Palmer Motorsports Order

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    COMMONWEALTH OF MASSACHUSETTS

    SUFFOLK, ss.

    COMMONWEALTH OF MASSACHUSETTS,

    Plaintiff,

    v.

    PALMER MOTORSPORTS PARK, LLC;

    and

    J.

    READ CORP.,

    Defendants.

    SUPERIOR COURT

    CIVIL ACTION

    NO.

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    TABLE

    OF CONTENTS

    Page

    INTRODUCTION 1

    I.

    DEFINITIONS

    2

    II. JURISDICTION AND VENUE 5

    III. PARTIES BOUND 5

    IV. PAYMENT OF CIVIL PENALTIES

    7

    V. SUPPLEMENTAL

    ENVIRONMENTAL PROJECT

    8

    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. INTEGRATION

    33

    XVI. MODIFICATION

    33

    XVII. AUTHORITY OF SIGNATORY 34

    XVIII.EFFECTIVE

    AND TERMINATION DATE 34

    XIX. RETENTION OF JURISDICTION

    35

    XX.

    INAL

    JUDGMENT

    35

    XXI.

    SECURITY 35

    XXII. MESA MITIGATION CREDIT

    36

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    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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    1

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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 Jur isd ic t ion and Venue), i t is A D J U D G E D O R D E R E D

    AND DECREED as

    follows:

    I. DEFINITIONS

    1. 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.

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      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 & 256-

    0269,

    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.

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    (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. JURISDICTION AND VENUE

    3. 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. PARTIES

    BOUND

    5. 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

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    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. PAYMENT OF CIVIL PENALTIES

    10.

    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.

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    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. SUPPLEMENTAL ENVIRONMENTAL

    PROJECT

    12.

    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 so-

    called 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 orsports

    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.

    131A;

    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. INJUNCTIVE RELIEF

    18. 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,

    2 1 .

    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

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    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. SITE ACCESS AND

    PRESERVATION OF RECORDS

    39. 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 Penalty Per Day

    1st

    through

    30th day

    $1,000.00

    31

    st through 90th

    day

    $2,500.00

    Each day after the

    90th

    day

    $5,000.00

    42. 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.

    INTEREST AND COLLECTIONS

    47.

    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.

    FORCE

    MAJEURE

    48. 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 DISPUTE RESOLUTION

    50. 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. EFFECT OF CONSENT JUDGMENT

    53. 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:

    Frederick D.

    Augenstem

    Assistant Attorney General

    Environmental Protection Division

    Office of the Attorney General

    One Ashburton Place,

    18th

    Floor

    Boston, MA

    02108

    [email protected]

    For DFG:

    Craig MacDonnell

    Chief of Wildlife Lands

    Department

    of Fish

    &

    Game

    251

    Causeway St,

    Suite 400

    Boston, MA.

    02114-2152

    [email protected]

    For

    PMP:

    Jonathan

    Fryer, Esq.

    Fryer

    &

    O'Brien

    P.O.

    Box 16

    9

    Whiting

    Road

    Dover, Massachusetts

    02030

    frver@,dover-1

    aw.com

    and

    David K.

    McKay,

    Esq.

    Mirick, O'Connell,

    DeMallie

    & Lougee,

    LLP

    1800 West

    Park

    Drive, Suite 400

    Westborough, Massachusetts

    01581-3926

    [email protected]

    For the Department:

    Jane

    Rothchild, Esquire

    Department of Environmental Protection

    436 Dwight Street

    Springfield, MA

    01103

    [email protected]

    For NHESP:

    Wayne MacCallum, Director

    Massachusetts Division of Fisheries &

    Wildlife

    RE: NHESP 10-28604, CMP 013-

    227.DFW

    1 North Drive, Route

    135

    Westborough, MA 01581

    Wavne.MacCalIum@,state.ma.us

    For J. Read:

    Greg Read

    100 Old Ward Street

    Hingham, Massachusetts 02043

    [email protected]

    and

    Edward

    V.

    Colbert

    III

    Casner &

    Edwards, LLP

    303 Congress Street

    Boston, Massachusetts 02210

    617-426-5900

    colbert@,casneredwards.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.

    INTEGRATION

    65.

    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