BAYSWATER MARINA BERTH LICENCE
 
TABLE OF CONTENTS

1.Interpretation  

2.Consent  

3.Term  

4.Operating expenses 

5. Major refurbishment fund

6.Goods and services tax and other duties

7.Use and occupation of Marina

8.Marina rules

9.Maintenance of vessels

10.  Relocation of berth

11.  Transfer of berth licence  

12.  Sublicensing of berth

13.  Indemnity

14.  Insurance

15.   Destruction or damage to Marina  

16.  Protection of resource consents 

17.   Default

18.  Essentiality of payments 

19.  Repudiation

20.  Compliance with Acts and Regulations etc

21.   Notices 

22.  Charter boats (special provisions to apply where berth used for charter boats)

23.   Pile moorings (special provisions to apply where berth is a pile mooring)

24.  Dinghy rack

FIRST SCHEDULE  OPERATING EXPENSES

SECOND SCHEDULE  MARINA RULES

THIRD SCHEDULE  PLAN OF MARINA AREA 

SCHEDULE OF LICENCE DETAILS  

 PARTIES

 BAYSWATER MARINA LIMITED (“Marina Manager”)

 THE PERSON(s) named in the Schedule of Licence Details (included in the term the “Berthholder”)

  

INTRODUCTION

Pursuant to the rights arising out of this licence, the Marina Manager hereby grants to the Berthholder a licence to use, occupy and enjoy the Berth in the Marina upon the following terms and conditions.

COVENANTS

 1.  INTERPRETATION

Definitions

“Authority” means any local body, Government or other authority or department having jurisdiction or authority, over or in respect of, the Marina or its use or occupation.

“Berth” means the berth in the Marina or, in the case of a pile mooring in the Marina, described in the Schedule of Licence Details.

“Berthholder” means the person named in the Schedule of Licence Details as the Berthholder and includes the Berthholder’s executors, administrators, successors and permitted assigns.

“Berthholder’s Proportion” means the proportion specified in the Schedule of Licence Details but subject to adjustment in accordance with the provisions of Clause 4.2

“Berthholder’s Proportion of Operating Expenses” means the Berthholder’s Proportion of Operating Expenses payable by the Berthholder and, where the Berth is used by a Charter Boat, will be subject to adjustment in accordance with the provisions of Clause 22.3

“Broken Period” means either the period from the Commencement Date to the next succeeding 31 March or the period from the last occurring 1 April during the Term to the Termination Date.

“Commencement Date” means the date specified in the Schedule of Licence Details.

“Company” means Bayswater Marina Limited.

“Default Rate” means the Marina Manager’s bank overdraft interest rate plus a further 4% per annum.

“Facilities” means the foreshore areas, parking areas, driveways, landscaped areas, toilets, launching ramps and other facilities constructed or placed on, or in, the Reclaimed Area.

“Goods and Services Tax” and “GST” means tax levied pursuant to the Goods and Services Tax Act 1985 and includes any tax levied in substitution for such tax.

“Marina” means the Bayswater Marina situated within the Reclaimed Area and the Marina Area and includes the Structures, the Facilities and the Services.

“Marina Area” means the area of seabed adjoining the Reclaimed Area comprising approximately 4.94 ha shown coloured white on the plan appearing as the Third Schedule.

“Marina Manager” means Bayswater Marina Limited an incorporated company having its registered office at Auckland and includes its successors and assigns.

“Marina Rules” means the rules established by the Marina Manager set out in the Second Schedule and includes any variation to such rules.

“Navigation Area” means the area of seabed adjoining the Reclaimed Area and Marina Area comprising approximately 6.26 ha, part of which is shown coloured light gray on the plan appearing as the Third Schedule.

“Nominated Vessel” means the vessel specified in the Schedule of Licence Details or any other vessel nominated by the Berthholder by notice in writing to the Marina Manager in substitution for that vessel and which complies with the provisions of Clause 2.3.

