Ngai Tahu Settlement
Doug Graham Treaty of Waitangi NegotiationsATTACHMENT 13.5
LEASE OVER LIGHTHOUSE SITE ON RAROTOKA
(Clause
13.4.3)
MEMORANDUM OF LEASE
[Rarotoka (Centre Island)]
BETWEEN
(1) TE RUNANGA O NGAI TAHU at Christchurch ("Lessor")
being registered as the proprietor of an estate in fee simple subject however to
such encumbrances, liens and interests as are notified by memoranda underwritten
or endorsed hereon in all that parcel of land situated in the Southland Land
District more particularly described in the Schedule of Land.
(2) MARITIME SAFETY AUTHORITY OF NEW ZEALAND
established by virtue of the Maritime Transport Act 1994 ("Lessee")
SCHEDULE OF LAND
| Estate Fee Simple | ||
| C.T. | Area | Lot & D.P. No. or other legal description, or Document No. |
| 3.3980 hectares, more or less | Southland Land District, Southland District Council, 3.3980 hectares, more or less, being Section 2 SO 12175. Being all New Zealand Gazette 1992 page 4325 (Document 246554.1 Southland Registry) as shown on Allocation Plan SS 430 (SO 12250) attached to the Deed of Settlement between Te Runanga and the Crown dated 21 November 1997 |
|
|
Encumbrances, Liens & Interests Together with Right of Way Easement |
||
THE LESSOR DOES HEREBY LEASE TO THE LESSEEand THE LESSEE DOES HEREBY TAKE ON LEASE the Land described in
the Schedule of Land for the term and at the rent set out in the Schedule of
Terms, and otherwise subject to the covenants, conditions, agreements and
restrictions set out in this lease which comprises the Schedule of Land and the
Schedule of Terms.
DATED day of 199
| SIGNED for | ) | |
| MARITIME SAFETY | ) | |
| AUTHORITY OF NEW |
) | |
| ZEALAND by the Director of |
) | ________________ |
| Maritime Safety in the presence of: |
||
|
___________________________ |
||
| Witness: | ||
| Occupation: | ||
| Address: | ||
| THE SEAL of |
) | |
| TE RUNANGA O NGAI | ) | |
| TAHU was affixed in the |
) | |
| presence of: | ) | |
| _____________________ | Runanga Representative | |
| _____________________ | Secretary | |
| in the presence of: | ||
| Signature: | ________________ | |
| Name of Witness: | ________________ | |
| Address: | ________________ | |
| Occupation: | ________________ | |
SCHEDULE OF TERMS
THE LESSOR AND THE LESSEE COVENANT AND AGREEas follows:
1 Term
In consideration of the rent payable under this lease, and of
the Lessee's covenants, express and implied, contained in this lease, the Lessor
leases to the Lessee all the Land for a term of 999 years commencing from [to
insert date].
2 Early Termination
2.1 The Lessee may terminate this lease by giving not less than
12 months" notice ("Termination Notice") in writing to the Lessor.
2.2 The Lessee shall give the Termination Notice if the Lessee
no longer requires the Land for the purposes of a navigational aid
site.
2.3 From the expiry of the period specified in the Termination
Notice every estate and interest of the Lessee in the Land and in this lease
shall determine and cease absolutely without prejudice to the rights and
remedies of either party against the other in respect of any antecedent claim or
breach.
2.4 This clause 2 shall be paramount to, and operate
notwithstanding, any other provisions in this lease.
3 Payment of Rent
The Lessee shall pay annual rent in the sum of $1 per annum if
demanded by the Lessor in advance each year throughout the term of this lease
from the date of commencement of this lease.
4 Charges
The Lessee will pay all charges incurred by the Lessee for any
electricity, gas, water or power or other services in respect of the Land and
Improvements including all connection, disconnection, or other fees payable by
the Lessee to other authorities in respect of such services.
5 Payment of Rates and Impositions
The Lessee will pay upon demand all rates (including without
limitation, rates or levies payable to any local or territorial authority),
taxes (including without limitation land or improvements tax but excluding any
income tax or capital gains tax or such similar tax which is personal to the
Lessor which is imposed as a result of any sale or other disposal of the Land or
because of income gained by the Lessor from the Land), charges, assessments,
impositions and outgoings whatsoever which now are or which during the term
shall be taxed, rated, charged, assessed or imposed on the Land, any
Improvements or on the Lessor or Lessee in respect thereof by any
Authority.
