Allen ISD Settlement Agreement With PBK and Pogue Construction

679670 - Dec Settlement and Release Agreement

SETTLEMENT AND RELEASE AGREEMENT

This Settlement and Release Agreement (hereinafter “Settlement Agreement”) is

made, by and between, on the one hand, Allen Independent School District, by and

through its Board of Directors acting by and through their Board President (collectively

“AISD”), and on the other hand, PBK Architects, Inc. (“PBK”), Pogue Construction Co.,

LP and Ben Pogue, LC (collectively Pogue Construction Co., L.P. and Ben Pogue, LC

may be referred to as “Pogue”). (Collectively PBK and Pogue may be referred to as

“PBK/Pogue Parties”). (AISD and PBK/Pogue Parties are collectively referred to as the

“Parties”.) Except as otherwise stated herein, this Release is intended to be a release of

any and all claims or allegations asserted or which could have been asserted, formally or

informally, by or on behalf of AISD against PBK and/or Pogue, or by or on behalf of

PBK and/or Pogue against AISD, in relation to the design and/or construction and/or

repairs of the Allen Eagle Stadium located at or near the street address of 301 Rivercrest,

Allen, Texas, 75069 (the “Stadium”). This document is not intended as a release of any

claims by PBK against Pogue or by Pogue against PBK. Accordingly, except as

otherwise stated below, AISD agrees to settle all of its allegations and claims against

PBK and Pogue, and Pogue and PBK agree to settle all of their allegations and claims

against AISD, in accordance with the terms and conditions set forth herein with reference

to the following:

RECITALS

A. On or about October 13, 2008, AISD retained PBK to provide

architectural, structural, MEP and civil design services related to the Stadium. The

Agreement by which AISD retained PBK is referenced herein as the “PBK Agreement”.


B. On or about June 7, 2010, AISD retained Pogue Construction Co., LP

(“Pogue Construction”) as Construction Manager for the construction of the Stadium.

The Agreement by which AISD retained Pogue Construction is referenced herein as the

“Pogue Agreement”. Pogue Construction retained various subcontractors to perform the

construction of various aspects of the Stadium.

C. The construction of the Stadium was substantially completed shortly

preceding the 2012 football season. When cracks were noticed in the concourse level

concrete, counsel for AISD retained Nelson Architectural Engineers (“NAE”) to conduct

studies relating to the cause and the extent of the cracking. NAE retained DRP

Consulting, Inc. (“DRP”) to perform a petrographical investigation as to the causes of the

cracking in the concrete.

D. On or about January 15, 2014 NAE issued a preliminary report as to

causes of cracking in the concourse, to which it attached the report of DRP. (The NAE

preliminary report and DRP petrographic investigation report are referenced herein as the

“140115 Preliminary Report”). Any preliminary reports issued by NAE are incorporated

as though fully set out herein. On or about January 28, 2014 Mark Walsh, counsel for

AISD, forwarded a demand letter to PBK and Pogue Construction to which he attached

the 140115 Preliminary Report. On or about February 13, 2014, NAE issued a report

commonly referred to as the “140213 Preliminary Report” to PBK and Pogue

Construction regarding its analysis of the Stadium. The 140213 Preliminary Report

recommended that the concourse area not be utilized for purposes of assembly while

NAE’s investigation continued.

E. On or about April 2, 2014 NAE issued a report referred to as the “140402


Report.” In it NAE recommended that the “concourse level of the structure not be

utilized for purposes of assembly” until certain issues contained in the 140402 Report

were resolved.

F. PBK, Pogue Construction, and AISD agreed to a series of meetings to

evaluate the Stadium and possible methods to expeditiously and efficiently resolve any

and all design and construction issues so that the Stadium could re-opened as promptly as

possible. (The “Evaluation Meetings”.)

G. At or about the same time, DATUM Engineers, Inc. (“DATUM”) was

hired to design any and all necessary repairs to the Stadium on behalf of AISD. DATUM

conducted its own forensic evaluation of the as-built condition of the Stadium,

architectural and structural plans for the original construction of the Stadium, and other

documents regarding the Stadium. DATUM also retained Ron Reed of Reed Engineering

Group to provide a geotechnical investigation. On or about August 8, 2014 Ron Reed

issued his report to DATUM. (The “Reed Report”)

H. DATUM, on behalf of AISD, prepared plans and specifications for the

repair of the alleged damages to the Stadium.

