HomeMy WebLinkAbout2009-115
RESOLUTION NO. 2009-115
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING EXECUTION OF AN EMPLOYMENT
AGREEMENT BETWEEN KEITH L. KILMER AND THE CITY OF SAN
BERNARDINO FOR THE POSITION OF CHIEF OF POLICE TO COMMENCE
JUNE 1,2009.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
8 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and
9 directed to execute on behalf of said City the Employment Agreement between Keith L.
10 Kilmer and the City of San Bernardino, which is attached hereto, marked Exhibit "A", and
II incorporated herein by reference as fully as though set forth at length.
12 SECTION 2. The authorization to extend the above-referenced agreement is
13 rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage
14 of this resolution.
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2009-115
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING EXECUTION OF AN EMPLOYMENT
AGREEMENT BETWEEN KEITH L. KILMER AND THE CITY OF SAN
BERNARDINO FOR THE POSITION OF CHIEF OF POLICE TO COMMENCE
JUNE 1,2009.
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
6 and Common Council of the City of San Bernardino at a regular meeting thereof, held on the
7 4th day of May
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,2009, by the following vote, to wit:
Council Members:
ABSTAIN
ABSENT
AYES
NAYS
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13 BRINKER
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ESTRADA
BAXTER
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SHORETT
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KELLEY
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JOHNSON
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MCCAMMACK
Q~h.~
City Clerk
The foregoing resolution is hereby approved this SnI day of
May
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Approved as to form:
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2009-115
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EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 4th day of May, 2009, by and between
the CITY OF SAN BERNARDINO, a charter city ("City"), and KEITH L. KILMER, an individual
("Kilmer").
WHEREAS, the City has a need for the services of a Chief of Police;
WHEREAS, Kilmer is competent, trained, and qualified for the position ofChiefofPolice;
and
WHEREAS, the parties desire to enter into this Agreement to outline the duties and
responsibilities of the parties,
NOW THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. APPOINTMENT. Kilmer is hereby appointed to, and does hereby accept
appointment to, the office of Chief of Police ofthe City of San Bernardino effective June I, 2009.
Such appointment and the effectiveness ofthis Agreement are contingent upon Kilmer's successful
completion of the following required clearances: (a) Medical! Psychological Clearances pursuant
to Government Code section 1031 (1)(1 ),(2) and 11 Cal.Code Regs., sections 9050, 9054 and 9055;
(b) Fingerprint Returns! Firearms Clearances pursuant to Government Code sections I029(a), and
1031(c), Penal Code section 832.15(c), 18 USC 922, and 11 Cal.Code Regs., sections 9050 and
9053 (e)(3). If the foregoing required clearances are not successfully completed, this Agreement
and the appointment pursuant hereto shall be null and void.
2. TERM. The initial term of this Agreement shall commence June I, 2009 and
terminate May 31, 2012. Upon the natural expiration of the initial three-year term of this
Agreement, the Agreement will continue on a month-to-month basis and may be terminated upon
thirty (30) days notice, unless this Agreement is amended to establish a new term.
3. TERMINATION. Under the terms ofthis appointment, Kilmer serves as an "at-will"
employee and may be terminated at any time, with or without cause pursuant to the provisions of
the San Bernardino City Charter and this Agreement. Nothing in this Agreement, the San
Bernardino City Charter, any statute, ordinance, or rule shall be construed as creating any vested
right in such appointment or in employment with the City.
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2009-115
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a. If during the initial three-year term of this Agreement, Kilmer is terminated
without cause, he shall be entitled to severance pay equal to six (6) months of his then current salary
and he shall be entitled to compensation for any accrued and unused leave per Resolution No. 2007-
345 as amended or its successor. The severance payment shall be conditioned !Ipon Kilmer
executing a separation agreement providing a release and waiver of any and all claims against City,
its officers, employees, and agents arising out of Kilmer's employment with City and the
termination thereof. The severance payment shall be Kilmer's sole and exclusive remedy for
termination without cause.
b. If during the term ofthis Agreement, Kilmer is terminated for oause, Kilmer
shall have a right to a hearing before the Mayor in accordance with Section 180 of the San
Bernardino City Charter, which authorizes the Mayor to discharge the Chief of Police for cause,
subject to the laws of the State of California. In the event Kilmer voluntarily resigns his position
with the City, then Kilmer shall give City thirty (30) days written notice in advance ofthe effective
date of his resignation, unless the parties otherwise agree. Kilmer shall have no' right to any
severance payment, and shall only be entitled to compensation for any accrued and unused leave
per Resolution No. 2007-345 as amended or its successor, upon the occurrence of any of the
following events: (i) upon mutual written agreement by the parties to terminate this Agreement;
(ii) upon Kilmer's voluntary resignation; (iii) upon the death of Kilmer; (iv) upon termination of
the Agreement after the natural expiration of the initial three-year term; or (v) upon Kilmer's
termination for cause.
c. For purposes ofthis section, "cause" is defined as: (i) a willful breach ofthis
Agreement, (ii) neglect or lack of loyalty in the performance of the Chief of Police duties, or (iii)
any acts of dishonesty, fraud, misrepresentation, or other acts of moral turpitude. For purposes of
this section, "loyalty" is defined as the duty of the Chief of Police to avoid fraud, bad faith,
usurpation of city government opportunities, and self-dealing.
