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A Professional Corporation Attorneys at Law

24591 Silver Cloud Court

Suite 200
Monterey, California 93940
March 10, 2017 Tel (831) 373-7500
Fax(831) 373-7555

Sender's e~mail:

Chip Rerig, City Administrator

City of Carmel-by-the-Sea
City Hall
Carmel-by-the-Sea, CA 93921

Re: Proposal for City Attorney Services

Dear Mr. Rerig:

Kennedy, Archer & Giffen hereby submits the enclosed proposal in response to the City
of Carmel-by-the-Sea's Request for Qualifications for City Attorney Legal Services.

If you or the temporary advisory committee have any questions or comments, please
contact me at (831) 373-7500 or by email at

You may access additional information concerning me and our law firm on our firm's

Thank you for your consideration of this proposal.

Very truly yours,

A Professional Corporation Attorneys at Law

24591 Silver Cloud Court

Suite 200
Monterey, California 93940

Tel (831)373-7500


A. Qualifications to provide services:

As an introduction, please describe the firm's or individual's qualifications for providing

City legal services, overall capabilities, training, and areas of expertise for the partner/principal who
would be the designated 'City attorney,' and the person most likely to be the principal deputy.

Designated City Attorney-Jon R. Giffen (SBN 142158)

Length of employment with the firm: Seventeen years

Specialization: I have worked for twenty-seven years as a civil litigator. I have also served
for four years as Authority Counsel for the Fort Ord Reuse Authority ("FORA"). In
addition to responding directly to the inquiries contained in the City's Request for
Qualifications, I am submitting with our responses our firm resume.

Legal training: Santa Clara University Law School, J.D.

Scholastic honors and professional affiliations: State Bar of California, Monterey County Bar
Association, Monterey Rotary Club

Date of admittance to California Bar: December 1989

Years of practice: Twenty-seven years

Municipal or other local public sector experience: Since I began practicing in Monterey
County in 1996, I have been the lead attorney handling a variety of litigated matters for
the following municipal entities: City of Carmel-by-the-Sea, FORA, County of Monterey,
City of Salinas, City of Monterey, City of Pacific Grove, City of King City, and City of
Santa Clara. Since March of2013, I have served as Authority Counsel for FORA. My
partners and associates also have experience representing the public sector. We are a local
firm with knowledge of the intricacies of the legal and practical issues faced by public
entities in Monterey County, especially including the City of Carmel-by-the-Sea.
Knowledge of, and experience with California Municipal Law (what percentage of practice
represents municipal law, and statement of other types of clientele represented): I have
significant knowledge of and experience with California municipal law. I have
represented multiple municipal entities in litigated matters for over fifteen years. During
that same time period, I have worked on specific occasions with Don Freeman and City of
Carmel-by-the-Sea staff on a wide range of municipal law matters affecting the City of
Carmel-by-the-Sea, including fiercely litigated matters involving employment,
constitutional, code enforcement and other legal issues. My partner Dan Archer has also
worked closely with City staff and Brian Roseth on discrete real estate matters for the
City. For the past four years, I have served as Authority Counsel for FORA, which role
exposes me to legal issues involving a host of federal, state and local laws, rules and
regulations, most all of which are relevant to the representation of the City of Carmel-by-

I estimate that 50% to 60% of my current practice involves representation of

municipal clients, and that the remaining 40% to 50% involves representation of private
businesses and individuals in a variety of litigated matters (business, real estate,
employment, premises and products liability, among other issues).

Litigation experience and track record: I have tried approximately twenty-five cases to
verdict before a jury, judge or arbitrator in my twenty-seven practice years. I have a very
successful track record in the cases I have tried, and have mediated and resolved hundreds
of cases during the pendency of litigation, prior to trial or arbitration.

Knowledge and practice of law relating to land use and planning, California Environmental
Quality Act (CEQA), general plans, real estate, environmental issues, hazardous waste and other
related law: As Authority Counsel for FORA, I have gained significant exposure to land use
and planning issues, general plans, real estate and related environmental issues. I have
dealt directly with and become familiar with CEQA through our firm's representation of
the City in the Flanders case, and in my role at FORA.