I. PBK and Pogue Construction, without certainty at the time as to the

respective liability, if any, between them, and in an effort to comply with their warranty

obligations to AISD, if any, proceeded to repair the alleged damages as determined by

DATUM and NAE to the Stadium according to repairs designed by DATUM. A letter

was provided to AISD informing AISD of Pogue Construction and PBK’s decision.

J. Seven work packages were issued for the repair of the Stadium. The

structural plans for the repairs were prepared by DATUM. The architectural plans for the


repairs, as necessary, were prepared by PBK at no cost to AISD. (The structural and

architectural plans are referenced as the “Repair Construction Documents.”) The

construction of the repairs was managed by Pogue Construction at no cost to AISD.

K. The seven bid packages (“Bid Packages”) for repairs prepared by

DATUM and/or PBK are summarized below but are more particularly defined by the

Repair Construction Documents issued with respect to each respective Bid Package:

(1) The scoreboard at the southern end of the Stadium;

(2) The “low rise” lateral bracing, including but not limited to the

“ticket towers”;

(3) The basement wall (retaining wall) at the “event level” of the

Stadium;

(4) The press box;

(5) The transfer girders, expansion joints, and one story gravity

systems;

(6) Concourse structure and steel subframe; and

(7) Concourse traffic coating.

L. On or about August 19, 2015 DATUM issued a letter to Greg Suttle,

Executive Director of Facilities at Allen ISD, confirming the life-safety work on the first

six bid packages was complete and in general accordance with the Contract Documents.

M. DATUM has indicated that the original grout installed by subcontractors

of Pogue Construction at the base of certain handrails (to be specified by DATUM prior

to repairs) includes gypsum-based grout. It has been alleged that this grout has caused

and is continuing to cause corrosion of the zinc-galvanized handrails embedded in that


grout.

N. In the course of analyzing, repairing and closing the Stadium, AISD

claims to have incurred professional fees and other damages and has requested

reimbursement of the same from Pogue Construction and PBK. In timely complying

with the terms of this Agreement, PBK and/or Pogue Construction will have paid all

amounts alleged to have been incurred by Allen ISD in the evaluation of the Stadium,

development of the Repair Construction Documents, construction testing and inspections,

attorney fees, as well as all amounts alleged to have been incurred by AISD in relation to

the closing of the Stadium through the date of execution of the Agreement.

O. Any demand letter from AISD to Pogue Construction or PBK, the Reports

and Preliminary Reports, the Repair Construction Documents, the estimates of Expenses

and revenue loss claimed and provided or shown by AISD to Pogue Construction and

PBK, and any potential legal action by and between AISD on the one hand and Pogue or

PBK on the other hand, including but not limited to mediation, arbitration or litigation,

whether or not pursued, are referenced herein as the “Proceedings.”

P. The parties have denied the allegations asserted by the party(s) opposing

them at all times leading up to the execution of this Agreement.

Q. The parties desire to settle, pursuant to the terms and conditions set forth

herein below, all claims alleged or which could have been alleged in the Proceedings, or

through any claim by and between the Parties arising out of or relating, directly or

indirectly, to the Stadium or any of the Proceedings. The settlement of the above-

described claims and disputes, including all negotiations leading to the settlement, the

payment of consideration therefore and the contents of this Agreement are not intended to


constitute and shall not constitute any admission or concession of any kind by any party

as to such claims and disputes. The parties hereby acknowledge that the foregoing claims

and disputes all involve arguable and disputed questions of fact and law, and they now

wish fully and finally to compromise and settle such claims and disputes. The parties

desire to settle to avoid the expense of litigation and to resolve all claims that were

alleged or might have been alleged in the Proceedings. It is expressly understood by all

parties both Pogue and PBK have performed, are performing, and may in the future

perform projects for AISD other than the Stadium project. In fact, the PBK Agreement

contains a scope of work extending to projects other than the Allen Stadium project –

those projects are not intended to be in any way addressed through this Agreement.

