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SmartBidder Licensing Agreement
GENERAL TERMS AND CONDITIONS
This Software License, Hosting, Services, and Support Agreement, together with all Appendices (the “Agreement”), is made and Effective on July 1, 2024 (“Effective Date”) by and between Ascend Analytics LLC, a Colorado limited liability company (“Licensor” or “Ascend”) and City of Vernon, a California charter City and California municipal corporation (“Customer” or “City of Vernon”) (each individually a “Party” or jointly the “Parties”).
Licensor has developed and licenses to users certain software programs and software tools marketed under the name SmartBidder™, described in Addendum B – SmartBidder (the current version of such software applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, including without limitation configurations, customizations, supplements, and modification made under this Agreement, which is provided as part of such software, are referred together herein as the “Software”).
This License also includes the option for Customer to utilize the Services under the same general terms and conditions as well as the rates contained herein for additional projects (“Projects”) or assets as identified as addenda. To exercise such an option, City of Vernon shall provide prior written notice to Ascend.
The Parties agree that Licensor will (a) provide a non-exclusive license of the Software to Customer as described below (the “License”) and (b) implement configurations to the Software and host and support the functionality of said Software (collectively, the “Services”), for the consideration and under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, terms, and conditions set forth in this Agreement, Licensor and Customer agree as follows:
1. Independent Relationship
In the performance of the work and Services under the Agreement, Ascend shall act solely as an independent private contractor in performing the work and Services hereunder. Nothing contained herein or implied shall construe the relationship as that of an employer/employee, partnership, or principal and agent.
2. Conflicts of Interest
Ascend represents and warrants that there is no conflict of interest or potential conflict of interest between Ascend’s other agreements with other battery energy storage in CAISO market participants, if any, and the Services and other activities to be performed hereunder. Ascend shall promptly notify Customer if a conflict of interest arises. Ascend shall give Customer at least sixty (60) days notice prior to providing software services to another battery storage or generation resource located at the same CAISO pricing node, electrical substation, or other transmission service interconnection point. If Customer 2 | P a g e
objects to the conflict of interest, but Ascend elects to proceed with such new customer, then Customer shall be entitled to terminate this Agreement (as defined below).
For purposes of this Agreement, “Affiliate” of a Person means any other Person directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For the avoidance of doubt, the special purpose entity that owns the Projects shall be deemed to be an Affiliate of City of Vernon.
3. License, Consideration, Invoicing, Payment, and Term Ascend hereby grants to Customer, Customer’s employees, contractor, agent, Affiliates (including the special purpose entity formed to own the Project), or entity authorized by Customer (hereby known as “Authorized Users”) a non-exclusive, worldwide, subscription license, to access via a web-based interface, execute and otherwise use the Software during the term of this Agreement, including to host, manage, operate and maintain the Software for access and use by Customer and its Authorized Users, in substantial conformity with this Agreement, and the Documentation, twenty-four (24) hours per day, seven (7) days per week every day of the year, Ascend shall ca use the Software, and each of the components and modules incorporated in the Software, including third-party software licensed by Ascend and incorporated in the Software, to at all times be integrated, compatible and interoperable in a manner that will provide the full functionality, performance and scalability of the Software to Customer and satisfy the other provisions of this Agreement. The License includes, and Ascend shall provide all corrections, updates, and new releases for the Software to Customer as they become available. The updates may contain corrections of software errors remedied by Ascend, and minor enhancements, which may extend the ways to accomplish inherent functions. The updates may also include new releases containing new features and functionality. Ascend will provide (a) a copy of Documentation changes that may accompany future Ascend product revisions and updates, if any, and (b) a written description of the corrections and enhancements resulting from such updates. As compensation to Ascend for the License and the performance of all Services described in this Agreement, Customer shall pay Ascend the rate set forth in Addendum A (Monthly Fees & Time and Material Rates). The monthly fees will be billed quarterly, starting on the Effective date, for a term of three (3) years. The term of this Agreement shall be Effective on July 1 st, 2024 and it shall continue until June 30th, 2027 which may not be more than three years from the Effective date, unless terminated at an earlier date pursuant to the provisions thereof. Customer shall pay all undisputed invoices within thirty (30) days of receipt. A late payment fee of the day per annum rate of interest equal to the “prime rate” as published in the “Money Rates” column of The Wall Street Journal plus two percent (2%) will be assessed on unpaid invoices beginning forty-five (45) days after Customer’s receipt of an invoice. Customer may condition payment on receipt of customary lien waivers to the extent that Ascend has any statutory right to assert a mechanics’ or other lien.
