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HomeMy WebLinkAbout2019 07 03 Rocky Brook Dev Agr DRAFT Draft: 7/3/2019 ROCKY BROOK DEVELOPMENT AGREEMENT - 1 6864662.1 JEFFERSON COUNTY DEVELOPMENT AGREEMENT WITH ROCKY BROOK HYDROELECTRIC LP and DELL KEEHN 1.0 Parties. This Development Agreement (“the Agreement”) entered into by and between Jefferson County (“the County”), a political subdivision of the State of Washington, and Rocky Brook Hydroelectric LP, a Washington limited liability entity and Dell Keehn, an individual (collectively “Rocky Brook”), collectively referred to hereinafter as “the Parties.” 2.0 Recitals. 2.1 Rocky Brook is a unique project that provides electricity for the Mason County PUD. It was originally permitted in 1986. Under the original permitting, Rocky Brook was mandated to open the Property, as defined below, to public access. 2.2 In light of its natural beauty and location, Rocky Brook is visited by thousands of locals and tourists during the year. The number of visitors has increased over time as opportunities for cost-free recreation in the State have decreased. 2.3 The public use mandate has put Rocky Brook in an untenable position; namely, it bears substantial, if not unlimited, legal exposure arising out of possible injuries suffered by visitors. This risk is uninsurable, and because public use is mandated by the original permit, it has become arguable under recent legal precedent that applicable immunities do not apply. 2.4 The exposure is sufficiently broad that Rocky Brook determined that it had no choice but to close down and fence off the Property, such that the public would be precluded from using or enjoying it in any manner. This would be a loss for the public as a whole—which would be denied both a unique recreational opportunity and a source of green energy—as well as Rocky Brook, which desires to operate its facility. 2.5 The County desired to protect the public’s interests, which led to discussions and good faith negotiations. 2.6 The Parties agreed to the terms below, which will allow the Property to remain open for recreational use, while at the same time permitting Rocky Brook to avail itself to Recreational Land Use Immunity under Ch. 4.24 et seq. RCW, thereby limiting its exposure in the event of injuries and harms on its land. Draft: 7/3/2019 ROCKY BROOK DEVELOPMENT AGREEMENT - 2 6864662.1 3.0 Property Description. The legal description for the real property that is the subject of this Development Agreement is set forth in Exhibit A, attached hereto and incorporated by this reference as though fully set forth herein. 4.0 Modification of Permitting Conditions 4.1 The Recitals above are hereby incorporated into the Agreement. It is the Parties’ express intention that Rocky Brook be opened for the purpose of cost-free recreational use by the public, and further, that Rocky Brook be permitted to avail itself to Ch. 4.24 et seq. RCW, to the maximum extent permitted under the law. 4.2 All permitting conditions and approvals under SH15-85 (1986), Exhibit B, and MLA18-00105 (2019), Exhibit C, except as discussed below in 4.3, remain in force. 4.3. All permitting conditions and other requirements, including Condition # 4 under SH15-85, imposed by the County mandating that Rocky Brook be opened to the public are hereby repealed and rescinded. 4.4. Rocky Brook shall voluntarily open the Property for recreational use by the Public. Such public access shall remain for the duration of this Agreement. 5.1 Miscellaneous. 5.1 Termination. Either party may unilaterally terminate this Agreement. If the Agreement is terminated by Rocky Brook, hydroelectric operations shall cease and associated permits under SH15-85 and MLA18-00105 shall be void. 5.2 Default. If Rocky Brook disallows or substantially impairs public access, the County shall provide Rocky Brook written notice of default and, if Rocky Brook fails to cure the default within ten (10) days of receipt of the notice (or commence to so cure with diligent prosecution thereafter when curing is not reasonably possible within said ten (10) days), the agreement shall terminate and the associated permits under SH15-85 and MLA18-00105 shall be void, unless the County obtains a specific performance remedy. 5.2 Vesting. This Agreement shall not vest Rocky Brook to any development regulations. The County has the authority to impose new or different regulations to the extent required by a serious threat to public health and safety. 5.3 Covenants Run with the Land. All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the Parties and their respective heirs, successors (by merger, consolidation, or otherwise) and Draft: 7/3/2019 ROCKY BROOK DEVELOPMENT AGREEMENT - 3 6864662.1 assigns, devisees, administrators, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever, and shall inure to the benefit of the parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns. 5.4 All Other Conditions, Entitlements and Legal Rights. Nothing in this Agreement is intended to modify any condition, entitlement, right, responsibility, or duty, other than as expressly indicated above. 