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Developer Agreements

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Prepared by: S. Douglas Spell & Stephanie L. Sudano, Engineering

Adopted by Council: 4/14/94

Effective: 4/14/94


To outline the process for entering into a Developer Agreement for right of way dedication and/or street construction of roadways designated on the Town Thoroughfare Plan.


This Policy Statement shall apply to all roadway projects for which a developer or landowner may request offsets or cash reimbursements in accordance with the Transportation Development Fee Ordinance.


1. A Developer Agreement may be entered into with the Town for right of way dedication and/or street construction of roadways which are designated as thoroughfares on the Town Thoroughfare Plan in accordance with Chapter 16 "Transportation Development Fees" of the Unified Development Ordinance.

2. Only right of way dedication and/or street construction which exceeds the typical cross section requirement of a collector street shall be eligible for consideration as a part of this policy. The typical cross section of a collector street is defined as a thirty-five (35) foot wide street with curb and gutter on a sixty (60) foot right of way.

3. The thoroughfare roadway for which right of way dedication and/or street construction is to be performed as a part of a Developer Agreement shall be clearly designated on the site or subdivision plans. The site or subdivision plan shall include engineering drawings showing the plan and profile for street construction in accordance with Town Standard Specifications and shall be approved by the Town, and N.C. Department of Transportation if applicable, prior to any construction. Street infrastructure plans which are not a part of a development plan may be approved by Staff and may be eligible for a Developer Agreement in accordance with the terms of this policy.

4. The number of single-family units, multi-family units, density of development, square footage of non-residential development by type of use, and all other pertinent information as may be required to allow Staff to determine the transportation development fee for the proposed development shall be clearly designated on the site or subdivision plan.

5. Prior to entering into a Developer Agreement, the site or subdivision plan shall receive approval in accordance with the Town's Unified Development Ordinance. The approval of the site or subdivision plan, with the right of way dedication and/or street construction designated thereon, shall constitute concurrence of the Town to enter into and execute a "Developer Agreement" with the developer. Following the approval of the site or subdivision plan, the Town Manager shall have authority to enter into the Developer Agreement with the developer on behalf of the Town. Circumstances outside the policy and procedures adopted by the Town Council which apply to Developer Agreements, will require the approval of the Developer Agreement by the Town Council. Staff shall provide a biannual update, to the Town Council, of all Developer Agreements executed by the Town within that time period.

6. Following approval of the site or subdivision plan, and prior to any bidding, award or construction of the associated roadway improvements, the developer or his designee shall submit an "Application for Developer Agreement", as attached with this policy, to the Town Engineer.

7. Upon receipt and approval of the application and supporting information, the Engineering Department will prepare a Developer Agreement for the proposed development designating the estimated offset amount and/or the estimated maximum eligible cash reimbursement amount.

8. The Engineering Department shall then forward three (3) copies of the Developer Agreement to the developer to be executed and returned to the Town.

9. Following receipt of the executed agreements from the developer, the Engineering Department will forward the Developer Agreement to the Town Manager for execution by the Town.

10. Following approval and execution of the Developer Agreement by the Town, the Engineering Department will forward one (1) original executed copy to the Developer.

11. The developer, or his designee, shall comply with all applicable provisions of the North Carolina General Statutes regulating public contracts. Primarily, this involves North Carolina General Statute 143-129 "Formal Bidding Procedure" or NCGS 143-131 "Informal Bidding Procedure" whichever shall apply based upon the total cost of the project. The developer, or his designee, must provide to the Town copies of all bid proposals received, a copy of the executed contract between the developer and the lowest, responsible bidder, and a unit price bid tabulation which is signed and sealed by a professional engineer registered in the State of North Carolina, certifying the bids received and that award of the contract is in accordance with this policy. The bid shall be a unit price bid covering all eligible quantities.

12. The selected contractor must be properly licensed to perform the construction associated with the roadway project.

13. The value of right of way dedication shall be determined by the actual sale price of real estate if it has been sold within the prior three (3) years or by certified appraisal if the property has not been sold within the three (3) years prior to approval of the plans. Documentation in accordance with this requirement must be submitted to Staff as a part of the application for a Developer Agreement.

14. The Developer Agreement shall provide for offsets to the transportation development fee in the total amount of estimated transportation development fees for the project or in the total dollar amount approved for right of way and/or street construction, whichever is less. These offsets may be used for the specific development, as it exists at the time the Developer Agreement is executed, for which improvements are required.

15. The Developer Agreement may designate an eligible cash reimbursement equal to the total eligible costs for street construction and right of way dedication less the eligible costs which are designated as offsets in accordance with Item No. 14 above. Cash reimbursements shall be distributed annually. Reimbursements shall be calculated by dividing the balance of cash reimbursements due on each project by the total balance of cash reimbursements due on all projects, and multiplying that number by the percent reserved for cash reimbursements, which is designated as up to twenty-five (25) percent of the total transportation development fees collected during the year.

16. Following completion of any street construction as a part of a Developer Agreement, the developer's engineer must submit a final summary of construction costs, eligible under the terms of the executed Developer Agreement, in accordance with Item No. 11 above. A Certified Sales Tax Statement from the Contractor for the portion of the project eligible for offsets or cash reimbursements must also be provided. All required items must be provided to the Town prior to the beginning of the one (1) year warranty for routine maintenance.

17. The Town will revise the previously executed Developer Agreement based upon approved final construction costs eligible as a part of the agreement and will provide the amended agreement to the developer for execution. Following execution of the amended agreement, the Engineering Department will remit one (1) original executed copy of the "Final Developer Agreement" to the developer.

18. If the developer of a project initiates road improvements prior to submitting an application for the preparation of a Developer Agreement to the Town of Cary, the developer forfeits his right to enter into a Developer Agreement for the roadway improvements. Advertising for bids shall constitute the initiation of roadway improvements.

19. The Town shall not be responsible for reimbursement of any Transportation Development Fees paid by a developer for any development eligible for offsets, but not applied for, under the terms of this policy.