prior to treatment than Exide was previously

permitted to discharge.

5. This should have been a simple and relatively quick process. Typically

such permits are issued within a few months. Indeed, the NTMWD released a draft

permit just months after Exides December 2013 application, with an effective date

of June 2014. But the City then set about a strategy of delaying and muddling the

process. After years of prompting and requests by Exide, in late 2016 Exide was

asked to submit new, additional information as an update to its long-pending

application. Exide did exactly as requested, confirmed with the water district that

all technical information needed for the permit was submitted, and was advised in

early 2017 that the NTMWD had a draft permit prepared that would imminently be

sent to the City for final review and signature by the Citys Director of Public

Utilities. This culminated with the recent proclamation by the Citynot the water

district charged with processing the permit, as would normally occur in this

processthat Exide would never receive any permit. No substantive reason has

been provided for this refusal. But whatever the reason, the result will be the

continuation of unnecessary and burdensome increased water management logistics

and costs to Exide. As the parties agreement requires the City to cooperate and

assist Exide in its permitting needs, these actions are a further breach of that

agreement.

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6. Exide agreed to remediate the undeveloped land under the VCP and is

working in good faith to finish that work with appropriate detail and diligence.

Notably, City consultants are present on-site virtually every day site work is being

completed, observing, and in contact with, the Exide field personnel. Yet the City

has demonstrated an intention to obstruct closing, breached its remediation escrow

funding obligations, and in bad faith has delayed the processing of, and is

withholding, the Citys signature on the NTMWD discharge permit. Exide brings

this action seeking judgment from this Court requiring the Frisco Parties to

specifically perform their obligations under the parties agreement, including by

abiding by the agreed-upon remediation funding requirements for the undeveloped

land, and assisting Exide in securing required permitsin particular the permit to

discharge to the City sewer and POTW.

PARTIES

7. Plaintiff Exide Technologies is a manufacturer and recycler of lead-

acid batteries used in a variety of settings and industries, including automotive,

marine, mining, railway, telecommunications, medical, and military services, and

the owner of the former lead recycling facility in Frisco, Texas. It is incorporated in

Delaware, with a principal place of business in Milton, Georgia.

8. Defendant the City of Frisco is a home rule city organized and existing

under the laws of the State of Texas. The City may be served by serving the City

Secretary, Jenny Page, at 6101 Frisco Square Boulevard, 5th Floor, Frisco, Texas

75034.

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9. Defendant the Frisco Economic Development Corporation is a non-

profit corporation created by the City pursuant to the Texas Development

Corporation Act, which permits municipalities to create and use a nonprofit

corporation to issue bonds on the municipalitys behalf and to promote and develop

new and expanded business enterprises for the promotion and encouragement of

employment and the public welfare. FEDC is organized under the laws of the State

of Texas, where it also has its principal place of business, and may be served by

serving its registered agent, George A. Purefoy, at 6101 Frisco Square Boulevard,

5th Floor, Frisco, Texas 75034.

10. Defendant the Frisco Community Development Corporation is also a

non-profit corporation created by the City pursuant to the Texas Development

Corporation Act. FCDC is organized under the laws of the State of Texas, where it

also has its principal place of business, and may be served by serving its registered

agent, George A. Purefoy, at 6101 Frisco Square Boulevard, 5th Floor, Frisco, Texas

75034.

JURISDICTION AND VENUE

11. This Court has jurisdiction over this lawsuit under 28 U.S.C. 1332

because there is complete diversity of citizenship and the amount in controversy

exceeds the sum or value of $75,000, exclusive of interest and costs.

12. This Court has personal jurisdiction over each of the Defendants

because each resides in Texas; each continuously and systematically conducts,

transacts, and solicits business in Texas; each contracts with Texas residents where

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either party is to perform the contract in whole or in part in Texas; and because

each has committed acts in Texas giving rise to the claims in this Complaint.