Regardless of any language to the contrary herein, THE PARTIES UNDERSTAND

AND AGREE THAT ONLY THOSE CLAIMS RELATED TO OR ARISING OUT OF

THE STADIUM PROJECT ARE INTENDED TO BE DISPOSED OF THROUGH

THIS AGREEMENT. Therefore, in consideration of the mutual covenants and promises

contained herein, and for other good and valuable consideration, the receipt and

sufficiency of which are hereby acknowledged, the parties agree as follows:

Section 1. Consideration

In consideration of the execution of this Release Agreement by each of the other

Parties, the Parties have agreed to the following terms:

A. PBK and Pogue shall collectively pay the total sum of $500,000.00, said

sum representing the remaining expenses and costs alleged to have been incurred by

AISD as a result of the alleged property damage to the Stadium, on or before December

31, 2015, other than that incurred in relation to handrails after the execution of this


Agreement; and

B. Pogue shall pay an additional $600,000.00* to AISD as follows:

i. $300,000.00 by April 30, 2016; and

ii. $300,000.00 by April 30, 2017; and

C. PBK shall pay an additional $600,000.00* to AISD as follows:

i. $300,000.00 by April 30, 2016; and

ii. $300,000.00 by April 30, 2017;

D. PBK and Pogue shall promptly reimburse AISD for attorney fees incurred

in relation to the preparation of this Release from September 9, 2015 through the date of

execution.

*By paying these amounts the parties do not admit to liability or any certain percentage of liability. These amounts are being paid by the respective parties to resolve this dispute and without regard to the liability, if any, of each party. E. Without recourse, PBK and Pogue hereby further assign all

manufacturers’ warranties to the District and shall provide to District all additional

documents necessary to effectuate said assignments no later than December 15, 2015.

This assignment includes, but is not limited to, Sika’s 5+5 year warranty on the

concourse level traffic topping.

F. Pogue and PBK agree that grout utilized in connection with the handrails

which caused or is causing damage to the Stadium, to be specified by DATUM as

necessary, will be removed and replaced with the grout reasonably specified by DATUM

in their report of July 15, 2015 at no cost to the District. Moreover, handrails that require

repairs that had been seated in said grout and specified by DATUM will be repaired at no


cost to the District. All such handrail-related repairs must be made promptly following

the conclusion of the 2015 Allen ISD football season at a mutually agreeable time, but in

no event later than May 1, 2016, so long as DATUM provides its opinion on the

reasonable scope of the repairs to the existing handrails (i.e., which may include no

repair, a mere cleaning or cleaning and re-galvanizing, cut and re-welded then

galvanized, replacement, or other reasonable methods of repair) with reasonably

sufficient time to complete the repairs of the handrails prior to May 1, 2016. All

reasonable costs incurred in connection with this handrail repair and/or replacement

process, including but not limited to attorneys’ fees and engineering fees, shall also be

paid by Pogue and/or PBK in accordance with the terms of a separate agreement between

Pogue Construction and PBK.

Section 2. Release of Claims

(A) Expressly conditioned upon the timely receipt of all payments by

PBK contemplated by this Agreement, Allen Independent School District (the “District”),

by and through its Board President who is duly authorized by the Board of Directors to

execute this document on their behalf and on behalf of the District, and on behalf of each

of its employees, affiliates, agents, servants, attorneys, accountants, insurers, successors,

heirs and assigns, does hereby release and forever discharge, PBK Architects, Inc.

(“PBK”), and each of its respective past and present officers, directors, shareholders,

partners, affiliates, subsidiaries, servants, accountants, attorneys, insurers, contractors,

subcontractors, employees, architects and engineers (including, but not limited to Dan

Boggio, AIA, Rick LaPointe, AIA, Fred Montes, AIA, John Kubala, P.E., Kevin Pegues,

P.E., and any other architect or engineer which may have provided professional services


pursuant to the PBK Agreement) subsidiaries, divisions, successors, spouses, siblings,

parents, children, heirs and assigns, including but not limited to their attorneys, M.

