HomeMy WebLinkAbout4667 Resolution - Law Offices Kottkamp Yedinak & Esworthy PLLC PSA for Hearing Examiner Srvs
Resolution – PSA for Hearing Examiner Srvs. - 1
RESOLUTION NO. 4667
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL
SERVICES AGREEMENT WITH ANDREW L. KOTTKAMP AND JAY
EYESTONE FOR THE LAW FIRM OF KOTTKAMP, YEDINAK &
ESWORTHY P.L.L.C FOR PASCO HEARING EXAMINER SERVICES.
WHEREAS, the City of Pasco (City) City Council created the Hearing Examiner System
for Land Use Permits at their April 10, 2019, meeting; and
WHEREAS, the City contracted services with a law firm specializing in land use issues
beginning in May 2019; and
WHEREAS, Andrew L. Kottkamp for Kottkamp, Yednak & Esworthy P.L.L.C. began
providing the Hearing Examiner services for Land Use Permits in August 2021; and
WHEREAS, the City and Andrew L. Kottkamp and Jay Eyestone for Kottkamp, Yednak
& Esworthy P.L.L.C. have recently reviewed and amended the Professional Services Agreement
for Pasco Hearing Examiner Services, attached hereto as Exhibit A; and
WHEREAS, the City Council of the City of Pasco, Washington, has after due
consideration, determined that it is in the best interest of the City of Pasco to continue the Hearing
Examiner System for Land Use Permits with Andrew L. Kottkamp and Jay Eyestone for
Kottkamp, Yednak & Esworthy P.L.L.C.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PASCO, WASHINGTON:
That the City Council of the City of Pasco approves the terms and conditions of the
Professional Services Agreement between the City of Pasco and Andrew L. Kottkamp and Jay
Eyestone for Kottkamp, Yednak & Esworthy P.L.L.C. as attached hereto and incorporated herein
as Exhibit A.
Be It Further Resolved, that the City Manager of the City of Pasco, Washington, is hereby
authorized, empowered, and directed to execute said Professional Services Agreement on behalf
of the City of Pasco; and to make minor substantive changes as necessary to execute the
Agreement.
Be It Further Resolved, that this Resolution shall take effect immediately.
Resolution – PSA for Hearing Examiner Srvs. - 2
PASSED by the City Council of the City of Pasco, Washington, on this 20th day of October,
2025.
_____________________________
David Milne
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, MMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
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PROFESSIONAL SERVICES AGREEMENT
(Pasco Hearing Examiner Services)
THIS AGREEMENT is made and entered into between the City of Pasco, a Washington
Municipal Corporation, hereinafter referred to as “City”, and Andrew L. Kottkamp (primary
Hearing Examiner) and Jay Eyestone (Pro Tem Hearing Examiner) for the law firm of Kottkamp,
Yedinak & Esworth P.L.L.C., hereinafter collectively referred to as “Consultant.”
RECITALS
WHEREAS, the City desires to have certain services and/or tasks performed as set forth
below requiring specialized skills, training, equipment, and other supportive capabilities; and
WHEREAS, the Consultant represents that it is qualified and possesses sufficient skills,
experience, equipment, and necessary capabilities, including: technical and professional expertise,
when required, to perform the services and/or tasks as set forth in this Agreement upon which the
City is relying.
NOW, THEREFORE, in consideration of the mutual covenants, and performances
contained herein, the parties agree as follows:
1. Scope of Services. The Consultant shall perform such services and accomplish such tasks,
including the furnishing of all labor, materials, facilities and equipment necessary for full
performance thereof, as identified and designated as Consultant’s Responsibilities
throughout this Agreement, and as more particularly described in Scope of Services
detailed in Exhibit A, attached hereto and incorporated herein.
2. Term. This Agreement shall begin on November 1, 2025. This agreement shall continue
until terminated or amended as set forth herein.
3. Compensation and Payment.
3.1 Payment for services provided hereunder shall be made following the performance
of such services. Such payment shall be full compensation for work performed or
services rendered, and for all labor, materials, supplies, equipment, and incidentals
necessary to complete the Project.
3.2 No payment shall be made for any services rendered by the Consultant except for
services identified and set forth in this Agreement except as may be authorized by
a written supplemental agreement approved by the City.
3.3 The City shall pay the Consultant for work performed under this Agreement upon
timely submitted invoices detailing work performed and expenses for which
reimbursement is sought. The City shall approve all invoices before payment is
Exhibit A
Professional Services Agreement - Hearing Examiner Page 2 of 9
issued. Payment shall occur within thirty (30) days of receipt and approval of an
invoice.
3.4 The City shall pay the Consultant for all work performed and expenses incurred
under this Agreement, as follows.
