§ 23-731. Utility capacity queue agreement.

Latest version.
  • Sec. 23-731.1. Findings, purpose and intent. The city commission has determined that, during times of increased demand for and rapid utilization of remaining water, wastewater, and reclaimed water capacity, additional capacity should not be sold without ensuring that the existing facilities are not oversold, leaving the city unable to meet the capacity demands sold. The city commission is committed to developing new facilities, but is unable to do so without firm commitments for the new capacity and orderly reservation of capacity for developers. Given the uncertainty of developer commitments, the city commission finds that capacity reservations must be irrevocable after the developer has contracted for services, but will allow transfer of capacity without a profit. The city commission finds that it is in the interests of city citizens and the developers interested in developing within the city, to develop a "queue" for all new requests for additional treatment plant capacity.

    Sec. 23-731.2. Capacity reservations determine queue.

    a. All capacity reserved paid in advance; queue position established. All future requests for contracts for water, wastewater, and reclaimed water service by developers owning or controlling property within the city shall require the developer to make deposit payment based on ten (10) percent of the present capacity fees for the capacity necessary for that property, and be placed in the city's utility capacity queue, prior to any reservation of capacity in existing or future utility facilities. Application for development approval, including application for approval of a conceptual plan, preliminary site plan, preliminary subdivision plat, or preliminary planned development project plan shall constitute a request for contract for utility service.

    1. Upon application for development approval, the developer shall execute a short-form agreement ("Utility Capacity Queue Agreement") for the sole purpose of placing the developer in the capacity queue for any future capacity to be constructed or otherwise made available at new or existing facilities, until such time as a utility services agreement can be negotiated between the parties. No capacity shall be promised to the developer under the capacity queue agreement in exchange for the partial capacity fee payment, but only a position in the queue to facilitate future agreements for reservation of capacity, as well as the planning, design, or construction of new capacity, if necessary. Once the queue agreement is executed and the partial capacity fee is delivered with the agreement to the city, the city shall clock in the agreement and capacity fee to establish the developer's position in the queue. The city's signature is not required for the queue position. The development shall remain in the capacity queue until such time as the city executes a utility services agreement with the developer to reserve the utility treatment plant capacity.

    2. The city shall establish a utility capacity queue based on date of approval for all developments or development phases for which a preliminary site plan, preliminary subdivision plat, or preliminary planned development plan was approved prior to May 1, 2007 but for which a site development permit has not been granted. The capacity queued for the development shall be that which was approved with the development with the preliminary plan or plat, and a deposit of capacity fees shall not be required.

    b. Capacity queue position converted to reservation of capacity. Once the utility facilities for which the developers are queued are identified or completed by the city, or the city manager determines that the facilities shall be completed before the capacity is needed by the developers, developers in the queue may be offered utility services agreements for their capacity needs, depending on the availability of capacity.

    c. Abandonment of capacity by failure to execute utility services agreement. In the event that a developer chooses not to execute a utility services agreement or is unable to resolve contractual issues with the city in the city's utility services agreement within thirty (30) days of being provided a draft of said agreement, the developer shall have abandoned its capacity reservation offer. The city manager may extend the termination date hereunder for no more than one (1) additional fifteen-day period, without commission approval, if the city manager, in his or her sole discretion, determines that the developer is negotiating in good faith, but has still been reasonably unable to resolve its issues with the draft utility services agreement. Those developments for which a utility services agreement has not been executed within the required time period shall remain in the queue with their positions based upon their queue agreement dates. Those developments that do not have a queue agreement and are in the queue based upon a plan approval (see section 23-731.2.a.2) shall be removed from the queue. Upon notification by a developer to remove a development from the queue, the city shall refund the partial utility capacity fees made with the queue agreement less any city costs.

    d. Capacity queue position may be transferred, but not for a profit. The developer's position in a capacity queue can be transferred only as part of a sale of the land for which the capacity is sought; however, such capacity cannot be sold or transferred for more than the amount paid by the developer.

    e. Ties for capacity queue take same place. In the event that more than one developer executed and paid for their requested capacity within twenty-four (24) hours of another developer, the queue position shall be deemed a "tie," and both (or all) shall be given the same place in the queue. Bond placement shall not be considered for the tie.

    f. Exceptions. The following are exceptions to the requirement that all developments requesting new capacity shall first enter into a queue agreement:

    1. Units constructed on lots platted or otherwise legally in existence prior to the date of passage of this Ordinance.

    2. Non-residential developments to be served by capacity set aside for economic development.

    (Ord. No. 2008-13, § 1, 5-6-08)

    Sec. 23-731.3. Existing agreements for capacity reservation not in queue. This Ordinance is not intended to modify any existing agreements committing the city to provide capacity at the present utility facilities, except for the addition of Minimum Revenue Fees for Capacity.

    Sec. 23-731.4. Form of utility capacity queue agreement.



    THIS AGREEMENT is made and entered into this day of ____________/____________/____________, 20____________ by and between ____________, a Florida ____________, its approved successors and assigns, collectively referred to hereinafter as "DEVELOPER", whose business address is ____________, and CITY OF LAKE WALES, FLORIDA, whose business address is 201 W. Central Avenue, Lake Wales, Florida, 33853, (hereinafter referred to as "CITY").

    1. Purpose and Intent. This Agreement is intended to provide the developer with a position in the (WATER/WASTEWATER/RECLAIMEDWATER) Capacity Queue. Such position is temporary, subject to timely execution and compliance with a utility services agreement submitted to DEVELOPER by CITY as provided by Ordinance 2007-14.

    2. The DEVELOPER hereby wishes to be placed in the ____________ capacity Queue for a total of ____________ (single-family, multi-family, ERUs) for property DEVELOPER owns or controls within the city Limits (described in Exhibit "A") at the position shown in the Attachment "B" hereto. Nevertheless, DEVELOPER agrees that final position in the queue is based on final execution of this Agreement, up front deposit payment based on 10% of the capacity fees for the capacity sought to be included in the Queue, and compliance with City Code, including Ordinance 2007-14.

    3. The Parties agree that this temporary agreement and Developer's position the Queue will be terminated if the parties cannot agree on terms of a utility service agreement within thirty (30) days of the CITY'S proposing a draft of said agreement to DEVELOPER.

    By:  _____ _____
    Printed  _____
    Its: _____ Attest: _____
    City Clerk


(Ord. No. 2007-14, § 3, 6-5-07)