1 MASTER SERVICES AGREEMENT (SAAS)
This Master Services Agreement for software services (“ SAAS”), dated by the Anaheim City Clerk on _____________________ (“Effective Date ”), is made and entered into by and between the City of Anaheim, a municipal corporation (“Customer”), and Ascend Analytics LLC, a Colorado limited liability company registered to do business in California (Entity No. 201909310163) (“ Ascend”). Customer and Ascend are sometimes individually referred to as “Party” and collectively as “Parties.”
RECITALS
A. Customer is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Anaheim Charter.
B. Ascend is the developer and owner of PowerSIMM, a proprietary software-as-a-service platform used by utilities and other energy entities for portfolio management, resources planning, and project optimization.
C. Customer wishes to engage Ascend to provide software licensing, support and implementation services for production cost modeling related to Anaheim Public Utilities ’ (“APU”) integrated resources planning, and to assist in the develop of an Integrated Resource Plan (“IRP”) document.
D. Ascend possesses the skill, experience, ability, licenses, certifications, and materials necessary to perform the Services.
E. Customer has solicited and received a proposal from Ascend and has evaluated Ascend’s previous experience and expertise, and Customer desires to retain Ascend to render the Services under the terms and conditions set forth in this Agreement, subject to the terms and conditions herein.
TERMS AND CONDITIONS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS.
1.1 “Affiliate” means, with respect to a P arty, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and polici es of such entity through the ownership of 50% or more of the outstanding voting securities (but only for as long as such entity meets these requirements).
1.2 “Content” means content, data, and information owned by Ascend or any of its licensors that is provided or made available by Ascend through use of the Platform or as part of or in connection with Ascend’s provision of Services. Content does not include Customer Data.
1.3 “Customer Data ” means the electronic data and information input into the Platform by or on behalf of Customer. Customer Data does not include Usage Data or Aggregated Data.
1.4 “Customer’s Project Administrator ” means the designated individual designated by Customer to act as Customer’s representative for purposes of this Agreement. Customer designates Andrew Markis as its Project Administrator. The General Manager or designee may change Customer ’s Project Administrator at any time, and Customer will provide Ascend written notice of such change as soon as practical. Customer’s Project or designee, shall have the power to act on behalf of Customer for ordering, reviewing, and approving all Services performed by Ascend under this Agreement. Customer’s Project Administrator shall not be authorized to approve Extra Services, change unit prices/billing rates, or terminate Services under this Agreement.
1.5 “Documentation” means any user materials, instructions, and specifications set forth in the proposal agreed to by the parties and made available by Ascend to Customer for the Services.
1.6 “General Manager” means the General Manager of the City of Anaheim’s Public Utilities Department.
1.7 “Implementation Services” means Ascend’s standard implementation and set-up services for the Platform.
1.8 “Work Order” or “Scope of Services ”) means any written order document executed by Ascend and Customer setting forth the terms and conditions relating to the Services. The initial Work Order is attached as Exhibit A Each Work Order is incorporated by reference into this Agreement.
1.9 “Platform” means Ascend’s proprietary software- as-a-service platform utilized by Ascend to provide the Software to Customer. The Platform does not include Customer’s connectivity equipment, internet and network 2 connections, hardware, software, and other equipment as may be necessary for Customer and its Users to connect to and obtain access to the Platform or to utilize the Services.
1.10 “Professional Services” means the professional services provided by Ascend as set forth and identified as “professional services” in the applicable Work Order and provided in accordance with Exhibit B. Professional Services do not include Implementation Services and Support Services.
1.11 “Services” means, collectively, Implementation Services, Professional Services (if any), access to the Platform, Support Services, and the other services made available on, by, or through the Platform by Ascend under this Agreement. The Services are more particularly described in the Scope of Services attached hereto as Exhibit A and incorporated herein.
1.12 “Software” means Ascend’s proprietary software as a service offering as set forth in the applicable Work Order and made available through remote access by Ascend to Customer and Users as part of the Platform, including any modified, updated, or enhanced versions that may become part of the Software.
1.13 “Support Services ” means the technical support and Software maintenance services set forth in the applicable Work Order.
1.14 “Usage Data” means any content, data, or information that is collected or produced by the Platform in connection with use of the Services that does not identify Customer or its Users, and may include, but is not limited to, usage patterns, traffic logs, and user conduct associated with the Platform. Usage Data does not include Customer Confidential Information.
1.15 “Users” means Customer’s employees, independent contractors, and other individuals who are authorized by Customer to use the Services on behalf of Customer.
2. SERVICES.
2.1 Provision of Services . Subject to the terms and conditions of this Agreement, Ascend shall provide the Services to Customer and its Users more particularly described in the Scope of Services (Exhibit A) . On behalf of Customer, the General Manager, or designee(s), is authorized to add, modify, or delete tasks from the Scope of Services as mutually agreed upon with Ascend.
2.2 Cooperation. Customer shall provide Ascend with the Customer Data along with access and personnel resources that Ascend reasonably requests for Ascend to provide the Services.
2.3 Resources. Customer is solely responsible for, at its own expense, acquiring, installing, and maintaining all connectivity equipment, internet and network connections, hardware, software, and other equipment as may be necessary for its Users to connect to and access the Platform.
2.4 Third Party Offerings. The Platform may link to, incorporate, or interoperate with third -party software services, applications, or functionality (collectively, “Third-Party Offerings”). Customer acknowledges that Ascend does not own or control such Third- Party Offerings. Ascend shall remain responsible for ensuring that any Third - Party Offerings necessary for the operation of the Services are maintained in a manner that does not materially degrade or interrupt the Services. Customer’s acquisition or independent use of any Third-Party Offerings outside the scope of the Platform is, and any exchange of data between Customer and its Users and any Third- Party Offering is, solely between Customer and the third-party provider. Ascend shall not disable, restrict, or materially modify Customer’s access to any Third -Party Offerings integrated into the Services without providing at least thirty (30) days’ prior written notice to Customer and obtaining Customer’s written consent if such disablement would materially affect Customer’s use of the Services. Ascend shall not disclose, transmit, or otherwise make available any Customer Data to a Third-Party Offerings provider except as directed by Customer or as necessary to provide the Services and in accordance with this Agreement.
3. GRANT OF RIGHTS.
3.1 Access Rights; Customer’s Use of the Platform. Subject to the terms and conditions of this Agreement, Ascend hereby grants to Customer, during the Term (as defined below), a non -exclusive, non-transferable (except as permitted by Section 12.3), non-sublicensable right to access and use the Platform for Customer’s and its Affiliates’ internal
business purposes in accordance with the Documentation and the terms and conditions of this Agreement and the Usage Limitations (as defined below). Ascend and its licensors reserve all rights in and to the Platform and the Services not expressly granted to Customer under this Agreement.
3.2 Restrictions on Use. Customer shall not (a) reproduce, display, download, modify, create derivative works of, or distribute the Platform, or attempt to reverse engineer, decompile, disassemble or access the source code for the Platform or any component thereof; (b) use the P latform, or any component thereof, in the operation of a service 3 bureau to support or process any content, data, or information of any party other than Customer or Customer Affiliates; (c) permit any party, other than the then- currently authorized Users to independently access the Platform; (d) use the Platform in any m anner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third -party, or that violates any applicable law; (e) exceed the Usage Limitations; or (f) use the Platform to store or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses. Ascend may, in its sole discretion and upon notice to Customer, impose reasonable limits on the Services, including, but not limited to limiting the number of concurrent live unique strategies enabled within the Customer’s node and on API usage to reduce technical risk and ensure platform performance for all users (the “Usage Limitations”).