3.4.1 Hourly (Single Rate) of $225 for services and $150 for travel incurred as
provided under this Agreement. See attached Scope of Services.
4. Reports and Inspections.
4.1 The Consultant at such times and in such forms as the City may require, shall
furnish to the City such statements, records, studies, surveys, reports, data, and
information as the City may request pertaining to matters covered by this
Agreement.
4.2 The Consultant shall during normal business hours, and upon appointment, and as
often as the City or the Washington State Auditor may reasonably deem necessary,
make available for examination all of its records and data with respect to all matters
covered, directly or indirectly, by this Agreement and shall permit the City, or its
designated authorized representative to audit and inspect other data relating to all
matters covered by this Agreement. The City shall receive a copy of all audit
reports made by the agency or firm as to the Consultant’s activities. The City may,
at its discretion, conduct an audit at its expense, using its own or outside auditors,
of the Consultant’s activities which relate, directly or indirectly, to this Agreement.
Consultant shall be provided a copy of such reports.
4.3 The Consultant, during the term of this Agreement, shall obtain all permits and
registration documents necessary for the performance of its work and for the
execution of services at its own expense, and shall maintain its validity. Upon
request, the Consultant shall deliver to the City copies of these licenses, registration
documents, and permits or proof of their issuance or renewal.
4.4 Consultant shall maintain books, records and documents, which sufficiently and
properly reflect all direct and indirect costs related to the performance of this
Agreement, and shall maintain such accounting procedures and practices as may be
necessary to assure proper accounting of all funds paid pursuant to this Agreement.
These records shall be subject, at all reasonable times, to inspection, review, or
audit as provided above.
4.5 The Consultant shall retain all books, records, documents or other material relevant
to this Agreement for three (3) years after its expiration. Consultant agrees that the
City, or its designee, shall have full access and right to examine any of said
materials at all reasonable times during this period.
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5. Contract Termination; Forwarding of Work Product
5.1 In the event of Consultant’s default, or in the event that this Agreement is
terminated prior to its completion, the work product of the Consultant, along with
a summary of the services performed to date of default or termination, shall be
forwarded to the City, and tender of the work product and summary shall be a
prerequisite to final payment under this Agreement. The summary of services
provided shall be prepared at no additional cost, if the Agreement is terminated
through default by the Consultant. If the Agreement is terminated through
convenience by the City, the City agrees to pay Consultant for the preparation of
the summary of services provided.
6. Public Records.
6.1 Consultant acknowledges that the City is an agency subject to Chapter 42.56 RCW
“Public Records Act.” .
6.2 If the Consultant becomes a custodian of public records of the City (which this
Agreement does not contemplate and is outside the Scope of Services) and request
for such records is received by the City, the Consultant shall respond to the request
by the City for such records within five (5) business days by either providing the
records, or by identifying in writing the additional time necessary to provide the
records with a description of the reasons why additional time is needed. Such
additional time shall not exceed twenty (20) business days unless extraordinary
good cause is shown.
6.3 In the event the City receives a public records request for protected work product
of the Consultant within its possession, the City shall, prior to the release of any
protected work product or as a result of a public records request or subpoena,
provide Consultant at least ten (10) business days prior written notice of the pending
release and to reasonably cooperate with any legal action which may be initiated
by the Consultant to enjoin or otherwise prevent such release.
7. Independent Contractor Relationship.
7.1 The parties intend that an independent contractor relationship is created by this
Agreement. The City is interested primarily in the results to be achieved; subject
to the Scope of Services and the specific requirements of this Agreement, the
implementation of services will lie solely with the discretion of the Consultant. No
agent, employee, officer or representative of the Consultant shall be deemed to be
an employee, agent, officer, or representative of the City for any purpose, and the
employees of the Consultant are not entitled to any of the benefits or privileges the
City provides for its employees. The Consultant will be solely and entirely
responsible for its acts and for the acts of its agents, employees, officers,
subcontractors or representatives during the performance of this Agreement.
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7.2 In the performance of the services provided in this Agreement, Consultant is an
independent contractor with full authority to control and direct the performance of
the details of the work, however, the results of the work contemplated herein must
meet the approval of the City and shall be subject to the City’s general rights of
inspection and review to secure the satisfactory completion thereof.
7.3 The Consultant shall comply with all State and Federal laws including, but not
limited to:
7.3.1 The definition requirements of RCW 50.04.140 (Employment Security).
7.3.2 RCW 51.08.195 (Industrial Insurance).
7.3.3 Obtain a City of Pasco business license, if required.
7.4 The City may, at its sole but reasonable discretion, require the Consultant to remove
any employee, agent or servant from employment on this Project who, in the City’s
sole but reasonable discretion, may be detrimental to the City’s interest.