“Operating Expenses” means the total of all rates, taxes, costs and expenses incurred by the Marina Manager or for which the Marina Manager is or may prospectively become liable in respect of the Marina and includes, without limitation, any additional amount or amounts which the Marina Manager properly and reasonably determines are appropriate to be set aside in relation to the control, operation, occupation, maintenance and management of the Marina (but excluding costs and expenses which are the direct responsibility of the Berthholder or of any other Berthholder in the Marina) and in particular but without limiting the generality of the foregoing includes the rates, taxes, costs and expenses specified in the First Schedule.

“Purchaser” means a proposed purchaser (of the Berthholder’s interest in this licence) nominated by the Berthholder.

“Reclaimed Area” means those areas of the foreshore and seabed of the Waitemata Harbour comprising approximately 3.487 ha shown marked (A) Pt Bed of Waitemata Harbour, (B) Pt Bed of Waitemata Harbour and (C) Pt Reclaimed Land on Deposited Plan 19921, but excluding that area marked “Area Not to be Reclaimed” on Plan DOC (CM) AK (00129) SO 63335, Sheet (1) of (1) deposited in the Auckland Regional Office of the Department of Conservation, part of which is shown coloured dark grey on the plan appearing as the Third Schedule.

 “Resource Consents” means the various consents essential to the use and occupation of the Marina.

“Schedule of Licence Details” means the schedule of licence details attached to this licence which sets out various particulars pertaining to this licence.

“Services” means the power, water and other services provided for the benefit of the Berthholder in the Marina.

“Structures” means the breakwater, fingers, jetties, fueling jetty, loading jetty, piles and other structures constructed or placed on or in the Marina Area.

“Term” means the period commencing on the Commencement Date and ending on the Termination Date.

“Termination Date” means the date specified in the Schedule of Licence Details.

“Trustee” means The Trustees Executors and Agency Company of New Zealand Limited or any other trust company appointed by the Marina Manager.

“Working Day’ means any day of the week other than:

(a) Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, the Sovereign’s Birthday, Labour Day, Waitangi Day, and Auckland Anniversary Day; and

(b) a day in the period commencing with 24 December in any year and ending 5 January in the following year.

A working day shall be deemed to commence at 9.00am and terminate at 5.00pm.

1.2  Headings

Clause and other headings are for ease of reference only and shall not be deemed to form any part of the context or to affect the interpretation of this licence.

1.3  Parties

References to parties are references to parties to this licence.

1.4  Persons

References to persons shall be deemed to include references to individuals, companies, corporations, firms, partnerships, joint ventures, associations, organisations, trusts, states or agencies of state, government departments and local and municipal authorities in each case whether or not having separate legal personality.

1.5  Defined expressions

Expressions defined in the main body of this licence bear the defined meaning in the whole of this licence including the recitals.

1.6  Plural and singular

Words importing the singular number shall include the plural and vice versa.

1.7  Schedules

The schedules to this licence and the provisions and conditions contained in such schedules shall have the same effect as if set out in the body of this licence.

1.8  Clauses and schedules

References to clauses and schedules are references to clauses of, and schedules to, this licence.

1.9  Negative obligations

Any obligation not to do anything shall be deemed to include an obligation not to suffer, permit or cause that thing to be done.

1.10  Gender

Words importing one gender shall include the other genders.

1.11  Statutes and regulations

References to a statute include references to regulations, orders or notices made under or pursuant to such statute or regulations made under the statute and references to a statute or regulation include references to all amendments to that statute or regulation whether by subsequent statute or otherwise and a statute or regulation passed in substitution for the statute or regulation referred to as incorporating any of the provisions.

 

2.  CONSENT

2.1  Grant of Consent

In consideration of the Berthholder adopting the obligations imposed on the Berthholder by this licence, the Marina Manager hereby grants, to the Berthholder only, except as authorised by the Marina Manager in the case of a transfer or sublicensing, the rights to:

(a) berth the Nominated Vessel in the Berth, such Nominated Vessel being personally and beneficially owned (as to not less than a one quarter share) by the Berthholder;

(b) use the Structures and Facilities; and

(c) navigate vessels within the Navigation Area.

2.2  Right of third parties

The Berthholder acknowledges that the rights granted pursuant to subclauses 2.1(b) and 2.1(c) are subject to:

(a) the rights of public access provided for in the Resource Consents; and

(b) the rights of other Berthholders in the Marina and all other persons authorised by the Marina Manager from time to time.

