COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT
CIVIL ACTION NO.

SUFFOLK, ss.

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COMMONWEALTH OF MASSACHUSETTS,
Plaintiff,
v.
PALMER MOTORSPORTS PARK, LLC; and
J. READ CORP.,
Defendants.

CONSENT TUDGMENT

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TABLE OF CONTENTS

INTRODUCTION

Page
1

I.

DEFINITIONS

II.

JURISDICTION AND VENUE

III.

PARTIES BOUND

IV.

PAYMENT OF CIVIL PENALTIES

V.

SUPPLEMENTAL ENVIRONMENTAL PROJECT

VI.

INJUNCTIVE RELIEF

11

VII.

SITE ACCESS AND PRESERVATION OF RECORDS

22

VIII. PAYMENT OF STIPULATED PENALTIES

24

IX.

INTEREST AND COLLECTIONS

26

X.

FORCE MAJEURE

26

XL

DISPUTE RESOLUTION

27

XII.

EFFECT OF CONSENT JUDGMENT

29

XIII. MISCELLANEOUS

30

XIV. NOTICES

32

XV.

33

INTEGRATION

XVI. MODIFICATION

33

XVII. AUTHORITY OF SIGNATORY

34

XVIII.EFFECTIVE AND TERMINATION DATE

34

XIX. RETENTION OF JURISDICTION

35

XX.

35

INAL JUDGMENT

XXI. SECURITY

35

XXII. MESA MITIGATION CREDIT

36

INTRODUCTION
WHEREAS, Plaintiff, the Commonwealth of Massachusetts ("Commonwealth"), acting
by and through the Attorney General, the Massachusetts Department of Environmental
Protection ("Department"), and the Division of Fisheries and Wildlife ("DFW") and its Natural
Heritage Endangered Species Program ("NHESP"), has filed a Complaint in this action alleging
that Defendants, Palmer Motorsports Park, LLC ("PMP") and J. Read Corp. ("J. Read")
(collectively, "Defendants"), during the development and constmction of a sports car race track
facility that will host vehicle-related sporting events in the Town of Palmer (the "Project"),
violated the Wetlands Protection Act, G.L. c. 131, 40 (the "WPA"); its implementing
regulations found at 310 C.M.R. 10.00 et seq. (the "Wetlands Regulations"); the Massachusetts
Clean Waters Act, G.L. c. 21, 26-53 (the "CWA"); its implementing regulations found at 314
C.M.R. 9.00 et seq. (the "CWA Regulations"); the Massachusetts Endangered Species Act, G.L.
c. 131A ("MESA"); and its implementing regulations found at 321 C.M.R. 10.00 et seq. (the
"MESA Regulations");
WHEREAS, the Complaint alleges that PMP and J. Read, by their acts and omissions,
caused, suffered or allowed damage to the environment and to Species of Special Concern within
the Commonwealth;
WHEREAS, the Commonwealth's Complaint seeks injunctive relief and the assessment
of civil penalties against PMP and J. Read;
WHEREAS, the Commonwealth, PMP and J. Read (collectively, the "Parties") have
reached an agreement to resolve the Commonwealth's claims against the Defendants, including
an agreement on the appropriate injunctive relief and on the amount of a civil penalty to be paid
by the Defendants;

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WHEREAS, the Commonwealth, PMP and J. Read consent to the entry of this Consent
Judgment without admission of liability and without a trial on any issues and agree that the entry
of this Consent Judgment is an appropriate means to resolve this case; and
WHEREAS, the Parties agree that the settlement of this matter has been negotiated in
good faith and at arm's length; that implementation of this Consent Judgment will avoid
prolonged and complicated litigation between the Parties; and that this Consent Judgment is
consistent with the goals of the statutes and regulations set forth above and is in the public
interest;
NOW, THEREFORE, based on the Joint Motion of the Parties for Entry of this Consent
Judgment, and before taking any testimony and without the adjudication of any issue of fact or
law except as provided in Section II (Jurisdiction and Venue), it is ADJUDGED, ORDERED,
AND DECREED, as follows:
I.

1.

DEFINITIONS

Unless otherwise expressly provided in this Consent Judgment, terms used in this

Consent Judgment shall have the meanings assigned to them in the statutes and regulations set
forth above; provided, however, that nothing in this Consent Judgment shall excuse the
Defendants from complying with any changes to those statutes and regulations, or to any other
law or regulation, that are made after the Entry Date, including without limitation changes to the
terms that are defined in this Section I.
2.

Whenever the following terms are used in this Consent Judgment, the definition

specified hereafter shall apply:

(a)

"Attorney General" shall mean the Massachusetts Office of the Attorney General.

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"Commonwealth" or "Massachusetts" shall mean the Commonwealth of

Massachusetts.
"Consent Judgment" shall mean this Consent Judgment and any attachments to it.
"Contractor" shall mean a third-party contractor engaged by PMP or J. Read to
perform work pursuant to this Consent Judgment.
"Day" shall mean a calendar day. A "business day" shall mean a day other than a
Saturday, Sunday, or a State or Federal holiday.
"DFG" shall mean the Massachusetts Department of Fish & Game.
"DFW" shall mean the Massachusetts Division of Fisheries and Wildlife.
"Department" shall mean the Massachusetts Department of Environmental
Protection.
"Entry Date" shall mean the date that this Consent Judgment is entered on the
Docket of the Suffolk Superior Court.
"J. Read" shall mean the Defendant, J. Read Corp., a Massachusetts for-profit
corporation with its principal office at 100 Old Ward Street in Hingham,
Massachusetts.
"NHESP" shall mean the Natural Heritage Endangered Species Program, which is
a program within the DFW.
"Parties" shall mean the Plaintiff Commonwealth, Defendant PMP, Defendant J.
Read, and any successor in interest to either PMP or J. Read.
"PMP" shall mean the Defendant, Palmer Motorsports Park, LLC, a
Massachusetts limited liability company with its principal office located at 9
Whiting Road, Dover, Massachusetts.

"Project" shall mean the development and construction of a sports car race track
facility in the Town of Palmer that is the subject of this litigation.
"Project Site" shall mean the property located at and off 58 West Ware Road in
Palmer, Massachusetts, that contains 492 acres of land, more or less, of which
approximately 75 or more acres have been involved in development activities
relative to the Project. The Project Site is depicted on Exhibit A, which is
attached hereto and made a part hereof ("Exhibit A"), and is comprised of the land
referenced in the deeds recorded at Book 19945, Page 373 and Book 19262, Page
211 of the Hampden County Registry of Deeds, including at least Lots 49-4, 51-1,
52-8, 44-33 and 44-35, as shown on Town of Palmer Maps.
"Restoration Plan" shall mean the "In Situ Wetland Restoration Plan, Palmer
Motorsports Park, West Ware Road, Palmer, MA, DEP File No. 256-0265 & 2560269, NHESP File No. 10-28604, MESA CMP 013-227.DFW" that has been
submitted by PMP and J. Read to the Commonwealth, together with supporting
as-built plans prepared by J. Read, all of which are attached hereto as Exhibit B
and made a part hereof.
"Section" shall mean a portion of this Consent Judgment identified by a Roman
numeral.
"SEP" shall mean Supplemental Environmental Project.
"Conservation Restriction" shall mean a conservation restriction and/or
conservation easement as defined and authorized by Sections 31 - 33 of Chapter
184 of the Massachusetts General Laws and otherwise by law.

(t)

"Wildlife Conservation Easement" shall mean a Conservation Restriction with

general provision for public access.

(u)

"Wildlife Conservation Restriction" shall mean a Conservation Restriction with

limited or no provision for public access.

(v)

"Barrier Plan" shall mean the plan dated April 17, 2015 entitled BAR-1 (no
revisions) as attached to the Restoration Plan.

II.
3.

JURISDICTION AND VENUE

The Superior Court has jurisdiction over the subject matter of this action and over

the Parties pursuant to G.L. c. 131, 40; G.L. c. 131A, 6; G.L. c. 21, 46; and G.L. c. 214,
1 and 3(12). Venue is proper in Suffolk County pursuant to G. L. c. 223, 5.
4.

