EFTA00586165.pdf

GOVERNMENT OF THE VIRGIN ISLANDS BEFORE THE DEPARTMENT OF PLANNING AND NATURAL RESOURCES DIVISION OF COASTAL ZONE MANAGEMENT IN THE MATTER OF THE DEPARTMENT OF PLANNING AND NATURAL RESOURCES, COMMISSIONER DAWN L. HENRY, ESQUIRE, ) NOVA 04-16-STT ) ) ) ) ) NOTICE OF FAILURE TO CURE COMPLAINANTS, ) BREACH OF SETTLEMENT ) AGREEMENT AND vs. ) ENFORCEMENT OF SETTLEMENT ) AGREEMENT GREAT ST. JIM, LLC, ) ) ) ) RESPONDENT. ) SUPPLEMENTAL CONSENT AGREEMENT WHEREAS, the Complainant, the Department of Planning and Natural Resources ("DPNR"), is responsible for the administration and enforcement of laws and regulations pertaining to the protection and preservation of the coastal resources of the United States Virgin Islands, including the Coastal Zone Management Act (the "CZM Act"), Title 12, Chapter 21, of the Virgin Islands Code, and the Division of Coastal Zone Management ("CZM") is a division thereof; and WHEREAS, the Complainants commenced an administrative enforcement proceeding on April 25, 2016 by serving Respondent with Notice of Violation No. NOVA-04-16-STT dated April 22, 2016 ("NOVA")(Complainants and Respondent are hereinafter referred to collectively as the "Parties"); and EFTA00586165 Great St. Jim NOVA-04-I6-STT Supplemental Consent Agreement Page 2 of 9 WHEREAS, on or about August 4, 2016, Respondent entered into a Settlement Agreement ("Settlement Agreement") with Complainants regarding issues pertaining to the NOVA; and WHEREAS, on or about November 4, 2016, Complainants served Respondent with a Notice to Cure Breach of Settlement Agreement ("Notice") alleging certain unpermitted development and structures in violation of the Settlement Agreement and demanding that within ten (10) days Respondent remove all of said development and structures cited therein or be subject to further enforcement action pursuant to V.I. Code Ann. Tit. 12 § 913 and Section 3(d) of the Settlement Agreement; and WHEREAS, on or about December 15, 2016, Complainants served Respondent with a Notice of Failure to Cure Breach of Settlement Agreement and Enforcement of Paragraph 3(d) of the Settlement Agreement ("Failure to Cure") demanding that Respondent comply with the terms of the Settlement Agreement alleged to have been triggered by a beach of the Settlement Agreement by Respondent and that Respondent make a substantial payment to DPNR of moneys claimed to be due under the Settlement Agreement as a result of said breach; and WHEREAS, Respondent neither agrees with nor admits to the statements made in the foregoing recitals and has contested the statements, findings of fact and conclusions of law set forth in both the Notice and the Failure to Cure; and WHEREAS, the Parties agree that: (a) settlement of the matters set forth in the NOVA, the Settlement Agreement, the Notice and the Failure to Cure are in the best interests of the Parties and the public; and (b) entering into this Agreement without litigation is the most appropriate means of resolving this matter; 2 EFTA00586166 Great St. Jim NOVA-04-I6-STT Supplemental Consent Agreement Page 3 of 9 WHEREAS, although by entering into this Agreement, Respondent neither admits to nor agrees with the statements, findings of fact and conclusions of law made in the Notice and the Failure to Cure, Respondent agrees that this Agreement shall be enforceable in the event Respondent fails to comply with the provisions contained herein; and WHEREAS, the Parties recognize that this Agreement has been negotiated in good faith and that it is fair, reasonable, and in the public interest. NOW THEREFORE, the Parties agree as follows: Within one business day after the execution of this Agreement by each of Respondent, DPNR and the Commissioner of DPNR, Respondent shall pay DPNR a stipulated penalty of Twenty Thousand dollars ($20,000.00) to fully resolve all matters set forth in the Notice and the Failure to Cure (the "Stipulated Penalty"). Separate and apart from the payment of the Stipulated Penalty, in recognition of the substantial worthy pubic interest thereof and the importance of the same to the U.S. Virgin Islands community from both an historical perspective and the perspective of preserving the lands of the U.S. Virgin Islands, Respondent and Complainants desire to promote the construction of a raveling wall at Fort Christian located in Tier 1 on St. Thomas in the United States Virgin Islands (the "Fort Christian Project"). In support of the Fort Christian Project, Respondent shall procure funding, whether directly from Respondent or indirectly though one or more affiliates of Respondent, of a total of One Hundred Forty Thousand dollars ($140,000.00) (the "Donation") which shall be donated to the St. Thomas Historical Trust, an exempt entity 3 EFTA00586167 Great St. Jim NOVA-04-16-STT Supplemental Consent Agreement Page 4 of 9 under Section 501(c)(3) of the Internal Revenue Code (the "Historic Trust"), to be used to pay the fees, costs and expenses of the Fort Christian Project. 