Cotati City Council
April 1, 2025

From: Laurie alderman
Sent: Sunday, March 30, 2025 1:42 PM
To: Kevin Patterson <[email protected]>; Laura Sparks <[email protected]>; Chris Simmons <[email protected]>; Ben Ford <[email protected]>; Sylvia Lemus <[email protected]>; Damien O'Bid <[email protected]>; Susan Harvey <[email protected]>; John Savage <[email protected]>; John Bakker <[email protected]>
Cc: Michael Ceremello Ceremello ; George Barich
; Carleton L. Briggs Attorney at Law ;
Noah Housh <[email protected]>; Adina Flores ;
Angela Courter <[email protected]>
Subject: Tuesday's citizens business comment on budget.... code enforcement figures are not true and cover up code enforcement scandal.

CAUTION:EXTERNAL SENDER
If suspicious, do not click on links, open attachments, or provide credentials and report it by using the "Phish Alert Report" button.

Kevin, this is my citizens comment for Tuesday's budget meeting. I am also copying council members, staff, etc. so that you all have been notified of this situation with code enforcement and the budget, before the item comes up on the agenda.

These code enforcement numbers are not reflective of the situation which seems nefarious in the least. I have been informing you of this code enforcement scandal for 10 months now.

The contract amount for actual expenses for 24-25 does not reflect the true amount...there are many expenses that have not been billed by Robert Smith for code enforcement. I waited four months just to get his invoices from July 2024-November 2024 after my PRA request . Robert Smith did not submit the invoices to the city for payment. I am still waiting with a PRA request for the December billings onwards to be received by the City for payment by Robert Smith currently.

After this email to the council in June 2024, Robert Smith basically stopped billing for most of code enforcement hours on George Barich's case.

Previously, Attorney Smith also had overages for prior years that were not approved by the council (from city's website):

My tally for 23/24 year pretty much is in line with the city's actuals for 23/24 at approximately $113k, which was a $53k overage as I informed you all in October, 2024.

Before June 2024 on the billings, approximately 2/3rds of the billings were attributable to George Barich's case for fiscal year 23/24. The ALJ has received this as the primary evidence of selective prosecution. (see exhibit 7 Primary Evidence of Selective Prosecution) which has been evidence in the case for 5 months now.

Once I started informing the council of the overage, Robert Smith significantly decreased billings for George Barich especially. Plus, he didn't bill the City of Cotati for filing at least a couple of significant legal papers with the Administrative Law Judge. For instance, in July 2024, he submitted to the ALJ a 7 page Declaration (see attachment " July not billed Declaration of Smith").

Another noticeable "missing" billing is in September 2024 with the supplemental opposition to the motion to dismiss :

I've attached an Excel Workbook that explains more about this decline in billing for Barich's case by Robert Smith.

Here are two graphs that reflect the decline in billings since June/July 2024 from the Excel Workbook:

Meanwhile, there is also no evidence how the Administrative Law Judge Gary Weiner is being paid since May 2024. Previous to July 2024, ALJ Weiner was paid by Robert Smith and Robert Smith was reimbursed by the
City.

The only bill for ALJ Weiner was received in February 2025, that has not be processed to my knowledge. This was submitted by Robert Smith's office:

This is confusing as Robert Smith's office asks for the $2100 previous balance, not the current balance of $3255.... there is no backup invoice of the previous balance. I've also asked for explanations of the 1/13/2025 Payment to Bill4Time (e-check) to no response from the City. So, there is no record from June 2024 to the present of the invoices from ALJ Weiner being paid by the City of Cotati or Robert Smith being reimbursed for ALJ Weiner's time spent on Barich's case.

As you can see from ALJ Gary Weiner's invoice, there has been motions, replies, rulings, oppositions, all along most requiring legal briefs to stay at the administrative hearing level. George Barich has spent approximately $37k with this to the current date to stay at the administrative hearing level. Currently, everything is delayed because of an order from ALJ Weiner requiring the City/Robert Smith to come up with an fine amount.

Meanwhile, the fines are still tolling, and are at over $2 million....$500 a day violation x 8 violations since September 10, 2023. This is double the worth of Barich's home at least. George Barich has been working two jobs to pay the $37k attorney fees needed to defend against this potential fine and is stuck in the administrative hearing level now for 21 months. I am also attaching one of many briefs/declarations that have been filed on Barich's side (See Cotati.Barich. Respondent's ....)
Of course, Attorney Robert Smith wrote the administrative hearing codes that govern these proceedings. He also is the code enforcement officer, writing the citations, and acting as the prosecuting attorney for the City too in the hearing. It's highly unethical and against the rules of conduct for attorneys to commingle these roles.

I think I've presented everything available. If you ignore this matter at the budget meeting on Tuesday, you all will knowingly colluded on going forward on false numbers, i.e. the true actual amount for actions taken against George Barich is much higher than the actual expenses stated. Plus, you all have the knowledge now of how Attorney Smith stopped billing for Barich's hours, the lack of invoices for the ALJ, etc.

Please deal with this fiasco in an open and truthful way, first reflecting the true costs in the budget for code enforcement.

Sincerely,
Laurie Alderman

1 -DECLARATION OF LAURIE ALDERMAN IN SUPPORT OF RESPONDENT'S SUPPLEMENTAL REPLY
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
LAW

OFFICES OF
CARLETON L.

BRIGGS
740 Fourth Street, Suite 202, Santa Rosa, CA 95404-4421 Tel.: (707) 523-2251, Fax: (707) 523-2253
Carleton L. Briggs, SBN 117361
LAW OFFICES OF CARLETON L. BRIGGS
740 Fourth Street, Suite 202
Santa Rosa, California 95404-4421
Telephone: (707) 523 2251, Cell: (707) 280-6323
Facsimile: (707) 523 2253
E-mail: [email protected]
Attorneys for Respondent GEORGE E. BARICH

CITY OF COTATI,
Petitioner,
vs.

GEORGE E. BARICH,
Respondent.

DECLARATION OF LAURIE

ALDERMAN IN SUPPORT OF

RESPONDENT'S SUPPLEMENTAL
REPLY
ALJ: Hon. Gary Weiner
I, LAURIE ELIZABETH ALDERMAN, declare as follows:

1. I have personal knowledge of the matters stated in this declaration and could competently testify to them if called as a witness. I make this declaration in support of GEORGE BARICH’S Motion to Dismiss this action on grounds of selective enforcement.

2. I attest to the following evidence, documents, are true copies that are in response to Mr. Smith’s allegations in his reply brief.

3. Mr. Smith states: There is no “overtime” in the City contract for code enforcement services. This is a word choice error as it should have been over-budget for his code enforcement hours. In analysis from code enforcement billings for the fiscal year 2023-2024, the City did spend more than their budget for the year of $60k for code enforcement
- 2 - DECLARATION OF LAURIE ALDERMAN IN SUPPORT OF RESPONDENT'S SUPPLEMENTAL REPLY 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
LAW

OFFICES OF
CARLETON L.

BRIGGS
740 Fourth Street, Suite 202, Santa Rosa, CA 95404-4421 Tel.: (707) 523-2251, Fax: (707) 523-2253
services with spending $66,415.50 on Smith's hours alone on George Barich’s case. ALJ Weiner's costs are $7946 additionally, which are paid out of the city's code enforcement budget too. Therefore, the costs billed for Barich’s case is $74,361.50 out of the code enforcement fund which comes out of the city’s general fund, which doesn’t include other staff’s time, such as Noah Housh’s hours to testify. The total amount spent was $113,208 which is $53,208 over the budgeted amount for his code enforcement services. The total % of the budget spent on pursuing Barich over the 23-24 fiscal year is 65.7 % of total code enforcement hours. See: Exhibit 1 which is a tally of the code enforcement invoices from PRA requests from Administrative Services for Mr. Smith’s invoices to the city.