The Complaint alleges facts which, if proven, would constitute good and

sufficient grounds for the relief set forth in this Consent Judgment.

III.
5.

PARTIES BOUND

This Consent Judgment shall, upon its entry on the Superior Court's docket,

constitute a binding agreement between the Parties, and PMP and J. Read consent to its entry as
a final judgment by the Court and waive all rights of appeal of this Consent Judgment and of the
Restoration Plan. If the Superior Court declines to enter this Consent Judgment on any ground
except one related to form, this Consent Judgment is voidable at the option of any of the Parties
within fourteen (14) days of the Court's decision. If, on the other hand, the Superior Court
determines that substantive modifications to this Consent Judgment are necessary prior to the
Court's entry of it, the Parties shall enter into good faith negotiations to discuss the
modifications, and this Consent Judgment shall be void unless the Parties agree otherwise in
writing within fourteen (14) days of the Court's decision.

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6.

The provisions of this Consent Judgment shall apply to and bind PMP, J. Read,

and any person or entity acting by, for, or through either of them, including cither's principals,
members, managers, directors, officers, supervisors, employees, agents, servants, contractors,
attorneys-in-fact, successors, and assigns, and those persons in active conceit or participation
with either who receive notice of this Consent Judgment.
7.

No change or transfer in ownership, management, or operation of PMP or J. Read,

whether in compliance with the procedures of this Paragraph or otherwise, shall relieve either
PMP or J. Read or their members, managers, directors, officers, supervisors, employees, agents,
servants, attorneys-in-fact, contractors, successors and assigns, of any obligation under this
Consent Judgment. At least thirty (30) days prior to any material change or transfer of
ownership, management, or operation of either Defendant, the transferring Defendant shall
provide a copy of this Consent Judgment to the proposed transferee or new manager or operator
and shall, within ten (10) days after the closing of the transaction, provide written notice of the
change or transfer in ownership, management, or operation of the transferring Defendant,
together with a copy of the public version of any written change or transfer agreement, to the
Attorney General in accordance with Section XIV (Notices) of this Consent Judgment. Any
attempt to change or transfer ownership, management, or operation of either Defendant without
complying with this provision shall constitute a violation of this Consent Judgment.
8.

PMP and J. Read shall not violate the WPA, the Wetlands Regulations, the CWA,

the CWA Regulations, MESA, the MESA Regulations, or this Consent Judgment, and PMP and
J. Read shall not allow any of the persons or entities listed in the preceding Paragraph to do so.
In any action to enforce this Consent Judgment, PMP and J. Read shall not raise as a defense the
failure by any of these persons or entities to take any actions necessary to comply with the

provisions of this Consent Judgment. Nothing in this Consent Judgment is intended to excuse
PMP or J. Read or any of these persons or entities from complying with any federal, state or
local law or regulation. PMP and J. Read acknowledges the Commonwealth's ongoing civil
penalty authority under the WPA, the Wetlands Regulations, the CWA, the CWA Regulations,
MESA, the MESA Regulations, and G.L. c. 21A, 16, and PMP and J. Read waive, and will not
raise in the context of any future enforcement action, any claim that one or more of the statutes
or regulations mentioned in this Paragraph was or is unenforceable against PMP and J. Read.
9.

In addition to any relief specifically provided in this Consent Judgment, PMP and

J. Read understand and agree that violations of this Consent Judgment may be punishable by
contempt.

IV.
10.

PAYMENT OF CIVIL PENALTIES

PMP and J. Read shall each pay a civil penalty to the Commonwealth of One

Hundred and Twenty-Five Thousand Dollars ($125,000.00), for a total civil penalty payment of
Two Hundred and Fifty Thousand Dollar's ($250,000.00) (the "Civil Penalty") to be deposited
into the General Fund. By no later than five (5) business days after the Entry Date, PMP shall
pay to the Commonwealth Seventy-Five Thousand Dollars ($75,000.00) of its share of the Civil
Penalty. PMP shall pay the Commonwealth the remaining Fifty Thousand Dollars ($50,000.00)
of its share of the Civil Penalty in ten (10) equal monthly installments of Five Thousand Dollars
($5,000.00) each, beginning on the first day of the month following the month in which the Entry
Date falls, and continuing on the first day of each successive month thereafter until all ten (10)
payments have been made. By no later than five (5) business days after the Entry Date, J. Read
shall pay to the Commonwealth its One Flundred and Twenty-Five Thousand Dollars
($125,000.00) share of the Civil Penalty.

11.

The Defendants shall make all payments due under this Consent Judgment by

certified or bank check payable to the Commonwealth of Massachusetts and sent to the Attorney
General's Office in accordance with Section XIV (Notices). Each check shall include on its face
the following information: Commonwealth of Massachusetts v. Palmer Motorsports Park, LLC
and J. Read Corp.

V.
12.

SUPPLEMENTAL ENVIRONMENTAL PROJECT

In order to secure significant environmental and public health benefits, protection,

and improvement, including without limitation benefits to species protected under MESA and
the MESA Regulations, and to wetland and water resources of the Commonwealth and the
United States as provided for in the WPA, the Wetlands regulations, the CWA and the CWA
Regulations, PMP and J. Read agree that they will fund in the amount of Two Hundred
Thousand Dollars ($200,000.00) a Supplemental Environmental Project ("SEP") that goes
beyond what PMP and J. Read are required to do by law. By no later than five (5) business days
after the Entry Date, J. Read and PMP shall each pay One Hundred Thousand Dollars
($100,000.00) into a fund to be held in escrow by Jonathan Fryer, Esq., of Dover, Massachusetts,
who shall serve as escrow agent for PMP and J. Read, and who shall facilitate the SEP
transactions provided for herein. Using said funds, PMP, with Jonathan Fryer, Esq.'s assistance,
shall use best efforts to acquire within sixty (60) days of the Entry Date the parcels of real estate
that are described or shown in the two separate Options to Purchase (entitled "OPTION TO
PURCHASE Fee Simple Form, Nenameseck Sportsmens Club, Inc. and David L. Robertson to
Commonwealth of Massachusetts, Department Fish and Game, 251 Causeway Street, Boston
Massachusetts 02114" and "OPTION TO PURCHASE Fee Simple Form, Stephen P. Fijal to
Commonwealth of Massachusetts, Department Fish and Game, 251 Causeway Street, Boston

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Massachusetts 02114") that are included within Exhibit C, which is attached hereto and made a
part hereof. With Jonathan Fryer, Esq.'s assistance, PMP shall thereafter promptly donate the
parcels to DFG for inclusion in the Palmer Wildlife Management Area that is owned by the
Commonwealth, which shall connect geographically separate sections thereof and convey a socalled buffer parcel to the Nenameseck Sportsmens Club, Inc. One or more thirty-day (30)
extensions of the deadline set forth in the preceding sentence may be granted by the
Commonwealth in the event that some impediment affecting title to said land is determined to
exist and said purchases and transfers cannot be timely completed, or if additional time is
required to complete required recordable surveys of the parcels. With regard to the due diligence
required to achieve these transactions, DFG will contract for title certification and the required
surveys using its own standards and procedures, and will submit invoices for these services to
PMP, which herby agrees to pay said invoices, with Jonathan Fryer, Esq.'s assistance, directly
and without delay from the SEP funds. In order to facilitate the SEP, DFG has obtained the
Options to Purchase in Fee Simple for the parcels from their current owners and has or will at or
near the Entry Date assign the Options to Purchase to PMP. In order to facilitate the transactions
subject to the SEP, PMP shall work with and through DFW Chief of Wildlife Lands (presently
Craig MacDonnell) and DFG Connecticut Valley Land Agent (presently Sam Lovejoy). The
parcels to be acquired by PMP and donated to DFG are as described in the two Options to
Purchase and in the recorded deeds referenced in the two Options to Purchase, and the terms of
the Options to Purchase shall be followed in effectuating these transactions. The Parties agree
that a contract for required surveys of the Nenameseck Sportsmens Club, Inc. parcels has been
arranged with Sherman & Frydryk, LLC Land Surveying and Engineering ("Sherman & Frydryk"),
of Palmer, Massachusetts, and shall be paid for by PMP, with Jonathan Fryer, Esq.'s assistance,
from the SEP funds. The Parties agree that a contract for the required survey of the Fijal parcels has
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been arranged with Dale Merritt, P.L.S., of Vernon, Vermont, for a full boundary plan of the
subdivision contemplated herein, which shall be paid for by PMP, with Jonathan Fryer, Esq.'s
assistance, from the SEP Funds. The parties agree that once the survey identifying the Fijal parcel to
be transferred has been completed, PMP shall collaborate with DFG and DFW staff in securing the
subdivision approval of said parcel and in further confirming and formalizing its obligation to
acquire and donate said parcel to DFG, which collaboration shall include entering into a purchase
agreement with Fijal consistent with the terms of the underlying option, if deemed necessary by DFG
or DFW staff.
13.

