Exceptions and Responses_Tierra06032025.xlsx

Exceptions

4.6.1. Contractor is required to maintain the following standards of performance.

4.6.1.1. Timeliness, accuracy and quality of service while performing all work requirements.

4.6.1.2. Compliance with applicable laws, policies and regulations.

4.6.1.3. Timely, accurate and appropriately documented invoicing procedures.

4.6.1.4. Complete all necessary courses required by the Department within a timely manner i.e. Computer Security, etc.

4.6. The Contractor shall comply with the following Performance Measures:

4.6.1. Contractor is required to maintain the following standards of performance.

4.6.1.1. Timeliness, accuracy and quality of service while performing all work requirements.

4.6.1.2. Compliance with applicable laws, policies and regulations.

4.6.1.3. Timely, accurate and appropriately documented invoicing procedures.

4.6.1.4. Complete all necessary courses required by the Department within a timely manner i.e. Computer Security, etc.

Any attempts to represent any material and/or service not specifically awarded as being under contract is a breach of the contract and a violation of the Arizona Procurement Code. Any such action is subject to the legal and contractual remedies available to the State inclusive of but not limited to contract cancellation, suspension and/or debarment of the Contractor.

The Department shall issue a purchase order to the Contractor. Each purchase order must cite the contract number. This purchase order shall be the only document required for the Department to order and the Contractor to deliver the material and/or service.

Any attempts to represent any material and/or service not specifically awarded as being under contract is a breach of the contract and a violation of the Arizona Procurement Code. Any such action is subject to the legal and contractual remedies available to the State inclusive of but not limited to contract cancellation, suspension and/or debarment of the Contractor.

This indemnity shall not apply if the contractor or sub-contractor(s) is/are an agency, board, commission or university of the State of Arizona.

To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees (hereinafter referred to as "Indemnitee") from and against any and all claims, actions, liabilities, damages, losses, or expenses (including court costs, attorneys’ fees, and costs of claim processing, investigation and litigation) (hereinafter referred to as “Claims”) for bodily injury or personal injury (including death), or loss or damage to tangible or intangible property caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Contractor or any of its owners, officers, directors, agents, employees, or subcontractors. This indemnity includes any claim or amount arising out of, or recovered under, the Workers' Compensation Law or arising out of the failure of such Contractor to conform to any federal, state or local law, statute, ordinance, rule, regulation, or court decree. It is the specific intention of the parties that the Indemnitee shall, in all instances, except for Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified by Contractor from and against any and all Claims. It is agreed that Contractor will be responsible for primary loss investigation, defense, and judgment costs where this indemnification is applicable. In consideration of the award of this contract, the Contractor agrees to waive all rights of subrogation against the State of Arizona, its officers, officials, agents, and employees for losses arising from the work performed by the Contractor for the State of Arizona.

This indemnity shall not apply if the contractor or sub-contractor(s) is/are an agency, board, commission or university of the State of Arizona.

15(a) Negligence. Contractor shall indemnify and hold harmless State of Arizona and its affiliates, and the directors, officers, shareholders, employees and agents thereof, from and against liability, loss, damage and expense, including reasonable attorneys' fees and costs based on a third party claim, to the extent such liability, loss, damage or expense is directly attributable to the negligence of Contractor in performing the Services. The State of Arizona shall indemnify and hold harmless Contractor and its affiliates, subcontractors and suppliers, and the directors, officers, shareholders, employees and agents thereof, from and against liability, loss, damage and expense, including reasonable attorneys' fees and costs, based on a third party claim, to the extent such liability, loss, damage or expense is directly attributable to the negligence of the State of Arizona.

15(b) Indemnification Process. In the event of any claim under this Paragraph 15, either Party shall promptly advise the other in writing of any claim, which could give rise to a right of indemnification under this Paragraph 15. The indemnifying Party shall have the right to control the defense and settlement of all such claims; provided that it will not settle any claim without the other party’s prior written consent unless that settlement includes a full and final release of all claims against the indemnified Party."

Denied. 6/3/2025 - Tierra withdraws the redlines and accepts the original language as presented by ADOT.

Usage report quarters shall be defined as follows:

• January through March – Report due April 30

• April through June – Report due July 30

• July through September – Report due October 30

• October through December – Report due January 30 The Contractor shall furnish the Department a quarterly report showing purchasing activity under this contract. This usage report shall be provided in a form substantially equivalent to Exhibit 5. Usage reports shall be submitted to the Procurement Officer no later than 30 days after the end of each quarter, except in the event the Reporting due date falls on a weekend or holiday, then the reporting due date will be the next business working day.