4. Termination
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Either party may terminate this Agreement in whole or in part at any time, for any cause or without cause, upon fifteen (15) calendar days' written notice to the other party. If the Agreement is thus terminated by Customer during the first year of the term for reasons other than Ascend's failure to perform its obligations, Customer shall pay Ascend an early termination fee equal to one quarterly payment amount as listed in Addendum A, Table 2. If the Agreement is terminated by Customer after the first year of the term for reasons other than Ascend’s failure to perform its obligations, an early termination fee equal to a prorated amount based on the services satisfactorily completed and accepted prior to the effective date of termination will be assessed. Such payments shall be Ascend's exclusive remedy for termination without cause.
5. Software Support
Ascend will provide Software support to Customer during regular business hours (8 a.m. to 5 p.m.
Mountain time). Ascend will provide static default bid files to Customer for use outside of regularsupport hours should the Software fail to produce a usable bid in compliance with CAISO protocols. Ascend shall use best efforts to fix all defects that impede the functionality of Software and refund Customer the monthly fee for months in which the Software was malfunctioning if it cannot be repaired.
Customer shall provide Ascend a reasonably detailed description and written Documentation of any suspected failure of the Software to perform in accordance with the most current Documentation (such suspected failure an “Error”) at a level of detail that allows Ascend to replicate and validate the suspected Error. Ascend will investigate related facts and circumstances, and Customer agrees to cooperate fully with Ascend’s investigation. Ascend will use best efforts to correct or resolve the error and will work diligently to provide a resolution as quickly as is reasonably possible. Ascend shall regularly report regarding the status of its efforts toward resolution.
Ascend shall provide Customer with the “Documentation” that will accurately and completely describe the functions and features of the software and services, including all subsequent revisions thereto. The Documentation shall be understandable by a typical end-user and shall provide Authorized Users with sufficient instruction such that an Authorized User can become self-reliant with respect to access and use of the Services. The Customer shall have the right to make additional copies available to Authorized Users.
6. Insurance and Taxes
6.1. Insurance. Both Parties are responsible for maintaining their own insurance coverage, including, but not limited to, health and medical, automobile, and comprehensive insurance, if required by law in the state of Colorado where Ascend does business or performs Services to this Agreement.
6.1.1. Terms and Provisions of Policies. All policies of insurance that this Agreement requires Ascend to maintain shall:
6.1.1.1. provide that, without thirty (30) days prior written notice sent to Customer, they may not be canceled or non-renewed;
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6.1.1.2. with the exception of worker’s compensation/employer liability insurance and any professional liability insurance/errors and omissions insurance that may be required, be primary to and not excess to or on a contributing basis with any insurance or self-insurance maintained by any additional insured(s);
6.1.1.3. with the exception of worker’s compensation/employer liability insurance and any professional liability insurance/errors and omissions insurance that may be required, be endorsed to name the following as additional insureds: Customer and its subsidiaries and Affiliates; the directors, officers, employees, and agents of Customer and its subsidiaries and Affiliates; and the successors and assigns of all of the foregoing (the “Additional Insureds”);
6.1.1.4. as to policies required by this Agreement to name Additional Insureds, provide for severability of interests or cross liability as to all insureds (whether named or otherwise); and
6.1.1.5. be written on an occurrence basis (except that any professional liability insurance may be required may be written on a claims-made basis) and issued by insurance carriers reasonably acceptable to Customer.
6.1.2. Specific Coverages. Ascend shall maintain the following insurance policies:
6.1.2.1. Commercial General Liability, on an occurrence basis, with a combined single limit of One Million Dollars ($1,000,000) per occurrence and an annual aggregate limit of Two Million Dollars ($2,000,000). Such policy shall contain a waiver of subrogation endorsement in favor of the Additional Insureds;
6.1.2.2. Comprehensive Automobile Liability, with a combined single limit of One Million Dollars ($1,000,000). Such policy shall contain a waiver of subrogation endorsement in favor of the Additional Insureds;
6.1.2.3. Workers’ Compensation, in statutorily required amount(s), and employer’s liability insurance of not less than One Million Dollars ($1,000,000) per accident; provided, that if Ascend is not required by law, Ascend shall execute and deliver to Customer a Worker’s Compensation Insurance waiver provided by Customer. Such policies shall contain a waiver of subrogation;
6.1.2.4. Umbrella Excess Liability of not less than Two Million Dollars ($2,000,000). Such coverage shall be on a per “occurrence” basis and over and above and shall not contain endorsements that restrict coverages described in this Section 5. Such policy shall include a waiver of subrogation endorsement in favor of the Additional Insureds. 5 | P a g e
6.1.3. Insurance Coverage; Miscellaneous. Notwithstanding anything to the contrary in this Agreement, the liabilities of Ascend under this Agreement shall not be terminated, reduced, or otherwise limited by any expiration or termination of insurance coverages.