PMP and J. Read shall certify to the Commonwealth under the penalties of

perjury the total amount paid for the acquisition of the parcels of real estate that are described in
Exhibit C and referenced in the preceding Paragraph, including costs of survey, subdivision,
recording and title confirmation, but excluding attorneys' fees. If for some reason the acquisition
of one or both of said parcels described in Exhibit C cannot be completed within six months of
the Entry Date, DFG, with the approval of the Fish and Wildlife Board, may identify substitute
properties to acquire using SEP Funds. If the sum of the purchase price and the costs to
purchase the parcels of real estate described in Exhibit C is less than Two Hundred Thousand
Dollars ($200,000.00), the remaining funds shall be paid by PMP and J. Read to the
Commonwealth within five (5) days following the acquisition of the last of the parcels, and shall
be deposited in the Natural Resource Damages Trust established under 2004 Mass. Acts Chapter
149, Section 222, amending Chapter 194 of the Acts of 1998. In any event, neither PMP nor J.
Read shall be responsible for any costs that exceed the Two Hundred Thousand ($200,000.00)
paid into the SEP as set forth herein.
14.

If any portion of any payment required to be made to fund the SEP is not made by

the deadlines established in this Section, PMP and J. Read shall also pay stipulated penalties in
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accordance with the provisions of Section VIII (Payment of Stipulated Penalties), and interest
and costs in accordance with Section IX (Interest and Collections). PMP and J. Read understand
and agree that the failure on their part to fund the SEP in accordance with the requirements of
this Section may also be punishable by contempt.
15.

Any public statement, oral or written, in print, film, electronic or other media,

made by PMP or J. Read that makes reference to the SEP shall include the following language;
"This project was undertaken in connection with the settlement of the following action.
Commonwealth of Massachusetts v. Palmer Mot or sports Park, LLC and J. Read Corp., Suffolk
Superior Court C.A. No.

[insert this case number], brought pursuant to G.L. c. 131,

40; 310 C.M.R. 10.00 etseq.\ G.L. c. 21, 26-53; 314 C.M.R. 9.00 etseq.-, G.L. c. 131 A; and
321 C.M.R. 10.00 etseq"
16.

For federal and State income tax purposes, PMP and J. Read agree that they will

neither capitalize into inventory or basis, nor deduct, any costs or expenditures incurred in the
performance of the SEP.
17.

PMP and J. Read hereby certify that, as of the date of execution of this Consent

Judgment, neither of them is otherwise required, by virtue of any other local, state or federal
order, consent decree, permit or agreement, to perform this SEP, and that neither has otherwise
agreed to undertake and is not presently negotiating to undertake, any of the obligations set forth
in this SEP in any other enforcement action or pursuant to any grant from the Department, the
United States Environmental Protection Agency, or any other entity.

VI.
18.

INJUNCTIVE RELIEF

PMP and J. Read submitted to the Department and NHESP for review and

approval the Restoration Plan and attached as-built plans that are attached hereto as Exhibit B

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and made a part hereof. The Restoration Plan was prepared by Oxbow Associates, Inc.
("Oxbow"), a Massachusetts-based wetlands and wildlife consulting company specializing in
wetlands delineations and permitting, and rare and endangered species permitting and
evaluations, and the as-built plans were prepared by J. Read. Following an intensive review, the
Department and NHESP concluded that the Restoration Plan contained the information and data
necessary for the Department and NHESP to approve it, which the Department and NHESP have
now done. The limits of work shown on the as-built plans represent areas of clearing and
grading impacts that are the subject of this lawsuit and do not necessarily reflect areas of the
Project Site where PMP or J. Read were previously authorized by any federal, state or local
governmental body to perform any work. The as-built plans also do not constitute and are not to
be considered to be any permit or approval required under applicable Massachusetts laws or
regulations.
19.

PMP and J. Read shall strictly comply with the terms and conditions of this

Consent Judgment and the Restoration Plan, any revisions or modifications of the Restoration
Plan that the Department or NHESP shall deem necessary, and any permits or other approvals
issued by the Department, NHESP and any other state, federal, or municipal agency or body
relative to the Project and Project Site pursuant to the WPA, the Wetlands Regulations, the
CWA, the CWA Regulations, MESA, the MESA Regulations, and any other applicable laws and
regulations. PMP and J. Read shall use their best efforts to ensure that all of their managers,
members, directors, officers, supervisors, employees, agents, servants, attorneys-in-fact,
contractors, successors and assigns also do so.
20.

Given Oxbow's preparation of the Restoration Plan, its familiarity with the

Project Site, its experience in specializing in wetlands delineations and permitting, and in rare

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and endangered species permitting and evaluations, PMP and J. Read shall engage Oxbow to
assist with the implementation of all work on the Project Site that is required pursuant to the
Restoration Plan. Brett Trowbridge and/or Brian Butler, both of Oxbow, shall, until completion
of the Restoration Plan work required pursuant to the Restoration Plan, carry out continuously all
on-site construction direction, supervision, monitoring and observation of all phases of the
Restoration Plan work and of all personnel and equipment involved in said Restoration Plan
work. If neither Brett Trowbridge nor Brian Butler is available on-site to monitor and supervise
the required Restoration Plan work, Oxbow may seek prior authorization from the Department
and NHESP to substitute other qualified Oxbow personnel acceptable to the Department and
NHESP. If Restoration Plan work activities are simultaneously taking place at more than one
location, the required direction, supervision, monitoring and observation of work shall be carried
out by additional qualified Oxbow personnel or by one or more persons designated by Oxbow
who have received prior authorization from the Department and NHESP to do so, and any
designees shall be supervised by, report to, and be in constant electronic communication, at all
times the work is proceeding, with Oxbow personnel who shall be located on the Project Site and
supervising other work activities being undertaken pursuant to the Restoration Plan. Neither the
Defendants, nor any person or entity acting by, for, or through either of them, including either's
principals, members, managers, directors, officers, supervisors, employees, agents, servants,
contractors, attorneys-in-fact, successors, and assigns, and those persons in active concert or
participation with either who receive notice of this Consent Judgment, shall impede Oxbow or its
designees in the performance of their duties under this Consent Judgment or the Restoration
Plan. The Department and NHESP reserve the right and discretion to disapprove Oxbow's
continued work at any time if Oxbow fails to perform the engagement in a manner that complies

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with the Restoration Plan or this Consent Judgment. In such case, PMP and J. Read shall
immediately discontinue work pursuant to the Restoration Plan and shall, within five (5) business
days, suggest in writing to the Department and NHESP a replacement consultant to carry out all
necessary on-site construction direction, supervision, monitoring and observation of work
required by the Restoration Plan until completion. In the event that Oxbow Associates, Brett
Trowbridge, or Brian Butler are unable or unwilling to perform said services, then PMP and
J. Read shall, within five (5) business days, suggest in writing to the Department and NHESP a
replacement consultant to carry out all necessary on-site construction direction, supervision,
monitoring and observation of work required by the Restoration Plan until completion. In either
case, work may recommence when the Department and NHESP, in their sole discretion,
approves the use of the replacement consultant,
21.