Experience in the areas of personnel, workers' compensation, general liability and employee
relations: I have a general working knowledge of workers' compensation through both
litigating personal injury matters that included these issues, and in my experience with
operating our law practice. I have also been exposed to general liability insurance issues
in my litigated cases and through our law firm, and have and am litigating cases with
employment issues in both the public and private sector (sexual harassment, hostile work
environment, wrongful termination, among other issues) .

Experience in the area of contracts and franchises: While my practice life has primarily
involved litigation, many of my cases have involved contract issues, including breach of
contract and the interpretation of contracts. My work at FORA involves a significant
amount of contract preparation, analyses and interpretation. In addition, my law partners
and associates have a collective transactional and contractual experience of well over 60
years, and are expert in their field. I have in the past relied on their transactional

expertise to assist me in contractual, franchise and other business-related issues, and, if
desired and approved, can assist in these areas for the City.

Experience in the preparation and review of the ordinances and resolutions: I have significant
exposure, primarily in the defense of municipal entities in litigated matters, to the
intemretation and enforcement of ordinances and other municipal laws. Over the years, I
have interpreted and enforced ordinances for the City of Carmel-by-the-Sea and the City
of Monterey. In my work at FORA, I am regularly called upon by FORA staffto draft, or
to review and edit and interpret resolutions to be adopted by the FORA Board.

Experience in the area of the Public Records Act, the Ralph M. Brown Act, the Political Reform
Act and conflicts of interest, and the Elections Code: Also in my work at FORA, I am
regularly called upon to respond to Public Records Act requests, and to assist FORA staff
in its response to those requests. The same is true with the Brown Act. In my role as
Authority Counsel, I am constantly involved in the Brown Act issues, including reviewing
meeting agendas, monitoring public meetings including monthly Board meetings of the
FORA Board, all to ensure compliance with the Brown Act. I have also litigated cases
involving the Political Reform Act and conflicts of interest, and the Elections Code.

Experience in negotiating agreements and disputes: Over the course of my twenty-seven years
as a litigator, I have gained significant experience in negotiating and resolving litigation
disputes, including direct negotiation with opposing counsel, and in a mediation setting
with the assistance of a mediator. In my work at FORA, I deal directly with FORA staff
and other governmental entities in the preparation and the negotiation of agreements. In
instances where I find myself in need of assistance in negotiating agreements, I have called
upon and will call upon my transactional partners and associates for their significant
expertise in assisting the City.

Whether the partner/principal or likely associates have been successfully sued for malpractice,
been the subject of complaints filed with the State Bar, or had discipline imposed by the State
Bar, please provide information on the nature of the incident, the dates on which the matter
began and was concluded, and the results of the situation: I have never been successfully (or to
my knowledge, unsuccessfully) sued for malpractice, nor am I aware of being the subject
of a single complaint filed with the State Bar, nor have I ever had discipline imposed upon
me by the State Bar. To my knowledge, the partners and associates who are likely to assist
me on Carmel-by-the-Sea legal matters have not been successfully sued for malpractice or
been the subject of a State Bar complaint, or been disciplined by the State Bar.

B. Scope of Services

To reinforce, the selected legal counsel must have knowledge and experience in the
following areas oflaw: Ralph M. Brown Act, Political Reform Act, Public Records Act, Coastal
Act, public contracting law, and other areas of municipal law. Applicants with direct experience in
advising a public entity, and familiarity with current issues in municipal law, are essential.

As set forth in greater detail in this proposal, I have a broad base of knowledge and
experience built over the course of 27 years in the areas of law relevant to representing the
City of Carmel-by-the-Sea. My partners and associates are also very familiar with municipal
law issues, and can provide additional support to the City if desired and approved by the City.
The scope of services listed in the RFQ is well within the parameters of my experience and the
firm's experience, and I would be honored to serve as City Attorney for the City of Carmel-

C. Your Current Practices I Conflicts of Interest

Please list any political contributions of money, in-kind services, or loans made to any member
of the City of Carmel-by-the Sea Council within the last five years by the applicant law firm and
all of its attorneys (including the attorney being proposed as City Attorney).