3.3 Users. Under the rights granted to Customer under this Agreement, Customer may permit its and its Affiliates’ independent contractors and employees to become Users in order to access and use the Platform in accordance with this Agreement; provided that Customer will be liable for the acts and omissions of all Customer Affiliates and Users to the extent any of such acts or omissions, if performed by Customer, would constitute a breach of, or otherwise give rise to liability to Customer under, this Agreement. Customer shall not, and shall not permit any User to, use the Platform, Software or Documentation except as expressly permitted under this Agreement. Customer is responsible for Users’ compliance with this Agreement.
3.4 Trial Services. Ascend may make certain Services available to Customer and its Users on a trial basis (the “Trial Services”). Trial Services will be identified as such on the applicable Work Order. If Customer is accessing and using the Trial Services, this Section 3.4 applies with respect to the Trial Services and takes precedence over any inconsistent or conflicting terms. Subject to the terms and conditions of this Agreement, Ascend grants to Customer, during the Trial Services Period (as defined below), non-exclusive, non-transferable (except as otherwise provided in Section 12.4), non-sublicensable right to access and use the Trial Services solely for Customer’s internal business purpose of evaluating the Trial Services to determine whether to purchase a full right to access and use the Trial Services and subject to any limitations specified in the applicable Work Order. Customer may elect to purchase a full right to access and use the Trial Services by notifying Ascend prior to the expiration of the Trial Services Peri od and paying the applicable Fees (as defined below) for full access to and use of the Platform in accordance with this Agreement. “Trial Services Period” means the period beginning when Customer first orders the Trial Services until the earlier of: (a) the date specified in the applicable Work Order for the end of the Trial Services period; (b) the start date for any purchased Services order by Customer; and (c) either P arty provides the other with written notice of termination of the Trial Services, which either Party may provide at any time in its sole discretion. During the Trial Services Period, Ascend may discontinue, suspend, or remove access to the Trial Services at any time in Ascend’s sole discretion. Fees for any Trial Services will be set forth on the app licable Work Order. CUSTOMER
ACKNOWLEDGES THAT THE TRIAL SERVICES MAY NOT INCLUDE OR ALLOW ACCESS TO ALL FEATURES AND FUNCTIONALITY AVAILABLE TO PAYING CUSTOMERS.
4. FEES, COMPENSATION, AND PAYMENT TERMS.
4.1 Fees and Compensation. Customer shall pay Ascend for the Services pursuant to the unit prices/billing rates (“Fees”) listed in Exhibit A, attached hereto and incorporated herein ( “Schedule of Compensation”). Fees are exclusive of, and Customer shall pay all taxes, fees, duties, and other governmental charges arising from the payment of any Fees or any amounts owed to Ascend under this Agreement (excluding any taxes arising from Ascend’s income or any employment taxes). Except as otherwise provided herein, n o changes to the Schedule of Compensation’s unit prices/billing rates may be made without the prior written authorization of the General Manager or designee.
4.1.1 Customer shall reimburse Ascend for only those costs or expenses specifically approved in writing in advance by the General Manager or designee.
4.1.2 Except as provided in Section 4.1.3 below, t he Parties understand and agree that full and complete payment for all Services provided under this Agreement, including but not limited to, all reimburs able expenses and subcontractor fees, if any, shall not exceed (1) nine hundred fifty-six thousand, five dollars ($956,005) during the Initial Term and (2) one hundred eighty- two thousand, two hundred nine dollars ($182,209) during the first Renewal Term (Term Year 6) with an annual 4% increase for remaining Renewal Terms as reflected in Exhibit A (together, “Contract Amount”). The Contract Amount does not constitute a guarantee of payment to Ascend but instead constitutes a spending option for Customer, as may be needed.
4 4.1.3 The General Manager is authorized to approve expenditures above the Contract Amount not to exceed fifteen percent (15%) of the Contract Amount for additional Services (“ Extra Services”) that the General Manager determines: (a) are necessary for the successful completion of the Services, (b) can be paid for by available budget appropriations, and (c) are in Customer’s best interest to purchase.
4.1.3.1 In no event shall Ascend render Extra Services without the written authorization of the General Manager or designee.
4.1.3.2 Extra Services shall be billed pursuant to the then-applicable Work Order at rates agreed to by the Parties in writing, at the General Manager’s discretion. If billed at a fixed price, Ascend shall provide Customer with a general description of the Extra Services to be performed with a proposed price.
4.1.3.3 Any approve Extra Services will be incorporated in the Services and Agreement upon the Parties’ execution of a letter agreement (“Extra Services Letter”) that contains :
(a) the agreed price for the Extra Services and (b) a description of the Extra Services.
Ascend shall commence performance of the Extra Services either upon the Parties’ execution of the Extra Services Letter or such other time expressly indicated therein.
4.1.3.4 Other than the Extra Services that the General Manager or designee is authorized to approve pursuant to this Section 4.1.3, Ascend shall not render additional services beyond the Scope of Services of this Agreement unless such services are first approved by a written amendment to this Agreement.
4.2 Payment. Customer shall pay to Ascend all undisputed Fees as further described in Exhibit A. All payments received by Ascend are non -refundable except as otherwise expressly provided in this Agreement. Customer shall make all payments in United States dollars.
4.2.1 Ascend shall submit annual invoices to Customer at the beginning of each Term Year (as defined in Section 5). Ascend’s invoices shall be based on the line items contained in Exhibit A. For items authorized in advance by Customer, for which Customer determines there is no line -item equivalent listed, Ascend ’s invoice shall include the name of the person who performed the work, a brief description of the Services performed and/or the specific task in the Scope of Service to which it relates, the date the Services were performed, the number of hours spend on work billed on an hourly basis, and a description of the Services performed and/or the specific tasks in the Scope of Services to whic h it relates, the date the Services were performed, the number of hours spent on work billed on an hourly basis, and a description of any reimbursable expenditures. Customer shall pay Ascend no later than thirty (30) days after approval of the monthly invoice by Customer staff.
4.2.2 All Parties recognize that the continuation of this Agreement after the close of any fiscal year of Customer, which fiscal year ends on June 30 of each year, shall be subject to budget approval providing for or covering such contract items as an expenditure in said budget. Customer does not represent that said budget item will actually be adopted, said determination being the determination of the Anaheim City Council at the time of the adoption of the budget. No penalty shall accrue to Customer in the event this provision shall be exercised. Should termination be accomplished in accordance with this Section, the Parties shall negotiate a settlement based on monies paid and due, items delivered, and Services provided.
5. TERM AND TERMINATION.
5.1 Term. This Agreement commences on the Effective Date and continues through its fifth ( 5 th) anniversary,
unless early terminated in accordance with this Agreement (“Initial Term”). Thereafter, the Initial Term shall automatically extend for up to five (5) successive annual periods on each anniversary of the Effective Date (collectively, “Term”), for a total potential Term of ten (10) years, unless Customer gives written notice of nonrenewal at least thirty (30) days prior to the expiration of the then-current Term Year. Each initial and successive annual period is referred to as “Term Year.”
