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.
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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
NAEs investigation continued.
E.

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

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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 PBKs 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
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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;

L.

(6)

Concourse structure and steel subframe; and

(7)

Concourse traffic coating.

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
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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 abovedescribed 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
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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
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Agreement; and
B.

C.

D.

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

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;

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, Sikas 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
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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
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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,
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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 Constructions 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

PROJECT OTHER THAN THE STADIUM.

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POGUE

FROM

ANY

(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 AISDs 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
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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 AISDs 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,
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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
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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
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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 DISTRICTS 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
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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
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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.

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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 AISDS 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
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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]

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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

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Settlement and Release Agreement
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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.
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

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Settlement and Release Agreement
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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.
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

679670 - Dec
Settlement and Release Agreement
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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 blackribbed 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.

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Settlement and Release Agreement
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