6.1.4. Subrogation Waiver. Except as otherwise provided in this Section 5, Customer and Ascend waive all subrogation rights against (1) each other and (2) any of the other’s subsidiaries, Affiliates, subcontractors (of any tier), agents, and employees for damages caused by fire or other causes of loss to the extent covered by property insurance applicable to the Services.
6.2. Taxes and Levies. As independent entities, both Parties are responsible for their own local, state, federal, or other taxes or levies that may be due on the fees paid under this Agreement, including Social Security, Value Added Tax (VAT), and payroll taxes. Such taxes will not be reimbursed by Customer, nor does Customer accept any responsibility with respect to non-payment of any such taxes which may be due.
7. Security, Safety, and Health Regulations
Ascend agrees to comply with all applicable institutional, local, state, and national health and safety regulations and City of Vernon’s applicable safety policies, a copy of which will be provided to Ascend prior to the commencement of Services when performing any work or Services hereunder.
8. Indemnification
To the fullest extent permitted by law, each Party (an “Indemnitor”) shall defend, indemnify and hold harmless the other Party, its Affiliates, members, partners, contractors, subcontractors and agents, and the directors, shareholders, officers, agents and employees of each of them, from and against all Losses (as defined below) which are caused by or arising out of the fault or negligent acts or omissions, whether active or passive, of the Indemnitor in connection with activities or Services under this Agreement or resulting from any breach by the Indemnitor of any provision of this Agreement. Notwithstanding the foregoing, no such indemnification shall be provided by Customer to Ascend for fraudulent or illegal acts or acts of willful misconduct of Ascend in connection with activities or Services provided pursuant to this Agreement.
Ascend shall defend, indemnify and hold harmless any Customer Related Party (as defined below) against Losses (as defined below) (whether incurred for Customer’s primary defense or enforcement of its indemnification rights) on account of (a) the violation or alleged violation of any applicable laws by Ascend or its authorized agents, in connection with the performance of Services or this Agreement (including any fines, penalties, assessments or injunctive obligation) caused by or arising out of, or in connection with the actions or omissions of Ascend in connection with the performance of the Services or this Agreement; (b) any claim by a third-party that the Services or item provided pursuant to this Agreement infringe upon any patent, trademark, copyright, service mark, license, trade secret or other proprietary or intellectual property right of any third-party; and (c) any claims by any governmental entity requiring any Customer Related Party to pay any wages that Ascend has the obligation to pay its employees in accordance with 6 | P a g e
any applicable law. “Customer Related Party” means each Customer, any lender or investor, and their respective agents, directors, officers, employees, and Affiliates. “Losses” means all claims, demands, or causes of action, suits, damages, liabilities, judgments, losses, and expenses (including, without limitation, attorneys’ fees and litigation costs).
9. Limitation of Liability
EXCEPT WITH RESPECT TO THE DAMAGES EXCEPTIONS (AS DEFINED BELOW), IN NO EVENT SHALL EITHER
PARTY, OR AN OFFICER, DIRECTOR, MEMBER, PARTNER, SHAREHOLDER, EMPLOYEE, AGENT OR AFFILIATE
OF EITHER PARTY, BE LIABLE FOR SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OF ANY NATURE WHATSOEVER ARISING OUT OF THIS AGREEMENT, IRRESPECTIVE OF
WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE AND IRRESPECTIVE OF WHETHER SUCH
CLAIMS ARE BASED UPON NEGLIGENCE, STRICT LIABILITY, CONTRACT, OPERATION OF LAW OR
OTHERWISE AND THE LIMITATION OF LIABILITY SHALL NOT EXCEED, FOR EITHER PARTY, THE GREATER OF (A) THE AMOUNTS PAID OR PAYABLE TO ASCEND BY CUSTOMER UNDER THIS AGREEMENT, INCLUDING ALL ADDENDA, IN THE 18 MONTHS PRECEDING THE DATE OF THE OCCURRENCE OF THE APPLICABLE EVENT, ACT OR OMISSION GIVING RISE TO THE APPLICABLE CLAIM (OR IF LESS THAN 18 MONTHS HAVE ELAPSED SINCE THE EFFECTIVE DATE, THEN 18 TIMES THE AVERAGE MONTHLY CHARGES PAID OR PAYABLE DURING THE ELAPSED TIME SINCE THE EFFECTIVE DATE, AND (B) [INSERT AMOUNT EQUAL TO [18] MONTHS OF EXPECTED CHARGES]. THE LIMITATION ON TYPES AND AMOUNTS OF DAMAGES
IMPOSED BY THIS SECTION OF THE AGREEMENT SHALL NOT APPLY WITH RESPECT TO ANY REQUIRED INSURANCE COVERAGE AND/OR INSURANCE PAYMENTS, OR: (V) DAMAGES WHICH ARISE OR RESULT FROM ASCEND’S, ITS AFFILIATES’ OR ANY OF ITS SUBCONTRACTORS’ (INCLUDING ANY EMPLOYEES OF THE