5 5.2 Work Order Term. Each Work Order issued under this Agreement shall specify its own initial term (“Work Order Initial Term”), which may begin either on the Work Order Effective Date or upon Ascend’s receipt of a Notice to Proceed (if applicable, and as defined below). A Work Order may include renewal terms, provided that no Work Order shall extend beyond the then-current Term of this Agreement. Unless otherwise stated in the Work Order, each Work Order will automatically renew for successive one-year periods (each a, “Renewal Term”) unless either Party provides written notice of non-renewal at least thirty (30) days prior to the expiration of the Work Order Initial Term or the then-current Renewal Term.
5.3 Termination for Cause. A Party may terminate this Agreement or Work Order upon notice if the other Party breaches any material provision of this Agreement and applicable Work Order, and to the extent such breach is capable of cure, fails to cure such breach within 30 days after receipt of the written notice of such breach (“Default”). Further, Ascend shall also be deemed to be in Default upon Ascend’s (i) application for, consent to, or suffering of, the appointment of a receiver, trustee, or liquidator for all or a substantial portion of its assets; (ii) making a general assignment for the benefit of creditors; (iii) being adjudged bankrupt; (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization, or insolvency law (unless in the case of an involuntary petition, the same is dismissed within forty-five (45) days of such filing); or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution, or seizure of all or a substantial portion of Ascend’s assets or of Ascend’s interests hereunder.
5.3.1 Customer shall not be deemed to be in Default in the performance of any obligation required to be performed by Customer hereunder unless and until Customer has failed to perform such obligation for a period of thirty (30) days after receipt of written notice from Ascend specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of Customer ’s obligation is such that more than thirty (30) days are required for its performance, then Customer shall not be deemed to be in default if Customer commences to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion. Ascend shall not be responsible for any performance delay or failure to the extent resulting from Customer’s failure to perform its obligations hereunder.
5.3.2 In the event of Termination for Cause, such termination shall be effective immediately upon receipt of written notice. In such event, the Parties shall have all rights and remedies as provided by law.
5.4 Effects of Termination. Upon termination of this Agreement and all Work Orders: (a) all amounts owed to Ascend under this Agreement will be due and payable in accordance with Section 4; (b) Customer’s rights granted in this Agreement will immediately cease; (c) Customer shall promptly discontinue all access and use of the Platform and return or erase, all copies of the Documentation in Customer’s possession or control; and (d) Ascend sha ll promptly return or erase all Customer Data. Sections 3, 4, 5, 6, 9 and 10 survive expiration or termination of this Agreement.
5.5 Suspension. Ascend may temporarily suspend Customer’s access to the Platform if Ascend reasonably determines that: (a) suspension is required by law, regulation, or court order; or (b) Customer’s use materially threatens the security or integrity of the Platform or any third party. Ascend shall provide at least ten (10) days’ prior written notice (unless immediate suspension is required to prevent imminent harm) describing the basis for suspension and the steps Customer may take to cure. Customer shall have a reasonable opportunity to cure prior to suspension, except where immediate suspension is required by law or to prevent material harm. Suspension shall be narrowly tailored in scope and duration and shall not relieve Ascend of its obligations under this Agreement. If suspension continues for more than thirty (30) days without resolution, Customer may terminate this Agreement.
6. PROPRIETARY RIGHTS.
6.1 Customer Data. As between the parties, Customer owns all right, title, and interest in Customer Data, including all intellectual property rights therein.
6.2 Customer Data License Grant. Customer hereby grants to Ascend and its authorized representatives and contractors, during the Term, a limited, non-exclusive, non-transferable (except as permitted by Section 12.3) license to use the Customer Data solely for the limited purpose of performing the Services for Customer and fulfilling its other obligations and exercising its rights under this Agreement.
6.3 The Services. All proprietary technology utilized by Ascend to perform its obligations under this Agreement, and all intellectual property rights in and to the foregoing, as between the parties, are the exclusive property of Ascend. 6 Ascend or its third-party licensors retain ownership of all right, title, and interest to all copyrights, patents, trademarks, trade secrets, and other intellectual property rights in and to the Content and the Platform, including without limitation the Software, Documentation, customizations, and enhancements, and all processes, know -how, and the like utilized by or created by Ascend in performing under this Agreement. Any rights not expressly granted to Customer hereunder are reserved by Ascend.
6.4 Aggregated Data. Notwithstanding anything in this Agreement to the contrary Customer shall retain all right, title, and interest in and to its Customer Data. Ascend may analyze Customer Data to create a de- identified or aggregated data set that does not identify Customer or its Users ( collectively, “Aggregated Data”). Ascend retains ownership of all right, title, and interest in and to Aggregated Data, and shall ensure that any Aggregated Data is created and maintained in accordance with then -current industry standards for de -identification and may not reasonably be re -identified. Ascend may use Aggregated Data only for internal business purposes, including improving and providing the Services . Ascend shall not publicly reference Customer’s use of the Services without Customer’s prior written consent.
6.5 Usage Data. Ascend retains ownership of all right, title, and interest in and to the Usage Data. Ascend may use Usage Data solely in de-identified and aggregate form in connection with its performance of its obligations in this Agreement and for internal business purposes, including benchmarking, data analysis, and to improve Ascend’s services, systems, and algorithms. Usage Data shall not identify Customer, its Users, or Customer Data.
7. WARRANTY; DISCLAIMERS.
7.1 Access to the Platform. Ascend warrants that the Platform will perform materially in accordance with the Documentation and this Agreement. Ascend does not warrant that the Platform will be completely error -free or uninterrupted. If Customer notifies Ascend of a reproducible error in the Platform that indicates a breach of the foregoing warranty (each, an “Error”) within 30 days after Customer experiences such Error, Ascend shall, at its own expense and as its sole obligation and Customer’s exclusive remedy: (a) use commercially reasonable efforts to correct or provide a workaround for such Error; or (b) if Ascend is unable to correct or provide a workaround for such Error within 60 days after receiving notice of such Error from Customer, Customer may terminate this Agreement upon notice to Ascend and, Ascend shall refund the amounts paid by Customer for access to the Platform for the period during which the Platform was not usable by Customer. The warranties set forth in this Section 7.1 do not apply to , any Third Party Offerings or cover, any Error caused by: (i) Customer or its Users; (ii) use of the Platform in any manner or in any environment inconsistent with its intended purpose; (iii) Customer’s hardware or software if modified or repaired in any manner which materially adversely aff ects the operation or reliability of the Platform; or (iv) any equipment, software, or other material utilized by Customer in connection with the Platform contrary to the provider’s instructions.
7.2 No Conflict of Interest Ascend represents and warrants that it will not provide the same Services provided under this Agreement to any other battery storage market participants at the same node as Customer (each, a “Conflict of Interest”). Ascend shall promptly notify Customer if a Conflict of Interest arises. If Customer objects to the conflict of interest, but Ascend elects to proceed with such new customer, then Customer shall be entitled to terminate this Agreement immediately without liability except for obligations that accrued prior to such termination.
7.3 Right to Customer Data. Customer represents and warrants that it has the right to: (a) use the Customer Data as contemplated by this Agreement; and (b) grant Ascend the license in Section 6.2.
