Agenda Paper
Central Otago District Council
Wednesday, 7 October 2020
Commencing at 10.30 am
Ngā Hau e Whā, William Fraser Building, 1 Dunorling Street, Alexandra
(Unless Central Government changes COVID-19 meeting restrictions before then, in which case it will be held electronically using Microsoft Teams and livestreamed)
www.codc.govt.nz
A WORLD OF DIFFERENCE CENTRAL OTAGO DISTRICT COUNCIL
NOTICE is hereby given that a meeting of Central Otago District Council will be held in Ngā Hau e Whā, William Fraser Building, 1 Dunorling Street, Alexandra on Wednesday, 7 October 2020 commencing at 10.30 am.
MEMBERS: His Worship the Mayor T Cadogan, Councillor N Gillespie (Deputy), Councillors T Alley, S Calvert, L Claridge, I Cooney, S Duncan, S Jeffery, C Laws, N McKinlay, M McPherson and T Paterson
APOLOGIES: An apology has been received from Cr T Paterson.
IN ATTENDANCE: S Jacobs (Chief Executive Officer), L Macdonald (Executive Manager - Corporate Services), J Muir (Executive Manager – Infrastructure Services), L van der Voort (Executive Manager – Planning and Environment), S Righarts (Chief Advisor), J Kasibante (Finance Manager), M De Cort (Communications Coordinator), G Bailey (Parks Manager), L Stronach (Property Officer - Statutory), Q Penniall (Environmental Engineering Manager), D Rushbrook (Recovery Manager), L Webster (Regulatory Services Manager), P Keenan (Capital Projects Programme Manager), B McLeay (Consultant Development Manager) and R Williams (Governance Manager)
AGENDA
20.8.1 Confirmation of Minutes 10 - 30
RECOMMENDED
That the Council:
Confirms the minutes of the Council meeting held on 26 August 2020 as a true and correct record.
20.8.2 Declarations of Interest 31 - 34
Members are reminded of the need to be vigilant and to stand aside from decision making when a conflict arises between their role as a member and any private or other external interest they might have. 20.8.3 COVID-19 Recovery Update Report (Doc ID 507251) 35 - 36
Attached is a report from the Recovery Manager to report on council involvement in COVID-19 recovery activity in Central Otago.
RECOMMENDED that the report is received.
20.8.4 Dog Control Policy and Practices Report (Doc ID 505824) 37 - 44
Attached is a report from the Regulatory Services Manager to inform the Council on the dog control policy and practices undertaken in the 2019/2020 financial year, in accordance with Section 10A of the Dog Control Act 1996.
RECOMMENDED that the report is received and its recommendations adopted.
20.8.5 Proposal to Amend Resolution 20.5.6 (Road Stopping, Taking and Realignment – Off Bendigo Loop Road, Tarras (Doc ID 506527) 45 - 56
Attached is a report from the Property Officer - Statutory to consider additional information relating to the agreement to stop, take and realign part of the unformed roading network off Bendigo Loop Road and a request to amend resolution 20.5.6 B.
RECOMMENDED that the report is received and its recommendations adopted.
20.8.6 Local Government Funding Agency Documentation (Doc ID 499915) 57 - 217 Attached is a report from the Executive Manager – Corporate Services for Council to approve and authorise the signing of the Local Government Funding Agency documentation.
RECOMMENDED that the report is received and its recommendations adopted.
20.8.7 Disaster Recovery Reserves (Doc ID 500768) 218 - 223
Attached is a report from the Executive Manager – Corporate Services for Council to consider renaming and repurposing the Disaster Recovery Reserve.
RECOMMENDED that the report is received and its recommendations adopted. 20.8.8 Mayor’s Report (Doc ID 508069) 224 - 225
Attached is a report from His Worship the Mayor.
RECOMMENDED that the report is received.
20.8.9 Community Board Minutes 226 - 255
RECOMMENDED that the unconfirmed minutes of the following Community Board meetings be received:
Vincent Community Board 15 September 2020 Maniototo Community Board 17 September 2020 Cromwell Community Board 22 September 2020 Teviot Valley Community Board 24 September 2020
NB: Please note that these minutes are subject to confirmation at the next Community Board meeting.
20.8.10 Committee Minutes 256 - 259
RECOMMENDED that the minutes of the Assessment Committee meeting held on 3 September 2019 be received.
20.8.11 Status Reports 260 - 302
RECOMMENDED that the following status reports report be received.
• Planning and Environment • Infrastructure Services • Corporate Services • Chief Executive Officer
20.8.12 Sealing Register 303
RECOMMENDED that the sealing register to 24 September 2020 as attached, be received.
304 20.8.13 Date of Next Meeting
The date of the next scheduled meeting is Wednesday, 18 November 2020. THE COUNCIL IN CLOSED MEETING
In accordance with s 48(1) of the Local Government Official Information and Meetings Act 1987 and the particular interest or interests protected by s 6 or s 7 of that Act it is recommended:
1. That the public is excluded from:
• The following parts of the proceedings of this meeting, namely, items 20.8.14 – 20.8.20
The general subject of the matters to be considered while the public is excluded, the reason for passing this resolution in relation to each matter, and the specific grounds for excluding the public, as specified by s 48(1) of the Local Government Official Information and Meetings Act 1987, are set out below:
Meeting Item Reason for excluding the public Grounds for excluding the public No. and subject 20.8.14 The withholding of the information is To enable the Council to carry out, without Acquisition of necessary to enable the Council to prejudice or disadvantage, negotiations (including Easements for carry out, without prejudice or commercial and industrial negotiations) (s 7(2)(i)) Council disadvantage, negotiations (including Infrastructure commercial and industrial negotiations) 20.8.15 The withholding of the information is To enable the Council to carry out, without Request for necessary to enable the Council to prejudice or disadvantage, negotiations (including Licence to carry out, without prejudice or commercial and industrial negotiations) (s 7(2)(i)) Occupy – part disadvantage, negotiations (including Cromwell commercial and industrial Wastewater negotiations) Treatment Plant 20.8.16 The withholding of the information is To enable the Council to carry out, without Commercial necessary to enable the Council to prejudice or disadvantage, negotiations (including Subdivision – carry out, without prejudice or commercial and industrial negotiations) (s 7(2)(i)) Cromwell disadvantage, negotiations (including commercial and industrial negotiations) 20.8.17 The withholding of the information is To protect information where the making available Wastebusters – necessary to protect information of the information would be likely unreasonably to Variation to where the making available of the prejudice the commercial position of the person Contract information would be likely who supplied or who is subject to the information. unreasonably to prejudice the (s 7(2)(b)(ii)) commercial position of the person who supplied or who is the subject of the information. 20.8.18 The withholding of the information is To protect the privacy of natural persons. (s 7 District necessary to protect the privacy of (2)(a)) Licensing natural persons, including that of Committee deceased natural persons. Appointments 2020
20.8.19 The withholding of the information is To protect the privacy of natural persons. (s 7 Appointment of necessary to protect the privacy of (2)(a)) the Audit and natural persons, including that of Risk deceased natural persons. Chairperson Meeting Item Reason for excluding the public Grounds for excluding the public No. and subject 20.8.20 The withholding of the information is To enable the Council to carry out, without Non-Public necessary to enable the Council to prejudice or disadvantage, negotiations (including Status Reports carry out, without prejudice or commercial and industrial negotiations) (s 7(2)(i)) disadvantage, negotiations (including commercial and industrial negotiations)
2 That B McLeay (Consultant Development Manager) is permitted to stay in the meeting as the Consultant Development Manager. THE COUNCIL IN OPEN MEETING
RECOMMENDED that the public be readmitted.
CENTRAL OTAGO DISTRICT COUNCIL
MINUTES of a meeting of Central Otago District Council held in Ngā Hau e Whā, William Fraser Building, 1 Dunorling Street, Alexandra on Wednesday, 26 August 2020 commencing at 10.30 am.
PRESENT: His Worship the Mayor T Cadogan, Councillor N Gillespie (Deputy), Councillors T Alley, S Calvert, L Claridge, I Cooney, S Duncan, S Jeffery, C Laws, N McKinlay and T Paterson
Note: Cr Cooney joined the meeting via Microsoft Teams
APOLOGIES: An apology was received from M McPherson.
It was moved (Jeffery/Alley):
That the apology be accepted.
Motion carried
IN ATTENDANCE: S Jacobs (Chief Executive Officer), L Macdonald (Executive Manager - Corporate Services), J Muir (Executive Manager – Infrastructure Services), L van der Voort (Executive Manager – Planning and Environment), S Righarts (Chief Advisor), J Kasibante (Finance Manager), K McCulloch (Corporate Accountant), M De Cort (Communications Coordinator), G Bailey (Parks Manager), L Stronach (Property Officer - Statutory), Q Penniall (Environmental Engineering Manager), D Rushbrook (Recovery Manager), L Webster (Regulatory Services Manager), N Aaron (Community Development Officer), N Lanham (Economic Development Manager), M Adamson (Policy Officer), P Keenan (Capital Projects Programme Manager), C Martin (Property and Facilities Officer – Vincent and Teviot Valley), G McFarlane (Business Risk and Procurement Manager) and R Williams (Governance Manager)
20.7.1 Confirmation of Minutes
It was moved (McKinlay/Claridge):
That the Council:
Confirms the minutes of the Council meeting held on 28 July 2020 as a true and correct record.
Motion carried
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20.7.2 Declarations of Interest
Members were reminded of the need to be vigilant and to stand aside from decision making when a conflict arises. The Mayor declared his interest in item 20.7.19, as a member of the Dunstan Golf Club and Cr Gillespie declared his interest in item 20.7.32.
Note: Cr Jeffery assumed the Chair as the Economic Development and Community Facilities portfolio lead.
Note: David Ritchie and Graye Shattky from the Central Otago Heritage Trust joined the meeting for item 20.7.3.
20.7.3 Central Otago Heritage Trust Activity Update
A report from the Community Development Officer to provide an update on the activities of the Central Otago Heritage Trust had been circulated. In speaking to the report, Mr Ritchie and Mr Shattky thanked the Council for their grant before playing an extract of the Oral History project.
It was moved (Duncan/Alley):
That the Council receives the report.
Motion carried
20.7.4 Annual Presentation to Council from Central Otago District Arts Trust
A report from the Community Development Officer to provide a report on the objectives and actions of the Central Otago District Arts Trust over the past financial year had been circulated.
It was moved (Cadogan/Alley):
That the Council receives the report.
Motion carried
Note: John Brimble and Owen Booth from the Sport Otago joined the meeting for item 20.7.5.
20.7.5 Sport Otago Summary of Achievements 1 July 2019 – 30 June 2020
A report from the Parks and Recreation Manager to present a summary of Sport Otago’s achievements for the last financial year relating to the delivery of
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programmes in the Central Otago District had been circulated. Mr Brimble and Mr Booth spoke to a presentation to the Council before responding to questions.
Council acknowledged Bill Godsall’s many years of service with Sport Central.
It was moved (Alley/Paterson):
That the Council receives the report.
Motion carried
20.7.6 Queenstown Lakes and Central Otago Regional Sport and Recreation Facility Strategy
A report from the Parks and Recreation Manager to provide Council with the updated Queenstown Lakes and Central Otago Regional Sports and Recreation Facility Strategy, and to adopt the Strategy following public consultation had been circulated.
During discussion, concern was expressed about the use of the term “adopt” when the necessary consultation was yet to take place, were adoption to occur.
It was noted that the development of the strategy was in response to the lack of a coordinated approach and it provided clear direction to the community about sporting facilities and obtaining financial support from funders.
It was moved (Cadogan/Alley):
That the Council:
A. Receives the report and recognises the level of significance
B. Notes that the Strategy provides a framework to assist Council's decision- making over the next 10 years across several areas including in the development of new facilities; major upgrades and optimisation of existing facilities; potential divestment of facilities no longer meeting community needs; and partnership opportunities with other providers of community facilities.
Motion carried
20.7.7 Central Otago District Tree Policy
A report from the Parks and Recreation Manager to adopt the Central Otago District Council Tree Policy 2020 had been circulated.
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The planting of natives was raised during discussion and it was noted that the policy was about tree management rather that planting. It was agreed that a soft review of the policy should take place in 12-18 months and at that time, planting guidelines be included. Those who had submitted to the draft policy were also acknowledged.
It was moved (Calvert/Jeffery):
That the Council:
A. Receives the report and accepts the level of significance.
B. Adopts the Central Otago District Council Tree Policy 2020, noting that the policy to be reviewed and include planting guidelines within 18 months.
Motion carried
20.7.8 COVID-19 Recovery Update Report
A report from the Recovery Manager to report on council involvement in COVID- 19 recovery activity in Central Otago had been circulated.
It was moved (Duncan/Alley):
That the Council receives the report.
Motion carried
20.7.9 Economic Recovery Plan Progress
A report from the Economic Development Manager to provide an update on the implementation of the Economic Recovery Plan had been circulated.
It was moved (Alley/McKinlay):
That the Council:
A. Receives the report.
B. Notes the progress on the implementation of the Economic Recovery Plan.
Motion carried
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20.7.10 Community Leasing and Licencing Policy
A report from the Policy Advisor to seek feedback and approve the release of the draft Community Leasing and Licencing Policy for public consultation had been circulated.
It was moved (Gillespie/Duncan):
That the Council:
A. Receives the report and accepts the level of significance.
B. Approves the draft Community Leasing and Licencing Policy to be released for public consultation with minor amendments.
Motion carried
Note: Cr Duncan assumed the Chair as the Roading portfolio lead.
20.7.11 Roading Bylaw Review
A report from the Policy Advisor to review the proposed amendments to the Roading Bylaw and approve public consultation on the bylaw had been circulated.
It was moved (Paterson/Jeffery):
That the Council:
A. Receives the report and accepts the level of significance.
B. Notes the proposed amendments to the Roading Bylaw.
C. Endorses option B in the report as the preferred method for time-restricted parking fines.
D. Agrees that the proposed Roading Bylaw 2020 is the most appropriate way to address roading issues in Central Otago.
E. Approves the proposed Roading Bylaw 2020 for public consultation.
Motion carried
Note: Cr Gillespie assumed the Chair as the Planning and Regulatory portfolio lead.
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20.7.12 Harbourmaster – Deed of Transfer Update
A report from the Regulatory Services Manager to complete the transfer of authority regarding the harbourmaster functions, duties and powers back to the Otago Regional Council had been circulated.
It was moved (Alley/Jeffery):
That the Council:
A. Receives the report and accepts the level of significance.
Motion carried
It was moved (Duncan/Laws):
That the Council:
B. Agrees to the transfer agreement and associated transfer of assets to Otago Regional Council.
C. Agrees the Central Otago District Council Lake Dunstan Navigation Safety Bylaw 2017 is revoked subject to the execution of the transfer agreement between Central Otago District Council and Otago Regional Council regarding the harbourmaster functions, duties and powers.
Motion carried
Note: The meeting adjourned at 12.34pm and reconvened at 1.07pm. The Mayor assumed the Chair.
20.7.13 Water Reform Memorandum of Understanding
A report from the Executive Manager – Infrastructure Services to consider: • signing a Memorandum of Understanding (MoU) with the Crown, agreeing to participate in the initial stage of a central/local government three waters service delivery reform programme; and • to enter into the Funding Agreement, to accept a grant of $4.73 million from the Crown to spend on operating and/or capital expenditure relating to three waters infrastructure and service delivery; and • delegating decisions about the allocation of regional funding to the Mayor and Chief Executive, with the understanding that the minimum level of funding to the Council be based upon the formula used to calculate the direct council allocations, had been circulated.
Note: Cr Jeffery left the room at 1.25pm.
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It was moved (Cadogan/Gillespie):
That the Council:
A. Receives the report and accepts the level of significance.
B. Notes that: a) in July 2020, the Government announced an initial funding package of $761 million to provide a post COVID-19 stimulus to maintain and improve water networks infrastructure, and to support a three-year programme of reform of local government water services delivery arrangements. b) initial funding will be made available to those councils that agree to participate in the initial stage of the reform programme, through a Memorandum of Understanding (MoU), Funding Agreement, and approved Delivery Plan. c) this initial funding will be provided in two parts: a direct allocation to individual territorial authorities and a regional allocation. The participating individual authorities in each region will need to agree an approach to distributing the regional allocation d) the Steering Committee has recommended a preferred approach to the allocation of regional funding, being the same formula as was used to determine the direct allocations to territorial authorities
C. Agrees to sign the MoU at Appendix 1 and Funding Agreement at Appendix 2.
D. Agrees to nominate the Chief Executive of the Council as the primary point of communication for the purposes of the MoU and reform programme – as referred to on page 6 of the MoU.
E. Agrees to delegate decisions about the allocation of regional funding to the Mayor and Chief Executive, with the understanding that the minimum level of funding to the Council be based upon the formula used to calculate the direct council allocations, and noting that participation by two-thirds of territorial authorities within the Otago region is required to access the regional allocation.
F. Notes that the MoU and Funding Agreement cannot be amended or modified by either party, and doing so would void these documents.
G. Notes that participation in this initial stage is to be undertaken in good faith, but this is a non-binding approach, and the Council can opt out of the reform process at the end of the term of the agreement (as provided for on page 5 of the MoU).
H. Notes that the Council has been allocated $4.73 million of funding, which will be received as a grant as soon as practicable once the signed MoU and Funding Agreement are returned to the Department of Internal Affairs, and
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a Delivery Plan has been supplied and approved (as described on page 5 of the MoU).
I. Notes that a further amount of $20.6 million of funding has been allocated to an Otago regional fund, which will be allocated to four territorial authorities provided two-thirds of territorial authorities within the Otago region sign the MoU.
J. Notes that the Delivery Plan must show that the funding is to be applied to operating and/or capital expenditure relating to three waters infrastructure and service delivery and which: a) supports economic recovery through job creation; and b) maintains, increases, and/or accelerates investment in core water infrastructure renewal and maintenance.
Motion carried
Note: Cr Jeffery returned to the meeting at 1.29pm.
Note: Cr McKinlay assumed the Chair as the Three Waters and Waste portfolio lead.
20.7.14 Lake Dunstan Water Supply Treatment Plant Options
A report from the Capital Projects Programme Manager to consider the options for the water treatment plant for the Lake Dunstan Water Supply Project and provide approval to proceed with detailed design and construction procurement had been circulated.
It was moved (Laws/Calvert):
That the Council:
A. Receives the report and accepts the level of significance.
B. Notes construction of all treatment stages required to meet the New Zealand Drinking Water Standards on the Lake Dunstan Water Supply was committed to in the 2018 Long Term Plan.
C. Agrees that the design average day peak week flowrate be provided as follows: a) 2028: 14 million litres per day (MLD) b) 2048: 20 million litres per day (MLD)
D. Agrees that additional capacity at the Alexandra Northern Reservoir of 4,000m3 be provided by 2023.
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E. Approves proceeding with detailed design of a membrane water treatment plant to meet the New Zealand Drinking Water Standards 4-log credit requirements and tendering for construction.
F. Approves further development of the Clyde borefield to include Bore 3 and increased pumping capacity on all three bores, to increase resilience and meet demand until 2048.
G. Approves inclusion of the additional funding to meet the increased project scope in the 2021-22 Long Term Plan.
Motion carried
20.7.15 Clyde Wastewater Reticulation and Main Pump Station Construction
A report from the Capital Projects Programme Manager to consider proceeding with construction of the reticulation for Stage 1 of the Clyde wastewater network, and construction of the main pumpstation had been circulated.
It was moved (Claridge/Alley):
That the Council:
A. Receives the report and accepts the level of significance.
B. Approves proceeding with construction of stage 1 of the Clyde wastewater reticulation and main pump station.
C. Approves awarding construction of the reticulation and minor pump stations to Seipp Construction Ltd, who were the successful first stage early contractor tenderer for the Clyde Wastewater Reticulation and Pump Station Physical Works Contract
D. Approves re-tendering construction of the main pump station as a traditional measure and value contract.
E. Rescinds the decision that income from the sale of the Bannockburn wastewater site, expected to be within $300,000 - $500,000 be used to fund the Clyde wastewater project.
F. Approves inclusion of the additional funding to meet the increased project scope in the 2021-22 Long Term Plan.
Motion carried
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20.7.16 Water Stimulus Delivery Plan
A report from the Executive Manager – Infrastructure Services to agree the work programme which will be undertaken using the Government’s water economic stimulus funding had been circulated.
It was moved (Laws/Cadogan):
That the Council:
A. Receives the report and accepts the level of significance.
B. Notes that the Central Otago District Council has been allocated $4.73 million of funding, which will be received as a grant once the signed Memorandum of Understanding and Funding Agreement are returned to the Department of Internal Affairs, and a Delivery Plan has been supplied and approved.
C. Notes that a further $4.73million is expected to be allocated to Central Otago District Council from the Otago regional allocation of $20.4 million.
D. Notes that the Delivery Plan must show that the funding is to be applied to operating and/or capital expenditure relating to three waters infrastructure and service delivery, and which:
a) supports economic recovery through job creation; and b) maintains, increases, and/or accelerates investment in core water infrastructure renewal and maintenance.
E. Approves the following program of water stimulus projects up to the value of $9.46 million:
• Separating Alexandra pump station and new Manuherekia river crossing • Cromwell pump station capacity and resilience upgrades • Falling water main replacements • Omakau water pressure upgrade • Flood protection of Roxburgh water treatment plant • Additional Alexandra water reservoir • Data collection • Additional staff to deliver the program • Regional work program contributions
Motion carried
Note: The Mayor assumed the Chair.
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20.7.17 Central Stories Building – Fees and Charges
A report from the Property and Facilities Officer – Vincent and Teviot Valley to ratify the Vincent Community Board’s resolution 20.4.5 to amend the Annual Plan 2020/21 Fees and Charges Schedule to include a hire charge for the Central Stories Building meeting room and theatre had been circulated.
It was moved (Gillespie/Cadogan):
That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees to amend the Annual Plan 2020/21 Fees and Charges Schedule to include the Central Stories Building meeting room and theatre hire at:
i. Commercial $40/hour ii. Non-commercial $20/hour
C. Authorises the Chief Executive Officer to do all that is necessary to give effect to the Council’s resolution.
Motion carried
20.7.18 To Consider Legalising the Existing Rural Networks South Island Occupations
A report from the Property Officer – Statutory to consider legalising the existing occupations by Rural Networks South Island, the granting (under delegated authority) of the Minister of Conservation’s consent, and the adoption of a standard for assessing site fees and other outgoings had been circulated.
It was moved (Gillespie/Jeffery):
That the Council:
A. Receives the report and accepts the level of significance.
B. Approves, subject to the Reserves Act 1977, the granting of licences to Rural Networks South Island for the purpose of locating telecommunications towers on sites on the following reserves:
• Gilligans Gully Road, being Part Lot 8 DP 429123, • Clyde Lookout Road, being Part Town Belt of Clyde, • Earnscleugh Road, being Part Section 149 Block I Fraser Survey District, and; • Sugarloaf, being Part Lot 15 DP 418764
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C. Agrees to the inclusion of terms in the Gilligans Gully licence providing for:
• the existing sub-tenancy to 2 Degrees Limited, and; • the charging of a fee to cover power at $750 per annum per tenant, subject to adjustment by any increases in supply of energy or network charges.
D. Agrees to include a term in the Clyde Lookout Road licence providing for the charging of a fee to cover power at $750 per annum, subject to adjustment by any increases in supply of energy or network charges.
E. Agrees to grant consent (under delegated authority), on behalf of the Minister of Conservation, to Council issuing licences over sites on the scenic and recreation reserves identified above in B.
F. Approves, subject to the Airport Authorities Act 1966, the granting of a lease to Rural Networks South Island for the purpose of locating a telecommunications tower at the Alexandra Airport, being Part Lot 2 DP 300842, subject to the Company continuing to provide free internet services to the Airport Terminal.
G. Agrees to the new licences and the lease being granted for a term of 5 years each, with one right of renewal, subject to adjustment by CPI on renewal, commencing 01 July 2020.
H. Approves the use of the Licence Fee Calculator (shown in Figure 6) for the purpose of determining current rentals and subrentals.
I. Agrees, subject to adjustment by CPI, to the Licence Fee Calculator being adopted as the standard for determining future rentals and subrentals for telecommunications sites on Council reserves.
J. Authorises the Chief Executive to do all that is necessary to give effect to the resolution.
Motion carried
Note: The Mayor declared a conflict for item 20.7.19 and withdrew from discussion and voting on the item.
Note: Cr Gillespie noted that during the hearing on this item it had been suggested that he also had a conflict, which he disagreed with, however noted it for Council’s consideration. No concerns were raised.
Note: Cr Gillespie assumed the Chair.
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20.7.19 Minister of Conservation’s Consent to the Reclassification of Part of the Clyde Recreation Reserve and the Granting of Easements over the Adjacent Reserve
A report from the Property Officer – Statutory to consider granting the consent of the Minister of Conservation (under delegated authority) to the reclassification of part of the Clyde Recreation Reserve, and to the granting of easements of the adjacent reserve had been circulated.
It was moved (McKinlay/Alley):
That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees to grant consent (under delegated authority) on behalf of the Minister of Conservation, to the Council:
o reclassifying an area of approximately 1 hectare of the Clyde Recreation Reserve, being part of Section 1 Block LVI Town of Clyde, to Local Purpose (Pumping Station) Reserve, and; o to the granting of a right of way and the right to convey services over Lot 1 DP 12265 and Lot 1 DP 17540.
C. Authorises the Chief Executive to do that is necessary to give effect to the resolution.
Motion carried
Note: The Mayor assumed the Chair, the meeting adjourned at 2.55 pm and recommenced at 3.13 pm.
20.7.20 Carry Forwards from Financial Year 2019-2020 and July Revised Forecast Full Year Financial Year 2020-21
A report from the Corporate Accountant to consider the revised budget financial year 2020-21 including carry forwards from financial year 2019-20 had been circulated.
It was moved (McKinlay/Laws):
That the Council:
A. Receives the report and accepts the level of significance.
B. Approves the changes to the revised budget as detailed in appendix 1 of the report.
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C. Authorises an increase in debt provisions up to $10 million, if requested.
Motion carried.
20.7.21 Register of Delegations
A report from the Executive Manager – Corporate Services to change the Register of Delegations in respect of the delegations to staff, to enable members of the Executive Team to effectively fulfil their operational duties had been circulated.
It was moved (Jeffery/Calvert):
That the Council:
A. Receives the report and accepts the level of significance.
B. Approves the following change to the Register of Delegations to staff.
54. In the case of power to enter into financial commitments the Chief Executive Officer may delegate authority:
a) Up to a value of $500,000 to members of the Executive Team for any budgeted individual transaction; b) To other staff positions up to a value of $50,000 for any individual transaction.
Motion carried
20.7.22 Procurement Policy
A report from the Business Risk and Procurement Manager to review and adopt the Procurement Policy, as recommended by the Audit and Risk Committee had been circulated.
It was moved (McKinlay/Alley):
That the Council:
A. Receives the report and accepts the level of significance.
B. Adopts the Procurement Policy.
Motion carried
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20.7.23 Risk Management Policy
A report from the Business Risk and Procurement Manager to review and adopt the Risk Management Policy, as recommended by the Audit and Risk Committee had been circulated.
It was moved (Paterson/Calvert):
That the Council:
A. Receives the report and accepts the level of significance.
B. Adopts the Risk Management Policy.
Motion carried
20.7.24 Elected Member Remuneration 2020/21
A report from the Governance Manager to provide an update from the Remuneration Authority regarding the 2020/21 Local Government Members Determination had been circulated.
It was moved (Gillespie/Cadogan):
That the Council receives the report.
Motion carried
20.7.25 Mayor’s Report
A report from His Worship the Mayor had been circulated.
It was moved (Cadogan/Gillespie):
That the Council:
A. Receives the report.
B. Endorses the submission to the Commerce Commission regarding Aurora Energy.
Motion carried
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20.7.26 Governance Report
A report from the Governance Manager to report on items of general interest and receive minutes and updates from key organisations had been circulated.
It was moved (Duncan/Jeffery):
That the Council receives the report.
Motion carried
20.7.27 Community Board Minutes
It was moved (Duncan/Calvert):
That the unconfirmed minutes of the following Community Board meetings be received:
Cromwell Community Board 17 July 2020 Vincent Community Board 4 August 2020 Maniototo Community Board 6 August 2020 Cromwell Community Board 10 August 2020 Teviot Valley Community Board 13 August 2020
Motion carried
20.7.28 Committee Minutes
It was moved (Cadogan/Jeffery):
That the unconfirmed minutes of the Audit and Risk Committee meeting held on 26 June 2020 be received.
Motion carried
20.7.29 Status Reports
It was moved (Gillespie/Alley):
That the following status reports be received:
• Planning and Environment • Infrastructure Services • Corporate Services • Chief Executive Officer
Motion carried
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20.7.30 Date of Next Meeting
The date of the next scheduled meeting is Wednesday, 7 October 2020.
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THE COUNCIL IN CLOSED MEETING
In accordance with s 48(1) of the Local Government Official Information and Meetings Act 1987 and the particular interest or interests protected by s 6 or s 7 of that Act it is recommended:
It was moved (Cadogan/McKinlay)
That the public is excluded from:
• The following parts of the proceedings of this meeting, namely, items 20.7.31 – 20.7.33
The general subject of the matters to be considered while the public is excluded, the reason for passing this resolution in relation to each matter, and the specific grounds for excluding the public, as specified by s 48(1) of the Local Government Official Information and Meetings Act 1987, are set out below:
Meeting Item Reason for excluding the public Grounds for excluding the public No. and subject 20.7.31 The withholding of the information is To enable the Council to carry out, without Updated necessary to enable the Council to prejudice or disadvantage, negotiations (including Processing of carry out, without prejudice or commercial and industrial negotiations) (s 7(2)(i)) Glass within disadvantage, negotiations (including Central Otago commercial and industrial negotiations) 20.7.32 The withholding of the information is The withholding of the information is necessary to Electricity necessary to protect information protect information where the making available of Contract - where the making available of the the information would be likely unreasonably to Tender Results information would be likely prejudice the commercial position of the supplier. unreasonably to prejudice the (s7(2)(b)(ii)). commercial position of the supplier. 20.7.33 The withholding of the information is To enable the Council to carry out, without Non-Public necessary to enable the Council to prejudice or disadvantage, negotiations (including Status Reports carry out, without prejudice or commercial and industrial negotiations) (s 7(2)(i)) disadvantage, negotiations (including commercial and industrial negotiations)
Motion carried
The public were excluded at 3.47 pm.
27
THE COUNCIL IN OPEN MEETING
It was moved (Paterson/McKinlay):
That the Council readmits the public.
Motion carried
The meeting closed at 4.04 pm.