Brandon Waddell of Vincent Lopez Serafino & Jenevein, P.C., from any and all claims,

demands, obligations, losses, causes of action, costs, maintenance costs, diminution in

value, incidental damages, consequential damages, loss of expected service life, loss of

revenue, diminishment of the tax base, expenses, attorney's fees and liabilities of any

nature whatsoever, whether based on contract, tort, statutory or other legal or equitable

theory of recovery, whether known or unknown, which the District has, had or claims to

have against any or all of the released parties described above, and which relate to, arise

from, or are in any manner connected to: (i) the allegations asserted in the Proceedings;

(ii) any activity, act or omission relating to: (a) the design of the Stadium, (b) contract

administration services provided, or to have been provided by PBK, or (c) the Stadium

design and administration scope of the PBK Agreement; and (iii) any activity, act, debt or

omission which the District contends or may contend PBK undertook prior to the

execution of this document which relate in any way to the allegations, contentions, or

facts made the basis of the dispute. NOTHING HEREIN SHALL BE

CONSTRUED TO RELEASE PBK FROM ANY PROJECT OTHER

THAN THE STADIUM.

(b) Expressly conditioned upon the timely receipt of all payments by Pogue

contemplated by this Agreement, Allen Independent School District (the “District”), by

and through its Board President who is duly authorized by the Board of Directors to

execute this document on their behalf and on behalf of the District, and on behalf of each

of its employees, affiliates, agents, servants, attorneys, accountants, insurers, successors,


heirs and assigns, does hereby release and forever discharge, Pogue Construction Co., LP

and Ben Pogue, LC (collectively Pogue Construction Co., L.P. and Ben Pogue, LC are

referred to in this paragraph as “Pogue”), and each of its respective past and present

officers, directors, shareholders, partners, affiliates, subsidiaries, servants, accountants,

attorneys, insurers, contractors, subcontractors, employees, subsidiaries, divisions,

successors, spouses, siblings, parents, children, heirs and assigns, including but not

limited to Ben Pogue and Pogue Construction’s attorneys, Ray Murphy and the firm of

Abernathy, Roeder, Boyd & Hullett, P.C., from any and all claims, demands, obligations,

losses, causes of action, costs, maintenance costs, diminution in value, incidental

damages, consequential damages, loss of expected service life, loss of revenue,

diminishment of the tax base, expenses, attorney's fees and liabilities of any nature

whatsoever, whether based on contract, tort, statutory or other legal or equitable theory of

recovery, whether known or unknown, which the District has, had or claims to have

against any or all of the released parties described above, and which relate to, arise from,

or are in any manner connected to: (i) the allegations asserted in the Proceedings; (ii) any

activity, act or omission relating to the construction of the Stadium, the construction

management services provided or to be provided by Pogue, or the Pogue Agreement; and

(iii) any activity, act, debt or omission which the District contends or may contend Pogue

undertook prior to the execution of this document which relate in any way to the

allegations, contentions, or facts made the basis of the dispute. NOTHING HEREIN

SHALL BE CONSTRUED TO RELEASE POGUE FROM ANY

PROJECT OTHER THAN THE STADIUM.


(c) Pogue, on behalf of each of its partners, employees, affiliates, agents,

servants, attorneys, accountants, insurers, successors, heirs and assigns, does hereby

release and forever discharge, Allen Independent School District, and each of its

respective past and present officers, executives, employees, trustees, students,

consultants, engineers (save and except NAE, DATUM, PBK, Hooper Group

Consultants, Ltd. and/or David Hooper, PE), partners, affiliates, subsidiaries, servants,

accountants, attorneys, insurers, spouses, siblings, parents, children, heirs and assigns,

including but not limited to Dr. Lance Hindt and AISD’s attorneys, Mark A. Walsh and

the firm of Saunders Walsh & Beard, from any and all claims, demands, obligations,

losses, causes of action, incidental damages, consequential damages, loss of revenue,

expenses, attorney's fees and liabilities of any nature whatsoever, whether based on

contract, tort, statutory or other legal or equitable theory of recovery, whether known or

unknown, which Pogue has, had or claims to have against any or all of the released

parties described above, and which relate to, arise from, or are in any manner connected

to: (i) the allegations asserted which relate to the Stadium; (ii) any activity, act or

omission relating to the construction of the Stadium or repairs to the Stadium, the

construction management services provided or to be provided by DATUM and/or NAE;

and (iii) any activity, act, debt or omission which the Pogue contends or may contend

AISD undertook prior to the execution of this document which relate in any way to the

allegations, contentions, or facts made the basis of the dispute.