FOREGOING) VIOLATION OF CONFIDENTIALITY OBLIGATIONS SET FORTH IN THIS AGREEMENT OR THE DATA SECURITY REQUIREMENTS; (W) DAMAGES WHICH ARISE OR RESULT FROM A VIOLATION OF
APPLICABLE LAWS, RULES OR REGULATIONS BY ASCEND, ITS AFFILIATES OR ANY OF ITS SUBCONTRACTORS (INCLUDING ANY EMPLOYEE OF THE FOREGOING); (X) DAMAGES WHICH ARISE OR RESULT FROM FRAUD,
WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE OF ASCEND, ITS AFFILIATES OR ANY SUBCONTRACTOR OR VENDOR OF ASCEND OR ITS AFFILIATES (INCLUDING ANY EMPLOYEE OF THE FOREGOING); (Y) WITH RESPECT TO ASCEND’S INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT; OR (Z) DAMAGES
ARISING FROM THE OCCURRENCE OF A BREACH OF SECURITY, INCLUDING PAYMENT OF NOTIFICATION RELATED COSTS (COLLECTIVELY, THE “DAMAGES EXCEPTIONS”).
Confidential Matters and Proprietary Information
9.1. Confidential Information. Ascend acknowledgesthat because of Ascend’s provision of the Services, Ascend will become informed of and have access to information deemed to be confidential by Customer. It is hereby agreed that all information provided to Ascend, whether orally, in writing, or any other medium, in relation to (i) Customer and its business, (ii) specific projects or entities owned (in whole or in part) by Customer, and (iii) the business plans and activities of Customer and its Affiliates shall be “Confidential Information.” Notwithstanding the above, information shall not be considered confidential under this Agreement if (a) it is or becomes publicly available through no act or omission of Ascend or its employees or agents, or (b) it is required to be disclosed by a 7 | P a g e
court or regulatory agency acting within its authority; provided, however, that Ascend shall first inform Customer of the disclosure requirement to allow Customer to challenge the disclosure requirement should Customer wish to do so and Ascend shall only disclose such portion of Confidential Information required to be disclosed pursuant to such court or regulatory agency proceeding.
9.2. Use and Disclosure. All Confidential Information provided by or on behalf of Customer remains the sole property of Customer. Ascend shall hold and maintain such Confidential Information in the strictest confidence and in trust and shall use such Confidential Information only for the specific purpose for which it was disclosed or delivered to Ascend. For a period of five (5) years after the date of this Agreement, Ascend shall not disclose such Confidential Information to any person or entity (except as permitted under this Section 9). Ascend shall, at Ascend’s sole cost and expense, take all necessary actions and precautions to protect the confidentiality of such Confidential Information and any documents or other materials containing any Confidential Information and shall immediately notify Customer in writing upon its discovery of any such unauthorized use or disclosure of such Confidential Information.
Ascend will use CAISO system data and settlements as appropriate for development and training of bidding algorithms, but these data will not be directly disclosed to any third party.
9.3. Disclosure to Employees. Ascend shall restrict access to Confidential Information only to employees of Ascend who clearly need such access in order to participate in Ascend’s business relationship with Customer and who have been instructed to comply with the terms of this Agreement and to maintain the confidentiality of Confidential Information.
9.4. Remedies. Ascend acknowledges that the use or disclosure of Confidential Information in violation of this Agreement may cause substantial and irreparable injury to Customer and that Customer may obtain injunctive or other equitable relief to prevent such use or disclosure.
9.5. Delivery upon Request. Immediately upon the termination or expiration of Ascend’s use of Confidential Information, and upon Customer’s request, Ascend shall delete, destroy or return all records, notes, analyses, memoranda, drawings, and other written or tangible materials, documents, or media containing any Confidential Information of Customer, including all copies and reproductions thereof, except as may be present on computerized backup systems, provided such Confidential Information is deleted from local hard drives and no attempt is made to recover such Confidential Information from servers or back-up sources, and provided any such retained Confidential Information shall remain subject to the disclosure and use restrictions set forth herein, notwithstanding any termination or expiration of this Agreement.