4. Mr. Smith states: Council has never been asked to approve overtime or additional funds regarding Barich. This is again a word choice error. According to Mr. Smith’s Contract (Exhibit 2) , the city manager is involved/must approve amounts over budget.

The city manager is reportable to the city council. There is a PRA request in to the City for the documentation of these approvals of over Mr. Smith’s $60k budget, but the PRA response has not been received currently:

C. Consultant shall be compensated for services in addition to those described in Exhibit A, only if Consultant and City execute a written amendment to this Agreement describing the additional services to be performed and the compensation to be paid for such services. In no case shall the total compensation under this Agreement exceed the “not-to-exceed” amount specified in Paragraph A, above, without prior written authorization of the City Manager.

If these amounts over the budget were approved by the city manager, the amendment would come before the council for approval of the funds.

5. Mr. Smith contention: there was never a “four hour” confidential conversation with the Barich HOA or any citizen for that matter. Also, later in the reply brief, Mr. Smith - 3 - DECLARATION OF LAURIE ALDERMAN IN SUPPORT OF RESPONDENT'S SUPPLEMENTAL REPLY 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
LAW

OFFICES OF
CARLETON L.

BRIGGS
740 Fourth Street, Suite 202, Santa Rosa, CA 95404-4421 Tel.: (707) 523-2251, Fax: (707) 523-2253
writes that it is a misstatement that “Suggesting that a billing entry by Smith for “confidential meeting” involved the Barich HOA when there was none”. While not clear to the scope of “four hours” or “confidentiality of the meetings”, etc., an explanation for confusion in the wording could have been based on the timeline produced which has previously been entered into evidence—a series of entries from July to August 2023 (Exhibit 3). There are multiple detailed entries in the billings about what the “confidential meeting” was regarding, as outlined in Exhibit 3, showing the sequence of billings, some labeled with the HOA and the neighbors in this sequence of events.

6. In regards to Mr. Smith’s arguments about the sequence of the notice of violation on his reply on page 2, there is newly discovered video of the public hearing of when the administrative code program was accepted by the council in June, 2019. Barich was the only citizen present and spoke on Mr. Smith’s contract. http://cotaticityca.iqm2.com/Citizens/SplitView.aspx?Mode=Video&MeetingID=2123&Format=Minutes The public hearing is at 38.47 minutes and continues to 1 hour 1 minute. Barich speaks at 58 minutes.

7. This video describes the origins of the code enforcement program, and characterizes the as the Notice of Violation assuming guilt based on observations of the City. Then it is characterized as the next step, that citizens can either pay “bail” for the violations or continue on to a hearing process. The video also describes that the ways to “cure” the violations would be in the notice of violation. This step was omitted from the August 10th Notice of Violation (received in September because of mailing error) …. How to cure all of the violations was not laid out until 2024 in the hearing stage.

8. Mr. Smith contends “Mr. Smith had no history with Mr. Barich, and not even any knowledge of Mr. Barich’s history with various City Council members and officials”. This - 4 - DECLARATION OF LAURIE ALDERMAN IN SUPPORT OF RESPONDENT'S SUPPLEMENTAL REPLY 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
LAW

OFFICES OF
CARLETON L.

BRIGGS
740 Fourth Street, Suite 202, Santa Rosa, CA 95404-4421 Tel.: (707) 523-2251, Fax: (707) 523-2253
video also negates that contention as Mr. Smith was present at the staff table for at least an hour of the meeting, including witnessing citizens business interactions with the council members. Mr. Barich directly warns Mr. Smith about using the code enforcement process for political reasons of the council members. The council members present at that 2019 “warning” were Mark Landman, John Dell Osso, John Moore, Wendy Skillman, and Susan Harvey. Susan Harvey is still on the council with knowledge of this warning not to use code enforcement for political reasons.

9. Mr. Smith’s contention/explanation of giving his cell phone number to the HOA manager: Mr. Smith provided the HOA president with his personal cell phone. As stated previously, Smith is in the office one day a week and voicemail cannot be reached remotely so it is a common practice for him to give out his cell phone number. There is no evidence of this being a common practice for Mr. Smith and Mr. Barich did not receive the same courtesy for his many filed requests for investigation.

10. Mr. Smith’s contention:

The City eliminated the City Council involvement in code enforcement actions in 2018 when it enacted new ordinances to place code enforcement actions under the independent purview of Mr. Smith, without City Council involvement. That should be the end of the discussion. .

The City instituted such process to avoid any involvement by the City Council in code enforcement actions.

There is no evidence to support this contention. In fact, in the September 11, 2018 agenda packet’s staff report (Exhibit 4) , it outlines the goals as follows, which was to reduce the staff workload, not the council’s involvement. :

The goal of contracting for these services is two-fold. First, it would relieve current staff of the task and allow more to be accomplished by staff which are educated and experienced in other subject matter and secondly, to have the duties covered by someone who has the work as their core focus. The contract scope of work includes development of a more comprehensive, effective and understandable program which will consist of new municipal code sections, potentially fines - 5 DECLARATION OF LAURIE ALDERMAN IN SUPPORT OF RESPONDENT'S SUPPLEMENTAL REPLY 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
LAW

OFFICES OF
CARLETON L.

BRIGGS
740 Fourth Street, Suite 202, Santa Rosa, CA 95404-4421 Tel.: (707) 523-2251, Fax: (707) 523-2253
and penalties which incentive timely compliance, and personnel dedicated solely to the task with one Attorney Supervisor and one Code Enforcement officer. If approved, the proposed changes and a schedule of fines and penalties will be coming to the Council for consideration later this fiscal year.

11. Mr. Smith’s conten�on:

Moreover, current City Council members had no involvement in this enforcement action. More than five years ago, the City established an independent process for code enforcement that eliminated City Council involvement and insured that no political or personal bias would be involved in the code enforcement process, including the type of claims now being made by Mr. Barich. That independent process alone renders any Barich disputes with any City Council Members irrelevant. Beyond that, the disputes in question occurred many years ago and those Council Members left their positions with the City long before this code enforcement action commenced.

There is no evidence suppor�ng Mr. Smith’s conten�on that it is an independent process for code enforcement. Mr. Smith’s scope of work is described in the June 2019 agenda packet as:

I, LAURIE ALDERMAN declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Dated: October 3, 2024
______________________________

LAURIE ALDERMAN
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
LAW

OFFICES OF
CARLETON L.

BRIGGS
740 Fourth Street, Suite 202, Santa Rosa, CA 95404-4421 Tel.: (707) 523-2251, Fax: (707) 523-2253
Exhibit 1 –tallies of code enforcement billings for
fiscal year 23/24
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
LAW

OFFICES OF
CARLETON L.

BRIGGS
740 Fourth Street, Suite 202, Santa Rosa, CA 95404-4421 Tel.: (707) 523-2251, Fax: (707) 523-2253
Exhibit 2
Code enforcement contract and Agenda Packet with
Staff Report June 2019 council meeting.

Cotati City Council
Agenda Staff Report
Item type: REGULAR AGENDA (ACTION)
To: City Council
Subject: Contract Agreement for Code Enforcement Services Date: September 11, 2018
Written by: Vicki Parker, Community Development Director Recommendation
It is recommended that the City Council adopt a motion to authorize the City Manager to execute the professional services agreement with Robert Smith for code enforcement services for the amount and term specified therein.

Background
At the FY 18/19 strategic planning session with the City Council on March 20, 2018, staff identified a need to develop additional code enforcement tools and personnel support for code enforcement activities.

Analysis/Discussion
Currently, the Community Development Department is responsible for planning, building, housing, code enforcement and, together with the City Manager’s office, the day-to-day and strategic planning for the City’s economic sustainability. We do this with three fulltime staff members and a contract for part-time building services of approximately 6-8 hours/week.