(d) PBK, on behalf of each of its partners, employees, affiliates, agents,

servants, attorneys, accountants, insurers, successors, heirs and assigns, does hereby

release and forever discharge, Allen Independent School District, and each of its


respective past and present officers, executives, employees, trustees, students, consultants

(save and except Pogue), engineers (save and except NAE, DATUM, Hooper Group

Consultants, Ltd. and/or David Hooper, PE), partners, affiliates, subsidiaries, servants,

accountants, attorneys, insurers, spouses, siblings, parents, children, heirs and assigns,

including but not limited to Dr. Lance Hindt and AISD’s attorneys, Mark A. Walsh and

the firm of Saunders Walsh & Beard, from any and all claims, demands, obligations,

losses, causes of action, incidental damages, consequential damages, loss of revenue,

expenses, attorney's fees and liabilities of any nature whatsoever, whether based on

contract, tort, statutory or other legal or equitable theory of recovery, whether known or

unknown, which PBK has, had or claims to have against any or all of the released parties

described above, and which relate to, arise from, or are in any manner connected to: (i)

the allegations asserted which relate to the Stadium; (ii) any activity, act or omission

relating to the construction of the Stadium or repairs to the Stadium, the construction

management services provided or to be provided by DATUM and/or NAE; and (iii) any

activity, act, debt or omission which the PBK contends or may contend AISD undertook

prior to the execution of this document which relate in any way to the allegations,

contentions, or facts made the basis of the dispute.

(e) Pogue and PBK, on behalf of each of their respective partners, employees,

affiliates, agents, servants, attorneys, accountants, insurers, successors, heirs and assigns,

does hereby release and forever discharge, DATUM and NAE, and each of their

respective past and present officers, executives, employees, trustees, students,

consultants, engineers, partners, affiliates, subsidiaries, servants, accountants, attorneys,

insurers, spouses, siblings, parents, children, heirs and assigns, from claims, if any,


relating to the scope of repairs to the Stadium designed by DATUM and NAE through

the date of this Agreement exceeding an appropriate scope. NOTHING HEREIN

SHALL BE CONSTRUED TO RELEASE DATUM OR NAE FROM ANY CLAIM

OTHER THAN THE SCOPE OF THE REPAIR TO THE STADIUM DESIGNED BY

DATUM AND/OR NAE AS OF THE DATE OF THIS AGREEMENT.

(f) Conditions Subsequent. The foregoing releases of PBK and Pogue are full

and complete releases with the exception of claims directly related to handrails or grout

used with the handrails and indemnity obligations that are described in a separate

agreement(s). Upon satisfactory repair of the handrails and grout used with the

handrails, as necessary, the claims related to the handrails and grout used with the

handrails are also released by this Agreement.

Section 3. Confidentiality

The express terms of this Settlement and Release Agreement are not confidential;

however, the Parties agree that all previous communications, which may have been

confidential by agreement or otherwise, shall remain strictly confidential and shall not be

disclosed by any Party to this Agreement. IT IS EXPRESSLY UNDERSTOOD AND

AGREED THAT IN NO WAY IS THIS AGREEMENT INTENDED TO SERVE

AS A WAIVER OF OR INTENTION TO BREACH THE CONFIDENTIALITY

AGREEMENT AND NON-DISCLOSURE AGREEMENT EXECUTED BY

POGUE, AISD, PBK, POTTER STRUCTURES, AND OTHERS, ON OR ABOUT

MAY 6, 2014 AND LATER REAFFIRMED IN OTHER DOCUMENTS -- THAT

CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT REMAINS IN


PLACE AND SHALL NOT BE VIOLATED WITHOUT THE EXPRESS

AGREEMENT OF ALL PARTIES TO THAT AGREEMENT AND SHALL NOT

BE AFFECTED BY THE INTEGRATION CLAUSE CONTAINED IN SECTION 7

OF THIS AGREEMENT.

