A Developer Agreement (DA) is a contractual agreement voluntarily entered into between one or more developers and the Council. These agreements may cover:
A DA provides developers with certainty and flexibility to proceed with a development that may not align with the Council’s infrastructure provision timeframe.
Council encourages developers to engage early when considering a DA. This should occur as early as possible in the stages of the consent application process.
Note: A DA is sometimes referred to as a Private Developer Agreement (PDA).
The Council sets out how it intends to provide core infrastructure for growth in its Long Term Plan (10 years) and Infrastructure Strategy (30 years).
A developer may wish to enter into a DA when their proposed development requires strategic infrastructure within a timeframe that is not aligned with the Council’s infrastructure plans, or if the infrastructure the proposed development needs is a larger scale than that contemplated in the Council’s Long Term Plan.
Under the Council’s Development Contributions Policy, the developer may approach the Council to enter into a DA to advance and/or increase the scale of core infrastructure within the Long Term Plan.
The nature and scale of a DA will depend on the size and complexity of the proposed development and the infrastructure, land or money involved.
Costs will range and may include engineering advice, legal advice and drafting fees. Any reasonable cost incurred by the Council in the production of a DA will be borne by the developer.
Establishing a DA will generally involve the following steps:
The draft agreement is then submitted to the Finance and Strategy Committee for consideration and then to Council for final approval.
The scope of DAs may vary depending on the scale and nature of the development or project. The requirements for contents of a DA are set out in section 207C of the Local Government Act 2002 (LGA).
The LGA requires that a development agreement must include (but is not limited to):
The LGA also outlines that a DA may also include additional information such as:
Content of a Development Agreement:
The descriptive overview of the general content of a council development agreement provided below is for illustrative purposes only and the actual content of a PDA will be developed on a case by case basis by Waikato District Council in partnership with a developer.
It is important to note that:
Section
Description / Purpose / Guidance
Title
Header title with a clear description of the type of agreement.
Date of Agreement
The date that the Agreement was finalised (i.e. all parties signed). Often an Agreement would be circulated among parties and may be signed by different parties on different dates.
Parties to the Agreement
Full description and legal name of all parties to the agreement. This can include the same persons operating under different capacities for example as an individual and as a trustee.
Background
Background of matters leading to the agreement. This would include:
Definitions and interpretation
This section should include definitions for key terms used within the agreement. Where possible use standardised definitions that align with other Council documents (e.g. District Plans, ITS) and LGA.
Development of infrastructure
For agreements involving physical infrastructure works clauses in the DA provisions regarding purchase price, vesting, and operations and management will likely be a focus of amendments. Key linkage to schedules defining the infrastructure and price.
Development contributions
For agreements that need to address Development Contributions. Clauses relevant to DC’s will de- pend significantly on particular situations and must be consistent with the DC policy.
Inclusion of WDC Standard terms of agreement , not limited to the following:
Termination
Defines the circumstances under which the Agreement is terminated, and which clauses (if any) remain in effect.
Costs
This clause should address where the costs associated with the negotiation, preparation and execution of the agreement fall. WDC legal and any other external costs are expected to be covered by the developer. Most should fall where they lay, however some third party process costs may arise from the agreement for which responsibility should be made clear upfront and allocated appropriately.
Partnership or other relationship
This clause states that no partnership or other relationship between the parties is created by the agreement.
Severability
The clause addresses what happens to the rest of the agreement when one or more clauses is severed.
Assignment
This clause restricts the right to assign the agreement to other parties without the written agreement of all other existing parties to the agreement.
Amendments
This clause states that no changes or amendments to the agreement will be effective unless in writing and signed by both parties (e.g. verbal agreements to alter the agreement are not enforceable).
Dispute resolution
This clause establishes a dispute resolution process appropriate to agreement
Governing law and jurisdiction
This clause states that New Zealand law and jurisdiction is the relevant legal framework within which the agreement sits.
No announcements, confidentiality
This clause clarifies that the agreement is confidential and that the parties must keep the existence or the agreement and its contents confidential unless agreed in the alternative by all parties in writing.
Councils statutory role
This clause addresses Council’s statutory role, responsibilities and duties and the potential impact, if any, on the agreement linked to above 2 clauses.
Schedules
These may include descriptions of the development, referring to plans and details. If detailed plans are needed and not available, then a process is needed to agree their subsequent preparation, endorsement and inclusion. Describe infrastructure, works, land being provided or exchanged. Include detailed plans and diagrams if possible. Include the agreed purchase price of the Infrastructure.
Questions? Contact our Development Contributions Co-ordinator at DevelopmentContributions@waidc.govt.nz.
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