The majority of violations the Community Development Department investigates fall into three major categories:

1. Parking and vehicle related (excessive vehicles on site, parking in front or side yard setbacks) and abandoned vehicles;

2. Poorly maintained properties (overgrown vegetation encroaching into public right-ofway or neighbors’ properties, accumulated litter and debris and use of property for storage); and,

3. Unsafe or unpermitted work (vast majority is construction without permits but also includes people living in non-permanent or non-habitable spaces such as garages, sheds and travel trailers).

Complaints are currently investigated by either the building official (for building code violations)

14.B
Packet Pg. 65
or planning staff for zoning code violations. Most cases are resolved within 30-60 days following a written Notice of Violation provided to the property owner. Others (typically the properties that are poorly maintained) often result in cases lasting more than six months due to the lack of owner interest or ability to cure. Sometimes this is due to the owner’s physical or mental abilities or lack of resources and these need supportive and creative solutions. More often, the recurring or continuing cases are the result of the owner’s lack of desire to cooperate. These also result in significant time to cure and an inordinate amount of City resources allocated to continual follow up. This work draws resources away from other, more forward looking work the Department is able and expected to complete.

The goal of contracting for these services is two-fold. First, it would relieve current staff of the task and allow more to be accomplished by staff which are educated and experienced in other subject matter and secondly, to have the duties covered by someone who has the work as their core focus. The contract scope of work includes development of a more comprehensive, effective and understandable program which will consist of new municipal code sections, potentially fines and penalties which incentive timely compliance, and personnel dedicated solely to the task with one Attorney Supervisor and one Code Enforcement officer. If approved, the proposed changes and a schedule of fines and penalties will be coming to the Council for consideration later this fiscal year.

The proposed contract is with attorney Robert Smith who performs these same duties for the City of Sonoma in addition to his main position of running Sonoma’s Office of the Prosecutor. The contract is structured around 7-12 hours/week in a combination of Mr. Smith and a code enforcement officer who would work out of the Community Development Department.

Department staff would assist when needed and would be responsible for all mailing and record keeping. The contract would be effective upon execution by the City Manager, with fees not to exceed $60,000. Mr. Smith is available to begin work immediately.

Financial Considerations
The Community Development Department’s approved FY 18/19 budget included $60,000 to contract for these services.

Environmental Issues
This action is exempt from the California Environmental Quality Act (CEQA) because it is a contract for services and not a project which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, pursuant to CEQA Guideline section 15378.

Attachments:

PSA - Robert Smith (PDF)

14.B
Packet Pg. 66
2236794.2

CITY OF COTATI

STANDARD

PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is entered into and effective as of September 13, 2018 (“Effective Date”), by and between the City of Cotati, a municipal corporation (“City”) and Robert Smith (“Consultant”) (collectively, the “Parties”).

WHEREAS, the Parties enter into this Agreement for the purpose of Consultant providing professional services to City under the terms and conditions set forth herein.

THEREFORE, in consideration of the mutual covenants contained in this Agreement, the Parties agree as follows:

1. Services. Consultant shall provide the services as described in and in accordance with the schedule set forth in Exhibit A, attached hereto and incorporated herein (“Services”).

2. Compensation.

A. For the full performance of the Services described in Exhibit A hereto City shall compensate Consultant on a time-and-materials basis at the compensation rates specified in Consultant’s Services Rate Schedule included as the last page of Exhibit A; provided, however, that total compensation for the full performance by Consultant of all Services under all Task Orders shall not exceed sixty thousand dollars ($60,000.00), said amount being referred to herein as the “not-to-exceed” amount.

B. Consultant shall submit detailed monthly invoices reflecting all services performed during the preceding month, and including a revised schedule for performance and additional documentation requested by City, as applicable.

C. Consultant shall be compensated for services in addition to those described in Exhibit A, only if Consultant and City execute a written amendment to this Agreement describing the additional services to be performed and the compensation to be paid for such services. In no case shall the total compensation under this Agreement exceed the “not-to-exceed” amount specified in Paragraph A, above, without prior written authorization of the City Manager.

D. City’s obligation to pay compensation to Consultant as provided herein is contingent upon Consultant’s performance of the Services pursuant to the terms and conditions of this Agreement and any amendments thereto. Notwithstanding any other provision herein, Consultant shall not be paid any compensation until Consultant has complied with the City's Business Registration Ordinance.

14.B.a
Packet Pg. 67
Attachment: PSA - Robert Smith (Code Enforcement Professional Services Agreement) 2236794.2

3. Term. The term of this Agreement commences on the Effective Date, and terminates on September 13, 2019, unless sooner terminated in accordance with Section 4. Upon termination, any and all of City’s documents or materials provided to Consultant and any and all of the documents or materials prepared for City or relating to the performance of the Services, shall be delivered to the City as soon as possible, but not later than fourteen (14) days after termination of the Agreement.

4. Termination. City may terminate this Agreement without cause upon ten (10) days’ written notice. City may immediately terminate or suspend this Agreement for cause.

Cause for immediate termination or suspension shall include, but not be limited to, any breach of this Agreement by Consultant or Consultant’s bankruptcy or insolvency. Upon receipt of notice of termination or suspension for cause, Consultant shall immediately stop all work in progress under this Agreement. In the event of early termination of this Agreement by City, Consultant shall be entitled to payment for all Services performed to the date of termination to the extent such Services were performed to the satisfaction of City in accordance with the terms and conditions of this Agreement. If City terminates this Agreement for cause, Consultant shall be liable to City for any excess cost City incurs for completion of the Services.

5. Consultant’s Representation; Independent Contractor. Consultant represents that Consultant possesses distinct professional skills in performing the Services. City has relied upon said representation as a material inducement to enter into this Agreement.

Consultant shall, therefore, provide properly skilled professional and technical personnel to perform all Services under this Agreement. It is expressly understood that Consultant, its agents and employees shall act in an independent capacity and as an independent contractor and not as officers, employees or agents of City. This Agreement shall not be construed as an agreement for employment.

6. Facilities and Equipment. Consultant shall, at its sole cost and expense, furnish all facilities and equipment that may be required for furnishing Services pursuant to this Agreement. City shall furnish to Consultant no facilities or equipment, unless the City otherwise agrees in writing to provide the same.

7. Licenses, Permits, Etc. Consultant shall, at Consultant’s sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits or other such approvals which are legally required for performing the Services.

8. Time. Consultant shall devote such time to the performance of the Services as may be reasonably necessary for satisfactory performance of Consultant’s obligations pursuant to this Agreement.

9. Inspection. Consultant shall provide the City every reasonable opportunity to ascertain that the Services are being performed in accordance with the requirements and intentions of this Agreement. All work done and materials furnished, if any, shall be subject to inspection and approval by the City. The inspection of such work shall not relieve Consultant of any of its obligations pursuant to this Agreement.

14.B.a
Packet Pg. 68
Attachment: PSA - Robert Smith (Code Enforcement Professional Services Agreement) 2236794.2

10. Progress Reports. Upon the City’s request, Consultant shall provide, in a form acceptable to City, written progress reports of all oral and written observations, opinions, recommendations, analyses, progress and conclusions related to Consultant’s performance of the Services.

11. Confidentiality. In the course of providing services for City, Consultant may have access to trade secrets and confidential information, disclosure of which is protected or limited by law. Consultant shall not directly or indirectly disclose or use any such confidential information, except as required for the performance of the Services.

12. Conflict of Interest. Consultant represents that it presently has no interest, and covenants that it shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services hereunder. Consultant further covenants that, in the performance of this Agreement, it shall not employ any subconsultant or person having such a conflict of interest.

Consultant represents that no one who has or will have any financial interest under the Agreement is an officer or employee of City. If such conflict of interest arises during this Agreement or any extension, Consultant will immediately advise City and City may, at its sole discretion, immediately terminate this Agreement.

13. Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.

