EFTA01190090.pdf

CONFIDENTIAL SETTLEMENT AGREEMENT BETWEEN THE GOVERNMENT OF THE VIRGIN ISLANDS DEPARTMENT OF PLANNING AND NATURAL RESOURCES AND GREAT ST. JIM, LLC THIS SETTLEMENT AGREEMENT is entered into by the VIRGIN ISLANDS DEPARTMENT OF PLANNING AND NATURAL RESOURCES ("Complainant" or "DPNR") and GREAT ST. JIM, LLC ("Respondent"). WITNESSETH: WHEREAS, the Complainant 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; WHEREAS, the Respondent, Great St. Jim, LLC, a Virgin Islands limited liability company, (hereinafter "the Respondent"), is a person as that term is defined in Section 902 of the CZM Act. WHEREAS, Respondent is the owner of property described as Parcels Nos. A Rem, A-1, and A-2, B-1 Rem, B-1-1, B-1-2, B-2 Rem, B-2-1, B-2-2, C- I Rem, C-1-1, C-1-2, C-2 Rem, C- ?-I, C-2-2 Great St. James Island, St. Thomas, Virgin Islands (hereinafter "the Property"). EFTA01190090 Settlement Agreement DPNR vs. Great St. Jim, LLC NOVA-04- I 6-STT Page 2 of 10 WHEREAS, Parcels Nos. A Rem, A 1 and A 2 Great St. James Island, St. Thomas, Virgin Islands-ere-The Property is located within the first tier of the Coastal Zone. WHEREAS, in-respense-te-nurftereus-publie-eentleints-ef--develeprftent-en-Great-StrJames Gay, a search of CZM records was performed and that revealed no permits or authorization letter for development or maintenance was issued for the Property other than a permit for the existing dock on Shallow Bay which is in the_process of being assigned to Respondent. WHEREAS, on or about April 18, 2016, Special Projects Coordinator David Rosa visited the island-Property to conduct an unannounced inspection. WHEREAS, upon arrival and initial inspection Coordinator Rosa observed what he believed was development in various areas at the Property. Immediately, Coordinator Rosa met with the local property manager, known as "Anna" and served upon her Cease & Desist Order No. 0 I -SIT dated April 18, 2016 and issued a verbal order to cease all activity on the island. WHEREAS, upon further inspection of at loast 50% of the Property, Coordinator Rosa observed what he believed were newly cut road paths, extensive bare soil with no vegetation growing from the exposed earth, four large circular areas were cleared at different ends of the island, n-weathered track hoe marks-allegedly-crem-the-eguipment-used-te-eenmetet-the helipad, an excavation site with soil allegedly intended for a building site (Please see NOVA Exhibit Photos). WHEREAS, DPNR acknowledges not all of the activities listed above were conducted by the Respondent and various unpermitted activities took place while the Property was under the control of the previous owner. EFTA01190091 Settlement Agreement DPNR vs. Great St. Jim, LLC NOVA-04- I 6-STT Page 3 of 10 WHEREAS, Complainant has asserted that the activities the 'listed above constituted violations of the Coastal Zone Management Act. WHEREAS, accordingly, on April 22, 2016, NOVA-04-16-STT was issued and served April 25, 2016 on Respondent's representative Erika Kellerhals. WHEREAS, on or about April 25, 2016, an informal conference was held between the parties and Respondent was informed of the allegations associated with NOVA-04-16-STT. At said meeting, negotiations ensued and the parties agreed to reconvene upon further investigation. WHEREAS, Respondent has disputed Complainant's determinations stated in the NOVA. WHEREAS, on or about June 10, 2015, the parties attended a telephone conference. At said telephone conference, negotiations ensued and the parties reached an Agreement to resolve this matter (the "Agreement"); 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, in consideration of the mutual covenants and agreements contained herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Parties Bound Each signatory to this Agreement certifies that he or she is authorized to enter into the terms and conditions of this Agreement and to legally bind the party he or she represents. 2. Monetary Penalty Respondent shall pay a stipulated penalty in the amount of SEVENTY THOUSAND EFTA01190092 Settlement Agreement DPNR vs. Great St. Jim, LLC NOVA-04- I 6-STT Page 4 of 10 DOLLARS AND ZERO CENTS ($70,000.00) payable upon execution of this Agreement. 