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:
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:
Description / Purpose / Guidance
Header title with a clear
description of the type 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
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
Background of matters leading to the agreement. This
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
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.
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
Inclusion of WDC Standard terms of
agreement , not limited to the following:
circumstances under which the Agreement is terminated, and which clauses (if
any) remain in effect.
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.
The clause addresses what happens to the rest of the
agreement when one or more clauses is severed.
restricts the right to assign the agreement to other parties without the
written agreement of all other existing parties to the agreement.
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).
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
No announcements, confidentiality
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.
addresses Council’s statutory role, responsibilities and duties and the
potential impact, if any, on the agreement linked to above 2 clauses.
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
Questions? Contact our Development Contributions Co-ordinator at DevelopmentContributions@waidc.govt.nz.
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