14. Standard of Performance. Consultant shall perform all the Services in a manner consistent with the standards of Consultant’s profession. All instruments of service of whatsoever nature, which Consultant delivers to City pursuant to this Agreement, shall be prepared in a substantial, first class and workmanlike manner and conform to the standards of Consultant’s profession. All such instruments of service shall become the sole and exclusive property of City upon delivery of the same.

15. Assignment/Transfer. Consultant shall make no assignment or transfer in whole or in part of this Agreement shall be made without the prior written consent of City.

16. Subconsultants. Consultant shall directly perform all Services, and shall not subcontract any portion of performance of the Services without the prior written consent of the City. Any such subconsultants shall be required to comply, to the full extent applicable, with the terms and conditions of this Agreement, including but not limited to, procuring and maintaining insurance coverage as required herein and which shall name City as an additional insured.

17. Business Registration. Consultant shall file a Business License Application as required by the City. The Administrative Services Department shall provide the Consultant with the required form. Consultant shall complete and file the form with the City and shall

14.B.a
Packet Pg. 69
Attachment: PSA - Robert Smith (Code Enforcement Professional Services Agreement) 2236794.2
pay the business license fee before any payment for Services under this Agreement is rendered.

18. Statement of Economic Interests. The City may determine that the Consultant must file a Form 700, Statement of Economic Interests, as required by the City’s Conflict of Interest Code. If such is the case, the City Clerk's office will provide the Consultant with form and Consultant shall file form with the City Clerk’s office. Said filing shall include an Assuming Office Statement within thirty (30) days of execution of this contract, annual statements on or before April 1 of each year, and a Leaving Office Statement within thirty (30) days after termination of this Agreement or any extensions thereto.

19. Internal Revenue Service Form W-9. Consultant must file an Internal Revenue Service Form W-9, Request for Taxpayer Identification Number and Certification, as required by the City to comply with regulations of the United States Department of the Treasury. If such is the case, the Administrative Services Department shall provide the Consultant with the required form. Consultant shall complete and file the form with the City before any payment for Services under this Agreement is rendered.

20. Compliance With All Laws. Consultant and any subconsultants shall fully comply with all applicable local, state and federal rules, laws, regulations and ordinances pertaining to performance of the Services required hereunder, including the Americans with Disabilities Act and any copyright, patent or trademark law. To the extent that any other government agency or entity provides compensation for any Services, Consultant shall comply with all rules and regulations applicable to such fiscal assistance. Consultant’s failure to comply with any law(s) or regulations(s) applicable to the performance of the Services hereunder shall constitute a breach of contract.

21. Discrimination. During the performance of this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of race, religion, creed, color, national origin, ancestry, gender, sexual orientation, age or physical or mental disability in violation of any applicable law.

22. Notice. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other Party in accordance with this Section. All such notices shall be sent by:

A. Personal delivery, in which case notice is effective upon delivery; B. Certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; C. Nationally recognized overnight courier, with charges prepaid or charged to the sender’s account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; or

14.B.a
Packet Pg. 70
Attachment: PSA - Robert Smith (Code Enforcement Professional Services Agreement) 2236794.2
D. Facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-class or certified mail or by overnight delivery, or (b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient’s time or on a non-business day.

City: Attn: Community Development Director
City of Cotati
201 West Sierra Avenue
Cotati, California 94931-4217
Consultant: Attn: Robert Smith
154 W. Spain Street, Unit R
Sonoma, CA 95476
Telephone: 707-934-7344

23. Ownership of Documents. All original papers, documents or computer material on disk or microfilm, and copies thereof, produced as a result of this Agreement, shall be the property of the City and may not be used by Consultant without the written consent of City. Consultant shall provide documents in electronic form in a format required by the City. Copies of such documents or papers shall not be disclosed to others without the written consent of the City Manager or his or her designated representative.

24. Internet-Ready Deliverables. If applicable to this Agreement, each contract deliverable shall be delivered as a data file suitable for publication on the Internet. The following specifications define the formats that satisfy this requirement:

A. Brochures, reports, plan documents, catalogues, flyers with graphics included, and forms are to be formatted as screen-optimized “.pdf” files, if possible.

B. Freestanding, individual graphics such as logos, small maps and photos are to formatted as “.tif” files, with the largest side no larger than four inches.

C. Large maps are to be formatted as “.jpg” files with the largest side no larger than four inches, unless mutually agreed otherwise by the Parties.

D. Short text documents with no graphics are to be in MS Word.

E. Freestanding charts, graphs and listings are to be in MS Excel.

25. Indemnification. To the fullest extent allowed by law, Consultant shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, suits, actions, arbitrations proceedings, administrative proceedings, regulatory

14.B.a
Packet Pg. 71
Attachment: PSA - Robert Smith (Code Enforcement Professional Services Agreement) 2236794.2
proceedings, civil penalties and fines, expenses and costs (including, without limitation, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature, whether actual, alleged or threatened, arising out of or in connection with Consultant's performance of the Services or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the sole negligence or willful misconduct of City.

The Consultant's obligation to defend and indemnify shall not be excused because of the Consultant's inability to evaluate Liability or because the Consultant evaluates Liability and determines that the Consultant is not liable to the claimant. The Consultant must respond within thirty (30) days to the tender of any claim for defense and indemnity by the City, unless this time has been extended by the City. If the Consultant fails to accept or reject a tender of defense and indemnity within thirty (30) days, in addition to any other remedy authorized by law, so much of the money due the Consultant under and by virtue of this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made of the claim or suit for damages, or until the Consultant accepts or rejects the tender of defense, whichever occurs first.

With respect to third party claims against the Consultant, the Consultant waives any and all rights of any type to express or implied indemnity against the Indemnitees.

Notwithstanding the forgoing, to the extent this Agreement is a "construction contract" as defined by California Civil Code section 2783, as may be amended from time to time, such duties of Consultant to indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.

Notwithstanding the foregoing, to the extent that this Agreement includes design professional services under Civil Code Section 2782.8, as may be amended from time to time, such duties of Consultant to indemnify shall only be to the full extent permitted by Civil Code Section 2782.8.

If any term of portion of this section is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, said section shall be interpreted to allow the broadest indemnity permitted by law.

This obligation to defend and indemnify City set forth here is binding on the successors, assigns or heirs of Consultant and shall survive the termination or completion of this Agreement or this section or final payment to the fullest extent and duration allowed by law.

The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement.

26. Insurance. Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise

14.B.a
Packet Pg. 72
Attachment: PSA - Robert Smith (Code Enforcement Professional Services Agreement) 2236794.2
from, or in connection with, the performance of the work hereunder by the Consultant, Consultant’s agents, representatives and employees.

A. Minimum Scope of Insurance. Coverage shall be at least as broad as:

1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).

2. Insurance Services Office form number CA 0001 (Ed. 12/90) covering Automobile Liability, code 1 (any auto), or code 8, 9 if no owned auto.

3. Workers’ Compensation Insurance as required by the State of California and Employers’ Liability Insurance. If no employees are utilized, the Consultant shall sign a declaration as described in California Health and Safety Code Section 19825.

4. Errors and Omissions liability insurance appropriate to the Consultant’s profession. Architects’ and Engineers’ coverage is to be endorsed to include contractual liability.

B. Minimum Limits of Insurance. Consultant shall maintain limits no less than:

1. General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

2. Automobile Liability: $2,000,000 per accident for bodily injury and property damage.

3. Employers Liability: $1,000,000 per accident for bodily injury or disease

4. Workers’ Compensation, Statutory Limits: $1,000,000 per accident for bodily injury or disease.

5. Errors and Omissions liability: $1,000,000 per occurrence or claim as approved by the City’s Administrative Services Director.

C. No Coverage Limitations or Restrictions. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the aforementioned specified minimum insurance coverage requirements and/or limits shall be available to the Additional Insureds (defined below). Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum

14.B.a
Packet Pg. 73
Attachment: PSA - Robert Smith (Code Enforcement Professional Services Agreement) 2236794.2
limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater.