13. Venue is proper under 28 U.S.C. 1391 because a substantial part of

property that is the subject of the action is situated in this District, a substantial

part of the events or omissions giving rise to Exides claims occurred in this District,

and because the Defendants reside in this District.

STATEMENT OF FACTS

A. The City works to force Exide to close its battery recycling facility.

14. For decades, Exide operated a battery recycling facility in Frisco,

Texas, near the intersection of the Dallas North Tollway and Cotton Gin Road,

where in recent years more than 130 Exide employees recycled more than 6 million

batteries per year.

15. When the facility broke ground in 1964, Frisco was a rural farming

and railway community that had just cracked the 1,000-resident mark. But as

Frisco grew in recent years at an incredibly steep pacefrom 33,714 residents as

recently as 2000, to 116,000 in 2010, to approximately 160,000 today, and a Master

Plan that anticipates reaching the 350,000 markthe City began to view the Exide

facility and its central location as an impediment to the Citys future plans. By

2006, the City was planning for the Exide facilitys removalCity planning

documents show a desire that the Exide land no longer be used for any industrial

purpose, but instead be developed with office buildings and public open spaces.

16. In the following years, the City manipulated its zoning ordinances and

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denied permits to Exide, making it more difficult for Exide to operate, and

obstructing Exides plans to comply with federal standards.

17. In 2011, responding to civic concerns regarding pollutants released

during the battery recycling process, Exide reached an agreement in principle with

the City and the TCEQ to make more than $20 million in improvements to its

facility that would result in Exide exceeding newly-enacted federal standards.

Exide began work to implement those improvements.

18. But months later, the City refused to take action on Exides

applications for permits necessary to make the planned site improvements.

Instead, the City Council voted to request that the City Board of Adjustment set a

compliance date by which Exide would be required to cease all recycling operations,

which would have legally barred Exide from using the facility for its historical and

intended purpose of recycling batteries.

19. The City and Exide both threatened litigation, but ultimately reached

an agreement to resolve the matter out of court, entering into a Master Settlement

Agreement (the MSA) on June 6, 2012 that called for the shuttering of Exides

recycling facility. In announcing the MSA, Frisco City Manager George Purefoy

said:

Exide has been a good corporate citizen of Frisco for more than four
decades. This agreement recognizes that Frisco has changed from a
rural community of about 1,100 people into one of the fastest-growing,
most dynamic cities in the nation, with a current population of more
than 125,000 people. This is a good business decision for Frisco that
ensures a positive outcome for the City, Exide and protects the public
as well as private investment around our central business district for
years to come.

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Exide CEO and President Jim Bolch announced the deal as follows:

This agreement was a difficult one to make as Exide is committed to


its employees and continuing to provide the critically important
environmental service of recycling spent lead-acid batteries. However,
this agreement makes the most sense for both Exide and the City of
Frisco to move forward.

B. Exide agrees to shutter its recycling facility and sell much of its land
to the Frisco Parties.

20. The MSA was comprehensive, and would result in great benefit to the

City and its goal of continuing to grow and develop the burgeoning neighborhood

that has grown up around the Exide land. Exide agreed to cease operations and

conduct closure of its recycling facility in accordance with applicable regulatory

requirements, and to remediate and then sell to FCDC and FECD an approximately

180-acre tract of land surrounding the main facility site.

21. The MSA required that no later than December 31, 2012, Exide

permanently cease all business operations on the approximately 90 acres of land

where its operating plant and landfill sat, a site referred to as the Bowtie Parcel

due to its shape. Exide did so on November 30, 2012, and then set about meeting

the MSAs requirement to demolish and remove certain above-ground facilities on

the Bowtie Parcel. Exide substantially completed this work in August 2013, and

finalized the work in January 2017.

22. Surrounding the Bowtie Parcel is what the parties refer to as the J

Parcel, an approximately 180-acre, undeveloped, J-shaped piece of land that had

acted as a buffer zone between the recycling facility and the surrounding properties.