1. Payments for the Fort Christian Project. The Donation shall be paid to the Historical Trust as follows: A. Within five business (5) days of the execution of this Agreement by each of Respondent, DPNR and the Commissioner of DPNR, Respondent or its affiliates shall donate to the Historical Trust an aggregate amount equal to Sixty Thousand dollars ($60,000.00). B. By no later than the first business day in January 2018, Respondent or its affiliates shall pay to the Historical Trust an additional aggregate amount equal to Forty Thousand dollars ($40,000.00). C. By no later than the first business day in January 2019, Respondent or its affiliates shall pay to the Historical Trust an additional aggregate amount equal to Forty Thousand dollars ($40,000.00). D. Once funds are transferred to the Historical Trust, neither Respondent nor its affiliates shall have any control over or responsibility for the disbursement of the same. 4 EFTA00586168 Great St. Jim NOVA-04-I6-STT Supplemental Consent Agreement Page 5 of 9 3. Compliance with Applicable Laws. Except with respect to the liability of Respondent and Respondent Parties (as hereinafter defined) for violations of any and all laws, regulations and permits within the enforcement jurisdiction of Complainants arising out of any and all matters described in the Notice and the Failure to Cure, this Agreement in no way relieves Respondent of its responsibility to comply with any applicable federal or territorial laws, regulations and permits not specifically mentioned herein, and compliance with this Agreement shall not constitute a defense to any action pursuant to said laws, regulations, or permits raised by any territorial or federal agency other than Complainants. 4. Release. Except as otherwise expressly set forth in this Agreement, including, but not limited to, Paragraph 6 hereof, Complainants fully and unconditionally release and discharge Respondent and its successors, assigns, members, managers, employees, affiliates, subsidiaries, agents, representatives and attorneys (hereinafter "Respondent Parties"), from any and all claims, demands, liens, causes of action, suits, damages, judgments, debts or liabilities whatsoever, both at law or in equity, which Complainants and any of their successors or assigns may have now against Respondent or any Respondent Parties relating to any alleged violation of any and all laws, regulations or permits within the enforcement jurisdiction of Complainants arising out of any and all matters contemplated 5 EFTA00586169 Great St. Jim NOVA-04-16-STT Supplemental Consent Agreement Page 6 of 9 herein and/or in the Notice of Violation Assessment NOVA-04-16-STT, the Settlement Agreement, the Notice, and/or the Failure to Cure (hereinafter referred to, collectively, as "Released Claims"). 5. Covenants Not to Sue. In consideration of the payment of the Stipulated Penalty, except as expressly provided in Paragraph 6 of this Agreement, Complainants covenants not to sue or to take further administrative action against Respondent or any Respondent Parties for any Released Claims. These covenants not to sue are conditioned upon performance by Respondent of its obligations under this Agreement. 6. Reservations of Rights by DPNR-CZM. DPNR reserves and this Agreement is without prejudice to, all rights against Respondent with respect to all matters not expressly included within the Covenants Not To Sue in Paragraph 5 hereof. Notwithstanding any other provisions of this Agreement, DPNR reserves, and this Agreement is without prejudice to, all rights against Respondent with respect to: (a) Liability for failure of Respondent to perform any of its obligations under this Agreement; and 6 EFTA00586170 Great St. Jim NOVA-04-16-STT Supplemental Consent Agreement Page 7 of 9 (b) Liability for future violations that occur after the approval of this Agreement by the Commissioner of DPNR. (d) Liability for damages for injury to, destruction of, or loss of natural resources, and for costs of any natural resource damage assessments, arising out of events, conditions or circumstances not within the scope of the Released Claims. Nothing in this Agreement is intended to be or shall be construed as a release, covenant not to sue, or compromise of any claim or cause of action, administrative or judicial, civil or criminal, past or future, in law or in equity, which the Government of the Virgin Islands may have against any person, firm, corporation or other entity not a signatory to this Agreement, other than Respondent Parties. Except as expressly set forth herein, this Agreement does not limit or affect the rights of Respondent or the Government of the Virgin Islands against any third parties not named herein, nor the rights of third parties not parties to this Agreement against any other parties. 7. No Admission. Neither this Agreement nor the furnishing of the consideration for this Agreement shall be deemed or construed at any time for any purpose as an admission by Respondent of any liability, unlawful conduct of any kind or violation by Respondent of any law, regulation or permit. 7 EFTA00586171 Great St. Jim NOVA-04-16-STT Supplemental Consent Agreement Page 8 of 9 8. Modification. This Agreement constitutes the entire agreement among the Parties relating to the subject matter hereof and supersedes any and all prior agreements, representations and understandings, whether written or oral, relating to the subject matter hereof. Prior drafts of this Agreement shall not be used in any action involving the interpretation or enforcement of this Agreement. All modifications to this Agreement shall be in writing and signed by the Parties. 9. Jurisdiction. This Agreement shall be construed and its performance enforced under the laws of the United States Virgin Islands. 10. Representations. Each person executing this Agreement represents that the party hereto on whose behalf the person is executing this Agreement has duly authorized the execution of this Agreement and that such person is authorized to execute this Agreement on behalf of such party. [Signatures on the immediately followinu, page] 8 EFTA00586172 Great St. Jim NOVA-04-16-STT Supplemental Consent Agreement Page 9 of 9 JEAN-PIERRE L. ORIOL Director — Coastal Zone Management 8100 Lindberg Bay, Suite #61 Cyril E. King Airport Terminal Building, 2"" Floor St. Thomas, USVI 00802 SO ORDERED THIS DAY OF JEFFERY EPSTEIN, President of Poplar, Inc., as Sole Member of Respondent, GREAT ST. JIM, LLC 2017 HONORABLE DAWN L. HENRY, COMMISSIONER DEPARTMENT OF PLANNING AND NATURAL RESOURCES 9 EFTA00586173