I am not aware of any political contributions of money, in-kind services, or loans

made to any member of the City of Carmel-by-the Sea Council within the last five years by
our law firm or any of its attorneys, including me.

Please list all public clients for which your firm currently provides legal services. Please list all
public clients for which your firm has provided services over the last five years.

Current Last Five Years

City of Carmel-by-the-Sea City of Santa Clara

Fort Ord Reuse Authority City of Monterey
County of Monterey City of Pacific Grove
Monterey Salinas Transit City of King City

For the proposed City Attorney, please specifY current or known future professional
commitments in order that the City may evaluate your continuing availability for providing legal
services to the City.

My current professional commitments involve a relatively full-time law practice

that balances my work as a civil litigator with my role as Authority Counsel at FORA.
Going forward, I will be available to serve as City Attorney for Carmel-by-the Sea for the
twenty to twenty-five hours per week projected by the City. I also anticipate being
supported, as approved by the City, primarily by associate Ryan Donlon (whom I
currently anticipate will serve as the principal deputy City Attorney) and secondarily by
senior counsel David Willoughby and partner Crystal Gaudette.

' '


Donald Freeman
City Attorney for the City of Carmel/ City of Seaside I AMBAG
(831) 624-5339 ext 11

Michael A. Houlemard, Jr.

Executive Officer for the Fort Ord Reuse Authority
(831) 883-3672

Diane Goldman
Associate General Counsel
Pebble Beach Company
(831) 625-8468


Jon R. Giffen $300

Ryan C. Donlon $250
Paralegal/Legal Asst $100

Should the firm's transactional or other lawyers be consulted for legal issues
appropriate to their respective practices, those lawyers will charge their normal hourly rates,
which range from $300 to $400 per hour.

A Professional Corporation Attorneys at Law

24591 Silver Cloud Court

Suite 200
Monterey, California 93940

Tel (831) 373-7500



Kennedy, Archer & Giffen provides legal services in the areas of civil litigation, and real estate,
cornn1ercial and business transactions. The attorneys in our firm have significant experience and
acknowledged expertise in their respective areas of practice. They all, also, share the firm's deep
cornn1itment to superior service and practical problem-solving, with the goal of combining excellent
legal skills with good business judgment, in order to play an active role in helping clients succeed.

The attorneys at Kennedy, Archer & Giffen represent a history oflegal practice in Monterey County
which stretches back for more than thirty years. The firm, itself, began in 1997, formed by Nolan
Kennedy and Dan Archer, each of whom began his practice with the Monterey office ofHoge, Fenton,
Jones & Appel. In 2001, they were joined by Jon Giffen, who had been practicing in Salinas, and by
the attorneys with the firm ofHarray & Linker. In 2014, Crystal Gaudette joined the firm after
practicing for eight years at Wilson Sonsini Goodrich & Rosati in Palo Alto. Kennedy, Archer &
Giffen has continued to grow, adding litigators and transactional lawyers to strengthen its legal service


The firm's areas of practice divide, generally, into the fields of civil litigation, and organizational or
transactional matters. Within these general areas, there are several categories of specific focus, as
discussed below.

The Civil Litigation Practic.e

The firm's civil litigation practice covers the entire range of litigation services, at both the trial and
appellate level, and in both state and federal courts. Central to the firm's litigation practice is the
defense of civil cases involving tort claims, including personal injury and wrongful death, fraud,
defamation, violation of civil rights, invasions of privacy, assault and battery, and other tort matters.
Other areas within which the firm has represented litigants include business contract disputes;
employment law matters; real estate disputes; non-competition and restrictive covenant issues;
construction defects, product liability matters, professional liability defense; personal injury claims;
unfair competition allegations; disputes between partners or shareholders; defense of Americans with
Disabilities Act claims; and securities fraud matters.
Clients for whom the firm provides litigation services include local governmental entities;
insurance companies (both in representing a company itself, and in representing insureds through
policies provided by a company); major businesses; small businesses; and individuals. The
litigation service provided to each client combines a skillful and aggressive advocacy with an
emphasis on achieving the best possible result; which is often not the same thing as an ultimate
though pyrrhic victory. In serving clients, the firm puts much emphasis on alternate methods of
dispute resolution such as mediation, and on preventive counseling to avoid controversies.