Prior to beginning any restoration work required by the Restoration Plan, the

Defendants shall install in a publicly visible location at the entrance to the Project Site along
West Warren Road in Palmer a weather-proof sign of at least two (2) feet by two (2) feet in size
that bears the following text in clearly readable, large block text: "Commonwealth of
Massachusetts v. Palmer Motorsports Park, LLC and J. Read Corp., Suffolk Civil Action
Number

[this case number]." This sign shall remain in place until such

time as the initial physical restoration work required under the Restoration Plan is completed and
the Commonwealth has so indicated in accordance with Paragraph 25, below.
22.

Within thirty (30) days of the Entry Date, the Defendants shall begin

implementation of the Project Site restoration work by beginning to install erosion and
sedimentation controls required by the Restoration Plan. Before any work is conducted at a
Project Site area that must be restored pursuant to the Restoration Plan, compliant sedimentation.

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erosion and other controls called for in the Restoration Plan and by good engineering practice
must be installed at that area.
23.

The Defendants shall implement all requirements of the Restoration Plan

involving mechanical and hand removal of blasted rock fragments, sediment, wood chips,
construction mats, culverts, corduroy logs, and other all other noncompliant materials, and shall
stabilize the Project Site in accordance with the Restoration Plan by no later than ninety (90)
days from the Entry Date.
24.

The Defendants shall fully implement all requirements set forth and described in

the Restoration Plan involving seeding, use of approved seed mix, specific plantings, the use of
specified horticultural techniques, and the stabilization of the Project Site by no later than close
of business on November 30, 2015.
25.

The Defendants shall complete all initial physical restoration work required by the

Restoration Plan (which excludes the monitoring and reporting described below, and any
corrective action deemed necessary by the Commonwealth) by no later than close of business on
November 30, 2015, unless that time is extended by the Commonwealth pursuant to Section X
(Force Majeure) of this Consent Judgment. Oxbow, or its approved successor, shall certify to the
Commonwealth when all of the initial physical restoration work required by the Restoration Plan
has been completed. At this time, PMP may request that the Department and NHESP inspect the
Project Site to determine if said work has been completed in accordance with the Restoration
Plan and good engineering practice. After an inspection, the Department and NHESP shall
provide a notice or letter to PMP indicating whether they agree, in their sole discretion, that all of
the initial physical restoration work required by the Restoration Plan has been completed. If not,
the Department and NHESP shall identify work that has not been completed, and PMP shall

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thereafter propose corrective action using the procedure described in Paragraph 28 of this
Consent Judgment, below, and perform the required work after receiving the discretionary
approval described therein.
26.

The Defendants shall require personnel from Oxbow, or its approved successor, to

monitor all areas restored pursuant to the Restoration Plan for the period of time specified in
Table 4 of the Restoration Plan, such that each period of monitoring commences in the first full
growing season after completion of the initial planting in each of the impact areas specified in
Table 2 of the Restoration Plan. For each area of the Project Site requiring more than one year of
monitoring, additional monitoring periods shall occur in non-consecutive years and during the
appropriate growing season for the plants installed in that area. The Department and NHESP
may, in their sole discretion, require the Defendants to implement a corrective plan of action
with such terms and conditions as the Department and NHESP deem appropriate, and/or an
extension of the monitoring period, based upon data and conclusions submitted by the
Defendants through Oxbow, or its approved successor, in the required draft monitoring reports,
or if the Department and NHESP, in their discretion, render a conclusion that restoration in any
of the areas to be restored pursuant to the Restoration Plan has failed to meet the standards set
forth in 314 C.M.R. 9.06(2). The Department shall issue a final return to compliance letter when
all work required under the Restoration Plan, including monitoring, reporting and any corrective
action deemed necessary by the Commonwealth, is, in the Commonwealth's sole discretion,
completed.
27.

The Defendants shall require Oxbow, or its successor, to complete an annual

floral inventory of all of the areas being restored pursuant to the Restoration Plan, including
without limitation those classified as "Sediment Light" that will be initially monitored and

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reported on as part of the monitoring described in the preceding and following Paragraphs of this
Consent Judgment.
28.

PMP and J. Read shall require Oxbow, as part of its engagement, to submit an

annual written report in draft to the Department by December 31 st of the year of monitoring, for
the period of time specified in Table 4 of the Restoration Plan, beginning with the first full
growing season after completion of the work required pursuant to the Restoration Plan. Said
report shall include digital photos and a narrative, and shall detail how and to what extent the
remediation of Bordering Vegetated Wetlands and other wetland resource areas on the Project
Site meets the General Perfonnance Standards set forth in the Wetlands Regulations, and how
the work conducted complies with the CWA Regulations and the MESA Regulations. If non
compliance with any General Performance Standard in the Wetlands Regulations, with the CWA
Regulations or the MESA Regulations is documented, the report shall include a draft "corrective
plan of action" for the Department and/or NHESP, in its sole discretion, to review and approve
prior to implementation. Once approved by the Commonwealth, PMP and J. Read shall
promptly, prior to the season following the report, implement the corrective plan in accordance
with the terms of the approval.
29.

PMP and J. Read shall require Oxbow, as part of its engagement, to complete

survey and monitoring of "Certified Vernal Pool 6345 (CVP 6345; Wetland D)" in accordance
with the Restoration Plan in May of 2015, 2017, 2024, and 2034. If vernal pool obligates are
observed by the time of the May, 2024 monitoring, then the May, 2034 monitoring will not be
required. In addition to any other authority provided by this Consent Judgment or by applicable
law, NHESP and the Department shall have the right to enter the Project Site at any reasonable
time in order to monitor conditions at CVP 6345 and Wetland D.

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30.

Failure of PMP, J. Read or Oxbow to maintain at any time an appropriate standard

of care in implementation of any phase of the Restoration Plan may be deemed, at the sole
discretion of the Department or NHESP, to constitute noncompliance with this Consent
Judgment. Failure to maintain an appropriate standard of care includes but is not limited to:
(a)

failure to comply with the terms of all governmental permits and approvals issued
for the Project Site;

(b)

failure to comply with the Restoration Plan;

(c)

planting at inappropriate times of year;

(d)

failure to ensure adequate vigor and condition of selected plant materials;

(e)

failure to reach appropriate subsurface hydrology;

(f)

failure to restore or replicate suitable substrate conditions;

(g)

failure to implement standard horticultural practices (such as irrigation,

fertilization, disease and pest control);

(h)

failure to maintain erosion and sedimentation controls;

(i)

failure to adequately control nonindigenous invasive species; and/or

(j)

the loss of plantings of a sufficient number to impair the success of any

restoration area.

31.

PMP and J. Read shall insure that all documents, photographs, and other tangible

things submitted to the Commonwealth pursuant to the requirements of this Consent Judgment
are simultaneously provided to the Department, DFW-NHESP, the Palmer Conservation
Commission, and Paul Sneeringer of Permits and Enforcement Branch A, New England District,
Corps of Engineers, United States Department of the Army ("ACOE").
32.

No later than 45 days after the Entry Date, PMP shall grant to DFG, and record in

the Hampden County Registry of Deeds:

(a)

a permanent Wildlife Conservation Restriction over that portion of the Project

Site that is shown in green and is labeled "Easement 1," "Easement 2," and
"Easement 3" on Exhibit D, a copy of which is attached hereto and made a part
hereof, and

(b)

a separate Wildlife Conservation Easement over that portion of the Project Site
that is shown in beige and labeled "Easement 4," "Easement 5," and "Easement
6" on Exhibit D.

Copies of the Wildlife Conservation Restriction and the Wildlife Conservation Easement are
attached hereto as Exhibit E and made a part hereof, which are in forms acceptable to the
Commonwealth. PMP shall record at the Hampden County Registry of Deeds simultaneously
with the Wildlife Conservation Restriction and the Wildlife Conservation Easement all
documents necessary to subordinate any and all mortgages, financing documents or other
agreements that give rise to surety affecting any portion of the Project Site.
33.