7.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, NEITHER PARTY MAKES
ANY WARRANTIES OF ANY KIND AND EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER
WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION,
ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. CUSTOMER ACKNOWLEDGES THAT, ASCEND, IN CONNECTION WITH THE
SERVICES, WILL BE MAKING RECOMMENDATI ONS AND PROVIDING ADVICE BUT IS NOT RESPONSIBLE FOR MANAGING CUSTOMER’S ASSETS AND ALL DECISIONS AS TO IMPLEMENTING
SUCH ADVICE AND RECOMMENDATIONS AND MANAGING SUCH ASSETS WILL BE MADE BY CUSTOMER AND WILL BE CUSTOMER’S SOLE RESPONSIBILITY. CUSTOMER ACKNOWLEDGES THAT
IT IS RESPONSIBLE FOR REVIEWING ANY RECOMMENDATIONS AND ADVICE PRODUCED IN CONNECTION WITH THE SERVICES TO CONFIRM THAT IT IS APPROPRIATE FOR CUSTOMER’S BUSINESS. ASCEND MAKES NO WARRANTY REGARDING THE RELIABILITY, TIMELINESS,
SUITABILITY, OR ACCURACY OF THE SERVICE OR ANY ADVICE OR RECOMMENDATIONS
PRODUCED IN CONNECTION THEREWITH, ANY RESULTS CUSTOMER MAY OBTAIN BY IN 7 CONNECTION WITH THE SERVICES OR IMPLEMENTING ANY ADVICE OR RECOMMENDATIONS OR THAT THE SERVICES OR ANY ADVICE OR RECOMMENDATIONS WILL ACHIEVE CUSTOMER’S INTENDED RESULTS. ASCEND MAKES NO WARRANTY REGARDING THE RESULTS OR SPECIFIC
OUTCOMES THAT CUSTOMER MAY OBTAIN IN CONNECTION WITH THE SERVICES OR THAT SUCH RESULTS WILL MEET CUSTOMER’S EXPECTATIONS.
8. INSURANCE
8.1 Without limiting Customer ’s right to indemnification, it is agreed that Ascend shall secure, prior to commencing any activities under this Agreement, and maintain, during the term of this Agreement, minimum limits of insurance coverage as follows:
8.1.1 Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000.
8.1.2 Commercial General Liability Insurance , including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, as well as Independent Consultant’s Liability where appropriate, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate. Such insurance shall be written on a primary basis but may include a deductible or self-insured retention of more than $10,000 per occurrence, provided that such deductible or self -insured retention is disclosed to Customer, in writing, prior to the inception of this Agreement.
8.1.3 Commercial Automobile Liability Coverage as required by California law, including—as applicable—owned, non- owned, and hired autos, in an amount not less than $2 ,000,000 per occurrence, combined single limit.
8.1.4 Professional Liability Insurance , inclusive of Cyber Liability Insurance, where required, in an amount not less than $2,000,000. Such insurance shall be written on a primary basis but may include a deductible or self -insured retention of more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to Customer, in writing, at the inception of this Agreement.
8.2 Any required coverage written with primary and excess layers to satisfy the minimum requirements of this Agreement must be submitted for approval to Customer’s Risk Manager prior to the inception of the final Agreement.
8.3 Ascend is responsible for the satisfaction of any deductible or self-insured retention obligation.
8.4 Ascend agrees that this insurance shall not be voluntarily cancelled by Ascend or limited in scope or coverage by Ascend until after thirty (30) days prior written notice has been given to the City Clerk, City of Anaheim, 200 S.
Anaheim Blvd., Anaheim, CA 92805. This does not apply to cancellation for non-payment of premium, which requires notice of not less than ten (10) days.
8.5 Each insurance policy required by this Agreement, except policies for Professional Liability and Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
8.5.1 “It is agreed that any insurance maintained by Provider, pursuant to this Agreement shall be primary to, and not contribute with, any insurance or self-insurance maintained by the City of Anaheim.”
8.5.2 “The City of Anaheim, its officers, agents, employees, representatives and volunteers are included as additional insureds with respect to the scope of work, operations and/or activities of or performed on behalf of or at the direction of the Named Insured, performed under this Agreement with the City of Anaheim.”
8.6 Prior to commencing any work under this Agreement, Ascend shall deliver to Customer insurance certificates confirming the existence of the insurance required under this Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreement, Ascend shall provide Customer: (i) endorsements to the insurance policies that add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documentation acceptable to Customer evidencing that the coverage, terms, and conditions set forth in the above -referenced clauses are otherwise included in said insurance policies. Insurance required hereunder shall be placed with insurers (i) admitted to write insurance in California, (ii) possessing an A. M.
Best’s rating of A VII or higher, or (iii) otherwise acceptable to Customer , with prior written permission from Customer. In the event that a claim or other legal action is filed against Customer , and if Customer, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then Customer has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the Parties agree that Ascend shall fully defend, hold harmless, and indemnify Customer against any such claim or other legal action.
8.7 In addition to other remedies Customer may have if Ascend fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time required, Customer may, at its sole option:
8 8.7.1 Order Provider to stop work under this Agreement and/or withhold any payment(s) that become due to Provider hereunder until Provider demonstrates compliance with the requirements hereof; or
8.7.2 Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies Customer may have and is not the exclusive remedy for Ascend’s failure to maintain insurance or secure appropriate endorsements.
8.8 Nothing contained in this Section 8 shall be construed in any way as limiting the extent that Ascend may be held responsible for payments of damages to persons or property resulting from Ascend ’s (or Ascend ’s Agent or Subcontractor(s), if any) performance of the work covered under this Agreement.
8.9 In the event Ascend hires other persons or firms to perform some of the work related to this Agreement, Ascend shall ensure (i) that the acts or omissions of such persons or firms are covered under the above -referenced liability insurance, or (ii) that such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of Ascend under this Agreement (except for firms that are not performing professional services—such firms shall not be required to carry the above-referenced professional liability insurance); and in either instance, Ascend shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to Customer.
8.10 Customer’s Risk Manager is hereby authorized to amend or reduce the requirements set forth herein if such customer-generated reduction request is in Customer’s best interest.
9. INDEMNIFICATION.
9.1 General Indemnity. Ascend shall indemnify, defend Customer , and hold harmless C ustomer, its officials, officers, employees, agents, and representatives, from and against any and all claims , demands, suits, actions, losses, damages, liabilities, judgments, costs, or expenses (including reasonable attorneys’ fees and defense costs) of any kind or nature (collectively, “Claims”) arising out of or in connection with any bodily injury (including death) or property damage caused by Ascend’s negligence or willful misconduct in its performance of this Agreement; except to the extent such Claims resu lt from the sole negligence or willful misconduct of Customer . Customer shall (a) promptly notify Ascend in writing of any such Claim, (b) permit Ascend to have sole control of the defense and settlement thereof (provided that no settlement shall impose any admission of liability or financial obligation on C ustomer without its prior written consent), and (c) reasonably cooperate in such defense at Ascend’s expense .