The civil litigation practice group is headed by Jon Giffen. The other attorneys in the group are
Crystal Gaudette, Bob Simpson, Ryan Donlon, Phil Rucker and Asha Subas. Each of these
attorneys practice exclusively in the area of litigation.

The Organizational and Transaction Practice

Legal services within the organizational and transaction practice encompass a wide range of real
estate and commercial transactions, and organizational planning for both for-profit and not-for-
profit entities. Examples of these types of services include development of lease documents for
multi-tenant properties; representation of tenants in lease negotiations; representation of
purchasers or sellers of commercial real estate; representation of borrowers in financing
transactions; formation of business entities such as corporations, partnerships or limited liability
companies, including structure planning to accomplish the organizers' objectives; formation of
not-for-profit organizations, and obtaining tax exempt status; development of joint venture
agreements; development of owner-contractor agreements; business or not-for-profit
organizational restructuring, mergers, or dissolution; intellectual property analysis and
counseling; and employment law counseling.

Clients within this area of practice vary widely, and include major businesses, leading not-for-
profit organizations, entities in various aspects of the health-care field, privately held companies,
family property owning groups, and individual entrepreneurs. For some of these clients, the firm
serves as outside general counsel, providing ongoing direction and legal assistance through
regular contact with the client's business activity. For others, the firm's services are limited to
projects, on request. In all cases, the firm's primary concerns are to help each client make well-
founded business decisions with full information on the relevant legal issues; anticipate, avoid or
resolve problems; and achieve the client's business goals.

The practice in this area is conducted by Nolan Kennedy, Dan Archer, and David Willoughby,
who have focused solely on this type of legal service in their legal careers.

Nolan M. Kennedy has practiced law on the Monterey Peninsula since 1973, primarily in the
areas of business transactions, business and non-profit organizations, real estate and health care
law. He has written and lectured extensively in legal areas, and is co-author on the chapter on
Options in Real Estate Transactions, published by the California Continuing Education ofthe
Bar. In 2015, he was honored by the Monterey County Bar Association with the Gibson Award,
given to recognize legal achievement and distinguished community service. Mr. Kennedy is
active in the local community. He served for six years on the board of the Monterey Peninsula
College Foundation, ending in 2016, with three years as chair of that board. He also is a past
board member of the Monterey County United Way, and was chair of the board for two years. He
has served on a number of other non-profit organizations including the Carmel Bach Festival, the
Monterey Peninsula Chamber of Commerce, and Volunteers in Action. Currently he is a member
of the State Bar of California and the Monterey County Bar Association, for which he served on
the executive committee. Mr. Kennedy is a graduate of Baylor University in Texas and the
University of California Hastings College of the Law. While in law school, Mr. Kennedy
received the Order of the Coif and was a member and managing editor of the Hastings Law

Daniel F. Archer has practiced law on the Monterey Peninsula since 1988. Mr. Archer's practice
covers commercial transactions, including real estate acquisitions, dispositions, development and
leasing, construction, commercial lending and joint ventures, and non-profit organizations. Mr.
Archer is a graduate of California State University at Sacramento (B.S. 1985) and Santa Clara
University School of Law (J.D. 1988). While in law school, Mr. Archer was an editor of the
Santa Clara University Law Review. In 1987-1988, Mr. Archer clerked for The Honorable Nat
Agliano, Presiding Justice of the California Court of Appeal, Sixth District. Mr. Archer is a
member of the National Order of Barristers, is AV (Preeminent) Peer Rated by Martindale-
Hubbell, was awarded the top 1% of American Professionals by The American Registry, and is a
member of the State Bar of California and the Monterey County Bar Associations. Mr. Archer is
active in the local community, and is a member and former board member of the Rotary Club of
Monterey, a former board member and President of Carmel Unified Youth Baseball, a founding
board member of the Monterey Peninsula chapter of the American Heart Association, and a
varsity football coach for Robert Louis Stevenson High School.