……………………………….. MAYOR / /
30 Name Member’s Declared Interests Spouse/Partner’s Declared Interests Council Appointments
Tamah Alley Tiger Hill Water Supply Company Tiger Hill Water Supply Company (shareholder) (shareholder) Cromwell Youth Trust (Chair) Emergency Management Otago Blue Light Central Lakes (Chair) (employee) NZ Police (Sworn Constable) Oamaru Landing Service (OLS) (family connection) Cliff Care Ltd (family connection)
Tim Cadogan Alexandra Musical Society (member) Victim Support Worker Airport Reference Group Otago Chamber of Commerce Central Blossom Festival Committee member Maniototo Curling International Otago Advisory Group member FarmFresh (Family member sells for this Inc Dunstan Golf Club (member) entity) Eden Hore Steering Group Tourism Central Otago Advisory Board Ministerial Working Group on Responsible Camping LGNZ Governance and Strategy Group
Shirley Calvert Central Otago Health Services Ltd Central Otago Wilding Conifer (Employee) Group Cromwell Rotary (member) Cromwell and District Community Trust Old Cromwell Town (subscription member)
31 Lynley Affinity Funerals (Director) Affinity Funerals (Shareholder) Alexandra Council for Social Claridge Central Otago Chamber of Commerce Services (Advisory Panel)
Ian Cooney Castlewood Nursing Home (Employee) Omakau Recreation Reserve Committee Promote Alexandra
Stuart Duncan Wedderburn Cottages (Owner) Wedderburn Cottages (Owner) Otago Regional Transport Dairy Farm (Owner) Committee McLaren's Machinery (Owner) Patearoa Recreation Reserve Fire and Emergency New Zealand Committee (member) Design and Location of the Sun JD Pat Ltd (Shareholder and Director) for the Interplanetary Cycle Trail Working Group
Neil Gillespie Contact Energy (Project Manager) Lowburn Hall Committee Clyde & Districts Emergency Rescue Tarras Community Plan Group Trust (Secretary and Trustee) Tarras Hall Committee Cromwell Volunteer Fire Brigade (Deputy Chief Fire Officer) Cromwell Bowling Club (patron) Otago Local Advisory Committee - Fire Emergency New Zealand
32 Stephen G & S Smith family Trust (Trustee) Jeffery K & EM Bennett’s family Trust (Trustee) Roxburgh Gorge Trail Charitable Trust (Chair) Roxburgh and District Medical Services Trust (Trustee) Central Otago Clutha Trails Ltd (Director) Teviot Prospects (Trustee) Teviot Valley Community Development Scheme Governance Group Central Otago Queenstown Network Trust
Cheryl Laws Fine Thyme Theatre Company Otago Regional Council (Councillor) Cromwell Resource Centre (Committee) The Message (Director) Cromwell Historical Precinct The Message (Director) Wishart Family Trust (Trustee) Wooing Tree (part-time, occasional employee) Daffodil Day Area Coordinator
Nigel Transition To Work Trust (Board McKinlay member) Gate 22 Vineyard Ltd (Director) Everyday Gourmet (Director) Central Otago Wine Association (member) Long Gully Irrigation Scheme (member)
33 Martin Alexandra Blossom Festival CODC (employee) McPherson
Tracy Matakanui Station (Director and Matakanui Station (director and Central Otago Health Inc Paterson shareholder) shareholder) Manuherikia River Group Matakanui Development Co (Director Matakanui Development Co (director and and shareholder) shareholder) A and T Paterson Family Trust (trustee) A Paterson Family Trust (trustee) A Paterson Family Trust (trustee) A and T Paterson Family Trust (trustee) Central Otago Health Inc (Chair) Federated Farmers (on the executive Bob Turnbull Trust (Trustee / Chair) team) John McGlashan Board of Trustees Omakau Irrigation Co (director) (member) Matakanui Combined Rugby Football Club New Zealand Wool Classers Association (President) (board member) Manuherikia Catchment Group (member) Primary Industry Training Organisation, Omakau Domain Board Industry Partner Group for wool classing and harvesting (member) Central Otago A&P Association (member)
34
Council 7 October 2020
Report for Information
COVID-19 Recovery Update Report (Doc ID 507251)
1. Purpose of Report
To report on council involvement in COVID-19 recovery activity in Central Otago.
------Recommendations
That the Council:
A. Receives the report.
B. Notes the update received
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2. Background
This is the third report on COVID-19 recovery activities.
3. Key activity to date
The Recovery Manager has been engaged in a series of external meetings to ensure a joined-up approach to the recovery effort continues (e.g., Ministry of Social Development, Community Houses, Social Service providers, Chamber of Commerce, Community Business Groups). The Recovery Manager is actively engaged and connected with recovery leads at a regional and national level. Key initiatives for the month have included: • Supporting the Central Otago Recovery Response Group chaired by Mayor Cadogan and associated sub committees • Working with industry and Council’s Economic Development and Tourism teams on plans to address labour market shortages • Reviewing data and information sources • Reporting to the Otago Regional Mayoral Forum • Refining the framework for capability building series for businesses • Supporting Alexandra Community House to establish Community Connector role • Identifying key funding opportunities out of central government • Monitoring of key performance indicators
Report author: Recovery Manager 35 4. Focus for the next period
Alongside key stakeholder meetings and keeping abreast of key political and operational developments regionally and nationally, a series of initiatives are planned that include:
• Continuing to support seasonal labour shortages • Capability workshop deployment • Community Connector role support • Monitoring community impacts and identifying future issues • Assisting to secure central government funding support for community-based recovery initiatives • Develop and deliver recovery information to community
Further information on these initiatives will be provided to elected members in the meeting.
Report author: Reviewed and authorised by:
Dylan Rushbrook Sanchia Jacobs Recovery Manager Chief Executive Officer 23/09/2020 23/09/2020
Report author: Recovery Manager 36
Council 7 October 2020
Report for Decision
Dog Control Policy and Practices Report 2020 (Doc ID 505824)
1. Purpose of Report
To inform on the dog control policy and practices undertaken in the 2019/2020 financial year, in accordance with Section 10A of the Dog Control Act 1996.
------
Recommendations
That the Council:
A. Receives the report and accepts the level of significance.
B. Approves the dog control policy and practices report 2019 – 2020 in accordance with Section 10A of the Dog Control Act 1996.
C. Approves the publication of the dog control policy and practices report 2019 – 2020.
------
2. Background
The Dog Control Act 1996 requires the Council to report on the administration of its dog control policy and practices each financial year.
The report must include details regarding: • The number of registered dogs, probationary owners and disqualified owners in the district; • The number of dogs classified as menacing or dangerous; and • Details about the number of infringements issued, the types of infringement, the number of complaints and the number of prosecutions taken.
It is also a legislative requirement to publicly notify the dog control activities and make the report available.
Report author: Regulatory Services Manager 37
3. Discussion The key factors regarding the 2019/2020 financial year are:
a) The number of dogs registered in the 2019/2020 financial year increased by 2% (132) compared to the previous financial year.
b) The number of dogs that have no microchip reduced by 6% (193) to 503 dogs. Those dogs will be an area of focus for the coming year.
c) There are zero dangerous dogs and nine menacing dogs registered.
d) There has been an increase in the number of attacks on people and animals from 17 to 23. This could be either as a result of more attacks occurring, or increased reporting as a result of our community acknowledging that Council action on these matters is a priority.
e) There has been an increase (from one to ten) in the number of reports on attacks/worrying of stock during this period. This will be an area of focus to further educate dog owners on their responsibilities and the significant consequences where dogs are not under control.
f) There has been a 5% increase in the number of roaming dog complaints, compared to the previous financial year.
g) There has been a significant increase in the number of infringements issued to dog owners to ensure all dogs are registered, from 14 to 126.
4. Options
Option 1 – Approve the Dog Control Policies and Practices Report 2019 – 2020 (recommended)
Advantages: • Compliance with the requirements of the Dog Control Act 1996.
Disadvantages: • There is a small cost to publically notify the adoption of the report.
Option 2 - Reject the Dog Control Policies and Practices Report 2018 – 2019
Advantages: • No additional costs.
Disadvantages: • The Council would fail to comply with the Dog Control Act 1996.
5. Compliance
Local Government Act 2002 This decision promotes the social,
Report author: Regulatory Services Manager 38
Purpose Provisions cultural and environmental wellbeing of the community, in the present and for the future through the development, implementation and public notification of the annual activities. Financial implications: Is this The decision is consistent with the decision consistent with proposed activities and budgets in the annual plan. activities and budgets in long term plan/annual plan? There are minor budget implications to publicly notify the annual report which will be met through the current budget. Decision consistent with other The decision is consistent with other plans Council plans and policies, such and policies, particularly the 10 year plan as the District Plan, Economic 2018 – 2028 regarding our community Development Strategy, etc? outcomes to provide a ‘Safe and Healthy Community’. Considerations as to sustainability, No sustainability implications have been the environment and climate identified. change impacts Risk Analysis There is a risk of non-compliance with legislative requirements if an annual report is not undertaken.
The annual reporting on dog control activities is likely to raise media interest, as dog control matters can be an emotive topic. Significance, Consultation and There is a low level of significance in the Engagement (internal and external) decision following our Significance and Engagement Policy, as this matter is considered more an annual procedural matter.
6. Next Steps
The Dog Control Policy and Practices Report 2020 will be publicly notified and displayed on the Council’s website.
A copy will also be provided to the Department of Internal Affairs, who maintain a record of these details.
Attachments Appendix 1. Dog Control Policy and Practices Report 2019 - 2020
Report author: Regulatory Services Manager 39
Report author:
Lee Webster Louise van der Voort Regulatory Services Manager Executive Manager - Planning and Environment 14/09/2020 28/09/2020
Report author: Regulatory Services Manager 40
Dog Control Policy and Practices Report
1 July 2019 to 30 June 2020
Section 10A of the Dog Control Act 1996 requires the Council to report on its dog control policies and practices for the financial year.
PART 1 – DOG CONTROL POLICY The current policy was adopted in August 2013 and outlines the Councils requirements regarding controlling dogs. This policy and the dog control bylaw are currently under review.
Key Aspects of the policy are: • The requirement for all dogs classified as menacing to be neutered • When taking dogs out in public, owners must use or carry a leash at all times • Specific dog exercise areas have been identified in Alexandra, Clyde, Cromwell, Ranfurly, Naseby, Roxburgh and Pisa Moorings • A maximum of three dogs are permitted to reside on a private property, unless granted a licence
PART 2 – DOG CONTROL PRACTICES Dog Control functions are carried out by Allpest Limited under contract.
There were 6236 dogs registered during the 2019/2020 financial year belonging to 3488 dog owners. Dog registrations are were carried out by Reg the Dog under contract for this period.
Service Requests The service requests received through the year related to roaming/wandering, barking dogs, aggressive behaviour and dogs worrying stock. Roaming dogs remains the main issue reported to council with a slight increase, along with an increase in barking dog complaints and complaints of dogs worrying sheep.
These areas will be a focus for the team for communications, education, patrols and enforcement for the coming year.
Dog Registration Fees Dog control and enforcement activity is funded through dog registration and impounding fees. The registration fees for the registration year 2019-2020 have remained the same as the previous year:
Working dogs $12.00 Pet dogs $55.00
Non-payment of registration fees are enforced by infringement notices. Unpaid infringement fines are collected by the Courts.
41 Council had 357 deceased dogs reported in the Central Otago District over this period.
Microchipping All dogs registered for the first time on or after 1 July 2006 and all dogs classified as dangerous or menacing since 1 December 2003 are required to be micro-chipped.
Council has been working with dog owners throughout the year to micro-chip dogs as required by legislation.
• 3428 dogs are microchipped • 2808 dogs are not microchipped
503 of the dogs not microchipped are required to be, with the remainder currently registered as working dogs and are exempt from microchipping. This is an area of focus for 2020 – 2021 as some dogs appear to have been registered as working dogs incorrectly previously by the owners, as they do not appear to meet the statutory definition of a working dog.
Disqualified and Probationary Owners There was one disqualified owner issued during this period. However, this is currently subject to an appeal to the district court.
There are no probationary owners in the Central Otago District.
Menacing and Dangerous Dogs There are no dogs classified as dangerous for the 2019-2020 registration period.
There are two dogs classified as menacing under Section 33A (type or breed) and seven dogs classified as menacing under 33C (actions) of the Dog Control Act in 2019/2020.
PART 3 – STATISTICAL INFORMATION
This section describes the number and type of complaints received and the manner in which Council has responded to address the complaints and general issued regarding dogs over the last year.
Dog Control is a high area of focus within the Central Otago District Council and strives to undertake the following key factors:
a. To have all dogs that live in the district registered b. Ensure all dogs are kept under control at all times c. Ongoing education of dog owners regarding their responsibilities and obligations
42 Category of Complaint 2019 – 2020 2018 –2019
Public Safety related complaints Dog attack on people - minor 5 6 Dog attack on people - serious 5 4 Dog attack on animal - minor 8 5 Dog attack on animal - serious 5 2 Dog attack on stock (worrying) 10 1 Dog rushing 29 20 Wandering/roaming dogs 197 188 General concern 3 12
Non-safety Concerns Barking 60 49 Fouling 4 6
Attacks When an attack occurs on a person or animal, the incident can be extremely distressing to all parties involved.
There has been an increased number of dog attacks over the last year, particularly around holiday season when there are a large number of visitors to the province. Dog control officers are continuing to education and enforce as required.
Wandering and Roaming Dogs The number of roaming dogs remains the largest issue for dog control officers. Roaming dogs can frighten, intimidate and annoy the community in addition to potentially attacking people and other dogs.
Additional patrols were undertaken through the year and communications of responsible dog ownership through the year.
Barking Dogs There was a slight increase to number of complaints relating to barking dogs received during the 2019-2020 registration period. This is likely to be related to the COVID-19 lockdown, with an increase in people being at home hearing dogs more, which the dog control officers would educate dog owners about. Our largest number of barking dog complaints were received during lockdown.
The Council has a bark-box to use for properties with multiple complaints, in addition to bark collars, which are also available for owners to use at no cost.
43 Impoundings There were 29 dogs impounded during the 2019-2020 registration period in Central Otago District, which were either united with their owner or re-homed.
Prosecutions There were no prosecutions undertaken during the 2019-2020 financial year.
Infringements There has been an increase in the number of infringements issued for failure to register dogs, as officers worked through the education and enforcement process, to ensure all dogs are registered.
OFFENCE 2019- 2020 2018- 2019 Failure to Comply with classification 0 0 Failure to register dog 126 14 Failure to keep dog controlled or confined 12 12 Failure to keep dog under control 4 1 Failure to comply with any bylaws authorized by the 0 1 section
44
Council 7 October 2020
Report for Decision
Proposal to amend Resolution 20.5.6 (Road Stopping, Taking and Realignment – Off Bendigo Loop Road, Tarras) (Doc ID 506527)
1. Purpose of Report
To consider additional information relating to the agreement to stop, take, and realign part of the unformed roading network off Bendigo Loop Road and a request to amend Resolution 20.5.6 B.
------
Recommendations
That the Council:
A. Receives the report and accepts the level of significance.
B. Approves the proposal to amend Resolution 20.5.6 B to read that Council:
Agrees to stop, take, and realign part of the unformed roading network off Bendigo Loop Road, as shown in figure 5, by:
• Stopping approximately 4.1839 hectares of unformed road, being Sections 11 – 16, • Taking approximately 2.8493 hectares of land for legal road, being Sections 1 – 5.
Subject to:
• The applicants paying all costs, including purchase of the land at valuation. • The land to be purchased being offset by the 0.8000 hectares land vested under RC 170531. • The stopped road being amalgamated in accordance with the provisions as shown in figure 5.
C. Authorises the Chief Executive to do everything required to give effect to the resolution.
------
2. Background
At its meeting of 15 July 2020, the Council considered a report recommending that Council agrees to stop, take and realign part of the unformed roading network off Bendigo Loop Road.
45 On consideration the Council resolved (Resolution 20.5.6) as follows:
A. Receives the report and accepts the level of significance. B. Agrees to stop, take, and realign part of the unformed roading network off Bendigo Loop Road as shown in figure 5 by:
• Stopping approximately 4.1839 hectares of unformed road, being Sections 11 – 16, • Taking approximately 2.8493 hectares of land for legal road, being Sections 1 – 5. Subject to:
• The applicants paying all costs, including purchase of the land at valuation, • The stopped road being amalgamated in accordance with the provisions as shown in figure 5.
C. Authorises the Chief Executive to do all that is necessary to give effect to the resolution.
A copy of the report dated 15 July 2020 is attached as Appendix 1.
On release of the resolution, the applicants were notified that Council had agreed to their proposal. They were also advised that this was subject to them paying all costs, including purchase of the land at valuation, being approximately 1.3346 hectares.
The applicant has now asked that the 0.8000 hectares of land vested as legal road as part of RC 170531 be offset against the 1.3346 hectares they are to purchase.
3. Discussion
Additional Information As noted in Appendix 1, the construction of the ‘partly formed’ road through the centre of the applicant’s development was a requirement of RC 170531. This road provides access to the development. It was also constructed at significant cost to the applicant.
In addition to that cost, an area of approximately 0.8000 hectares of the applicant’s land was vested in Council as legal road. The land vested is shown as lot 17 in figure 1 below, highlighted in yellow.
Figure 1 – Lot 17 being approximately 0.8000 hectares as vested under RC 170531
46 As the subdivision and stopping are directly related the applicants have now requested that the previously vested area of 0.8000 be offset against the 1.3346 hectares difference resulting from the stopping.
If these factors had been considered in the previous report, the recommendation would have been to offset the vested land against the stopped road. This would have reduced the area of land to be purchased by the applicants to 0.5346 hectares.
Amendment It is now proposed that Resolution 20.5.6 be amended to acknowledge the 0.8000 hectares previously vested by the applicants. This would recognise their total investment in the roading network as relating to the subdivision and the realignment of the unformed road.
4. Options
Option 1 – (recommended) That Council agrees to include a provision offsetting the previously vested 0.8000 hectares of land by amending Resolution 20.5.6 B to read that Council:
Agrees to stop, take, and realign part of the unformed roading network off Bendigo Loop Road, as shown in figure 5, by:
- Stopping approximately 4.1839 hectares of unformed road, being Sections 11 – 16, - Taking approximately 2.8493 hectares of land for legal road, being Sections 1 – 5.
Subject to:
- The applicants paying all costs, including purchase of the land at valuation. - The land to be purchased being offset by the 0.8000 hectares land vested under RC 170531. - The stopped road being amalgamated in accordance with the provisions as shown in figure 5.
Advantages: • The offsetting of the 0.8000 hectares previously vested recognises the applicant’s overall investment in the roading network. • Is more equitable.
Disadvantages: • Less income for Council.
Option 2 That Council does not agree to amend Resolution 20.5.6 B:
Advantages: • Income from the stopping will not be reduced.
47 Disadvantages: • Does not recognise the applicant’s overall investment or contribution to the roading network. • Is less equitable.
5. Compliance
Local Government Act 2002 This decision promotes economic equity Purpose Provisions between the parties by considering this matter in full in accordance with relevant policy and legislation.
Financial implications: Is this Income from road stoppings is subject to decision consistent with proposed variation. It is used to legalise existing activities and budgets in long term encroachments as available. plan/annual plan? While the income from this stopping will be reduced it had not been budgeted for as such.
Decision consistent with other The original application was made Council plans and policies, such subject to Council’s Road Stopping Policy as the District Plan, Economic and the Public Works Act 1981. Development Strategy, etc? The proposed amendment is consistent with the policy and the legislation.
Considerations as to sustainability, No sustainability, environmental or the environment and climate climate change impacts are related to the change impacts decision.
Risk Analysis There are no risks to Council associated with the recommended option.
Significance, Consultation and The Significance and Engagement Policy Engagement (internal and external) has been considered, with none of the criteria being met or exceeded.
6. Next Steps
1. Resolution amended October 2020 2. Applicant notified October 2020
48 Attachments
Appendix 1. Report to Council dated 15 July 2020
Report author: Reviewed and authorised by:
Linda Stronach Julie Muir Property Officer – Statutory Executive Manager - Infrastructure Services 24/09/2020 24/09/2020
49
Council 15 July 2020
Report for Decision
Proposed Road Stopping, Taking and Realignment – Off Bendigo Loop Road, Tarras (Doc ID 447336)
1. Purpose of Report
To consider a proposal to stop, take, and realign part of the unformed roading network off Bendigo Loop Road, Tarras, in accordance with the Public Works Act 1981.
------Recommendations
That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees to stop, take, and realign part of the unformed roading network off Bendigo Loop Road as shown in figure 5 by:
• Stopping approximately 4.1839 hectares of unformed road, being Sections 11 – 16, • Taking approximately 2.8493 hectares of land for legal road, being Sections 1 – 5.
Subject to:
• The applicants paying all costs, including purchase of the land at valuation. • The stopped road being amalgamated in accordance with the provisions as shown in figure 5.
C. Authorises the Chief Executive to do all that is necessary to give effect to the resolution. ------
2. Background
Cherry Holdings Limited (the Applicant) own a rural property off Thomson Gorge Road, Bendigo. The property, which has a total area of 194.4980 hectares, is currently described as Lots 1 – 4 DP 517385 and is held in record of title 808253.
The four lots are separated by the legal roading network being Thomson Gorge Road, an unnamed partly formed road, and a third unnamed unformed road. The property is most commonly accessed from Bendigo Loop Road, Tarras via the partly formed road that bisects the property. The property layout and the three roads are shown below in figure 1.
Report author: Property Officer – Statutory 50
Figure 1 – Record of Title 808253
In 2017, the Applicant was granted resource consent (RC 170531) to subdivide the property into 17 new Lots. The subdivision plan, which also identifies the three roads refenced above, is shown below in Figure 2.
Figure 2 – Subdivision Plan
Report author: Property Officer – Statutory 51
Consent conditions require the Applicant to construct the ‘partly formed’ legal road that crosses through the centre of the record of title 808253. Its formation will provide access to the new titles which are part of a greater development, being a large scale, commonly managed, cherry orchard. This road will also provide a link through to Thomson Gorge Road.
While 17 new lots are shown on the subdivision plan, just 8 new titles will result from the development. Lots 1, 3, 6, 9, and 12, are narrow strips of land which are separated from the greater development by the unnamed unformed legal road that bisects the property near the northern boundary. Each of these lots will be held in a single title with the lot shown immediately below it in figure 2, being lots 2, 4, 7, 10, and 13 respectively.
Rather than being unable to utilise the narrow strips of land held in lots 1, 3, 6, 9, and 12, the Applicant now proposes to stop the unnamed unformed legal road and to incorporate it into the newly created adjacent titles. In return, they propose to shift the unformed legal road to the northern boundary of the site, with that land being taken and vested in Council as road, as shown below in Figure 3.
Land to be taken for Road (Sections 1, 2, 3, 4, & 5)
Road to be stopped and amalgamated with the adjacent titles (Sections 6, 7, 8, 9, & 10)
Figure 3 – Proposed realignment of the unnamed unformed road along the northern boundary.
The Applicant does not propose to form the new alignment as it is parallel with the newly constructed road through the centre of the development. Retention of the unformed legal road will maintain its potential as recreational access.
The Applicant also proposes to stop two ‘stubs’ of unformed road in the centre of the development. The stubs are shown below as sections 16, 17, and 18. Sections 16 and 17 are noted as having limited public benefit as a short no exit road. While section 18 currently provides an unformed legal link to Thomson Gorge Road, the recently constructed centre road now provides the public with a safer formed alternative.
‘Stubs’ of road to be stopped and amalgamated with the adjacent titles (Sections 16, 17, & 18)
Figure 4 – Stubs of road to be stopped
Report author: Property Officer – Statutory 52
Figure 5 – Full Size Plan of the Stopping and Taking Proposal
Report author: Property Officer – Statutory 53
3. Discussion
Roading Network The proposal to stop sections 11 – 15 will have no effect on the roading network as the taking of sections 1 – 5 for road will continue to provide the public with the same level of (unformed) access as previous. Shifting the legal road to the northern boundary will also enable the landowners to fully utilise the entire area of each property.
Sections 16 and 17, the two ‘stubs’ of road, serve no public purpose as they are short unformed no exit roads. Section 18 is no longer required for roading purposes as the recently constructed centre road now provides a formed link to Thomson Gorge Road. Accordingly, all three sections can be stopped and amalgamated with the adjacent titles.
Legal It is proposed that the stopping, taking, and realignment be undertaken in accordance with the Public Works Act 1981. The Public Works Act allows for land to be taken and vested as legal road. It also provides for legal road to be stopped and amalgamated with an adjacent record of title.
In this instance, the adjacent record of titles would be the titles resulting from RC 170531 as noted in the ‘Amalgamations’ section in figure 5.
Community Board Support A report on this matter was presented to the Cromwell Community Board for consideration at its meeting of 30 June 2020 where the proposal was endorsed by the Board.
4. Options
Option 1 - (recommended)
That Council agrees to stop, take, and realign part of the unformed roading network off Bendigo Loop Road, as shown in figure 5, by: • Stopping approximately 4.1839 hectares of unformed road, being Sections 11 – 16, • Taking approximately 2.8493 hectares of land for legal road, being Sections 1 – 5.
Subject to: • The Applicants paying all costs, including purchase of the land at valuation. • The stopped road being amalgamated in accordance with the provisions as shown in figure 5.
Advantages: • The unnamed unformed road will be realigned along the northern boundary. • The redundant stubs of the legal road will be disposed of. • The cost of the legalisation will be paid by the applicant. • The income from the road stopping will be used to purchase other land where existing road encroaches on private property.
Disadvantages: • None.
Option 2
To not support the proposal to stop, take, and realign part of the unformed roading network off Bendigo Loop Road:
Report author: Property Officer – Statutory 54
Advantages: • None.
Disadvantages: • The unnamed unformed road will continue to dissect the landowner’s properties.The redundant stubs of the legal road will not be stopped and disposed of. • Additional income will not be available for legalising other public roading issues.
5. Compliance
Local Government Act 2002 The provisions of the Local Government Purpose Provisions Act 2002 have been considered and will be met by this proposal. The proposal supports economic wellbeing of current and future generations by improving the roading network.
Council provides a roading network to the community. The realignment of the unnamed unformed road and the stopping of the redundant stubs will enhance that network.
Financial implications – Is this No negative financial implications for are decision consistent with proposed related to this decision. activities and budgets in long term plan/annual plan? The Applicants are required to pay all costs, including purchase of the land at valuation
Decision consistent with other Council’s Road Stopping Policy applies to Council plans and policies, such as this application. Consideration of this the District Plan, Economic policy has ensured that the appropriate Development Strategy, etc? statutory process has been chosen.
The proposal is consistent with the Public Works Act 1981.
Considerations as to sustainability, No sustainability, environmental or the environment and climate change climate change impacts are related to the impacts decision.
Risk Analysis There are no risks to Council associated with the recommended option.
Significance, Consultation and The Significance and Engagement Policy Engagement (internal and external) has been considered, with none of the criteria being met or exceeded.
Notice of the completed road stopping will be published in the New Zealand Gazette.
Report author: Property Officer – Statutory 55
6. Next Steps
The following steps have been/will be taken to implement the road stopping:
1. Community Board Approval June 2020 2. Council Approval July 2020 3. Survey July 2020 4. Survey Plan Approved September 2020 5. Gazette notice published November 2020
Attachments None.
Report author: Reviewed and authorised by:
Linda Stronach Julie Muir Property Officer - Statutory Executive Manager - Infrastructure Services 26/06/2020 2/07/2020
Report author: Property Officer – Statutory 56
Council 7 October 2020
Report for Decision
Local Government Funding Agency documentation (Doc ID 499915)
1. Purpose of Report
To approve and authorise the signing of the Local Government Funding Agency (LGFA) documentation.
------
Recommendations
That the Council:
A. Receives the report and accepts the level of significance.
B. Confirms its intention to join the New Zealand Local Government Funding Agency Limited (LGFA) as a guaranteeing Local Authority.
C. Approves the attached documents in relation to Central Otago District Council’s accession to LGFA.
D. Authorises any two of the Council’s elected members to execute the following for the purposes of the above recommendations: a. Debenture Trust Deed; b. Registry Customer Agreement; c. Accession Deed to Multi-issuer Deed; d. Accession Deed to Notes Subscription Agreement; e. Accession Deed to Equity Commitment Deed; and f. Accession Deed to Guarantee and Indemnity.
E. Delegates authority to the Chief Executive to execute the following documents for the purposes of the above recommendations: a. Stock Issuance Certificate (relating to each of the below Security Stock Certificates); b. Security Stock Certificate (in relation to the LGFA Multi-issuer Deed); c. Security Stock Certificate (in relation to the LGFA Equity Commitment Deed); and d. Security Stock Certificate (in relation to the LGFA Guarantee).
F. Delegates authority to the Chief Executive to execute such other documents and take other steps on behalf of the Council to give effect to the above recommendations.
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Report author: Executive Manager – Corporate Services 57
2. Background
At the March 2020 Council meeting, the consultation document for the Annual Plan 2020- 21 was adopted for public consultation. The consultation document sought public opinion on Council joining the New Zealand Local Government Funding Agency Limited (LGFA) and participation in the low interest rate funding scheme.
The LGFA specialises in financing the New Zealand local government sector. It was established to raise debt on behalf of local authorities on terms that are more favourable than what can be provided through existing lending institutions (ie. commercial banks).
As of March 2020, there were 66 council borrowers and 85% of council borrowing was with the LGFA.
Joining the LGFA scheme will allow council to borrow at a lower rate than the commercial banks, which will enable a greater level of investment in major projects planned over the next thirty years.
3. Discussion
To meet the above funding requirements, the Council will need to approve and sign-off on the documentation noted in the schedule below. These documents are key to the Council’s ability to join the LGFA scheme and access more favourable lending rates than our current rates and also for the Council to become a Guarantor and secure the required funding to:
a) meet the Council’s current budgeted spending detailed in our 2018-28 Long-term Plan (LTP) and subsequent Annual Plans; b) externally fund the capital programmes anticipated to be included in the 2021-31 LTP; and c) have the availability of funds at the cheapest interest rates to meet any further proposed major projects.
These documents have all been reviewed by our legal team (Simpson Grierson) and Miles O’Connor from Bancorp Treasury. Miles has completed a number of these documents for the councils across New Zealand.
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Document Who signs Where Number they sign of copies
Debenture Trust Deed 2 Elected Page 46 2 Members All local authorities that accede to LGFA are required to provide a charge over the local authority’s rates and rates revenue. Under this deed, Central Otago District Council will grant a charge over is rates and rates revenue in favour of Covenant Trustee Services Limited (with Covenant Trustee Services Limited holding this charge for the benefit of holders of stock issued under the Debenture Trust Deed)
Registry Customer Agreement 2 Authorised Page 21 2 Signatories All local authorities that accede to LGFA are required to appoint a registrar and paying agent. Under this agreement, Central Otago District Council will appoint Link Market Services Limited as their registrar and paying agent.
Chief Executive Certificate (relating to the 2 Authorised Page 1 1 Debenture Trust Deed and Registry Signatories Customer Agreement) In this document the Chief Executive certifies certain things relating to the entry by Central Otago District Council into the Debenture Trust Deed and Registry Customer Agreement. This certificate includes a certification for the purposes of section 118 of the Local Government Act 2002.
Accession Deed to Multi-issuer Deed 2 Elected Page 2 2 Members All local authorities that accede to LGFA are required to accede to the Multi-issuer Deed, under which a local authority can issue debt securities to LGFA. Under this accession deed, Central Otago District Council becomes a party to the Multi-issuer Deed.
Accession Deed to Notes Subscription 2 Elected Page 2 2 Agreement Members All local authorities that accede to LGFA are required to accede to the Notes Subscription Agreement, under which the local authority will subscribe for “Borrower Notes” each time that
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Document Who signs Where Number they sign of copies that local authority borrows from LGFA. Under this accession deed, Central Otago District Council becomes a party to the Notes Subscription Agreement.
Accession Deed to Guarantee and Indemnity 2 Elected Page 2 2 Members All guaranteeing local authorities provide a guarantee of LGFA's debt under a deed of guarantee and indemnity. Under this accession deed, Central Otago District Council becomes a party to the LGFA guarantee and thereby also provides that guarantee.
Accession Deed to Equity Commitment Deed 2 Elected Page 2 2 Members All guaranteeing local authorities agree that under certain circumstances in which the LGFA is distressed, they will contribute additional capital to the structure by subscribing for shares in the LGFA. Under this accession deed, Central Otago District Council becomes a party to the LGFA Equity Commitment Deed and thereby also provides that commitment.
Chief Executive Certificate Chief Executive Page 1 2 (relating to the four accession deeds and security stock documents) In this document the chief executive certifies certain things relating to the entry by Central Otago District Council into the LGFA accession deeds and security stock documents (relating to the issue of security stock to LGFA and the LGFA security trustee). This certificate includes a certification for the purposes of section 118 of the Local Government Act 2002.
Officer's Certificate Chief Executive Page 1 2 In this document the chief executive certifies certain things to LGFA and TEL Security Trustee (LGFA) Limited relating to the entry by Central Otago District Council into the LGFA documentation (including the Accession Deed to Multi-issuer Deed, Accession Deed to Notes Subscription Agreement, Accession Deed to Equity Commitment Deed and Accession Deed
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Document Who signs Where Number they sign of copies to Guarantee and Indemnity) and the issue of security stock to LGFA and TEL Security Trustee (LGFA) Limited. That certificate is similar to the above chief executive certificates, but is required by the LGFA documentation rather than being provided for statutory reasons.]
Security Stock Certificate – Multi-issuer Chief Executive Page 2 1 Deed This is evidence that Central Otago District Council has issued security stock to LGFA under Central Otago District Council’s Debenture Trust Deed to secure obligations under the Multi-issuer Deed (and the related accession deed).
Security Stock Certificate – Equity Chief Executive Page 2 1 Commitment Deed This is evidence that Central Otago District Council has issued security stock to the LGFA under Central Otago District Council’s Debenture Trust Deed to secure obligations under the Equity Commitment Deed (and related accession deed).