9.2 Intellectual Property Indemnity. Without limiting the generality of the foregoing, Ascend shall defend any claim, suit, or action brought by a third party against Customer to the extent based on an allegation that the Software, Platform, or related services provided by Ascend under this Agreement infringe or misappropriate any valid U.S. patent, copyright, trademark, trade secret, or other intellectual property right of suc h third party (an “IP Claim”), and Ascend shall indemnify and hold C ustomer harmless from and against all damages, los ses, liabilities, costs, and expenses (including reasonable attorneys’ fees) specifically attributable to such IP Claim, or those amounts agreed to in settlement of such IP Claim. Customer shall (a) promptly notify Ascend in writing of any such IP Claim, (b) permit Ascend to have sole control of the defense and settlement thereof (provided that no settlement shall impose any admission of liability or financial obligation on C ustomer without its prior written consent), and (c) reasonably cooperate in such defense at Ascend’s expense. If the Software or Platform becomes, or in Ascend’s opinion is likely to become, the subject of an IP Claim, Ascend shall, at its sole option and expense, either: (i) procure for C ustomer the right to continue using the Software/Platform; (ii) replace the Software/Platform with a non -infringing but functionally equivalent product; (iii) modify the Software/Platform to make it non -infringing without materially reducing its functionality; or (iv) if none of the foregoing is commerci ally practicable, terminate this Agreement and refund to C ustomer any prepaid fees attributable to the period during which C ustomer was unable to use the Software/Platform. Ascend shall have no obligation under this Section 9.2 with respect to any IP Claim arising from:
(1) use of the Software/Platform not in accordance with this Agreement; (2) use of the Software/Platform in combination with equipment, software, or data not supplied or approved in writing by Ascend, if the IP C laim would not have arisen but for such combination; (3) modification of the Software/Platform by anyone other than Ascend or its authorized agents; or (4) use of any Third-Party Offering.
9.3 Reciprocal Indemnity (Customer Data) .
Customer shall indemnify, defend, and hold harmless Ascend from and against any Claims brought by a third party arising out of C ustomer’s use, transmission, or provision of Customer Data to the extent such Claims allege that the Customer Data infringes or misappropriates the intellectual property rights of such third party, except to the extent such Claims result from Ascend’s use of the Customer Data in violation of this Agreement.
9 10. LIMITATIONS OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST
DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING
FROM OR RELATING TO THIS AGREEMENT, HOW EVER CAUSED AND UNDER ANY THEORY OF
LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION
WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWIS E, WILL NOT EXCEED
THE AMOUNT OF FEES PAID OR OWED BY CUSTOMER TO ASCEND UNDER THIS AGREEMENT
DURING THE INITIAL TERM OR RENEWAL TERM, AS THE CASE MAY BE, DURING WHICH THE EVENTS GIVING RISE TO SUCH LIABILITY OCCURRED. THE EXCLUSIONS AND LIMITATION OF LIABILITIES SET FORTH IN THIS SECTION 10 DO NOT APPLY TO A PARTY’S OBLIGATIONS UNDER SECTION 9, “INDEMNIFICATION.”
11. CONFIDENTIALITY.
11.1 Definitions. “Confidential Information” means all information disclosed by one P arty (“Discloser”) to the other Party (“Recipient”) under this Agreement during the Term. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party.
Ascend’s Confidential Information includes Software and Documentation. Cust omer’s Confidential Information includes Customer Data.
11.2 Protection. Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Agreement and shall not disclose Confidential Information to anyone other than Recipient’s employees and independent contractors who have a need to know such Confidential Information for purposes of this Agreement and who are subject to confidentiality obligations no less restrictive than Recipient’s obligations under this Section 1 1.
Recipient will be liable to the Discloser for any of its emplo yees’ and independent contractors’ acts or omissions, which, if performed by Recipient, would constitute a breach of this Section 1 1 Recipient shall protect Confidential Information from unauthorized use, access, and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
11.3 Exceptions. Recipient will have no confidentiality obligations under Section 11.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient prior to Discloser’s disclosure; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the P arty who disclosed the information; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of Confidential Information. Recipient may disclose Confidential Information if required to as part of a judicial process, government investigation, legal proceeding, or other similar process on the condition that, to the extent permitted by applicable law, Recipient gives prior written notice of such requirement to Discloser.
Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modifi cation of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser. Nothing in this Agreement shall be construed to require Customer to withhold disclosure of records if disclosure is required under the California Public Records Act or other applicable law.
11.4 Remedies. Any unauthorized disclosure or use of Confidential Information constitutes a material breach.
The Receiving Party shall promptly notify the Disclosing Party of any such breach and take all necessary actions to recover the improperly disclosed information. The Parties agree that a breach of this Section may cause irreparable harm, for which monetary damages are inadequate, and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, in addition to any other remedies available at law or equity.
11.5 Return or Destruction. Within two (2) weeks of the termination of this Agreement, Ascend will return to Customer or destroy, to the extent permitted by law, any and all Confidential Information, including all originals, copies, translations, transcriptions, or any other form of said material without retaining any copy or duplicate thereof; provided that Ascend may retain Confidential Information contained on backup media created in the ordinary course of business; provided further that there is no effort to access such Confidential Information, and Ascend’s confidential obligations with respect to such information shall continue so long as such information is retained. Ascend shall certify in writing the destruction of the Confidential Information. Customer may perform an audit of Ascend ’s records to confirm the return or destruction of the Confidential Information. Customer shall have this audit right for three (3) years after the termination of this Agreement.
10 11.6 Survival. Notwithstanding the termination of this Agreement, this Confidentiality Section shall survive the expiration or earlier termination of this Agreement.
12. GENERAL.
12.1 Independent Contractor. The relationship of the P arties established under this Agreement is that of independent contractors and neither P arty is a partner, employee, agent, or joint venture partner of or with the other, and neither Party has the right or authority to assume or create any obligation on behalf of the other P arty.
12.2 Subcontractors. Ascend may utilize subcontractors, subprocessors, and other third- party service providers (collectively, “Subcontractors”) in the performance of its obligations, provided that Ascend will remain liable and responsible for the Subcontractors’ acts and omissions to the extent any of such acts or omissions, if performed by Ascend, would constitute a breach of, or otherwise give rise to liability to Ascend under, this Agreement when they are performing for or on behalf of Ascend.
12.3 Publicity. During the Term of this Agreement , Ascend shall not use Customer’s trademark , logo, or any other identifying mark in any press release, written materials , website, or other promotional materials without : (a) providing prior written notice to Customer of the proposed used, and (b) obtaining Customer’s prior written permission for each specific instance of such. Notwithstanding the foregoing, any permitted use shall remain subject to Customer’s brand guidelines and Ascend’s obligations under Section 11.
12.4 Assignment. Neither Party may assign this Agreement or any of its rights under this Agreement to any third party without the other P arty’s prior written consent, except that a P arty may assign this Agreement without consent from the other Party to (a) an Affiliate; or (b) any successor to its business or assets to which this Agreement relates, whether by merger, acquisition, or sale of all or substantially all of its assets, or otherwise. Any attempted assignment in violation of the foregoing will be void and of no force or effect.
12.5 Time of Performance; Force Majeure. Ascend shall perform and complete all Services with the degree of skill, care, and diligence normally exercised by professionals in the same discipline under similar circumstances, consistent with the applicable standard of care.
12.5.1 Ascend’s failure to adhere to meet the specified deadlines without prior written approval from Customer, or to perform in accordance with the standard of care described herein, may constitute a material breach of this Agreement resulting in Customer’s election to terminate this Agreement, and pursue any remedies available at law or equity.