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10. Ownership of Deliverables
Customer will have rights to use the Software and the analytical deliverables but will not have rights to resell or redistribute the Software and delivered analytical products. Customer shall not copy, duplicate, reproduce, license, or sublicense the Software, or transfer or convey the Software or Documentation or any right in the Software to any third party, including any person or entity that acquires any ownership or financial interest in Customer except as specifically provided herein, without the prior written consent of Licensor. Customer acknowledges that Licensor has represented that the Software and Documentation associated therewith consists of proprietary, unpublished products of Licensor, protected under U.S. copyright law and trade secret laws of general applicability. Customer further acknowledges and agrees that all rights, title, and interest (including all intellectual property rights) in and to the source code, Documentation, analytic approaches, and model formulation shall remain with Licensor. Customer agrees that such proprietary rights are retained by and valuable to Licensor and that Customer shall monitor the use and disclosure of the Software and related Documentation and shall keep the Software and related Documentation of user manuals, training materials, and Documentation of model techniques confidential.
Licensor grants that Customer will have proprietary access and use for Customer’s model configuration and settings. Licensor acknowledges that any application built or delivered to Licensor for integration into the Software, to the extent not previously owned by Licensor, remains the property of the Customer.
Similarly, Licensor acknowledges that Customer may integrate existing applications and develop and/or customize extensions to the Software, which may contain intellectual property of Customer and not Licensor, and such items will remain property of Customer.
11. Warranties
11.1. Licensor hereby represents and warrants to Customer that: (i) it is a legal entity duly organized, validly existing and in good standing; (ii) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (iii) it is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it, except when the failure to be so licensed, authorized or qualified would not have a material adverse effect on its ability to fulfill its obligations hereunder; (iv) it will comply with all laws and regulations applicable to the performance of its obligations hereunder and will obtain all applicable permits and licenses required of it in connection with its obligations hereunder; (v) it will avoid deceptive, misleading or unethical practices that could adversely affect the performance of the Customer’s obligations under this Agreement or damage the reputation of the Customer; (vi) it is not a party to any agreement with a third-party, the performance of which is reasonably likely to affect adversely Licensor’s ability to perform fully its respective obligations hereunder; and (vii) its performance of its obligations under this Agreement will not violate any other agreement between Licensor and any third-party. The Software will be provided and perform in material conformity with this Agreement and the then-current [Documentation]. Licensor further represents and warrants that: (a) Licensor is the 9 | P a g e
owner of the Software or otherwise has the right to grant to Customer the rights set forth in this Agreement, (b) that any Services will be performed in accord with the highest professional standards in the applicable area or areas of expertise required to perform such Services; (c) that the Software will conform to the descriptions set forth in the Documentation; (d) that the Software does not and will not contain any virus or any other contaminant, or disabling devices, including, but not limited to, codes, commands or instructions that may be used to access, alter, delete, remotely access, damage or disable the Software, or any Customer system, network, software, or other Customer property; (e) that the Software, Documentation and Services will not violate any patent, copyright, trademark, trade secret or other intellectual property or proprietary right of any other party; (f) that, except as otherwise expressly identified in this Agreement, the Software and Documentation will not contain any software or source code that is subject to the GNU General Public License or any other “open source” licensing terms which are subject to any requirements that such materials be distributable or otherwise made available on a royalty free basis by Licensor’s Customers and (g) that, with respect to any third-party software included within the Software, or used in connection with Licensor’s performance of the Services, Licensor has all rights necessary to provide such software to and/or use such software for the benefit of Customer.
In addition to any other remedy that Customer may be entitled to herein or under applicable law, which shall include termination of this Agreement, in the event of breach of the foregoing representation and warranty, Licensor shall: (x) procure, at Licensor's expense, the right to use the Software, (y) replace the Software or any part thereof that is in breach and replace it with Software of equivalent functionality that does not cause any breach, or (z) refund to Customer the prorated portion of the license fee stated in Addendum A associated with the remaining period of the term. In addition, in accordance with Section 7, Licensor shall indemnify and hold Customer harmless for all Losses however incurred relating to Licensor’s breach of such representation and warranty.
12. Notices
Any notice required to be given hereunder shall be deemed to have been sufficiently given either when served personally, sent by first class mail addressed to the Parties at the addresses set forth in this Agreement, or transmitted via email to the other Party at its address indicated below or at such different address as either Party may designate for itself in a written notice to the other Party.
