AND GENERAL RELEASE OF ALL CLAIMS
This Separation Agreement and General Release of all claims is made by and between
Jan Kaay (“Ms. Kaay”) and the Luther Burbank School District, a California public
entity, and the members of the Luther Burbank School District Board of Education, in their
official and individual capacities (collectively referred to as “the District”).
1. Ms. Kaay is currently employed by the District as Superintendent. The District
and Ms. Kaay have mutually agreed that she will voluntarily resign effective April 30, 2014.
2. The District and Ms. Kaay desire to settle fully and finally any existing or
potential differences between them including, without limitation, all tort, contractual,
discrimination, statutory and common law claims related in any way to Ms. Kaay’s
employment with and/or her separation from employment with the District. The District
agrees to provide the consideration herein to Ms. Kaay in return for her agreement to the
terms of this Separation Agreement and General Release of All Claims (“Agreement”).
1. In consideration for this Agreement:
a. Unless she exercises her option to revoke this Agreement in Paragraph
8(g), the District agrees to pay Ms. Kaay one-twelfth (1/12th) of the annual salary paid her
during the 2013-2014 school year each month from May 2014 through and including April
2015, on regular pay dates, less ordinary withholding.
b. Ms. Kaay’s regular District-provided health and welfare coverage will
cease effective April 30, 2014. If Ms. Kaay elects COBRA coverage, the District will
contribute toward the premium cost for healthcare coverage during the twelve months of May
2014 through and including April 2015, in the same amounts it would have paid had Ms.
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Kaay been regularly employed. Ms. Kaay will be required to pay her portion of the premium
no later than the 20th day of the month for the next month, or else the coverage premium for
her for that month will not be paid. If Ms. Kaay chooses to continue COBRA coverage after
April 2015, it will be at her own expense and in accordance with the rules established by the
c. Ms. Kaay shall prepare, execute, and submit a voluntary and
irrevocable letter of resignation from employment with the District with an effective date of
no later than April 30, 2014. Such irrevocable letter of resignation shall be received
coincident with the executed copy of this Agreement to be effective. Notwithstanding Ms.
Kaay’s resignation, the District agrees to not contest any claim she may submit to the
Employment Development Department seeking unemployment insurance benefits.
d. Ms. Kaay acknowledges and agrees that the consideration specified in
subparagraphs (a) and (b) above shall be the exclusive amount of consideration in exchange
for this Agreement.
e. The parties agree that there are no disputed compensation issues
between them. The parties agree further that this Agreement is intended by the parties to
satisfy, settle, extinguish, and waive any and all claims between the parties to the full extent
permitted by law, including any disputes regarding whether Ms. Kaay was compensated
properly, reimbursed for expenses, or received payment of any other kind that Ms. Kaay may
have claimed or had as a result of her employment with the District. Ms. Kaay agrees that
she shall not seek in any forum at any time any additional compensation or consideration
from the District, including, but not limited to, interest, attorney fees, penalties, or
f. Ms. Kaay acknowledges and agrees that the District has made no
representations to her regarding the tax consequences of the consideration received by her
pursuant to this Agreement. Ms. Kaay shall be responsible for federal or state taxes that are
required by law to be paid with respect to this Agreement. Ms. Kaay agrees to indemnify the
District for any required payment of Ms. Kaay’s tax obligation that she failed to make and
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any related assessed interest and/or penalties.
g. Ms. Kaay agrees to waive and relinquish any claim of a right to
employment or reemployment with the District under any legal theory, based in either statute
or common law. In addition, Ms. Kaay agrees to not seek employment with the District at
any time in the future and that in the event she submits an application for employment the
District may reject the application based on this Agreement.
h. Ms. Kaay agrees to return all District property in her possession on or
before April 30, 2014, including, but not limited to: electronic equipment, computers, keys,
District credit cards, and any and all confidential or proprietary materials, files (electronic
and/or paper), contracts, and work documents owned by the District, whether in hard-copy or
any electronic format.
2. Ms. Kaay represents that she does not currently have pending against the
District, or against any of the Members of the District Board of Trustees, in their official
and/or individual capacities, employees, agents, supervisors, managers, representatives,
successors and assigns and all persons acting by, through, under, or in concert with any of
them acting on behalf of the District any claim, charge, complaint, or action in or within any
federal, state or local court or administrative agency.