12.5.2 The time period(s) specified for performance of the Services rendered, pursuant to this Agreement, shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Ascend, including, but not restricted to, acts or omissions of Customer, acts of God or of the public enemy; unusually severe weather, fires, earthquakes, floods, pestilence, or other natural catastrophes; epidemics; quarantine restrictions; riots; strikes; freight embargoes; wars; litigation; civil disturbance or disobedience; labor dispute; labor or material shortage; sabotage; change in government priorities; restraint by court order or public authority; and action or non-action by or inability to obtain the necessary authorization or approvals from any governmental agency or authority, and/or acts of any governmental agency, including Customer , which by the exercise of due diligence such Party cannot reasonably be expected to avoid and by which exercise of due diligence has been unable to overcome, if Provider shall within ten (10) days of the commencement of such delay notify Customer’s Project Administrator in writing of the causes of the delay. Customer’s Project Administrator shall ascertain the facts and the extent of delay and may extend the time for performing the Services for the period of the delay if, in the judgment of Customer’s Project Administrator, such delay is justified. Customer’s Project Administrator’s determination shall be final and conclusive upon the Parties. In the event of delay, however caused, Ascend’s sole remedy shall be an extension of the Term, pursuant to this Section, and Ascend shall not be entitled to recover damages against Customer.
12.6 Notices. To be effective, notices under this Agreement must be delivered in writing to the other P arty at the physical or email address for each Party set forth below and will be effective upon receipt. Each Party may update its notice address in accordance with this provision.
11 For Ascend:
Ascend Analytics LLC
1877 Broadway, Suite 706
Boulder, CO 80302
For Customer:
Public Utilities General Manager
City of Anaheim
201 S. Anaheim Blvd., Suite 1101
Anaheim, California 92805
With Copies to:
Anaheim City Clerk
City of Anaheim
200 S. Anaheim Blvd., 2nd Floor
Anaheim, California 92805
12.7 Governing Law; Venue. The laws of the State of California govern this Agreement and any matters related to this Agreement, without regard to any conflicts of laws principles that would require the application of the laws of a different jurisdiction. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in Orange County, C alifornia in any litigation arising out of this Agreement or the Services.
12.8 Remedies Cumulative. The remedies given to Customer and Ascend herein shall be cumulative and are given without impairing any other rights given to Customer or Ascend by statute or law now existing or hereafter enacted, and the exercise of any one remedy by Customer or Ascend shall not exclude the exercise of any other remedy.
12.9 Compliance with Laws. Each Party shall comply with all laws, rules, and regulations, applicable to that Party in connection with this Agreement.
12.10 Waivers. To be effective, any waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.11 Severability. If any provision of this Agreement is unenforceable, the other provisions of this Agreement will be unimpaired, and the unenforceable provision will be deemed modified so that it is enforceable to the maximum extent permitted by law (unless such modificat ion is not permitted by law, in which case such provision will be disregarded).
12.12 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
12.13 Entire Agreement. This Agreement, including any exhibits or attachments thereto, constitutes the final and entire agreement between the Parties regarding the subject hereof and supersede all other agreements, whether written or oral, between the parties concerning such subject matter. No terms and conditions proposed by either Party will be binding on the other Party unless accepted in writing by both P arties, and each Party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of this Agreement and the provisions of any Work Order, the provisions of the Agreement will govern unless the Work Order specifically overrides this Agreement. No amendment to this Agreement will be effective unless in writing and signed by the Party to be charged.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the Parties have caused l.his Agreement to be executed on the dates hereinafter respectively set forth.
ASCEND ANALYTICS LLC, a Colorado limited liability company:
Signature
ushton McGarr
Printed Nanie
Chief Financial Officer
Title Date
/y i7 zC
CITY OF ANAHEIM, a California municipal corporation:
Signature
Dukku Lee
Printed Naiv.e
Public Utilities General
Mana Ter
Title Date
ATTEST
Signature
Theresa Bass
Printed Name
City Clerk
Title Date
APPROVED AS TO FORM:
ANAHEIM CITY ATTORNEY'S OFFICE
Signature
(156703)
Gloria V. Ramirez
Printed Name
De. utv Cit' Attorne '
Title Date
12 A-1
EXHIBIT A
FORM OF POWERSIMM LICENSE PRICING AND BILLING INFORMATION
This Work Order (“ Work Order”) is dated December 22th, 2025 (the “ Work Order Effective Date ”) and is between Ascend Analytics, LLC, a Colorado limited liability company (“ Ascend”) and City of Anaheim, (“Customer”) and governs Customer’s access to and use of the Platform and Ascend’s provision of the Services under the Master Services Agreement to which it is attached (“MSA”) . Capitalized terms used in this Work Order but not defined have the meaning given to them in the MSA.
CUSTOMER INFORMATION
Contact: Andrew Markis
Company Address: 201 S. Anaheim Blvd., Suite 802, Anaheim, CA 92805 Billing Terms: Annual
Payment Terms: Net 30
Invoice Submission Email Address [email protected]; [email protected]; [email protected]; [email protected]
With Copies to: [email protected]
PO Required [1] No PO Number: N/A
Upload to Vendor Portal Required No Vendor Portal: N/A
INITIAL TERM
• The Initial Term begins on the Work Order Effective Date and continues for 60 months.
SOFTWARE SERVICES
Product Quantity Users Term Price/Percentage
PowerSIMM - License -
Portfolio Manager 1 5 12/22/2025 –
12/21/2026 $175,201
PowerSIMM - License -
Portfolio Manager 1 5 12/22/2026 –
12/21/2027 $175,201
PowerSIMM - License -
Portfolio Manager 1 5 12/22/2027 –
12/21/2028 $175,201
PowerSIMM - License -
Portfolio Manager 1 5 12/22/2028 –
12/21/2029 $175,201
A-2
PowerSIMM - License -
Portfolio Manager 1 5 12/22/2029 –
12/21/2030 $175,201
PowerSIMM - License -
Resource Planning 1 5 12/22/2025 –
12/21/2030
Included in Portfolio
Manager Pricing Bundle
Market Intelligence -
License 1 5 12/22/2025 –
12/21/2030
Included in Portfolio
Manager Pricing Bundle
PowerSIMM - Setup 1 $80,000*
Support Hours 100 Annually - Included in
Bundle
Total Contract Value (TCV)
for Initial Term (Year 1-5) $956,005**
*PowerSIMM – Setup. If Anaheim elects not to utilize the PowerSIMM - Setup, the US $80,000 shall instead be applied toward additional Support Hours, raising the allocation from 100 hours per year to a total of 728 Support Hours over the Initial Term (Term Year 1 – Term Year 5). If PowerSIMM – Setup is applied toward additional Support Hours, the total 728 Support Hours may be used throughout the Initial Term, but only 50% (364) of the hours may be accessed within Year 1 of the Initial Ter m.
RENEWAL TERM
• Five optional one-year renewals with a 4% annual increase.