D. Deductibles and Self-Insured Retentions (“SIR”). All deductibles or SIR must be declared to and approved by the City and shall not reduce the limits of liability.

At the option of the City, either: the insurer shall reduce or eliminate such deductibles or SIR as respects the City, its officers, officials, employees and volunteers, or the Consultant shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses. Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the City. City reserves the right to obtain a full certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of the right to so exercise later.

E. Other Insurance Provisions. The Commercial General Liability and Automobile Liability policies are to contain, or be endorsed to contain, the following provisions:

1. The City, its officers, officials, employees and volunteers (“Additional Insureds”) are to be covered as insureds as respects: liability arising out of work or operations as performed by or on behalf of the Consultant; or automobiles owned, leased, hired or borrowed by the Consultant.

2. The Additional Insured coverage under Consultant’s policy shall be “primary and non-contributory” and will not seek contribution from the City’s insurance or self-insurance, and shall be at least as broad as CG 20 01 04 13.

3. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, unless thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City.

4. The Workers’ Compensation endorsement shall contain a Waiver of Subrogation against the City. The Consultant shall provide to the City an endorsement from the Worker’s Compensation insurer, if any, agreeing to waive all rights of subrogation against the City for injuries to employees of the Insured resulting from work for the City or use of the City’s premises or facilities.

5. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City (if agreed to in a written contract or agreement) before

14.B.a
Packet Pg. 74
Attachment: PSA - Robert Smith (Code Enforcement Professional Services Agreement) 2236794.2
the City’s own insurance or self-insurance shall be called upon to protect City as a named insured.

F. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.

G. Verification of Coverage. Consultant shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on forms provided by the City or on other than the City’s forms provided those endorsements conform to the City’s requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time.

H. Subconsultants. Consultant agrees to include with all subconsultants in their subcontract the same requirements and provisions of this Agreement, including the indemnity and insurance requirements to the extent they apply to the scope of a subconsultant’s work. Subconsultants hired by Consultant agree to be bound to Consultant and City in the same manner and to the same extent as Consultant is bound to City under this Agreement. Subconsultants shall further agree to include these same provisions with any sub-subconsultant. A copy of these indemnity and insurance provisions will be furnished by Consultant to a subconsultant on request. Consultant shall require all subconsultants to provide a valid certificate of insurance and the required endorsements included in their agreement prior to commencement of any work and Consultant shall provide proof of compliance to City.

27. Amendment. This Agreement may be amended only by a written instrument executed by both Parties.

28. Litigation. If litigation ensues between City and a third-party which pertains to the subject matter of Consultant’s services hereunder, Consultant, upon request from City, agrees to testify therein at a reasonable and customary fee.

29. Construction. This Agreement is the product of negotiation and compromise on the part of both Parties and that the Parties agree that, notwithstanding Civil Code Section 1654, any uncertainty in the Agreement shall not be construed against the drafter of the Agreement.

30. Governing Law; Venue. This Agreement shall be enforced and interpreted under the laws of the State of California and the City of Cotati. Any action arising from or brought in connection with this Agreement shall be venued in a court of competent jurisdiction in the County of Sonoma, State of California.

14.B.a
Packet Pg. 75
Attachment: PSA - Robert Smith (Code Enforcement Professional Services Agreement) 2236794.2

31. Non-Waiver. The City’s failure to enforce any provision of this Agreement or the waiver thereof in a particular instance shall not be construed as a general waiver of any part of such provision. The provision shall remain in full force and effect.

32. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.

33. No Third Party Beneficiaries. The Parties do not intend to create, and nothing in this Agreement shall be construed to create, any benefit or right in any third party.

34. Mediation. The Parties agree to make a good faith attempt to resolve any dispute arising out of this Agreement through mediation prior to commencing litigation. The Parties shall mutually agree upon the mediator and shall divide the costs of mediation equally.

35. Consultant’s Books and Records.

A. Consultant shall maintain any and all ledgers, books of accounts, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to the City for a minimum period of three (3) years or for any longer period required by law, from the date of final payment to Consultant pursuant to this Agreement.

B. Consultant shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years or for any longer period required by law, from the date of termination or completion of this Agreement.

C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Manager, City Attorney, City Finance Director, or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at Cotati City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Consultant’s address indicated for receipt of notices in this Agreement.

D. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Consultant’s business, City may, by written request by any of the above-named officers, require that custody of the records be given to the City and that the records and documents be maintained by the City. Access to such records and documents shall be granted to any party authorized by Consultant, Consultant’s representatives, or Consultant’s successor in interest.

14.B.a
Packet Pg. 76
Attachment: PSA - Robert Smith (Code Enforcement Professional Services Agreement) 2236794.2

36. Headings. The headings used in this Agreement are for convenience only and are not intended to affect the interpretation or construction of any provisions herein.

37. Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement.

38. Entire Agreement. This Agreement, including the exhibits attached hereto and incorporated herein, constitutes the entire agreement between the Parties with respect to the Services, and supersedes all prior agreements or understandings, oral or written, between the Parties in this regard.

SIGNATURES ON FOLLOWING PAGE

14.B.a
Packet Pg. 77
Attachment: PSA - Robert Smith (Code Enforcement Professional Services Agreement) 2236794.2
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day, month and year first above written.

For City of Cotati: For Consultant:

Damien O’Bid Name:

City Manager Title:

Taxpayer I.D. No.: _________________
Recommended for Approval:

Norman Veloso
Director of Administrative Services
Recommended for Approval:

Department Director
Approved As to Form:

Robin Paige Donoghue
City Attorney

14.B.a
Packet Pg. 78
Attachment: PSA - Robert Smith (Code Enforcement Professional Services Agreement)

1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
LAW

OFFICES OF
CARLETON L.

BRIGGS
740 Fourth Street, Suite 202, Santa Rosa, CA 95404-4421 Tel.: (707) 523-2251, Fax: (707) 523-2253
Exhibit 3 Timeline of July/August code enforcement
billing entries.

Primary Evidence of Selec�ve Prosecu�on: Analysis of Code Enforcement hours billed during inves�ga�on of Barich
Through a number of PRA requests responses, the code enforcement atorney’s billings to the City of Cota� were obtained from October 2022 to March 2024. An analysis was done, mostly focusing on the billings from June 2023 to March 2024. The inves�ga�on of code viola�ons of Barich’s property began in June 2023. There is an outstanding PRA request for April, May and June’s billings, but those have not been received yet. The background documents on this analysis is included as Exhibit ____.

From October 2022 to May 2023 (when the Barich inves�ga�on was not occurring) the average monthly billing was $5247, which is the equivalent at $150/hr to approximately 35 hours. The total amount of code for the whole city was $32, 851 for the previous 8 months before the inves�ga�on of Barich began. From June 2023 to March 2024 the total amount billed for code enforcement services was $ 100,272. This is an average of $9116 (approx. 84 hours billed) for the 10 months, which is an increase in the average of $3869 (approximately an increase of 49 hours billed) per month since June, when the Barich inves�ga�on began.

The total amount of hours billed by the CE atorney ranged from a low of 40.75 to a high of 81 hours in the months of the inves�ga�on with an average of hours spent with an average of 60.55 hours.

The hours dedicated to the inves�ga�on of Barich range from 17.7 hours to 62.85 hours per month, with an average of 41.85 hours dedicated in this �me period of the inves�ga�on.

Overall, the percentage of hours billed by the CE atorney that iden�fiable as being dedicated to the Barich inves�ga�on is 64% of all hours billed from July 2023-March 2024 billed to the City of Cota� by the code enforcement atorney.

The percentage of Barich’s hours per month ranged from 31% to 87% of total hours billed.

With an average of $5247 for the previous 8 months before the inves�ga�on, there is a cost overage of $47,804 since the inves�ga�on began considering the previous 8 months expenditures.

Considering the percentages per month dedicated to Barich’s case, a total of $54, 637, has been traceable to the inves�ga�on of Barich from July 2023 to March 2024.