Exide agreed to remediate the J Parcel soils to a standard twice as stringent as the

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residential cleanup standard for lead, with the City responsible for reimbursing the

costs related to that remediation. Exide would then sell the J Parcel in two tracts to

the Citys two development corporations: one tract to FEDC, for a purchase price of

$27,000,000, and one tract to FCDC, for a purchase price of $18,000,000, for a

combined $45,000,000. Those amounts are held in escrow along with the executed

deeds until the Closing Date, which will occur after remediation of the J Parcel is

complete and the TCEQ issues a confirmatory certificate referred to as a

Certificate of Completion.

23. The following image, adapted from an exhibit to the MSA, depicts the

Bowtie Parcel and J Parcel and their location within Frisco:

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24. In a letter to Frisco residents and members of the business community

trumpeting the MSA, Frisco Mayor Maher Maso explained the boon to the Citys

development plans that would result, noting that when the deal was presented to

the FEDC and FCDC those entities board members quickly recognized it as a

tremendous opportunity in the heart of Frisco, and consider their 180-acre land

purchase a resourceful solution resulting in boundless possibilities!

25. Further explaining the Citys plans for the J Parcel after its transfer to

the FEDC and FCDC, Mayor Maso first recalled the work these entities had

previously performed to bring our community such developments as the Dr Pepper

Ballpark, the Dr Pepper Arena, FC Dallas Stadium, FieldhouseUSA, Frisco

Heritage Center, Frisco Discovery Center, and the future Museum of the American

Railroad. He then told his constituents:

Under FEDC and FCDC ownership, the 180-acres particularly the


tract stretching alongside the Dallas North Tollway frontage road
have potentially greater value as corporate headquarters and office
space. Developing these parcels benefits Frisco, FISD and our two
Collin County taxing districts. Indirectly, this move helps us maintain
our low tax rate, currently one of the lowest in North Texas. The 180-
acres may also be resold, developed as parks, or utilized for other city
services, such as a fire training facility or municipal court. In the long
run, we expect to create much more property value than the land
purchase price. Additionally, we anticipate development of this
property whether by private or public parties will ultimately
translate into new jobs for our community.

26. The parties recognized that completing all necessary tasks to get to the

Closing Date would require their mutual cooperation and collaboration. Some of

that cooperation and collaboration is reflected in specific terms of the MSA, dealing

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with issues such as shared expenses and shared responsibilities. For the avoidance

of doubt, each party also agreed in Section 17.1.1 to use its best efforts to do what

was necessary to facilitate the consummation of all aspects of the MSA:

Exide and the Frisco Parties each agree to use its best efforts to take or
cause to be taken all action, and to do or cause to be done all things
necessary, proper or advisable under applicable Governmental
Requirements, regulations or otherwise, to consummate and to make
effective the transactions and other activities contemplated by this
Agreement, including, without limitation, the timely performance of all
actions and things contemplated by this Agreement to be taken or done
by each party.

C. The Frisco Parties refuse to provide additional funds to cover costs


Exide will incur in connection with the proper remediation of the J
Parcel, in breach of the MSA.

27. Though Exide is responsible for conducting the remediation of the J

Parcel, the Frisco Parties are, subject to cost sharing above $1.5 million, responsible

for all costs associated with the . . . remediation of the J Parcel. The Frisco

Parties were required, within 90 days of the MSAs execution, to deposit into an

escrow account $1,000,000 in Remediation Funds that shall be disbursed to Exide

in reimbursement of the remediation costs associated with J Parcel as more fully set

out in Section 5.2 hereof.

28. Exide is permitted to submit requests for reimbursement from this

account on a monthly basis, after which the Frisco Parties are provided 10 days to

object to such request. In the event any objection cannot be resolved by the parties

business representatives, the parties are required to submit the matter to

mediation prior to pursuing litigation. The Frisco Parties have objected to Exides

recent reimbursement requests, which objections the parties are currently seeking

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to resolve through this alternative dispute resolution process.