3. Ms. Kaay and the District hereby mutually agree that all rights either may have
under section 1542 of the Civil Code of the State of California are hereby waived. Section
1542 provides as follows:
“A general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time
of executing the release, which if known by him or her must
have materially affected his or her settlement with the debtor.”
4. Notwithstanding the provisions of section 1542 of the Civil Code of the State
of California, Ms. Kaay and the District each and without limitation hereby irrevocably and
unconditionally releases and forever discharges the other, including Members of the District
Board of Trustees, in their official and/or individual capacities, the employees, agents,
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supervisors, managers, representatives, successors and assigns, and all persons acting by,
through, under, or in concert with any of them acting on behalf of the District, from any and
all charges, complaints, claims, causes of action, debts, sums of money, controversies,
agreements, promises, damages and liabilities of any kind or nature whatsoever, both at law
and equity, known or unknown, suspected or unsuspected (hereinafter referred to as “claim”
or “claims”), including without limitation any claims incidental to or arising out of Ms.
Kaay’s employment with the District, or her separation therefrom. This provision is intended
by the parties to be all encompassing and to act as a full and total release of any claim that
may lawfully be waived, whether specifically enumerated herein or not, that either party may
or might have or has had, that exists or ever has existed on or to the last date this Agreement
has been signed, without regard to whether that claim is based on any alleged breach of a
duty arising in contract or tort; any alleged unlawful act, any other claim or cause of action;
and regardless of the forum in which it might be brought. It is expressly understood by Ms.
Kaay that the various rights and claims being waived in this release include, but are not
limited to, those arising under the California Education Code, the Civil Rights Act of 1964,
as amended (42 U.S.C. § 2000e, et seq.), the Equal Pay Act of 1963 (29 U.S.C. § 206), the
Americans with Disabilities Act (42 U.S.C. §12101, et seq.), the Age Discrimination in
Employment Act of 1967 (29 U.S.C. § 621, et seq.), the Family Medical Leave Act of 1993
(29 U.S.C. § 2601, et seq.), and the California Fair Employment and Housing Act (Cal.
Government Code § 12900, et seq.).
5. This Agreement and compliance with this Agreement shall not be construed as
an admission by the District of any liability whatsoever, or as an admission by the District of
any violation of the rights of Ms. Kaay, or the violation of any order, law, statute, duty, or
contract whatsoever. The District specifically disclaims any liability to Ms. Kaay for any
alleged violation of the rights of Ms. Kaay, or for any alleged violation of any order, law,
statute, duty, or contract on the part of the District or its employees or agents.
6. This Agreement shall be binding upon the parties hereto and upon their heirs,
administrators, representatives, executors, spouses, successors, and assigns, and shall inure to
the benefit of said parties and each of them and to their heirs, administrators, representatives,
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executors, spouses, successors, and assigns. Each party expressly warrants that she/it has not
transferred to any person or entity any rights or causes of action, or claims released by this
7. Ms. Kaay agrees that she will now and forever keep the existence and
economic provisions of this Agreement completely confidential, and that she shall not
disclose such to any other person directly or indirectly. As the exclusive exceptions to the
foregoing, Ms. Kaay may disclose the terms of this Agreement to her spouse, attorney, tax
advisor, and accountant who shall each be advised of its confidentiality. Notwithstanding the
foregoing, Ms. Kaay may make such disclosures of the terms of this Agreement as are
required by law or as necessary for legitimate enforcement purposes.
The District hereby discloses that it has statutory responsibilities under the Ralph M.
Brown Act and the Public Records Act with which the District must fully comply if required.
Notwithstanding the foregoing, the District has no intent to disclose information concerning
this Agreement that is not required by law. To the maximum extent permitted by law, the
District agrees that it will keep the terms of this Agreement confidential, and that it shall not
disclose such to any other person directly or indirectly unless required to do so by legitimate
internal business purposes, law, or as necessary for enforcement purposes. In the event the
District is required to disclose a copy of this Agreement under the terms of the Ralph M.
Brown Act or the Public Records Act, such compelled disclosure shall not release Ms. Kaay
from her confidentiality obligation pursuant to this Agreement.