Usage report quarters shall be defined as follows:

• January through March – Report due April 30

• April through June – Report due July 30

• July through September – Report due October 30

• October through December – Report due January 30

Contractor shall indemnify and hold harmless the State of Arizona and its affiliates, and the directors, officers, shareholders, employees and agents thereof, from and against liability, loss, damage and expense, including reasonable attorneys' fees and costs based on a third party claim, to the extent such liability, loss, damage or expense is directly attributable to the negligence of Contractor in performing the Services. The State of Arizona shall indemnify and hold harmless Contractor and its affiliates, subcontractors and suppliers, and the directors, officers, shareholders, employees and agents thereof, from and against liability, loss, damage and expense, including reasonable attorneys' fees and costs, based on a third party claim, to the extent such liability, loss, damage or expense is directly attributable to the negligence of the State of Arizona. Denied. 6/3/2025 - Tierra withdraws the redlines and accepts the original language as presented by ADOT.

7.2.1. Of a quality to pass without objection in the trade under the Contract description;

7.2.2. Fit for the intended purposes for which the Materials are used;

7.2.3. Within the variations permitted by the Contract and are of even kind, quantity, and quality within each unit and among all units;

7.2.4. Adequately contained, packaged, and marked as the Contract may require; and

7.2.5. Conform to the written promises or affirmations of fact made by the Contractor.

7.2. Quality. Unless otherwise modified elsewhere in the Special Terms and Conditions, the Contractor warrants that, for one (1) year after acceptance by the State of the Materials, they shall be:

7.2.1. Of a quality to pass without objection in the trade under the Contract description;

7.2.2. Fit for the intended purposes for which the Materials are used;

7.2.3. Within the variations permitted by the Contract and are of even kind, quantity, and quality within each unit and among all units;

7.2.4. Adequately contained, packaged, and marked as the Contract may require; and

7.2.5. Conform to the written promises or affirmations of fact made by the Contractor.

Exclusion: Contractor warrants that the Services shall be performed with that degree of skill and judgment normally exercised by professional Services firms performing services of a similar nature. Contractor’s total liability and the State of Arizona’s sole remedy for breach of the foregoing warranty shall be limited to correcting, at its own expense, Services which are (i) deficient because of Contractor’s failure to perform said Services in accordance with the above standard of skill and judgment, and (ii) reported in writing to Contractor within a reasonable time, not to exceed thirty (30) days, from discovery thereof, but in no event later than one (1) year from completion of the relevant Services, or if Contractor is unable to correct the Services as warranted, the State of Arizona shall be entitled to recover the fees paid to Contractor for the non-conforming Services under the applicable Work Order. In respect of material and equipment purchases requested by the State of Arizona, the Parties agree that Contractor in issuing such orders is acting solely as agent of the State of Arizona and, beyond placement and administration of the purchase order, Contractor’s liability shall be limited to making available to the State of Arizona the benefit of any warranties given by the vendor. The State of Arizona warrants that during the initial consultation with Contractor about the Scope of Services of this Agreement, and continuously while this Agreement is in effect, in a written authorization or work order as described in the Scope of Work, above or any similar written request by the State of Arizona describing the requested services with particularity, the State of Arizona shall provide Contractor with accurate and timely information about the particular details of the Services and option acquisition offers or settlements that may be made by Contractor, including keeping Contractor informed of any changes in the permissible terms of offers or settlements. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. CONTRACTOR DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY THAT THE DELIVERABLES, OR SERVICES WILL MEET THE STATE OF ARIZONA’S REQUIREMENTS. Denied. 6/3/2025 - Tierra withdraws the redlines and accepts the original language as presented by ADOT.

16 Uniform Terms and Conditions 7 Warranties, paragraph 7.3 Conformity to Requirements 7.3. Conformity to Requirements.

7.3.1. Contractor warrants that, unless expressly provided otherwise elsewhere in the Contract, the Materials and Services will for one (1) year after acceptance and in each instance:

7.3.1.1. Conform to the requirements of the Contract, which by way of reminder include without limitation all descriptions, specifications, and drawings identified in the Scope of Work and any and all Contractor affirmations included as part of the Contract;

7.3.1.2. Be free from defects of material and workmanship;

7.3.1.3. Conform to or perform in a manner consistent with current industry standards; and

7.3.1.4. Be fit for the intended purpose or use described in the Contract.

7.3.2. Mere delivery or performance does not substitute for express acceptance by the State. Where inspection, testing, or other acceptance assessment of Materials or Services cannot be done until after installation or invoicing, the forgoing warranty will not begin until State’s explicit acceptance of the Materials or Services.