29. Though the Frisco Parties were only required to make an initial

$1,000,000 deposit of Remediation Funds, the parties understood and the MSA

contemplated that the remediation costs could exceed that amount. If so, the

agreement requires the Frisco Parties to deposit up to an additional $500,000, after

which Exide and the Frisco Parties will share equally in any further costs. Section

5.2.2 of the MSA explains:

If during the course of the Remediation of the J Parcel and the Lake
Parcel, Exide in good faith determines that it will incur costs in excess
of $1,000,000, it shall notify the Frisco Parties in writing of its
estimate of additional costs. Subject to the Frisco Partiess consent,
following a good faith evaluation of Exides estimate, the Frisco Parties
shall then deposit such additional amount in the Remediation Funds
Escrow Account; provided that any such additional deposits shall in no
event exceed $500,000 in the aggregate. If the costs of conducting the
Remediation of the J Parcel and the Lake Parcel exceed $1,500,000,
the Frisco Parties pay for one half of any such additional costs and
Exide shall pay for one half of any such additional costs.

30. In December 2016, Exide informed the Frisco Parties that, based on

information received from the two contractors who were performing the J Parcel

remediation work, Exide believes the costs associated with the J Parcel

remediation will total $2,706,000 . . . , which is in excess of the original $1,000,000

escrowed funds. Exide thus requested [p]ursuant to Section 5.2.2 of the MSA . . .

that the City remit an additional $500,000 to the Remediation Funds Escrow

Account. Exides estimate included the following components:

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Task Contractor Estimate


Soil Waste Characterization Golder $149,000
Tree Survey Golder $25,000
Monthly Reports Golder $5,000
Remediation Oversight and Report
Golder $369,000
Preparation
Tree Protection Fence RSI $12,000
Site Preparation, Source Water
Assessment and Protection,
RSI $2,146,000
Excavation, Transportation, and
Landfill Placement
$2,706,000

31. After a lawyer representing the City responded seeking additional

documents supporting Exides estimate, Exide on January 13, 2017 provided the

Frisco Parties with physical copies of the estimates and quotes it had received from

its remediation contractors.

32. The Citys lawyer responded on March 2, 2017, acknowledging that

Exide had provided reasonable backup for the costs that would be incurred by the

contractor performing the soil waste characterization, tree survey, monthly reports,

remediation oversight, and report preparation work for Exide. Those estimated

costs total $548,000.

33. With respect to the remaining $2,158,000 estimate for remediation

work to be performed by the second contractor, the City complained that the

contractors cost estimates are significantly greater than recent actual costs the

City has paid for similar work, and listed six specific areas for which the City

needs additional, specific information on the basis of each cost estimate to

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determine if RSIs cost estimates are reasonable.

34. Exide responded on April 3, 2017, providing comprehensive written

responses addressing each of the six specific costs for which the City requested

additional information, along with eleven pages of spreadsheets detailing the unit

costs underlying the estimate. Exide further provided additional explanation of the

basis for its own good faith determination that the estimates were appropriate,

noting its own experience in these matters:

Based on Exides experience with remediation contractors generally,


and with RSI in particular, Exide concluded that RSI has the requisite
experience, expertise, staffing, equipment, and subcontracting
relationships as well as specific site familiarity and background for
this project. Moreover, Exide concluded RSIs costs are reasonable and
its budget estimates are appropriate for this specific project.
Accordingly, Exide engaged RSI for the J Parcel remediation work.

35. Exide also pointed out the irrelevance of the Citys reliance on costs

charged by other contractors at other sites for tasks such as the clearing of debris

and vegetation, excavation/disposal, placing backfill, and air monitoring, as the City

provided no information about the context in which those other costs were incurred,

and gave no reason to believe that those costs were relevant to the complex site

remediation activities required under the TCEQ-approved VCP:

Although you have suggested that some of the RSI cost estimates may
be higher than costs the City recently has incurred on City projects,
the RSI costs are reasonable for the activities being performed by RSI
given site specific considerations and relevant TCEQ requirements.