Jon R. Giffen has practiced law in Monterey County since 1996 after moving from San
Francisco, where he specialized in civil defense litigation with the firm of Ropers, Majeski, Kohn
& Bentley. Mr. Giffen specializes in all aspects of trial practice in the fields of casualty,
employment, public entity defense, products liability, business and real estate litigation. Mr.
Giffen currently serves on the court-appointed arbitration panels in Monterey, Santa Cruz and
San Benito counties. Mr. Giffen is a graduate of the University of California at Davis and Santa
Clara University Law School. He serves on the Executive Committee of the Monterey County
Bar Association and is a member of the State Bar of California, the Santa Clara Bar Association,
the Northern California Association of Defense Counsel, the Monterey Defense Research
Institute and the Rotary Club of Monterey.
Crystal Mothershead Gaudette is a partner in the civil litigation group, with a broad practice
covering business disputes, employment matters, real estate matters, and public entity defense.
She joined the firm in 2014, after having practiced law for eight years at Wilson, Sonsini,
Goodrich & Rosati, where she handled complex commercial and securities cases involving
allegations of fraud, breach of fiduciary duty, breach of contract, and various business-related
torts; assisted clients in responding to inquiries and investigations by the Securities & Exchange
Commission and the Department of Justice; and conducted internal investigations based upon
whistleblower and shareholder complaints.

Ms. Gaudette has represented companies and individuals throughout the country before federal
and state courts and government agencies, and in alternative dispute resolution. She has
extensive experience in managing issues involving electronic discovery, working with experts,
and resolving cases short of trial by successful motion practice or advantageous settlement. Her
practice also includes pre-litigation counseling and support, and Ms. Gaudette has advised
numerous clients regarding adopting policies and procedures to mitigate litigation risk.

Ms. Gaudette earned her law degree from the University of California, Davis, School of Law in
2006, where she received the Order of the Coif, and was senior articles editor for the U.C. Davis
Law Review. Prior to attending law school, Ms. Gaudette received a Bachelor of Arts degree in
Communications, with a Spanish minor, from the University of California, Santa Barbara, in

Ms. Gaudette was born and raised in Pacific Grove, California, where she currently lives with her
husband and two daughters. She is actively involved in the community, and currently serves on
the boards of Pacific Grove Pony Baseball, and Pacific Grove P.R.I.D.E. (Public Response in
Dollars for Education).

Robert G. Simpson has had a distinguished career in litigation following his graduation from the
University of California Hastings College of Law in 1975. He is best known for his ability to
handle complex civil litigation and the diversity of his litigation skills. Mr. Simpson has handled
complex business litigation cases, product liability and medical fraud cases along with mass torts
with hundreds of clients in a single case. As lead counsel in a medical fraud case, Mr. Simpson
obtained the largest settlement in the history of the United States when his efforts stopped a
scheme that carried out hundreds of unnecessary heart bypass operations at a hospital in Northern
California. As a result of his performance over the years, Mr. Simpson has been admitted to the
American Board of Trial Advocates, recognized as a Top Lawyer in Northern California, and
honored by his peers as a premier performing lawyer for the last twenty-five years. Mr. Simpson is
very involved with Pebble Beach AT&T Pro Am which gives millions of dollars to local charities
each year. In addition, he is vice chairman of The First Tee of Monterey County and works
tirelessly on its behalf. He is dedicated to the youth of Monterey County and is very proud of the
contributions made to this area by The First Tee's educational and social programs providing
Monterey County youths with life skills that will assist them at every level of their life.
David A. Willoughby is a native of Monterey and has practiced law on the Monterey Peninsula
since 1981. His practice focuses primarily in the areas of business and commercial transactions,
business entity formation and operation, real estate transactions and development, and public entity
representation. He is a graduate of the University of California at Santa Barbara (B.A. in Law and
Society 1978) and the University of California at Berkeley's Boalt Hall School of Law (J.D. 1981).
Mr. Willoughby served on the Executive Committee of the Monterey County Barristers and as its
President; as a delegate to the California State Bar Conference of Delegates including a term as
Chair of the Monterey delegation; and as a member of the Executive Committee of the Monterey
County Bar Association. He has also served on the Legal Committee Steering Group for the
Airport Council International -North America and is a founding member of the California Airport
Attorneys Roundtable. He has lectured to professional associations on topics including
transparency in government and ethics in public entity representation. Mr. Willoughby has
continuously maintained active involvement in the local community by participating as a volunteer
at air shows, golf tournaments, food and music festivals, and other local charitable events. He has
served on the Board of Directors of the Sports Car Racing Association of the Monterey Peninsula
and the Monterey Bay Area Council of the Boy Scouts of America. Mr. Willoughby served as a
member of the Monterey County Civil Grand Jury in 2009 and 2010.