2.3  Change in Nominated Vessel

The Berthholder may at any time by notice in writing, nominate a different Nominated Vessel provided that the vessel so nominated does not exceed the dimensions of the Berth specified in the Schedule of Licence Details and the Berthholder personally and beneficially owns not less than a one quarter share in the substituted nominated vessel.

 

3. TERM

3.1  Term

The term of this licence shall commence on the Commencement Date and shall terminate at midnight on the Termination Date.

 

4. OPERATING EXPENSES

4.1  Operating Expenses

The Berthholder shall pay to the Marina Manager throughout the Term the Berthholder’s Proportion of Operating Expenses.

4.2  Berthholder’s proportion

The Berthholder’s Proportion shall initially be the proportion specified in the Schedule of Licence Details provided that the Marina Manager may subsequently adjust the Berthholder’s Proportion to such reasonable and equitable proportion as the Marina Manager may specify by written notice to the Berthholder.

4.3  Broken Periods

As soon as practicable following the Commencement Date the Marina Manager shall advise the Berthholder of the amount of the Marina Manager’s estimate of the Berthholder’s Proportion of the Operating Expenses for the Broken Period to 31 March next following the Commencement Date.  The Berthholder shall pay to the Marina Manager the Berthholder’s Proportion of the Operating Expenses as estimated by the Marina Manager for that Broken Period by equal instalments in advance on the 1st day of each month during that Broken Period with a proportionate payment calculated on a daily basis for any period of less than one month.

4.4  Annual Operating Expenses

As soon as practicable following each 1 April during the Term the Marina Manager shall advise the Berthholder of the amount of the Marina Manager’s estimate of the Berthholder’s Proportion of the Operating Expenses for the next succeeding period of 12 months.  The Berthholder shall pay to the Marina Manager the amount of the Berthholder’s Proportion of the Operating Expenses as estimated by the Marina Manager for each  year by equal instalments in advance on the 1st day of each month during that period of 12 months.

4.5  Reconciliation

As soon as practicable after 31 March in each year during the Term the Marina Manager will provide to the Berthholder a statement of the actual Berthholder's Proportion of the Operating Expenses for the preceding period of 12 months or initial Broken Period (as the case may be) then ended as compared to the estimate previously notified by the Marina Manager and whatever adjustment as is necessary between the Marina Manager and the Berthholder shall be made after taking into account the payments previously made by the Berthholder in respect of that period of 12 months or initial Broken Period (as the case may be) on the basis that any refund shall be credited to future payments to be made by the Berthholder and any further payment by the Berthholder shall be payable to the Marina Manager upon demand.

4.6  Final Reconciliation

As soon as practicable after the Termination Date the Marina Manager shall provide a statement of the actual Berthholder’s Proportion of the Operating Expenses for the concluding Broken Period as compared to the estimate previously notified by the Marina Manager and whatever adjustment as is necessary between the Marina Manager and the Berthholder shall  be paid upon demand (subject to Clause 4.7) after taking into account the monthly payments made by the Berthholder in respect of the concluding Broken Period.

4.7  Withholding by Marina Manager

The Marina Manager may withhold the amount of any excess payments and apply the same in satisfaction of, or on account of, any other moneys owing by the Berthholder to the Marina Manager under this licence.

4.8  No set off or deductions

The Berthholder shall pay the amount of the Berthholder’s Proportion of Operating Expenses to the Marina Manager without any deduction or set off.

4.9  Bank authority

If required by the Marina Manager, the Berthholder shall pay the amount of the Berthholder’s Proportion of Operating Expenses by automatic bank authority.

4.10  Default Interest

The Berthholder shall pay interest at the Default Rate on the amount of the Berthholder’s Proportion of Operating Expenses or any other moneys payable under this licence which remain unpaid 14 days after the due date for payment.  Interest shall be calculated on a daily basis from the due date for payment until the actual date of payment and shall be payable on demand.  The right of the Marina Manager to recover interest shall be without prejudice to any other rights, powers and remedies of the Marina Manager.

