Performance BondAIA Do
Performance
4:" o; • BOND NO. 965001225
Conforms with the American Institute of Architects, AIA Document A312.
Any singular reference to Contractor, Surety, Owner or other parry shall be considered plural where applicable.
CONTRACTOR (Name and Address):
PACK AND COMPANY
2355 HIGHWAY 93 NORTH
KALISPELL, MT 59901
OWNER (Name and Address):
MOUNTAIN VIEW, LTD
2121 SAGE ROAD, SUITE 380
HOUSTON, TX 77056
CONSTRUCTION CONTRACT
SURETY (Name and Principal Place of Business):
LIBERTY MUTUAL INSURANCE COMPANY
175 BERKELEY STREET
BOSTON, MA 02117
COUNTERSIGNED:
FLYNN INSURANCE AGENCY
MARK S. NICHOLLS
Date: July 20 2001
Amount: THREE MILLION TWO HUNDRED THIRTY SEVEN THOUSAND THREE HUNDRED SIXTY TWO AND 50/100
($3,237,362.50)
Description (Name and Location): MOUNTAIN VIEW PLAZA FOR MOUNTAIN VIEW, LTD PHASES I AND II
KALISPELL, MONTANA
BOND
Date (Not earlier than Construction Contract Date): July 20 2001
Amount: THREE MILLION TWO HUNDRED THIRTY SEVEN THOUSAND THREE HUNDRED SIXTY TWO AND 50/100
($3,237,362.50)
Modifications to this Bond:
'OR AS PRINCIPAL
'ACK AND COMPANY (Corporate Seal)
Signat Pit Q+til
Name ed itle:
(Any ddit' nal signatures appear on page 2.)
(FOR ORMATION ONLY - Name, Address and
Telephone) AGENT or BROKER: FLYNN INSURANCE
AGENCY, BOX 711, GREAT FALLS, MT 59403
1 The Contractor and the Surety, jointly and severally, bind themselves,
their heirs, executors, administrators, successors and assigns to the Owner
for the performance of the Construction Contract, which is incorporated
herein by reference.
2 If the Contractor performs the Construction Contract, the Surety and
the Contractor shall have no obligation under this Bond, except to
participate in conferences as provided in Subparagraph 3.1.
3 If there is no Owner Default, the Surety's obligation under this Bond
shall arise after:
3.1 The Owner has notified the Contractor and the Surety at its
address described in Paragraph 10 below that the Owner is considering
declaring a Contractor Default and has requested and attempted to
arrange a conference with the Contractor and the Surety to be held not
later than fifteen days after receipt of such notice to discuss methods of
performing the Construction Contract. If the Owner, the Contractor and
the Surety agree, the Contractor shall be allowed a reasonable time to
None ❑ See Page 2
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Company: LIBERTY MUTUAL (Corporate Seal)
INSURA C ANY
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Signature:
Name and Titl?'JOHN D. LEAF, ATTORNEY -IN -FACT
OWNER'S REPRESENTATIVE (Architect, Engineer or other
party):
perform the Construction Contract, but such an agreement shall
not waive the Owner's right, if any, subsequently to declare a
Contractor Default; and
3.2 The Owner has declared a Contractor Default and formally
terminated the Contractor's right to complete the contract. Such
Contractor Default shall not be declared earlier than twenty days
after the Contractor and the Surety have received notice as
provided in Subparagraph 3.1; and
3.3 The Owner has agreed to pay the Balance of the Contract
Price to the Surety in accordance with the terms of the
Construction Contract or to a contractor selected to perform the
Construction Contract in accordance with the terms of the
contract with the Owner.