6 Goods and Services Tax
The Lessee shall pay to the Lessor upon demand any taxes paid
or payable by the Lessor or accountable by the Lessor pursuant to the provisions
of the Goods and Services Tax 1985 or any similar tax levied in substitution
therefor including all amendments and any enactments in substitution therefor or
in addition thereto or otherwise in respect of any payments made by the Lessee
under this Lease (including the payment of annual rent) or paid by the Lessor on
behalf of the Lessee's obligation to make such payment under this
Lease.
7 Assignment
The Lessee shall not assign sublease or otherwise part with the
possession of the Land or any part thereof without first obtaining the written
consent of the Lessor to such assignment or other parting with possession but
such consent shall not be unreasonably or arbitrarily withheld or delayed in the
case of the assignment or other parting with possession of the whole of the Land
to any statutory successor of the Lessee or other organisation which carries out
the functions of the Lessee where that successor or organisation is responsible
and solvent for the use described in clause 8.
8 Use
The Lessee shall not use or permit to be used the Land or any
part thereof for any purpose other than for navigational aid purposes and
associated facilities.
9 Access
9.1 In consideration of the Lessee's covenants under this lease
the Lessor grants to the Lessee the right to use the land adjoining the Land, as
outlined in double line and marked "B" on the plan attached to this lease
("Adjoining Land") for the purposes of accessing the Land by foot, vehicle or
helicopter, on the following terms:
9.1.1 the right to the use of the Adjoining Land will only be
available where weather and sea conditions do not permit a safe landing on the
Land; and
9.1.2 the Lessee in exercising the right to use the Adjoining
Land will respect and not interfere with any wahi tapu or other spiritual site
or with any regeneration project of the natural habitat within the Adjoining
Land.
9.2 The Lessee may in an emergency but otherwise only with the
consent of the Lessor (not to be unreasonably withheld or delayed), use the
Adjoining Land for the purposes of gaining access to the Land with helicopters
and vehicles and plant and machinery.
9.3 The right to use the Adjoining Land shall commence on the
commencement date of the lease. Any assignment of the lease shall be deemed to
include an assignment of this right to use the Adjoining Land.
9.4 If this lease is registered, the Lessor shall enter into a
registrable easement and/or encumbrance to be prepared by the Lessor at the cost
of the Lessor recording the rights contained in this clause 9.
10 Exterior Signs
The Lessee shall not affix paint or exhibit or permit to be
affixed painted or exhibited any name sign nameplate signboard or advertisement
of any description on or to the Land without the prior consent in writing of the
Lessor first had and obtained provided that such consent shall not be
unreasonably or arbitrarily withheld or delayed. Notwithstanding the foregoing,
the Lessee shall be entitled to erect on the Land appropriate signage indicating
the nature of the navigational aid or describing the Lessee's use of the Land or
any public information relevant to that use. The Lessee shall, at the end or
sooner determination of the term of this lease, remove any such signage and make
good any damage occasioned thereby.
11 No Noxious Use
11.1 The Lessee shall not bring in or upon or store within the
property or permit to be brought upon the Land any machinery or goods or things
of an offensive noxious illegal or dangerous nature, unless such machinery,
goods or things are required for the use specified in clause 8.
11.2 Any such machinery, goods or things required for the use
specified in clause 8 that exist on the property are to be kept stored and
secure at all times.
11.3 The Lessee shall not use or permit to be used the Land nor
any improvements thereon for any noisome noxious illegal or offensive trade or
business nor permit or suffer any act or thing to be done which may be or grow
to be a nuisance disturbance or annoyance to the Lessor or the owners or
occupiers of adjoining Land and generally the Lessee shall conduct the Lessee's
business upon the Land in a clean quiet and orderly manner free from damage
nuisance disturbance or annoyance to any such person provided that any permitted
use shall not by itself be a breach of this clause.
12 Compliance with Statutes and Regulation
12.1 The Lessee shall comply with the provisions of all
statutes ordinances regulations and by-laws in any way relating to or affecting
the Land or the use of the Land by the Lessee or other occupant thereof and will
also comply with the provisions of all licences requisitions and notices issued
made or given by any competent authority in respect of the Land or the use
thereof by the Lessee and shall forthwith after receipt of any such requisition
or notice supply a copy of same to the Lessor.
12.2 The Lessee will at all times and from time to time during
the term of this lease clear and keep the Land clear of all noxious weeds and
vermin and in particular will comply in all respects with the provisions of the
Biosecurity Act 1993 and all enactments in addition and substitution therefor
and all notices in pursuance thereof.
13 Risk
The Lessee agrees to occupy and use the Land and any
Improvements on the Land at the Lessee's risk except where the Lessor or any
person under the Lessor's control is at fault or negligent through their own
acts or omissions.