Gary Dorris
Ascend Analytics LLC
1877 Broadway
Suite 706
Boulder, CO 80302
[email protected]
Ramzi Raufdeen
City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
[email protected]
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13. Waiver and Governing Law
Failure of either party to enforce any of its rights hereunder shall not constitute a waiver of such rights or any other rights hereunder. This Agreement shall be interpreted in accordance with the laws of California without regard to the choice of law rules thereof.
14. Intellectual Property Indemnity
During the term of the Agreement, Ascend shall release, defend, indemnify, and hold harmless Customer Related Parties from and against any and all Losses of any kind, including reasonable attorneys’ fees, arising out of or related to Ascend’s infringement upon or misuse of the intellectual property rights of any third-party. In addition, if the use of the Services infringes or is enjoined or Ascend believes it is likely to infringe or be enjoined, Ascend may, at its sole option: (a) procure for Customer the right to continue the use of the Services as furnished; or (b) modify the Services to make them non-infringing, provided that they still substantially conform to their original intended use. The intellectual property indemnity provided herein does not apply to the extent (where, but for the following, there would be no infringement) (a) the alleged infringement arises from any use of the Services not in accordance with this Agreement or (b) any unauthorized modification of the Services. This section states Ascend’s sole and exclusive liability and Customer’s sole remedies for any threatened or actual infringement of proprietary rights.
15. Lender Protection
15.1. At Customer’s request, Ascend shall execute and deliver such commercially reasonable consents, estoppels, reliance letters, and other documents regarding the Services, and this Agreement may be requested from time to time by Financing Parties. For purposes of this Agreement, the term “Financing Parties” means Customer’s and/or its Affiliates’ lenders and/or equity investors (including any trustee or agent acting on behalf of such lender and/or equity investor and tax equity investors). Ascend shall not place any liens, security interests, or other encumbrances on the Project, the Project’s site, or with respect to any Services. Notwithstanding anything in this Agreement, as applicable, to the contrary, the following provisions shall apply with respect to each of the Financing Parties:
15.1.1. Any such Financing Party shall be permitted to foreclose on its interest in this Agreement, Customer, or its Affiliates without the consent of Ascend;
15.1.2. Such Financing Party shall have the right, but not the obligation, to perform any act required to be performed by Customer under this Agreement to prevent or cure a default by Customer, and such act performed by such Financing Party shall be as effective to prevent or cure a default as if done by Customer. Each Financing Party will be given an additional period of one hundred twenty (120) days (or ninety (90) days in the case of a default in payment) or such longer period 11 | P a g e
mutually agreed by Ascend and such Financing Party in accordance with this Section 13 in which to cure any such default;
15.1.3. Ascend shall be required to send such Financing Party a copy of any and all notices delivered to Customer at the time such notice is provided to Customer if Customer has given Ascend notice of such Financing Party;
15.1.4. Within ten (10) working days of the receipt of a written request from Customer or such Financing Party, Ascend shall make best efforts to execute or arrange for the delivery of certificates, consents, opinions, estoppels, amendments and other documents reasonably requested by Customer or such Financing Party in order to consummate any financing or refinancing and shall enter into reasonable agreements with such Financing Party that provide that Ascend recognizes the rights of such Financing Party upon foreclosure of Financing Party’s security interest and such other provisions as may be requested by Customer or such Financing Party; provided, however, that the foregoing undertakings shall not obligate Ascend to materially change any of its rights or benefits, or materially increase any of Ascend’s burdens of liabilities, under this Agreement (other than providing notices and additional cure periods to such Financing Party with respect any default with respect to Customer as such Financing Party may reasonably request) provided that if requested by Ascend, Customer shall reimburse Ascend for its reasonable third-party legal expenses incurred in reviewing such documents;
15.1.5. Ascend agrees that no Financing Party shall be obligated to perform any obligation or be deemed to incur any liability or obligation provided in this Agreement, as applicable, on the part of Customer or shall have any obligation or liability to Ascend with respect to this Agreement, except to the extent any Financing Party has expressly assumed the obligations of Customer hereunder; provided, that Ascend shall nevertheless be entitled to exercise all of its rights hereunder in the event that Customer or Financing Party fails to perform Customer’s obligations under this Agreement, as applicable;
15.1.6. Ascend will not exercise any right to terminate or suspend this Agreement unless it shall have given such Financing Party prior written notice of its intent to terminate or suspend this Agreement, as applicable, and shall have negotiated in good faith with such Financing Party as to the cure period(s) that will be allowed for such Financing Party to cure any default with respect to Customer. Ascend shall accept a cure performed by such Financing Party so long as the cure is accomplished within the applicable cure period so agreed between Ascend and any Financing Party. Notwithstanding any such action by a Financing Party, 12 | P a g e
Customer shall not be released and discharged from and shall remain liable for any and all obligations to Ascend arising or accruing hereunder;
15.1.7. Ascend agrees and acknowledges that each Financing Party is a third-party beneficiary of the provisions of this Section 13; and
15.1.8. If (a) this Agreement is rejected in Customer’s bankruptcy or otherwise terminated in connection therewith, Financing Party shall have the right to elect within forty-five (45) days after such rejection or termination, to enter into a replacement agreement with Ascend having substantially the same terms as this Agreement, as applicable, for the remaining term thereof, or (b) if Financing Party or its designee, directly or indirectly, takes possession of, or title to, the Project (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure) after any such rejection or termination of this Agreement, upon Financing Party’s request, Ascend will promptly enter into a new agreement with Financing Party or its designee having substantially the same terms as this Agreement, as applicable, for the remaining term thereof.