7.3. Conformity to Requirements.

7.3.1. Contractor warrants that, unless expressly provided otherwise elsewhere in the Contract, the Materials and Services will for one (1) year after acceptance and in each instance:

7.3.1.1. Conform to the requirements of the Contract, which by way of reminder include without limitation all descriptions, specifications, and drawings identified in the Scope of Work and any and all Contractor affirmations included as part of the Contract;

7.3.1.2. Be free from defects of material and workmanship;

7.3.1.3. Conform to or perform in a manner consistent with current industry standards; and

7.3.1.4. Be fit for the intended purpose or use described in the Contract.

7.3.2. Mere delivery or performance does not substitute for express acceptance by the State. Where inspection, testing, or other acceptance assessment of Materials or Services cannot be done until after installation or invoicing, the forgoing warranty will not begin until State’s explicit acceptance of the Materials or Services.

TIME IS OF THE ESSENCE IN RESPECT TO THE DBE PROVISIONS

8.0 Time is of the Essence:

TIME IS OF THE ESSENCE IN RESPECT TO THE DBE PROVISIONS

• Liquidated Damages: These liquidated damages shall be in addition to all other retention or liquidated damages provided for elsewhere in the contract.

(i) The Department will withhold two times the disputed dollar amount not paid to each subcontractor.

(ii) If full payment is made within 30 days of the Department’s payment to the contractor, the amount withheld by the Department will be released.

(iii) If full payment is made after 30 days of the Department’s payment to the contractor, the Department will release 75 percent of the funds withheld. The Department will retain 25 percent of the monies withheld as liquidated damages.

• Additional Remedies: If the contractor fails to make prompt payment for three consecutive months, or any four months over the course of one project, or if the contractor fails to make prompt payment on two or more contracts within 24 months, the Department may, in addition, invoke the following remedies:

(i) Withhold monthly progress payments until the issue is resolved and full payment has been made to all subcontractors and vendors subject to the requirements outlined under “Liquidated Damages” above,

(ii) Terminate the contract for default in accordance with this Contract, and/or

(iii) Suspension or Debarment per Uniform Terms and Conditions Paragraph 9.3 of the contractor from future bidding temporarily or permanently, depending on the number and severity of violation.

(iv) Reflect the contractor’s performance in submitting payment reports and making subcontractor payments utilizing the Department’s Vendor Performance Report.

8. Non-Compliance: Failure to make prompt partial payment or prompt final payment including any retention, within the time frames established in this contract, will result in remedies, as the Department deems appropriate, which may include, but are not limited to:

• Liquidated Damages: These liquidated damages shall be in addition to all other retention or liquidated damages provided for elsewhere in the contract.

(i) The Department will withhold two times the disputed dollar amount not paid to each subcontractor.

(ii) If full payment is made within 30 days of the Department’s payment to the contractor, the amount withheld by the Department will be released.

(iii) If full payment is made after 30 days of the Department’s payment to the contractor, the Department will release 75 percent of the funds withheld. The Department will retain 25 percent of the monies withheld as liquidated damages.

• Additional Remedies: If the contractor fails to make prompt payment for three consecutive months, or any four months over the course of one project, or if the contractor fails to make prompt payment on two or more contracts within 24 months, the Department may, in addition, invoke the following remedies:

(i) Withhold monthly progress payments until the issue is resolved and full payment has been made to all subcontractors and vendors subject to the requirements outlined under “Liquidated Damages” above,

(ii) Terminate the contract for default in accordance with this Contract, and/or

(iii) Suspension or Debarment per Uniform Terms and Conditions Paragraph 9.3 of the contractor from future bidding temporarily or permanently, depending on the number and severity of violation.

(iv) Reflect the contractor’s performance in submitting payment reports and making subcontractor payments utilizing the Department’s Vendor Performance Report.

Intentionally Omitted Denied. 6/3/2025 - Tierra withdraws the redlines and accepts the original language as presented by ADOT.

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