14 Indemnity
14.1 The Lessee shall indemnify the Lessor from and against all
damage or loss suffered or incurred in consequence of any negligent act or
omission on the part of the Lessee or those under the control of the Lessee and
in particular shall fully recompense the Lessor for any charges or expenses
incurred by the Lessor in making good any damage to the Land including, but not
limited to, any damage caused by fire resulting from any such negligent act or
omission aforesaid.
14.2 The Lessor shall indemnify the Lessee from and against all
damage or loss suffered or incurred in consequence of any negligent act or
omission on the part of the Lessor or those under the control of the Lessor and
in particular shall fully recompense the Lessee for any charges or expenses
incurred by the Lessee in making good any damage to the Land resulting from any
such negligent act or omission aforesaid.
15 Costs
15.1 The parties shall each pay their own solicitors" costs on
preparing and finalising this Lease or any renewal or variation of this
Lease.
15.2 The Lessee shall pay for all costs, charges and expenses
for which the Lessor shall become liable in consequence of or in connection with
any breach or default by the Lessee in the performance or observance of any of
the terms, covenants and conditions of this Lease.
16 Registration and Other Costs
16.1 The Lessor shall register this Lease under the provisions
of the Land Transfer Act 1952.
16.2 The Lessee shall be responsible for payment of all
registration fees including agency charges imposed and all Government tax duty
or impost at any time payable on any renewal or variation to this
Lease.
16.3 The Lessor shall be responsible for survey and other costs
incurred in obtaining registration of this Lease and any easement and/or
encumbrance arising out of the Adjoining Land Rights.
17 Quiet enjoyment
17.1 The Lessee while paying the rent and performing and
observing all and singular the covenants and agreements on its part herein
expressed and implied shall quietly hold and enjoy the Land throughout the term
without any interruption by the Lessor or any person claiming under the Lessor
except for access permitted by the grant of a licence to the Lessor under the
terms of clause 18.
17.2 The Lessor will pay promptly as they fall due all payments
for local authority rates and Land tax or any such tax imposed in relation to
the Land as well as other outgoings payable in respect of the Land, including
principal and interest due under any mortgage registered against the Land, and
hereby indemnifies the Lessee against any costs claims demands or liabilities
which the Lessee may suffer or incur as a result of any breach of this covenant
by the Lessor.
18 Grant of licence to Lessor
18.1 The Lessee agrees to reserve to the Lessor and those
persons under their control the right to gain access across the Land to the
surrounding beachline provided that:
18.1.1 such access does not interfere with the Lessee's
operations;
18.1.2 the Lessor will not knowingly permit the buildings,
plant and equipment on the property to be entered interfered with, soiled or
damaged in any way.
19 Lease of Land only
19.1 The tenancy hereby created shall refer and relate only to
the Land and the Lessor shall at all times be entitled to use and occupy and
deal with any land surrounding the Land, including the Adjoining Land, without
reference to the Lessee and the Lessee shall have no rights or relation thereto
other than the rights of use and access and landing rights as described in
clause 9.
19.2 Notwithstanding the provisions of clause 18.1, the Lessor
covenants that the Lessor will ensure that the Lessor's use of any land (by
building or planting of trees or howsoever) surrounding the Land does not
interfere with the arc of light from any navigational light on the Land, as
outlined by a broken line on the attached plan ("arc of light"), so as to
obstruct or in any way hinder its use or visibility for navigational
purposes.
19.3 The Lessor shall ensure that the covenant contained in
clause 19.2 is specified as a condition in a consent notice pursuant to section
221 of the Resource Management Act 1991 in the event of any subdivision of the
Land and the Adjoining Land or the land surrounding the Land and the Adjoining
Land, within the terms of that Act.
19.4 In addition to the Lessor's obligations under clause 19.3,
on the sale of any land surrounding the Land, the Lessor shall enter into a
restrictive covenant, or any other such instrument prepared by the Lessee,
giving effect to the provisions of clause 19.2 of this lease. At the request of
the Lessee, the Lessor will enforce such covenant against any occupier of land
within the arc of light of the Lessee's navigational light.
20 Improvements during lease
20.1 Throughout the term of this lease the Lessee shall have
the right to construct, alter, relocate and demolish at the cost of the Lessee
any improvements on the Land without the need to obtain the consent of the
Lessor provided that any such improvements are consistent with the use of the
Land as described in clause 8.
20.2 All improvements situated on the Land at the commencement
date and any improvements installed or erected on the Land during the term of
this Lease shall be deemed to be the property of the Lessee.
21 Removal of fixtures fittings and
improvements
21.1 Subject to clause 21.3, the Lessee shall be entitled to
remove at any time after the expiration or sooner determination of the term or
at such other time as the Lessee shall give up possession of the Land (the
"Withdrawal Date") all fixtures, fittings and improvements which belong to or
which the Lessee shall have installed on the Land and the Lessee shall make
good, at the Lessee's own expense and to the satisfaction of the Lessor, all
damage that may be done by the removal of such fixtures, fittings and
improvements.