8. Indemnification.
8.1 The Consultant shall defend, indemnify, and hold harmless the City, its officers,
officials, agents, employees, and volunteers from any and all claims and causes of
action, including, but not limited to, actions of law or administrative proceedings
for all injuries to persons or damages to property, and all losses, damages, demands,
suits, judgments, including attorney fees, arising out of, or as a result of, or in
connection with the work performed under this Agreement, but only to the extent
such damages/injuries are caused or occasioned by reason of errors, negligent acts
or omissions of the Consultant or its subcontractors in the performance of this
Agreement, and except for injuries and damages caused by the sole negligence of
the City, its officers, employees, agents, and volunteers. This section shall not apply
to allegations stemming from any act, error, or omission of Consultant in conducting
a hearing, making a recommendation or a decision on an application or appeal or
other matter as the Hearing Examiner.
8.2 Notwithstanding the provisions of 8.1 above, the City agrees to indemnify, defend
and hold Consultant harmless from any and all claims, demands, losses, actions and
liabilities (including costs and attorney fees) to or by any persons or entities, the
basis for which is any action of the Consultant performed in the normal course of
the Consultant’s duties as the Hearing Examiner or Pro Tem Hearing Examiner for
the City.
8.3 It is further agreed that the indemnification provided herein constitutes the
Consultant’s waiver of immunity under Industrial Insurance, Title 51 RCW, solely
for the purposes of this indemnification.
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8.4 No liability shall attach to the City by reason of entering into this Agreement except
as expressly provided herein.
8.5 This waiver has been mutually negotiated by the parties, and the provisions of this
section shall survive the expiration or termination of this Agreement.
9. Insurance. The Consultant shall procure and maintain for the duration of the Agreement,
insurance against claims for injuries to persons or damage to property which may arise
from or in connection with the performance of the work hereunder by the Consultant, its
agents, representatives, employees, or subcontractors.
9.1 Minimum Scope of Insurance. Consultant shall obtain insurance of the types
described below:
9.1.1 Automobile Liability insurance covering all owned, non-owned, hired and
leased vehicles. Coverage shall be written on Insurance Services Office
(ISO) form CA 00 01 or a substitute form providing equivalent liability
coverage. If necessary, the policy shall be endorsed to provide contractual
liability coverage.
9.1.2 Commercial General Liability insurance shall be written on ISO occurrence
form CG 00 01 and shall cover liability arising from premises, operations,
independent contractors and personal injury and advertising injury. The
City shall be named as an insured under the Consultant’s Commercial
General Liability insurance policy with respect to the work performed for
the City.
9.1.3 Workers’ Compensation coverage as required by the Industrial Insurance
laws of the State of Washington.
9.1.4 Professional Liability insurance appropriate to the Consultant’s profession.
9.2 Minimum Amounts of Insurance. Consultant shall maintain the following
insurance limits:
9.2.1 Automobile Liability insurance with a minimum combined single limit for
bodily injury and property damage of $1,000,000 per accident. Aggregate
coverage amount may be met through umbrella insurance.
9.2.2 Commercial General Liability insurance shall be written with limits no less
than:
☒ $1,000,000 each occurrence;
☐ $2,000,000 general aggregate; or
☐ $________ each occurrence; and $________ general aggregate
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9.2.3 Professional Liability insurance shall be written with limits no less than:
☒ $1,000,000 per claim;
☐ $1,000,000 policy aggregate limit; or
☐ $________ per claim; and $________ per policy aggregate limit
9.3 Other Insurance Provisions. :
9.3.1 Except for actions covered under 8.1 and 8.2 above, the Consultant’s
insurance coverage shall be primary insurance as respects the City. Any
insurance, self-insurance, or insurance pool coverage maintained by the
City shall be excess of the Consultant’s insurance and shall not contribute
with it.
9.3.2 The Consultant’s insurance shall not be cancelled by either party, except
after thirty (30) days prior written notice by certified mail, return receipt
requested, has been given to the City.
9.4 Acceptability of Insurers. Insurance is to be placed with insurers with a
current A.M. Best rating of not less than A:VII.
9.5 Verification of Coverage. Consultant shall furnish the City with certificates and
a copy of endorsements, including but not necessarily limited to the additional
insured endorsement, evidencing the insurance requirements of the Consultant
before commencement of the work.
10. Nondiscrimination. In the performance of this Agreement, the Consultant will not
discriminate against any employee or applicant for employment on the grounds of race,
creed, color, national origin, sex, marital status, age or the presence of any sensory, mental
or physical handicap; provided that the prohibition against discrimination in employment
because of handicap shall not apply if the particular disability prevents the proper
performance of the particular worker involved. Consultant shall take such action with
respect to this Agreement as may be required to ensure full compliance with local, State
and Federal laws prohibiting discrimination in employment.