Ryan C. Donlon is admitted as an attorney in California (2003) and as a solicitor in England and
Wales (2010). He uses negotiation, mediation, litigation, arbitration, and appeals to resolve a
range of issues (from real estate to maritime, including business and contractual disputes,
governmental regulatory actions, personal injury, and agricultural and environmental matters) for a
diverse clientele (from government to the private sector, including property and business owners,
insurance underwriters, financial institutions, local municipalities, and regional agencies).

To prepare himself for that practice, Mr. Donlon studied political science at the University of
California, Los Angeles (B.A. 2000) and law at Santa Clara University (J.D. 2003). Mr. Donlon
subsequently pursued advanced legal curricula with the University of London (LL.M. 2009),
receiving a Masters of Law in Business Law, a Postgraduate Degree in Alternative Dispute
Resolution, and a Certificate in Maritime Law.

When not advocating for his clients, Mr. Donlon serves on the Board of Directors for the Monterey
County Bar Association, sits on the Committee for Plauning and Strategic Development, and chairs
the Committee on Bench-Bar Relations. He is also a member of the Monterey County Historical

Phil K. Rucker joined the firm's civil litigation practice as an associate in 2016. Prior to joining
the team, Mr. Rucker practiced law for over four years at Wilson Sonsini Goodrich & Rosati in
Palo Alto where he represented clients in complex commercial litigation, securities class actions,
internal FCP A and accounting investigations, and SEC and FINRA investigations. Mr. Rucker's
experience includes navigating clients through the complexities of federal and California state
courts, managing all phases of electronic discovery, resolving issues expeditiously and
economically through motion practice or settlement, and advising on evolving areas of law.
Mr. Rucker is a graduate of the University of California, San Diego (B.A. 2007), and the UCLA
School of Law (J.D. 2011). During law school, Mr. Rucker served as an extern to the Honorable
Stephen V. Wilson of the United States District Court for the Central District of California, and
volunteered at the Legal Aid Foundation of Los Angeles where he assisted clients in connection
with landlord/tenant disputes.

Asha Rita Subas is an attorney with the civil litigation group. She joined the firm in 2015 after
having practiced law for five years at Wilson, Sonsini, Goodrich & Rosati. Over the course of her
career, Ms. Subas has represented a wide variety of clients ranging from Fortune 500 companies to
early stage startups. She has extensive experience litigating complex federal and state cases
involving breach of contract, breach of fiduciary duty, and fraud. In addition, Ms. Subas is well-
versed in navigating government inquires and investigations by the Securities & Exchange
Commission, the Department of Justice, and the Federal Trade Commission.

Ms. Subas earned her law degree from the University of Southern California Gould School of Law
in 2008. Prior to attending law school, Ms. Subas received a Bachelor of Arts degree in History
and Political Science from the University of California, Los Angeles in 2005.