On-Bill Repayment Program Agreement

This On-Bill Repayment Program Agreement (Agreement) is entered by the above Member (Member) and Holy Cross Electric Association, Inc., doing business as Holy Cross Energy (HCE), each individually referred to as a “Party” and collectively referred to as the “Parties.”

Member desires to enroll in the On-Bill Repayment Program of HCE (Program) to facilitate the installation of an eligible energy project (Project) at Member’s real property (Facility). Member also enrolls in the “Distributed Energy Resource Service Agreement – Optional” Tariff (DERSA) in relation to the installation costs of the Project.  The terms of this Agreement are supplemental to the Electric Service Agreement between Member and HCE.

Member agrees to the following terms and conditions:

1. Member agrees to all terms and conditions of the Articles of Incorporation, Bylaws, Tariffs, Rules and Regulations of HCE and any changes made to the Agreement, the Articles of Incorporation, Bylaws, Tariffs, Rules and Regulations by HCE as established from time to time by HCE.

2. HCE may provide a rebate to reimburse Member wholly or partially for Member’s purchase and installation of any eligible equipment related to the Project (“Equipment”) for use at the Facility.

3. HCE will pay the enrolled contractor directly for some, or all, of the initial costs of the Project at the Facility. Member will hire the Program Enrolled Contractor (Contractor) and the Member shall see to the design and installation of the Project. Member shall be responsible for all means, methods, techniques, sequences, and procedures and for coordinating all portions of the installation and operation of the Project.

4. All responsibilities, understandings, and authorizations of Member, HCE, landlord (if applicable) and Contractor shall be evidenced by written agreements, notifications, and disclosures/consents. HCE is not affiliated with any Contractor.  

5. Member will allow free and unrestricted access to usage data of the Project to HCE for the life of the Equipment. 

6. Member shall pay for and provide all necessary communications to the Project through Member’s Wi-Fi or telephone communications. Any ongoing costs of maintaining the Wi-Fi or telephone communications between the eligible Equipment and HCE’s data system shall be paid for by Member. 

7. If Member moves or discontinues service at the Facility at which the Project is installed within the term of this Agreement, then the Member will be required to:

a. pay the remaining balance due under the Agreement; or

b. any successor in possession of the Facility can assume the remaining term of this          Agreement.

8. A successor in possession or ownership of the Facility upon which the Project was installed may be required by HCE to pay the balance due for the Project. Member shall advise all successors in possession or ownership of the Facility and premises upon which the Project was installed that the additional amount due portion of the billing will continue to be paid by such successor unless such amount due to HCE is paid in full.

9. Project must remain installed at the Facility in HCE’s service territory until it is repaid in full.

10. Member will pay HCE all its expenses through a monthly fixed charge added through the DERSA on the utility bill for the amount incurred by HCE for its actual cost of the installation of the Project and for other expenses connected with the Program. This fixed rate will be assessed to the Member over a specific period as determined by HCE and as shown in the Repayment Exhibit A.

11. HCE may include an administrative cost, in the form of a fixed fee and/or percentage rate, in the calculation of the monthly fixed charge.

12. Member agrees that this transaction is a utility rate transaction, and it is not a loan transaction.

13. Member may pay the outstanding balance without any penalty. Member must notify HCE in writing of Member’s intent to pay the outstanding balance. All payments received will be applied to the Member’s electric account and processed under the standards of the Electric Service Agreement.

14. The payment obligation under the Agreement shall be treated the same as charges for electric service pursuant to HCE’s Tariffs, Rules, and Regulations.

15. Payment of any amount due under this Agreement is the personal obligation of the Member and cannot be discharged or assumed by another person without the prior written consent of HCE. 

16. If Member defaults in payment of the amount due under the Agreement or on electric service, then Member may not participate in any existing or future benefit or subsidy program established by HCE.

17. If the Facility upon which the Project was installed is destroyed or damaged from any cause, then Member shall still be liable for payment of all amounts due to HCE under the Agreement. If the Facility upon which the Project was installed is partially or totally vacant, then Member shall still be liable for payment of all amounts due to HCE under the Agreement. Member shall, at Member’s sole cost, insure the cost of replacement of the Project and shall have the insurance carrier show the interest of HCE under the terms of the Agreement as a loss payee.

18. The Work will comply with all applicable local, state and national building codes and standards. The Member’s Contractor will obtain all necessary permits for the Project and certify that Equipment and other products have been installed consistent with manufacturer instructions and applicable codes.

19. Final fixed charge (DERSA) will reflect actual and final project costs submitted with Completion Documents and may vary from pre-approved amount.   

General Terms and Conditions:

20. All information gathered by HCE in the application for the Project and for the granting of electric service to the Facility is governed by the provisions of the Tariffs, Rules, and Regulations of HCE which may be amended from time to time.

21. HCE does not warrant the Project and its improvements, or the quality of workmanship in the installation of the Project, or the value of the Project to Member. HCE disclaims all express or implied warranty of the Project including without limitation any implied warranty of fitness for a particular purpose, merchantability, usability, and habitability.

22. HCE shall retain and own all Green Attributes (such as Renewable Energy Credits, or carbon offsets, as may be applicable) of any kind or nature associated with the Project Member hereby conveys to HCE all present and future rights to such Green Attributes and agrees to take all further steps required to effect such transfer to HCE at the time of any such delivery.

23. Member has obtained, to the extent Member has deemed necessary or prudent, legal counsel to advise Member on this Agreement.

24. HCE may disclose such information about this Agreement, the Project, the data from the Project and any other information as may be required to be disclosed by law or court order from a court of competent jurisdiction, and as provided in HCE’s Member Privacy and Confidentiality Policy in effect from time to time.