Security Stock Certificate – Guarantee and Chief Executive Page 2 1 Indemnity This is evidence that Central Otago District Council has issued security stock to the LGFA security trustee under Central Otago District Council’s Debenture Trust Deed to secure obligations under the guarantee and indemnity (and related accession deed).
Stock Issuance Certificate Chief Executive Only page 1 This certificate relates to the issuance of security stock by Central Otago District Council under its Debenture Trust Deed and must be provided as a part of the stock issuance process outlined in CODC’s Debenture Trust Deed.
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Appendices 2-4
• Debenture Trust Deed – This is the deed between Central Otago District Council and Covenant Trustee Services Limited to provide all trustee services in relation to future debt raised by the Central Otago District Council.
• Registrar and Paying Agency Agreement – This agreement is between Central Otago District Council and Link Market Services Limited to provide registry and paying agency services.
• LGFA Documents – These are the accession deeds, security stock certificates, stock issuance certificate, Chief Executive certificate and officer’s certificate (as outlined in the table above) that LGFA require be approved and executed by Central Otago District Council before Central Otago District Council join LGFA.
Becoming a guarantor has been included in Council’s 2020-21 Annual Plan consultation process therefore no separate consultation is required. As part of our supporting documentation to our consultation documents our Investment Policy has always been included and this policy states that if required, “Council may also subscribe for uncalled capital in the LGFA and be a Guarantor”.
Appendix 1 outlines the potential risks and mitigation of these risks that Central Otago District Council could face should a Council default.
4. Options
Option 1 – (recommended)
Authorise and sign the necessary documentation so Council can join and take advantage of the financial benefits of the LGFA membership. Council also to authorise the Chief Executive to sign the relevant documentation required.
Advantages: • Council can take advantage of lower interest rates available through the LGFA • Minimise the cost of debt • Each generation pays the true cost of services • Some capital may be transferred to into shares in the LGFA
Disadvantages: • Council is a guarantor of LGFA and therefore holds a risk component should LGFA default.
Option 2
Do not approve and sign the LGFA documentation referred to in this appendix.
Advantages: • Removes any potential risk as a guarantor to LGFA Disadvantages:
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• Prevents Council taking advantage of lower interest rates available by means of the LGFA • Higher financing costs with a commercial financial intuition • Increased costs and service charges
5. Compliance
Local Government Act 2002 This is an administrative step in being able to Purpose Provisions provide a cost-effective borrowing programme for the district. This decision enables democratic local decision making and action by, and on behalf of the community. Financial implications: Is this Yes, this was consulted on in the 2020-21 decision consistent with proposed Annual Plan and the decision to join the activities and budgets in long term LGFA was adopted as part of adopting the plan/annual plan? 2020-21 Annual Plan. This process is the administrative process required to implement the adoption resolution.
The Annual Plan financial assumptions for cost of debt have been calculated on the basis of Council’s decision to join LGFA, to not implement this decision will result in an increase in interest costs of approximately 0.5%. Decision consistent with other Yes as this is implementing the decision Council plans and policies, such adopted when adopting the 2020-21 Annual as the District Plan, Economic Plan and consistent with many other Development Strategy, etc? councils. Currently 66 councils are members of the LGFA. Considerations as to sustainability, There are no implications. the environment and climate change impacts Risk Analysis There is a risk as a guarantor that a participating council may default, however given the balance sheet of the LGFA, and the uncalled funds available to them, this risk is extremely unlikely. Significance, Consultation and At the 11 March 2020 Council meeting, Engagement (internal and external) Council adopted the LGFA consultation document for public consultation. In response to Council’s proposal to join the LGFA scheme as a guaranteeing local authority, 82% of submitters chose Council’s preferred option to join the LGFA scheme as a guaranteeing local authority.
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6. Next Steps Council to sign the documentation which will be sent to the LGFA to complete the accession process. Staff will commence the borrowing process as budgeted in the 2020- 21 Annual Plan.
Attachments Appendix 1: Potential risk mitigation Appendix 2: Debenture Trust Deed Appendix 3: Registry Customer Agreement Appendix 4: LGFA Documents
Report author:
Leanne Macdonald Sanchia Jacobs Executive Manager – Corporate Services Chief Executive Officer 15/09/2020 17/09/2020
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APPENDIX 1
Potential Risk Mitigation
As a guarantor there is a risk of having to contribute should LGFA default, however based on Central Otago District Council’s current membership the risk is less than 1% (0.35%). Also note, that Council is guaranteeing LGFA, not the individual councils.
The guarantee is limited to a council’s rates income as a percentage of the rates income of all the guaranteeing councils. If the Central Otago District Council became a guaranteeing council, we estimate that the Central Otago District Council’s share of the guarantee would be approximately 0.35%. This means that if a $100 million call was made under the guarantee, Central Otago District Council would contribute $350,000. This figure may change over time as the percentage of total rates income changes.
When assessing the potential liability, or consequence of a call under the guarantee we need to assess the likelihood of a:
1. Council defaulting on its loans;
2. Loss on the loans even if a council does default; and
3. Call on guarantors.
All the above three factors have a very low probability due to the following mitigating factors.
1. Firstly there is a very strong monitoring process. LGFA conducts its own monitoring including the requirement by councils to provide compliance certificates, but there is also monitoring of the sector by the Office of Auditor General and Department of Internal Affairs.
2. There has never been a New Zealand council default; one of the main reasons for this, as Standard & Poor’s state, is the very strong institutional framework that exists in contrast to the framework in other countries (including the United States), which is not as strong. The detail included in the LTP’s and major projects also assist with this.
3. Protection is provided by the LGFA financial covenant ratios. These do provide a meaningful restriction on how much debt councils can borrow. It is also very unlikely that LGFA would lend any additional funds to a council that was forecasting a breach in their covenants.
4. If a council did get into financial difficulties, in the first instance it is likely to be a liquidity issue rather than a loss of capital to LGFA. It is most likely that commissioners would be appointed to work through the issue. To mitigate this risk LGFA has a $1 billion standby facility with the Crown (that has never been used), a $248 million liquid assets portfolio and the ability to issue more bonds. This means if a council could not repay its loan, LGFA has ample liquidity to manage the situation while a longer-term plan is put in place.
5. If in the event that there was a write off in a council loan LGFA would in the first instance use its existing equity to make up the shortfall. Equity currently stands at over $574.1 million (up from $25 million when LGFA was first established).
6. LGFA could then use its profits. The current annual profit is around $10 million a year. This is expected to continue over the next few years.
7. LGFA would then potentially increase its borrowing margins to councils. The current base lending margin is around 10 basis points. However, when LGFA first lent money in 2012
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the margin was 30 basis points. If LGFA increased the base lending margin to say 20 basis points, this over time would generate an extra $7 million of profits a year.
8. LGFA could call its unpaid capital which is $20 million. This would not impact Central Otago District Council as it is not a shareholder.
9. LGFA could convert some or its entire borrower notes into equity. The borrower notes are currently in excess of $154 million, and of course, LGFA could call on the guarantee.
Much of this was covered in the Consultation Document as part of the 2020-21 Consultation process, including acknowledging the governance of the LGFA. The Board of LGFA is currently made up of five independent directors and one non-independent director. A non- independent director is someone who works in the local authority sector. There is a requirement that the majority of the directors are independent. One of the key objectives of the directors is to protect the interests of the guaranteeing councils.
In summary, staff are satisfied that LGFA has sufficient processes in place to mitigate Central Otago District Council’s risk.
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DEBENTURE TRUST DEED
between
CENTRAL OTAGO DISTRICT COUNCIL and
COVENANT TRUSTEE SERVICES LIMITED
Barristers & Solicitors Auckland, Wellington & Christchurch New Zealand www.simpsongrierson.com
67 33739519_3
TABLE OF CONTENTS
1. INTERPRETATION ...... 1 2. CONSTITUTION OF STOCK ...... 8 3. ISSUE OF STOCK ...... 9 4. REGISTER OF STOCK ...... 14 5. INDEMNITY BY STOCKHOLDER...... 15 6. SECURITY STOCK PROVISIONS ...... 16 7. BEARER STOCK ...... 18 8. ACKNOWLEDGEMENT OF INDEBTEDNESS AND COVENANT TO PAY ...... 19 9. CHARGES BY COUNCIL ...... 20 10. COVENANTS BY COUNCIL ...... 22 11. POWERS OF AND OTHER PROVISIONS RELATING TO TRUSTEE ...... 26 12. ENFORCEMENT OF SECURITY ON DEFAULT ...... 32 13. TRUSTEE'S POWERS OF ENFORCEMENT OF SECURITY ...... 33 14. APPOINTMENT OF RECEIVER ...... 35 15. TRUSTS OF PROCEEDS OF ENFORCEMENT ...... 38 16. ALTERATIONS ...... 42 17. MISCELLANEOUS PROVISIONS ...... 43
FIRST SCHEDULE - Part I FIRST SCHEDULE - Part II FIRST SCHEDULE - Part III FIRST SCHEDULE - Part IV
SECOND SCHEDULE THIRD SCHEDULE FOURTH SCHEDULE
68
THIS DEED dated the day of 2020
BETWEEN CENTRAL OTAGO DISTRICT COUNCIL a Council duly constituted as a territorial authority under the Local Government Act 2002 (included in the term the Council)
AND COVENANT TRUSTEE SERVICES LIMITED (the Trustee)
INTRODUCTION
A. The Council has the power, subject to the Act, to raise certain money or incur certain obligations from time to time in such amounts and upon such terms and conditions and for such of its lawful purposes as it considers appropriate by means of, or to be evidenced or secured by, stock to be constituted by this Deed.
B. The Trustee has agreed, at the request of the Council and for the consideration expressed or referred to in this Deed, to act as trustee under this Deed for the benefit of the Stockholders on the terms and conditions contained in this Deed.
WITNESSES AS FOLLOWS:
1. INTERPRETATION
In this Deed (including the introduction to this Deed) unless the context indicates otherwise the following provisions apply:
1.1 General:
1.1.1 Trust: This Deed shall be construed and shall take effect as a contract and declaration of trust made in New Zealand.
1.1.2 Conversion: Where, for any purpose under this Deed and where consistent with the Act, it is necessary or desirable to determine the equivalent in one currency of an amount in another currency, such equivalent shall be determined in such manner as the Council adopts and is acceptable to the Auditors having regard to prevailing commercial practices and to the policies in such regard adopted in the latest audited financial statements of the Council.
1.1.3 Calculation of foreign currency amounts: Notwithstanding clause 1.1.2, where all or any part of the nominal amount of Stock held by, or all or any part of the Secured Money owing to, a Stockholder is not denominated in New Zealand dollars:
(a) For the purpose of the Second Schedule or calculating any person’s share of any sum payable under this Deed, as the case may be, the Trustee shall be entitled to notionally convert the relevant part of the nominal amount or the Secured Money owed to or by any person, as the case may be, into New Zealand dollars, that notional conversion to be made at the spot rate, as quoted to the Trustee by a Reference Bank, at which the Trustee is able to purchase New Zealand dollars with the actual currency of the relevant part of the nominal amount, or the relevant part of the Secured Money owed to or by that person, at the time at which that calculation is to be made, provided that:
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(i) such notional conversion shall not alter the amount owing to, or secured in favour of, such person; and
(ii) where a notional conversion is undertaken for the purposes of clause 15.1, the conversion shall be undertaken on the same date as the Trustee makes the distribution under that clause.
(b) Following application of clause 15.1, for the purpose of distributing the amount available for distribution to the relevant Stockholder, the Trustee will convert the New Zealand dollar amount available to be distributed to a Stockholder to the relevant foreign currency in which the relevant part of the Secured Money is owing by reference to the applicable spot rate, as quoted to the Trustee by a Reference Bank for the purposes of clause 1.1.3(a)(ii) above.
1.2 Definitions:
"Account Receivable" has the same meaning as in the PPSA;
"Act" means the Local Government Act 2002;
"Annual Plan" means the report prepared and adopted by the Council under section 95 of the Act for each forthcoming financial year of the Council;
"Annual Report" means the report prepared and adopted by the Council under section 98 of the Act at the end of each financial year of the Council;
"Auditor(s)" means the person or persons for the time being holding the office of auditor of the Council (or any agent or delegate of such person or persons);
"Bearer Stock" means Stock issued in bearer form as provided for in clause 7.1;
"Charged Assets" means:
(a) all rates from time to time set or assessed by the Council under the Rating Act, and all rates revenue in respect thereof;
(b) each rate arising under section 115 of the Act in relation to any Secured Money and the rates revenue from each such rate;
(c) the Proceeds of the rates, special rates or rates revenues described in paragraphs (a) and (b) above, but only to the extent to which such Proceeds constitute Accounts Receivable, Negotiable Instruments or Money (as the term "Money" is defined in the PPSA) arising directly from the collection of those rates, special rates or rates revenues,
but, for the avoidance of doubt, excludes any rates (or the Proceeds thereof) which may be collected by the Council on behalf of any other local authority;
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"Chief Executive" means the Chief Executive of the Council appointed under section 42 of the Act from time to time, and includes a reference to any person to whom any right or obligation of such Chief Executive has lawfully been delegated;
"Class of Stock" means any category of Stock having substantially the same rights, privileges, limitations and conditions which, at any particular time for any particular purpose, constitute a separate class of Stock within the Stock, as determined by the Council;
"Class of Stockholders" means the Stockholders of a particular Class of Stock;
"Companies Act" means the Companies Act 1993, or in respect of a company not registered under that Act means the equivalent legislation applicable to that company;
"Date of Enforcement" means the date on which the security created by this Deed is enforced by the Trustee;
"Debenture Stock" means all Stock which is not Security Stock;
"Enforcement Event" means any of the events listed in clause 12.1;
"Extraordinary Resolution" has the meaning contained in the Second Schedule;
"Facility" means any loan, advance, accommodation, bill, stock or note issuance, acceptance, endorsement or discount, guarantee, indemnity, letter of credit, bond, note, stock, bill, exchange, swap, rate, or other financial facility, agreement, liability, obligation or arrangement which is lawfully entered into by the Council and in respect of which the money or other liabilities or obligations owing or which may become owing thereunder are, or are proposed to be, secured by Stock;
"financing statement" has the same meaning as in the PPSA;
"FMC Act" means the Financial Markets Conduct Act 2013;
"FMC Regulations" means the Financial Markets Conduct Regulations 2014;
"Financial Markets Supervisors Act" means the Financial Markets Supervisors Act 2011;
"Information and Meetings Act" means the Local Government Official Information and Meetings Act 1987;
"Long Term Plan" means the long term plan prepared and adopted by the Council under section 93 of the Act, as amended from time to time;
"Negotiable Instrument" has the same meaning as in the PPSA;
"NZX" means NZX Limited and includes its successors and assigns;
"Paying Agent" means Link Market Services Limited, or such other or additional person who from time to time fulfils the role of paying agent for
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the purposes of the Registrar and Paying Agency Agreement and this Deed;
"PPSA" means the Personal Property Securities Act 1999;
"Principal" and "Principal Money" means, at any time:
(a) in relation to Stock (other than Security Stock) the sum other than interest payable on redemption of the Stock inclusive of the premium (if any) of the Stock payable in accordance with the conditions of issue of that Stock;
(b) in relation to Security Stock any amounts secured by that Security Stock which are not in the nature of interest on other amounts secured by that Security Stock;
"Priority Interest Amount" in relation to any Security Stock and the holder thereof, means the amount referred to as such in clause 6.3.1(b), unless otherwise agreed between the Council and the Trustee (including by agreeing wording in the relevant Stock Certificate);
"Priority Principal Amount" in relation to any Security Stock and the holder thereof, means the amount referred to as such in clause 6.3.1(a), unless otherwise agreed between the Council and the Trustee (including by agreeing wording in the relevant Stock Certificate);
"Priority Total Amount" in relation to any Security Stock and the holder thereof, means the aggregate of the Priority Principal Amount and the Priority Interest Amount in respect of that Security Stock;
"Proceeds" has the same meaning as in the PPSA;
"Rating Act" means the Local Government (Rating) Act 2002;
"Receiver" means a receiver or receiver and manager or manager of all or any part of the Charged Assets appointed by the Trustee under this Deed;
"Receiverships Act" means the Receiverships Act 1993;
"Reference Bank" means any one of ANZ Bank New Zealand Limited, Bank of New Zealand, ASB Bank Limited and Westpac New Zealand Limited;
"Register" means the register of Stock, or each such register, to be kept by the Registrar pursuant to clause 4;
"Registered Address" means, in respect of a Stockholder, the address in New Zealand for the time being recorded in the Register;
"Registered Facsimile Number" means the facsimile number for the time being recorded in the Register;
"Registered Stock" means all Stock other than Bearer Stock;
"Registrar" means Link Market Services Limited, or such other or additional person who from time to time fulfils the role of registrar for the purposes of the Registrar and Paying Agency Agreement and this Deed;
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"Registrar and Paying Agency Agreement" means the registry customer agreement dated on or about the date of this Deed between the Council, the Registrar and the Paying Agent, and includes a reference to such as may be amended, or to any other registrar and paying agency agreement entered into, to provide for more than one Register, and more than one Registrar or Paying Agent;
"Reporting Certificate" means a certificate substantially in the form as appears in the Fourth Schedule or in such other form as the Council and the Trustee may agree;
"Secured Money" means the principal and interest payable on, or in respect of, the Stock and, to the extent that such is lawfully entered into by the Council, all other money owing or payable to or at the direction of the Trustee or any Receiver or any Stockholder under this Deed or the terms of issue of any Stock;
"Secured Obligations" means the obligations of the Council under this Deed and any Stock, but excludes any obligation to pay or deliver any Secured Money;
"Security Stock" means Stock issued pursuant to and in accordance with clause 6.1.1;
"Security Stock Certificate" means a Stock Certificate in respect of Security Stock;
"Stock" means Security Stock, Bearer Stock or any secured indebtedness by whatever name called which in any case is lawfully entered into by the Council and is constituted and issued by the Council under, and in accordance with, this Deed and for the time being outstanding and uncancelled, or a specified portion thereof as the case may require;
"Stock Certificate" or "Certificate" means a certificate or other written acknowledgement in respect of Stock issued by the Council under clauses 3.3, 3.8, or 3.10, or clause 7 evidencing (subject to the Register, in the case of Registered Stock, and the provisions of this Deed, including the conditions applicable to that Stock) that the person named therein is the holder of the amount of Stock stated therein and, in relation to any Stock in respect of which a Stock Certificate has not been issued, includes a reference to the Stock Certificate which would otherwise have been issued in respect of that Stock;
"Stock Issuance Certificate" means a certificate of the Chief Executive for the purposes of clause 3.1 substantially in the form as appears in the Third Schedule or in such other form as the Council and the Trustee may agree;
"Stockholders" or "Holders" means those persons from time to time and for the time being entered in the Register as the holders of Stock and includes their respective successors and personal representatives;
"Trust Deed" and "this Deed" means this trust deed (inclusive of its Schedules) as amended from time to time in accordance with the provisions of this trust deed and, except where inconsistent with the context, includes every other deed or other agreement collateral or supplemental to or varying this trust deed or any such collateral or supplemental deed or agreement; and
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"Trustee" means the trustee or trustees for the time being holding office as trustee under this Deed.
1.3 Construction: Any reference to:
an "agreement" includes a deed and any other instrument or document recording rights and/or obligations, and includes a reference to such as modified, varied, supplemented, novated or substituted from time to time;
a "business day" means a day (other than a Saturday or a Sunday) on which registered banks (within the meaning of the Reserve Bank of New Zealand Act 1989) are open in Alexandra for the transaction of general banking business;
a "charge" has the same meaning as in the Act, and includes a reference to a security interest (within the meaning of the PPSA);
a "clause" or "Schedule" is a reference to a clause or section of, or schedule to, this Deed;
a "company" means any company or body corporate wherever incorporated or domiciled;
"conditions" in respect of any Stock shall be to the conditions applicable to that Stock as referred to in clause 3.3.2 and, includes the further conditions set out in Part IV of the First Schedule (the "further conditions");
the "Council" includes any delegate of the Council as referred to in clause 1.6;
"default" means a breach, failure to comply or failure to do, however caused, whether voluntary or involuntary and whether within or beyond the control of any person;
"interest" includes discounts and other payments in the nature of interest;
"month" means calendar month;
"nominal amount" in respect of Stock, has the meaning set out or referred to in the relevant Stock Certificate;
"owing" includes unpaid;
"payment" includes a reference to repayment;
"person" means an individual, company, body corporate, corporation, local authority, an association of persons whether corporate or not, a trust or a state or agency of a state whether of central government or local government (in any case, whether or not having separate legal personality);
"right" includes right, benefit, entitlement, authority, discretion, remedy or power;
"supervisor" has the meaning set out in the FMC Act;
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"tax(es)" includes a present or future tax, levy, impost, duty, rate, charge, fee, deduction or withholding of any nature regardless of where or by whom imposed, levied, collected, withheld or assessed and includes interest, penalties, fines, costs, charges or expenses or other amounts relating to or arising in connection therewith;
"the security created by this Deed" means the security in favour of the Trustee created by or pursuant to this Deed or any deed or other agreement collateral or supplemental to or varying this Deed;
"in writing" and "written" include words written, printed, typewritten, lithographed or otherwise represented or reproduced in permanent visible form by any other means;
the sign "$" and the word "Dollars" means New Zealand dollars;
a gender includes each other gender;
the singular includes the plural, and vice versa;
any legislation includes a modification or re-enactment of, legislation enacted in substitution for, or a regulation, order-in-council or other instrument from time to time issued or made under, that legislation;
something being done, includes a reference to it being done from time to time;
an example or an inclusion does not limit what else may be included;
a party to this Deed or any other agreement includes its successors or its permitted assignees or transferees; and
time means a reference to New Zealand time.
1.4 Headings: Headings and the table of contents are to be ignored in construing this Deed.
1.5 Trustee's Actions:
1.5.1 Decisions: Except to the extent the Trustee cannot by law do so or such action is in the opinion of the Trustee contrary to generally accepted prudent practice or is not in the interests of Stockholders, the Trustee shall act reasonably as regards the Council in respect of any consent, approval, discretion, consideration, decision, opinion, determination or action (collectively referred to in this clause 1.5 as a "decision") by it in respect of, or pursuant to, this Deed unless this Deed expressly provides for some other basis for the exercise of such decision by the Trustee.
1.5.2 Discretion: Subject to clause 1.5.1, and except to the extent otherwise expressly required by this Deed or by law, the Trustee may exercise any decision in respect of, or pursuant to, this Deed or any Stock in its own discretion.
1.5.3 Binding on Stockholders: Any action taken, or omitted to be taken, by the Trustee under or for the purposes of this Deed (or purportedly so) shall bind the Stockholders.
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1.6 Council Powers: Subject to the Act, where this Deed confers any right or obligation on the Council, the right or obligation may be exercised under delegated authority from the Council by any committee or sub-committee, member or officer of the Council.
2. CONSTITUTION OF STOCK
2.1 Constitution of Stock:
2.1.1 Benefit of Deed: The Council may from time to time in accordance with the provisions of this Deed, and in compliance with the Act, create and issue Stock to, or for the benefit of, such persons, in such amounts (whether such amount be set or indeterminate at the time of issue) in such currencies on such terms and upon such conditions contained in this Deed or modified for the purposes of such Stock and at par or at a premium or at a discount and bearing such respective rate of interest (whether fixed, variable or determined by a stated method) or with or without interest and payable or redeemable at such respective times or periods or on demand as the Council may from time to time determine (but subject to any restrictions in that regard imposed by law).
2.1.2 Registration: The issue of Registered Stock will be effected and evidenced by particulars of the Stock being entered in the Register by the Registrar on the instructions of the Council.
2.1.3 Other Indebtedness: Without prejudice to the express provisions of this Deed relating to the issue of Stock generally, nothing in this Deed shall in any way restrict the right of the Council, and the Council shall at all times be free (but subject to the Act), to undertake or issue obligations or indebtedness (including Stock) ranking subordinate to the indebtedness and obligations of the Council in respect of the Stock.
2.1.4 Modification: If any modification to this Deed, or any other documentation, consent or acknowledgement, is in the opinion of the Council necessary or desirable to permit, facilitate or give effect to any right referred to in clause 2.1.3 the Trustee is, subject to it being reasonably satisfied with the relevant documentation, authorised to concur with the Council in executing the same and any such concurrence shall be on behalf of, and shall bind, the Stockholders.
2.2 Ranking: To the fullest extent permitted by law, the Stock and the Secured Money secured pursuant thereto shall, subject to the provisions of clause 6, as to the security created by this Deed rank pari passu as between themselves as to payment of Secured Money even though it and/or the indebtedness forming part of the Secured Money is or was, created or issued at different dates or at par or at a premium or at a discount and carries interest at different rates and matures or is payable or redeemable at different times or on demand or in different currencies or with, or without the knowledge of any other Stockholder.
2.3 Payment of Brokerage or Commission: The Council shall be at liberty to pay a commission, a procuration, application or subscription fee or brokerage to any person for subscribing, underwriting the subscription of, or obtaining subscriptions for, any Stock.
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2.4 Redemption of Stock:
2.4.1 Redemption: The Council may at any time, and from time to time, redeem any Stock by purchase either on the market or by private treaty.
2.4.2 Related Persons: No person in, or in respect of, which the Council has an interest shall be precluded from at any time purchasing, re-purchasing, subscribing for, acquiring, holding, selling or otherwise disposing of, any Stock.
2.4.3 Surrender: Security Stock may at any time be surrendered in whole or in part by the holder thereof, and upon surrender the Council shall cancel such Security Stock.
2.4.4 Required Surrender: The Council may require any Stockholder to surrender its Security Stock if the Council has no indebtedness (actual or contingent) to the Stockholder which is secured by that Security Stock, and no obligation to allow the Council to incur any indebtedness to it which would be secured by that Security Stock at any future time.
3. ISSUE OF STOCK
3.1 Stock Issuance Certificate:
3.1.1 Precondition: The Council shall not at any time issue any Stock until a copy of a Stock Issuance Certificate in respect of the issue of that Stock has been delivered to the Trustee.
3.1.2 Suspension: The Council shall not issue any Stock by reference to a Stock Issuance Certificate at any time after the Council is required to give a notice to the Trustee pursuant to clause 10.1.3 in respect of that certificate, and while such notice is operative.
3.2 Compliance with Acts Prior to Issue: The Council shall comply with any applicable provisions of the Act or the FMC Act prior to the issue of any Stock pursuant to a regulated offer under the FMC Act, and in any case the Council shall not issue any Stock pursuant to a regulated offer under the FMC Act unless:
3.2.1 Advice to Trustee: it has first advised the Trustee;
3.2.2 Remuneration: the Trustee and the Council have reviewed and agreed upon the remuneration payable to the Trustee under clause 11.2 for the issue of that Stock; and
3.2.3 Supplemental deed: the Trustee and the Council have made such modifications to the provisions of this Deed, and such additional provisions, as are deemed necessary or desirable by the Council and the Trustee for compliance in all respects with the Act or the FMC Act as required.
3.3 Stock Certificates:
3.3.1 Issue: The Council shall, subject to the conditions applicable to the Stock:
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(a) issue to, or for the account of, every Stockholder (other than a Holder of Security Stock, Bearer Stock or Stock which is repayable in a currency other than Dollars) upon request one or more Stock Certificates in, or to the effect of, the form set out in Part I of the First Schedule or in such other form as is appropriate to reflect the terms of the relevant Stock;
(b) issue to, or for the account of, each Holder of Security Stock upon request one or more Security Stock Certificates in, or to the effect of, the form set out in either Part II or Part III of the First Schedule or in such other form as is appropriate to reflect the terms of the relevant Security Stock;
(c) issue (in such circumstances, if any, as the Council is entitled to issue Stock which is repayable in a currency other than Dollars) to, or for the account of, each Holder of Stock which is repayable in a currency other than Dollars upon request one or more Stock Certificates in such form as is appropriate to reflect the terms of the relevant Stock;
(d) where the FMC Act applies to any Stock, provide such information as is required to be provided under section 100 of the FMC Act.
3.3.2 Terms of Issue: The Stock (whether or not represented by a Stock Certificate) shall be, and be deemed to be, held with the benefit of and subject to the provisions of this Deed, and the terms of the Stock shall include:
(a) those terms entered in the Register in respect of such Stock; and
(b) those terms set out in any Stock Certificate issued in respect of such Stock, except to the extent that they:
(i) conflict with the terms entered in the Register; or
(ii) conflict with the form of Stock Certificate set out in Part I, II or III (as applicable) of the First Schedule (including the conditions attached to those forms and the further conditions set out in Part IV of the First Schedule) (Stock Certificate Form), unless such conflict has been agreed to by the Stockholder and the Council; and
(c) those terms set out in the relevant Stock Certificate Form, as amended by agreement with the Stockholder (and, for the avoidance of doubt, if a Stock Certificate is issued in a form agreed with the Stockholder, that Stock Certificate shall amend the relevant Stock Certificate Form for that Stock); and
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(d) any further terms (including those stipulated in any application form or other issuing or offer documentation in respect of the Stock) as may be required by the Council and approved by the Trustee,
provided that:
(e) notwithstanding any agreement between the Council and the relevant Stockholder contemplated by the provisions of paragraphs (b)(ii) and (c) above, no term of any Stock which conflicts with an express term of this Deed shall be effective unless agreed to by the Trustee or paragraph (f) applies; and
(f) any change to a Stock Certificate Form agreed to by the Council and/or the relevant Stockholder but not the Trustee will only be effective to the extent that it is, in the Council's reasonable opinion:
(i) required to correct a manifest error or omission, or is of a minor, formal or technical nature; or
(ii) required to comply with, or as a result of the coming into effect of, any legislation.
Those provisions and terms, or such of them as are applicable to the respective Stock, shall be binding on the Council, the Trustee and, by their acceptance of the Stock, the relevant Stockholders and all persons claiming through them respectively, each of whom shall be deemed to have notice thereof.
3.3.3 Execution: Stock Certificates shall be executed by the Council either by the Chief Executive on behalf of the Council or in such other manner (including by way of facsimile execution) as is duly authorised by the Council.
3.3.4 Passing of Title: Notwithstanding anything to the contrary contained or implied in this Deed, title to Stock (other than Bearer Stock) shall pass only upon registration by the Registrar of the transfer in compliance with this Deed and the conditions applicable to that Stock, and no dealing with any Stock Certificate (other than in respect of Bearer Stock) shall operate to transfer or otherwise affect title to the Stock to which it relates.
3.4 Validity: No Stockholder, nor the Trustee, shall be concerned or obliged to enquire whether any Stock has been issued in contravention of any provision of this Deed nor, subject to section 119(2) of the Act, shall the validity of any Stock be affected by knowledge of such contravention.
3.5 Deemed Validity: Subject to the Act and to any other limitations arising by law, all Stock issued for valuable consideration, the Stock Certificate for which, or the entry on the Register in respect of which, or other evidence indicates that it has been issued or was intended to be issued under this Deed, shall (without prejudice to the right of the Council to correct any error) be validly issued and (in the case of Debenture Stock) constituted by this Deed and entitled to the benefit of the provisions of this Deed even though it may subsequently be determined that the issue of
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such Stock was in breach of any provision of this Deed, but without prejudice to the Trustee's rights under this Deed against the Council in relation to such breach.
3.6 Exclusion of Interests: The Stockholders are to be regarded as the beneficial owners of the Stock registered in their names respectively, and in the case of Bearer Stock held by them respectively, and are to be regarded as exclusively entitled thereto, and all persons and the Council may act accordingly. The Registrar shall not, except as provided in the conditions applicable to the Stock or as ordered by a court of competent jurisdiction, be bound to enter in the Register or recognise any trust, equity, right, title, interest (including security interest) or claim affecting the ownership of any Stock or the indebtedness represented thereby.
3.7 Limitation on Enforcement: No Stockholder shall be entitled to enforce any rights under this Deed or in respect of any Stock or otherwise in respect of any Secured Money directly against the Council other than if the Trustee wrongly fails to enforce such rights after having become bound to do so in accordance with the provisions of this Deed.