3. Corrective Action (a) The Respondent shall immediately Cease and Desist from any further development at the Property without first obtaining approval and full authorization from DPNR to be granted through a CZM Permit or Letter of Authorization which CZM Permit or Letter of Authorization shall be processed and approved in due course and in a timely manner by DPNR in accordance with applicable law. (b) Respondent shall submit to CZM a permit application for all work it currently would like to perform at the property to include a detailed proposed work plan. (c) Respondent and CZM shall conduct a "walk-through" of the Property to inspect the proposed work plan for the permit application. (d) Failure to comply with this Order of Corrective Action, after written notice to Respondent of the alleged failure to comply and the expiration of a ninety (90) day cure period without Respondent effectuating a cure, constitutes an additional violation, will subject the Respondent to further enforcement action, and shall cause an assessment of a new the penalty-anteunt-elLthis4ettiemeteagreentent-te-reveFt beek-te-the-enginal-fine-amount-ef-$2803000700-frefn-ine-Netiee-ef-Vielatien Assessinent-NOVA-04-16-844 in an amount to be determined based upon the nature of the failure to comply, the condition of the Property at that time and the extent of Respondent's compliance with the Order of Corrective Action at that time. ( ompliance ss ith Applicable 1.1iiis EFTA01190093 Settlement Agreement DPNR vs. Great St. Jim, LLC NOVA-04- I 6-STT Page 5 of 10 54. Release Upen-seniplianee-with-all-temis-and-eenditions-of-thisagreementr Respondent-shall-be releaaed from civil liability for the opccific violationa of thc Act mentioned herein. DPNR fully and unconditionally releases and discharges Respondent and its successors, assigns, members, managers, employees, affiliates, subsidiaries, agents, representatives and attorneys from any and all claims, demands, liens, causes of action, suits, damages, judgments, debts or liabilities whatsoever, both at law or in equity, whether known or unknown, suspected or unsuspected, which DPNR and any of its successors or assigns may have now against Respondent. 65. Covenant Not to Sue In consideration of the actions that will be performed by Respondent under the terms of this Agreement, and except as specifically provided in Paragraph 76 of this Agreement, DPNR covenants not to sue or to take administrative action against Respondent for violations of the Act, relating to any violation indicated herein or in the NOVA now known, or allegedly occurring prior to the date of this Agreement. These covenants not to sue are conditioned upon the reasonably eemplete-anel-satisfactory performance by Respondent of its material obligations under this Agreement. 76. Reservations of Riehts by DPNR-CZM EFTA01190094 Settlement Agreement DPNR vs. Great St. Jim, LLC NOVA-04- I 6-STT Page 6 of 10 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 (65). Notwithstanding any other provisions of this Agreement, DPNR reserves, and this Agreement is without prejudice to, all rights against Respondent with respect to: fa)—Liability for failure of Respondent to meet a requirement of this agreement. (b) (a Liability for costs incurred oMo be incurred by the United States-Virgin-Islandst () —Liability for future violations (occurring after the Commissioner's approval of this Agreement.) (d) floj cciminalliabilitytand te t Liability for damages for injury to. destruction of. or kiss of natural resources. and for costs of any natural resource thin proven. by final adjudication in a court of law having personal a .libiect muter jurisdiction over this twitter, to be ciunetl by tit Ites mndent Nething-in-thisagfeement-is-i.nteaded-te-600-aball-be-eenstmeil-as-a-Feleaser eevenant na-te-suer er-sernpfefaise-ef-cany-staini-ar-eause-of--aetienr adfainistfative-Of4Hdieialr Seftlementagreement-dees-aet-limit-0-affeet-the-Fights-ef-Respendeat-ef-the-Gevemmen4-ef-the EFTA01190095 Settlement Agreement DPNR vs. Great St. Jim, LLC NOVA-04-16-STT Page 7 of 10 Mirtin4elands-against-any-third-pacties-not-named-heteinr nor-the-Fights-of-third-paFties-not patties-te-this-Agreement-against-any-ether-raFties, 8-7rittdentnifteatien Respendent-agrees-te4ndemnif-yr inyestigater defendr and-hold-hamless-DPNR-fr-ont-and against—any—and—ali—lessrdamagerliabaa.. elaimsr demandsr detfintentsr eestr ehartes-and ex-pense-fineluding-any-atterney12/ -fees)-and-eauses-ef-aetien-efaAatseeyer-eharaeter-whieh £4214R-mey-inetar sustain or be subjected ts,-arising out of or in any way connected to the actions takeit-brReapentlent-that-resttited-iit-this-Settlementagreementrthe-aetiefts-to-be-performed-by Respendent-under--thisagr-eententr and-aFising-frent-any-eauser except-the-sole-negligenee-of DPNR. 78. 