25. Member will self-produce on the Facility or purchase from HCE all electric energy used on the Facility and Member will pay for at the applicable rates and terms in accordance with the Tariffs, Rules, and Regulations of HCE as may from time to time be adopted by HCE.

26. The Tariffs, Rules, and Regulations of HCE may be changed by HCE from time to time, and this Agreement shall incorporate the provisions thereof as changed in the future. Member’s failure or refusal to accept electric service from HCE or to comply with the Tariffs, Rules, and Regulations of HCE, or to perform under the terms and conditions of this Agreement shall not relieve Member from performing this Agreement.

27. To the maximum extent permitted by law the Member shall defend, indemnify, and hold harmless HCE and HCE’s directors, officers, and employees from all claims, causes, action, losses, liabilities, and expenses (including reasonable attorney’s fees) for personal loss, injury, or death to person (including but not limited to the Member’s employees) and loss, damage to, or destruction of HCE’s and the Member’s property or the property of any other person or entity in any manner arising out of or connected with the Program and the installation and operation of the Project, or the materials or Equipment supplied or services performed by HCE, its subcontractors and suppliers of any tier.

28. HCE has its rights under law for nonpayment of any amount due to HCE, including without limitation the right to terminate electric service to the Member and any successor in possession or ownership of the premises upon which the project was installed, and the right to terminate any other electric service provided by HCE to the Member at any location in the event of any default in payment of any amount due to HCE including without limitation the amount of the cost as determined under the Agreement and other charges.

29. Member agrees (A) the laws of the State of Colorado shall govern this Agreement and any dispute arising hereunder shall be litigated in a Federal or State Court located in the State of Colorado, (B) TO WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW THE RIGHT TO A TRIAL BY JURY.

30. Member agrees that (i) it possesses all requisite power and authority to enter and perform this Agreement and to carry out the transactions contemplated herein; (ii) this Agreement has been duly executed and delivered; and (iii) this Agreement constitutes the legal, valid, binding, and enforceable agreement of Member.

31. If any provision of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, then the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible.

32. HCE has the power to amend, modify, alter, or waive any of the provisions of the terms of this Agreement. Any promises, agreements, or representations made by any agent or representative of HCE not herein set forth shall be void and of no effect.

33. HCE retains the right to recalculate any rate at its discretion. 

34. HCE must accept this Agreement before it constitutes a binding agreement between the Member and HCE.

35. This Agreement is neither intended to create, nor shall it be construed as creating, a joint venture, partnership, or other form of business association between the Parties, or an agreement to enter any business relationship.

36. Member agrees that this Agreement constitutes the full, complete, and only agreement between the Parties and supersedes any previous representations or agreements, and this Agreement shall not be amended except in writing signed by duly authorized representatives of both Parties.

37. Member maintains all disclosure obligations to any successor, tenant, landlord, etc. HCE may record this instrument in the office of the County Clerk and Recorded in which the real estate is situated. 

38. This Agreement shall be binding upon the successors, legal representatives, heirs, devisees, and permitted assigns of Member.

Distribution Flexibility Program Provisions, if applicable:

Member shall enroll, if applicable, in HCE’s Distribution Flexibility (DF) Tariff – with the following terms and conditions being supplemental Project-specific program rules. Member will allow HCE full operational control of the Project. This Agreement serves as the program rules referenced in the DF Tariff. The actual Tariff terms as posted and amended from time to time shall govern in the event of any discrepancy between the DF Tariff and this Agreement.

Terms and Conditions for HCE’s Control of the Project:

39. HCE may delay or initiate the use of Project during times of peak demand. Peak demand expectations:

a. High demand or critical demand events will most commonly take place between the hours of 4 p.m. and 9 p.m. and may occur on any day of the year.

b. Peak events are expected to last 2-3 hours in duration.

c. HCE will target a limit of 240 peak demand event hours in a calendar year, although that limit can be revised by HCE if conditions warrant.

40. HCE may delay or initiate the use of Project during times of peak renewable production.

41. Renewable oversupply expectations:

a. Peak renewable production will most commonly take place between the hours of 11 p.m. and 6 a.m., and between 1 p.m. and 5 p.m. and can occur any day of the year.

b. Peak renewable production events are expected to last 3-10 hours in duration.

c. HCE anticipates around 85 days may include peak renewable production events.

d. HCE will target a limit of 300 peak renewable production event hours in a calendar year, although that limit can be revised if conditions warrant.

42. HCE may evaluate and consider all relevant conditions, including but not limited to forecasted and actual renewable generation, forecasted and actual peak hours, temperature, system load conditions, system operation needs, energy market conditions, load shape, transmission system conditions, and other emergency conditions in determining whether to exercise control over Project.

43. HCE retains the right to recalculate and initiate any rate at its discretion. Events that may require a recalculation include without limitation:

a. HCE enters an organized wholesale electricity market; or

b. HCE terminates its full requirements service with Public Service Company of Colorado (PSCo); or

c. PSCo substantially modifies its formula rate calculation for capacity; or

d. The HCE/PSCo Transmission Integration and Equalization Agreement is terminated or substantially modified; or

e. HCE’s marginal cost for capacity decreases by more than 20% from the 2023 level.

44. Member will enroll in e-mail or text message notifications for the purposes of this DF Program.

45. HCE may, at any time, terminate Member’s participation in the DF Program if Member violates the terms and conditions of the DF Program or the Articles of Incorporation, Bylaws, Tariffs, Rules, and Regulations of HCE.