Further, we find without any merit your comparison to costs the City
has incurred or been quoted for its own projects. The City has failed to
provide any details concerning the sites you are using for comparison
purposes, including complexity of work or site conditions. In fact, we
believe that some or most of the dollar figures included in your letter
likely do not represent a reasonable comparison to the conditions and

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requirements that exist for the Exide J Parcel remediation.

36. The MSA provides that If during the course of the Remediation of the

J Parcel . . . Exide in good faith determines that it will incur costs in excess of

$1,000,000, up to an additional $500,000, the Frisco Parties shall then deposit

such additional amount in the Remediation Funds Escrow Account. The Frisco

Parties are entitled to first perform a good faith evaluation of Exides estimate,

but otherwise must fund the additional amount.

37. Despite this clear contractual requirement, and the significant amount

of information (more than required) that Exide provided in support of its estimate,

the Frisco parties refuse to meet their obligation. In a letter dated April 6, 2017,

Exides Section 5.2.2 request was formally rejected. The City did not respond to or

address the voluminous supporting information Exide had provided days earlier,

instead simply stating without substantiation that all of the remediation activities

required by the TCEQ approved VCP for the J-Parcel can be completed . . . without

the necessity of additional contributions by the City.

38. This refusal is not the result of any good faith evaluation by the

Frisco Parties, but a blind refusal to fund the additional money required to

appropriately remediate the J Parcel as required by the MSA. This is proved by the

Frisco Parties own stated position on the matter, which is that Exides contractors

unit costs are too high because they are higher than unit costs the City claims it

recently paid others for similar tasks. Even if the Exide contractor were to

charge unit costs equal to those the City provided as recent examples of

appropriate unit costs, the total estimate for J Parcel remediation would

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still be well in excess of $1.5 million, at $2,097,281. Exide pointed this out to

the Frisco Parties in its April 2, 2017 letter; the Frisco Parties have provided no

justification for their refusal to fund in response. The Frisco Parties position that

no more than $1,000,000 need be spent is made all the more absurd by their

acknowledgement that Exides estimated costs for soil waste characterization, tree

surveying, remediation oversight, and report preparation work for Exide is

justifiably estimated to be $548,000. There is no basis for the Frisco Parties to

contend that the balance of the work (including any costs for site preparation,

source water assessment and protection, excavation, transportation, and landfill

placement) may be properly performed for $452,000, less than one-third of the

Frisco Parties own estimate for that particular work.

39. The Frisco Parties thus can have no good faith basis to decline to

deposit the additional $500,000 into the escrow account, as the MSA requires them

to do. Under any known estimate, well more than that will be spent in remediation

of the J Parcel. By arbitrarily maintaining that Exide should spend no more

than $1,000,000 on the remediation, the City and the other Frisco Parties

are in effect insisting that the remediation not be completed as required--a

proposition Exide rejects as it continues to properly and completely

implement the agreed cleanup under the approved Response Action Plan

even without the agreed financial support from the City.

40. Exide would of course have no incentive to incur remediation costs of

approximately $2.7 million if that work could instead be properly performed for $2.1

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millionor lessas Exide is responsible for $0.50 out of every $1.00 spent above

the $1.5 million mark. The only rational conclusion is that Exides estimate is

reasonable, and that the Frisco Parties are either shirking their own

responsibilities to ensure proper remediation of the J Parcel, or are for some reason

attempting to use these funding provisions to frustrate Exides completion of its own

obligations, in breach of not only Section 5.2.2 but also of Section 17.1.1s best

efforts requirements.

41. Exide requests that the Frisco Parties be required to specifically

perform their obligations under the MSA, and that they be ordered to deposit an

additional $500,000 in the Remediation Escrow Account, and to pay 50% of all costs

in excess of $1,500,000 incurred by Exide during the course of the remediation of

the J Parcel.