21.2 Within the period of 12 months after the Withdrawal Date
the Lessee shall if requested by the Lessor, remove or demolish all improvements
on the Land that are derelict (unless such improvements are incapable of being
removed because of any lawful requirement that they remain) and the Lessee shall
make good at the Lessee's own expense and to the satisfaction of the Lessor all
damage that may be done by the removal of such fixtures, fittings and
improvements.
21.3 All fixtures, fittings and improvements remaining on the
Land within the period of twelve months after the Withdrawal Date, shall become
the property of the Lessor without any compensation or other payment whatsoever
to the Lessee.
22 Waiver
No waiver or failure to act by the Lessor in respect of any one
or more breaches by the Lessee of any covenant or agreement contained herein
shall operate as a waiver of another breach of the same or of any other covenant
or agreement.
23 Arbitration
23.1 Any dispute which may arise between the parties concerning
the interpretation of this lease or relating to any other matter arising under
this lease will be actively and in good faith negotiated by the parties with a
view to a speedy resolution of such dispute.
23.2 If the parties cannot resolve a dispute within 15 business
days of any dispute arising then, unless otherwise expressly provided in this
lease, they will without prejudice to any other right, explore whether such
dispute can be resolved by agreement between them using informal dispute
resolution techniques such as mediation. The rules governing any such technique
if adopted will be agreed between the parties or as selected by the organisation
known as "LEADR" (Lawyers Engaged in Alternative Dispute Resolution).
23.3 If the parties cannot agree on any dispute resolution
technique within a further 15 business days of any dispute being considered for
referral by both parties to any informal dispute resolution technique under
Clause 23.2 then the dispute shall be settled by reference to arbitration.
Except as otherwise expressly provided in this lease the reference shall be to a
single arbitrator if one can be agreed upon, or to two arbitrators (one to be
appointed by each party) and their umpire (appointed by them prior to their
arbitration), such arbitration to be carried out in accordance with the
Arbitration Act 1908 or any successor Act.
23.4 The parties will co-operate to ensure the expeditious
conduct of any arbitration. In particular, each party will comply with any
reasonable time limits sought by the other for settling terms of reference,
interlocutory matters and generally all steps preliminary and incidental to the
hearing and determination of the proceedings.
24 Notice
24.1 All notices including requests, demands and other
communications under this lease, to be given by a party to any other party may
be given by personal delivery or sent by an accepted means of electronic
transmission to the other party. Any notices shall be deemed given when
personally delivered or if sent by electronic transmission in the manner set out
above shall be deemed given on the first business day following the day of
sending of the electronic transmission.
24.2 Any notice shall be in writing addressed to the party to
whom it is to be sent at the address or facsimile number from time to time
designated by that party in writing to any other party.
25 No Merger
The agreements, obligations, warranties and undertakings of the
parties shall not merge with this Lease but shall remain enforceable to the
earliest extent notwithstanding any rule of law to the contrary.
26 Interpretation
In this lease unless the context otherwise requires:
26.1 The expression "Lessor" and "Lessee" includes their
respective successors and assigns (if permitted in the case of the Lessee under
Clause 7) and where the context permits other lawful occupiers of the Land and
the Lessor's or the Lessee's contractors, agents and invitees (which persons
shall be those deemed to be persons under the control respectively of the Lessor
and the Lessee).
26.2 Covenants by any two or more persons shall be joint and
several.
26.3 "Month" means calendar month.
26.4 Headings have been inserted for guidance only and shall
not be deemed to form part of the context.
26.5 Words importing any gender shall include all other
genders.
26.6 Words importing the singular shall include the plural and
vice versa.
26.7 Payments shall be made in the lawful currency of New
Zealand.
26.8 References to schedules are references to schedules in
this lease and clauses are references to clauses in the Schedule of Terms and
references to parties are references to the parties to this lease and their
respective successors and assigns (if permitted in the case of the Lessee under
Clause 7) unless expressly stated otherwise.
26.9 Any reference in this lease to any statute is deemed to
include all amendments, revisions, substitutions or consolidations made from
time to time to that statute.
26.10 "writing" shall include words visibly represented or
reproduced.
26.11 Nothing contained in this Lease shall be deemed or
construed or constitute any party, a partner, agent or representative of the
other party or be deemed to create any trust, commercial partnership or joint
venture.
26.12 The invalidity of any part or provision of this Lease
shall not affect the enforceability of any other part or provision
thereof.