4 When the Owner has satisfied the conditions of Paragraph 3, the
Surety shall promptly and at the Surety's expense take one of the
following actions:
SURETY 5026 (6-92)
S-1852/GEEF10/99
FLYNN INSURANCE AGENCY, BOX 711, GREAT FALLS, MT
Page 1 of 2
4.1 , —gange for the Contractor, with cox of the Owner, to
perform and complete the Construction Contr,._., or
4.2 Undertake to perform and complete the Construction Contract
itself, through its agents or through independent contractors; or
4.3 Obtain bids or negotiated proposals from qualified contractors
acceptable to the Owner for a contract for performance and
completion of the Construction Contract, arrange for a contract to be
prepared for execution by the Owner and the contractor selected with
the Owner's concurrence, to be secured with performance and
payment bonds executed by a qualified surety equivalent to the bonds
issued on the Construction Contract, and pay to the Owner the
amount of damages as described in Paragraph 6 in excess of the
Balance of the Contract Price incurred by the Owner resulting from
the Contractor's default; or
4.4 Waive its right to perform and complete, arrange for completion,
or obtain a new contractor and with reasonable promptness under the
circumstances:
1 After investigation, determine the amount for which it
may be liable to the Owner and, as soon as practicable
after the amount is determined, tender payment therefor
to the Owner, or
2 Deny liability in whole or in part and notify the Owner
citing reasons therefor.
5 If the Surety does not proceed as provided in Paragraph 4 with
reasonable promptness, the Surety shall be deemed to be in default on this
Bond fifteen days after receipt of an additional written notice from the
Owner to the Surety demanding that the Surety perform its obligations
under this Bond, and the Owner shall be entitled to enforce any remedy
available to the Owner. If the Surety proceeds as provided in
Subparagraph 4.4, and the Owner refuses the payment tendered or the
Surety has denied liability, in whole or in part, without further notice the
Owner shall be entitled to enforce any remedy available to the Owner.
6 After the Owner has terminated the Contractor's right to complete the
Construction Contract, and if the Surety elects to act under Subparagraph
4.1, 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner
shall not be greater than those of the Contractor under the Construction
Contract, and the responsibilities of the Owner to the Surety shall not be
greater than those of the Owner under the Construction Contract. To the
limit of the amount of this Bond, but subject to commitment by the Owner
of the Balance of the Contract Price to mitigation of costs and damages on
the Construction Contract, the Surety is obligated without duplication for:
6.1 The responsibilities of the Contractor for correction of defective
work and completion of the Construction Contract;
6.2 Additional legal, design professional and delay costs resulting
from the Contractor's Default, and resulting from the actions or
failure to act of the Surety under Paragraph 4; and
6.3 Liquidated damages, or if no liquidated damages are specified in
the Construction Contract, actual damages caused by delayed
performance or non-performance of the Contractor.
MODIFICATIONS TO THIS BOND ARE AS FOLLOWS:
7 The Surety shall r a liable to the Owner or others for obligations
of the Contractor that a, .nrelated to the Construction Contract, and the
Balance of the Contract Price shall not be reduced or set off on account of
any such unrelated obligations. No right of action shall accrue on this
Bond to any person or entity other than the Owner or its heirs, executors,
administrators or successors.
8 The Surety hereby waives notice of any change, including changes of
time, to the Construction Contract or to related subcontracts, purchase
orders and other obligations.
9 Any proceeding, legal or equitable, under this Bond may be
instituted in any court of competent jurisdiction in the location in which
the work or part of the work is located and shall be instituted within two
years after Contractor Default or within two years after the Contractor
ceased working or within two years after the Surety refuses or fails to
perform its obligations under this Bond, whichever occurs first. If the
provisions of this Paragraph are void or prohibited by law, the minimum
period of limitation available to sureties as a defense in the jurisdiction of
the suit shall be applicable.
10 Notice to the Surety, the Owner or the Contractor shall be mailed or
delivered to the address shown on the signature page.
11 When this Bond has been furnished to comply with a statutory or
other legal requirement in the location where the construction was to be
performed, any provision in this Bond conflicting with said statutory or
legal requirement shall be deemed deleted herefrom and provisions
conforming to such statutory or other legal requirement shall be deemed
incorporated herein. The intent is that this Bond shall be construed as a
statutory bond and not as a common law bond.
12 DEFINITIONS
12.1 Balance of the Contract Price: The total amount payable by the
Owner to the Contractor under the Construction Contract after all
proper adjustments have been made, including allowance to the
Contractor of any amounts received or to be received by the Owner
in settlement of insurance or other claims for damages to which the
Contractor is entitled, reduced by all valid and proper payments
made to or on behalf of the Contractor under the Construction
Contract.