11. Covenant Against Contingent Fees. The Consultant warrants that it has not employed
nor retained any company, firm, or person, other than a bona fide employee working
exclusively for the Consultant, to solicit or secure this Agreement; and that it has not paid
or agreed to pay any company, person or firm, other than a bona fide employee working
exclusively for the Consultant, any fee, commission, percentage, brokerage fee, gift, or
other consideration contingent upon or resulting from the award or making of this
Agreement. For breach or violation of this warranty, the City shall have the right to
terminate this Agreement.
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12. Assignment and Subcontracting.
12.1 The City has awarded this Agreement to the Consultant due to its unique
qualifications to perform these services. The Consultant shall not assign (or
subcontract other than as specifically identified in Exhibit A) its performance under
this Agreement or any portions of this Agreement without the prior written consent
of the City, which consent must be sought at least thirty (30) days prior to the date
of any proposed assignment.
12.2 Any work or services assigned or subcontracted hereunder shall be subject to each
provision of this Agreement including Section 6, Public Records; Section 10,
Nondiscrimination; proper bidding procedures where applicable; and all local, State
and Federal statutes, ordinances and guidelines.
12.3 Any technical or professional service subcontract not listed in this Agreement, must
have prior written approval by the City.
13. Termination.
13.1 Termination for Convenience. Either party may terminate this Agreement for any
reason upon giving the other party no less than thirty ( 30) business days written
notice in advance of the effective date of such termination.
13.2 Termination for Cause. If the Consultant fails to perform in the manner called for
in this Agreement, or if the Consultant fails to comply with any other provisions of
this Agreement and fails to correct such noncompliance within five (5) business
days of written notice thereof, the City may terminate this Agreement for cause.
Termination shall be effected by serving a notice of termination on the Consultant
setting forth the manner in which the Consultant is in default. The Consultant will
only be paid for services and expenses complying with the terms of this Agreement,
incurred prior to termination.
14. General Provisions.
14.1 For the purpose of this Agreement, time is of the essence.
14.2 Notice. Notice provided for in this Agreement shall be sent by:
14.2.1 Personal service upon the Project Administrators.
14.2.2 Certified mail to the physical address of the parties, or by electronic
transmission to the e-mail addresses designated for the parties below.
14.3 The Project Administrator for the purpose of this Agreement shall be:
14.3.1 For the City: Haylie Miller, or her designee
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Director, Community and Economic Development,
City of Pasco
525 North 3rd Avenue
Pasco, WA 99301
14.3.2 For the Consultant: Andrew L. Kottkamp
435 Orondo Ave
Wenatchee, WA 98801
15. Dispute Resolution.
15.1 This Agreement has been and shall be construed as having been made and entered
into and delivered within the State of Washington and it is agreed by each party
hereto that this Agreement shall be governed by the laws of the State of
Washington.
15.2 In the event of a dispute regarding the enforcement, breach, default, or
interpretation of this Agreement, the Project Administrators, or their designees,
shall first meet in a good faith effort to resolve such dispute. In the event the dispute
cannot be resolved by agreement of the parties, said dispute shall be resolved by
arbitration pursuant to RCW 7.04A, as amended, with both parties waiving the right
of a jury trial upon trial de novo, with venue placed in Pasco, Franklin County,
Washington. The substantially prevailing party shall be entitled to its reasonable
attorney fees and costs as additional award and judgment against the other, but not
in an amount exceeding $25,000 Arbitration costs shall be equally split between the
parties.
16. Nonwaiver. Waiver by the City of any provision of this Agreement or any time limitation
provided for in this Agreement shall not constitute a waiver of any other similar event or
other provision of this Agreement.
17. Integration. This Agreement between the parties consists in its entirety of this document
and any exhibits, schedules or attachments verified by initials as a part of Exhibit A. Any
modification of this Agreement or change order affecting this Agreement shall be in writing
and signed by both parties.
18. Authorization. By signature below, each party warrants that they are authorized and
empowered to execute this Agreement binding the City and the Consultant respectively.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
day and year first written above.
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CITY OF PASCO, WASHINGTON CONSULTANTS
Harold Stewart, City Manager Andrew L. Kottkamp
Representative for the law firm of Kottkamp,
Yedinak & Esworthy P.L.L.C.
ATTEST: ____________________________________
Jay Eyestone
Representative for the law firm of Kottkamp,
Yedinak & Esworthy P.L.L.C.
City Clerk
APPROVED AS TO FORM:
City Attorney