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Waikato District Council - Te Kaunihera aa Takiwaa o Waikato

Development Agreements

A Developer Agreement (DA) is a contractual agreement voluntarily entered into between one or more developers and the Council. These agreements may cover:

  • Providing, supplying, or exchanging infrastructure and/or land
  • Paying money to provide network infrastructure, works, or reserve land.

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).


When is a Development Agreement required?

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.

Are Development Contributions still payable? 

DAs do not exempt the developer from paying charges under the Council’s Development Contributions Policy.

Cost of entering a Development agreement 

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.

Process of entering a Development Agreement 

Establishing a DA will generally involve the following steps:

  1. Engage early with the Council, usually during consent Pre Application meeting, and request to enter into a DA.
  2. The Council to consider and agree to explore the option.
  3. Further discussion held between developer and the Council to establish nature and scope of proposed agreement.
  4. The Council to develop initial draft development agreement including standard terms and conditions.
  5. Developer to review the content of the draft agreement (standard terms and conditions are non- negotiable).

The draft agreement is then submitted to the Finance and Strategy Committee for consideration and then to Council for final approval.

Content of a Development Agreement

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):

  • Legal names of the parties to the agreement
  • Description of land to which the agreement will relate including the legal description, street address and any other property identifiers
  • Details of the infrastructure (if any) that each party to the agreement will provide or pay for
  • Provisions relating to the payment of development contributions.

The LGA also outlines that a DA may also include additional information such as:

  • A description of the development
  • When the infrastructure will be provided
  • Who will own operate and maintain the infrastructure
  • Timing and arrangements for vesting of infrastructure
  • The mechanism for the resolution of disputes under the agreement.
  • Nature, amount and timing of any payments to be made between the parties
  • The enforcement of the development agreement by suitable means in the event of a breach.

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:

  • The scope of Development Agreements will vary depending on the scale and nature of the development or project
  • When WDC agrees to enter into a Development Agreement, WDC will prepare an initial draft
  • All DAs are bound by the relevant provisions of the Local Government Act 2002 and WDC’s Development Contribution Policy.

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:

  • Summary of the development proposal and location
  • A statement about the link to growth in the District and why a DA is needed / appropriate
  • Succinctly and accurately describe the intention of the parties and what the agreement is trying to
  • achieve.

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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