4.11  Levies payable in addition to Operating Expenses

The payments referred to in this Clause 4 shall be made exclusive of any taxes, duties, assessments, impositions, levies of every kind (“Levies”) which during the Term shall be imposed or payable to the intent that any levies so imposed shall be paid by the Berthholder in addition to the moneys payable pursuant to this Clause 4.

 

5.  MAJOR REFURBISHMENT FUND

5.1  Payments

For the first period of the Term from the Commencement Date until the following 31 March, the Berthholder shall pay on the Commencement Date the sum specified in the Schedule of Licence Details on account of major refurbishment expenses.  For each subsequent 12 month period during the term of this licence, the Berthholder shall pay the Marina Manager an annual major refurbishment contribution to be payable annually in advance at such rate as the Marina Manager shall reasonably determine in respect of each 12 month period of the Term as being adequate to cover prospective repairs, renovations, replacements and matters of a substantial but infrequent or irregular nature in respect of the Marina.  The sum to be levied each year for the purposes referred to in this subclause (excluding the Marina Manager’s margin) shall not be more than 10% of the Operating Expenses as defined in Clause 1.1 and the First Schedule for the preceding 12 month period of the last term plus the Marina Manager’s margin calculated as a further 15% of the major refurbishment contribution.

5.2  Funds held in trust

The major refurbishment contribution fees together with any interest earned on such fees, will be held in trust by the Trustee in a separate bank account for the benefit of all the berthholders in the Marina and shall be applied, following the approval of the Trustee and the Marina Manager, for the purpose of carrying out the repairs, renovations, improvements, replacements and maintenance referred to in Clause 5.1.

5.3  Refund of credit on termination

Should, as at the Termination Date, there exist a credit balance in the major refurbishment fund held on trust by the Trustee pursuant to this Clause 5, the Berthholder shall, as soon as practicable, be paid a refund of the Berthholder’s Proportion of the major refurbishment fund.

 6.  GOODS AND SERVICES TAX AND OTHER DUTIES

6.1  GST

The Berthholder shall pay to the Marina Manager upon demand all Goods and Services Tax on any moneys payable by the Berthholder under or by virtue of this licence and the use by the Berthholder of the Berth.

6.2  Default

If any Goods and Services Tax is not paid by the Berthholder upon demand it shall be recoverable and bear interest at the Default Rate and without prejudice to any other remedies available to the Marina Manager, the Berthholder shall pay an amount equal to the amount of any additional tax that shall have become chargeable pursuant to the Goods and Services Tax Act 1985.

6.3  Other duties and taxes

The Berthholder shall pay all duties, taxes and other imposts in respect of this licence (which term shall in this clause include any berth licence agreement or other agreement entered into in anticipation of this licence) and/or in respect of the payments, fees and other moneys due under this licence including (without limitation), stamp duty.  The Berthholder’s obligations under this licence shall apply regardless of whether the Marina Manager or the Berthholder is primarily liable in respect of any such duty, tax or other impost or is liable for the charging thereof or otherwise to the intent that, without prejudice to the foregoing, the Marina Manager shall be held indemnified by the Berthholder for any such duties, taxes and other imposts paid or payable by it in any capacity whatever.

 

7.  USE AND OCCUPATION OF MARINA

7.1  Nominated Vessel

The Berthholder shall use the Berth solely for the purpose of berthing the Nominated Vessel.  The Nominated Vessel shall conform to the dimensions (including spars, equipment or appurtenances of any kind) specified in the Schedule of Licence Details with the length in the case of a finger berth, being measured from the berth face of the adjacent walkway.  The Nominated Vessel and any other vessel occupying the Berth pursuant to an authorised sublicensing arrangement shall be equipped with either:

(a)  A sewage holding tank that can be discharged into the shore-based pump out facility; or

(b)  A suitable portable sewage holding tank that can be carried to and emptied at the shore-based pump out facility.

7.2  Prohibited uses

The Berthholder shall use the Berth only for berthing the Nominated Vessel whilst it is used for recreational boating purposes.  The Berthholder shall not use the Berth for berthing commercial fishing boats, work boats, commercial freight carriers or boats used for any other commercial or industrial purpose.  Charter Boats shall be permitted to use the Berth where the Marina Manager’s consent is given to that use pursuant to Clause 22.2

7.3  No alterations

The Berthholder shall not alter or modify the Berth, the Structures or the Services.