These calcula�ons are only of the code enforcement atorneys billed hours. They do not include various other city staff �me, i.e. Community Development Director, city manager, city clerk, etc. �me involved in the inves�ga�on. These calcula�ons are only for the first 10 months of the Barich case ending in March 2024. There have been two more hearing since, with no end in sight to the hearing process as of July 2024.

DECLARATION OF ROBERT A. SMITH
I, Robert A. Smith, of Cotati, in Sonoma County, California, declare under penalty of perjury that I have firsthand knowledge of the following and could testify competently to them.

1. I am an attorney licensed to practice law in California and have been so since 1980.

2. I am the City Prosecutor for the City of Sonoma and have been since 1987. In that capacity, I reviewed all police reports involving misdemeanors and made all charging decisions from 1987 until 2016. During that period of time, I estimate that my office handled the prosecution of 8,000 to 10,000 misdemeanor cases.

3. In 2016, I was tasked by the City of Sonoma to create a Code Enforcement agency for the City. I did so and recommended Sonoma municipal code modifications, deletetions and additions that would create an adminstrative process to address municipal code violations. The proposed ordinances would remove the City council from the enforcement process; require adequate notice; provide cure periods; hearings to determine violations and have an evidentiary process overseen by an independant objective hearing officer as well as a right of appeal to Superior Court. The proposed changes were implemented and I assumed the duties of the City's Code Enforcement Official.

4. To ensure consistency in charging decisions, I created a "case flow" document as a guide to evaluating cases for a determination of starting any enforcement action. A true and accurate copy of that document is attached as Exhibit #1.

5. In 2018, I was approached by the then Community Development Director of Cotati who stated she was familiar with the Sonoma program and would I consider doing the same for Cotati. She indicated that the few enforcement actions they had attempted had become very politically charged when the council was required to be involved. I agreed and was hired in fall of that year.

6. At my recommendation, the City adopted an ordinance structure that provided for an adminstrative enforcment mechcanism that included comprehensive notice, cure periods, structured hearings overseen by an objective hearing officer and a right to appeal to Superior Court.

7. I presented and proposed our "case flow" (Exh #1) to the City. It was approved by the Community Development Director.

Declaration of Robert Smith page 1 of 6

8. Contrary to the assertion of the moving party not all violations of the Cotati Municipal Code are treated as misdemeanors nor are they required to be. The City has a wide variety of remedies to address code violations including, but not limited to civil actions for abatement and/or injunctive relief as well as adminstrative enforcement.

9. This matter arises from the City's utilization of CMC Sec. 1.30 and following. This section is used by code enforcement to address chronic and/or ongoing property related violations.

10. CMC Sec. 1.30 is a permissive statute and allows Code enforcement substantial discretion in its use. To that end, the use of it is by its nature selective. Unless the violation complained of involves public safety or unpermitted contruction, code enforcement will not take any action without a citizen's request for investigation (complaint). Even then, the complaint will be evaluated on several factors including the proximity of the complainant's property to the property which is subject of the complainant and the impact of the violation on the complaniant. The purpose of this selectivity is to focus on property issues negatively affecting neighbors only.

11. My first involvement with 176 W. Cotati Oaks was shortly after my office was hired in the fall of 2018. In the course of my duties I reviewed a complaint from the house next door (Exhibit #2) stating that a family of four was living in a trailer on the Barich property. There was insufficient evidence to support a code enforcement action at the time so the matter was closed.

12. Sometime in early fall of 2020, nearly two years later, I was contacted by Barich requesting that Code Enforcement remove what he referred to as a "squatter" from his property. In addition, he was upset that she had constructed a tarp-enclosed paint booth in his rear yard.

13. At Barich's request I inspected the rear yard of his property. It appeared to me that there were several CMC violations regarding the location and use of the paint shed as well as occupancy of the RV. I also observed a mobile home in the backyard that also appeared to be used as living space.

14. Subsequent investigation and questioning of the subject living in the RV indicated that Barich was renting the RV as a living space and had been doing so for two years. In addition, I believed more likely than not that he was also renting space on the property for a family of four to park their trailer which would have been consistent with the 2018 complaint (Exh #2).

15. It became evident to me that Barich was pumping black water from at least the RV into the cleanout at the house as he stopped doing it for the RV tenant (see email of Donna Hudson attached as Exhibit 3) (see letter Declaration of Robert Smith page 2 of 6
dated August 10, 2020, from Gloria Chong to Barich attached as Exhibit 4).

16. Accordingly, on August 20, 2020, I issued and served on Barich as well as both tenants an administrative Notice of Violation and Order to Abate (Notice) (attached hereto as exhibit #5).

The Notice gave Barich until September 30, 2020, to bring the property into compliance without penalties or fines.

17. Subsequently, both tenants vacated the property and Barich removed the setback violations but not until after the September 30th deadline.

18. Barich requested that the City verify compliance. Community Development Director Housh and I visited the property and confirmed that the tenants and paint shed were removed. Mr. Housh observed two large cargo containers on the property and indicated that they needed to be permitted or removed. I had a conversation with Barich at the meeting on the property and said I would confirm what needed to be done with the cargo containers.

19. Barich was not fined or otherwise penalized for any reason related to the Notice of August 20, 2020.

20. After checking with staff, I determined that the two cargo containers would have to be permitted or removed from the property. I wrote to Barich on December 9, 2020 (Exh #6) and informed him that the City considered the violations in the Notice to be corrected. I further thanked him for his cooperation in resolving the matters. I further apologized to him but notified him that the containers would have to be permitted or moved off the property.

21. I did not give him a deadline but rather, given the impact of the holidays and Covid informed him that we could talk best about how to remedy the situation after the 1st of the new year.

22. Unfortunately, Barich did not permit nor remove the containers from his property so I was forced to file a 2nd Notice of Violation on April 6, 2021 (Exh #7).

23. Eventually, the containers were removed. I verified such by driving by the property. Barich was sent a compliance letter.

24. Barich was not fined or otherwise penalized for any reason related to the Notice of April 6, 2021.

25. Code enforcement for Cotati is a parttime position. I am in my office at City Hall typically one day a week.

In 2023, that day was usually Wednesday.

Declaration of Robert Smith page 3 of 6

26. On June 7, 2023, I was in my office at City Hall. As is my practice, I reviewed new complaints. On that date, I reviewed two complaints that had come into City Hall on June 5, 2023.

27. The complaints, supported by photo documentation, were from two neighbors of Barich, Hamby (Exh #8) and Ramon (Exh #9). The complaints alledged that there were third parties living in trailers in the Barich back and front yard. Photos showed possible electrical work done without permit as well as questioning how the sewage was being disposed.

28. Based on the prior history with the property, a drive by of the property and the evidence provided by the complainants, I, in compliance with established protocols, initiated an enforcement action sending Barich a request for inspection of the property, a common practice when property violations may not be visible from the street (Exh #10).

29. The sole reason a code enforcement action was initiated was stated clearly in the request for inspection and that was it appeared that there may be violations occurring on the property for "illegal/non-permitted rentals, vehicles or accessory structures in setbacks and substandard living conditions".

30. In response to the request, I was contacted by Carleton Briggs (Briggs), an attorney, who identified himself as representing Barich. Briggs indicated that Barich would not allow the City to inspect his property, however, would the City be satisfied with video footage of the rear yard. While the City had every right to proceed with an inspection warrant, it agreed to accept a video prepared by Barich in lieu of a physical inspection to accommodate Barich's desire to not have City Officials on his property. T.

31. The video, produced by Barich, clearly showed the existence of violations consistent with the original complaints of Hamby and Ramon. A subsequent investigation established existing conditions, among others, of human habitation of vehicles, impermissible vehicle storage, construction without the benefit of a permit, setback and lot coverage violations among others.

32. It is the practice of code enforcement to include in an enforcement action any additional violations discovered in the course of addressing the primary violation.