3.8 Replacement: The Council may with the consent of, or at the request of, the Stockholder concerned execute and deliver to that Stockholder:
3.8.1 Loss: (subject to provision to the Council of such evidence and indemnities as it may require) a Stock Certificate in replacement of a lost, destroyed or damaged Stock Certificate;
3.8.2 Correction: a Stock Certificate in replacement of any Stock Certificate issued in an incorrect form or for an incorrect amount or containing incorrect terms or conditions;
3.8.3 Substitution: several Stock Certificates in substitution for one Stock Certificate, or vice versa;
3.8.4 Replacement: a Stock Certificate in replacement for a Stock Certificate cancelled in error where the Stock evidenced thereby has not been purchased or redeemed;
3.8.5 Changed Indebtedness: where the indebtedness or other obligation evidenced or secured by a Security Stock Certificate has been repaid or otherwise discharged in part, a replacement Stock Certificate for a lesser nominal amount than the original Stock Certificate; and
3.8.6 Change of Name: (subject to provision to the Council of proper proof of the relevant change of name) a Stock Certificate to record the change of name of any Stockholder,
but, except for the purposes of correcting an error, nothing contained in this clause shall permit the Council to alter the terms of issue upon which the Stock evidenced by the original Stock Certificate was issued or to increase the amount of Stock on issue or authorise an alteration to the identity of the Stockholder.
3.9 Alteration: The Council may at any time with the prior written approval of the Trustee (and subject to any conditions which the Trustee may impose) and (subject to clause 16) the Stockholder concerned, alter any of the terms and conditions of any Stock which has been issued, including:
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3.9.1 Redemptions: accelerate the redemption or extend the redemption date of any Stock; or
3.9.2 Interest: alter the rate of interest payable on any Stock; or
3.9.3 Premium: agree to the payment of a premium on the redemption of any Stock; or
3.9.4 Alteration: alter (by addition, deletion or amendment) any of the other terms or conditions applicable to any Stock,
but so that no such acceleration, extension, alteration, agreement or payment or any other alteration is inconsistent with the provisions of this Deed or the Act.
3.10 Register: Any acceleration, extension, alteration, agreement or payment or any other alteration of any terms and conditions of any Stock shall be recorded in the Register in respect of the Stock affected and the Council may issue one or more replacement Stock Certificates in respect of such Stock embodying the terms and conditions of any such acceleration, extension, alteration, agreement or payment or any other alteration.
3.11 Payment of Instalments:
3.11.1 Non-Payment: The terms of issue of any Stock may provide such Stock is to be paid for by instalments. If the amount of any instalment is not duly paid to the Council, the Council at any time thereafter before such instalment is paid but only after giving to the Stockholder in default not less than 14 days' notice of its intention so to do may either:
(a) forfeit all instalments previously paid (except to the extent that such would constitute a penalty, and subject to clause 3.11.2) and cancel the allotment of the Stock in question, or reissue it; or
(b) charge and sue for the recovery of such unpaid instalment and charge and sue for the payment of interest thereon at the rate of three percent (3%) per annum above the rate payable on the Stock concerned from the date that such instalment became due until the date it is paid.
3.11.2 Cancellation: A statutory declaration by an officer of the Council that the allotment of Stock has been cancelled on the date stated in the declaration shall be conclusive evidence of the facts therein as against all persons claiming to be entitled to such Stock. If the Council cancels the allotment of such Stock the Council shall refund to the Stockholder concerned the instalments which the Stockholder had paid less the expenses of the Council in relation to the cancellation, but if the Stock is reissued the Council shall apply the proceeds of reissue first in payment of any expenses of reissue and next in satisfaction of the money due to the Council by the Stockholder concerned in respect of such Stock and the balance (if any) shall be paid to that Stockholder.
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4. REGISTER OF STOCK
4.1 Register: The Council shall take all reasonable steps to procure that the Registrar establishes and maintains, in accordance with the Registrar and Paying Agency Agreement and all applicable laws and this Deed, a separate Register of Stock to be kept at such place in New Zealand as the Council and the Registrar may from time to time agree.
4.2 Provisions as to Register: In respect of the Register:
4.2.1 Details: the following details shall be entered in the Register in respect of Stock:
(a) the principal amount of the Stock for the time being issued and outstanding (which, in the case of Security Stock, shall be its nominal amount);
(b) the date or dates of payment for Stock (when applicable);
(c) the rate of interest applicable;
(d) when interest is payable;
(e) the redemption date;
(f) the number and date of each Stock Certificate (if any);
(g) (except for Bearer Stock) all subsequent transfers or changes of ownership of Stock;
(h) (except for Bearer Stock) the names and addresses of the Stockholders and the date at which such names are entered on the Register;
(i) where Stock is no longer outstanding, particulars of its redemption, purchase, cancellation or forfeiture by the Council;
(j) any other additional matters to be entered in the Register in accordance with conditions required by the terms of any particular issue of Stock or by law; and
(k) any other particulars as may be required by the Council, the Registrar or the Paying Agent as agreed to by the Council and the Registrar;
4.2.2 Security Stock: any Security Stock shall be identified as such in the Register and the details set out in paragraphs 4.2.1(b), 4.2.1(c), 4.2.1(d) and 4.2.1(e) will not be required;
4.2.3 Change of Details: except in the case of Bearer Stock, any change of name or address of any Stockholder or any change in any other information required to be inserted in the Register in respect of any Stockholder shall forthwith be notified to the Registrar in writing by the Holder, or if a joint holding by all the joint Holders, and the Register shall then be altered accordingly;
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4.2.4 Replacement/Exchanges: there shall be entered in the Register details of any replacement Stock Certificates issued pursuant to clause 3.8;
4.2.5 Inspection: provided the Register is not closed, the Trustee, any Receiver and any Stockholder (or any person authorised in writing by any of such persons or any other person entitled by law) shall be at liberty at all reasonable times and upon giving reasonable notice during office hours to inspect the Register (but in the case of a Stockholder or any person authorised by a Stockholder, only to inspect the entries in the Register relating to that Stockholder) and (where required by the Registrar, except in the case of the Trustee or a Receiver, upon payment of a reasonable fee) to take copies of and extracts from such entries in the Register as that person is entitled to inspect;
4.2.6 Closure: subject to any applicable laws, the Council or the Registrar may from time to time, subject to the conditions relating to any particular issue of Stock, close the Register for any period or periods not exceeding 30 days in any one year;
4.2.7 Statutory Requirements: the Council shall use all reasonable endeavours to ensure that the Registrar complies with all statutory requirements relating to the keeping of the Register and the details to be entered therein;
4.2.8 Auditing: the Register shall be kept and audited to the satisfaction of the Trustee annually and (if applicable) as required by the FMC Act, or upon request in writing by the Trustee (which request shall only be made when the Trustee considers upon reasonable grounds that special circumstances relating to the maintenance of the Register warrant an audit, and so certifies in writing to the Council and the Registrar); and
4.2.9 Evidence: the Register shall, in the absence of manifest error, be conclusive evidence of the matters entered therein.
4.3 Form: The Register, Registered Stock, or any Stock Certificate in respect of Registered Stock, may be kept in book form, or in the form of a paper or card record, or by computer or any device by means of which information is recorded or stored. If the Register or any such Stock or Stock Certificate is kept by computer or any such device:
4.3.1 Deemed Entry: the recording or storing of any information therein shall be deemed to be the entry thereof in the Register or in respect of the Stock or Stock Certificate; and
4.3.2 Deemed Extract: any material subsequently derived from information so recorded or stored shall be deemed to be an extract from the Register or the Stock or Stock Certificate, as the case may be.
5. INDEMNITY BY STOCKHOLDER
5.1 Indemnity: Whenever, in respect of any Stock, in consequence of:
5.1.1 Death, Liquidation: the death, winding up or liquidation of the Holder of such Stock;
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5.1.2 Taxes: the non-payment of any income, or other, tax payable by or in respect of the Holder of such Stock;
5.1.3 Duties: the non-payment of any estate, stamp or other duty by the Holder or personal representatives or successors of the Holder of such Stock;
5.1.4 Breach: non-compliance by the Holder of such Stock with the provisions of the FMC Act, or any other law, or the provisions of this Deed (including the terms and conditions applicable to such Stock in respect of the offering, sale and transferring of Stock); or
5.1.5 Other: any other act of the Holder of such Stock or thing referable to the Holder of such Stock,
there shall by law be imposed any immediate or possible liability on the Council and/or the Trustee under or in respect of the FMC Act or any other law or to make any payment to the New Zealand Government or any taxation authority, the Council and/or, as the case may be, the Trustee shall in respect of such liability be indemnified (subject to section 105 of the FMC Act if applicable) by the Holder of such Stock, the personal representatives or estate, or out of the assets, or by the successors, of the Holder of such Stock.
5.2 Recovery of Sums Paid: Any money paid, or losses, damages, costs, fines or claims incurred, by the Council and/or, as the case may be, the Trustee in respect of any liability described in clause 5.1 may be recovered by action from the Holder of such Stock or such Holder's personal representatives or successors or estate or out of relevant assets as a debt due to the Council and/or, as the case may be, the Trustee.
5.3 No Prejudice to Rights: Nothing in this clause 5 shall prejudice or affect any right which any law may confer or purport to confer on the Council and/or, as the case may be, the Trustee, and as between the Council and/or, as the case may be, the Trustee and every Stockholder or the personal representatives, successors, estate or assets of any Stockholder (wherever constituted or situated) any right which such law confers on the Council and/or, as the case may be, the Trustee shall be enforceable by the Council and/or, as the case may be, the Trustee.
6. SECURITY STOCK PROVISIONS
6.1 Issue:
6.1.1 Terms: Stock issued in accordance with this Deed may be issued as Security Stock which shall be issued as a continuing security for the payment on demand or otherwise of any present or future debts, liabilities, advances and other accommodation or obligations of whatever nature, and whether or not pursuant to any one or more Facilities, of or to or for or on behalf of or at the request of the Council (whether by way of indemnity, guarantee or otherwise) generally or as mentioned in the relevant Security Stock Certificate (if one is issued), but in any case, only to the extent that such is lawfully entered into by the Council.
6.1.2 Nominal Amount: Any Security Stock Certificate which is issued shall state a nominal amount, which will not limit the
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amount secured, but will be relevant for the purposes of determining priority in accordance with clause 6.3.
6.1.3 Transferability: Security Stock shall be transferable to the same extent as the debts, liabilities, advances or other accommodation or obligations to which it relates.
6.2 Validity of Security Stock: Security Stock issued pursuant to clause 6.1.1 shall for all purposes and on all occasions be deemed to be validly issued to each Holder thereof as security for the payment of the accommodation or obligations referred to in clause 6.1.1 (but subject to clause 6.3), provided that if the amount of such accommodation or obligations is less than the nominal amount of such Security Stock held then such Holder shall not be liable solely by virtue of that fact to make any payment to the Council or the Trustee in respect of the Security Stock held by it or be obliged to make any further advance or afford any further accommodation to the Council.
6.3 Priority of Security Stock: Stock issued as Security Stock pursuant to clause 6.1.1 shall at all times, except where otherwise agreed between the Council and the Trustee (including by agreeing wording in the relevant Stock Certificate), be held upon and subject to the following conditions (which shall, or shall be deemed to, be mentioned, summarised or referred to in every Security Stock Certificate, with the necessary amendments):
6.3.1 Priority Total Amount: notwithstanding anything to the contrary contained or implied in this Deed, in any distribution to the Stockholders pursuant to the provisions of clause 15 the Holder shall be entitled to payment pari passu with other Stockholders under clause 15.1.6 in respect of not more than that Stockholder's Priority Total Amount,
PROVIDED THAT:
(a) Priority Principal Amount: the principal in respect of which a Stockholder shall be entitled to payment pari passu with other Stockholders under clause 15.1.6 shall be limited at any date (the relevant date) to the lesser of:
(i) the aggregate amount (as finally determined) of all liabilities, advances, and other accommodation or obligations, in respect of which the Security Stock was issued (as determined in accordance with clause 6.1.1), including capitalised interest and any fees, commissions or expenses, owing by the Council to the Holder of the Security Stock at the relevant date but excluding any uncapitalised interest owing at such date; and
(ii) the nominal amount of that Security Stock held,
(which lesser amount is, except where otherwise agreed between the Council and the Trustee (including by agreeing wording in the relevant Stock Certificate), the Priority Principal Amount);
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(b) Priority Interest Amount: the interest in respect of which a Stockholder shall be entitled to payment pari passu with other Stockholders under clause 15.1.6 shall be all interest (except to the extent that it is capitalised into the Priority Principal Amount) payable to it on principal secured by that Stock (up to the Priority Principal Amount) but excluding any interest which has been due and owing since a date more than six months prior to the Date of Enforcement (which amount is, except where otherwise agreed between the Council and the Trustee (including by agreeing wording in the relevant Stock Certificate) the Priority Interest Amount);
(c) Excess: all amounts owing to a Stockholder in respect of which Security Stock was issued but which do not form a part of the Priority Total Amount shall rank for payment subsequent to the Priority Total Amounts of other Stockholders, but pari passu with any amounts payable under this clause 6.3.1(c) in respect of other Stockholders.
6.4 Selection of Priority Principal Amount: If the amount referred to in clause 6.3.1(a)(i) exceeds the amount referred to in clause 6.3.1(a)(ii), the Stockholder may, in its sole discretion, determine which of the liabilities, advances, accommodation and obligations secured by the Security Stock shall be included as the Priority Principal Amount, and the interest referred to in clause 6.3.1(b) will be calculated on this basis.
6.5 Issue of Second Ranking Stock: Stock may be issued on a second- ranking basis. At the request of the Council the Trustee may, without the consent of the Stockholders, concur with the Council in making any variation or addition to this Deed, the conditions or the form of the Stock Certificates (including, if desirable, approving a new form of Stock Certificate and new conditions applicable to second-ranking Stock) as the Trustee and the Council may agree in order to facilitate the issuing of second-ranking Stock or make provision for outstanding Stock to be in second-ranking form.
7. BEARER STOCK
7.1 Issue: Stock may be issued in bearer form. At the request of the Council the Trustee may, without the consent of the Stockholders, concur with the Council in making any variation or addition to this Deed, the conditions or the form of the Stock Certificates (including, if desirable, approving a new form of Stock Certificate and new conditions applicable to Bearer Stock) as the Trustee and the Council may agree in order to facilitate the issuing of Bearer Stock or make provision for outstanding Stock to be in bearer form.
7.2 Trustee's Entitlements re Bearer Stock:
7.2.1 Bearer as Holder: Whenever in this Deed the Trustee is required or entitled to exercise a trust, duty or right by reference to the interests of Stockholders, the Trustee shall be entitled to assume that in relation to Bearer Stock the bearer of the Stock Certificate in respect of the Bearer Stock is the Holder of such Bearer Stock and that each Holder thereof is also the holder of all coupons or
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other instruments relating to interest pertaining to such Bearer Stock.
7.2.2 No Liability: The Trustee shall not be liable to the Council or any Stockholder or any holder of any such coupons or other instruments by reason of having accepted as valid or not having rejected any Stock Certificate in respect of the Bearer Stock or coupon or other such instrument purporting to be such and subsequently found to be not authentic.
8. ACKNOWLEDGEMENT OF INDEBTEDNESS AND COVENANT TO PAY
8.1 Acknowledgement of Indebtedness and Covenant to Pay:
8.1.1 Acknowledgement: The Council acknowledges its indebtedness to the Trustee, on behalf of the Stockholders, in respect of the Principal Money outstanding from time to time in respect of the Stock and interest owing thereon and any other sums forming part of the Secured Money represented by such Stock, and covenants with the Trustee to pay such indebtedness to the Trustee when due, in the currency and manner in which it is payable and, at such place as the Trustee directs by notice in writing.
8.1.2 Payment to Stockholders: Notwithstanding the provisions of clause 8.1.1, the Council shall, unless and until requested otherwise by the Trustee or prevented by law, pay all Principal Money and interest in respect of the Stock and any other sums forming part of the Secured Money represented by such Stock to the Stockholders in accordance with the terms and conditions of issue of the Stock. Each such payment shall operate as payment to the Trustee in satisfaction, to the extent of the payment, of the indebtedness of the Council acknowledged in this clause 8.1.
8.1.3 First Payee: Notwithstanding the provisions of clause 8.1.2, if by the terms of issue of any Stock the first of any payment of interest thereon is payable only to the person to whom such Stock was issued (whether or not such person is the registered Holder of such Stock at the date of the first payment of interest), then payment of interest to such person in accordance with the said terms of issue shall operate in satisfaction of the obligations of the Council in regard to such payment of interest under clause 8.1.2.
8.1.4 Satisfaction: Notwithstanding any of the provisions of this Deed or of any Stock or Stock Certificate, any payment by the Council from time to time in respect of the Stock made to the Trustee shall, to the extent of such payment, satisfy all obligations of the Council to make such payment.
8.2 Unclaimed Payments:
8.2.1 Treatment: If any payment made to any Stockholder pursuant to clause 8.1.2 or 8.1.3 at the Stockholder's last Registered Address is returned unclaimed and remains unclaimed for a period of three months, then the amount of that payment shall (unless notice of a change of Registered Address has in the meantime been received by the Council or the Registrar) be held by, or on behalf of, the Council in a separate trust account
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designated for such purpose but without any liability to invest the same or to pay interest thereon.
8.2.2 Entitlement: The person or persons who are entitled to those payments shall be entitled to payment upon providing to the satisfaction of the Council sufficient evidence of such entitlement, and details of any such payment so made shall be given to the Trustee. Any money unclaimed for six years or longer shall be forfeited in accordance with the Unclaimed Money Act 1971.
8.3 Right to Deduct Withholding and Other Taxes:
8.3.1 Deduction: The Council, or the Paying Agent on behalf of the Council, may (subject to any specific conditions to the contrary relating to any particular issue of Stock or unless and except to the extent that a Stockholder has provided to the Council evidence satisfactory to the Council that such Stockholder is entitled to the benefit of any exemption therefrom) deduct from any amount payable to, or for the benefit of, a Stockholder (including a Stockholder of Bearer Stock) the amount of any withholding, or other, tax required to be deducted in respect of that amount under the laws of New Zealand. Where any deduction has been made and the amount of it accounted for by the Council, or the Paying Agent on behalf of the Council, to the Commissioner of Inland Revenue or other appropriate authority and the balance of the amount payable has been paid to, or for the benefit of, the Stockholder concerned, the full amount payable to such Stockholder shall be deemed to have been duly paid and satisfied by the Council.
8.3.2 Approved Issuer Levy: Stockholders to whom such is relevant may in writing request the Council, or the Paying Agent on behalf of the Council, to advise the basis (if any), or may otherwise respond to any indication by the Council, or the Paying Agent on behalf of the Council, from time to time of the basis upon which, the Council, at no cost to itself, is prepared from time to time to deduct and pay an approved issuer levy (within the meaning of section 86F of the Stamp and Cheque Duties Act 1971) as an alternative to the exercise by the Council of its rights as referred to in clause 8.3.1.
9. CHARGES BY COUNCIL
9.1 Charge:
9.1.1 Charged Assets: To secure the due payment of the Secured Money and its performance of and compliance with the Secured Obligations, the Council charges, and grants a security interest (within the meaning, and for the purposes, of the PPSA), in favour of the Trustee on behalf of the Stockholders, all its right, title and interest (present and future, legal and equitable) in and to its Charged Assets with the intent that the Charged Assets shall, to the fullest extent permitted by law, be security for the due payment of all of the Secured Money and the performance of and compliance with the Secured Obligations.
9.1.2 Continuing Security: Each such charge and security interest by the Council is and shall be a continuing security for the payment of the Secured Money and the performance of and compliance
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with the Secured Obligations, in each case as provided for in clause 9.1.1.
9.2 Floating Charge: Each charge by the Council pursuant to clause 9.1 as regards its Charged Assets (to the extent that it is not a security interest under the PPSA) is a floating charge, and in either case until the Date of Enforcement (upon which date such charge shall become fixed in respect of such of the Charged Assets as are subject to action by the Trustee pursuant to clauses 13.1.2, 13.1.3 or 14.1) the Council shall be in no way hindered or prevented from dealing with (whether or not in the ordinary course of its activities) all or any part of its Charged Assets and the Trustee shall, at the request of the Council, execute and deliver all documents which may reasonably be necessary or desirable to permit such dealing by the Council.
9.3 First Charge: Each charge by the Council pursuant to clause 9.1 is, subject to any prior charge created pursuant to clause 9.4, a first ranking charge.
9.4 Other Charges: The Council covenants with the Trustee that, without the prior written consent of the Trustee, it will not, for so long as any Stock is outstanding, create, allow to come into existence or permit to subsist any charge over all or any part of its Charged Assets ranking:
9.4.1 Competing: in priority to, or pari passu with, the charges in favour of the Trustee under this Deed; or
9.4.2 Subsequent: after the charges in favour of the Trustee created under this Deed, unless by the specific provisions of such charge (and, if considered necessary by the Trustee, by a separate priority agreement) the priority thereover of the said charges in favour of the Trustee as a continuing security is expressly reserved to the reasonable satisfaction of the Trustee.
9.5 Further Assurance:
9.5.1 Assurances: The Council shall, to the extent permitted by law, execute and do all registrations, assurances and things which the Trustee may reasonably require for perfecting the security intended to be created by this Deed. Without limiting the foregoing, the Council shall, to the extent permitted by law, do all things and provide all information which the Trustee reasonably considers is desirable, in order:
(a) to perfect, preserve or otherwise protect the Charged Assets or the security intended to be created under and by this Deed, and the priority of that security as contemplated by this Deed;
(b) for the Trustee to register and maintain (including to renew before expiry) one or more financing statements in relation to the security interest in the Charged Assets created or provided for by this Deed;
(c) to remove any financing statement which is registered against the Council in relation to any security which is not permitted by this Deed or otherwise consented to by the Trustee in writing.
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9.5.2 Realisation: The Council shall, to the extent permitted by law, from time to time and at all times after the Date of Enforcement execute and do all registrations, assurances and such things (including, without limitation, in respect of the assessing of rates once set) which the Trustee may reasonably require for taking possession of the Charged Assets and facilitating the realisation of the Charged Assets and for exercising all the trusts and rights conferred on the Trustee or any Receiver by this Deed.
9.5.3 Execution: Without limiting the generality of clause 9.5.1, the Council shall, to the extent permitted by law following the Date of Enforcement, execute all mortgages, transfers, conveyances, assignments and assurances of the Charged Assets whether to the Trustee or its nominees and shall, to the extent permitted by law, perform or cause to be performed all acts and things requisite or reasonably desirable according to law for the purpose of giving effect to the carrying out or exercise of any of the said trusts and rights and shall, to the extent permitted by law, give all notices, orders and directions which the Trustee may reasonably consider expedient.
9.6 Attachment not Delayed: Any security interest created by this Deed to which the PPSA applies shall attach, in the case of:
9.6.1 Present: any present Charged Assets, from when the Council first signs or assents to this Deed in one of the ways specified in section 36(1)(b) of the PPSA; or
9.6.2 After-Acquired: any after-acquired Charged Assets, from when the Council acquires any rights in those assets.
The Council acknowledges and agrees that there has been no agreement between the Council and the Trustee that the attachment of any security interest to which the PPSA applies shall be at a time other than that provided in this clause.
9.7 Quiet Enjoyment: Subject to the provisions of this Deed and to the charges upon the Charged Assets contained in this Deed, the Trustee and the Stockholders shall until the Date of Enforcement permit the Council to hold and enjoy the Charged Assets and all other assets and to receive and apply as it thinks fit all income and Proceeds arising from the Charged Assets and to carry on with the Charged Assets any of its activities.
10. COVENANTS BY COUNCIL
10.1 Continuing Covenants: The Council covenants with the Trustee that it shall, subject to the Act and to its rights to withhold information pursuant to the Information and Meetings Act, at all times at which any Stock is outstanding, except as otherwise permitted by the Trustee:
10.1.1 Comply with Act: duly comply with all the requirements of the Act with respect to the keeping and filing of reports, accounts and statements and registration of charges (including this Deed);
10.1.2 Records: procure that the financial statements (within the meaning of clause 29 of Schedule 10 of the Act) and other records of the Council are audited in accordance with any statutory requirements and are (subject to section 40D(4) of the Receiverships Act) at all reasonable times (whether kept at its
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principal office or any other place or places in New Zealand) open for inspection by the Trustee and any Receiver, or any person properly appointed by the Trustee or the Receiver and that where the FMC Act applies those records will be retained by the Council for a period of at least seven years after the date on which they are made or the date of completion of the transaction to which they relate (whichever is the later);
10.1.3 Notice of Defective Stock Issuance Certificate: forthwith give notice in writing to the Trustee if any event occurs or any matter or thing comes to the notice of the Council which would cause any current Stock Issuance Certificate to be materially defective;
10.1.4 Compliance with FMC Act: duly comply with the provisions of the FMC Act so far as they may be applicable to the issue of any Stock, and prior to the issue of any product disclosure statement as is required by the FMC Act in respect of any Stock forward a draft copy thereof to the Trustee for its approval and an advance copy of any register entry information under the FMC Act in respect of any Stock the subject of a regulated offer under the FMC Act;
10.1.5 Details of Security Stock: whenever requested by the Trustee deliver to the Trustee within ten business days from the date of such request being received by the Council a certificate as to the amount owing in respect of Security Stock as known to the Council;
10.1.6 Notification of Enforcement Event: notify the Trustee immediately in writing of the occurrence of any Enforcement Event giving full details of any action that has been taken (or is to be taken) as a result; and
10.1.7 Refund Trustee for Expenditure: permit the Trustee or any Receiver or other person properly appointed by the Trustee under this Deed, after giving at least five business days' notice to the Council, and the Council having within that time failed itself to take appropriate action, to make any payments that may in the reasonable opinion of the Trustee be rendered necessary or expedient by reason of any default on the part of the Council in performing any of the covenants contained in this Deed in that regard, and will on demand repay to the Trustee all money expended by the Trustee for any such purpose and, pending such repayment, all money so expended (with interest not exceeding the overdraft rate charged by the Trustee's bankers) shall, to the extent permitted by law, from the date of expenditure be a charge on the Charged Assets and form part of the Secured Money and the Council will, to the extent permitted by law, on demand pay and satisfy and obtain the release of any liabilities to which the Trustee or any such person may become subject consequent upon the execution of any of the Trustee's rights conferred by this Deed.
10.2 Reporting Covenants: The Council covenants with the Trustee that it shall, subject to the Act and to its rights to withhold information pursuant to the Information and Meetings Act, at all times at which any Stock is outstanding, except as otherwise permitted by the Trustee:
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10.2.1 Long Term Plan, Annual Plan and Annual Report and Liability Management Policy: as soon as each is adopted by the Council within the terms of sections 93, 95, 98 and 102(2)(b) of the Act respectively, and in any event within one month of each such adoption, deliver to the Trustee a copy of each of the Annual Plan and the Annual Report for the forthcoming, and previous, financial years respectively and (where not already delivered to the Trustee) the most recent Long Term Plan and the Liability Management Policy (within the meaning of those sections);
10.2.2 Interim Financial Information: promptly after such is prepared in each year, provide to the Trustee a copy of such financial information as the Council may have prepared for external dissemination as to its financial position as at the end of the first six months of each of its financial years;
10.2.3 Amendments: as soon as the Council has approved and adopted any material amendment to any such Long Term Plan or Liability Management Policy, provide details of that amendment to the Trustee;
10.2.4 Reporting Certificate: as soon as reasonably practicable, but in any event no later than 4 months after the end of each of the Council’s financial years and no later than 2 months after the end of each of the Council’s financial half-years, and, if required by the Trustee, each other financial quarter, and within 21 days of receipt of a written request by the Trustee (which request may only be made where the Trustee certifies that it has reasonable grounds to believe that the Council is not complying with its obligations under this Deed), deliver to the Trustee a completed and signed Reporting Certificate;
10.2.5 Information on Request: on request by the Trustee, provide to the Trustee, any agent of the Trustee or a Receiver, any information which the Trustee reasonably requires with respect to matters relating to the financial statements (within the meaning of clause 29 of Schedule 10 to the Act) of the Council, other records of the Council, the Charged Assets and to the financial position of the Council;
10.2.6 Auditors' Reports:
(a) at the same time as it furnishes its Annual Report under clause 10.2.1, provide a separate report by the Auditors addressed to the Trustee stating:
(i) whether or not in the performance of their duties as auditors they have become aware of any matter which in their opinion is relevant to the exercise or performance of the powers or duties conferred or imposed on the Trustee and if so, giving particulars thereof;
(ii) whether or not their audit has disclosed any matter (and if so, particulars thereof) calling in their opinion for further investigation by the Trustee in the interests of the Stockholders;
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(iii) that they have perused the certificate (if any) given on behalf of the Council after the end of the relevant financial year pursuant to clause 10.2.4 and that so far as matters which they have observed in the performance of their duties are concerned the statements made in such certificate are correct;
(iv) whether or not the Council or its agents (including the Registrar) have duly maintained the Register in accordance with the provisions of this Deed; and
(v) as at the end of each relevant financial year:
(aa) the amount of the Stock showing separately how much is Security Stock and how much, if any, is Bearer Stock;
(bb) the Principal Money owing or secured under the Stock, distinguishing between Security Stock and other Stock;
(cc) whether or not from normal audit tests they have conducted they are satisfied that all Principal Money due and payable on the Stock has been paid or otherwise satisfied and that all interest due and payable on the Stock has been paid; and
(b) where the FMC Act applies in respect of any Stock:
(i) provide the Trustee with a copy of any report, financial statement or certificate which the Auditors have issued in respect of the Council or which is otherwise required to be provided to the Trustee pursuant to the FMC Act;
(ii) procure that, if the Auditors become aware of any matter that is relevant to the exercise or performance of the rights or duties of the Trustee, the Auditors shall, within seven business days of becoming aware of the matter, report the matter to the Trustee; and
(iii) on request of the Trustee provide to the Trustee all information relating to the Council relevant to the exercise of the Council's rights and duties in respect of this Deed;
10.2.7 Furnish Copy of Register: provided the Register is not closed at the relevant time, furnish upon request to the Trustee a copy of the Register;
10.2.8 Name Change: notify the Trustee as soon as is reasonably practicable, and in any event within five business days, of any change in the Council's name.
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11. POWERS OF AND OTHER PROVISIONS RELATING TO TRUSTEE
11.1 Enforcement of Holders’ rights
11.1.1 The Trustee holds its rights and benefits under this Deed (including the right to enforce the Council’s duty to repay or pay interest under the terms of any Stock, the benefit of the security created under clause 9 and the right to enforce the Council’s obligations and duties under the terms of the Stock, this Deed and, where applicable, the FMC Act) in trust for, and for the benefit of, the Holders.
11.2 Trustee's Remuneration:
11.2.1 General: The Council shall pay to the Trustee by way of remuneration for its services as trustee such remuneration as shall from time to time be agreed between the Council and the Trustee.
11.2.2 Expenses: Without limiting the generality of the other provisions of this Deed, the Council shall also, to the extent permitted by law, pay on demand all expenses (including travelling expenses and expenses incurred in the taking of any expert advice deemed necessary or expedient by the Trustee) reasonably incurred by or on behalf of the Trustee in connection with:
(a) the exercise by the Trustee of any right or duty conferred by this Deed on the Trustee;
(b) any breach or default in the observance or performance by the Council of any provision of this Deed or the PPSA (and not excluded by this Deed);
(c) any application under the trusts and provisions of this Deed for its consent to, or approval or execution of, any act, document or matter;
(d) any action taken by or required of the Trustee under this Deed;
(e) the convening and holding, and carrying out of any directions or resolutions, of any meeting of the Stockholders; and
(f) any other expenses agreed by the Council from time to time.
11.2.3 Continuation: The remuneration and other payments payable under this clause 11.2 shall continue to be payable until the trusts contained in this Deed are finally wound up and whether or not a Receiver has been appointed or the trusts contained in this Deed are in the course of administration by or under the direction of a court.
11.2.4 Payment: All expenses incurred and payments made by the Trustee or any Receiver in the lawful exercise of the rights conferred by this Deed and all remuneration payable to the Trustee or to any Receiver, shall be payable by the Council
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promptly following demand and, while unpaid following demand, shall, to the extent permitted by law, be a charge on the Charged Assets and form part of the Secured Money, and shall be satisfied before any payment is made to the Stockholders in respect of the Secured Money.
11.3 Powers of Investment: Any money held by the Trustee and subject to the trusts of this Deed may, to the extent permitted by law, at the discretion of the Trustee, be invested in the name of the Trustee or its nominee in any investment whatsoever, with power to vary such investments for others of a like nature and to deal with, or dispose of, such investments.