Section 4. No Release Between PBK and Pogue.

Unless otherwise specified herein, this Agreement is not intended to release and

shall not release any claims or allegations by and between PBK and Pogue.

The manner in which the consideration to be provided as described in Section 1A

is allocated by and between PBK and Pogue shall be determined solely and exclusively

by the PBK/Pogue parties.

Section 5. Warranty of Authority

Each party hereto further represents and warrants that it is fully authorized and

empowered to execute and enter into this Agreement upon the terms stated herein, and

that the signatory to this Agreement signing on behalf of each party is fully authorized

and legally competent to execute this Agreement as the legal, valid and binding act and

deed of such respective party.

Each person who executes this Agreement does hereby represent and warrant to

each other party hereto that he/she/it has the authority to do so, and both individually and

on behalf of the party for whom executed, agrees to indemnify and hold harmless each

other party from any claim that such authority did not exist.

Section 6. Assignments

AISD represents and warrants that the claims released or assigned or purportedly

released or assigned in Section 2 or this Section are currently owned solely by AISD, free


and clear of all liens, encumbrances, pledges, assignments, claims and security interests

of any kind or nature. AISD further represents and warrants that it has the right to assign,

compromise and settle the claims released herein.

Without any party representing that any alleged claims against Hooper Group

Consultants, Ltd. and/or David Hooper, PE have any merit and without recourse to the

AISD, AISD hereby absolutely and irrevocably grants, assigns, transfers and sets over

unto Pogue Construction and PBK, jointly and severally, all rights AISD may have

against Hooper Group Consultants, Ltd., and/or David Hooper, P.E. (collectively

“Hooper”) regarding the Stadium together with all rights, remedies, and advantages to be

derived therefrom. IF POGUE CONSTRUCTION OR PBK OR BOTH ELECT TO

PURSUE POTENTIAL CLAIMS AGAINST HOOPER REGARDING THE

STADIUM, THE RESPECTIVE PARTY PURSUING THE POTENTIAL CLAIMS

AGAINST HOOPER - WHETHER POGUE, PBK OR BOTH - SHALL DEFEND

WITH COUNSEL OF THE DISTRICT’S CHOOSING, HOLD HARMLESS, AND

INDEMNIFY THE DISTRICT FROM AND AGAINST ANY AND ALL LOSS,

JUDGMENT, OR EXPENSE OF ANY KIND, INCLUDING BUT NOT LIMITED

TO ATTORNEYS’ FEES AND ENGINEERING FEES, ARISING OUT OF OR

RELATING TO CLAIMS, LITIGATION, AND/OR PROCEEDINGS OF ANY

KIND RELATED TO THIS ASSIGNMENT OR ANY CLAIMS MADE BY OR

THROUGH SAID ASSIGNMENT.

Notwithstanding any provision herein to the contrary, this assignment is intended,

as to all rights, remedies, advantages, and claims belonging to AISD, to be an absolute

non-recourse assignment from AISD to Pogue Construction and PBK, jointly and


severally, in relation to any acts or omissions of Hooper Group Consultants, Ltd., and/or

David Hooper, P.E. in relation to the Stadium.

Section 7. Integration Clause

This Agreement represents and contains the entire agreement and understanding

among the parties hereto with respect to the subject matter of this Agreement, and

supersedes any and all prior oral and written agreements and understandings (but not the

documents attached hereto as exhibits). No representation, warranty, condition,

understanding or agreement of any kind with respect to the subject matter shall be relied

upon by the parties except those contained herein. This Agreement may not be amended

or modified except by an agreement signed by the party against whom enforcement of

any modification or amendment is sought. Separate indemnity agreements between

AISD and Pogue, as well as AISD and PBK, are being executed contemporaneously with

this Settlement Agreement. Those indemnity agreements shall not be affected by this

integration clause.

Section 8. Representation by Counsel

In entering into this Agreement, the parties each acknowledge and represent that

they have sought and obtained the legal advice of their attorneys, who are the attorneys of

their own choice, or are aware of the opportunity to seek and obtain legal advice from

attorneys of their choice but have elected to not seek additional legal counsel. They

further represent that the terms of this Agreement have been completely read by them,

and that those terms are fully understood and voluntarily accepted by them.