D. The City is hindering and obstructing Exides receipt of a


wastewater discharge permit, in breach of the MSA.

42. The parties required cooperation in connection with the wind down,

demolition, and remediation activities extends to necessary permitting. The City,

specifically, is obligated to assist Exide in discussions with governmental

authorities regarding necessary permits, and to assist Exide in procuring all City

approvals or permits. MSA Section 2.5 provides:

The City shall assist Exide in discussions with the TCEQ and
any other Governmental Authority, as requested by Exide,
concerning modifications and updates required to permits and orders
to recognize the wind down of operations and facility closure, but shall
be under no obligation to incur any costs in doing so. The City shall
assist Exide in procuring in accordance with city ordinances
all City approvals or permits required by Exide in connection
with the Demolition Activities and the Regulatory Compliance and

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Closure Activities, but shall be under no obligation to incur any cost in


doing so.

43. One of the permits Exide requires in connection with its remediation

and disposal activities is an Industrial User Wastewater Discharge Permit, which

will allow it to discharge wastewater meeting the permitting parameters to the City

sewer and the regional wastewater treatment plant. Exide previously had such a

permit while operating its battery recycling facility, and requires such a permit to

dispose of wastewater generated by its current activities in furtherance of the MSA.

The new permit Exide has requested would have the same water quality requisites

of the permit under which it previously operated, and require treatment and

sampling for compliance prior to discharge. Exide would be treating a higher

quality influent than when it was operating (i.e., well within the treatment

capabilities of the existing system), and has eliminated several prior wastewater

sources due to the cessation of Exides operations and segregation of certain streams

for alternate disposal.

44. Exide applied for its Industrial User Wastewater Discharge Permit on

December 10, 2013, by submitting an application to the NTMWD, which processes

such permits on behalf the City. The NTMWD is a regional body that oversees the

water, wastewater, and solid waste systems and policies for 13 area cities, including

Frisco.

45. Following its review of the application, the NTMWD sent to the City a

draft of the Exide permit. That draft permit was dated to be effective June 2, 2014,

indicating that the NTMWD expected the City to review and consent to the permits

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issuance by that date.

46. But for months, the City sat on the draft permit, taking no action and

requesting no additional information. Finally, after prodding by Exide and

reminder of the Citys MSA Section 2.5 obligations, the City sent the NTMWD

comments on the draft permit.

47. On December 5, 2014, the NTMWD sent Exide a copy of the Citys

comments, and requested that Exide provide a response. Exide did so on January 8,

2015. It never received any reply from the NTMWD or the City, which continued to

drag its heels.

48. In the Fall of 2016, after nearly two years of waiting and prodding,

Exide formally renewed its request that the NTMWD issue the permit. This

spurred the City, purportedly on behalf of NTMWD, to send Exide a further request

for materialsmaterials that neither NTMWD nor the City had seen any need to

request during the preceding 33 months the application had been pending. Exide

submitted the additional materials on November 7, 2016.

49. Exides application is complete (and has been for some time). On

January 20, 2017, the NTMWD confirmed to Exide that NTWMD had all of the

information it needed to process the application. On March 2, 2017, NTMWD

informed Exide that it had prepared a new draft permit that it would soon submit

to the City.

50. On April 5, 2017, still having received no draft permit or other update,

Exide requested a meeting with the NTMWD. The NTMWDs response was odd,

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Case 4:17-cv-00311-ALM-KPJ Document 1 Filed 05/09/17 Page 21 of 25 PageID #: 21

given that NTMWD is purportedly the body that handles processing of these

permits: Exide was told that it should address all further questions regarding the

permit directly to the City.

51. Exide did so, raising the issue on an April 19, 2017 call with the City.

In response, the City bluntly and surprisingly informed Exide that it would never

receive its permit. The purported reason was a failure to meet City requirements,

but the City would provide no further explanation.