11.4 Applications to Court: The Trustee may, on or at any time after the security created by this Deed has become enforceable (but subject to clause 13.3), apply to a court for an order that the rights and trusts contained in this Deed be exercised under the direction of the court and for the appointment of a Receiver of all or any part of the Charged Assets and for any other order or direction in relation to the execution and administration of the rights and trusts contained in this Deed as the Trustee may deem expedient. The Trustee may in its capacity as Trustee assent to, approve of or oppose any application to a court made by or at the instance of any of the Stockholders and shall, to the extent permitted by law (including, for the avoidance of doubt, section 105 of the FMC Act), be indemnified by the Council against all reasonable costs, charges and expenses incurred by and in relation to any such application or proceedings (except where such alleges, or relates to, any fraud, default, negligence or wrongful action or omission by the Trustee).
11.5 Waiver by Trustee: Except in respect of any event referred to in clauses 12.1.1(a) or 12.1.1(b), the Trustee may, subject to any direction pursuant to clause 13.1, and if so directed by an Extraordinary Resolution, at any time and from time to time by notice in writing to the Council waive, in whole or in part, for a specified period or indefinitely and on such terms and conditions (if any) as it deems expedient, any breach or anticipated breach by the Council of any provision expressed or implied in this Deed provided that the Trustee, unless so directed, is satisfied that the interests of the Stockholders will not be materially prejudiced thereby, but such waiver shall not prejudice the rights of the Trustee or the Stockholders in respect of any other breach.
11.6 Supplemental Powers of Trustee: In addition to the provisions of law relating to trustees and to facilitate the discharge of its duties under this Deed, but subject always to section 105 of the FMC Act, it is expressly declared that:
11.6.1 Reliance: the Trustee may, providing that it acts bona fide, without liability for loss, obtain, rely and act on, or decline and elect not to act on:
(a) the opinion or advice of, or any information obtained from, any barrister, solicitor, valuer, stockbroker, surveyor, auctioneer, chartered accountant or other expert whether obtained by any Stockholder or by the Trustee or otherwise, and although the same may subsequently be found to contain some error or not be authentic;
(b) a certificate signed by the Chief Executive on behalf of the Council as to any fact or matter prima facie within
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the knowledge of such person or that any particular dealing, transaction, step or thing is expedient or commercially desirable and not detrimental to the interests of the Stockholders as sufficient evidence of such fact or matter or the expediency of such dealing, transaction, step or thing; or
(c) the statements contained in any certificate, resolution or report given under this Deed as conclusive evidence of the facts stated therein;
11.6.2 Reference on Record: the Trustee shall not be responsible for acting or relying upon any resolution purporting to have been passed at any meeting of the Stockholders, or any class thereof, in respect of which a proper record has been made and which the Trustee believes to have been properly passed even though it afterwards appears that such resolution is not binding or valid by reason of a defect in the convening of the meeting or the proceedings of the meeting;
11.6.3 Application: the Trustee shall not be responsible for, or be bound to see to the application of, the money subscribed by applicants for, or subscribers of, the Stock;
11.6.4 Title: the Trustee shall not be bound or concerned to examine or enquire into, or be liable for any defects or failure in, the title of the Council to the Charged Assets, whether such defects or failure might have been discovered upon an examination or enquiry and remedied or not;
11.6.5 Discretion: except as otherwise expressly provided in this Deed, the Trustee shall have sole discretion as to the exercise of all trusts and rights vested in it by this Deed and as to the commencement, prosecution, variation, discontinuance or compromise of any action, proceeding or claim and, provided it has acted with reasonable care and diligence, it shall not be responsible for any loss or cost that may result from the exercise or non-exercise thereof;
11.6.6 Delegation: subject to clause 11.6.7, the Trustee, whenever it thinks it expedient in the interests of the Stockholders to do so, may:
(a) delegate (with the prior written approval of the Council, except where the security created by this Deed has become enforceable) at any time, to any person, any of the trusts or rights vested in the Trustee by this Deed which cannot conveniently be exercised by it or through its employees, upon such terms and conditions and under such regulations (including power to sub- delegate) as the Trustee may think fit;
(b) authorise (with the prior written approval of the Council, except where the security created by this Deed has become enforceable) any person it thinks fit to act as its representative at any meeting of Stockholders;
(c) instead of acting through its permanent employees employ, with the prior written approval of the Council
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(which shall not be unreasonably withheld), in the carrying out of any of the trusts or rights vested in the Trustee by this Deed and pay, at the expense of the Trustee, an agent to transact all business and do all acts required to be done under this Deed including the receipt and payment of money;
(d) delegate from time to time and at any time to any one of its officers any of the trusts or rights vested in the Trustee by this Deed which, owing to the place in which they are to be or may require to be exercised, cannot conveniently be exercised by the Trustee;
(e) in addition to the exercise of the rights contained in clause 11.4, apply to a court for directions in relation to any question arising, either before or after the Date of Enforcement; and
11.6.7 No delegation of supervisor functions: notwithstanding any provision of this Deed, the Trustee shall not delegate any of its functions set out in section 111(1) of the FMC Act (if applicable) except as expressly permitted by the FMC Act or as permitted by, and then subject to, conditions imposed under the Financial Markets Supervisors Act.
11.6.8 Attendance at Meetings: the Trustee, and any representative of the Trustee, shall be entitled to attend any meeting of the Council and to be heard at any such meeting on any part of the business of the meeting which concerns the Trustee as such or the Stockholders.
11.7 Indemnity of Trustee:
11.7.1 Indemnification: Without prejudice to the right of indemnity by law given to trustees, the Trustee and every Receiver, attorney, manager, agent or other person appointed by the Trustee pursuant to this Deed shall (subject to section 105 of the FMC Act and to the provisions of the Act and the Receiverships Act) be indemnified out of the Charged Assets in respect of all liabilities and expenses incurred in the execution or purported execution of the rights or trusts of this Deed and against all actions, proceedings, costs, claims and demands in respect of any matter or thing done or omitted, or in any way relating to the provisions of this Deed or its licensee obligations (as defined in section 4 of the Financial Markets Supervisors Act), other than a claim arising out of a wilful default, wilful breach of trust, negligence or breach of duty on the part of the Trustee or any such attorney, manager, agent or other person.
11.7.2 Retention: The Trustee may retain and pay out of any money in its hands arising pursuant to this Deed or from the trusts of this Deed all sums necessary to effect such indemnity and also the remuneration and disbursements of the Trustee as provided for in this Deed, and the Trustee shall, to the extent permitted by law, have a charge on the Charged Assets for all money payable to it under this clause 11.7 or otherwise however properly arising out of or in connection with this Deed or the issue of the Stock.
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11.8 Fiduciary Relationship:
11.8.1 Stockholder: Nothing in this Deed shall be deemed to prohibit the Trustee or any related company of the Trustee (all of whom in this clause 11.8 where the context permits are included in the expression the Trustee), or its directors, or officers, from being a Stockholder or the holder of any other security (including any Stock issued under this Deed) issued by the Council or from acting in any representative capacity for a Stockholder, or other such holder.
11.8.2 Own Account: Without limiting the generality of clause 11.8.1, it is expressly declared that the Trustee may so act on its own account or as executor, administrator, trustee, receiver, committee, attorney or agent or in any other fiduciary, vicarious or professional capacity and the acting in such capacity shall not be deemed a breach of any of the obligations under, or arising in respect of, this Deed or otherwise imposed or implied by law arising out of the fiduciary relationship between the Trustee and the Council, or between the Trustee and the Stockholders as the case may be.
11.8.3 Other Transactions: The Trustee shall not by reason of its fiduciary capacity be precluded from making any contracts or entering into any transactions with the Council or with itself as trustee in the ordinary course of the business of the Trustee or from undertaking any insurance, financial or agency service with the Council or for itself as trustee, and the Trustee shall not be accountable either to the Council or the Stockholders for any profits arising from such contracts, transactions or services.
11.9 Represent Stockholders: The Trustee may at any time, either of the Trustee's own volition or pursuant to any direction or in accordance with any policy given or indicated by any meeting of Stockholders, represent Stockholders in any investigation, negotiation, action, transaction or proceedings concerning the interests of the Stockholders generally in the affairs of the Council or in the enforcement of the rights of the Stockholders or any of them, and in particular in obtaining legal, accountancy or other professional advice as to the rights of the Stockholders or the Trustee, the duties of the Trustee and the liabilities of the Council and in enforcing the rights of the Stockholders or the Trustee under any demand, action or proceeding.
11.10 Retirement: Subject to applicable law, the Trustee may without assigning any reason therefor, and shall if requested to do so pursuant to an Extraordinary Resolution or if requested by the Council, retire at any time by giving 90 days (or such shorter period as the Council may agree) notice in writing to the Council of its intention to do so, subject to the due appointment of a new Trustee previously approved in writing by the Council and the transfer to such new Trustee of the money, records and investments held by the Trustee under this Deed.
11.11 Notice to Stockholders: Upon receipt of a notice given under clause 11.10, the Council shall promptly give notice of its contents to Stockholders appearing in the Register as at the date of receipt.
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11.12 Appointment of New Trustee:
11.12.1 Power to Appoint: The power of appointing a new trustee or trustees of this Deed shall be vested in the Council, but no trustee shall be appointed unless such appointment is first approved by an Extraordinary Resolution. Upon the Trustee notifying the Council under clause 11.10 that it is to retire, the Council shall promptly call a meeting of the Stockholders for the purpose of approving an appointment of a new trustee or trustees, and if approval is given the Council shall exercise its power of appointment.
11.12.2 Failure to Appoint: In the event that the Council, within 30 days of receiving notice of the Trustee's intention to retire, fails to call a meeting of the Stockholders as aforesaid, or to exercise the power vested in it by this Deed after receiving the approval referred to in clause 11.12.1 for appointing a new trustee or new trustees, then in either case the Stockholders may by Extraordinary Resolution exercise such power to the exclusion of the Council.
11.13 Additional Powers of Trustee: The rights conferred upon the Trustee by this Deed shall be in addition to any rights which may from time to time be vested in trustees by law and to any rights which may from time to time be vested in the Trustee as a Stockholder.
11.14 Trustee's Duty of Care: None of the provisions of this Deed shall in any case in which the Trustee has failed to exercise reasonable care, skill and diligence, relieve the Trustee from, or indemnify the Trustee against, any liabilities which by virtue of any legislation or rule of law would otherwise attach to it in respect of any negligence, wilful default, or wilful breach of trust undertaking or breach of duty for which it may be liable in relation to this Deed.
11.15 Duties of Trustee: Notwithstanding any other provision of this Deed:
11.15.1 Breach: the Trustee shall exercise reasonable diligence to ascertain whether or not any breach of the terms of this Deed or of the terms of the Stock has occurred and, except where it is satisfied that the breach will not materially prejudice the security of the Stock or the interests of the Holders thereof, shall do all such things as it is empowered to do to cause any breach of those terms to be remedied; and
11.15.2 Available Assets: the Trustee shall exercise reasonable diligence to ascertain whether or not the assets of the Council that are or may be available, whether by way of security or otherwise, are sufficient or likely to be sufficient to discharge the amounts of the Stock as they become due, provided that except where otherwise required by law, the Trustee will be entitled to assume without special inquiry, that no such breach is occurring or has occurred, and that the assets of the Council are sufficient to discharge the amounts of Stock as they become due under and until the Trustee receives actual advice to the contrary, whether in the form of the information and reports provided to the Trustee pursuant to clause 10.2 or otherwise.
11.16 Trustee's Indemnity by Stockholders: If the Trustee receives a direction or request pursuant to an Extraordinary Resolution, in accordance with the
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provisions of this Deed the Trustee shall not be bound to comply with it unless the Trustee has first been indemnified (subject to section 105 of the FMC Act if applicable) to its satisfaction against any actions, proceedings, claims and demands to which the Trustee may be rendered liable and all costs, charges, damages and expenses which it may incur by doing so.
11.17 Not Bound to Give Notice: The Trustee shall not be bound to give notice to any person of the execution of this Deed.
11.18 Disclosure and Confidentiality: Except where the Trustee, in its reasonable opinion, considers it necessary for the purposes of this Deed to disclose such to Stockholders, or to any person referred to in clause 11.6.1(a), the Trustee shall treat, and maintain, as confidential all information which it receives from, or in respect of, the Council pursuant to this Deed.
12. ENFORCEMENT OF SECURITY ON DEFAULT
12.1 Enforcement Events: Subject to clause 11.5 and clause 13, the security created by this Deed shall become enforceable following the occurrence of any one or more of the following events, and while such is continuing unremedied or unwaived:
12.1.1 Non-Payment:
(a) default is made by the Council in the payment on due date or, where payable on demand, promptly following proper demand therefor (or on the expiration of any applicable grace period) of any Principal Money of the Stock, or on any earlier date that the Principal Money shall become payable to a Stockholder, and such default continues unremedied for two business days; or
(b) default is made by the Council for a period of seven business days in the payment of any interest on or secured by the Stock; or
(c) default is made by the Council for a period of 30 days after final demand in writing in the payment of any other material amount due and payable by the Council pursuant to this Deed;
12.1.2 Receivership: if a receiver, or receiver and manager, is appointed of (or the Council requests any such appointment), or an encumbrancer takes possession of or exercises its powers of sale in respect of, all or any material part of the Charged Assets unless the Council demonstrates to the satisfaction of the Trustee that such appointment or taking of possession or exercising of power will not have a material adverse effect on the ability of the Council to repay the Secured Money when such is due and payable; or
12.1.3 Material Default: if any material default not otherwise referred to in the preceding provisions of this clause 12.1 is made by the Council in the performance or observance of any other material covenant, condition or other provision binding upon the Council under this Deed (whether or not the Trustee has waived any prior similar default) and such default continues for more than 30 days
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after receipt by the Council of a notice in writing from the Trustee specifying the default and requiring such to be remedied.
12.2 Application of the PPSA: The Council and the Trustee:
12.2.1 Contracting Out: contract out of:
(a) section 120(1) of the PPSA;
(b) sections 108 and 109 of the PPSA to the extent that:
(i) "default" in terms of those sections may occur before the occurrence of an Enforcement Event and accordingly agree, for the purposes of clarification, that those two sections of the PPSA will not apply unless and until an Enforcement Event occurs and continues unremedied and unwaived; and
(ii) those sections may require that only a secured party with priority over all secured parties may enforce in the manner permitted by those sections (to the intent that the Trustee and the Council agree that the Trustee shall be entitled, subject to the terms of this Deed, to enforce pursuant to those sections regardless of whether or not the Trustee has priority over all other secured parties);
(c) section 114(1)(a) of the PPSA to the extent that that section obliges the Trustee to give any period of notice beyond that which the Trustee is obliged to give under clause 13.3;
(d) section 109(1)(b) and section 109(2) of the PPSA (except to the extent that the events referred to in those sections have led to the security created by this Deed becoming enforceable as provided for in clause 12.1); and
(e) section 133(1) of the PPSA.
12.3 Verification Statement: The Council waives its right to receive a copy of the verification statement in respect of a financing statement or financing change statement relating to any security interests created by this Deed until such time as the Council may request such.
12.4 Security Trust Deed: The Council agrees that this Deed is a security trust deed for the purposes of the PPSA, and consents to any registration of a financing statement in respect of the security interest created pursuant to this Deed disclosing that this Deed is a security trust deed.
13. TRUSTEE'S POWERS OF ENFORCEMENT OF SECURITY
13.1 Trustee's Powers to Act: At any time after the security created by this Deed has become enforceable (but subject to clauses 13.3, 13.5 and to the Act), and while it remains enforceable, the Trustee may, and shall forthwith upon being directed to do so by an Extraordinary Resolution, take one or more of the following steps:
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13.1.1 Accelerate: subject to the conditions or limitations applicable to any particular Stock, declare the whole or any affected part of the Stock and Secured Money to have become immediately due and payable, whereupon such money shall forthwith become due and payable;
13.1.2 Take Possession: enter into or take possession of all or any part of the Charged Assets;
13.1.3 Realise: either with or without taking possession sell, call in, collect and convert into money all or any part of the Charged Assets in such manner and for such consideration as the Trustee thinks fit;
13.1.4 Apply: apply in accordance with section 108 of the PPSA, Charged Assets in the form of Accounts Receivable, Money (as the term "Money" is defined in the PPSA) or Negotiable Instruments in or towards satisfaction of the Secured Money; and
13.1.5 Meeting: call a meeting of Stockholders for determining what action (if any) the Trustee should take in the circumstances.
13.2 Decrystallisation: At any time after the floating charge created by this Deed has taken effect as a fixed charge in respect of any part of the Charged Assets, it shall resume the status of a floating charge in respect of that part of the Charged Assets which the Trustee identifies in a notice to that effect to the Council.
13.3 Notice of Exercise of Powers: The powers conferred by clause 13.1 shall be exercisable by the Trustee without further notice to the Council. However, before exercising any of the powers contained in clauses 13.1.1 to 13.1.4 (the powers of conversion) the Trustee shall, except where it certifies in writing to the Council that, in its opinion, delay would imperil the interests of Stockholders or except upon the happening of any one or more of the events referred to in clauses 12.1.1(a), 12.1.1(b), 12.1.2 or 12.1.3, give written notice of its intention to the Council and shall not enforce the security created by this Deed or exercise the powers of conversion until the expiration of 14 days after the giving of such notice or if within such period the breach or event so specified is remedied to the reasonable satisfaction of the Trustee or the Trustee notifies the Council in writing that the particular breach or event relied upon no longer in the reasonable opinion of the Trustee detrimentally affects the security created by this Deed. However, if the Trustee has appointed a Receiver in accordance with clause 14.1, no further notice shall be required before exercising any other powers of conversion.
13.4 Power After Entry:
13.4.1 Take Action: After the Trustee has entered into possession, and until the whole of the Charged Assets have been applied, sold, called in, collected and converted under the powers of conversion, the Trustee may if it thinks fit (but subject to the Act, and except where precluded or limited by law) take such action in and with all or any part of the Charged Assets in such manner as it thinks fit. For this purpose the Trustee may employ such agents, managers, receivers, accountants and employees, upon such terms as to remuneration and otherwise as it thinks proper, and generally may (but subject to the Act, and except where
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precluded or limited by law) do or cause to be done all acts and things and may enter into such arrangements respecting all or any part of the Charged Assets as it could do if it were absolutely entitled to those assets and without being responsible for any loss or damage which may arise or be occasioned thereby PROVIDED ALWAYS THAT no action of the Trustee may prevent the provision of those services of the Council that are essential for the maintenance of public health and safety requirements and for the purposes of this clause an action of the Trustee shall be deemed not to prevent provision of the services mentioned above unless:
(a) that action necessarily results in that outcome; and
(b) the outcome is not more fairly attributable to the act or omission to act of persons outside the control of the Trustee.
13.4.2 Expenses: The Trustee shall by and out of the proceeds and income of the Charged Assets pay and discharge the expenses incurred in and about the exercise of any of the powers under clause 13.1 and clause 14, or otherwise in respect of the Charged Assets, and shall pay and apply the residue of the said proceeds and income in the manner provided in clause 15. The Trustee may for any such purpose, and for the purpose of payment to the Trustee of all sums for the time being owing to it (whether by way of remuneration or otherwise) advance, borrow or raise money on the security of all or any part of the Charged Assets in priority to the Stock and interest thereon and at the rate of interest, and on the terms, which the Trustee thinks fit.
13.5 Essential Services: The Council and the Trustee agree that the regime as set out in section 40D of the Receiverships Act shall be deemed to apply mutatis mutandis to any action taken by the Trustee in relation to any Charged Assets pursuant to the powers referred to in clause 13.1 as if the references in that section to "receiver" were references to the Trustee, and the provisions of this Deed shall be read accordingly.
14. APPOINTMENT OF RECEIVER
14.1 Appointment and Removal: At any time after the security created by this Deed has become enforceable, but subject always to clause 13.3, the Act and the Receiverships Act, the Trustee may in its discretion and shall upon being directed to do so by an Extraordinary Resolution, (and in any such case without any further notice to or consent on the part of the Council) appoint in writing one or more Receivers (whether severally, jointly or both) of all or any part of the Charged Assets with power from time to time to remove any Receiver so appointed and in case of removal, retirement or death to appoint another in his or her place. Any such Receiver may be appointed either before or after the Trustee has entered into or taken possession of all or any part of the Charged Assets.
14.2 Rights of Receiver: Following an appointment of a Receiver, the Receiver shall (subject to the provisions of the Act, and the Receiverships Act and except where precluded or limited by law) have power to do all or any of the following which are not specifically excluded by his or her appointment:
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14.2.1 Take Possession: take possession of, demand, collect, or get in all or any part of the Charged Assets and exercise the rights conferred on Receivers by the Act (and, in particular, section 115 of the Act), and the Receiverships Act, in respect of the Charged Assets;
14.2.2 Deal with Charged Assets: deal with and exploit all or any part of the Charged Assets in any manner;
14.2.3 Dispose of Charged Assets: dispose of or concur in the disposal of all or any part of the Charged Assets and any interest in the Charged Assets generally upon such terms and conditions as the Receiver may consider necessary or expedient;
14.2.4 Acquire Property: acquire an asset or an interest in an asset for inclusion in the Charged Assets;
14.2.5 Appoint Agents: appoint and employ officers, managers, employees, advisers, contractors or agents for any purpose and on the terms which the Receiver may consider necessary or expedient;
14.2.6 Borrow Money: advance money to, or borrow or raise money from, any person with or without a charge or other security interest over or affecting the Charged Assets;
14.2.7 Settle Disputes: bring, defend, submit to arbitration, negotiate, compromise, abandon or settle a claim or a proceeding, or make an arrangement or compromise, in relation to the Charged Assets;
14.2.8 Execute Documents: (subject to the Receiverships Act) execute or do, or cause or authorise to be executed or done, on behalf of or in the name of the Council or otherwise and under the common seal of the Council or otherwise, all agreements, acts or things which the Receiver may reasonably consider necessary or expedient in relation to the Charged Assets;
14.2.9 Give Receipts: give a receipt for money paid to or an asset received by the Trustee or Receiver (which receipt shall effectively discharge the payer or the person delivering that asset);
14.2.10 Delegate: delegate any of the rights conferred upon the Receiver under this Deed, the Receiverships Act, the Act or by law;
14.2.11 Authorise Transactions: generally carry out, or cause or authorise to be carried out, any transaction, scheme or arrangement whatever in relation to the Charged Assets which the Receiver may consider necessary or expedient; and
14.2.12 Incidental Rights: do or omit to do anything incidental to the rights contained in this clause 14.2.
The above rights of a Receiver, together with those referred to below, are in addition to and not in substitution for the rights conferred on receivers under statute or at law and are at all times subject to any restrictions imposed from time to time by the Act or the Receiverships Act, including sections 40D(1) and (4).
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14.3 Withdrawal: The Trustee may at any time give up possession of any Charged Assets and may at any time discontinue any receivership.
14.4 Receiver Agent of the Council: A Receiver is, to the extent permitted by the Act or the Receiverships Act, to be the agent of the Council, and the Council is to be solely responsible for his or her acts and defaults (including misconduct, negligence or default), but without prejudice to the Council's rights against the Receiver.
14.5 Receiver's Remuneration: The remuneration of a Receiver will be fixed by the Trustee (and may be, or include, a reasonable commission calculated by reference to the gross amount of all money received by the Receiver). Such remuneration is to be payable by the Council and, to the extent permitted by law, is to form part of the Secured Money and will accordingly be secured by the Charged Assets.
14.6 The Trustee and a Receiver: Any Receiver:
14.6.1 Rights: shall unless otherwise directed by the Trustee, have such rights as are conferred upon the Trustee by this Deed and are capable of being exercised by the Receiver as the Trustee may think expedient, and if the Trustee thinks expedient may have the power to sub-delegate the same;
14.6.2 Directions: shall in the exercise of his or her rights comply with any directions given by the Trustee;
14.6.3 Payment: shall (except as otherwise directed by the Trustee) pay all money he or she receives to the Trustee to be held by the Trustee on the trusts declared in clause 15;
14.6.4 Application: is to apply, for the purposes of this Deed, all money received from the Trustee arising from the Charged Assets and the Trustee may determine what funds the Receiver shall keep in hand;
14.6.5 Borrow: may, for the purpose of defraying any costs, losses, charges or expenses (including his or her remuneration) which shall be incurred by him or her in the exercise of rights vested in him or her, and for all or any other purposes of this Deed raise and borrow money by way of any transaction which is lawfully entered into by the Council on the security of all or any part of the Charged Assets either in priority to the Secured Money and the security created by this Deed as may be permitted by the Act or otherwise, at such rate or rates of interest and generally on such terms and conditions as he or she thinks fit (and no person lending any such money shall be concerned to enquire as to the propriety or purpose of the exercise of this power or to see to the application of any money so raised or borrowed) and for those purposes may execute and do all such assurances and things as he or she thinks fit PROVIDED ALWAYS THAT a Receiver shall not exercise any such power without first obtaining the written consent of the Trustee thereto but the Trustee shall incur no responsibility or liability to the lender or otherwise by reason of its giving or refusing such consent whether absolutely or subject to any limitation or condition.
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14.7 Trustee's Right to Sell Concurrently: The Trustee may, upon such terms as it thinks proper, join in exercising its rights under this Deed with any other secured creditor of the Council and in particular may on such terms as it thinks proper join in appointing a common Receiver of all or any part of the Charged Assets, subject to the Trustee retaining such priority as is enjoyed by it in respect of the Charged Assets but with liberty for the Trustee to make any arrangement it thinks proper for the purpose of ensuring the respective priorities.
14.8 No Liability as Mortgagee in Possession: The Trustee or any Receiver shall not be liable, by reason of an entry into possession of all or any part of the Charged Assets, to account as mortgagee in possession or for anything except actual receipts or be liable for any loss on reallocation or for any default or omission for which a mortgagee in possession might be liable.
14.9 Protection of Third Parties: No person dealing with the Trustee or any Receiver, or their respective agents, shall be concerned to enquire:
14.9.1 Enforceability: whether the security created by this Deed has become enforceable; or
14.9.2 Right Exercisable: whether any right exercised or purported to be exercised pursuant to this Deed has become exercisable; or
14.9.3 Money Due: whether any money remains due upon the security of this Deed; or
14.9.4 Conditions: as to the necessity or expediency of the conditions subject to which any sale shall be made; or
14.9.5 Property: otherwise as to the propriety or regularity of any exercise of the powers of conversion; or
14.9.6 Application: as to the application of any money paid to the Trustee or to any Receiver.
In the absence of fraud on the part of such person, such dealing shall, to the extent permitted by law, be deemed with respect to such person to be within the rights conferred by this Deed and to be valid and effectual accordingly, and the remedy of the Council in respect of any irregularity or impropriety whatever in the exercise of such rights shall be in damages only.
14.10 Receipt of Trustee or Receiver: Upon any exercise of the powers of conversion, and upon any other dealing or transaction under this Deed, the receipt of the Trustee or the Receiver for any money paid to them shall effectively discharge the payer, who need not be concerned to see to the application or be answerable for the loss or misapplication of such payment.
15. TRUSTS OF PROCEEDS OF ENFORCEMENT
15.1 Application: Subject always to the Act, the Receiverships Act and clause 15.5, all money arising from each exercise of the powers of conversion, and all money received under the covenant contained in this Deed for payment to the Trustee of the Principal Money and interest under the Stock, or under any rights conferred by this Deed upon a Receiver or upon the Trustee after the security created by this Deed has become
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enforceable and the Trustee has determined or become bound to enforce the same, shall be held and applied in the following order:
15.1.1 Remuneration and Costs: (subject to any direction made by any court under the Receiverships Act) in or towards payment or retention of all remuneration payable to the Receiver as provided in this Deed and the costs incurred by the Receiver, and the costs of obtaining appointment of the Receiver incurred by the Trustee or any other person who has incurred them; then
15.1.2 Preferred Claims: in payment of amounts (if any) payable in respect of claims by law to be preferred to claims under any charge over the Charged Assets; then
15.1.3 Essential Services: in or towards payment or retention of those amounts (if any) required to enable the Receiver to provide those services specified in section 40D(1) of the Receiverships Act as are applicable; then
15.1.4 Prior Charges: in or towards payment of, or provision for, any debts or liabilities (if any) secured by any charge or security interest having priority over the security created by this Deed in respect of the Principal Money and interest under the Stock (or, in the case of Security Stock, the Priority Total Amount of the Stock), in accordance with their respective priorities; then
15.1.5 Trustee: in or towards payment of, or provisions for, all amounts owing to the Trustee (including by way of indemnity) under this Deed; then
15.1.6 Priority Amounts: in or towards payment to the Stockholders, pari passu in proportion to the amounts actually or contingently owing to them, of the Principal Money in respect of the Stock (whenever issued) held by them (the Principal Money in respect of Security Stock for this purpose being the Priority Principal Amount) and interest thereon, as in any case entitled thereto PROVIDED ALWAYS that:
(a) the interest payable to each Holder of Security Stock shall be limited to the Priority Interest Amount;
(b) before making any payment referred to in paragraph (a) above, the Trustee shall, in the case of each Holder of Security Stock but subject to the following provisions, set aside an amount (or the proper proportion thereof in the event of the amount available for distribution and application in accordance with this clause in respect of the abovementioned amounts owing to the Stockholders respectively being less than one hundred cents in the dollar) equal to the aggregate of the contingent liabilities (if any) which are determinate or limited in amount forming part of the Priority Principal Amount in the case of that Security Stock, but so that the amount set aside under this paragraph (b) in respect of any Stockholder shall not, when aggregated with money paid by the Trustee to the Stockholder on account of principal, exceed the Priority Principal Amount for the relevant Stock;
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(c) in the event of all or part of a contingent liability being indeterminate or unlimited in amount, the Trustee shall, subject to the following provisions, set aside as referred to above such amount as shall be nominated by the Holder of the relevant Security Stock as its reasonable estimate of that contingent liability or the proper proportion thereof (in the event of the amount available for distribution and application in accordance with this clause in respect of the abovementioned amounts owing to the Stockholders respectively being less than one hundred cents in the dollar) as the case may be but so that the amount set aside under this paragraph (c) in respect of any Stockholder shall not, when aggregated with money paid by the Trustee to the Stockholder on account of principal, exceed the Priority Principal Amount for the relevant Stock; and
(d) any amount set aside in accordance with these provisos shall be held by the Trustee and applied in the following manner:
(i) each time all or part of a contingent liability becomes an absolute ascertained liability the Trustee shall pay to the Holder of the relevant Security Stock the amount or a proportionate part of such absolute and ascertained liability as referred to above as if the same had been a debt presently payable to such Holder at the Date of Enforcement;
(ii) each time any portion of the amount set aside pursuant to these provisos is no longer required for the purposes of paragraph (i) above then it shall become available for distribution and payment as otherwise provided in this clause 15.1; then
15.1.7 Excess Amount: in or towards payment to the relevant Security Stockholders of any amount of the Security Stockholder's Secured Money as referred to in clause 6.3.1(c) (and in accordance with that clause), as in any case entitled thereto; then
15.1.8 Subsequent Charges: in or towards payment of, or provision for, any debts or liabilities secured by any charge or security interest ranking subsequent to the security created by this Deed, as in any case entitled thereto (including, where applicable, pursuant to section 117 of the PPSA); then
15.1.9 Council: to, or for the benefit of, the Council as it may direct.
15.2 Payment of Principal Before Interest: In any payments pursuant to clause 15.1, interest shall ordinarily be paid prior to Principal, however, if the Trustee considers it expedient in the interests of Stockholders, payments may, subject to the Act, be made on account of Principal before interest, or the whole of the interest, has been paid, but such alteration in the order of payment shall not prejudice the right of Stockholders to receive the whole amount to which they would have been entitled if the ordinary order of payment had been observed or any lesser amount which
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the sum ultimately realised from the security created by this Deed would be sufficient to pay.
15.3 Production of Stock Certificates on Payment: Upon any payment being made under any of the provisions of clauses 15.1 or 15.2 any relevant Stock Certificate shall be produced to and endorsed by the Trustee, or the Register noted, with details of the payment. The Trustee may in any particular case dispense with such production and endorsement upon such indemnity (if any) being given as it considers sufficient (subject to section 105 of the FMC Act).
15.4 Stockholders Certificate:
15.4.1 Evidence: For the purposes of clauses 15.1 and 15.2, a certificate from any Stockholder as to the Principal Money or interest at any time of any Stock held by that Stockholder shall in the absence of manifest error be prima facie evidence of the amount of such Principal Money or interest, as the case may be.