16. Assignment
This Agreement and the Services contemplated hereunder are personal to Ascend, and it shall not have the right or ability to assign or transfer any of its rights or obligations under this Agreement without the written consent of Customer. Any attempt by Ascend to assign this Agreement shall be null and void. City of Vernon shall have the right to assign this Agreement or the Services to (a) a special purpose entity formed to own the Project, (b) an Affiliate of City of Vernon, or (c) any Financing Party in accordance with Section 13 without the prior consent of Ascend.
17. Maintenance and Inspection of Records
Customer, or its authorized auditors or representatives, shall have access to and the right to audit and reproduce any of Ascend’s records to the extent Customer deems necessary to ensure it is paying only the amounts to which Ascend is properly entitled under the Agreement or for other financial audit purposes relating to the Agreement.
Ascend shall maintain and preserve all such records for a period of at least three (3) years after termination of the Agreement. Ascend shall, upon request, promptly deliver the records to Customer or reimburse Customer for all reasonable and extra costs incurred in conducting the audit at a location other than the City of Vernon, including, but not limited to, such additional expenses for personnel, salaries, private auditors, travel, lodging, meals, and overhead. 13 | P a g e
18. Conflict of Interest
Ascend hereby represents, warrants, and certifies that no member, officer, or employee of Ascend is a director, officer, or employee of the City of Vernon, or a member of any of its boards, commissions, or committees, except to the extent permitted by law.
Ascend Analytics LLC City of Vernon
________________________________________ _________________________________________ Gary Dorris, CEO Carlos Fandino, City Administrator
Attest:
_________________________________________
Yonnie Parker, Deputy City Clerk
Approved as to Form:
_________________________________________
Zaynah Moussa, City Attorney
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Addendum A
Monthly Fees & Time and Material Rates
2.0 Options & Pricing
Pricing is based on project capacity (standalone or hybrid assets). City of Vernon will have unlimited seats across all options defined in the table below, with the pricing in the subsequent table.
Table 1: SmartBidder Base License Features
Description Base
Market and Regulatory Updates
Bidding Optimization
Strategy Customization
Seamless Scheduler Interface
Programmatic API Access
Software Support 40 hrs/year
Daily Reports
ISO Shadow Settlement
Bid Optimization Implementation fees $10k
The schedule of payments for the Term of the SmartBidder Base License Agreement is detailed in Table 2 and are inclusive of the initial setup fee and recurring quarterly fees. The Year 1 – quarter 1 amount will be invoiced at contract execution.
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Table 2: Schedule of License Fee Payments
Year /Qtr Setup
Fee
Discounted
Fee ($)
Invoice Amount ($)
Year 1 - qtr 1 $ 10,000 $ 12,307 $ 22,307
Year 1 - qtr 2 $ 12,307 $ 12,307
Year 1 - qtr 3 $ 12,307 $ 12,307
Year 1 - qtr 4 $ 12,307 $ 12,307
Year 2 - qtr 1 $ 14,562 $ 14,562
Year 2 - qtr 2 $ 14,562 $ 14,562
Year 2 - qtr 3 $ 14,562 $ 14,562
Year 2 - qtr 4 $ 14,562 $ 14,562
Year 3 - qtr 1 $ 17,230 $ 17,230
Year 3 - qtr 2 $ 17,230 $ 17,230
Year 3 - qtr 3 $ 17,230 $ 17,230
Year 3 - qtr 4 $ 17,230 $ 17,230
Total Not-to-Exceed Amount $ 186,396
Project Name Target Go Live
Date
Contract
Effective date
License Start
Date
License End
Date
Invoice Start
Date
Daggett 2B
Solar & BESS July 15th, 2024 July 1
st
, 2024 July 1
st
, 2024 June 30th, 2027 July 1
st
, 2024
Item Description/Value
ISO CAISO
BESS Node Name &
Resource ID
CMBLND_7_N008
CMBLND_2_DS2BT2
Solar PV Node Name &
Resource ID
CMBLND_7_N006
CMBLND_2_DS2SR2
Battery Nameplate Capacity (MW ac) 33.0
Solar PV Capacity (MW ac) 65.0
Renewable Resource Forecast Provider
Realized Renewable Generation Provider
Battery EMS Provider
Scheduling Coordinator City of Vernon
Hybrid Projects: The generation component (solar or wind combined with storage) is charged at 20% of the base storage rate according to the generation component’s size.