52. To this date, Exide has received no formal notification of any change in

its application status, or any substantive explanation of why the City believes Exide

will not receive its wastewater discharge permit.

53. Whatever the reason, it is clear that the Citys refusal to act on the

discharge permit is unrelated to the merits of that application. The permit Exide

seeks is similar to the permit it was previously issued and operated under for years,

but with improved influent quality that only further assures consistency and

effectiveness of treatment prior to discharge. Nearly three years ago, the NTMWD

completed its initial review and delivered a draft permit that would permit Exide to

discharge its wastewater as needed. But at every step of the way, the City has

dragged its feet and thrown up needless roadblocks. Now, the Citynot the

NTMWD, the body which purportedly conducts the processhas told Exide it will

not get that permit, leading to increased costs to Exide and potential delays as the

company must find another way to dispose of the wastewater that will necessarily

require discharge throughout the remediation process for the Bowtie Parcel.

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54. Particularly in the context of the Citys other actions, it is clear that

this result has nothing to do with the permit application itself and is instead part of

a strategy to delay and impede Exides access to the funds that were intended to

compensate it for the shutdown of its facility and the transfer of valuable land. This

is a strategy Exide has seen before, as the City used similar methods not long ago to

exert pressure on Exide to shutter its facility and sell the land to the Frisco Parties.

The Citys obstructive actions are in breach of its obligations under Sections 2.5 and

17.1.1 of the MSA to assist Exide in this process.

55. Exide requests that the City be required to specifically perform its

obligations under the MSA with respect to its application for an Industrial User

Wastewater Discharge Permit submitted to the NTMWD, including through

providing all due assistance and cooperation in Exides procurement of that permit.

CLAIMS AND CAUSES OF ACTION

56. Each of the following claims for relief is based on and incorporates the

preceding paragraphs by reference as if fully set forth herein.

FIRST CLAIM FOR RELIEF: BREACH OF CONTRACT

57. Exide and the Frisco Parties are parties to the MSA, which is a valid

and enforceable contract.

58. Exide has performed and/or tendered performance of its obligations

under the MSA. All conditions precedent to those obligations the Frisco Parties

have breached have been performed or have occurred.

59. The Frisco Parties have engaged in a pattern and practice of behavior

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that is in breach of the MSA, including in the following respects: the Frisco Parties

have, in refusing to deposit an additional $500,000 in the Remediation Funds

Escrow Account following Exides good faith determination that it will incur J

Parcel remediation costs in excess of $1,500,000, breached the MSA, including

Sections 5.2.2 and 17.1.1; and the City, through its obstructive actions and inaction

in relation to Exides NTMWD permit application, has breached the MSA, including

Sections 2.5 and 17.1.1.

60. Exide has suffered injury as a result of the Frisco Parties actions, in

an amount in excess of the jurisdictional requirements of this Court. Because in the

MSA the Parties expressly agree[d] that the failure of any Party to perform its

obligations under this Agreement shall entitle the other Party to seek and obtain,

as its sole and exclusive remedy against a non-performing Party for breach of this

Agreement, specific performance of all such non-performed obligations, Exide has

no adequate remedy at law, and cannot be adequately compensated with damages.

Exide is ready, willing, and able to timely perform its obligations under the MSA.

Exide thus requests that the Frisco Parties be required to specifically perform their

obligations under the MSA, including through (1) the deposit by the Frisco Parties

of an additional $500,000 in the Remediation Escrow Account, and the payment of

50% of all costs in excess of $1,500,000 incurred by Exide during the course of the

remediation of the J Parcel; and (2) the City providing all due assistance and

cooperation in Exides procurement of its Industrial User Wastewater Discharge

Permit processed by the NTMWD and signed by the City.

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Case 4:17-cv-00311-ALM-KPJ Document 1 Filed 05/09/17 Page 24 of 25 PageID #: 24

61. Exide is also entitled to its reasonable attorneys fees pursuant to

Section 38.001 of the Texas Civil Practice and Remedies Code.