8. Ms. Kaay understands and agrees that she:
a. Was informed that she has a full twenty-one (21) days within which to
consider this Agreement before executing it;
b. Has carefully read and fully understands all the provisions of this
c. Is, through this Agreement, releasing the District from any and all
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claims she may have against the District that may have existed as of the date of this
Agreement and including her separation from employment;
d. Knowingly and voluntarily agrees to all of the terms set forth in this
e. Knowingly and voluntarily intends to be legally bound by same;
f. Was hereby advised to consider the terms of this Agreement and
consult with an attorney of her choice prior to executing this Agreement, which Ms. Kaay
acknowledges that she did;
g. Has a full seven (7) days following the execution of this Agreement to
revoke this Agreement and has been and hereby is advised in writing that this Agreement
shall not become effective or enforceable until the revocation period has expired;
h. Understands that rights or federal age discrimination claims under the
Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621, et seq.) that may arise
after the date of this Agreement is executed are not waived.
9. Ms. Kaay agrees to refrain from making any statements in any format, whether
written, electronic, or oral, publicly or privately, live or recorded by any means, to the press
or any other individual or entity about the District, the Members of the Board of Trustees,
individually or collectively, the employees, agents, supervisors, managers, representatives,
successors and assigns, and all persons acting by, through, under, or in concert with any of
them acting on behalf of the District, that would disparage, or reflect negatively upon, or be
considered derogatory toward the image or reputation of any of the foregoing individuals or
entities. Notwithstanding the foregoing, statements made in the course of sworn testimony in
legal proceedings, otherwise privileged, or other statements required by law shall not be
subject to this subsection.
The District agrees to refrain from making any statements in any format, whether
written, electronic, or oral, publicly or privately, live or recorded by any means, to the press
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or any other individual or entity about Ms. Kaay that would disparage, or reflect negatively
upon, or be considered derogatory toward her image or reputation. Upon request of any
prospective employer, the District agrees to confirm her employment as District
Superintendent, to provide the dates of her employment, and, upon request, to confirm her
final annual salary amount. Notwithstanding the foregoing, statements made in the course of
sworn testimony in legal proceedings, otherwise privileged, or other statements required by
law shall not be subject to this subsection.
10. Any dispute arising between Ms. Kaay and the District pertaining to the
formation, validity, interpretation, effect, compliance, or alleged breach of this Agreement
(hereinafter referred to as “Arbitrable Dispute”) is not waived by this Agreement and will be
submitted to binding arbitration in Santa Clara County, California. The parties agree to
submit any such dispute to binding arbitration pursuant to the Employment Arbitration Rules
and Procedures of JAMS, http://www.jamsadr.com/rules-employment-arbitration/, subject to
any limitations period provided in such rules or by law. The parties agree that such
arbitration shall be the exclusive remedy for any Arbitrable Dispute arising out of this
Agreement, and hereby expressly waive any right they have or may have to a jury trial of any
dispute arising out of this Agreement. The costs of arbitration, such as the arbitrator’s fees,
costs of a court reporter and room rental fees, if any, shall be paid by the employer. Any
remaining fees and costs, including, but not limited to attorneys’ fees shall be borne by each
party to the same extent as that party would be responsible for such fees and costs should the
matter be litigated in court, subject to any remedy provided by the arbitrator to which the
prevailing party may be entitled under the law. At the time of issuing the Arbitrator’s award,
the Arbitrator shall, in the award or separately, make specific findings of fact, and set forth
such facts in support of the Arbitrator’s decision, as well as the reasons and basis for the
11. This Separation Agreement and General Release of All Claims incorporates
the entire understanding and agreement among the parties, and recites the sole considerations
for the promises exchanged herein. In particular, the parties agree that this Agreement shall
extinguish and supersede any rights Ms. Kaay may have under any other agreement between
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the District and Ms. Kaay, oral or written, that may have ever existed. In reaching this
Agreement, no party has relied upon any representation or promise except those expressly set
forth herein. This Agreement shall in all cases be interpreted in accordance with its fair
meaning, and not strictly for or against either party hereto. The parties hereby agree that if
any provision of this Severance Agreement and Release is found to be unenforceable, it will
not affect the enforceability of the remaining provisions and the Court may enforce all
remaining provisions to the extent permitted by law.
12. Two (2) originals of this Agreement shall be executed by the parties. Upon
being fully executed, Ms. Kaay shall retain an original Agreement and the District shall retain
an original of the Agreement. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. The parties agree that signatures on this Agreement transmitted via facsimile
have the same force and effect and are considered the same as originals.
ON BEHALF OF THE LUTHER ON BEHALF OF JAN KAAY
BURBANK SCHOOL DISTRICT
Lorraine Garza Jan Kaay
President, Board of Trustees
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