5.5 Relationship of Parties. Nothing contained herein or in any document executed in connection herewith shall be construed as making County and Rocky Brook joint venturers or partners. 5.6 No Third-Party Beneficiary. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 5.7 Further Actions and Instruments. Should additional documents or agreements be necessary to effectuate the intention of this Agreement, the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either Party at any time, the other party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 5.8 Specific Performance. The parties specifically agree that damages are not an adequate remedy for breach of this Agreement and that the parties are entitled to compel specific performance of all material terms of this Agreement by any party in default. 5.9 Severability. If any phrase, provision, or section of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, then the remainder of this Agreement shall remain valid and unaffected. 5.10 Applicable Law and Attorney’s Fees. This Agreement shall be construed and enforced in accordance with the laws of the State of Washington. If litigation is initiated to enforce the terms of this Agreement, each party bears its own attorney’s fees and costs. Venue for any action shall lit in Jefferson County Superior Court or the U.S. District Court for Western Washington. Draft: 7/3/2019 ROCKY BROOK DEVELOPMENT AGREEMENT - 4 6864662.1 5.11 Entire Agreement. This Agreement contains all the terms and conditions agreed upon by the parties. No other understanding, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind either of the parties. 5.12 Changes, Modifications, and Amendments. This Agreement may be changed, modified, or amended only by written agreement executed by both parties. 5.13 Effective Date; Record. This Agreement shall be effective when filed with the Jefferson County Auditor in accordance with the provision of RCW 36.70B.190. All costs of recording shall be borne by Rocky Brook. JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS SEAL: ______________________________ Kate Dean, Chair ______________________________ David Sullivan, Member ATTEST: ______________________________ Greg Brotherton, Member APPROVED AS TO FORM: ______________________ ______________________________ Carolyn Gallaway, Date Philip C. Hunsucker, Date Deputy Clerk of the Board Chief Civil Deputy Prosecuting Attorney ROCKY BROOK By: Managing Partner Dated: , 2019 Draft: 7/3/2019 ROCKY BROOK DEVELOPMENT AGREEMENT - 5 6864662.1 DELL KEEHN By: Dated: , 2019 Draft: 7/3/2019 6864662.1 EXHIBIT A Parcel Number 602282004 in Section 28, Township 26N, Range 02W, TAX 7, WM, located at 3020 Dosewallips Road, Brinnon, WA 98325 Draft: 7/3/2019 6864662.1 EXHIBIT B Draft: 7/3/2019 6864662.1 EXHIBIT C MEMORANDUM TO: Parties of Record, Parker R. Keehn, Attorney at Law Austin Watkins, Civil Deputy Prosecuting Attorney, Jefferson County Prosecuting Attorney’s Office FROM: Stephen K. Causseaux, Jr. Jefferson County Hearing Examiner RE: CASE NO: MLA 18-00105/SDP 18-00023 TYPE III SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT APPLICANT: ROCKY HYDROELECTRIC LP and DELL KEEHN DATE: June 3, 2019 By Report and Decision dated May 7, 2019, the Examiner conditionally approved a shoreline substantial development permit that allowed the relocation of a water outfall/discharge and replacement of existing turbines at the Rocky Brook Hydroelectric facility located at 320 Dosewallips Road, Brinnon, subject to six conditions of approval. By letter dated May 15, 2019, Parker R. Keehn, attorney at law requested clarification of Finding 11 of the Report and Decision. Mr. Keehn requested confirmation that Jefferson County interprets the original 1985 access requirement in a manner consistent with the protections provided for the applicant by RCW 4.24.210 and in a manner that does not subject the applicant to increase liability arising from public access. Mr. Keehn points out that Finding 11 does not take a position on the liability issue, and requests that the Examiner amend Finding 11 to provide such assurance. The Examiner questions his authority to exempt the applicant from liability based upon RCW 4.24.210. Furthermore, even if he has the authority, such would not prohibit injured visitors from attempting to recover damages from the applicant. The Examiner has no authority to change or remove the language of the 1985 permit regarding public access, as such is within the jurisdiction of the Jefferson County Board of Commissioners. Therefore, Finding 11 will remain as written.