REQUESTED RELIEF

Exide requests the following relief:

A. That the Frisco Parties be required to specifically perform their

obligations under the MSA, including through (1) the deposit by the Frisco Parties

of an additional $500,000 in the Remediation Escrow Account, and the payment of

50% of all costs in excess of $1,500,000 incurred by Exide during the course of the

remediation of the J Parcel; and (2) the City providing all due assistance and

cooperation in Exides procurement of its Industrial User Wastewater Discharge

Permit processed by the NTMWD and signed by the City.

B. That Exide recover its costs in this civil action, as well as its

reasonable and necessary attorneys fees and expenses, and pre- and post-judgment

interest on those costs, fees, and expenses.

C. That Exide be awarded such other and further relief as the Court may

deem just and proper.

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Case 4:17-cv-00311-ALM-KPJ Document 1 Filed 05/09/17 Page 25 of 25 PageID #: 25

Respectfully submitted,

By s/ Van H. Beckwith
Van H. Beckwith
Texas State Bar No. 02020150
John B. Lawrence
Texas State Bar No. 24055825
BAKER BOTTS L.L.P.
2001 Ross Avenue, Suite 700
Dallas, Texas 75201
Telephone: 214-953-6500
Facsimile: 214-953-6503
van.beckwith@bakerbotts.com
john.lawrence@bakerbotts.com

Counsel for Plaintiff


Exide Technologies

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Case 4:17-cv-00311-ALM-KPJ Document 1-1 Filed 05/09/17 Page 1 of 2 PageID #: 26
JS 44 (Rev. 08/16) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS


EXIDE TECHNOLOGIES THE CITY OF FRISCO, FRISCO ECONOMIC DEVELOPMENT
CORPORATION, and FRISCO COMMUNITY DEVELOPMENT
CORPORATION
(b) County of Residence of First Listed Plaintiff Fulton County, Georgia County of Residence of First Listed Defendant Collin County, Texas
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Baker Botts L.L.P.
2001 Ross Avenue, Suite 700, Dallas, TX 75201
214-953-6500

II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6


Foreign Country
IV. NATURE OF SUIT (Place an X in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers Product Liability 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark 460 Deportation
Student Loans 340 Marine Injury Product 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff) 480 Consumer Credit
of Veterans Benefits 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923) 490 Cable/Sat TV
160 Stockholders Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Management 863 DIWC/DIWW (405(g)) 850 Securities/Commodities/
190 Other Contract Product Liability 380 Other Personal Relations 864 SSID Title XVI Exchange
195 Contract Product Liability 360 Other Personal Property Damage 740 Railway Labor Act 865 RSI (405(g)) 890 Other Statutory Actions
196 Franchise Injury 385 Property Damage 751 Family and Medical 891 Agricultural Acts
362 Personal Injury - Product Liability Leave Act 893 Environmental Matters
Medical Malpractice 790 Other Labor Litigation 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 791 Employee Retirement FEDERAL TAX SUITS Act
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: Income Security Act 870 Taxes (U.S. Plaintiff 896 Arbitration
220 Foreclosure 441 Voting 463 Alien Detainee or Defendant) 899 Administrative Procedure
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRSThird Party Act/Review or Appeal of
240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision
245 Tort Product Liability Accommodations 530 General 950 Constitutionality of
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION State Statutes
Employment Other: 462 Naturalization Application
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration
Other 550 Civil Rights Actions
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an X in One Box Only)
1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
28 U.S.C. 1332
VI. CAUSE OF ACTION Brief description of cause:
breach of contract
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. Specific Performance JURY DEMAND: Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
05/09/2017 s/ Van H. Beckwith
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

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Case 4:17-cv-00311-ALM-KPJ Document 1-1 Filed 05/09/17 Page 2 of 2 PageID #: 27
JS 44 Reverse (Rev. 08/16)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44


Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.

V. Origin. Place an "X" in one of the seven boxes.


Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.