Each party hereto expressly warrants and represents and does hereby state and

represent that no promise or agreement which is not herein expressed has been made to


him or her in executing this release, and that he, she, or it does not rely upon any

statement or representation of any agent of the parties being released hereby. Each party

hereto is relying on his, her, or its own judgment and each has been represented by legal

counsel in this matter or is aware of the right to retain legal counsel of their own choosing

and have elected not to do so. Each party represents that the aforesaid legal counsel has

read and explained to him, her, or it the entire contents of this Release in full, as well as

the legal consequences of this Release or that the party has chosen to forego that

opportunity, being aware that this document has significant legal consequences and

deciding to accept those consequences without assistance of legal counsel. Each party

understands that it is bound by this document and any and all legal consequences thereof

as though an attorney reviewed and advised on the same.

Section 9. Counterparts

This Agreement may be executed in any number of counterparts, each of which

shall be deemed an original, and all of which together shall be deemed one and the same

instrument. Facsimile or electronic signatures shall be considered original signatures.

Section 10. Attorney's Fees

In the event litigation is necessary to enforce a provision or provisions of this

Agreement, all costs, expenses and attorney's fees shall be paid by the non-prevailing

party or parties to the prevailing party or parties.

Section 11. Heirs, Successors and Assigns

This Agreement shall be binding upon and inure to the benefit of the parties'

respective legal heirs, successors and assigns.


Section 12. Severability

Should any portion (word, clause, phrase, sentence, paragraph or section) of this

Agreement be declared void or unenforceable, such portion shall be considered

independent and severable from the remainder, the validity of which shall remain

unaffected.

Section 13. Governing Law and Venue

This Agreement shall be construed under and in accordance with the laws of the

State of Texas. Any dispute arising out of this Agreement shall be determined

exclusively in the District Courts of Collin County, Texas.

Section 14. PUNCH LIST COMPLETION

NOTWITHSTANDING ANY CONTRARY LANGUAGE IN THIS

SETTLEMENT AGREEMENT, ALL OF AISD’S RELEASES AND OBLIGATIONS

HEREIN ARE EXPRESSLY CONDITIONED UPON THE SATISFACTORY

COMPLETION OF EVERY ITEM LISTED ON EXHIBIT A, ON OR BEFORE

DECEMBER 31, 2015, EXCEPT AS STATED ON EXHIBIT A. “SATISFACTORY

COMPLETION” SHALL BE REASONABLY DETERMINED BY DISTRICT AND

CERTIFICATION OF SUCH SATSIFACTORY COMPLETION SHALL NOT BE

UNREASONABLY WITHHELD BY THE DISTRICT.

Section 15. Construing this Agreement

The terms "and" and "or" are used interchangeably or consecutively throughout

this agreement and shall be construed wherever possible to include the meaning

commonly assigned to the terms "and" and "or".

Terms which reflect a male, female or neutral gender are intended to encompass


any gender which may appropriately be included in the context of the agreement.

The terms of this agreement were the subject of negotiations of the parties, with

each party having a free hand in considering and commenting on the terms of this

agreement, and the parties agree that the terminology or phraseology used herein should

not be construed more or less harshly against any one party than the other based upon any

consideration of who drafted or reviewed and revised the document.

[Remainder of page intentionally left blank]


IN WITNESS WHEREOF, this Agreement is executed this ___ day of December, 2015. Allen Independent School District

By: Louise Master, Board President, Allen Independent School District

STATE OF TEXAS § § COUNTY OF COLLIN § Before me, the undersigned authority, on this day personally appeared Louise

Master, Board President for the Allen Independent School District, known to me to be the

person whose name is subscribed to the foregoing instrument, and acknowledged to me

that she executed the same for the purposes and consideration therein expressed, in the

capacity therein stated and as the act and deed of Allen Independent School District and

acknowledged to me that she is authorized to execute the foregoing instrument by the

Board of Directors of Allen Independent School District, which specifically authorized

her to sign this Agreement and to bind Allen Independent School District.