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. 89. Confidentiality. a. This Agreement shall not be filed with any court. This Agreement may not be introduced in any proceeding except when required to obtain approval hereof, to enforce this Agreement or where this Agreement will be a defense. b. Except as required by law, rule, regulation or subpoenas, neither DPNR nor its employees or representatives shall disclose to any person or entity any information whatsoever regarding: (i) DPNR's allegations of unlawful conduct by Respondent or (ii) the existence or substance of this Agreement. The above limitation does not include DPNR's disclosure of such information to any attorneys with whom it chooses to consult or seek advice EFTA01190096 Settlement Agreement DPNR vs. Great St. Jim, LLC NOVA-04- I 6-STT Page 8 of 10 regarding the consideration of and decision to execute this Agreement with the understanding that DPNR shall inform anyone falling within this category of the confidentially provisions contained herein and the individual to whom the information is disclosed agrees to abide by the confidentiality provisions contained herein. c. The parties acknowledge and agree that any violation of this Paragraph by DPNR or its employees or representatives, including but not limited to its attorneys, will constitute a material breach of this Geolideritial-SettlemermAgreement which will entitle Respondent to bring an action in Court for relief including injunctive relief and for damages. d. The parties also acknowledge and agree that any violation of this Paragraph by Respondent or its representatives, including but not limited to its attorneys, will constitute a material breach of this Confidential Settlement Agreement which will entitle DPNR to bring an action in Court for relief including injunctive relief and for damages. 940. Permitted Actions It is acknowledged and agreed by DPNR that the Respondent has requested and received final approval from DPNR for the following development activities to take place on the Property: il It being further acknowledged and agreed by DPNR that Respondent shall not need any further approval by DPNR regarding the activities listed in this Section 940 and Respondent may commence said activities immediately upon execution of this Agreement. 9101. Modification This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements, representations and EFTA01190097 Settlement Agreement DPNR vs. Great St. Jim, LLC NOVA-04- I 6-STT Page 9 of 10 understanding, whether written or oral, relating to the subject matter hereof. Prior drafts of thine Agreement shall not be used in any action involving the interpretation or enforcement of thine Agreement. All modifications to this Agreement shall be in writing and signed by the pParties hereto. 102. Jurisdiction This Agreement shall be construed and its performance enforced under the laws of the United States Virgin Islands. 143. 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 thine Agreement on behalf of such party. IN WITNESS WHEREOF, the undersigned have executed this Confidential Settlement Agreement as of the day and year written below. GREAT ST. JIM, LLC By: Poplar, Inc., Sole Member IlysERIICA A. KELLERHALS, SOLE MEMBER Date Its: GOVERNMENT OF THE VIRGIN ISLANDS DEPARTMENT OF PLANNING AND NATURAL RESOURCES EFTA01190098 Settlement Agreement DPNR vs. Great St. Jim, LLC NOVA-04- 16-STT Page 10431'10 JEAN-PIERRE L. ORIOL, DIRECTOR Date DIVISION OF COASTAL ZONE MANAGEMENT DAWN L. HENRY, ESQ., COMMISSIONER Date DEPARTMENT OF PLANNING AND NATURAL RESOURCES EFTA01190099