15.4.2 Information: For the purposes of the Council, the Registrar or the Paying Agent making any determination, calculation, payment or determining any voting entitlements pursuant to this Deed or the Registrar and Paying Agency Agreement, the Council, the Registrar or the Paying Agent may require any Stockholder to provide it with a certificate or other information giving details of all amounts of any particular kind due or owing or alleged to be due or owing in respect of such Stockholder's Stock as at any date. The Council, the Registrar or the Paying Agent shall be entitled to act in reliance on such a certificate or other information and shall incur no liability in so acting, or for the consequences of so acting, should any such certificate or other information prove to have been incorrect, or for failing to request or obtain such a certificate or other information.
15.5 Notice of Distribution: The Trustee shall give not less than 14 days' notice to the Stockholders of the day, place and time fixed for any payment to them under clauses 15.1 or 15.2 and after the day so fixed the Stockholders shall be entitled to interest on the balance only (if any) of the Principal Money owing on the Stock held by them (or in the case of the Security Stock on the actual balance secured thereby) after deducting the amount (if any) payable in respect thereof on the day so fixed.
15.6 Postponement of Distribution: If the amount of the money at any time available under clause 15.1 for payment of the Principal Money owing on the Stock is less than ten percent of the amount of such Stock, the Trustee may at its discretion invest that money upon any of the investments authorised in this Deed with power from time to time to vary such investments, and such investments (with the resulting income) may be accumulated until the accumulations together with any other funds for the time being under the control of the Trustee and applicable for the purpose amount to a sum sufficient to pay at least ten percent of the amount of such Stock.
15.7 Certificates of Indebtedness:
15.7.1 Determinations: For the purposes of determining the appropriate payment to be made to any Stockholder pursuant to clause 15.1, or the voting entitlement of any Stockholder under this Deed, the Trustee may (but need not) require any
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Stockholder to provide it with a certificate giving details of all amounts of any particular kind due or alleged to be due in respect of the Stockholder's Stock as at any date. The Trustee shall be entitled to rely upon the accuracy and correctness of any such certificate.
15.7.2 Information: Each Stockholder shall also provide the Trustee with whatever information it may require for the purpose of this clause 15.7. The Trustee shall incur no liability in so acting or for the consequences of so acting should any such certificate or information prove to have been incorrect, or for failing to request or obtain any such certificate or information.
16. ALTERATIONS
16.1 Trustee May Consent to Certain Alterations: Subject to the FMC Act and Financial Markets Supervisors Act (if applicable), the provisions of this Deed or the terms of any Stock may be added to or varied by deed executed by the Council and the Trustee:
16.1.1 Without Consent: without the consent of the Stockholders, if in the opinion of the Trustee it is necessary or desirable: (a) to correct a manifest error or omission, or it is of a minor, formal or technical nature; or
(b) to facilitate the expedient issue of Stock by the Council or to make provision for outstanding Stock to be issued in bearer form; or
(c) to facilitate the expedient issue of types of Stock not specifically provided for in this Deed; or
(d) to comply with the FMC Act and FMC Regulations in relation to the issue of Stock to which that Act or those regulations may apply; or
(e) to facilitate the listing or maintenance of listing of any Stock on any stock exchange; or
(f) to facilitate the establishment and maintenance of more than one Register, and the appointment of more than one Registrar or Paying Agent, in respect of the issuing of different types of Stock; or
(g) to facilitate transfer of Stock under a system authorised or approved under the FMC Act; or
(h) to comply with, or as a result of the coming into effect of, any applicable law,
and which does not to the satisfaction of the Trustee have a material adverse effect on the interests of the Stockholders; or
16.1.2 With Consent: with the consent of the Stockholders given by an Extraordinary Resolution or being contingent on such consent; or
16.1.3 No Material Adverse Effect: in any other case, if the Trustee is of the opinion it does not have, or is not likely to have, a material adverse effect on the interests of the Stockholders,
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PROVIDED ALWAYS THAT no variation or addition shall be made in the terms and conditions of issue of any Security Stock (as distinct from the provisions of this Deed) without the consent in writing of the Holder of that Stock and that the Trustee shall not consent to any amendment without giving the certification required by section 108(2)(b) of the FMC Act to the extent that such certification is required by law.
17. MISCELLANEOUS PROVISIONS
17.1 Notices:
17.1.1 Requirements: Any notice, requisition, demand, request or direction under this Deed (a notice) may be signed by or on behalf of the Council or the Trustee or any Stockholder by an authorised officer, employee, agent or attorney or by their respective solicitors and may (without prejudice to any lawful mode of service) be given or made through the post by prepaid letter or by facsimile transmission. Any notice to be given or made to:
(a) any Stockholder, shall be given or made to its Registered Address or in the case of a Stockholder having a Registered Facsimile Number, its Registered Facsimile Number;
(b) the Council, shall be given or made to the Council's address stipulated or otherwise advised in accordance with clause 17.1.2; and
(c) the Trustee, shall be given or made to the Trustee's address stipulated or otherwise advised in accordance with clause 17.1.2.
17.1.2 Deemed Notice: Subject to written advice being given as to an alteration of the address for the Council or for the Trustee appearing below their respective signatures to this Deed, a notice shall be deemed to have been given or made (in the case of a notice given or made by facsimile) when transmitted to such facsimile number (as to which a transmission confirmation report showing the transmission of the relevant facsimile in its entirety produced by the transmitting facsimile machine shall be prima facie evidence) and (in the case of a notice given or sent by post) two business days after being placed in the post, properly addressed to such address and postage prepaid. Any notice received or deemed to have been received after 5 pm on a business day, or at any time on a day which is not a business day, shall be deemed not to have been received until 9 am on the next business day.
17.1.3 Joint Holders: In the case of joint Holders of Stock, a notice given to any Stockholder in the Register in respect of such holding shall be sufficient notice to all the joint Holders.
17.1.4 Council: Any notice to be given by the Council may, where authorised by the Council, be given on its behalf by the Trustee, the Registrar or the Paying Agent.
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17.2 Authenticity of Notices: The recipient of a notice shall be entitled to rely on, without the need to carry out any investigation or make further inquiry, any notice which purports to have been given by any person pursuant to clause 17.1 and shall not be liable to that person or any other person in any way should any such notice subsequently be proved not to have been authorised by that person or to have been made, given or signed by someone other than an officer, employee, agent or attorney of that person or any solicitor.
17.3 Registration of Deed: The Trustee may at the Council's cost, or may require the Council at its own cost to, register or procure the registration and recording of this Deed as may be required by law or as may be necessary to perfect the security interest created by this Deed to give it full legal effect.
17.4 Release of Trust Deed: Upon the:
(a) Trustee being satisfied (in the Trustee’s reasonable discretion):
(i) that all Stockholders have been paid or satisfied in respect of Principal, interest and all other Secured Money payable to them, or that provision for such payment or satisfaction has been made in accordance with the provisions of this Deed and the requirements of any Stock; and
(ii) that there is no reasonable likelihood that any Secured Money will or might be avoided by, or required to be refunded or repaid under, or required to be accounted for under, any applicable law (including any law relating to preferences or insolvency); and
(b) payment or retention of all costs, charges and expenses incurred by or payable to the Trustee or any Receiver in relation to this Deed, and the remuneration of the Trustee and of any Receiver,
the Trustee shall, at the request and cost of the Council, surrender, release or transfer to the Council, or as it may direct, the Charged Assets or such part thereof as may remain charged in the Trustee's favour freed and discharged from the security created by this Deed and from the Secured Money and release and discharge the Council from the Secured Obligations. Nothing in this clause shall limit or prejudicially affect the rights of the Council to any release of the Charged Assets pursuant to clause 9.
17.5 Partial Invalidity: A provision of this Deed has no effect in respect of any Stock to the extent it contravenes, or is inconsistent with, the FMC Act, the FMC Regulations or any term implied into this Deed by the FMC Act or the FMC Regulations to the extent that Act and those regulations are applicable to the relevant Stock. Without limiting the foregoing, if any provision of this Deed or of any Stock Certificate shall be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
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17.6 Absence of Crown Guarantee: Neither the Secured Money nor the Secured Obligations are guaranteed by the Crown.
17.7 Governing Law and Submission to Jurisdiction: This Deed, and each Stock Certificate, is governed by and to be construed in accordance with, the laws of New Zealand and the Council, the Trustee and each Stockholder submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of all matters or disputes arising in respect of this Deed or any Stock Certificate.
17.8 Governance Requirements: The Council must comply with:
17.8.1 all applicable laws relating to governance matters;
17.8.2 the Act; and
17.8.3 the applicable terms of this Deed from time to time.
17.9 Delivery: For the purposes of Section 9 of the Property Law Act 2007, and without limiting any other mode of delivery, this Deed will be delivered by each of the parties hereto (each a Delivering Party) immediately on the earlier of:
17.9.1 physical delivery of an original of this Deed executed by the relevant Delivering Party into the custody of the other party or other party's solicitors; or
17.9.2 transmission by the relevant Delivering Party or its solicitors (or any other persons authorised in writing by the relevant Delivering Party) of a facsimile, photocopied or scanned copy of an original of this Deed, executed by the relevant Delivering Party, to the other party or other party's solicitors.
17.10 Counterparts: This deed may be signed in any number of counterparts, all of which, when taken together, will constitute one and the same deed.
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IN WITNESS OF WHICH this Deed has been executed and delivered.
SIGNED for and on behalf of CENTRAL OTAGO DISTRICT COUNCIL by:
Elected Member/Councillor Elected Member/Councillor
Address: Central Otago District Council William Fraser Building 1 Dunorling Street ALEXANDRA Facsimile: +64 3 440 0661 For: Leanne Macdonald
SIGNED by
COVENANT TRUSTEE SERVICES LIMITED under its common seal by
Authorised Signatory Sign
Print name in full
Authorised Signatory Sign
Print name in full
Witness to Authorised Signatory’s Witness to Authorised Signatory’s signature: signature:
Signature: Signature: Print name in full Print name in full
Occupation: Occupation:
Address: Address:
Address: Level 6, 191 Queen Street, Crombie Lockwood Tower, Auckland 1010
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FIRST SCHEDULE
PART I
Stock Certificate No: [ ]
CENTRAL OTAGO DISTRICT COUNCIL (the Council)
Principal Office: Central Otago District Council William Fraser Building 1 Dunorling Street ALEXANDRA
Stock Transfer Office: Link Market Services Limited Level 11 Deloitte Centre 80 Queen Street AUCKLAND 1010 (the Registrar and Paying Agent)
[Description of Stock Issue]
Stock Certificate
The Stock referred to in this Certificate (the Stock) is constituted and secured by a debenture trust deed (Trust Deed) dated on or about [ ] between the Council and Covenant Trustee Services Limited and is issued with the benefit and subject to the provisions of the Trust Deed, the conditions endorsed on and/or otherwise applicable to such Stock and this Certificate, including the further conditions (included in the term Conditions).
THIS IS TO CERTIFY THAT:
1. THE Stockholder named below (Holder) will, upon registration of the Stock pursuant to the Trust Deed, be the registered Holder of the amount of Stock referred to below;
2. THE Stock bears interest at the rate set out below and is redeemable [at par] on the redemption date set out below (Redemption Date);
3. INTEREST on the Stock evidenced by this Certificate is payable [frequency] in arrears on [dates] in each year until the Redemption Date, computed on the amount of Principal Money of the Stock from time to time outstanding; and
4. ALL payments of Principal and interest will be made in New Zealand and in Dollars and subject to applicable law, all in accordance with the Trust Deed (including the Conditions).
Name and Address of Stockholder: [ ]
Principal Amount of Stock: [ words ] [ figures ]
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Interest Rate: [ ] per cent per annum
Issue Date: [ ]
Redemption Date: [ ]
GIVEN by or on behalf of the Council this [ ] day of [ ]
[Execution Block]
NOTES:
(1) The Holder is entitled to the benefit of, is bound by, and is deemed to have notice of, all the provisions of the Trust Deed (including the Conditions) (which may be inspected at the Principal Office of the Council).
(2) This Certificate must be surrendered to the Council or the Registrar before transfer of the whole or any part of the Stock can be registered, and prior to redemption of the whole or any part of the Stock.
(3) All sums specified in this Certificate relate to New Zealand currency.
(4) No interest coupons are issued in respect of the Stock.
(5) Words and expressions used in this Certificate and in the Conditions shall have the same definition as in the Trust Deed unless otherwise defined or the context otherwise requires.
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CONDITIONS
1. THE Holder of the Stock is entitled pari passu and rateably with the holders of all other Stock constituted by the Trust Deed to the benefit of, and is subject to, the provisions of the Trust Deed (including the Conditions).
2. THE Principal Money and interest then payable in respect of the Stock will be paid, in accordance with the Trust Deed, on the Redemption Date or on such earlier date as the Stock becomes due and payable in accordance with the Trust Deed.
3. EVERY Holder shall, as a condition precedent to receiving payment of the amount of Stock evidenced by a Stock Certificate produce, in the case of part payment, and surrender, in the case of payment in full, such Certificate to the Council or the Registrar or, in case of contemplated payment by the Trustee or the Paying Agent on behalf of the Council, to the Trustee or the Paying Agent as the case may require PROVIDED ALWAYS that this Condition shall not preclude payment by the Council, the Trustee or the Paying Agent, on behalf of the Council with the consent of the Council, without production of such Certificate if the Council or the Trustee so elects. Upon payment in part, the Certificate shall be, or be deemed to be, endorsed accordingly and returned to the Holder, and upon payment in full, the Certificate shall be deemed to have been cancelled and surrendered to the Council. This Condition shall not apply if the Trustee requires payment to it of the Principal Money in respect of any Stock in accordance with the provisions of the Trust Deed.
4. EXCEPT where otherwise agreed between the Council and the Holder, the Stock bears interest from the issue date set out in this Certificate (the Issue Date) and shall be paid at the frequency, and as at the dates in each year following the Issue Date, as set out in this Certificate on the basis of a 365 day year and deemed equal part-year periods.
5. INTEREST shall, where it has not earlier ceased to accrue, cease to accrue on any Stock from the Redemption Date unless upon production of this Certificate the Council wrongfully fails to make payment, in which case interest shall run until actual redemption or payment. This Condition shall not apply if the Trustee requires payment to it of the Principal Money or interest in respect of any Stock in accordance with the provisions of the Trust Deed.
6. EVERY Holder will be recognised by the Council, the Paying Agent and the Registrar as entitled to its Stock and to the Principal Money and interest payable thereon free from any equity, security interest, set-off, cross-claim or counter-claim between the Council and the original or any intermediate holder of the Stock (not being the Holder).
7. THE Stock may be transferred in accordance with the Trust Deed, provided that:
(a) the transfer must be effected in accordance with the FMC Act, and the transferor shall be deemed to remain the owner of the Stock until the name of the transferee is entered in the Register (as defined in the Trust Deed) in respect thereof;
(b) every instrument of transfer must be left at, or delivered to, the registered office of the Registrar for registration accompanied by any Certificate in respect of the Stock to be transferred and such other evidence as the Council or the Registrar may require to prove the title of the transferor or its right to transfer the Stock. Upon being satisfied as to the due execution of the transfer, and the due compliance with the provisions of any Act relating to stamp duties, the Registrar will register the transfer in accordance with the Registrar and Paying Agency Agreement (as defined in the Trust Deed) and will recognise the transferee as the Holder entitled to the amount of Stock comprised in the transfer;
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Debenture Trust Deed Page iv
(c) all instruments of transfer which are registered will be retained by the Council or the Registrar, but any instrument of transfer which the Registrar may decline (on reasonable grounds) to register shall be returned to the person who has delivered the same together with the reasons for non-registration;
(d) the Registrar shall not be obliged to, but may, register any transfer of Stock during the period between the Registrar's close of business on the Record Date immediately preceding the date for repayment of the Principal Money (or any part of the Principal Money) or payment of interest and the date for repayment of the Principal Money (or any part of the Principal Money) or payment of interest, or the period between the Registrar's close of business on the date 14 days before any meeting (inclusive of the date on which such meeting is held) of Stockholders is convened in accordance with the Trust Deed and the date of such meeting. For the purposes of these Conditions, Record Date means the tenth day before the relevant date for payment of any Principal and/or interest in respect of any Stock or, if such day is not a business day then such day as determined by the Paying Agent in accordance with its usual practice;
(e) no fee shall be charged by the Council for the registration of a transfer;
(f) the Council, the Trustee, the Paying Agent and the Registrar will recognise only the Holder as the absolute owner thereof and, except as ordered by a court of competent jurisdiction or by statute, shall not be bound to take notice or see to the execution of any trust whether express, implied or constructive to which any Stock may be subject. The receipt of such Holder, or in the case of joint Holders the receipt of any of them, of the Principal Money and the interest from time to time accruing due in respect thereof or for any other money payable in respect thereof, or the compliance with the payment directions of the Holder or any one of joint Holders, shall be a good discharge to the Council, the Trustee, the Paying Agent or the Registrar, as the case may be, notwithstanding any notice it may have whether express or otherwise of the right, title, interest (including security interest) or claim of any other person to or in respect of such Stock, interest or money. No notice of any trust express, implied or constructive, nor of any security interest, shall be entered on the Register in respect of any Stock,
provided that the requirements for transfer in paragraphs (b), (c) and (d) shall not apply to the extent that the Council and the Registrar agree a different method of transfer either with the Trustee or, in respect of a particular transfer, with the relevant transferor and transferee.
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FIRST SCHEDULE
PART II
Stock Certificate No: [ ]
CENTRAL OTAGO DISTRICT COUNCIL (the Council)
Principal Office: Central Otago District Council William Fraser Building 1 Dunorling Streeet ALEXANDRA
Stock Transfer Office: Link Market Services Limited Level 11 Deloitte Centre 80 Queen Street AUCKLAND 1010 (the Registrar and Paying Agent)
[Description of Stock Issue]
Security Stock Certificate
The Security Stock referred to in this Certificate is Security Stock constituted and secured by a debenture trust deed (Trust Deed) dated on or about [ ] between the Council and Covenant Trustee Services Limited and is issued with the benefit and subject to the provisions of the Trust Deed, the conditions endorsed on and/or otherwise applicable to such Stock and this Certificate, including the further conditions (included in the term Conditions).
THIS IS TO CERTIFY THAT
1. [name of holder] (Holder) will, upon registration of the Stock pursuant to the Trust Deed, be the registered Holder of $ [ ] in nominal amount of Security Stock (Stock);
2 SUBJECT to the provisions of clause 3 of this Certificate, the Stock is issued by way of continuing security for *[the due payment and satisfaction to the Holder of all liabilities of the Council to the Holder **[in respect of [insert details of specific agreement(s)] (Agreement(s))] whether incurred before or after the issue of the Stock and whether matured or not and whether incurred by the Council alone or jointly with others and whether as principal or surety and whether absolute or contingent and whether incurred within or outside the scope of the relationship of banker and customer and shall include, but not by way of limitation, liabilities in respect of advances and in respect of cheques, bills, notes and other negotiable or non-negotiable instruments drawn, accepted, endorsed or guaranteed and in respect of interest (whether capitalised or otherwise compounded or current) and as regards current interest including interest on capitalised interest or on interest otherwise compounded to accrue from day to day at the rate or respective rates from time to time without prior or other notice to the Council determined upon by the Holder or otherwise agreed with the Holder and in respect of fees, commissions, exchanges, re-exchanges, legal expenses and other usual and proper banking and/or commercial charges];
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Debenture Trust Deed Page ii
[*The words in the above brackets may be varied to suit the particular circumstances for which Security Stock is issued.]
[**This bracketed wording to be used where the security is only for obligations under one or more specified agreements.]
3. THE Stock is issued on the special condition that at any date (Relevant Date) the Priority Total Amount relating to the Stock is not more than:
(a) as principal the lesser of:
(i) the aggregate amount (as finally determined) of all the liabilities, advances and other accommodation or obligations referred to in clause 2 of this Certificate at the Relevant Date, including capitalised interest owing at the Relevant Date but excluding any uncapitalised interest owing at the Relevant Date; and
(ii) the nominal amount of the Stock,
(such lesser amount being referred to in this Certificate as the Priority Principal Amount); and
(b) as interest, all interest payable to the Holder on the principal referred to in paragraph (a)(i) above (up to the Priority Principal Amount) but excluding any interest (except to the extent that it is capitalised into the Priority Principal Amount) which has been due and owing since a date more than six months prior to the Date of Enforcement, and if the amount referred to in paragraph (a)(i) above exceeds the amount referred to in paragraph (a)(ii) above, the Holder may, in its sole discretion, determine which of the liabilities, advances, accommodation and obligations secured by the Stock the Priority Principal Amount is applied to the payment of, and the interest referred to in this paragraph will be calculated on that basis,
AND upon any distribution of the money available to Stockholders pursuant to the provisions of clause 15 of the Trust Deed the Stock shall entitle the Holder to payment pari passu with the other Stockholders in respect only of their Priority Principal Amount together with interest calculated pursuant to the provisions of paragraph (b) above PROVIDED ALWAYS in the event of the amount referred to in paragraph (a)(i) above exceeding the Priority Principal Amount then the aggregate of the following amounts:
(i) such excess (if any);
(ii) the interest owing in respect of such excess; and
(iii) any other interest as Secured Money but excluded pursuant to paragraph (b) above, shall rank for payment subsequent to the Priority Total Amounts of the other Stockholders but pari passu with any amounts as referred to in the equivalent to this proviso in Security Stock Certificates held by other Stockholders (and as consistent with clause 6.3.1(c) of the Trust Deed); all in accordance with the Trust Deed (including the Conditions).
GIVEN by or on behalf of the Council this [ ] day of [ ]
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[Execution Block]
NOTES:
(1) The Holder is entitled to the benefit of, is bound by, and is deemed to have notice of, all the provisions of the Trust Deed (including the Conditions) (which may be inspected at the Principal Office of the Council).
(2) This Certificate must be surrendered to the Council or the Registrar before transfer of the whole or any part of the Stock can be registered.
(3) All sums specified in this Certificate relate to New Zealand currency.
(4) Words and expressions used in this Certificate and in the Conditions shall have the same definition as in the Trust Deed unless otherwise defined or the context otherwise requires.
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Debenture Trust Deed Page iv
CONDITIONS
1. SUBJECT as herein provided, the Holder of the Stock is entitled pari passu and rateably with the holders of all other Stock constituted by the Trust Deed to the benefit of, and is subject to, the provisions of the Trust Deed (including the Conditions).
2. EVERY Holder shall, as a condition precedent to receiving payment of the amount of Stock comprised in the Holder's Stock Certificate produce, in the case of part payment, and surrender, in the case of payment in full, such Stock Certificate to the Council or the Registrar or, in case of contemplated payment by the Trustee or the Paying Agent on behalf of the Council, to the Trustee or the Paying Agent as the case may require PROVIDED ALWAYS that this Condition shall not preclude payment by the Council, the Trustee or the Paying Agent, on behalf of the Council with the consent of the Council, without production of such Certificate if the Council or the Trustee so elects. Upon payment in part, the Certificate shall be, or be deemed to be, endorsed accordingly and returned to the Holder, and upon payment in full, the Certificate shall be deemed to have been cancelled and surrendered to the Council. This Condition shall not apply if the Trustee requires payment to it of the Principal Money in respect of any Stock in accordance with the provisions of the Trust Deed.
3. INTEREST payable shall, where it has not earlier ceased to accrue, cease to accrue on the money secured by any Stock from the date fixed for payment of the Principal Money unless upon production of this Certificate the Council wrongfully fails to make payment in which case interest shall run until actual redemption or payment. This condition shall not apply if the Trustee requires payment to it of the Principal Money or interest in respect of any Stock in accordance with the provisions of the Trust Deed.
4. EVERY Holder will be recognised by the Council, the Paying Agent and the Registrar as entitled to its Stock and to the Principal Money and interest payable thereon free from any equity, security interest, set-off or cross-claim or counter-claim between the Council and the original or any intermediate holder of the Stock (not being the Holder).
5. THE Stock may, to the same extent as the debts, liabilities, advances or other accommodation or obligations to which it relates, be transferred in accordance with the Trust Deed by an instrument in writing in the usual or common form, and the following provisions shall apply:
(a) every instrument of transfer must be executed by the transferor in the manner required by the Council or the Registrar or as required by the FMC Act and the transferor shall be deemed to remain the owner of the Stock until the name of the transferee is entered in the Register (as defined in the Trust Deed) in respect thereof;
(b) every instrument of transfer must be left at the registered office of the Registrar for registration accompanied by any Certificate in respect of the Stock to be transferred and such other evidence as the Council or the Registrar may require to prove the title of the transferor or its right to transfer the Stock. Upon being satisfied as to the due execution of the transfer, and the due compliance with the provisions of any Act relating to stamp duties, the Registrar will register the transfer in accordance with the Registrar and Paying Agency Agreement (as defined in the Trust Deed) and will recognise the transferee as the Holder entitled to the amount of Stock comprised in the transfer;
(c) all instruments of transfer which shall be registered will be retained by the Council or the Registrar, but any instrument of transfer which the Registrar may decline (on reasonable grounds) to register shall be returned to the person who has delivered the same together with the reasons for such non-registration;
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Debenture Trust Deed Page v
(d) the Registrar shall not be obliged to, but may, register any transfer of Stock during the period between the Registrar's close of business on the Record Date immediately preceding the date for repayment of the Principal Money (or any part of the Principal Money) or payment of interest and the date for repayment of the Principal Money (or any part of the Principal Money) or payment of interest, or the period between the Registrar's close of business on the date 14 days before any meeting (inclusive of the date on which such meeting is held) of Holders is convened in accordance with the Trust Deed and the date of such meeting. For the purposes of these Conditions, Record Date means the tenth day before the relevant date for payment of any Principal and/or interest in respect of any Stock or, if such day is not a business day then such day as determined by the Paying Agent in accordance with its usual practice;
(e) no fee shall be charged by the Council for the registration of a transfer;
(f) the Council, the Trustee, the Paying Agent and the Registrar will recognise only the Holder as the absolute owner thereof and, except as ordered by a court of competent jurisdiction or by statute, shall not be bound to take notice or see to the execution of any trust whether express, implied or constructive to which any Stock may be subject. The receipt of such Holder, or in the case of joint Holders the receipt of any of them, of the Principal Money and the interest from time to time accruing due in respect thereof or for any other money payable in respect thereof, or the compliance with the payment directions of the Holders or any one of joint Holders, shall be a good discharge to the Council, the Trustee, the Paying Agent or to the Registrar, as the case may be, notwithstanding any notice it may have whether express or otherwise of the right, title, interest (including security interest) or claim of any other person to or in respect of such Stock, interest or money. No notice of any trust express, implied or constructive, nor of any security interest, shall be entered on the Register in respect of any Stock,
provided that the requirements for transfer in paragraphs (b), (c) and (d) shall not apply to the extent that the Council and the Registrar agree a different method of transfer either with the Trustee or, in respect of a particular transfer, with the relevant transferor and transferee.
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FIRST SCHEDULE PART III
Stock Certificate No: [ ]
CENTRAL OTAGO DISTRICT COUNCIL (the Council)
Principal Office: Central Otago District Council William Fraser Building 1 Dunorling Street ALEXANDRA
Stock Transfer Office: Link Market Services Limited Level 11 Deloitte Centre 80 Queen Street AUCKLAND 1010 (the Registrar and Paying Agent)
[Description of Stock Issue]
Security Stock Certificate
The Security Stock referred to in this Certificate is Security Stock constituted and secured by a debenture trust deed (Trust Deed) dated on or about [ ] between the Council and Covenant Trustee Services Limited and is issued with the benefit and subject to the provisions of the Trust Deed, the conditions endorsed on and/or otherwise applicable to such Stock and this Certificate, including the further conditions (included in the term Conditions).
THIS IS TO CERTIFY THAT
1. [name of holder] (Holder) will, upon registration of the Stock pursuant to the Trust Deed, be the registered Holder of Security Stock (Stock) in a nominal amount equal to the aggregate amount, from time to time, of the liabilities, advances and other accommodation or obligations referred to in clause 2 of this Certificate;
2 SUBJECT to the provisions of clause 3 of this Certificate, the Stock is issued by way of continuing security for *[the due payment and satisfaction to the Holder of all liabilities of the Council to the Holder **[in respect of [insert details of specific agreement(s)] (Agreement(s))] whether incurred before or after the issue of the Stock and whether matured or not and whether incurred by the Council alone, or jointly, or jointly and severally with others and whether as principal or surety and whether absolute or contingent and whether incurred within or outside the scope of the relationship of banker and customer and shall include, but not by way of limitation, liabilities in respect of advances and in respect of cheques, bills, notes and other negotiable or non-negotiable instruments drawn, accepted, endorsed or guaranteed and in respect of interest (whether capitalised or otherwise compounded or current) and as regards current interest including interest on capitalised interest or on interest
124
otherwise compounded to accrue from day to day at the rate or respective rates from time to time without prior or other notice to the Council determined upon by the Holder or otherwise agreed with the Holder and in respect of fees, commissions, exchanges, re-exchanges, legal expenses and other usual and proper banking and/or commercial charges];
[*The words in the above brackets may be varied to suit the particular circumstances for which Security Stock is issued.]
[**This bracketed wording to be used where the security is only for obligations under one or more specified agreements.]
3. THE Stock is issued on the special condition that at any date (Relevant Date) the Priority Total Amount relating to the Stock is not more than:
(a) the lesser of:
(i) the aggregate amount (as finally determined) of all the liabilities, advances and other accommodation or obligations referred to in clause 2 of this Certificate at the Relevant Date, including capitalised interest owing at the Relevant Date but excluding any interest accrued pursuant to the terms of the [Agreement(s)] and owing at the Relevant Date; and
(ii) the nominal amount of the Stock,
(such lesser amount being referred to in this Certificate as the Priority Principal Amount); and
(b) as interest, all interest (for the avoidance of doubt excluding capitalised interest) accrued pursuant to the terms of the [Agreement(s)] and payable to the Holder on the amount referred to in paragraph 3(a)(i) above (up to the Priority Principal Amount) but excluding any interest accrued pursuant to the [Agreement(s)] which has been due and owing since a date more than six months prior to the Date of Enforcement,
AND upon any distribution of the money available to Stockholders pursuant to the provisions of clause 15 of the Trust Deed the Stock shall entitle the Holder to payment pari passu with the other Stockholders in respect only of their Priority Principal Amount together with interest calculated pursuant to the provisions of paragraph (b) above PROVIDED ALWAYS that any amounts owing to the Holder in respect of which this Stock is issued but which do not form part of the Priority Total Amount shall rank for payment subsequent to the Priority Total Amounts of the other Stockholders but pari passu with any amounts referred to in the equivalent to this proviso in Security Stock Certificates held by other Stockholders (and as consistent with clause 6.3.1(c) of the Trust Deed); all in accordance with the Trust Deed (including the Conditions).
GIVEN by or on behalf of the Council this [ ] day of [ ]
[Execution Block]
33739519_3 125
NOTES:
(1) The Holder is entitled to the benefit of, is bound by, and is deemed to have notice of, all the provisions of the Trust Deed (including the Conditions) (which may be inspected at the Principal Office of the Council).
(2) This Certificate must be surrendered to the Council or the Registrar before transfer of the whole or any part of the Stock can be registered.
[(3) All sums specified in this Certificate relate to New Zealand currency.]
(4) Words and expressions used in this Certificate and in the Conditions shall have the same definition as in the Trust Deed unless otherwise defined or the context otherwise requires.
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CONDITIONS
1. SUBJECT as herein provided, the Holder of the Stock is entitled pari passu and rateably with the holders of all other Stock constituted by the Trust Deed to the benefit of, and is subject to, the provisions of the Trust Deed (including the Conditions).
2. EVERY Holder will be recognised by the Council, the Paying Agent and the Registrar as entitled to its Stock and to the Principal Money and interest payable thereon free from any equity, security interest, set-off or cross-claim or counter-claim between the Council and the original or any intermediate holder of the Stock (not being the Holder).