SOFTWARE SERVICES
Product Quantity Users Term Price/Percentage
PowerSIMM - License -
Portfolio Manager 1 5 12/22/2030 –
12/21/2031 $182,209
PowerSIMM - License -
Portfolio Manager 1 5 12/22/2031 –
12/21/2032 $189,497
PowerSIMM - License -
Portfolio Manager 1 5 12/22/2032 –
12/21/2033 $197,077
PowerSIMM - License -
Portfolio Manager 1 5 12/22/2033 –
12/21/2034 $204,960
PowerSIMM - License -
Portfolio Manager 1 5 12/22/2034 –
12/21/2035 $213,159
PowerSIMM - License -
Resource Planning 1 5 12/22/2030 –
12/21/2035
Included in Portfolio
Manager Pricing Bundle
Market Intelligence -
License 1 5 12/22/2030 –
12/21/2035
Included in Portfolio
Manager Pricing Bundle
A-3
Support Hours 100 Annually - Included in
Bundle
Total Contract Value (TCV)
for Renewal Term (Year 6 -
10)
$986,902
Upon renewal of this Work Order, Ascend may increase the Fees for Services as defined in the Work Order. If Ascend exercises its right to increase Fees, such an increase will become effective upon the Renewal Term (as defined in the MSA) for this Work Order, and this Work Order will be deemed amended to reflect a fee increase not to exceed 4% annually. Such a fee increase will be applied to the fees under that work order in the subsequent term.
[1] If you would like your invoice to reference a purchase order (PO), please provide the information above (Customer to complete). Failure to provide a PO number, or a delay in providing a PO number, does not extend the payment period, which begins on your receipt of the invoice. If you do not provide a subsequent PO number for subsequent Orders, Ascend will continue to reference the original PO number. Ascend references your PO for administrative convenience only, and pursuant to this agreement, no add itional terms on your PO apply to this Order.
B-1
EXHIBIT B
POWERSIMM LICENSE INCLUSIONS AND RESTRICTIONS
SOFTWARE, PLATFORM, IMPLEMENTATION SERVICES, AND SUPPORT SERVICES DESCRIPTION • A general description of the software, platform, support and implementation services has been provided to the customer in Exhibit C.
• The software license and service tier covered under this Work Order includes the following selections and options:
STANDARD INCLUSIONS
Software Product Family:
☒PowerSIMM
☒ Valuation (Base):
Stochastics
Portfolio Effect
All Tech
Valuation Any Node,
Dispatch to Load or
Price
☒ Portfolio Manager: All Base
features, plus:
Mark-to-
Market Reporting
Automated
Scheduled Studies
Portfolio Hedge
Management
Integrated ICE
Forward Data
RA Slice of Day
Optimizer
☐ Ops: All Portfolio Manager
and Base features, plus:
Next 14-Day
Detailed
Simulation with
Daily Data Feed
Automated
Studies
☒ Planner: All Base features,
plus:
Capacity
Expansion with
ARS
RA Slice of Day
Optimizer
HOSTING TIER
Users Storage Computational Hours API Access
☒ Core: Up to 5 Users Up to 5 TB 100,000 No
B-2
☐ Advanced: Up to 10 Users Up to 10 TB Storage 250,000 Yes ☐ Pro Contact Ascend Contact Ascend Contact Ascend Yes
STANDARD INCLUSIONS
Software Product Family:
☐ Asset Valuation
☒ MI Wholesale
☐ MI Retail Rates
☒Silver:
Wholesale
Storage Valuation
Wholesale Market
Forecasts
Retail Rate
Forecasts
Wholesale
Hybrid Valuation
MI Visualizations:
Wholesale Markets
Retail Rate Market
Reports
Nodal Price
Forecast &
Valuation
MI Maps:
Geospatial nodal
metrics, transmission
data, IRA mapping,
and more
MI Visualizations:
Retail Rates
☐Gold: All Silver Features,
plus:
Asset Valuation
API
MI Maps: ArcGIS
Feature Service
CAISO PPA Report
☐VDER Add-On
VDER Hybrid
Valuation
VDER Storage
Valuation
MARKET INTELLIGENCE ACCESS TIER
Wholesale Market Access:
☒ CAISO
☐ ERCOT
☐ SPP
☐ NYISO
☐ ISO-NE
☐ PJM
☒ WECC
☐ SERC
☐ Netherlands
☐ Japan
B-3
☐ MISO
☐ Great Britain
Retail Rate State Access: ☐ California
☐ Illinois
☐ Maine
☐ Maryland
☐ Mass
☐ New Hampshire
☐ New York
☐ Pennsylvania
☐ Rhode Island
☐ Vermont
☐ VDER Rates Only
C -1
EXHIBIT C
POWERSIMM LICENSE SOFTWARE DESCRIPTION
Offering Description Use
One Time
Set Up
Ascend will configure the existing Anaheim
portfolio into PowerSIMM. This includes
portfolio set-up, validation, and a
production cost study to assess the current
portfolio performance.
Valuation PowerSIMM Valuation is designed to provide
individual asset or portfolio level valuations
for longer periods (e.g. 10-year budgets and
20-year asset valuations) beyond the
portfolio risk management horizon.
Extended budget and/or longer run asset
valuation studies from calendar year 6-20
depending on use case.
Ability to run stochastics for budget or valuation
uncertainty and pull iteration detail or s-stats for
proper statistical measure over longer periods for
probability-based decision analytics around
commercial budget and asset commercial
valuation.
Assets Modeled
• Thermal
• Renewables (Wind, Solar, Small Hydro, etc.)
• Hydro
• Stand-alone and Hybrid/Co-located Battery
Storage (hourly)
• Contracts
• Transmission
Portfolio
Manager
PowerSIMM Portfolio Manager is designed to
analyze and manage risk in the “term”
position from approximately 1 month to 5
full calendar years out. PowerSIMM
Portfolio Manager can facilitate Customer to
“lock-in” profits / preserve margin in
alignment with performance metrics /
budget forecasts, maintain competitive
advantage through periods of adverse
market conditions, and generate profits
through dynamic hedging and DER
dispatch.
Simulation Engine
• Forecasted Monthly Forward Prices for
Energy
• Weather
• Load
• Spot Prices
• Renewables (Wind & Solar)
• Incorporate Market Intelligence datasets
and forecasts of market prices
Portfolio Manager analysis allows you to value
and evaluate impact of new projects for
simulations horizon of up to 5 full forward
calendar years into the future.
PowerSIMM functionality allows you to assess
hedge transactions of various types and their
relative risk reduction value to the portfolio
including:
• Swaps
• Shaped fixed-price swaps
• Futures
• Call/Put options
• Daily call/put options
• CRRs Analysis
• Term portfolio management (defined as
simulations horizon from prompt month to 12
years)
• Model cost to serve load with market
interactions and transmission constraints
• Integrated portfolio modeling for physical
assets, power purchase agreements, loads, and
contracts
C-2
Simulation of wind and solar production
based on weather to align volumetric
uncertainty of production with load and
market prices.
Portfolio Management
Output of PowerSIMM portfolio variables
for term analytics:
• Generation Modeling (thermal, hydro,
pumped hydro, renewables, etc.)
• Fuel Modeling
• Cost of Supply
• Hourly marginal cost of supply
• Ancillary service modeling
• Transmission modeling, inclusive of losses
and fees.
PowerSIMM Portfolio Manager provides
insight into the impact of both physical
operations and system costs.
Analytic Framework
• Dispatch optimization
• Validation reporting
• Job management system
• Models environments credits (RECs, carbon
credits)
Commodities Modeled
• Power
• Natural Gas
• Oil
• Coal
• Emissions (CO2, NOx, SO2)
• RECs
• Ancillaries
• Other Asset Related Components
Assets Modeled
• Thermal
• Renewables (Wind, Solar, Small Hydro, etc.)
