Mon09012014

Last updateWed, 19 Nov 2014 8pm

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Project FAITH files for dismissal of county’s suit

Project FAITH is asking that King George County’s legal complaint against the development company be dismissed.

The reason for King George County’s complaint filed last month was to get back a 5.53-acre parcel of land it gave away in 2012.

That complaint asked the Circuit Court to either rescind the Deed of Gift and Performance Agreement, or to declare it null and void, with either having the result that the land would go back to the county, either effective July 30, 2012 in the first instance, or July 30, 2013, in the second.

The county’s 10-page legal complaint was answered by Clark Leming on behalf of Project FAITH on Nov. 1, with a 13-page response as a plea in bar/demurrer, essentially requesting dismissal of the county’s complaint on all counts.
 
BREACH OF CONTRACT ALLEGED BY COUNTY     
The county’s legal complaint primarily charges 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 contends that the commencement of construction deadline “is not subject to cure,” adding that an extended deadline was provided prior to the county sending a notice of default.

PROJECT FAITH SEEKING DISMISSAL     
Project FAITH is seeking dismissal of the complaint, arguing in part that the county skipped a step in the contractual default process, by not providing Project FAITH a requested hearing before the Board of Supervisors to contest the allegations contained in the notice of default letter.

In a Sept. 26 letter from Leming, Project FAITH had requested a hearing before the Board of Supervisors to enable it to contest the allegations contained in the notice of default.

In his letter requesting a hearing, Leming blames the county, saying that Project FAITH cites, “circumstances beyond its control.” He had added, “specifically certain acts and omissions by the County are the proximate cause of PFI’s inability to meet the performance milestone.”

The alleged acts and omissions are not specifically spelled out, but Leming had contended that, “These acts and omissions by the County have stifled PFI’s efforts to obtain the financing necessary to commence construction on the project.”

Leming’s request for a hearing before the Board for Project FAITH to appeal the notice of default didn’t happen, due to an Oct. 7 response by County Attorney Eric Gregory who noted that the provision cited by Leming that allows for a hearing by the Board was not applicable.

“Reversion” is the legal term used in the two guiding documents for the county to reclaim the parcel of land back if there is a default.

The reversion section of the original Deed of Gift has two clauses.

Clause A has to do with “failure to develop,” and is titled as such.

Clause B is entitled “Failure to Use Property for the Purposes for which it is granted.”

Only causes under clause B appear to provide for a hearing and also for a 60-day grace period for the ability to “cure” reversion of the title of the parcel that was given to Project FAITH.

The wording and language in clause B would not be expected to come into play at this point, since the property has not yet been put to any uses as contemplated by the two guiding legal documents.

While the county’s legal filing contends that the commencement of construction deadline “is not subject to cure,” it also states that an extended deadline was provided by the county, adding that Project FAITH, “made no effort to cure following its receipt of the county’s default notice,” which was sent on Aug. 2.
Clause A, as amended, consists of one of long sentence and appears below in its entirety.

“All rights granted in this Deed shall cease and become null and void and Grantee’s interest along with all improvements and appurtenances shall revert to County if Grantee fails to commence construction of the improvements in accordance with the terms of the Performance Agreement on or before August 1, 2013, provided, however that if such failure is due to events or circumstances beyond Grantee’s control, including, but not limited to fire, wind, storm, strike, unavailability of materials, acts of God orders of Federal, State or local governments or their agencies or their courts, the Property shall revert to the County.”

DEMURRER     
Leming’s filing also contains a Demurrer, which alleges insufficiency of the facts alleged in the county’s original complaint that asked for rescission of the deed or for the Court to declare it null and void, with either resulting in reversion of the deed to the county.

Phyllis Cook

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