To augment the conservation restrictions being granted to DFG by PMP, as

described in the preceding Paragraph, and in addition to all other rights of access in this Consent
Judgment or granted by law, DFG, NHESP and the Department shall have a permanent easement
for pedestrian access only across the track entrance road, which runs from West Ware Road
(a/k/a West Wan-en Road) to the actual race track on the Project Site, in order to allow the
agencies reciprocal access to and from either side of the access road to the western and eastern
portions of the area being conserved at all times of day or night, and to provide for daytime
public pedestrian access (no mechanical access or horses) between Easement 4 and Easement 5
of the Wildlife Conservation Easement. The easement is located in the vicinity of the second

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stream crossing along the track entrance road, as shown on Exhibit D attached hereto, and shall
connect Easement 4 and Easement 5 by allowing the crossing of Easement 1 and Easement 3, as
shown on Exhibit D. This access easement shall be accomplished via deed and shall be recorded
as a separate instrument. The location of the easement shall be marked in the field by PMP with
blazes and with signage provided by DFG.
34.

In preparation for making the grants described in the previous two Paragraphs of

this Consent Judgment, PMP shall have Sherman & Frydryk survey the limits and boundaries of
both the Wildlife Conservation Restriction (Easements 1, 2 and 3 on Exhibit D) and the Wildlife
Conservation Easement (Easements 4, 5 and 6 on Exhibit D). These surveys shall be completed
by October 31, 2015.
35.

Because the Wildlife Conservation Restriction being granted by PMP to DFG is

for wildlife protection purposes and PMP, as the fee owner, does not consent to public access
(except as provided for in the permanent easement described in Paragraph 33, above), public
access to the Wildlife Conservation Restriction area will be prohibited until such time as PMP
agrees in writing to grant such access. By no later than October 31, 2015, PMP shall, along the
boundaries of the land subject to the Wildlife Conservation Restriction shown on Exhibit D,
install signage provided by DFG. Also by no later than October 31, 2015, PMP shall install such
monuments and other markings along the boundaries of the land subject to the Wildlife
Conservation Restriction and the land subject to the Wildlife Conservation Easement as DFG
shall require in accordance with its "Guidelines for Boundary Marking and Maintenance on
DFW Lands," in order to provide notice to the public of the restriction on public access. If
required by DFG, PMP shall install monumentation that utilizes capped iron pins which shall be
supplemented with underground magnets designed for the purpose of identifying survey

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locations. If, at any time, PMP wishes to allow public access to the remainder of the land subject
to the Wildlife Conservation Restriction, PMP shall notify DFG and remove the signage,
monuments and tree marking in accordance with DFG's requirements.
36.

J. Read shall not cause any mechanics liens or other liens or encumbrances to be

placed on any portion of the land being conserved pursuant to the Wildlife Conservation
Restriction or the Wildlife Conservation Easement that are described above in this Consent
Judgment. By no later than the Entry Date, J. Read shall release any mechanics liens or other
liens or encumbrances that it may have caused to be placed on said lands.
37.

At no time shall PMP or J. Read construct or install at the Project Site any barriers

or fencing that has not already been approved under existing permits or approvals without first
securing all required permits and approvals. Barriers and fencing in existence at the time of
signing of this Consent Judgment and as shown in the Banier Plan attached to the Restoration
Plan, are approved by the Consent Judgment. PMP acknowledges that MESA Conservation and
Management Permit No. 013-227.DFW (issued for the Project on October 2, 2013, by NHESP)
(the "MESA CMP") is in full force and effect and that PMP will comply with the MESA CMP
and Condition #5 of the MESA CMP, including consultation.
38.

If DFG becomes the record owner in the future of any Project Site land and work

required pursuant to the terms of this Consent Judgment still remains to be performed, PMP,
J. Read, Oxbow and their authorized personnel shall have access to DFG's portion of the Project
Site land to conduct the unfinished restoration and other work. PMP, J. Read, and their
authorized personnel shall indemnify, defend (by counsel reasonably acceptable to the
Commonwealth) and hold harmless the Commonwealth, including without limitation all of its
agencies, Departments, Secretariats, and personnel, from and against all claims, damages, losses.

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expenses, and attorneys' fees arising out of or resulting from the negligence, misconduct,
malfeasance or other conduct of PMP, J. Read, Oxbow and their authorized personnel in
connection with performance of the work described in and required by this Consent Judgment.

VII.
39.

SITE ACCESS AND PRESERVATION OF RECORDS

In addition to all other rights of access that the Department, NHESP and DFG

may have, the Department, NHESP and DFG shall have the right to enter the Project Site, and
any other locations and places of business within the Commonwealth that PMP or J. Read may
maintain at which records and documents concerning the Project and Project Site are kept, at all
reasonable times, without securing any judicial or administrative warrants or other process, for
the purposes of conducting any activity related to the enforcement of the terms of this Consent
Judgment, or for inspections and monitoring compliance with the Restoration Plan and any
applicable laws, regulations, permits or approvals. PMP and J. Read expressly consent to such
entry by the Department, NHESP and DFG. Commonwealth representatives intending to access
the Project Site shall endeavor to contact PMP representatives (currently Fred Ferguson and
Jonathan Fryer, Esq.) by telephone or e-mail twenty-four hours prior to the intended time of
entry to give PMP an opportunity to select a representative to accompany them on any
inspections, but the inability to reach a PMP representative shall not prevent or delay the
Commonwealth's right of access to the Project Site. During any inspection, Department,
NHESP and DFG personnel may take videos or photographs of anything at any location on the
Project Site; may obtain copies of any non-privileged record or other documentary evidence
regarding the operations at the location that is kept there or at any other site that is under the
control of PMP or J. Read; and may take such samples of the air, any waste, any product, soil,
water, or other materials, including wildlife and plants, at the Project Site. Any information.

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documents, samples, visual or recorded evidence, or materials or tangible evidence gathered by

the Department, NHESP or DFG during any inspection pursuant to this Paragraph may be used
by the Commonwealth in an action to enforce this Consent Judgment or in any other
administrative, civil, or criminal enforcement action against PMP or J. Read, or any successor or
assign. During any inspection, personnel from the Department, NHESP and DFG shall not
interfere with the operation of the track and shall abide by the safety regulations imposed upon
entrants to the Project Site to the extent that they are not inconsistent with the Commonwealth's
rights under this Consent Judgment or any applicable law or regulation.
40.

In addition to complying with any other applicable local. State, or federal records

preservation requirements, until five (5) calendar year after PMP and J. Read complete all of the
requirements set forth in this Consent Judgment and the Restoration Plan, they shall preserve and
maintain at least one legible copy of all documents and other records in their possession,
custody, or control that are specifically required for the performance of any obligations under
this Consent Judgment, and shall likewise preserve and maintain all construction, operating,
financial and other documents and records for all aspects of the Project at the Project Site. If
PMP or J. Read retains or employs any agent, consultant, or contractor for the purpose of
complying with the terms of this Consent Judgment, then the agreement or contract with the
agent, consultant, or contractor shall require such person or persons to provide PMP or J. Read,
as the case may be, with a copy of all documents and other records relating to the performance of
the obligations under this Consent Judgment. This requirement includes electronic documents
and records. Any copies of documents and other records subject to this requirement may be
maintained in an electronic format. Unless a different time is provided for elsewhere in this
Consent Judgment, PMP or J. Read shall provide to the Department or NHESP a copy of any

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document or other record requested by the Department or NHESP related to this Consent
Judgment within ten (10) days of a written or oral request to do so.

VIII. PAYMENT OF STIPULATED PENALTIES

41.

In addition to the payments due under Section IV (Payment of Civil Penalties),

and subject to the proviso set forth below, a violating Defendant shall pay stipulated civil
penalties to the Commonwealth for each violation of any requirement in Section VI (Injunctive
Relief), with each day such violation occurs or continues constituting an additional violation, as
follows:
Period of Noncompliance
1st through 30th day
31 st through 90th day
Each day after the 90th day
42.