• Hydro
• Stand-alone and Hybrid/Co-located Battery
Storage (hourly)
• Contracts
• Transmission
Spot & Forward/Forecast Prices
• Markets for energy and ancillaries
• Ascend will harvest ISO and market prices
Ops PowerSIMM Ops allows for the ingestion of
daily updates to rolling 14-day+ weather and
load forecasts for portfolio risk
management in the time horizon that
expected weather is more transparent and
expected to be non-normal. Runs can be
deterministic, discrete stress tests or
stochastic with variability driven by
measured weather forecast error.
Short-term portfolio risk management and
portfolio balancing operations. Risk valuation,
positions, and P&L projections updated daily or
ad hoc to represent the best estimates of short-
term portfolio performance.
Planner Simulation Engine
• Forecasted Monthly Forward Prices for
Energy
• Weather
• Load
• Spot Prices
• Renewables (Wind & Solar)
Simulation of wind and solar production
based on weather to align volumetric
uncertainty of production with load and
market prices.
Portfolio Planning
Output of PowerSIMM portfolio variables
for long term analytics:
Analysis
• Long term resource planning (defined as
simulations horizon of up to 30 years)
• Ability to value and evaluate impact of new
projects
• Model cost to serve load with market
interactions and transmission constraints
• Integrated portfolio modeling for physical
assets, power purchase agreements, loads, and
contracts
Commodities Modeled
• Power
• Natural Gas
• Oil
• Coal
• Emissions (CO2, NOx, SO2)
C-3
• Generation Modeling (thermal, hydro,
pumped hydro, renewables, etc.)
• Fuel Modeling
• Cost of Supply
• Market Purchase & Sales
• Hourly marginal cost of supply
• Ancillary service modeling
• Transmission modeling, inclusive of losses
and fees.
PowerSIMM Planner will provide insight into
the impact on both physical operations and
system costs.
Analytic Framework
• Dispatch optimization
• Validation reporting
• Job management system
• RECs
• Ancillaries
• Other Asset Related Components
Assets Modeled
• Thermal
• Renewables
• Hydro
• Batteries (hourly)
• Contracts
• Transmission
Spot & Forward/Forecast Prices
• Markets for energy and ancillaries
Data Integration, Automation and Visualization
• Generates exportable graphs and charts and
customizable reporting (tabular and graphical) in
formats including, Excel, SQL, and SAS.
D-1
EXHIBIT D
POWERSIMM HOSTING SERVICES
1. Definitions: For the purposes of this Exhibit D, the following terms shall have the meaning described below. Terms not otherwise defined in this Exhibit D shall have the meaning as defined in the MSA.
“Computing Resources” are the computers being used to deliver Software to Licensee under this Agreement.
“Hosting Environment” shall mean the Hosting Facility (together with suitable telecommunications connectivity, power and HVAC – Heating, Ventilation and Air Conditioning), telecommunications and network monitoring, the Computing Resources, and other physical infrastructure us ed by Licensor to provide the Hosting Services.
“Hosting Facility” is located at a suitable US facility selected by Licensor in its sole discretion provided such facility meets or exceeds industry standards for security, redundancy, and reliability.
Licensee shall be notified in writing of the Hosting Facility location(s) and any subsequent changes . .
“Hosting Services” shall mean the services described in paragraph 2 (Hosting Services) below.
2. Hosting Services. During the License Term, Licensor will provide the following Hosting Services to Licensee, in consideration of the timely payment by Licensee to Licensor of the Hosting Fee set forth in the SLA:
a. Deploy, host and maintain the Software in the Hosting Environment; b. Provide Licensee with 24 hour, 7 days per week access to the Software through the Hosting Environment;
c. Maintain the Computing Resources in a manner designed to ensure proper functioning and availability of the Software;
d. Maintain the Hosting Environment in accordance with generally accepted industry practices, methods and techniques;
e. Monitor the Hosting Environment utilizing a monitoring system that will provide notification of any critical problems with the Hosting Environment;
f. Provide internet bandwidth for connection to the Computing Resources through a high- availability commercial provider, with a 99.99% core network reliability; g. Provide Licensee with no less than 48 hours advance notice of discretionary maintenance that could impact availability of the Software;
h. Provide Licensee with options to increase computational resources with clear pricing and performance benchmarks provided in advance.
3. Performance Standard for Hosting Services. Licensor shall use commercially reasonable efforts to provide the Hosting Services on a twenty-four (24) hours a day, seven (7) days a week basis throughout the term of this Agreement. Licensor shall guarantee at least 99.9% monthly uptime availability of the Software, excluding permitted downtime. Notwithstanding any contrary provision in this MSA, Licensor shall have no obligation to provide Hosting Services to the extent prevented or impaired by any of the following (collectively, "Downtime Exceptions"):
a. Actions of the Licensee or others authorized by Licensee to use the Hosting Service under the Agreement;
b. Periodic maintenance procedures or repairs that Licensor or any third party network or power provider may undertake from time to time;
c. Any Force Majeure Event or other causes beyond the control of Licensor or that are not reasonably foreseeable by Licensor, including, without limitation, interruption or failure of
D-2
telecommunication or digital transmission links, hostile network attacks, network congestion, power failure or other failure of any network internet infrastructure now owned or managed by Licensor, denial of service attack, hacker activity, or other malici ous event or code targeted against Licensor or Licensee by any third party; or
d. Periods in which Licensee has scheduled upgrades or downgrades to the Computing Resources.
4. Maintenance Standards. Licensor shall maintain the Hosting Environment in accordance with current generally accepted industry practices, methods and techniques. Licensor shall be responsible for Software maintenance and updates to virus protection, system files, operating syst ems, and the Software. Subject to the foregoing, Licensor will maintain versions of software on the Computing Resources.
5. No Unlawful Use. Licensee shall not use the Hosting Services for the transmission of spam (unsolicited commercial messages or communications in any form) or for the transmission of material in violation of applicable laws or regulations. This includes, but is not limited to, unauthorized transmission of copyrighted material, material protected by trade secret, or material that is otherwise deemed to be proprietary.
6. Security Representation. Licensor represents that the Hosting Environment, the Hosting Services and security practices used by Licensor shall meet or exceed generally accepted trade practice in the industry to appropriately safeguard the Hosting Environment, Software and Licensee's data against unauthorized access and/or interference by third parties, intrusion, theft, destruction, loss or alteration. Licensor represents that its underlying operating system and network security controls meet or exceed generally accepted trade practice in the industry to ensure the confidentiality and integrity of the Software and Licensee's data.
In the event that a security threat occurs or is believed to have occurred, and/or the Hosting Environment or Licensee's data is disabled, lost, corrupted, destroyed, or otherwise compromised (an "Incident"), Licensor or Licensee, as applicable, shall immediately notify the other Party of the Incident, including, in reasonable detail, the potential impact on the other Party of the Incident and the corrective action taken or to be taken by the applicable Party. Licensee understands that it is solely responsi ble for notifying Licensor in writing of Licensee staff changes that impact security and user access.
Ascend Analytics
CityofAnaheim
Name:
Title:
Date:
By
ASCEND ANALYTI , C
Name:_ ^
Title: ^
Date: _/^^ r
By-
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APPROVED AS TO FORM:
ANAHEM CITYATTORNEY'S <
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