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AGREEMENT GRANTING RIGHT OF ACCESS

THIS AGREEMENT made on the DDDD day of MMMM two thousand and YY between NEW ZEALAND RAILWAYS CORPORATION (NZRC) (hereinafter with its successors and assigns referred to as 'the Grantor') of the one part and XXXX (hereinafter referred to as 'the Grantee' of the other part). WITNESSETH that in consideration of the payments to be made as hereinafter provided and subject to the terms, covenants and conditions herein contained or implied and on the part of the Grantee to be observed and performed the Grantor hereby GRANTS to the Grantee and invitees for the term of one (1) year from and inclusive of the first day of January two thousand and seven unless sooner determined under any of the provisions hereinafter contained and so on from year to year unless or until determined under any of the said provisions a right of access over the railway land at _______________________________

1. 1. To pay the Grantor an annual grant fee of $200 plus GST.
   2. To pay the grant fee annually in advance without any deductions whatsoever.
   3. The annual grant fee shall be reviewed each review date and will be increased annually in line with the upwards movement of the applicable Capital Goods Price Index (CGPI).
   4. Within two calendar months of the date of this Agreement, to ensure that octagonal stop signs have been erected on both sides of the crossing at a position which Is 5 metres back from the centre of the track.
   5. To pay to the Grantor upon demand the cost of constructing and maintaining the level crossing in a proper manner and if required by the Grantor the cost of forming and gravelling the right of way.
   6. To maintain the right of way in good order and condition to the satisfaction of the Grantor, and if there are any fences at the end of the right of way, to maintain those fences and to provide, erect and maintain gated fitted with locks or provided with chains and padlocks in those fences for the purpose of controlling livestock and trespassers such gated to be erected and maintained to the entire satisfaction of the Grantor and to be kept locked at all appropriate times.
   7. Upon termination of this agreement to remove the gates and properly close up the resulting gaps in the fences.
   8. To ensure that the view lines of rail traffic in both directions at the level crossing are kept clear of foliage, buildings or other obstructions so that a stationary vehicle at the stops signs would have a clear view along the track for 240 metres and if the view lines are obstructed by trees or other objects or buildings on (and which is not within the ownership or control of the Grantee, to Immediately notify the Grantor so that the Grantor can take the necessary action to have them cleared.
   9. The Grantee acknowledges that with the grantor having granted a right of access across the rail corridor to the Grantee. The Grantee consents to the Grantor crossing the Grantees adjoining land over the accessway or driveway to inspect or repair the rail crossing or rail corridor in that immediate location.
   10. IF at any time in order to protect persons, using the said crossing the Grantor or any railway employee acting on behalf of the Grantor considers it necessary or advisable provide crossing keepers, pedestrian crib fences, gates, bells, signals, notice boards or other safety appliances or to replace any existing safety appliance with any other type of safety appliance or to remove the said right of way and crossing to another site the Grantee shall bear the cost and maintenance of any such works PROVIDED THAT if the Grantee decides not to provide the aforesaid crossing keepers, pedestrian crib fencers gated, bells, signals, notice boards or other safety appliances or to remove the said right of way and crossing the Grantor or the Grantee may terminate this Agreement in accordance with the provisions of Clause 2(b) hereof.
   11. If at any time the Grantor or any railway employee acting on behalf of the Grantor deems it necessary to provide guard rails at the said right of way and crossing the Grantee shall bear the cost of the provision, erection and maintenance of the said guard rails.
   12. The Grantor will at the cost of the Grantee maintain the level crossing and any warning devices provided for the protection of the public safety.
   13. NOT to assign or in any way deal with the rights hereby conferred. The Grantee acknowledges the Right of Access was a personal right given to the Grantee and not assignable.
   14. The Right of Access is restricted to non-commercial use for small vehicles or farm vehicles should any heavy commercial vehicles require access the Grantor's prior written consent is required.
   
   

   PROVIDED ALWAYS and it is hereby agreed and declared:

2. 1. THAT trains may pass without warning at any time during the day or night and that the said right of way and level crossing shall be used at the risk of the persons making use thereof and it is further expressly agreed that the Grantee will save harmless and keep fully indemnified the Grantor, the Minister of Railways, New Zealand Railways Corporation and the Government of New Zealand from and against all damage to railway property and from and against all claims, costs, petitions, suits, actions and demands whatsoever which may be made for or on account of any accident or injury to any person or for damage to any property arising out of or caused or contributed to either directly or indirectly by the use of the right of way and level crossing by the Grantee or the servants, agents, workmen, invitees or licensees of the Grantee.
   2. THAT this Agreement shall be terminable at any time by either party giving to the other three calendar months' notice in writing AND it shall at all times be subject to the provisions of Section 35 of the New Zealand Railways Corporation Act 1981 and the Railways Act 2005 that it shall be subject to revocation without compensation at any time when the service of the public requires it and subject to immediate revocation if the charge for any year shall remain unpaid after due date of payment thereof or in case of breach of any term, covenant condition or provision herein expressed or implied; and that no compensation shall be payable to the Grantee upon the revocation or determination hereof from whatsoever cause.
   3. THAT the accessway shall be used entirely at the risk of the persons making use thereof; and it is further expressly agreed that the Grantee shall save harmless and keep fully indemnified the Grantor, the Minister of Railways and the Government of New Zealand from and against all claims, costs petitions, suits, actions and demands whatsoever which may be made for or on account of any accident, injury to any person or for any accident or damage to any livestock or property arising out of, or caused, or contributed to either directly or indirectly by the use of the accessway.
   4. THAT when any notice is to be given or any action is to be taken by the Grantor hereunder it shall be sufficient if the notice be signed or such action taken by the Chief executive of NZRC or by some person acting under his express authority and that such notice shall be validly given if sent by letter or facsimile addressed to the Grantee at the Grantee's then or last known abode/office or place of business
3. 1. By an agreement dated 28 September 1990 ('Facilities Agreement') Clear Communications Limited ('CLEAR') has certain ownership, access and other rights in respect of a Fibre Optic System ('the System') located within railway land together with system extension rights. Where system exists and if future system extensions are constructed on or under the land to which this Grant relates then Clear's rights shall take precedence over the Grantee's rights.
   2. Where this Grant conflicts with Clear's rights under the Facilities Agreement the Grantee acknowledges that this Grant shall be subordinate to and shall not derogate from those rights.
   3. The Grantee covenants and agrees as follows:
      1. not to interfere with or disturb the system
      2. not to do anything which might cause increased maintenance or operating expenses of the system, or reduce the system's efficiency.
      3. To indemnify Clear for any liability, claim, damage or loss (excluding economic or consequential loss or loss of revenue) arising out of installation maintenance or use by the Grantee of its facilities or of failure to comply with these requirements.
      4. To reimburse Clear its costs of any relocation which Clear carries out to meet the Grantee's requirements.
      5. That Clear shall be entitled to seek injunctive relief restraining any actual or threatened breach of this Grant by the Grantee causing interference with or disturbance to the system.
      6. That for the purposes of the Contracts (Privity) Act 1982, Clear is designated to benefit under this Grant in respect of its rights under the Facilities Agreement.
   4. In respect of the 2 metre strip centred on the fibre optic cable of the system, the Grantee shall have no right of entry (except for normal use in passing over the strip without obstructing it) or excavation or subterranean activities, without notifying and obtaining the consent of the Grantor and Clear.