Penalty Per Day

$1,000.00
$2,500.00
$5,000.00

All penalties due under this Section shall be paid by the violating Defendant,

unless excused by the Force Majeure provision in Section X, within thirty (30) days of the
violating Defendant's receipt of a written demand from the Commonwealth. Payment shall be
made by means of a certified check made payable to the "Commonwealth of Massachusetts" and
sent to the Attorney General's Office in accordance with Section XIV (Notices). Each check
shall include on its face the following information: "Commonwealth of Massachusetts v. Palmer
Motorsports Park, LLC and J. Read Corp.'"
43.

If a violating Defendant disagrees that the act or omission to act on which the

Commonwealth's written demand is based constitutes a violation of the terms of this Consent
Judgment, then that Defendant may request reconsideration of the Commonwealth's written
demand pursuant to the terms of Section XI (Dispute Resolution). If the violating Defendant
seeks timely review of an adverse determination after reconsideration under Section XI (Dispute
Resolution) in this Court and the Court (or any final appellate review) affirms the
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Commonwealth's position in whole or in part, then the violating Defendant shall, within thirty
(30) days of the Court's decision, pay each stipulated civil penalty due from the date each
violation occurred until the date compliance is achieved, together with the interest and costs
provided for in Section IX (Interest and Collections). If, however, the violating Defendant
appeals the Superior Court's decision and the appellate court affirms the lower court's decision,
in whole or in part, that Defendant shall, within thirty (30) days of the final appellate court's
decision, pay each stipulated civil penalty due from the date each violation occurred until the
date compliance is achieved, together with the interest and costs provided for in Section IX
(Interest and Collections).
44.

If a Defendant fails to pay stipulated penalties when due, the Commonwealth may

institute proceedings to collect the penalties, as well as interest and expenses pursuant to Section
IX (Interest and Collections).
45.

If the Commonwealth collects stipulated penalties pursuant to this Section, then

neither the Commonwealth nor the Department nor NHESP may also seek administrative or civil
penalties for the same violations in a separate administrative or civil action. If the
Commonwealth elects not to collect stipulated civil penalties pursuant to this Section, then the
Commonwealth, the Department, or NHESP may seek any available alternative administrative or
civil penalties for any violations of any requirements in Section VI (Injunctive Relief). This
Paragraph shall not bar the Commonwealth from otherwise enforcing the terms of this Consent
Judgment. Nor shall the payment of stipulated civil penalties alter PMP's or J. Read's obligation
to complete performance as required by this Consent Judgment.
46.

Notwithstanding any other provision of this Section, the Commonwealth may, in

its unreviewable discretion, reduce or waive any stipulated civil penalties, interest, or costs that

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have accrued pursuant to this Consent Judgment.

IX.
47.

INTEREST AND COLLECTIONS

If any payment required pursuant to this Consent Judgment is late or not made,

the responsible Defendants shall pay interest on any overdue amount for the period of such
nonpayment at the annual rate of twelve percent (12%) per annum pursuant to G.L. c. 231, 6C,
and shall pay all expenses associated with collection by the Commonwealth of the unpaid
amounts and interest for any period of nonpayment after the payment obligation becomes due,
including reasonable attorneys' fees.

X.
48.

FORCE MAJEURE

PMP and J. Read shall perform the actions required by Section VI (Injunctive

Relief) within the time limits established in that Section, unless the performance is prevented or
delayed solely by events that constitute a force majeure event. A force majeure event is an event
that arises from causes entirely beyond the Defendants' control that will delay or prevent the
performance of any action required by Section VI (Injunctive Relief) despite the Defendants' due
diligence. A force majeure event does not include, among other things, unanticipated or
increased costs of performance, changed economic circumstances, or a financial inability to
perform. Except as excused by the Commonwealth pursuant to this Section, a delay on the part
of a contractor, subcontractor or consultant shall be attributable to PMP and J. Read. The
Commonwealth will not seek to collect Stipulated Penalties for an approved period of delay.
49.

Any request to extend a deadline set forth in Section VI (Injunctive Relief),

including a deadline in a plan submitted to the Commonwealth by PMP or J. Read pursuant to

that Section, shall be made in writing (including by e-mail to the e-mail addresses set forth in
Section XIV (Notices) of this Consent Judgment) to the Department and NHESP, with a copy to
the Assistant Attorney General listed below, prior to the expiration of the deadline. In a written
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request to the Commonwealth, PMP and J. Read shall describe (a) what action has been affected,
(b) the anticipated length of delay, (c) the cause of the delay, and (d) the steps or measures to be
taken to prevent or minimize the delay. Upon receipt of a timely request for an extension under
this Section, the Commonwealth may, in its discretion, grant additional time if it is persuaded
that the delay in performance is the result of a force majeure event. If the Commonwealth does
not agree that a force majeure event has occurred or does not agree to the length of the extension
of time sought by PMP or J. Read and the disagreement cannot be resolved by informal
negotiation, then the Commonwealth will notify PMP or J. Read in writing of the
Commonwealth's position, which shall be binding unless PMP or J. Read invoke the Dispute
Resolution procedures set forth in Section XI (Dispute Resolution), except that PMP or J. Read
must invoke those procedures within thirty (30) days after receipt of the Commonwealth's
written notice. In any proceedings under Section XI (Dispute Resolution), PMP and J. Read
shall bear the burden of demonstrating, by a preponderance of the evidence, that (a) they
provided the written request required above, (b) the delay in performance is the result of
circumstances entirely beyond their control, and (c) they could not have prevented or avoided the
delay by the reasonable exercise of due care, foresight, or due diligence. PMP's and J. Read's
failures to comply with the notice requirements of this Paragraph shall constitute waiver of their
rights to request an extension of time with regard to any delay and a waiver of any right to relief
from the deadlines in Section VI (Injunctive Relief) or any plan submitted to the Commonwealth
pursuant to that Section.

XL
50.

DISPUTE RESOLUTION

Unless otherwise provided in this Consent Judgment, the Dispute Resolution

procedures in this Section shall be the exclusive mechanism to resolve disputes arising under or

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with respect to this Consent Judgment. These procedures, however, shall not apply to actions by
the Commonwealth to enforce obligations of PMP and J. Read that have not been disputed in
accordance with this Section. In the event that PMP or J. Read utilizes the procedures in this
Section for a dispute arising under Section VIII (Payment of Stipulated Penalties), then all
references to the Department, NHESP and DFW in this Section shall refer to the
Commonwealth.
51.

If PMP or J. Read disagree with a written determination of the Department,

NHESP and DFW then it may, within thirty (30) days of the date of the Commonwealth's
determination, request reconsideration of the determination by submitting to the Department,
NHESP and DFW, with a copy to the Attorney General, any information or material it believes
demonstrates that the Department's, NHESP's, or DFW's determination was erroneous. Unless
otherwise provided in this Consent Judgment, PMP's or J. Read's failure to submit a request for
reconsideration within the period specified in this Paragraph shall constitute a waiver of their
ability to seek reconsideration and, in that case, the Department's, NHESP's, or DFW's
determination shall be final and unreviewable. If, after consideration of a timely request for
reconsideration, the Department, NHESP or DFW decides to affirm, in whole or in part, the
agency's original determination, then the agency shall notify PMP and J. Read of its
determination on reconsideration.
52.

The Department's, NHESP's, or DFW's determination on reconsideration shall be

final unless PMP or J. Read seeks judicial review of the dispute by filing with the Court and
serving on the Commonwealth, in accordance with Section XIV (Notices), a motion in this case
requesting judicial resolution of the dispute within thirty (30) days of receipt of the determination
on reconsideration. In an action for judicial review under this Section, PMP and

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J. Read shall bear the burden of demonstrating that the Department's, NHESP's, or DFWs
determination on reconsideration was not supported by substantial evidence, or was arbitrary or
capricious or otherwise not in accordance with law. PMP's or J. Read's motion and supporting
memorandum shall not raise any new issues or be based on new facts or information that they
did not present previously to the Department, NHESP or DFW during the dispute resolution
process described in this Section unless upon newly discovered evidence which by due diligence
could not have been discovered in time to raise it during the Dispute Resolution process
described in this Section XI.