33. The City was allowed a limited inspection of the property by Barich during which the City confirmed the original violations stated in the request for inspection and identified additional violations including containers, multiple driveways, excessive driveway width, and, lot coverage.

34. Accordingly, An Administrative Notice of Violation and Order to Abate was issued on August 10, 2023 (Exh Declaration of Robert Smith page 4 of 6
11) which identified all known violations of Cotati Municipal Code (CMC) at the time.

35. In making the decision to initiate a code enforcement action with regard to 176 W. Cotati Oaks, I discussed the matter with no one, took no input from any staff nor any council person.

I was unaware of any lawsuit or outcome or that Barich had had an encounter with a council member in 2007. I have never had a conversation or email exchange with a council member on any topic; quite frankly I couldn't even identify them by name.

36. I don't know Mr. Barich and I feel no animus towards him. In fact, I have always dealt with him in a courteous and professional manner. As you can read in my December 9, 2020, letter I appreciated all of his efforts to resolve the issues on his property, apologized for the fact that he was going to have to permit or remove the containers and gave him an unspecified extension of time to resolve the issue. If the City actually carried a vindication platform against Barich, it seems logical it would have manifested itself in the early proceedings (2020 and 2021) where the City had the opportunity to impose fines but did not do so.

37. Contrary to the unfounded assertion by the moving part that are "hundreds of containers" in Cotati is simply a gross overstatement and without substantiation. The City has taken action on eleven properties with unpermitted containers, two of which are Barich's neighbors including one of the complainants.

38. Barich has filed over 70 complaints since he received the City's request for inspection. Code inspection has taken action on a number of violations in his immediate neighborhood. Because public health and safety is an exception to the requirement of a complaint, living in vehicles does not require one. In the first flood of complaints filed, Barich alledged that fifteen (15) properties had trailers/RV that were being used for human habitation.

39. My inspection of the sites did not indicate sufficient evidence of human habitation with the exception of one or two. I therefore asked Barich, through his attorney, for whatever evidence he relied on in making such an allegation (Exh #12). Briggs replied that there was none (Exh #13). ___________________________ Date;_7/26/2024_____
Declaration of Robert Smith page 5 of 6
Declaration of Robert Smith page 6 of 6

1 R.A. Smith
Code Enforcement
City of Cotati
IN THE MATTER OF 176 W. COTATI OAKS
Supplemental Reply in Opposition to
Motion to Strike and Objection to the
Alderman Declaration
__________________________________/

INTRODUCTION
For a brief recap of the Barich Motion to Strike, the motion to dismiss, brought by George Barich (Barich) arises from a code enforcement action initiated on June 7, 2023, when in response to citizen complaints that people were living in trailers on his property, the City sent Mr. Barich a request for inspection of his property at 176 W. Cotati Oaks.

OBJECTION TO THE DECLARATION OF ALDERMAN
Barich’s supplemental brief has attached as an exhibit stylized as a declaration in support of the motion. The City objects to its inclusion for consideration on the following grounds:

1. The parties did not stipulate to the inclusion of declarations other than those attached to the original moving papers.

2. The declaration is not based on firsthand information but rather conjecture, hearsay, and falsehoods.1 There are no facts but merely wild accusations and assertions totally unsupported by any evidence.
1 There is no “overtime” in the City contract for code enforcement services; the Council has never been asked to approve overtime or additional funds regarding Barich nor has Mr. Smith ever been, the subject of any investigation into my role or involvement in corruption, and, there was never a “four hour” confidential conversation with the Barich HOA or any citizen for that matter.
2 SUPPLEMENTAL REPLY IN OPPOSITION
Moving Party’s complete failure to provide any evidence of selective prosecution The moving party has offered only three additional arguments above those discussed in the original motion.
• Barich was not provided a preliminary notice with regard to the current action commencement on August 10, 2023.

The current enforcement action commenced on June 7, 2023, when the City sent Barich a request for inspection. In addition, there is no requirement in the Cotati Municipal Code for a preliminary letter to be sent prior to a formal code enforcement action commencement. It is used in situations where the citizen may not be aware of the violation and the nature of the violation.

In this case Barich was well aware of the City’s prohibition with regard to vehicle habitation. • Mr. Smith’s failure to send the statutorily required Notice of Violation and Order to Abate to Mr. Brigg instead of posting and required mailings was “nothing less than a conspiracy” to retaliate for Respondent’s civil rights suits.

Mr. Smith, while in fact an attorney, was not acting in such capacity at the time of the notices but rather as the Code Enforcement Official for the City. In addition, a “conspiracy” by definition is “a secret plan by a group to do something unlawful’. The Code (§1.30.070 Service procedures) requires that the service of an Administrative Notice and Order be done by certified mail to the last known address, 1st class mail and posting on the property. It does not say that it may be done any other way, and the moving party has not provided any evidence to support the existence of a “conspiracy” or its “unlawful goals”.
3 The supplemental brief is riddled with misstatements unsupported by the evidence such as the following:

1. Suggesting (P4, l8) that the City requested additional evidence from a complaint which required a surveillance camera. The City at no time suggested to the complaint he do so.

2. Suggesting that a billing entry by Smith for “confidential meeting” involved the Barich HOA when there was none.

3. That the City of Cotati “joined a rallying cry to join with the HOA and neighbors to stop George Barich (P4; L15-16) when City not only did not join with the HOA or neighbors but in fact took enforcement actions against some based on Barich’s complaints. Again, hyperbole and italics do not constitute evidence.

4. Mr. Smith provided the HOA president with his personal cell phone. As stated previously, Smith is in the office one day a week and voicemail cannot be reached remotely so it is a common practice for him to give out his cell phone number.

ARGUMENT
Past incidents involving former City Council members are entirely irrelevant to this matter. Not only were those former City Council members gone from the City well before this code enforcement action and had no involvement in this code enforcement action, but even current City Council members have no role in this code enforcement action. The City eliminated the City Council involvement in code enforcement actions in 2018 when it enacted new ordinances to place code enforcement actions under the independent purview of Mr. Smith, without City Council involvement. That should be the end of the discussion. The City instituted such process to avoid any involvement by the City Council in code enforcement actions. 4 Mr. Smith had no history with Mr. Barich, and not even any knowledge of Mr. Barich’s history with various City Council members and officials. Indeed, a previous matter that came up in 2021 was resolved between Mr. Smith and Mr. Barich in an amicable manner without an enforcement action being filed.

Furthermore, Mr. Barich claims this is merely about driveways, ignoring that the core issues of the enforcement action involve health and safety issues regarding illegal and unsafe habitation, which triggered multiple neighbor complaints.

Mr. Barich attaches emails from citizens, to and from the City, complaining that the City was accepting evidence from concerned citizens. What these emails actually show is that these impacted citizens were essentially begging the City to take code enforcement action against Mr.

Barich for his serious code violations. (Barich Ex. B, p. 2 -- “I have numerous homeowners upset that the city won’t do anything regarding this address renting [out] trailers in his backyard to multiple renters because you are afraid of him suing you again. George Barich.”) Had the City not pursued code enforcement, it would have been favoring Mr. Barich to the detriment of other citizens. Furthermore, the City has never ignored health and safety violations and could not do so here. The evidence is undisputed that health and safety code violations received the top priority for enforcement.

Mr. Barich wants to have disputes with the City and then essentially claim immunity from any future prosecution by the City for code violations. Barich wants to be able to flagrantly violate health and safety codes and then claims that any enforcement of those codes is because of previous disputes with the City. It does not work that way. The City simply cannot ignore health and safety violations. Indeed, as set forth above, citizens were very concerned that the City was 5 not taking action against Mr. Barich because of the previous litigation with him. The City simply did not have that option.

Mr. Barich has shown no other situation in which the City has failed to proceed with code enforcement for the type of health and safety violations on Mr. Barich’s property.