Given under my hand and seal of office on this the _____ day of December, 2015.

_____________________________ Notary Public, State of Texas

_____________________________ Print or Type Notary's Name


IN WITNESS WHEREOF, this Agreement is executed on this ___ day of December, 2015.

PBK Architects, Inc.

By: Dan Boggio, President STATE OF TEXAS § § COUNTY OF COLLIN § Before me, the undersigned authority, on this day personally appeared Dan

Boggio, President of PBK Architects, Inc., known to me to be the person whose name is

subscribed to the foregoing instrument, and acknowledged to me that he executed the

same for the purposes and consideration therein expressed, in the capacity therein stated

and as the act and deed of PBK Architects and acknowledged to me that he is authorized

to executed the foregoing instrument and bind PBK Architects.


_____________________________ Notary Public, State of Texas

_____________________________ Print or Type Notary's Name


IN WITNESS WHEREOF, this Agreement is executed on this ___ day of December, 2015.

Pogue Construction Co., LP, A Texas Limited Partnership

By:

Ben Pogue, President of Ben Pogue, LC, A Texas Limited Liability Company, General Partner of Pogue Construction Co., L.P.

STATE OF TEXAS § § COUNTY OF COLLIN § Before me, the undersigned authority, on this day personally appeared S Ben

Pogue, President of Ben Pogue, LC, A Texas Limited Liability Company, General

Partner of Pogue Construction Co., L.P., known to me to be the person whose name is

subscribed to the foregoing instrument, and acknowledged to me that he executed the

same for the purposes and consideration therein expressed, in the capacity therein stated

and as the act and deed of Ben Pogue, LC, A Texas Limited Liability Company, General

Partner of Pogue Construction Co., L.P and of Pogue Construction Co., L.P. and

acknowledged to me that he is authorized to executed the foregoing instrument and bind

Ben Pogue, LC, A Texas Limited Liability Company, General Partner of Pogue

Construction Co., L.P and of Pogue Construction Co., L.P.


_____________________________ Notary Public, State of Texas _____________________________ Print or Type Notary's Name


EXHIBIT A

1. Pogue will re-prime and repaint the X-bracing on the home side with the primer and intumescent paint in the original specifications for the repair up to the underside of the press box. AISD recognizes that the product must be intumescent, which means that it must contain aggregate for code compliance and will not be as smooth as non-intumescent paints may be. Because this work can only be conducted in non-humid conditions and may require multiple layers it is agreed that section 14 of the Release does not apply to this item with regard to the time to complete, which is hereby extended for this item up to and through June 30, 2016.

2. Home-side elevator cab door (north door) – Pogue to remove dent from door. Likely a new skin will be required to achieve this. It is understood this could take 10 weeks or more to deliver and section 14 of the Release does not apply to this item with regard to the time to complete, which is hereby extended for this item up to and through April 30, 2016. 3. Clean the electric lights – AISD indicates that the pendant lights under the upper home seating area are still dirty. Pogue shall clean each light fixture designated by AISD as needed, cleaning to AISD satisfaction. An AISD representative shall escort the Pogue crew to each light fixture to be cleaned. 4. Running track repairs on the event level – The running track east of the weight room on the event level needs to be patched. Once this area is patched or replaced, Pogue will clean and refinish the running track.

Reimbursable Items: A. Pogue to reimburse AISD for the reasonable cost to replace one missing computer monitor, one missing computer and related software on the computer (wrestling room equipment). B. Pogue to reimburse AISD for the reasonable cost to repair, recalibrate, or replace wireless access point (A.P.) devices throughout the Stadium. C. Pogue to reimburse AISD for the reasonable cost of i.) 10 Allen ISD black-ribbed trashcans with base, ii.) 4 tall bar chairs with eagle logo, iii.) 6 short table chairs with eagle logo, iv.) 3 rolling chairs with eagle logo, v.) 17 6’ x 4’ navy entry mats, and vi.) 20 padded folding chairs.

Allen ISD Settlement Agreement With PBK and Pogue Construction

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Transcript of Allen ISD Settlement Agreement With PBK and Pogue Construction