3. THE Stock may, to the same extent as the debts, liabilities, advances or other accommodation or obligations to which it relates, be transferred in accordance with the Trust Deed by an instrument in writing in the usual or common form, and the following provisions shall apply:
(a) every instrument of transfer must be executed by the transferor in the manner required by the Council or the Registrar or as required by the FMC Act and the transferor shall be deemed to remain the owner of the Stock until the name of the transferee is entered in the Register (as defined in the Trust Deed) in respect thereof;
(b) every instrument of transfer must be left at the registered office of the Registrar for registration accompanied by any Certificate in respect of the Stock to be transferred and such other evidence as the Council or the Registrar may require to prove the title of the transferor or its right to transfer the Stock. Upon being satisfied as to the due execution of the transfer, and the due compliance with the provisions of any Act relating to stamp duties, the Registrar will register the transfer in accordance with the Registrar and Paying Agency Agreement (as defined in the Trust Deed) and will recognise the transferee as the Holder entitled to the amount of Stock comprised in the transfer;
(c) all instruments of transfer which shall be registered will be retained by the Council or the Registrar, but any instrument of transfer which the Registrar may decline (on reasonable grounds) to register shall be returned to the person who has delivered the same together with the reasons for such non-registration;
(d) the Registrar shall not be obliged to, but may, register any transfer of Stock during the period between the Registrar's close of business on the Record Date immediately preceding the date for repayment of the Principal Money (or any part of the Principal Money) or payment of interest and the date for repayment of the Principal Money (or any part of the Principal Money) or payment of interest, or the period between the Registrar's close of business on the date 14 days before any meeting (inclusive of the date on which such meeting is held) of Holders is convened in accordance with the Trust Deed and the date of such meeting. For the purposes of these Conditions, Record Date means the tenth day before the relevant date for payment of any Principal and/or interest in respect of any Stock or, if such day is not a business day then such day as determined by the Paying Agent in accordance with its usual practice;
(e) no fee shall be charged by the Council for the registration of a transfer;
(f) the Council, the Trustee, the Paying Agent and the Registrar will recognise only the Holder as the absolute owner thereof and, except as ordered by a court of competent jurisdiction or by statute, shall not be bound to take notice or see to the execution of any trust whether express, implied or constructive to which any Stock may be subject. The receipt of such Holder, or in the case of joint Holders
127
the receipt of any of them, of the Principal Money and the interest from time to time accruing due in respect thereof or for any other money payable in respect thereof, or the compliance with the payment directions of the Holders or any one of joint Holders, shall be a good discharge to the Council, the Trustee, the Paying Agent or to the Registrar, as the case may be, notwithstanding any notice it may have whether express or otherwise of the right, title, interest (including security interest) or claim of any other person to or in respect of such Stock, interest or money. No notice of any trust express, implied or constructive, nor of any security interest, shall be entered on the Register in respect of any Stock,
provided that the requirements for transfer in paragraphs (b), (c) and (d) shall not apply to the extent that the Council and the Registrar agree a different method of transfer either with the Trustee or, in respect of a particular transfer, with the relevant transferor and transferee.
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FIRST SCHEDULE PART IV
FURTHER CONDITIONS
1. EVERY Stockholder (other than a Holder of Security Stock) shall on payment in full for the Stockholder's Stock, and every Holder of Security Stock issued pursuant to the provisions of the Trust Deed, shall be entitled to receive free of charge a Certificate or Certificates for its Stock PROVIDED THAT joint Holders of Stock shall not be entitled to duplicate Certificates in respect of the Stock held by them jointly and the Certificate in respect of a joint holding may be delivered to such one of the joint Holders as the Council may select.
2. ON production to the Council or the Registrar of a damaged Certificate, the Council or the Registrar may cancel such and issue a replacement, and if any Certificate is lost or destroyed then, upon proof thereof to the satisfaction of the Council or the Registrar and on such indemnity if any as it may require being given, and upon payment of out- of-pocket expenses of the Council or the Registrar in investigating evidence as the Council or the Registrar may deem adequate, a replacement may be given to the person apparently entitled thereto. An entry as to the issue of the new Certificate and the indemnity (if any) shall be made in the Register.
3. THE executors or administrators of a deceased Stockholder (not being one of several joint Stockholders), and in the case of the deceased of one or more of several joint Stockholders the survivor or survivors of such joint Stockholders, shall be the only persons recognised by the Council, the Registrar or the Trustee as having any title or interest in such Stock PROVIDED ALWAYS that if such Stockholder having sold any or all of its Stock had delivered to the transferee, or to a Market Participant (as defined in the "NZX Participant Rules") acting in connection with that sale, a transfer of the Stock so sold signed by him or her but which had not been registered before his or her death the Council may, subject to compliance by the transferee with the conditions as to transfer applicable to the Stock, register that transfer notwithstanding that the Council has notice of that Stockholder's death.
4. ANY person becoming entitled to Stock as a result of the death, bankruptcy or liquidation of any Stockholder may (subject to the conditions as to transfer applicable to the Stock), upon producing such evidence of such person's entitlement as the Council shall think sufficient, be registered as the Holder of such Stock. This condition shall include any case in which a person becomes entitled as a survivor of persons registered as joint Holders.
5. ALL payments of principal or interest on the Stock will be made (subject to condition 6 below) in New Zealand to the person entered in the Register as the Holder of the Stock on the Record Date immediately preceding the payment date upon which such payment is due and payable, and otherwise in accordance with the provisions of the Trust Deed. For the purposes of these conditions, Record Date means the tenth day before the relevant date for payment of any Principal and/or interest in respect of the Stock, or, if such day is not a business day, then such day as determined by the Paying Agent in accordance with its usual practice.
6. PAYMENTS in respect of the Stock will be made, after deduction of applicable withholding or other taxes in accordance with the Trust Deed by the Paying Agent posting a cheque to the Registered Address, as at the applicable Record Date, of the Stockholder or, in terms of any agreement between the Council and the Stockholder, by direct credit or other payment means as notified in writing to the Paying Agent by
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the Council or the Stockholder. Any such notice shall be deemed to be automatically cancelled on transfer of the Stock.
7. IF several persons are entered in the Register as joint Holders of any Stock then without prejudice to condition 6 above the receipt, or compliance with the payment directions, of any one of such persons for any Principal Money (or any part of the Principal Money) or interest or other sums from time to time payable on or in respect of such Stock shall be as effective a discharge to the Council, the Registrar, the Paying Agent and the Trustee as if the person signing such receipt or giving such payment directions were the sole registered Holder of such Stock.
8. IF the date for any payment in respect of the Stock is not a business day, payment shall be made on the next succeeding business day and no additional interest or other sum shall be paid in respect of any period during which payment is so delayed.
9. THE Stockholder must at all times comply with, and not expose the Council or the Trustee to any immediate or possible liability under or in respect of, the FMC Act or any other law applicable to the advertising, offering, sale or transferring of Stock.
10. THE obligations of the Council in respect of the Stock may only be enforced in the circumstances provided for, and in accordance with the terms of, the Trust Deed.
Words and expressions in these further conditions shall have the same meaning as in the Trust Deed unless otherwise defined or the context otherwise requires.
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SECOND SCHEDULE
MEETINGS OF STOCKHOLDERS
1. Definitions: In this Schedule the expression Extraordinary Resolution means a resolution:
1.1 passed at a properly convened and held meeting (including an adjourned meeting) of Stockholders by a majority consisting of not less than three- fourths of the persons who are entitled to vote and voted upon a show of hands or, if a poll is properly demanded, by a majority consisting of not less than three-fourths of the votes given on such poll by those who are entitled to vote; or
1.2 in writing pursuant to clause 19.
2. Convening of Meetings:
2.1 The Trustee or the Council may at any time of their own volition convene a meeting of the Stockholders.
2.2 The Council shall whenever required to do so by law convene a meeting of the Stockholders.
2.3 (a) The Trustee shall at the request in writing of any Holders of Security Stock or of Stockholders holding not less than 5% in nominal amount of the Stock (other than Security Stock) convene a meeting of the Stockholders.
(b) Any such request shall state the nature of the business proposed to be dealt with at the meeting.
2.4 Notwithstanding the provisions of paragraph 2.3(a), the Trustee shall not be obliged to convene a meeting of Stockholders pursuant to such provisions until it has been indemnified (subject to section 105 of the FMC Act if applicable) to its reasonable satisfaction against all reasonable costs and expenses to be thereby incurred.
2.5 For the purpose of enabling the Trustee to satisfy itself as to the validity of a request by the Stockholders pursuant to paragraph 2.3(a) the Council will ensure that the Trustee has full access to the Register whether such Register shall for the time being be closed or not.
3. Place of Meetings: Each meeting shall be held in Alexandra or at such other place as the Trustee determines or approves with the consent of the Council.
4. Notice of Meetings:
4.1 At least five business days before the Council gives notice of a meeting it shall advise the Trustee in writing of the intended place, day and hour thereof and the precise nature of the business to be transacted thereat and shall obtain the prior approval in writing of the Trustee to the documents it proposes to send to Stockholders. If the Trustee so requires the documents shall include any statement which the Trustee wishes to make in relation to the meeting and the matters to be considered thereat.
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4.2 (a) Notice of every meeting of Stockholders shall be given in the manner provided herein and in clause 17 of the Trust Deed to:
(i) every Holder of Stock who is entered on the Register on the day two working days before the notice is sent; and
(ii) every legal personal representative or an assignee in bankruptcy or liquidator of a deceased or bankrupt Stockholder or Stockholder in liquidation who, but for the Stockholder's death or bankruptcy or liquidation would have been entitled to receive notice of the meeting.
(b) Notice of every meeting shall be given to:
(i) each Holder of Registered Stock whose Registered Address is in New Zealand, by ordinary post;
(ii) each Holder of Registered Stock whose Registered Address is outside New Zealand, by airmail post;
(iii) each Holder of Bearer Stock in such manner as may be provided in the Trust Deed or the conditions of such Bearer Stock;
(iv) every councillor of the Council;
(v) each other person required to be given notice by law.
4.3 In the case of any Extraordinary Resolution to be proposed at a meeting, the Council shall, at least 10 working days (or any lesser period approved by the Trustee) before Council gives notice of the meeting, provide to the Trustee a draft of the proposed notice of the meeting.
4.4 At least fifteen working days' notice (or such shorter period as the Trustee and Council shall otherwise agree) of every meeting shall be given to the Stockholders entitled to receive notice of the meeting. The notice shall be exclusive of the day on which it is given or deemed to be given and of the day for which it is given. The notice shall specify the place, day and hour of the meeting and the general nature of the business to be transacted (in sufficient detail to enable a Holder to form a reasoned judgment in relation to it) thereat but it shall not be necessary to specify in the notice the terms of any resolution to be proposed at the meeting except in the case of a resolution proposed to be passed as an Extraordinary Resolution in which case (except in respect of any notice to Holders of Bearer Stock) the text of the proposed resolution shall be set out (together with any of the Trustee’s comments on the Extraordinary Resolution). The notice must also set out the right of a Holder to appoint a proxy and any authorised person with respect to voting under clause 14.10.
4.5 The accidental omission to give notice to, or the non-receipt of notice by, any persons entitled thereto shall not invalidate the proceedings at any meeting.
4.6 If the meeting is convened by the Council a copy of the notice shall be sent to the Trustee. If the meeting is convened by the Trustee a copy of the
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notice shall be sent to the Council. If any of the Stock is listed for quotation on the NZX a copy of the notice shall also be sent to the NZX at the same time as notices are sent to the Stockholders.
4.7 An irregularity in a notice of a meeting is waived if all Holders entitled to attend and vote at the meeting attend the meeting without protest as to the irregularity, or if all such Holders agree to the waiver or the Trustee indicates at the meeting that it is satisfied that the irregularity has not resulted in and is unlikely to result in any material prejudice to the relevant Holders.
5. Quorum:
5.1 No business shall be transacted at any meeting unless the requisite quorum is present at the commencement of business. A Holder is present at a meeting for the purposes of this schedule and part of the quorum if that Holder is present in person or by representative or is participating in a meeting by means of audio, audio and visual, or electronic communications.
5.2 The quorum for passing an Extraordinary Resolution shall be Stockholders present in person or by representative holding Stock with a combined nominal amount of no less than 25% of the nominal amount of Stock held by Stockholders who are entitled to vote.
5.3 The quorum for the transaction of any business at a meeting of Stockholders other than the passing of an Extraordinary Resolution shall be the Holders present in person or by representative of at least 10% in nominal amount of the Stock.
5.4 If within 30 minutes after the appointed time for the meeting a quorum is not present the meeting, if convened at the request of Holders, will be dissolved. In any other case it will be adjourned to the day that is 10 working days later at the same time and place or to such other date, time and place as may be appointed by the chairman, or the Trustee. At such adjourned meeting, if a quorum is not present within 30 minutes after the appointed time for the meeting all the Holders present at the meeting will be a quorum for the transaction of business including the passing of Extraordinary Resolutions.
5.5 Notice of any such adjourned meeting of Stockholders at which an Extraordinary Resolution is to be submitted shall be given in the same manner (except in respect of the period of notice as to which a period of five days' notice shall be given) as of an original meeting and such notice shall state that the Stockholders present in person or by representative at the adjourned meeting, whatever their number and whatever the amount of Stock held by them, shall form a quorum and shall have the power to pass any resolution (including an Extraordinary Resolution) and to decide upon all matters which could properly have been dealt with at the meeting from which the adjournment took place.
6. Right to Speak: Any director, officer of or solicitor for, the Trustee or any other person authorised in that behalf by the Trustee and any officer of, or solicitor for, the Council or any other person authorised in that behalf by the Council, may attend any meeting and all such persons shall have the right to speak at the meeting.
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7. Chairman: A person nominated in writing by the Trustee shall preside at every meeting and if no such person is appointed, or if at any meeting the person nominated is not present within fifteen minutes after the time appointed for holding the meeting, the Stockholders present shall choose one of their number to be chairman.
8. Adjournment:
8.1 The chairman may, with the consent of any meeting at which a quorum is present and shall if so directed by the meeting, adjourn the meeting from time to time and from place to place.
8.2 No business shall be transacted at any adjourned meeting except business which might have been lawfully transacted at the meeting from which the adjournment took place.
9. Authority to Vote: The person registered as a Stockholder in the Register shall be exclusively entitled to vote in respect of the Stock recorded as owned by that person provided however that a Stockholder who is an individual may vote personally or by his or her representative (being, for the purposes of this Schedule, a person either appointed by way of proxy or by power of attorney) and a Stockholder which is a company may vote by its representative (being, for the purposes of this Schedule, a person appointed either by way of proxy or by power of attorney or being a person authorised by the relevant provisions of the Companies Act).
10. Proxies:
10.1 The instrument appointing a proxy shall be in writing signed by or, in the case of an electronic notice, sent by the appointor or by the appointor's attorney duly authorised in writing or, if the appointor is a company, either under its seal or signed by an officer or attorney so authorised or by any director, secretary, general manager, investment manager or other person who has actual authority to appoint a proxy on behalf of such company.
10.2 A person appointed to act as a proxy need not be a Stockholder and has the right to speak at a meeting of Stockholders.
10.3 The instrument appointing a proxy and the power of attorney or other authority (if any) under which it is signed or a copy of such power or authority certified by a solicitor or Notary Public or in such other manner as the Trustee shall approve, shall be either deposited at such place as the Trustee, or the Council with the approval of the Trustee, may in the notice convening the meeting direct or (if no such place is appointed) then at the principal office of the Council not less than forty-eight hours (or such shorter period as the Council may nominate in the notice convening the meeting) before the time appointed for holding the meeting or adjourned meeting at which the person named in the instrument proposes to vote and in default the instrument of proxy shall not be treated as valid PROVIDED ALWAYS that the Trustee may in its discretion at any time:
(a) waive any of the foregoing requirements in relation to any power of attorney or other authority;
(b) approve and elect to treat as valid any instrument of proxy notwithstanding that it is received or produced at a place other than that specified in the notice or out of time; and
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(c) subject to such conditions (if any) as it may think fit, accept facsimile transmitted copies of any document appointing, or evidencing the appointment of, any representative.
10.4 An instrument of proxy may be in any usual or common form or in any other form which the Trustee may approve and may make provision for directions to be given by the appointee to vote in favour of or against any proposed resolution.
10.5 A proxy, whether in a usual or common form or not, shall, unless the contrary is stated thereon, be valid for the meeting to which it relates and for any adjournment thereof and need not be witnessed. Notwithstanding any provision contained in an instrument of proxy, no instrument of proxy shall be valid after the expiration of twelve months from the date of its execution but this provision shall not be construed to apply to the appointment of an attorney or representative otherwise than by an instrument of proxy.
10.6 An instrument of proxy which is expressed to be in favour of:
(a) the Council; or (b) the chairman; or (c) the chairman of the meeting;
shall be valid and effectual as though it were in favour of a named person and shall in the case of sub-paragraph (a) constitute the Chief Executive and in the case of sub-paragraphs (b) and (c) constitute the person who chairs the meeting for which the proxy is used, whether on adjournment or not, as the case may be, the lawful proxy of the appointee.
11. Appointment of Attorney: Any Stockholder may by power of attorney duly executed as a deed appoint an attorney (who need not be a Stockholder) to vote and act on that Stockholder's behalf at any meeting. An attorney shall be entitled to produce evidence of that attorney's appointment at any time before the time appointed for the holding of, or at, the meeting or adjourned meeting or for the taking of a poll at which the attorney proposes to vote. An attorney, if so empowered, may appoint a proxy for the Stockholder granting the power of attorney.
12. Corporate Representative: A person authorised pursuant to the relevant provisions of the Companies Act, or pursuant to any other enactment or applicable empowering provision, by a Stockholder being a company, to act for it at any meeting shall in accordance with that person's authority until that person's authority is revoked by the company concerned be entitled to exercise the same powers on behalf of the company as that company could exercise if it were an individual Stockholder and shall be entitled to produce evidence of that person's authority to act at any time before the time appointed for the holding of, or at the meeting or adjourned meeting or for the taking of a poll at which that person proposes to vote.
13. Rights of Representatives:
13.1 A representative shall have the right to speak at the meeting and to demand or join in demanding a poll and shall (except when and to the extent to which the representative is specially directed to vote for or against any proposal) have power generally to act at the meeting (or adjourned meeting) for the Stockholder concerned.
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13.2 The Trustee and any officer of the Trustee may be appointed a representative.
14. Voting Procedure:
14.1 A resolution put to the vote at a meeting shall be decided on a show of hands unless a poll is (before or on the declaration of the result of the show of hands) demanded by the chairman, the Council or by the Trustee or any person acting on behalf of the Trustee or by any Stockholder. Unless a poll is so demanded, a declaration by the chairman that a resolution has been carried, carried unanimously or by a particular majority or lost shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against such resolution. The chairman must take account of votes made pursuant to clause 14.10 in compliance with clause 11(6) of Schedule 11 of the FMC Regulations (if applicable).
14.2 If a poll is duly demanded it shall be taken in such manner as the chairman may direct and the result of such poll shall be deemed to be the resolution of the meeting at which the poll is demanded.
14.3 In the case of an equality of votes, whether on a show of hands or on a poll, the chairman of the meeting at which the show of hands takes place or at which the poll is demanded shall be entitled to a casting vote in addition to any other votes to which the chairman may be entitled.
14.4 A poll demanded on the election of a chairman other than the nominee of the Trustee or on a question of adjournment shall be taken immediately. A poll demanded on any other question shall be taken either immediately or at such time (not being more than thirty days after the date of the meeting) and place as the chairman may direct. The result of such poll shall be deemed to be the resolution of the meeting at which the poll was demanded. No notice need be given of a poll not taken immediately.
14.5 The demand for a poll shall not prevent the continuance of a meeting for the transaction of any business other than the question on which the poll has been demanded.
14.6 On a poll votes may be given either personally or by representative. On a poll a person entitled to more than one vote need not use all its votes or cast all the votes it uses in the same way.
14.7 Every Stockholder who is present at a meeting and entitled to vote (whether personally or by representative) shall, on a show of hands, be entitled to one vote only and on a poll, be entitled to one vote for every $1.00 of nominal amount of the Stock of which it is the Holder PROVIDED ALWAYS that any Stock for the time being held by the Council shall not, whilst so held, confer any right to vote. The certificate of any Holder of Security Stock may be relied upon by the Council and the Trustee for the purposes of calculating the voting entitlement of such Holder of Security Stock.
14.8 In the case of joint Stockholders the vote of the senior who tenders a vote, whether in person or by representative, shall be accepted to the exclusion of the votes of the other joint Stockholders and for this purpose seniority shall be determined by the order in which the names stand in the Register in respect of the joint holding.
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14.9 A vote given in accordance with the terms of an instrument of proxy or power of attorney or other form of appointment shall be valid notwithstanding the previous death, insanity or (in the case of a company) liquidation of the principal or revocation of the proxy or power of attorney or other form of appointment or of the authority under which the proxy or power of attorney was executed or the transfer of the Stock in respect of which the vote is given provided that no intimation in writing of such death, insanity, liquidation, revocation or transfer is received by the Trustee or the Council at its registered office, in the case of the Trustee, or principal office, in the case of the Council, before the commencement of the meeting or adjourned meeting at which the proxy or power of attorney or other form of appointment is used.
14.10 A Holder may:
(a) exercise the right to vote at any meeting by casting a postal vote, a vote by email or a vote using any electronic means permitted by the Trustee;
(b) cast a vote using the above means on all or any of the matters to be voted on at a meeting by sending a notice of the manner in which that Holder’s Stock are to be voted on to Council or any appropriately authorised person for that meeting. Such notice must reach that person before 48 hours before the start of the meeting unless Council or any appropriately authorised person (as the case may be), in its absolute discretion, elects to accept any notice notwithstanding that that notice is received or produced at a place other than that specified above or out of time.
14.11 The Council or any appropriately authorised person for that meeting (as applicable) must:
(a) collect together all of those votes received by it;
(b) in relation to each resolution to be voted on at that meeting, count the number of Holders (entitled to vote and) voting for and against the resolution and the number of votes cast for and against the resolution;
(c) sign a certificate that it has carried out the duties set out in paragraphs 14.11(a) and (b) above and that sets out the results of the counts required by paragraph 14.11(b); and
(d) ensure that the certificate required by paragraph 14.11(c) above is presented to the chairman.
15. Disqualification: No Stockholder shall be entitled to be present or to vote on any question, either personally or by representative, and no person shall be entitled to be present or to vote by representative for any Stockholder at any meeting or upon a poll or be reckoned in a quorum in respect of any Stock held by such Stockholder, whether alone or jointly, whilst any call or other sum shall be due and payable to the Council in respect of any such Stock.
16. Powers Exercisable by Extraordinary Resolution: Without limiting the rights conferred on the Trustee by the Trust Deed, and subject to the proviso to this paragraph 16, a meeting of the Stockholders shall, in addition to all other rights
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which by the Trust Deed are specified as exercisable by Extraordinary Resolution, have the following rights exercisable by Extraordinary Resolution, namely right to:
(a) sanction either unconditionally or upon any conditions:
(i) the release of the Council from the payment of all or any part of the money secured by the Trust Deed; or
(ii) the surrender or release of the whole or any part of the Charged Assets;
(b) sanction the exchange of Stock for, or the conversion of Stock into shares, stock, debentures, debenture stock or other obligations or securities of the Council or any company or entity formed or to be formed;
(c) postpone, or with the concurrence of the Council accelerate, the day when the Principal Money of the Stock shall become payable and suspend or postpone for a time the payment of interest on the Stock;
(d) sanction any variation, release, waiver or compromise or any arrangement in respect of the rights of the Stockholders against the Council or against its assets howsoever such rights shall arise;
(e) assent to any variation or addition to or waiver of the provisions contained in the Trust Deed or any deed or other instrument collateral or supplemental thereto, or the conditions attaching to the Stock, proposed or agreed to by the Council;
(f) give any sanction, assent, release or waiver of any breach or default by the Council under any of the provisions of the Trust Deed;
(g) authorise the Trustee or any Receiver, where it shall have entered into possession of the Charged Assets or any part thereof, to give up possession of the same to the Council either unconditionally or upon any condition;
(h) discharge, release or exonerate the Trustee from all liability in respect of any act or omission for which the Trustee has or may become responsible under the Trust Deed;
(i) sanction any scheme for the reconstruction of the Council or for the amalgamation of the Council with any other person or entity where such sanction is necessary;
(j) authorise or direct the Trustee to concur in and execute any supplemental deed or other document embodying any such sanction, authority, approval, assent, variation, release, waiver, compromise, direction or request;
PROVIDED ALWAYS that no variation or addition shall be made to the terms and conditions of issue of any Security Stock without the consent in writing of the Holder of that Security Stock.
17. Extraordinary Resolution Binds Stockholders: An Extraordinary Resolution passed at a meeting (including an adjourned meeting) of the Stockholders duly convened and held in accordance with this Schedule shall be binding upon all the Stockholders, whether present or not or entitled to be present or not at the meeting,
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and each of the Stockholders and the Trustee (subject to the provisions of its indemnity contained in the Trust Deed) shall be bound to give effect thereto accordingly and the passing of any such resolution shall, as between the Trustee and the Stockholders, be conclusive evidence that the circumstances justify the passing thereof, the intention being that it shall rest with the meeting to determine without appeal whether or not the circumstances justify the passing of such resolution.
18. Minutes of Meetings: Minutes of all resolutions and proceedings at every meeting of Stockholders shall be made by the Council, or if the Council shall not be present at such meeting by some person appointed by the chairman of such meeting, and duly entered in books from time to time provided for that purpose by the Council at the expense of the Council and any such minutes as aforesaid, if purporting to be signed by the chairman of the meeting at which such resolutions were passed or proceedings had or by the chairman of the next succeeding meeting of Stockholders shall be prima facie evidence of the matters therein stated and, until the contrary is proved, every such meeting in respect of the proceedings of which minutes have been made shall be deemed to have been duly held and convened and all resolutions passed or proceedings had thereat to be duly passed and had. Copies of such minutes shall be furnished by the Council to the Trustee as early as possible after the holding of the meeting to which they refer.
19. Written Resolutions: Anything that may be done by the Stockholders by resolution or Extraordinary Resolution passed at a meeting of such Stockholders may, without prejudice to paragraph 1.1, also be done, without a meeting, by written resolution signed by at least 75% of Stockholders entitled to vote in respect of such resolution and holding in aggregate at least 75% of the aggregate nominal amount of Stock provided that the Stockholder or Stockholders promoting such a resolution have given the Trustee, the Council and all other Stockholders at least three business days' prior notice of the proposed resolution. Any such resolution may consist of several documents in similar form (including letters, electronic mail or similar means of communication), each signed by one or more Stockholders.
20. Only Persons on Register Recognised by Council: The persons registered as Stockholders in the Register, and no other person or persons, shall be recognised and treated as the legal holders of the Stock therein mentioned whether such persons are or are not in fact the owners thereof. For the purpose of establishing voting entitlements at a meeting the Register shall be closed as of close of business one day prior to the final date proxies may be received pursuant to paragraph 10.3.
21. Classes of Stock:
21.1 In addition to meetings of Stockholders in general, meetings of Classes of Stockholders may be held, and the provisions of this Second Schedule shall apply to any meeting of a Class of Stockholders as if references to "Stockholders" or “Holders” were references to Stockholders in that Class of Stockholders only and references to "Stock" were references to the relevant Class of Stock only.
21.2 A power which may be exercised by Stockholders by Extraordinary Resolution may only be exercised by an Extraordinary Resolution of a Class of Stockholders if the Trustee agrees, acting reasonably, that the exercise of that power only affects that Class of Stockholders, unless each affected Class of Stockholders passes the same, or substantially the same, Extraordinary Resolution.
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21.3 The references to Extraordinary Resolution in clauses 11.10, 11.12.1, 11.12.2, 13.1 and 14.1 shall be read as references to an Extraordinary Resolution passed by Stockholders generally and not by one or more Classes of Stockholders only.
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THIRD SCHEDULE
STOCK ISSUANCE CERTIFICATE
I, [name], the Chief Executive of Central Otago District Council (the Council) hereby certify that:
1. the issue of [type of Stock] with a [maximum aggregate nominal amount of $[ ]][nominal amount equal to the aggregate amount, from time to time, of the liabilities, advances and other accommodation or obligations referred to in the Stock Certificate for that Stock1] (the New Stock) under the terms of the Debenture Trust Deed dated on or about [ ] (the Trust Deed) has been duly authorised by the Council, or has been authorised by a person or persons within the delegated authorities approved by the Council;
2. as at the date of this certificate (but prior to the issuance of the New Stock if it is to be issued on the date of this certificate) the total nominal amount of Stock issued and outstanding under the Trust Deed (showing separately the respective total nominal amounts) is as follows:
(i) Debenture Stock of: $
(ii) Security Stock (issued with a fixed nominal amount) of: $
[(iii) Bearer Stock of: $ ]
[together with:
(iv) Security Stock (issued with a floating nominal amount),2 which as at [date] amounted to: [specify for each currency]
3. no Enforcement Event has occurred and remains unremedied;
4. for the purposes of section 115(3) of the Act, the loans or obligations secured by the New Stock have been raised for the benefit of [all/defined part] of the Council's district;
5. for the purposes of section 118 of the Act, the Council has complied with the Act in entering into and the performance of its obligations under the Trust Deed, the Registrar and Paying Agency Agreement and all other obligations entered into by the Council in connection with the Council's borrowing and granting security under the Trust Deed, including in respect of the New Stock.
This Certificate is given by me as Chief Executive of the Council in good faith on behalf of the Council and I shall have no personal liability in connection with the issuing of this Certificate.
1 [The initial nominal amount of the Security Stock issued with a floating nominal amount under this Certificate is [ ].] 2 [Council LGFA existing borrowing [ ] (excluding any contingent liability under the Council LGFA guarantee). Council LGFA guarantee [ ].]
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Unless otherwise defined or the context otherwise requires, terms with a defined meaning in the Trust Deed shall have the same meaning where used in this Certificate.
Dated:
______
Chief Executive Central Otago District Council
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FOURTH SCHEDULE REPORTING CERTIFICATE
I, [name] the Chief Executive of Central Otago District Council (the Council) hereby certify to the best of my knowledge and belief for the purposes of the Debenture Trust Deed dated on or about [ ] (the Trust Deed):
*1. Since the date on which the last Reporting Certificate containing this certification was given [or in the case of the first Reporting Certificate, since the date of the Trust Deed]:
(a) all interest due on the Stock [has/has not] been paid;
(b) all Stock which has fallen due for repayment [has/has not] been repaid:
[details of any non-payment];
(c) [no/the following] Enforcement Event has occurred and remains unremedied:
[details of any Enforcement Event].
*2. As at [the end of the financial year of the Council or other date in respect of which the Reporting Certificate is being given] the total amount of Stock issued and outstanding under the Trust Deed (showing separately the respective nominal amounts) is as follows: 2
(i) Debenture Stock of: $
(ii) Security Stock (issued with a fixed nominal amount) of: $
[(iii) Bearer Stock of: $ ]
[together with:
(iv) Security Stock (issued with a floating nominal amount), which as at [the end of the financial year of the Council or other date in respect of which the Reporting Certificate is being given] amounted to: [specify for each currency]
*3. The Council [has/has not] complied with the Act in connection with the Trust Deed, the Registrar and Paying Agreement, and any borrowing documentation which the Council has entered into under, in accordance with or secured by the Trust Deed.
[detail of any non-compliance]
4. On the basis of such information as to the financial position and prospects of the Council as is generally received by me in my capacity as Chief Executive (including reports from the Council's financial managers), I am not aware of any reason why the Council will not be able to meet its liabilities in relation to Stock and interest
2 The aggregate principal amount owing under bank facilities is []. The sum of the amounts owing to New Zealand Local Government Funding Agency Limited (LGFA) (excluding contingent liabilities) is []. [The aggregate amount of borrowed money owed by LGFA that is guaranteed by the Council is [].]
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thereon which are anticipated to fall due or to become payable during the twelve months from the date of this Certificate.
5. [For the purposes of paragraph [4] of this Certificate, I have considered in particular:
(a) the liability of the Council under the Security Stock Certificate(s) issued with a floating nominal amount;
(b) the likelihood of the liabilities secured by those Security Stock Certificates being called on; and
(c) the ability of the Council to recover or recoup from other parties in relation to any payments that the Council would be required to make in respect of those Security Stock Certificates.]
[delete this paragraph if no Security Stock Certificate has been issued with a floating nominal amount]
*6. Since the date on which the last Reporting Certificate containing this certification was given [or on the case of the first Reporting Certificate, since the date of the Trust Deed] the Council has complied in all material respects with all the material provisions, covenants and obligations under the Trust Deed, and I am not aware of any reason [am aware of the following reasons/of reasons which have already been advised to the Trustee] why in the period of twelve months from the date of this Certificate the Council will not so comply with such provisions, covenants and obligations.
This Certificate is given by me as Chief Executive of the Council in good faith on behalf of the Council and I shall have no personal liability in connection with the issuing of this Certificate.
Dated:
______Chief Executive Central Otago District Council
[* These paragraphs are not required in a Reporting Certificate provided to the Trustee in respect of the end of the first and third quarters of the Council's financial year. Paragraph numbering should be updated accordingly.]