12.2 Construction Contract: The agreement between the Owner and
the Contractor identified on the signature page, including all
Contract Documents and changes thereto.
12.3 Contractor Default: Failure of the Contractor, which has
neither been remedied nor waived, to perform or otherwise to comply
with the terms of the Construction Contract.
12.4 Owner Default: Failure of the Owner, which has neither been
remedied nor waived, to pay the Contractor as required by the
Construction Contract or to perform and complete or comply with the
other terms thereof.
(Space is provided below for additional signatures of added parties, other than those appearing on the cover page.)
CONTRACTOR AS PRINCIPAL SURETY
Company: (Corporate Seal) Company:
Signature: Signature: _
Name and Title: Name and Title:
Address: Address:
(Corporate Seal)
S-1852/GEEF 10/99 Page 2 of 2
AIA Document A312
BOND NO. 965001225
Payment Bond
Conforms with the American Institute of Architects, AIA Document A312.
Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable.
CONTRACTOR (Name and Address):
PACK AND COMPANY
2355 HIGHWAY 93 NORTH
KALISPELL, MT 59901
OWNER (Name and Address):
MOUNTAIN VIEW, LTD
2121 SAGE ROAD, SUITE 380
HOUSTON, TX 77056
CONSTRUCTION CONTRACT
SURETY (Name and Principal Place of Business):
LIBERTY MUTUAL INSURANCE COMPANY
175 BERKELEY STREET
BOSTON, MA 02117
COUNTERSIGNED:
FLYNN INSURANCE AGENCY
MARK S. NICHOLLS
Date: July 20 2001
Amount: THREE MILLION TWO HUNDRED THIRTY SEVEN THOUSAND THREE HUNDRED SIXTY TWO AND 50/100
($3,237,362.50)
Description (Name and Location): MOUNTAIN VIEW PLAZA FOR MOUNTAIN VIEW, LTD PHASES 1 AND II
KALISPELL, MONTANA
BOND
Date( Not earlier than Construction Contract Date): July 20 2001
Amount: THREE MILLION TWO HUNDRED THIRTY SEVEN THOUSAND THREE HUNDRED SIXTY TWO AND 50/100
(4$3,237,362.50)
Modifications to this Bond:
OR AS PRINCIPAL
P K AND COMPANY (Corporate Seal)
Signatur :"'—
Name a d itle:
(Any a itio signatures appear on page 2.)
(FOR INFORMATION ONLY - Name, Address and
Telephone) AGENT or BROKER: FLYNN INSURANCE
AGENCY, P.O. BOX 711, GREAT FALLS, MT 59403
1 The Contractor and the Surety, jointly and severally, bind themselves,
their heirs, executors, administrators, successors and assigns to the Owner
to pay for labor, materials and equipment furnished for use in the
performance of the Construction Contract, which is incorporated herein by
reference.
2 With respect to the Owner, this obligation shall be null and void if the
Contractor:
2.1 Promptly makes payment, directly or indirectly, for all sums due
Claimants, and
2.2 Defends, indemnifies and holds harmless the Owner from claims,
demands, liens or suits by any person or entity whose claim, demand,
lien or suit is for the payment for labor, materials or equipment
furnished for use in the performance of the Construction Contract,
provided the Owner has promptly notified the Contractor and the
Surety (at the address described in Paragraph 12) of any claims,
demands, liens or suits and tendered defense of such claims, demands,
liens or suits to the Contractor and the Surety, and provided there is
no Owner Default.
❑ See Page 2
SURETY
Company: LIBERTY MUTUAL (Corporate Seal)
INSURANC CONY
Signature:
Name and Title: HN D. LEAF, ORNEY-IN-FACT
OWNER'S REPRESENTATIVE (Architect, Engineer or other
party):
3 With respect to Claimants, this obligation shall be null and void if
the Contractor promptly makes payment, directly or indirectly, for all
sums due.
4 The Surety shall have no obligation to Claimants under this Bond
until:
4.1 Claimants who are employed by or have a direct contract with
the Contractor have given notice to the Surety (at the address
described in Paragraph 12) and sent a copy, or notice thereof, to
the Owner, stating that a claim is being made under this Bond
and, with substantial accuracy, the amount of the claim.