XII.
53.

EFFECT OF CONSENT JUDGMENT

Upon payment by PMP of the PMP Civil Penalty and by J. Read of the J. Read

Civil Penalty due to the Commonwealth pursuant to Section IV (Payment of Civil Penalties), the
Commonwealth shall release PMP and J. Read from liability for the payment of civil penalties to
the Commonwealth for the specific legal claims alleged against them in the Complaint, but not
for: (a) injunctive, remedial, or other relief as to PMP's or J. Read's operations in the
Commonwealth based on the specific legal claims made in the Complaint; (b) any of PMP's and
J. Read's affirmative obligations pursuant to this Consent Judgment; (c) any stipulated penalties
owed pursuant to Section VIII (Payment of Stipulated Penalties) of this Consent Judgment; or (d)
any interest or expenses pursuant to Section IX (Interest and Collections).
54.

Nothing in this Consent Judgment, or any permit or approval issued by the

Department or NHESP relative to PMP's or J. Read's operations in the Commonwealth; (a) shall
bar any action by the Commonwealth on any legal claim not specifically pleaded in the
Complaint or for any violations not revealed to the Commonwealth; (b) shall be deemed to
excuse compliance by the Defendants or any of the persons or entities otherwise bound by this

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Consent Judgment with any law or regulation; (c) shall preclude a separate or ancillary action by
the Commonwealth to enforce the terms of this Consent Judgment, any permit or other approval
issued by the Department or NHESP relative to PMP's or J. Read's operations in the
Commonwealth; or (d) shall constitute any guaranty, promise or representation that PMP or
J. Read shall receive any federal, state or local permits or approvals for any aspect of the Project,
as all permitting or approval rights rest within the sole discretion of the municipalities or
agencies with jurisdiction over them. Except as expressly released herein, the Commonwealth
expressly reserves all claims for injunctive relief for violations of all of the statutes and
regulations referred to in this Consent Judgment, whether related to the specific legal claims
resolved by this Consent Judgment or otherwise, and for violations of any other law or
regulation.
55.

Nothing in this Consent Judgment shall be construed to create any rights in, or

grant any cause of action to, any person not a party to this Judgment.

XIII. MISCELLANEOUS
56.

Nothing in this Consent Judgment shall be construed to limit the Department's or

NHESP's permitting authority and discretion under the WPA, the Wetlands Regulations, the
CWA, the CWA Regulations, MESA, the MESA Regulations, or any other law or regulation,
and PMP and J. Read must at all times comply fully with the Department's and NHESP's
permitting requirements and approvals, and with all applicable state, federal and local laws and
regulations. The law in effect on the Entry Date shall at all times be deemed to apply for
purposes of Section VI (Injunctive Relief); provided, however, that PMP and J. Read shall not be
excused from future compliance with any changes in the provisions of the WPA, the Wetlands
Regulations, the CWA, the CWA Regulations, MESA, the MESA Regulations, or any other

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applicable law or regulation that are made after the Entry Date, including without limitation
changes to the terms defined in Section I.
57.

Failure of the Department, NHESP or the Commonwealth to complain of any

action or inaction on the part of PMP or J. Read shall not constitute a waiver by the Department,
NHESP or the Commonwealth of any of their rights under this Consent Judgment or any law or
regulation.
58.

PMP and J. Read understand and agree that, pursuant to 11 U.S.C. 523(a)(7),

the PMP Civil Penalty, the J. Read Civil Penalty, and any other costs or sums that either may be
required to pay under this Consent Judgment are not subject to discharge in any bankruptcy
proceeding.
59.

PMP and J. Read shall pay all expenses, including reasonable attorneys' fees and

costs, incurred by the Commonwealth in the enforcement of this Consent Judgment.

60.

PMP and J. Read waive entry of findings of fact and conclusions of law pursuant

to Rule 52 f the Massachusetts Rules of Civil Procedure.

61.

The titles in this Consent Judgment have no independent legal significance and

are used merely for the convenience of the Parties.

62.

Massachusetts law shall govern the interpretation and enforcement of this Consent

Judgment.
63.

In computing any period of time under this Consent Judgment, where the last day

would fall on a Saturday, Sunday, or State or Federal holiday, the period shall run until the close
of business of the next Business Day.

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XIV. NOTICES
64.

Unless otherwise specified in this Consent Judgment, notices and submissions

required by this Judgment shall be made in writing by first class mail to the following addresses:

For the Attorney General's Office and the

Commonwealth:

For the Department:

Frederick D. Augenstem
Assistant Attorney General
Environmental Protection Division
Office of the Attorney General
One Ashburton Place, 18th Floor
Boston, MA 02108
Fred.augenstem@state.ma.us

Jane Rothchild, Esquire

Department of Environmental Protection
436 Dwight Street
Springfield, MA 01103
Jane.Rothchild@state.ma.us

For DFG:
Craig MacDonnell
Chief of Wildlife Lands
Department of Fish & Game
251 Causeway St, Suite 400
Boston, MA. 02114-2152
craig.macdonnell@state.ina.us

Wayne MacCallum, Director

Massachusetts Division of Fisheries &
Wildlife
RE: NHESP 10-28604, CMP 013227.DFW
1 North Drive, Route 135
Westborough, MA 01581
Wavne.MacCalIum@,state.ma.us

For PMP:

For J. Read:

Jonathan Fryer, Esq.

Fryer & O'Brien
P.O. Box 16
9 Whiting Road
Dover, Massachusetts 02030
j frver@,dover-1aw.com

Greg Read
100 Old Ward Street
Hingham, Massachusetts 02043
gread@Jreadcorp.com

and

Edward V. Colbert III

Casner & Edwards, LLP
303 Congress Street
Boston, Massachusetts 02210
617-426-5900
colbert@,casneredwards.com

For NHESP:

and

David K. McKay, Esq.

Mirick, O'Connell, DeMallie & Lougee,
LLP
1800 West Park Drive, Suite 400
Westborough, Massachusetts 01581-3926
dmccav@mirickoconnell.com

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or, to such other place or to the attention of such other individual as a Party may from time to
time designate by written notice to the other Party to this Consent Judgment. Such notices,
submittals and other communications shall be considered delivered by PMP or J. Read upon
receipt by the Department.

XV.
65.

INTEGRATION

This Consent Judgment sets forth all of the obligations of the Parties and

represents the complete and exclusive statement of the Parties with respect to the terms of the
settlement agreement embodied by this Consent Judgment; any other representations,
communications or agreements by or between the Parties shall have no force and effect.

XVI. MODIFICATION
66.

The terms of this Consent Judgment may be modified only by a subsequent

written agreement signed by the Parties. Where the modification constitutes a material change to
any term of this Consent Judgment, it shall be effective only by written approval of the Parties
and the approval of the Court. The Department's or NHESP's decision to extend a deadline, to
reduce or waive any stipulated penalties, interest, or costs that have accrued in this Consent
Judgment, or to make a minor change to a plan shall not constitute a material change for
purposes of this Paragraph.
67.

Any disputes concerning modification of this Judgment shall be resolved pursuant

to Section XI (Dispute Resolution) of this Consent Judgment, provided, however, that instead of
the burden of proof provided in Section XI (Dispute Resolution), the party seeking the
modification bears the burden of demonstrating that it is entitled to the requested modification in
accordance with Rule 60(b) of the Massachusetts Rules of Civil Procedure.

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XVII. AUTHORITY OF SIGNATORY

68.

The persons signing this Consent Judgment on behalf of PMP and J. Read

acknowledges: (a) that each has personally read and understands each of the numbered
Paragraphs of this Consent Judgment, including any Exhibits attached to it; and (b) that each is
authorized to sign and bind each respective Defendant to the terms of this Consent Judgment.

XVIII. EFFECTIVE AND TERMINATION DATE

69.

This Consent Judgment shall be effective when the Court enters the Consent

Judgment on the docket.

70.

