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Transcript of Palmer Motorsports Order
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8/20/2019 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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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
For DFG:
Craig MacDonnell
Chief of Wildlife Lands
Department
of Fish
&
Game
251
Causeway St,
Suite 400
Boston, MA.
02114-2152
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
For the Department:
Jane
Rothchild, Esquire
Department of Environmental Protection
436 Dwight Street
Springfield, MA
01103
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
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