4. SALARY. Kilmer's annual base salary for his services as Chief of Police shall be
determined in accordance with Section 186 ofthe San Bernardino City Charter. This annual base
salary shall be payable bi-monthly at the same time as other city employees.
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5. VOLUNTARY 10% "GIVEBACK." In recognition of the extraordinary financial
issues facing the City of San Bernardino and other local governments, and consistent with the
sacrifice made by other city department heads, Kilmer has voluntarily agreed to give back ten
percent (10%) of his salary in accordance with Resolution No. 2009-35, until June 30, 2010. If the
City restores the 10% concession provided by employees in the Management/Confidential Group
per Resolution No. 2009-35, or any portion thereof, prior to June 30, 2010, the 10% voluntary
"giveback" provided herein by Kilmer shall also be commensurately restored.
6. FRINGE BENEFITS. Kilmer shall be entitled to the benefit package established for
police safety management employees in the Management/Confidential Group, including but not
limited to, health, dental, vision, leave, retirement, long-term disability coverage, life insurance,
uniform allowance, education incentive pay, and other benefits as provided in Resolution No. 2007-
345 as amended or its successor.
a. For purposes of "vacation leave," Kilmer shall be provided an initial bank of
one hundred (100) hours of vacation leave and shall be given credit for twenty (20) years of
continuous service for purposes of accruing vacation leave per Resolution No. 2007-345 as
amended or its successor. Kilmer may sell back to the City up to forty (40) hours of vacation leave
each year, upon notice to Finance Director on or before August I st, with payment to be received in
September and compensation to be calculated using the June 30th rate.
b. Kilmer shall have the right to the use of a city-owned and maintained vehicle,
or in the alternative, to receive a vehicle reimbursement allowance in accordance with Resolution
No. 2006-428 as amended or its successor. Kilmer shall make an election within a reasonable
period of time after the beginning of the term of this Agreement between the use of a city-owned
vehicle or the vehicle reimbursement allowance. Such election shall be final for the term of this
Agreement.
7. INITIAL UNIFORM & EQUIPMENT STIPEND. No later than June IS,
2009, Kilmer shall receive a one-time stipend of One Thousand Two Hundred Dollars ($1,200) to
pay for expenses associated with the initial purchase of uniform and equipment for his employment.
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TEMPORARY HOUSING & RELOCATION ASSISTANCE.
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consideration of the cost and expense Kilmer will incur for temporary housing in the City of San
Bernardino during the initial months of his employment, the City shall provide Kilmer a one-time
stipend of Five Thousand Dollars ($5,000) for temporary housing assistance no later than June 15,
2009. In consideration of the cost and expense Kilmer will incur to relocate his permanent
residence to the City of San Bernardino, the City shall provide Kilmer a one-time stipend of Five
Thousand Dollars ($5,000) for relocation assistance no later than September 1,2009. Payment of
the stipends set forth in this section is contingent upon Kilmer establishing his residence within the
boundaries ofthe City of San Bernardino. Iffor any reason this Agreement is ended prior to June I,
2010, or if for any reason during the term of this Agreement Kilmer establishes his residence
outside the boundaries of the City of San Bernardino, then Kilmer shall repay City the entire
relocation assistance stipend.
9. MOONLIGHTING. Kilmer will focus his professional time, ability, and
attention on City business during the term of this Agreement. To the extent consistent with
applicable law, Kilmer shall not engage in any other business duties or pursuits whatsoever or,
directly or indirectly, render any services of a business, commercial, or professional nature to any
other person or organization, whether for compensation or otherwise, except that the expenditure
of reasonable amounts oftime not in conflict with the City's needs and interests, for educational,
and professional activities, shall not be deemed a breach ofthis Agreement. This Agreement shall
not be interpreted to prohibit Kilmer from making passive personal investments, occasional
teaching at a local institution of higher education, or conducting private business affairs if those
activities do not materially interfere with the duties of the Chief of Police or create conflicts of
interest. Kilmer may also participate in charitable and community activities except that he shall not
provide legal advice or representation in the course of participating in these activities.
10. PRACTICE OF LAW. The parties understand and acknowledge that Kilmer
is a member of the Bar ofthe State of California, and that such legal training is beneficial for a chief
of police, but that Kilmer shall obtain official legal advice or opinions applicable to the
San Bernardino Police Department from the District Attorney or the City Attorney, depending on
their respective area of expertise.
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ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties. Any correspondence, letters, documents, or discussions leading up to this
Agreement which deal with the terms contained herein are superseded by this Agreement.
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SEVERABILITY. If any part ofthis Agreement is in conflict or inconsistent
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with the applicable provisions offederal, state, or city statutes, or it is otherwise held to be invalid
or unenforceable by any court of competent jurisdiction, such part or provision shall be suspended
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and superseded by such applicable law or regulations, and the remainder of this Agreement shall
not be affected thereby.
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AMENDMENT. This Agreement may only be amended by a written
10 agreement executed by the parties, and may not be amended by oral agreement.IN WITNESS
11 WHEREOF, the parties hereto have executed this Agreement on the day and date first shown.
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ATTEST:
CITY OF SAN BERNARDINO
By: ~"-J..,j h. ~
Rach Clark, Ctty Clerk
B~~
Pa . ck . Morris, or
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APPROVED AS TO FORM:
KEITH L KILMER
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es F. Penman, City Attorney
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