4.2 Claimants who do not have a direct contract with the
Contractor:
1 Have furnished written notice to the Contractor and sent a
copy, or notice thereof, to the Owner, within 90 days after
having last performed labor or last furnished materials or
equipment included in the claim stating, with substantial
accuracy, the amount of the claim and the name of the party
to whom the materials were furnished or supplied or for
whom the labor was done or performed; and
SURETY 5026 (6-92)
S-1853/GEEF 3100 Page 1 of 2
FLYNN INSURANCE AGENCY, BOX 711, GREAT FALLS, MT
2 , • Have either received a rejection in v or in part from the
Contractor, or not received within 30 uays of furnishing the
above notice any communication from the Contractor by which
the Contractor has indicated the claim will be paid directly or
indirectly; and
.3 Not having been paid within the above 30 days, have sent a
written notice to the Surety (at the address described in
Paragraph 12) and sent a copy, or notice thereof, to the Owner
stating that a claim is being made under this Bond and
enclosing a copy of the previous written notice furnished to the
Contractor.
5 If a notice required by paragraph 4 is given by Owner to the
Contractor or to the Surety, that is sufficient compliance.
6 When the Claimant has satisfied the conditions of Paragraph 4, the
Surety shall promptly and at the Surety's expense take the following
actions:
6.1 Send an answer to the Claimant, with a copy to the Owner,
within 45 days after receipt of the claim, stating the amounts
that are undisputed and the basis for challenging any amounts
that are disputed.
6.2 Pay or arrange for payment of any undisputed amounts.
7 The Surety's total obligation shall not exceed the amount of this Bond,
and the amount of this Bond shall be credited for any payments made in
good faith by the Surety.
8 Amounts owed by the Owner to the Contractor under the Construction
Contract shall be used for the performance of the Construction Contract
and to satisfy claims, if any, under any Construction Performance Bond.
By the Contractor furnishing and the Owner accepting this Bond, they
agree that all funds earned by the Contractor in the performance of the
Construction Contract are dedicated to satisfy obligations of the Contractor
and the Surety under this Bond, subject to the Owner's priority to use the
funds for the completion of the work.
9 The Surety shall not be liable to the Owner, Claimants or others for
obligations of the Contractor that are unrelated to the Construction
Contract. The Owner shall not be liable for payment of any costs or
expenses of any Claimant under this Bond, and shall have under this bond
no obligations to make payments to, give notices on behalf of, or otherwise
have obligations to Claimants under this Bond.
10 The Surety hereby waives notice of any change, including changes of
time, to the Construction Contract or to related subcontracts, purchase
orders and other obligations.
11 No suit or action shall be commenced by a Claimant under this Bond
other than in a court of competent jurisdiction in the location in which
MODIFICATIONS TO THIS BOND ARE AS FOLLOWS:
the work or part of the; k is located or after the expiration of one year
from the date (1) on w.-,1 the Claimant gave the notice required by
Subparagraph 4. 1 or Clause 4.2.3, or (2) on which the last labor or service
was performed by anyone or the last materials or equipment were
famished by anyone under the Construction Contract, whichever of (1) or
(2) first occurs. If the provisions of this Paragraph are void or prohibited
by law, the minimum period of limitation available to sureties as a defense
in the jurisdiction of the suit shall be applicable.
12 Notice to the Surety, the Owner or the Contractor shall be mailed or
delivered to the address shown on the signature page. Actual receipt of
notice by Surety, the Owner or the Contractor, however accomplished,
shall be sufficient compliance as of the date received at the address shown
on the signature page.
13 When this Bond has been furnished to comply with a statutory or
other legal requirement in the location where the construction was to be
performed, any provision in this Bond conflicting with said statutory or
legal requirement shall be deemed deleted herefrom and provisions
conforming to such statutory or other legal requirement shall be deemed
incorporated herein. The intent is that this Bond shall be construed as a
statutory bond and not as a common law bond.
14 Upon request by any person or entity appearing to be a potential
beneficiary of this Bond, the Contractor shall promptly furnish a copy of
this Bond or shall permit a copy to be made.
