- Last Updated on Thursday, 10 October 2013 14:37
- Published on Thursday, 10 October 2013 14:37
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Breach of contract cited, fraud and misrepresentation alleged
King George County this week filed a lawsuit to get back a 5.53-acre parcel of land given to Project FAITH, Inc., in 2012 that asks the Circuit Court to rescind the Deed of Gift and Performance Agreement, “as though the subject deed and agreement never existed.”
The 10-page legal complaint was filed late Monday, Oct. 7, with service to be delivered to Froncé Wardlaw, the developer’s executive director and registered agent. Project FAITH has 21 days from the date of service to respond to the complaint.
While Project FAITH has recently threatened filing its own litigation against the county over the project, it is unclear whether it will attempt to defend the county’s complaint and/or pursue other legal remedies.
The big issue with the project has always been lack of actual funding. The obvious question being asked by those following this topic is about where Project FAITH’s money would come from to pay legal fees.
~ BREACH OF CONTRACT The primary fact in the complaint appears to be breach of contract due to Project FAITH’s failure to meet its first major deadline under the two guiding legal documents, which was commencement of construction earlier this year, by Aug. 1.
The county’s filing also recites facts that include a request by Wardlaw on Feb. 5 to ask for an extension of that first major deadline, which had originally been set for Feb. 28. She received that request to push the deadline to Aug. 1.
The county’s filing also contends that the commencement of construction deadline “is not subject to cure.” But it also states that an extended deadline was provided, saying Project FAITH, “made no effort to cure following its receipt of the county’s default notice,” which was sent on Aug. 2.
As of this week, neither the required documents nor payment have been submitted that would trigger issuance of a building permit or a land disturbance permit for any construction activity on the donated property.
The complaint also states that a previous deadline was not met for an annual report to be filed by Project FAITH by the end of each calendar year. Instead, two months late, at the Feb. 5 Supervisors meeting, Wardlaw provided a short handout and brief report on the status of the proposed HELP Center project, without providing details to questions asked by Supervisors about actual project funding.
~ LACK OF RESPONSIVENESS TO COUNTY Along those lines, the county’s filing also cites a breach for “lack of responsiveness to county’s request for information.”
It notes that the required annual performance reports are to document, “prior to and during construction” that Project FAITH has “obtained and maintained appropriate funding for the project.”
The complaint likewise notes that a July 1 letter to the developer requested such details be supplied. Instead, the filing alleges, that an Aug. 14 letter in response, “sought to obfuscate the issues, avoid responsibility and project blame upon others.”
~ RECSCISSION BASED UPON FRAUD One of the counts in the county’s filing is headed, “Rescission based upon Fraud.”
Wardlaw’s actions loom large in this area of the complaint in regard to the alteration of a letter that the county alleges she used to misrepresent the participation by Rappahannock Community College (RCC) as a major tenant in the proposed project by Project FAITH to construct a building and provide leased space restricted to local government agencies and non-profits.
The complaint further alleges that the representations regarding RCC’s continuing commitment were made, “as a means of allaying any concerns among county officials regarding the financial viability of the facility” and, “a substantial rent-paying tenant in the facility.”
The filing further alleges, “that Wardlaw intentionally altered the date of the RCC letter or directed it to be altered in an effort to conceal the fact that RCC’s commitment to lease space was in question as of February 2013 (and perhaps earlier).”
It alleges that Project FAITH’s and Wardlaw’s conduct, “is willful, intentional and malicious in nature, and entitles the county to rescind the Deed of Gift and Performance Agreement,” including their amendments.
~ ALTERED LETTER - BACKSTORY A letter of support had been written by RCC in March 2010 which was included in an application package for the first of two instances when the county sponsored applications to the state for federal Community Development Block Grant (CDBG) funding on behalf of Project FAITH, asking for infrastructure money for the proposed development project.
The 2010 CDBG application was intended to go toward construction of the project at different site, to be purchased by the developer, before the idea of asking the county for free land was floated. Both the 2010 and a 2013 CDBG grant requests were unsuccessful.
Flash forward from the time the RCC letter was written in 2010 to earlier this year:
Dahlgren Supervisor Ruby Brabo stated she was given the of letter support from RCC on May 6 of this year by Wardlaw.
Shortly after that, Brabo informed The Journal about the existence of the letter of support from RCC, following the appearance of a news report that RCC would not be part of the proposed project. Brabo offered a copy of the letter to the paper and supplied it.
Brabo had voted for the project at every instance and was a major proponent of the HELP Center project as evidenced by her public statements. She went on to post the letter on one of her websites, along with another document referred to as a HELP Center Operations Plan.
In early June, our editor asked an RCC board member about the letter of support and that’s when the alteration was discovered. The RCC board member said the letter had been written two years earlier than the 2012 date on the first page.
When the letter was scrutinized, it was discovered that the date on the first page had been changed from 2010 to instead read ‘March 30, 2012,’ while the date on page two remained unaltered.
When this fact came to light, Brabo said she did not know who altered the letter, but she appeared surprised to learn that it was not genuine.
At that point, she pulled the items supporting the project from her website and subsequently turned the altered letter over to the county attorney.
As for Wardlaw, she admitted at the time that she gave the altered letter to Brabo, but stated, "Whether the change in the letter originated with me or not is irrelevant," she said. "Obviously it was in error. I will take full responsibility. I will not incriminate anyone else."
She made similar statements to Supervisors at a meeting on June 25, when she also provided an apology for the alteration of a letter in support of the HELP Center project.
She also admitted responsibility in a June 11 email to Brabo, while diminishing the fact of the alteration, and saying, “The letter has passed so many hands with funders and others that I cannot tell you exactly when the update occurred.”
~ MORE BACKGROUND Prior to the fact of the alteration of the letter coming to light, Brabo had been one of three consistent supporters of the project on the Board of Supervisors, along with Cedell Brooks and John LoBuglio.
Dale Sisson and Joe Grzeika voted against giving county acreage to the private developer in June 2012, and also against extending the deadline for commencement of construction from Feb. 28, 2013 to Aug. 1, 2013.
Both had said all along they respected Wardlaw’s vision, and her ability to get several phases of a low-income housing project completed, but they were skeptical about her ability to get funding for this non-residential proposal.
As stated above, there were facts coming from her regarding funding prospects all the way along. Another potential stumbling block was seen as the project’s ability to secure and maintain tenants under the terms of the agreements with the county. Those include a tough lease restriction with a prohibition against “any and all for-profit and/or commercial uses” in the facility.
The documents also intend that Project FAITH must own and operate the facility in perpetuity, or reversion of the property to the county would occur. It states, “Company is solely responsible for the continued maintenance and operation of the Facility solely for its stated and intended purposes.”
Phyllis Cook – Staff Reporter