County Attorney: provide Cultural Council notice of default

“I recommend that unless there is clear compliance with the terms of the agreement, the County provide notice of default as provided under Articles 25 and 26 of the agreement,” words of advice to the St Johns County Commission from County Attorney Patrick McCormack to begin the process of terminating the St Johns Cultural Council.

Historic City News was provided a copy of the communication dated August 19, 2013, after repeated failures of the Cultural Council to use all reasonable efforts to (1) perform all tasks included within the Scope of Services; (2) to perform any duties and obligations arising from the Scope of Services; and (3) to timely deliver the reports and other items included within the Scope of Services.

McCormack observed, based upon the information provided in Tables 1 and 2, that the Cultural Council has failed to timely submit required deliverables on three (3) separate occasions and has materially failed to submit deliverables on one (1) occasion.

Despite the several failures to perform, the Cultural Council has never been given an official notice to cure the default. Why? Perhaps a clue can be taken from the recent revelation, published by Historic City News, that the current Chairman of the Board of County Commissioners, who also sits on the Tourist Development Council, gave the Cultural Council an artificially inflated review.

Jay Morris, who is up for re-election, rated the Cultural Council a “4” to every single question asked. That is equivalent to a score of 80%. The Cultural Council’s overall, average rating during that evaluation, was only 2.75 out of a possible five points; in other words, a grade of 55%. In Morris’ original bid for office, in a move that had many St Johns County observers and Historic City News readers scratching their head, then chairman, Ken Bryan, purchased a full page ad in the Ponte Vedra Beach newspaper with a plea for voters to elect Jay Morris and Ron Sanchez.

Bryan, who was defeated in his bid for re-election, is now serving on the Board of Directors of the St Johns Cultural Council, and apparently still has an ally in Chairman Morris who is willing to look the other way if his political cronies are having trouble honoring their commitments.

FULL TEXT OF MCCORMACK LETTER:

To: The St. Johns County Board of County Commissioners
From: Patrick F. McCormack, County Attorney
Subject: Cultural Council Annual Evaluation
Date: August 19, 2013
CC: Bill Hughes, Chair, Tourist Development Council
Michael D. Wanchick, County Administrator
Glenn Hastings, Executive Director, Tourist Development Council

On June 21, 2011, the Board authorized the County Administrator to execute, on behalf of the County, an agreement with the St. Johns Cultural Council, Inc. (“Cultural Council”) to provide certain services related to promoting arts, cultural and heritage activities with a primary purpose of attracting tourists to St. Johns County. In accordance with Article 21 of that agreement, on August 26, 2013, at its regularly scheduled meeting, the Tourist Development Council is scheduled to conduct a Periodic Evaluation of the Cultural Council’s performance under the agreement as it specifically relates to its performance under the Scope of Services contained therein. As review of the contract was recently being done by this office, some material concerns have arisen. The propose of this memorandum is to provide situational awareness to the Board with a general overview of the Cultural Council’s degree of compliance with the material terms, conditions and provisions of the agreement. A copy of the agreement is attached hereto for reference and review.

Article 5 of the Agreement provides that the Cultural Council shall use all reasonable efforts to (1) perform all tasks included within the Scope of Services; (2) to perform any duties and obligations arising from the Scope of Services; and (3) to timely deliver the reports and other items included within the Scope of Services. For convenience in reviewing the Cultural Council’s performance in providing requisite notices, reports and other deliverables detailed in the Scope of Services is summarized in the two tables.

The data contained in each of the tables regarding the Cultural Council’s performance of the Service and delivery of goods was compiled based upon information provided by the office of Executive Director for the St Johns County Tourist Development Council.

Article 25 of the agreement provides the events which constitute default. Relevant to evaluation of the Cultural Council’s performance are provisions (a) and (b). Under subparagraph (a), a material failure by either party to comply with one or more terms, provisions, conditions, requirements or obligations of the agreement constitutes default. Additionally, under subparagraph (b), substandard performance in one or more areas as noted in a Periodic Evaluation constitutes default under the agreement.

Article 26 of the agreement, allows for issuance of a notice of default and a right to cure.
In sum, the provision requires that in the event of default, a breach or violation of the terms of the agreement, the non-defaulting (non-breaching/non- violating) party shall provide written notice of the event to the other party, along with a prescribed timeframe of at least thirty (30) calendar days to cure the default, breach or violation. If the condition is not cured, the non-defaulting (non-breaching/non-violating) party may exercise its right to terminate the agreement and pursue any other remedies existing under Florida law.

Based upon the information provided in Tables 1 and 2, the Cultural Council has failed to timely submit required deliverables on three (3) separate occasions and has materially failed to submit deliverables on one (1) occasion. Such actions fail to comply with Article 5 of the agreement, and may constitute an event of default as provided under Article 25. With respect to the performance of services, refer to Table 2 above.

To date, no notices of default have been issued from the County to the Cultural Council related to its performance under this agreement. While the Tourist Development Council provides routine review of mad input related to the Cultural Council’s performance of the agreement at each regularly scheduled meeting, to date, there have been no formal findings of substandard performance made in a Period Evaluation.

Again, the Tourist Development Council will be conducting a Periodic Evaluation at its regularly scheduled meeting on August 26, 2013. I recommend that unless there is clear compliance with the terms of the agreement, the County provide notice of default as provided under Articles 25 and 26 of the agreement.