15 DEFINITIONS
15.1 Claimant: An individual or entity having a direct contract
with the Contractor or with a subcontractor of the Contractor to
furnish labor, materials or equipment for use in the performance of
the Contract. The intent of this Bond shall be to include without
limitation in terms "labor, materials or equipment" that part of
water, gas, power, light, heat, oil, gasoline, telephone service or
rental equipment used in the Construction Contract, architectural
and engineering services required for performance of the work of the
Contractor and the Contractor's subcontractors, and all other items
for which a mechanic's lien may be asserted in the jurisdiction where
the labor, materials or equipment were famished.
15.2 Construction Contract: The agreement between the Owner
and the Contractor identified on the signature page, including all
Contract Documents and changes thereto.
15.3 Owner Default: Failure of the Owner, which has neither been
remedied nor waived, to pay the Contractor as required by the
Construction Contract or to perform and complete or comply with
the other terms thereof.
(Space is provided below for additional signatures of added parties, other than those appearing on the cover page.)
CONTRACTOR AS PRINCIPAL SURETY
Company: (Corporate Seal) Company:
Signature: Signature: _
Name and Title: Name and Title:
Address: Address:
(Corporate Seal)
S-1853/GEEF 3/00 Page 2 of 2
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Rider to be attached to and form a part of Bond Number %5001225 , dated the 201H day of
JULY 2001 executed by liberty Mutual Insurance Company (the "Surety°)
on behalf of
WHEREAS, the Principal has by written agreement dated
WAV111110K
it a�i . ifr_i%. `ice-��i'�' c�iIviks".-��.aj�Ij� 'r./f. ►II /
(the "Principal")
(the "Obliges"),
1 2001 , entered
: and
WHEREAS, upon the request of the Principal and Obligee the attached bond is hereby amended to add
= OF KAL EIL, =ANA as additional Obligee.
PROVIDED, HOWEVER, there shall be no liability under this bond to the Obligees, or either of them
unIm the said Obligees, or either of them, shall make payments to the Principal or to the Surety, should the
Surety arrange for or undertake the completion of the Contract upon the default of the Principal, strictly in
accordance with the terms of the Contract; and otherwise satisfy all terms and conditions and perform all of the
other obligations to be performed under the Contract at the time and in the manner therein set forth; all of the acts
of one Obligee being binding on the other.
In no event shall the aggregate liability of the Surety to either or to both Obligees exceed the penal sum of
the attached bond, nor shall the Surety be liable except for a single payment for each single breach or default, At
the Surety's election, any payment due to either Obligee may be made by its check issued jointly to both.
This change is effective this 20 H day of JULY , .92001
The attached bond shall be subject to all of its terms, conditions and limitations except as herein modified.
DATED as of this 20IH clay of
WITNESS/ATTEST:
Accept112
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Title: I A
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OF KALISPF'11,
N toct� t
JULY
LIRE UTU INS ANCE C ANY (Seal)
(Sur
By
A=mey-In-Fa
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LBS-= Rev. 1 OAS
• ,;:THI�-POWER
OF ATTORNEY IS NOT VF UNLESS IT IS PRINTED ON RED BACKGRt vD. 802614
This Power of Attorney limits the act of those named herein, and they have no authority to bind the Company except in the
manner and to the extent herein stated.
LIBERTY MUTUAL INSURANCE COMPANY
BOSTON,MASSACHUSETTS
POWER OF ATTORNEY
KNOW ALL PERSONS BY -THESE PRESENTS: That Liberty., Mutual Insurance Company: fthe "Company"), a Massachusetts
mutual insurance company.; pursuant to ara:dby authority_ of the::By-.law and Authorization hereinafter. set forth, does hereby name,
constitute and appoint, JO.H.N. D. LEA F;::BETH A KELLER,`MARK S. NICHOLLS JENNY TAUB-SMITH, ALL OF THE
CITY OF GREAT FALLS,.STATE OF MONTANA :CHRIS JERMUNSON;oSANDRA:KAY KIRK :LINDA K. ROE, ALL OF
THE CITY OF BILLINGS, STATE OF_MONTANA;AND BILLY JOE BOLT, OF THE:CITY OF MI.SSOULA, STATE OF
MONTANA..................... ...... ...... ...::: .................. ..............................................................................
