NEW ZEALAND GAZETTE, No. 103

8 AUGUST 2013

11. If the Grantee wilfully or with wilful disregard causes or permits any breach of the obligations set out in this easement, the Grantor will be entitled to take all reasonable steps to remedy the breach and recover the direct costs it incurs from the Grantee as a debt.

12. Nothing contained or implied in this easement shall be deemed to compel the Grantee to avail itself of the rights hereby granted and the Grantee may from time to time discontinue and recommence at will the use of the Dam for the ponding of water and the exercise of any other rights contained in this easement. The Grantee shall continue to have sole responsibility for the maintenance and safety of the Dam during any period(s) its use is discontinued.

13. If the Grantor wilfully or with wilful disregard causes or permits any breach of the obligations set out in this easement, the Grantee will be entitled to take all reasonable steps to remedy the breach and recover the direct costs it incurs from the Grantor as a debt.

14. The within easement shall run forever or until the Grantor and Grantee, for the time being, otherwise mutually agree.

15. In no circumstances whatsoever shall any Grantor or Grantee, for the time being, to the within easement cancel, repudiate or otherwise attempt to terminate the within easement for any breach or alleged breach by the other party, it being the mutual and irrevocable intention of the parties at all times during the continuance of this easement that the remedies set out in clauses 11 and 13 are the only remedies any party not in breach (or alleged breach) has.

16. The Grantor and Grantee mutually acknowledge:

(a) That the Dam and the Easement Area are located on the land of the Grantor.

(b) That the Dam has been constructed for the Grantee as a public work, namely a "Local work" as defined in section 2 of the Public Works Act 1981.

(c) That the Easement Area upon which the Dam is located remains in the fee simple ownership of the Grantor (or any successor in title) but is subject to the terms of the within easement.

(d) That, notwithstanding any rule of law or equity to the contrary, the Grantee or any successor to the Grantee as a Grantee under the within easement shall, for the purposes of any statute, Regulation, bylaw, ordinance, requisition or any other lawful requirement be deemed to be both the owner and occupier of the Easement Area and all structures and appurtenances thereon (whether constructed by or at the expense of the Grantee or any successor in title to the Grantee, or not).

(e) That the Grantee and any successor Grantee for the time being:

(i) Shall save harmless and indemnify the Grantor and any successor(s) in title to the Grantor to the fullest extent permitted by law from any loss, harm or damage howsoever suffered that may in any way accrue to the Grantor or any successor in title to the Grantor from the operation of the Dam and its appurtenances on or about the Easement Area.

(ii) Irrevocably agrees that should the Grantor or any successor(s) in title to the Grantor suffer either any physical damage or monetary loss whatsoever as a result of any breach of the indemnity given at paragraph 16(e)(i) above, then such loss shall be recoverable under section 60(1)(c) of the Public Works Act 1981.

(iii) Should there be more than one Grantee under the within easement, their liability under the indemnity in clause 16(e)(i) above shall be joint and several.

(iv) The Grantee shall not assign its interest under the within easement unless its assignee is another public work operator or network utility operator with requiring authority powers, in which case the Grantor or any successor in title to the Grantor shall be deemed to have consented to the assignment.

(v) That should the within easement be determined by agreement, the Grantee or the then Grantee shall be responsible for making good the Dam and the Easement Area to the reasonable satisfaction of the Grantor within one year from the determination of the easement (time being strictly of the essence).

17. The Grantor and the Grantee acknowledge and agree that if the whole of the fee simple of the Easement Area comes into the ownership of the Grantee for the time being, then that Grantee shall promptly either surrender the Dam Easement or alternatively merge the Grantor’s and Grantee’s interests by way of a request made to the Registrar-General of Land under section 35 of the Public Works Act. Alternatively, should part of the fee simple of the Easement Area come into the ownership of the Grantee for the time being, then that Grantee shall promptly partially surrender the Dam Easement over that part of the fee simple that has come into its ownership.

18. Clauses 13 and 14 of Schedule 4 of the Land Transfer Regulations 2002 will apply in respect of this easement.

Fifth Schedule

Terms of the Right of Way Easement Acquired

1. The Grantee, its employees, contractors and agents shall have the right at all times in common with the Grantor and the Grantor’s invitees to go over and along the area marked "A", "E" and "F" on SO 453850 ("the Right of Way Area") with or without any vehicle, machinery or implement.

2. This easement is appurtenant to Section 3 on SO 453850.

3. The Grantee shall have the right to form and maintain a driveway over the Right of Way Area and if necessary for any of those purposes to alter the state of the land over which the easement is granted.

4. The Grantee shall have the right to have the Right of Way Area kept clear at all times of obstructions whether caused by parked vehicles, deposit of materials, or unreasonable impediments.

5. The Grantee shall have the right to recover the cost of repairing any damage to the driveway made necessary by any deliberate or negligent act of a person bound by these covenants or that person’s agents, contractors, employees, invitees, licensees or tenants. Except for this, the Grantor shall have no obligation to contribute to the cost of constructing, maintaining and repairing any driveway to which this easement applies.

6. The Grantee will construct a lockable gate at the point where Babich Road meets the area marked "E" on SO 453850. Keys to any lock on this gate will be provided to the Grantor and the Grantee. The Grantor