7.4  Pollution

The Berthholder shall not discharge any poisonous, noxious, dangerous or offensive substance or thing into or onto the Marina and shall comply in all respects with the provisions of the Resource Management Act 1991 in respect to the use and occupation of the Marina.  In particular, but without limitation, the Berthholder shall not discharge any sewage or otherwise empty any latrines into the waters of the Marina or otherwise dispose of any garbage, oil, fuel or other material whatsoever in the Marina except into containers provided by the Marina Manager.

7.5  Noise

The Berthholder shall ensure that all halyards, lines, ropes, rigging and sheets on any vessel berthed in the Marina for which the Berthholder is responsible are secured so as not to create a noise.

8.  MARINA RULES

8.1  Berthholder to comply with Rules

The Berthholder shall at all times comply with the Marina Rules and with any special instructions issued by the Marina Manager in the case of emergencies.

8.2  Variation of Rules

The Marina Manager may vary the Marina Rules by written notice to the Berthholder from time to time as may reasonably be necessary or desirable provided that no such variation shall derogate from the rights of the Berthholder under this licence.  If there is any inconsistency between the provisions of this licence and the Marina Rules the provisions of this licence shall prevail.

9.  MAINTENANCE OF VESSELS

9.1  Maintenance

The Berthholder shall keep any vessel occupying the Berth in good serviceable condition and repair so as not to obstruct, interfere with or endanger other vessels navigating or berthed in the Marina.

9.2  Repair notice

Should the Berthholder default in compliance with the provisions of Clause 9.1, the Marina Manager may serve a notice on the Berthholder requiring the Berthholder to repair any vessel occupying the Berth as required by Clause 9.1, within a reasonable time.

9.3  Removal of vessel

Should the Berthholder fail to comply with a notice given under Clause 9.2 within the time specified in the notice, the Marina Manager may (but without any obligation to do so), and without further notice, remove any vessel occupying the Berth and recover the cost of removal from the Berthholder.  Where the Marina Manager removes any vessel in accordance with this clause it shall be entitled to a lien on the vessel to the extent of the costs of removal and storage.

9.4  Custodians

The Marina Manager may place and maintain on any vessel removed pursuant to Clause 9.3 such number of custodians as may be necessary in the circumstances.

9.4  Sale of vessel

Should the Berthholder fail to make satisfactory arrangements for the repair of any vessel removed pursuant to Clause 9.3 within the period of one month after the date of such removal the Marina Manager may at any time thereafter offer the vessel for sale by public auction or private contract and apply such of the proceeds of any resultant sale first in satisfaction of the Marina Manager’s expenses incurred in the removal and storage including administrative expenses and the cost of providing custodians, secondly in or towards satisfaction of any debts or liabilities owed by the Berthholder to the Marina Manager and thirdly to the Berthholder.  The Berthholder hereby irrevocably appoints the Marina Manager to be the attorney of the Berthholder to execute all documents and do all things as are necessary to give effect to such sale.

10.  RELOCATION OF BERTH

10.1  Relocation of Berth

The Marina Manager may at any time require the Berthholder to vacate the Berth either on a temporary or permanent basis and to occupy another berth within the Marina.

10.2  Temporary relocation

In the case of a temporary relocation the Marina Manager shall take all reasonable steps to ensure that the new berth is of no lesser size and has the same facilities as the Berth.

10.3  Permanent relocation

In the case of a permanent relocation the Marina Manager shall ensure that the new berth is of no lesser size, has the same facilities and is no less conveniently located than the Berth.

10.4  No compensation

The Marina Manager shall not be liable to pay any compensation in respect of any relocation under this section.

10.5  Application of this licence

The terms of this licence shall continue to apply to any berth to which the Berthholder is relocated whether on a temporary or permanent basis.

10.6  Emergencies etc

The Marina Manager reserves the rights to use the Berth in the case of an emergency and also to require the Berthholder to vacate the Berth if necessary to allow urgent repairs to be carried out. In such circumstances the Marina Manager may, but shall not be obliged to, provide an alternative berth or mooring.

For additional information regarding Bayswater Marina call us on +64 9 446 1600