........................................ ............................... ....
each individually if there be more than _one named, its true and lawful attorney -in -fact to make execute, seal, acknowledge and deliver, for and on its
behalf as surety and as its act and deed;%any and all undertakings,,:bonds,'recognizances and other surety obligations in the penal sum not exceeding
THIRTY-FIVE MILLION ION AND 00/100*****`**********"'*** DOLLARS ($ 35,000,000.00***** ) each, and the execution of such bonds or
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undertakings, in pursuance of these presents, shall be as binding upon the Company as if they had been duly signed by the president and attested by
the secretary of the Company in their own proper persons.
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That this power is made and executed pursuant to and by authority of the following By-law and Authorization:
ARTICLE XVI - Execution of Contracts: Section 5. Surety Bonds and Undertakings.
Any officer or other official of the company authorized for that purpose in writing by the chairman or the president, and subject to such
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limitations as the chairman or the president may prescribe, shall appoint such attorneys -in -fact, as may be necessary to act in behalf of the
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company to make, execute, seal, acknowledge and deliver as surety any and all undertakings, bonds, recognizances and other surety
obligations. Such attorneys -in -fact, subject to the limitations set forth in their respective powers of attorney, shall have full power to bind the
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pcompany
by their signature and execution of any such instruments and to attach thereto the seal of the company. When so executed such
instruments shall be as binding as if signed by the president and attested by the secretary.
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By the following instrument the chairman or the president has authorized the officer or other official named therein to appoint attorneys -in -fact:
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Pursuant to Article XVI, Section 5 of the By-laws, Assistant Secretary Garnet W. Elliott is hereby authorized to appoint such attorneys -in -fact
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as may be necessary to act in behalf of the company to make, execute, seal, acknowledge and deliver as surety any and all undertakings,
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bonds, recognizances and other surety obligations.
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That the By-law and the Authorization above set forth are true copies thereof and are now in full force and effect.
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IN WITNESS WHEREOF, this instrument has been subscribed by its authorized officer and the corporate seal of the said Liberty Mutual Insurance
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Company has been affixed thereto in Plymouth Meeting, Pennsylvania this 7th day of May 2001
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LIBERTY MUTUAL INSURANCE COMPANY
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By
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Garnet W. Elliott, Assistant Secretary
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COMMONWEALTH OF PENNSYLVANIA ss
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COUNTY OF MONTGOMERY04
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On this 7th day of May A.D....:.20ni before mega Notary Public., personally came the individual, known to
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me to be the therein described individual and Of of Liberty Mutuat Insurance Company.who executed the preceding instrument, and he acknowled-
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ged that he executed the�sarne a0- that the seal,affixed to the said:precedirig instrument he corporate seak& said company; and that said corporate
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seal and his signature subscnbedtherefo,was duly;affixed and suoscnbed to: _the said Instrument byauthority and direction of the said company.
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IN TESTIMONY WHEREOF,; Itexeunto setrtiy hand and affix myofficiai seal; at Plymou Meefiing P.,the day and year first above written.
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m, Nota Public '
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CERTjFtCATE
1, the undersigned; -,Assistant -Secretary: of Liberty Mutuat In§uranee Company, do hereby certify that the original power of attorney of which the
.foregoing is a full, true and correct copy: isin full force and effect.b the-Aate of this certificate and {`do further certify that the officer who executed the
said power of attorney was one of the officers specially authorized by the chairman or the president to appoint any attorney -in -fact as provided in Article
XVI, Section 5 of the By-laws of Liberty Mutual Insurance Company.
This certificateL may be signed by facsimile under and by authority of the following vote of the board of directors of Liberty Mutual Insurance
Company at a meeting duly called and held on the 12th day of March, 1980.
VOTED that the facsimile or mechanically reproduced signature of any assistant secretary of the company wherever appearing upon a certified
copy of any power of attorney issued by the company, shall be valid and binding upon the company with the same force and effect as
though manually affixed.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seal of the said company, this 201H day of
JULY 2001 . r
stant Secretary
THIS POWER OF ATTORNEY MAY NOT BE USED TO EXECUTE ANY BOND WITH AN INCEPTION DATE AFTER May 7 2003