Additional support hours (applicable to Base license only): Additional technical support is available at $325 an hour billed in arrears or $300 an hour when purchased up-front in blocks of 60 hours. 16 | P a g e
3.0 Project Activities: Pre-Operations and Operations
Ascend will work with Customer to deliver a comprehensive and completely tested solution for live bidding and real-time control bidding. The schedule below provides a standard project implementation timeline from Contract signing to commercial operation. It is subject to change based on the provision of key inputs and approvals from Customer. Ascend will work with Customer to establish a project-specific schedule during contracting, and there is some ability to shift different tasks to accommodate circumstances specific to Customer if needed. Typically, the time from signing to live bidding is four months. This is needed to ensure communications to the Scheduling Coordinator and the EMS are made and tested, Vernon staff are properly trained, and the right strategies are selected/created and tested.
After the first project, the pre-COD period is 2-4 weeks assuming the same scheduler and EMS are used.
Regular updates and meetings are provided (per the schedule above) to ensure clear communication.
3.1 Illustrative Activities
The implementation and onboarding process is straightforward. Upon acceptance of the agreement, the scoping process begins, and each asset’s intake form is completed. This information allows Ascend to create a node simulation and begin training sessions on using the platform, define risk policies and procedures, and work with Customer to configure and refine the best bidding strategies for each asset.
This may also identify additional tasks to be completed.
Concurrently, Ascend will begin working with the relevant parties to Customer and other third parties (e.g., EMS and scheduler) to complete the integration work between those systems. Ahead of live operations, these interfaces will undergo thorough testing to prevent delays or issues with live bidding.
Ascend provides regular updates to customers during project implementation to ensure clear communication, project progress remains on track, and Customer’ employees are fully trained and enabled to use the platform and set the best bidding strategy for the asset. 17 | P a g e
Addendum B
SmartBidder Software Description
B.1 Overview of SmartBidder UI
The SmartBidder interface provides multiple, granular evaluation windows for the successful economic optimization of the energy storage asset. By providing an analytical bridge between the system’s physical characteristics, such as degradation, cycle count, depth of discharge, and the fundamental economic drivers of optimizing multiple revenue attributes, the platform allows for real-time control of bidding strategies. The platform is currently live on over twenty (20) assets operating in CAISO, SPP, and ERCOT and is available for every ISO in the United States.
Figure B.1a: DA Dashboard
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B.2 Day Ahead, Real-Time, and Ancillary Arbitrage
The Day-Ahead (“DA”) dashboard provides key metrics on forecasted price levels and attributes of the Real-time (“RT”) market used in the DA bidding decisions. DA bids into the regulation market depend on the tradeoff between potential RT energy arbitrage revenue and ancillary revenue, metrics that are evaluated and continuously tracked in customizable windows.
Insight into how likely it is that DA prices will exceed RT prices on average through each market hour of the following day (and the converse when RT is higher than DA) allows for additional financial trading on top of the physical dispatch of the battery. In the example graph below, hours 13-20 are especially promising for a virtual/convergence bidding strategy selling DA and buying back RT. However, the extent to which this is done depends on the risk tolerance of the project owner.
The RT dashboard provides updated price forecasts and the latest cleared market prices, in addition to current battery state of charge to support RT bidding decisions, mainly focused on a buy and sell price in the real-time energy market for each market hour not committed to DA regulation. This dashboard also summarizes the realized revenue and dispatch across the day.
Figure B.2a: RT Price Spike Forecast Spike Forecast and Realized Prices Figure B.2b: Probabilities of RT Spikes and of Positive DART spreads Predicting RT
price spike
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B.3 Dynamic Bid Optimization and Bid Limits
Users can edit price forecasts generated by the model, then recalculate bids and override specific bid hours before submission to the ISO. The software will warn users when the end of the bidding window is approaching.
Figure B.3a: DA Price Forecast Override
Figure B.3b: User Override of RT and DA Bids