Except as it applies to the Restoration Plan's ongoing and future monitoring and

corrective action requirements, on the seventh (7th) anniversary of the Entry Date, this Consent
Judgment shall cease to have any further force or effect as to PMP or J. Read; provided,
however, that this termination provision shall not become effective as to a Defendant if at the
time of the triggering anniversary, such Defendant has not made all of its payments to the
Commonwealth that are due or that have become due pursuant to any provision of this Consent
Judgment, or if such Defendant has not completed all of the affirmative, injunctive, and remedial
obligations required by this Consent Judgment, as determined by the Department, or if there is
pending any action by the Commonwealth against such Defendant to enforce the terms of this
Consent Judgment because of alleged non-compliance by such Defendant or any successor or
assign of such Defendant. In such circumstances, this termination provision shall not become
effective as to such Defendant until the Department determines, in its discretion, that such
Defendant or its successors or assigns have returned to compliance with the terms of this
Consent Judgment and the offending action described in the preceding sentence is fully resolved.
At the end of the seven-year period, PMP and J. Read may apply to the Commonwealth for

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confirmation that they are in compliance and this Consent Judgment has no further force and
effect. Nothing in this termination provision shall relieve either Defendant or any successor or
assign from compliance with any other obligations that may exist pursuant to any State, federal
or local law or regulation.

XIX.
71.

RETENTION OF JURISDICTION

For as long as this Consent Judgment is in effect, the Court shall retain

jurisdiction over this case for purposes of resolving disputes that arise under this Consent
Judgment, entering orders modifying this Consent Judgment, or effectuating or enforcing
compliance with the terms of this Consent Judgment and any permits, approvals, or directives
issued by the Department pursuant to the terms of this Consent Judgment.

XX.
72.

FINAL JUDGMENT

Upon approval and entry of this Consent Judgment by the Court, this Consent

Judgment shall constitute a Final Judgment of the Court.

XXI. SECURITY
73.

By no later than the Entry Date, West Warren Road, LLC, a Massachusetts

limited liability company of 9 Whiting Road, Dover, Massachusetts 02030, that is affiliated with
PMP, in order to secure the payment by PMP of its $125,000.00 share of the Civil Penalty and its
$100,000.00 share of the SEP due from PMP under this Consent Judgment, shall execute,
deliver, and cause to be recorded in the Hampshire County Registry of Deeds, a first mortgage
(the "Mortgage") in favor of the Commonwealth of Massachusetts in the principal amount of
Two Hundred Twenty-Five Thousand Dollars ($225,000.00) on property West Warren Road,
LLC owns at West Warren Road, Ware, Massachusetts (the "Ware Property"), which is more
fully described in Book 11404, at Page 129, of the Hampshire County Registry of Deeds. By no

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later than seven (7) days following the Entry Date, West Warren Road, LLC shall also clear the
title to the Ware Property of all other encumbrances and shall certify to the Commonwealth that
the Ware Property is free and clear of all other encumbrances. The originals of the recorded
Mortgage and said certification shall be delivered to the Office of the Attorney General,
Environmental Protection Division, 1 Ashburton Place, 18th Floor, Boston, MA 02108,
Attention: Frederick D. Augenstem, Assistant Attorney General. The Commonwealth shall
execute and deliver a discharge of the Mortgage within forty five (45) days of receipt of the full
amount of PMP's $125,000 share of the Civil Penalty and PMP's $100,000.00 share of the SEP
payment.

XXII. MESA MITIGATION CREDIT

Notwithstanding the provisions of Paragraph 37, above, as of the Entry Date, PMP shall
have accrued a total MESA Mitigation Credit pursuant to the MESA CMP of one-hundred and
Twenty-five (125) acres of habitat protection which can be counted toward future state-listed
species mitigation requirements; provided, however, that said mitigation credit shall not be used
for mitigation of direct impacts to suitable breeding habitat of the Jefferson-Blue Spot Complex,
nor shall more than ten (10) acres be used for the area from zero to 300 feet of suitable upland
habitat from the suitable breeding habitat of the Jefferson-Blue Spot Complex ("MESA
Mitigation Credit"). This MESA Mitigation Credit includes any mitigation credit that may have
existed under the MESA CMP. This MESA Mitigation Credit is not transferrable for
development outside of the Project Site.

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IT IS SO ORDERED. JUDGMENT is hereby entered in accordance with the foregoing.

By the Court:

JUSTICE, SUPERIOR

djib

By the Court:
Edward P. Leibensperger
Associate Justice
Superior Court

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The Undersigned Parties voluntarily enter into this Consent Judgment in the matter of
Commonwealth of Massachusetts v. Palmer Motorsports Park, LLC and J. Read Corp. (Suffolk
Superior Court).

FOR THE COMMONWEALTH OF

MASSACHUSETTS

FOR PALMER MOTTORSPORTS PARK,

LLC

MAURA HEALEY
ATTORNEY GENERAL

Frederick D. Augenstern/
BBONo. 553102
Assistant Attorney General
Environmental Protection Division
Office of the Attorney General
One Ashburton Place, 18th Floor
Boston, MA 02108
(617) 963-2427
Fred,Augenstem@state.ma.us

Dated

2015

" Fred Ferguson, Manager

31 Harvard Road
Bolton, MA 01740-1092
(978) 779-0127
boltonite@aol.com
Duly Authorized to bind Palmer Motorsports
Park, LLC to the Terms of this Consent
Judgment

Dated:

R J. READ CORP.

Pamela L. Read, President

6 Leavitt Street
Hingham, MA 0X043
(781) 749-7660
Pam Read <preadfa),kcadcorp.com>
Duly Authorized to bind J. Read Corp.
to the Terms of this Consent Judgment

Dated:
-38-

, 2015

The Undersigned Parties voluntarily enter into this Consent Judgment in the matter of
Commonwealth of Massachusetts v. Palmer Motorsports Park, LLC and J. Read Corp. (Suffolk
Superior Court).

PALMER MOTTORSPORTS PARK,

(OR THE COMMONWEALTH OF

.SSACHUSETTS
MAftRA HEALEY
ATTORNEY GENERAL

Frederick D. Augenstem
BBONo. 5531(
Assistant Attom^y General
Environmental Protection Division
Office of the AttomW General
One Ashburton Place\l 8th Floor
Boston, MA 02108
(617) 963-2427
Fred.Augenstem@state.mVus

Fred Ferguson; anager

31 Harvard
Bolton, MA
(978) 779-0127
boltonite@aol.com
Duly Authorized to biiM Palmer Motorsports
Park, LLC to the Terms Vf this Consent
Judgment

Dated

Dated:

FOR J. READ CORP.

Pamela L. Read, President

6 Leavitt Street
Hingham, MA 02043
(781)749-7660
Pam Read <pread@,ireadcorp.com>
Duly Authorized to bind J. Read Corp.
to the Terms of this Consent Judgment

Dated:

CHj

2015
-38-

AS TO THE SECURITY FOR THE PERFOMANCE OF THIS CONSENT JUDGMENT

PURSUANT TO SECTION XXI:
WEST WARREN ROAD, LLC,
By its Manager

31 Harvard Road
Bolton, Ma 01740
(978) 779-0127
boltonite@aol.com

Dated:

22

, 2015

AS ESCROW AGENT FOR THE PERFORMANCE OF THE SUPPLEMENTAL

ENVIRONMENTAL PROJECT:

Jonathan Fryer, Esbk

Fryer & O'Brien
\
P.O. Box 16
\
9 Whiting Road
Dover, Massachusetts 02030
508-785-1505
ifrver@dover-law.com

-39-

TO THE SECURITY FOR THE PERFOMANCE OF THIS CONSENT JUDGMENT

iRSUANT TO SECTION XXI;
WEST-WARREN ROAD, LLC,
Bysits Manager

Fred Ferguson, Managed

31 Harvard Road
Bolton, Ma 01740
(978) 779-0127
boltonite@aoI.com

Dated:

, 2015

AS ESCROW AGENT FOR THE PERFORMANCE OF THE SUPPLEMENTAL

ENVIRONMENTAL PROJECT:

Joiffthan Fryer, Esq.

er & O'Brien
. Box 16
Whiting Road
)over, Massachusetts 02
^508-785-1505
ifrver@dover-law.com

-40-