Ironically, the City’s settlement with Mr. Barich included a release of all previous incidents. A clean slate, so to speak. Mr. Barich then went on to illegally have additional habitants on his property in violation of health and safety codes.

There is also no question that Mr. Barich had serious violations of health and safety codes. The City could not ignore this. The enforcement decisions were made by Mr. Smith, who had no vendetta against Mr. Barich. Moreover, the City set up the enforcement process to remove any type of political or personal involvement by the City Council.

Curiously, Mr. Barich points out that Mr. Smith informed Barich in 2021 that his property was then in compliance (after curing issues with illegal habitation and storage containers). Oddly, Barich sees the 2021 clearance as protection from his subsequent placing of new storage containers and new illegal renters.

Mr. Barich is the one that has prolonged and exacerbated this process, rather than simply curing the violations. Ironically, he now complains that the City has paid Mr. Smith to prosecute the code enforcement actions against Mr. Barich. Mr. Barich cannot escalate the enforcement process and increase the expense, and then complains that the City paid for the code enforcement prosecution to continue.

Long-ago incidents between Mr. Barich and prior City Council members have no relevance to this code enforcement prosecution against Mr. Barich. Those former City Council members had no involvement in this code enforcement action and were not even Council members when the 6 action began. Moreover, current City Council members had no involvement in this enforcement action. More than five years ago, the City established an independent process for code enforcement that eliminated City Council involvement and insured that no political or personal bias would be involved in the code enforcement process, including the type of claims now being made by Mr. Barich. That independent process alone renders any Barich disputes with any City Council Members irrelevant. Beyond that, the disputes in question occurred many years ago and those Council Members left their positions with the City long before this code enforcement action commenced.

Ironically, Barich now complains that the City Council has not become involved in this code enforcement action. The City Council has properly stayed out of the enforcement action.

Disputes with prior City Council Members are entirely irrelevant. There is no selective enforcement here and Mr. Barich’s motion should be denied.

CONCLUSION
Mr. Barich cannot utilize selective prosecution as a defense for the code enforcement action against him as he has failed to provide substantial evidence that the City of Cotati acted in a retaliatory or vindictive manner. The City of Cotati acted within the power delegated by the State of California when it responded to public code enforcement complaints received regarding potential violations of the Cotati Municipal Code at 179 West Cotati Oaks Drive. The complaints were addressed and processed in a manner that complied with the code enforcement provisions and procedures codified in the Cotati Municipal Code and in accordance with standard code enforcement practices. Had the City failed to process the public code enforcement complaints, the due process rights of the complainants would have been violated? 7 Furthermore, Barich has failed to establish that the decision to initiate a code enforcement action against him lacked circumstances that showed no distinguishable, legitimate prosecutorial factors that might justify making different prosecutorial decisions.

Therefore, the City requests that the motion for dismissal be denied.

Respectfully submitted,
____________________
Robert Smith
City of Cotati

Column9 Column10 Column11 Column12 Column13 Column14 Column15 Column16 0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
0 2 4 6 8 10 12 14 16 18
Percentage of Barich's code enforcement attributable hours vs. total hours billed for city
2/10/2025 12:06:30 PM Page 1 of 1
Vendor History Report
Cotati, CA By Vendor Name
Posting Date Range 07/01/2024 - 02/10/2025
Payment Date Range -
Payable Number Description Post Date 1099 Payment Number Payment Date Amount Shipping Tax Discount Net Payment Vendor Set: 02 - City of Cotati - Operations - Contracts SMI15 - ROBERT A. SMITH 13,010.99 0.00 0.00 0.00 13,010.99 13,010.99 CO-2024-07-30 CD | CODE ENFORCEMENT JULY 2024 2/6/2025 Y 82519 2/7/2025 2,902.50 0.00 0.00 0.00 2,902.50 2,902.50 CO2024-08-30 CD | CODE ENFORCEMENT AUG 2024 2/6/2025 Y 82519 2/7/2025 7,732.50 0.00 0.00 0.00 7,732.50 7,732.50 CO2024-09-30 CD | CODE ENFORCEMENT SEP 2024. 12/11/2024 Y 82519 2/7/2025 1,102.50 0.00 0.00 0.00 1,102.50 1,102.50 CO-2024-10-04 CD | CODE ENFORCEMENT OCT 2024 10/4/2024 Y 82104 10/31/2024 1,273.49 0.00 0.00 0.00 1,273.49 1,273.49 Vendors: (1) Total 02 - City of Cotati - Operations - Contracts: 13,010.99 0.00 0.00 0.00 13,010.99 13,010.99 Vendors: (1) Report Total: 13,010.99 0.00 0.00 0.00 13,010.99 13,010.99

Cotati
Monthly Billing Summary
24_07.97
July 30, 2024
Invoice#
Date:

Date Description Hours
2024-07-20 rev AHO response to ate subm tted ev dence 0.30 2024-07-20 rev argument by br ggs re: documents 0.30
2024-07-08 **8197 La P aza** - rece pt of Not ce of Trustee Sa e enter nto f e. 0.10 2024-07-12 Schedu e CE hear ng on 8/29/24 w th B. Karp ow, Hear ng off cer. 0.20 2024-07-17 **8197 La P aza** - ema exchange betwn C ty and Bob entered nto f e. 0.10 2024-07-22 **8197 La P aza **- researched property t t e cha n and act v ty w th County re property be ng forec osed on; ema to Bob.

0.40 2024-07-09 176 W Cotat Oaks ema rp ega re: v deos + rev ew 224 W Cotat Oaks up oad

0.70 2024-07-18 369 B oddget St ema CDD re: property concerns 400 Map e St case creat on + documentat on
159 He man Ln case creat on + documentat on
415 Porta St case creat on + documentat on
320 W Cotat Ave case creat on + documentat on
235 Map e St case creat on + documentat on

2.85 2024-07-21 176 W Cotat Oaks rev ew test mony 4.50
2024-07-22 176 W Cotat Oaks rev ew bar ch hear ngs 2.50 2024-07-25 369 B odgettema CDD re: case status + up oad 0.45 2024-07-30 hear ng off cer + staffema staff re: hear ng + cance hear ng room 0.70 2024-07-31 369 B oddget N&O Draft + serve + ema
369 B oddget ca rp re: status

6.25 Monthly Billing Summary
2/
Robert A Smith, Esq. PO Box 1463, Sonoma, CA 95476 Fed Tax ID

Cotati
Monthly Billing Summary
24_09.104
September 30, 2024
Invoice#
Date:

Date Description Hours
2024-09-13 Ema re hear ng nqu ry. 0.10
2024-09-20 Rev a documents re 9/26 hear ng; research mob e home park ssues; ca NH re: hear ng and outstand ng subeonas

1.20 2024-09-30 9/16/24 co c ty staff ema staff re: status update 0.35 9/16/24 co 8844 Cypress Ave ca rp re: fo owup + ema re: fo owup 0.65 9/16/24 co 575 W Schoo St up oad 0.15
9/16/24 co 219 Map e Ave up oad 0.15
9/16/24 co 135 W Cotat Oaks Ct case creat on + documentat on 0.5 9/16/24 co 774 W Schoo St case creat on + documentat on 0.5 9/16/24 co 145 P newood Way case creat on + documentat on 0.5 9/23/24 co 425 W S erra Ave cont nuance ma + serve 1.5
9/26/24 co 425 W S erra AVe ema team re: cont nuance 0.35 9/26/24 co 425 W S erra AVe ema rp counse re: cont nuance 1

5.65 2024-09-17 Ema to Braden re poss b e hear ng date 9/26/24 and request that f e be down oaded nto Cotat f es. 0.10 2024-09-20 Cance schedu ed hear ng date schedu ed 9/26/24. Not f ed B. Karp ow hear ng off cer. 0.30 Monthly Billing Summary
2/
Robert A Smith, Esq. PO Box 1463, Sonoma, CA 95476 Fed Tax ID