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Dated:
REGISTRY CUSTOMER AGREEMENT
between
CENTRAL OTAGO DISTRICT COUNCIL
and
LINK MARKET SERVICES LIMITED
145
CONTENTS
1. DEFINITIONS AND INTERPRETATION 1 2. APPOINTMENT OF LINK 6 3. THE REGISTER 7 4. USE OF EXTERNAL SERVICE PROVIDERS 7 5. CORRECT INFORMATION 8 6. FEES 8 7. PAYMENT OF LIABILITIES 9 8. PAYMENTS ON BEHALF OF COUNCIL 9 9. RECORDS AND INFORMATION 10 10. TERM AND TERMINATION 11 11. LIABILITY 12 12. KEEPING RECORDS 13 13. DISCLOSURE AND CONFIDENTIALITY 14 14. AUTHORISED SIGNATORIES 15 15. LINK’S SERVICES NON EXCLUSIVE 16 16. LINK’S REPRESENTATIONS AND WARRANTIES 16 17. REPRESENTATIONS AND WARRANTIES 16 18. WITHHOLDING TAX 17 19. AMENDMENT 18 20. DISPUTE RESOLUTION 18 21. NOTICES 19 22. SEVERABILITY 20 23. GOVERNING LAW 20 24. ENTIRE AGREEMENT AND COUNTERPARTS 20 SCHEDULE A 22 SCHEDULE B 24 SCHEDULE C 25 SCHEDULE D 26 SCHEDULE E 28 SCHEDULE F 29 SCHEDULE G 31
146
REGISTRY CUSTOMER AGREEMENT
AGREEMENT dated 2020
CENTRAL OTAGO DISTRICT COUNCIL ('the Council') of 1 Dunorling Street, Alexandra 9320
AND
LINK MARKET SERVICES LIMITED (‘Link’) of Level 11, Deloitte Centre, 80 Queen Street, Auckland 1010
RECITALS
The Council has requested that Link provides, and Link has agreed to provide, the Services to the Council on the terms and conditions of this agreement.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this agreement, the following words and phrases have the meanings as set out below unless a contrary intention appears:
'Amounts Payable' means, on any date, the amount of interest (if any), principal or any other amount due to be paid to Holders of the Securities on that date under the Issue Documentation.
'Approved Issuer Levy' means, in relation to any payment of interest (as defined in section 86F of the Stamp and Cheque Duties Act 1971) under any Security, the levy payable by the Council in accordance with section 86J of the Stamp and Cheque Duties Act 1971 to enable the payment of that interest to be made to any non-resident for tax purposes with a deduction for New Zealand non-resident withholding tax at the rate of zero percent pursuant to section RF 12 of the Income Tax Act 2007.
‘Authorised Signatory’ means, subject to clause 14, a person appointed by the Council and specified in Schedule B.
‘Business Day’ means a day (other than a Saturday or Sunday) that the NZX is open for trading.
‘Computer Systems’ means the computer systems required by clause 9.1.
‘Conditions’ means the terms and conditions applicable to any Securities as set out in the relevant Issue Documentation.
‘Confidential Information’ means the databases, computer programs, screen formats, screen designs, report formats, interactive design techniques, and other related information furnished to
147 1
a party by the other party, for the purposes of this agreement, but does not include information that has already come into the public domain for any reason other than by virtue of a breach by a party or its employees of any obligation of confidentiality imposed in relation to the information.
‘Council Liabilities’ includes:
(a) any sum or amount in respect of which the Council is entitled to be indemnified for under clause 11; and
(b) any amount the Council is entitled to be paid or reimbursed under clause 11.
'Debenture Trust Deed' means the Debenture Trust Deed between the Council and Covenant Trustee Services Limited dated on or about the date of this agreement.
‘Effective Date’ means the date of this agreement.
‘Force Majeure’ means any:
(a) act of God, fire, earthquake, storm, flood, or landslide;
(b) explosion, public mains electrical supply failure, or nuclear accident;
(c) sabotage, riot, civil disturbance, insurrection, epidemic, national emergency (whether in fact or in law) or act of war (whether declared or not);
(d) requirement or restriction of, or failure to act by, any government, semi-government or judicial entity;
(e) unavoidable accident, or inability to obtain or delay in obtaining adequate labour, contracts, equipment, materials, transport or supplies; and
(f) any other similar cause beyond the reasonable control of the party claiming the benefit of clause 11.2 and which that party is unable to overcome by the exercise of reasonable diligence and at reasonable cost; but does not include:
(g) any event which the party affected could have prevented or overcome by exercising a standard of reasonable care; or
(h) a lack of funds for any reason.
‘GST’ means goods and services tax which is or may be levied or become payable in connection with the supply of goods and services under the Goods and Services Tax Act 1985 and any other legislation.
‘Holder’ means a person or, as the case may be, persons in whose name Securities are or were inscribed in the Register and ‘Holding’ has a corresponding meaning.
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'Issue Documentation' means:
(a) the Debenture Trust Deed;
(b) the Multi-Issuer Deed (from the date on which the Council accedes to it);
(c) the Issue Notices for any securities; and
(d) any other agreement entered into by the Council pursuant to which Securities are able to be constituted and issued by the Council and which the Council and Link agree to be 'Issue Documentation'.
'Issue Notice’ means a notice in the form set out in Schedule F or any other substantially similar form or any other form agreed between the parties.
‘LGFA’ means New Zealand Local Government Funding Agency Limited (3677052).
‘Liabilities’ means Link Liabilities and/or the Council Liabilities as the case may be.
‘Link’ includes, where the context permits, any delegate or agent that Link appoints in accordance with this agreement.
‘Link Liabilities’ includes:
(a) Taxes, costs, expenses, liabilities, fees or any other amount incurred or payable by Link under this agreement;
(b) the disbursements set out in Schedule D;
(c) Link’s fees payable pursuant to clause 6;
(d) any sum or amount in respect of which Link is entitled to be indemnified for under clause 11; and
(e) any amount Link is entitled to be paid or reimbursed under clause 11.
‘Link Liability Limit’ means the greater of:
(a) $200,000; or
(b) the amount of fees paid by the Council to Link under this agreement during the past 12- month period.
‘Multi-Issuer Deed’ means the multi-issuer deed between LGFA and various local authorities dated 7 December 2011 (as amended, supplemented or restated from time to time).
‘Non-standard Services’ means the services not specified in Schedule A.
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‘NZClear’ means the system operated by the Reserve Bank of New Zealand for holding securities and electronic recording and settling of transactions in those securities between members of that system.
'NZClear Account' means the NZClear New Zealand trust account opened and maintained by Link, into which payments are made by the Council in respect of the Amounts Payable.
‘NZX' means NZX Limited.
'Payment Date' means each date on which any Amounts Payable are due to be paid under the terms of the Issue Documentation.
‘Performance Standards’ means the performance standards set out in Schedule E.
‘Program Documentation’ means, in relation to the Programs, all written information, flow charts, manuals, loading diagrams, listings, drawings, source codes, object codes, drawings and other documents or material contained, reproduced or otherwise incorporated, including any copies, duplicates, extracts or reproductions of such information, charts, manuals, diagrams, listing codes, documents or material forms.
‘Programs’ means computer programs used by Link for the supply of the Services.
‘Record Date’ has the meaning set out in the Conditions, and, if the Conditions do not contain a definition of ‘Record Date’ means the tenth day before the relevant date for payment of any principal and/or interest in respect of the Security, or, if such day is not a Business Day, then such day determined by Link in accordance with its usual practice.
‘Records’ means all information produced by, or by agreement with the Council relating to:
(a) Securities;
(b) any person who is at any time a Holder;
(c) any provision of this agreement; or
(d) the performance by Link or the Council of this agreement, and includes all discs, microfilm, drawings, documents and materials of any kind whatsoever and by whomsoever produced in which that information is constituted, recorded, contained or reproduced or otherwise incorporated and any copies, duplicates, extracts or reproductions of any such discs, microfilm, drawings, documents or materials but excludes all other information and materials held by Link.
‘Register’ means each register and index of Holders for each class of Security, established pursuant to clause 3.1 of this agreement. For the avoidance of doubt, this excludes program
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documentation, software, computer programs and underlying source and object codes of the said software and computer programs.
‘RWT Exempt Status’ means the exempt status of a person in relation to payments of resident passive income derived by the person as provided under section RE 27 of the Income Tax Act 2007.
‘Security’ means those securities issued by the Council under the Issue Documentation, including:
(a) "Stock" as defined in the Debenture Trust Deed; and
(b) "Securities" as defined in the Multi-Issuer Deed.
‘Services’ means the Standard Services and the Non-standard Services.
‘Standard Services’ means the services set out in clause 2.3 and more specifically set out in Schedule A.
‘Taxes’ includes any present or future tax, levy, impost, rate, duty, charge, fee, deduction or withholding of any nature and whatever called (including for the avoidance of doubt Approved Issuer Levy), imposed or levied by any governmental agency and any interest, penalty, charge, fee, or other amount imposed or made on or in respect of any of the foregoing.
1.2 Interpretation
In this agreement unless the context otherwise requires:
(a) headings have been inserted only for convenience and do not affect the interpretation of this agreement;
(b) a reference to any document includes reference to that document’s attachments and schedules, the whole as amended from time to time;
(c) a reference to a statute, ordinance, code or other law includes reference to the corresponding regulations, instruments, class orders and policy statements in all instances as amended, consolidated, re-enacted, replaced or re-written;
(d) a reference to the parties, where relevant, includes their respective successors or permitted assigns;
(e) the singular includes the plural and vice-versa;
(f) words and expressions importing one gender include all other genders;
(g) ‘include’ and any variation of it means including without limitation and does not exclude a reference to other items, whether of the same class or genus or not;
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(h) ‘month’ and any variation of it means a calendar month (whether or not beginning on the first day of the month);
(i) ‘person’ includes a natural person, a firm, a body corporate, an unincorporated association or an authority and vice versa;
(j) where a word or phrase is given a defined meaning in this agreement, any other part of speech or grammatical form in respect of such word or phrase has a corresponding meaning; and
(k) if under this agreement the day on or by which any act, matter or thing is required to be done is a day other than a Business Day, such act, matter or thing must be done on the next succeeding Business Day.
1.3 Issue Documentation
If there is any inconsistency between the Issue Documentation and this Agreement the Issue Documentation shall prevail.
2. APPOINTMENT OF LINK
2.1 Appointment
On and from the Effective Date, the Council appoints Link to perform the Services as the registrar of the Register on the terms and conditions of this agreement. Link accepts that appointment.
2.2 Link Duties
Link agrees to perform the Services, in accordance with the Performance Standards where applicable.
2.3 Services
Link shall perform the following services as agent for the Council (as more specifically set out in Schedule A):
(a) calculation of any Amounts Payable;
(b) payment of any Amounts Payable in relation to the Securities on the relevant Payment Dates;
(c) keeping of the Register;
(d) receipt of any instrument of transfer of Securities and the recording of transfers of Securities;
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(e) keeping of accounting records in respect of all money received and paid by Link pursuant to this agreement;
(f) participating in issuing and settling the purchase of Securities as contemplated in the Issue Documentation;
(g) all services which are expressed in the Issue Documentation to be services which are to be performed by Link, provided that the consent of Link (not to be unreasonably withheld or delayed) shall be required for any amendment of the Issue Documentation that alters the services to be performed by Link; and
(h) checking the electronic register maintained by Inland Revenue and recording whether a Holder has RWT Exempt Status.
2.4 Other services
Link shall also perform such other services for the Council, whether or not of a similar nature to those referred to in clause 2.3 or Schedule A, as Link may agree to perform from time to time, on such terms and conditions as Link may agree.
3. THE REGISTER
3.1 Establish Register
From the Effective Date, Link establishes and maintains the Register on behalf of the Council.
3.2 Location of Register
Link must keep the Register at its principal place of business in Auckland or at such other place in New Zealand as may be agreed by the Council and Link (such agreement not to be unreasonably withheld).
3.3 Different Issue Documentation
Link must ensure that the Register records which Issue Documentation any Securities are issued under so that a separate Register can be constructed in relation to separate Issue Documentation if required.
4. USE OF EXTERNAL SERVICE PROVIDERS
4.1 Use of Service Providers
(a) In performing the Services, Link may in its discretion appoint and use the services of external service providers where Link considers the appointment to be necessary or expedient to assist Link in carrying out its obligations under this agreement.
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(b) The Council’s consent is not required in relation to Link’s use of any services provided by a holding company or subsidiary of Link, as defined in the Companies Act 1993.
(c) Link will be responsible to the Council for the acts, omission or defaults of any external service provider appointed by Link, unless directed to use a particular service provider by the Council.
5. CORRECT INFORMATION
(a) The Council must use its best endeavours to supply Link with accurate and complete information to enable Link to perform the Services.
(b) Link has no obligation to question or confirm the accuracy or completeness of any information provided to it by the Council or any other person including but not limited to Holders.
6. FEES
6.1 Amount of fees for Standard Services
Link is entitled to the fees set out in Schedule D. These fees are payable by the Council in the manner set out in Schedule D.
6.2 Amount of fees for Non-Standard Services
Link is entitled to fees for Non-standard Services in an amount as agreed to by both parties.
6.3 Variation of fees
Any variation of fees must be agreed to by the parties to this agreement in writing and will not take effect less than 30 days (or such other period as agreed between the parties) after such variation has been agreed.
6.4 Taxes
The parties agree that:
(a) unless otherwise specified, all payments under this agreement have been calculated exclusive of any taxes, levies or duties, including GST (if any);
(b) if the whole or any part of any payment under or in connection with this agreement is the subject of any taxes, levies or duties that may be payable on Link’s fees, the payer must pay to the payee an additional amount equal to the amount referrable to that or those taxes, levies or duties, either concurrently with that payment or as otherwise agreed in writing; and
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(c) the payee will provide to the payer a valid tax invoice.
7. PAYMENT OF LIABILITIES
7.1 The Council must pay or reimburse
The Council must on demand pay or reimburse Link for all Link Liabilities, which are payable by the Council in relation to this agreement.
7.2 Link must pay or reimburse
Link must on demand pay or reimburse the Council for all Council Liabilities, which are payable by Link in relation to this agreement.
7.3 Notice of payment required
The party seeking reimbursement under clause 7.1 or 7.2 must advise the other party by written notice of the amount required to satisfy any Liabilities which are due in accordance with this agreement.
8. PAYMENTS ON BEHALF OF COUNCIL
8.1 Payment of Amounts Payable
Link shall pay, or cause to be paid, (subject to the provisions of clause 18) on behalf of the Council all payments of Amounts Payable on Securities on the relevant Payment Date in New Zealand and otherwise in accordance with the written instructions of the Holders appearing in the Register at the relevant Record Date.
8.2 Notice of Amounts Payable
Not less than five days before a Payment Date for any Securities, Link shall give the Council written notice of the Amounts Payable on that Payment Date.
8.3 Council Payment
By no later than 12.00 noon (New Zealand time) on a Payment Date for any Security, the Council shall arrange for payment to be made, or make payment of, the Amounts Payable in respect of that Security to the NZClear Account. Link acknowledges that any payments from the Council of the Amounts Payable shall not constitute the property of Link for any purpose other than the payment to the Holders as herein contemplated, shall at all times be held on trust for that purpose, and, in the event of frustration of that purpose for any reason, shall be returned immediately and in full to the Council.
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8.4 No Set-Off
Link shall not exercise any lien, or right of set-off over any moneys received by it pursuant to clause 8.3, or combine or consolidate those moneys with any other money or account.
8.5 Notice of Payment Date
In setting the corporate financial calendar, the Council will ensure that there is a minimum of 10 calendar days between the Record Date for a payment and the date that payment is required to be made by Link under clause 8.1.
9. RECORDS AND INFORMATION
9.1 Computer Systems
Link agrees to formulate, install, implement, maintain and keep on-line computerised systems recording the transactions and matters contemplated by this agreement.
9.2 Full details of transactions
The Records, including those maintained on the Computer Systems, must include details of any transaction or matter to be recorded in the Register by Link and must show each payment or receipt made by Link on behalf of the Council pursuant to this agreement in such terms and manner as are reasonably required by the Council.
9.3 Content of Register
The Register must include the following information about each Security:
(a) the principal amount of the Security for the time being issued and outstanding (which, in the case of Security Stock (as defined in the Debenture Trust Deed), shall be its nominal amount);
(b) the date or dates of payment for Security (when applicable);
(c) the rate of interest applicable;
(d) when interest is payable;
(e) the redemption date;
(f) the number and date of each Stock Certificate (as defined in the Debenture Trust Deed) (if any);
(g) (except for Bearer Stock (as defined in the Debenture Trust Deed)) all subsequent transfers or changes of ownership of the Security;
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(h) (except for Bearer Stock) the name and address of the holder of the Security and the date at which such name was entered on the Register;
(i) where a Security is no longer outstanding, particulars of its redemption, purchase, cancellation or forfeiture by the Council;
(j) any other additional matters to be entered in the Register in accordance with the Issue Documentation; and
(k) any other particulars as are agreed between the Council and Link,
provided that the information specified in paragraphs (b), (c), (d) and (e) will not be required for Security Stock.
9.4 Computer Storage
Link must ensure that the computer system on which the Register is maintained is “backed-up” at least once each working day and that at least two “back-up” copies of the Register are held at all times. At least one “back-up” copy of the Register must be stored on premises separate from the premises where the Register is kept. In the event of any computer or other technical failure, Link must promptly reconstitute the Register.
9.5 Inspection of Register
Link shall, at all reasonable times during office hours, subject to any applicable laws or regulations, make the Register available to the Council and the Holders and any person authorised by the Council, in each case for inspection and for taking copies. Link shall deliver to the Council or any person authorised by the Council on request, any list of Holders, their addresses and holdings, as may be requested. Without limitation, Link must disclose to a Holder, as soon as practicable following any request by that Holder, such particulars on the Register relating to Securities registered in the name of that Holder as the Holder has requested.
10. TERM AND TERMINATION
10.1 Initial Term
This agreement commences on the Effective Date for a period to and including a date 7 years from that date (‘Initial Term’).
10.2 Renewal
At the expiry of the Initial Term and each succeeding year, the agreement is automatically renewed for a further year (‘Renewal Term’) unless terminated in accordance with clause 10.3.
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10.3 Time of Termination
Either party may terminate this agreement at any time by giving at least 60 days' notice (or such other period as the parties agree) in writing. No such termination may take effect within 15 days of any Payment Date and unless and until a new registrar is appointed.
10.4 Events on Termination
Upon any termination of this agreement for any reason (including default of either party), Link must provide to the new registrar all Records (other than copies of this agreement) and use its reasonable endeavours to assist the new registrar promptly to take over all the functions of Link under this agreement in an orderly manner. Further, Link must provide to the new registrar all files, records, ledgers and documentation and all stationery or office materials particular to the Council or the operation of the Register, and all other material of any kind which are the property of the Council. Upon or prior to any termination of Link becoming effective, the Council must pay all Link Liabilities due but unpaid and all reasonable "out of pocket" fees (including legal fees) incurred by Link in transferring the Records and other materials as contemplated by this clause.
10.5 Obligations surviving Termination
Notwithstanding any other provision of this agreement, clauses 10.4, 11, 12 and 13 shall survive the termination of this agreement for any cause whatsoever.
11. LIABILITY
11.1 Debt due
The Council acknowledges that all moneys payable to a Holder in respect of Securities shall constitute a debt due to that Holder by the Council. Where Link fails to pay the Amounts Payable or any part thereof in respect of any Securities as a consequence of the failure by the Council to make a corresponding payment in accordance with clause 8.3, Link shall be under no liability to the Council or any Holder in respect of the failure.
11.2 Force Majeure
Notwithstanding any other provision of this agreement, non-performance by either of the parties of any of its obligations under this agreement will be excused, without liability for non- performance, during the time and to the extent that such performance is prevented, wholly or substantially, by Force Majeure. However:
(a) The party claiming the benefit of this clause 11.2 must promptly give written notice to the other party specifying the cause and the extent of its inability to perform any of its obligations under this agreement and the likely duration of such non-performance. In the meantime, such party shall take all reasonable steps to remedy or abate the Force
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Majeure, including in the case of Link by utilising other offices or facilities for performance of the Services if practicable.
(b) Performance of any obligation affected by Force Majeure must be resumed as soon as reasonably possible after the termination or abatement of the Force Majeure. If by reason of Force Majeure a party is unable to perform any obligation under this agreement for a period of ninety (90) days, the other party may on giving thirty (30) days written notice to that party terminate this agreement.
(c) Termination of this agreement under clause 11.2 will not prejudice the rights of either party against the other in respect of any matter or thing occurring under this agreement before termination.
11.3 No liability for indirect loss
In no event is either party liable to the other party or any other person for indirect, special or consequential damages.
11.4 Limitation of liability
11.4.1 Subject to clause 11.4.2, the Council agrees that Link’s liability for any loss or damage suffered by the Council in connection with this agreement, including liability for any negligent act or omission or misrepresentation of Link, shall be limited, for each 12-month period commencing from the Effective Date, to the Link Liability Limit. The Council agrees to release Link from all claims arising in connection with this agreement to the extent that Link’s liability in respect of such claims would exceed the Link Liability Limit.
11.4.2 Any liability of Link arising as a result of its misapplication of the Council’s funds, whether deliberate or accidental shall not be subject to the limitations contained in clause 11.4.1.
11.5 No liability to agents
Neither party is liable to an agent of the other party in any circumstances.
11.6 No liability to Holders of securities
Link is not liable in any way to the Holder of any Security or any person who holds a lien, charge or any other legal or equitable interest over such Security.
12. KEEPING RECORDS
12.1 Link will retain all Records for completed transactions:
(a) for a period of 7 years after the completion of the transactions to which the Records relate unless otherwise agreed between the parties; or
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(b) until the later of the date of termination of this agreement and the date on which it has complied with its obligations under clause 10.4,
whichever is the sooner.
12.2 Link may destroy hard copies of Records held by it after 6 years (or such lesser period as agreed between the parties) if it has produced legible microfilm records of those Records or other records in such other form as may be agreed by the Council.
12.3 Link must comply with all statutory obligations imposed upon it in relation to the retention of the Records and, to the extent that those obligations are inconsistent with the provisions of this agreement, it will comply with the statutory obligations.
12.4 Link must maintain data storage facilities for the Records.
13. DISCLOSURE AND CONFIDENTIALITY
13.1 Disclosure
Link must disclose to a Holder, as soon as practicable following any request by that Holder, such particulars on the Register relating to the Securities registered in the name of that Holder as the Holder has requested.
13.2 Confidential Information
Subject to clause 13.1, each of the Council and Link:
(a) agrees that it will treat as confidential the terms and conditions of this agreement and acknowledges the Confidential Information is passed to and received by it in the strictest confidence;
(b) must use the Confidential Information only for the purposes set out in this agreement;
(c) must not disclose the Confidential Information to any person except as permitted by this agreement;
(d) must use reasonable endeavours to ensure that any person who has access to Confidential Information does not make any unauthorised use, modification, reproduction or disclosure of that information and that Confidential Information is protected against loss;
(e) must notify the other as soon as practicable after it becomes aware of a breach by it or its representatives of its obligations under this clause 13; and
(f) must comply with all relevant laws, codes of practice or guidelines relating to confidential information including the Privacy Act 1993 (as amended) to the extent applicable to it.
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13.3 Permitted Disclosures
Each of the Council and Link may disclose Confidential Information:
(a) on a need to know basis to any of its representatives or agents (including legal advisers) for the purposes set out in this agreement if it obtains a written undertaking from the representative or agent in a form acceptable to the other, imposing substantially the same obligations on the representative or agent as those imposed on it by this agreement; or
(b) to the extent specifically required by law, and a party must immediately notify the other if it becomes aware that such disclosure may be required; or
(c) with the prior written consent of the other provided that the person to whom the Confidential Information is to be disclosed, releases and indemnifies the other from all claims, actions, loss or liability arising out of or in connection with such disclosure or with the use by that person of that Confidential Information; or
(d) in the case of any information contained on the Register, to the Council's legal advisors, the trustee under the Debenture Trust Deed and the Council's auditors.
14. AUTHORISED SIGNATORIES
14.1 Authorised Signatories
The Council acknowledges that Authorised Signatories are authorised to give instructions to Link on behalf of the Council for the purposes of this agreement and to sign on behalf of the Council all notices, communications, instructions, confirmations and other documents required by or contemplated under this agreement.
14.2 Link entitled to rely
Link is entitled to rely on the authenticity of the signatures and instructions given or purported to be given by the Council’s Authorised Signatories and Link is not liable for any claim, damage, cost, expense, loss liability or demand arising from that reliance.
14.3 Additions and deletions to list
The Council must advise Link of any addition to, or deletion from, Schedule B by written notice signed by two Authorised Signatories who are not the subject of the variation or signed in such other manner as is satisfactory to Link in its reasonable discretion.
14.4 Date variation takes effect
Any variation of Schedule B takes effect on the date that Link provides written acknowledgment of receipt of the variation notice, which it must promptly provide.
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15. LINK’S SERVICES NON EXCLUSIVE
The services and appointment of Link under this agreement are not exclusive. Link is free to provide similar services to others, and is not obliged to disclose to the Council anything which comes to its notice in the course of providing services to others, in its general business operations or otherwise than in the performance of this agreement. The Council is free to obtain from others, services similar to the services provided by Link under this agreement.
16. LINK’S REPRESENTATIONS AND WARRANTIES
Link represents and warrants to the Council as at the date of this agreement and during the term of this agreement that:
(a) it will perform the Services in accordance with the Performance Standards;
(b) it has the power, skill, facilities, financial ability and staff to enter into and perform its obligations under this agreement, and has duly executed this agreement so as to constitute the valid and binding obligations of Link;
(c) it has all the power to enter into and perform this agreement and has obtained all necessary consents and corporate authorisations to enable it to do so;
(d) it holds such licences and authorities as are necessary to lawfully perform its obligations under this agreement;
(e) in the ordinary course of provision of the Services, it will comply with all applicable requirements specified by NZX; and
(f) it will have in place from the date of signing by the parties of this agreement, and maintain at all times during the term of this agreement, policies of fidelity insurance and professional indemnity insurance either in its own name or ensure that it is covered pursuant to a company group insurance arrangement which are appropriate for a prudent company engaged in a similar business to that of Link.
17. REPRESENTATIONS AND WARRANTIES
Each of the Council and Link represents and warrants to the other party as at the date of this agreement and during the term of this agreement that:
(a) it has all the power to enter into and perform this agreement and has obtained all necessary consents and corporate authorisations to enable it to do so;
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(b) it has duly executed this agreement so as to constitute the valid and binding obligations of the Council subject to applicable laws affecting creditors' rights generally and to equitable principles of general application; and
(c) the entry into and performance of this agreement by the Council does not violate its constitution (in the case of Link), the Local Government Act 2002 (in the case of the Council) or any agreement or undertaking by which it is bound.
18. WITHHOLDING TAX
18.1 Deduction of tax
Where any deduction or withholding is required by law to be made for, or on account of any Tax in respect of any payment of the Amounts Payable, Link shall, where applicable subject to clause 18.2 and, in accordance with clauses,18.3, and 18.4 make that deduction or withholding from the payment and shall, within the time required by law, pay the amount so deducted or withheld to the relevant taxing authority.
18.2 Authority to Act
The Council nominates Link to act on the Council’s behalf for withholding taxes and Approved Issuer Levy for income reporting requirements to Inland Revenue that apply from 1 April 2020. The Council agrees to complete the Authority to Act contained in Schedule G which once completed will be provided by Link to Inland Revenue.
18.3 Exemption
(a) Each Holder who has RWT Exempt Status must provide evidence of that status to the reasonable satisfaction of Link.
(b) Link may, when making any payment to a Holder that has provided it with evidence of RWT Exempt Status under clause 18.3(a), assume that such Holder still has RWT Exempt Status, provided Link has searched the electronic register maintained by the Commissioner of Inland Revenue (listing the persons with RWT Exempt Status), and has checked that that Holder is noted on the electronic register before making the payment.
18.4 Approved Issuer Levy
If Link is satisfied that a Holder:
(a) is not resident or is not deemed resident in New Zealand for tax purposes (as defined in the Income Tax Act 2007);
(b) is not carrying on business in New Zealand through a fixed establishment (as defined in the Income Tax Act 2007) in New Zealand;
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(c) is not an associated person (as defined in the Income Tax Act 2007) in respect of the Council; and
(d) is not (or, where the Holder is not the beneficial holder of the Securities, no person who beneficially derives interest under the Securities is) deriving interest under the Securities jointly with one or more persons, where, in either case, one or more of whom are resident in New Zealand for tax purposes (as defined in the Income Tax Act 2007) or carrying on business in New Zealand through a fixed establishment in New Zealand (as defined in the Income Tax Act 2007);
and the Holder has not otherwise agreed with the Council (or Link on its behalf), Link shall deduct Approved Issuer Levy from the part of each payment made to that Holder which comprises interest and will pay the net amount to the Holder. For the avoidance of doubt, if the Council (or Link on its behalf) is not entitled to deduct Approved Issuer Levy from any payment of interest to a Holder, clause 18.1 will apply.
18.5 Statement
Link shall send to a Holder at the same time as it makes payment of any Amounts Payable to that Holder, a statement advising the gross amount paid and the amount of any deduction or withholding made from that amount for, or on account of, New Zealand resident or non-resident withholding tax or Approved Issuer Levy. In the case of a deduction of New Zealand resident withholding tax, the statement shall be prepared so as to constitute a RWT withholding certificate in terms of the Income Tax Act 2007 and the Tax Administration Act 1994 and shall include (without limitation) the information set out in section 26C(6) of the Tax Administration Act 1994 or any replacement or amendment thereof. Such statement shall only be prepared in the manner immediately above described if the Holder has not provided Link with its tax file number (as that term is defined in the Income Tax Act 2007). Link shall provide to the Council a summary and reconciliation of all amounts paid and withheld.
19. AMENDMENT
This agreement cannot be amended except in writing executed by each party.
20. DISPUTE RESOLUTION
20.1 In the event of any dispute arising between the parties in relation to this agreement, no party may commence any proceedings (except where the party seeks urgent interlocutory relief from a court of competent jurisdiction) unless the parties have first made genuine efforts to resolve the dispute in accordance with this clause 20.
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20.2 A party will give the other party a notice of dispute arising in connection with this agreement. The parties acknowledge and agree to make the best and genuine efforts to resolve all disputes promptly.
20.3 Any dispute will be referred to the CEOs of Link and the Council. If the CEOs are unable to resolve the dispute within a further ten (10) Business Days, the dispute will be referred to arbitration under clause 20.4.
20.4 Any dispute or disagreement between the parties arising out of or in connection with this agreement that is referred to arbitration under clause 20.3 will be submitted to arbitration by notice given by one party to the other. The arbitration will be by a single arbitrator, if one can be agreed upon or, in the absence of agreement within 14 days of notice of the dispute, either party may request the President of the Arbitrators’ and Mediators’ Institute of New Zealand, or his or her nominee, to appoint an arbitrator, within 14 days of the request. The arbitration will be carried out in Auckland or Wellington and the language of the arbitration will be English. The Arbitration Act 1996 will apply, and the parties agree that the First and Second Schedules will apply with the following amendments:
(a) First Schedule:
(i) to the extent that the notice provisions in this agreement are inconsistent with article 3 of the First Schedule, the notice provisions of this agreement apply; and
(ii) the parties agree that either party may request the arbitral tribunal under article 33(1)(b) of the First Schedule to give an interpretation of a specific point or part of an award.
(b) Clauses 1(4) and 1(5) of the Second Schedule will not apply;
20.5 Nothing in this clause 20 will prevent any party from seeking urgent injunctive relief from a court of competent jurisdiction.
21. NOTICES
21.1 Address
All notices, correspondence, communications sent or delivered under this agreement must be sent or delivered to the addresses of the parties specified in Schedule C or if a written notice of change of address is given then to the new address.
21.2 Form of notice
Every notice to be given under, or in connection with, this agreement must be given in writing by:
(a) personal delivery; or
165 19
(b) mailing by pre-paid post, and will be deemed to be given 4 Business Days after (but exclusive of) the date of mailing; or
(c) electronic messaging system, and will be deemed to be given at the time the recipient of the notice has confirmed receipt of the notice by way of a telephone call or voice message, to the addresses specified in Schedule C or if a written notice of change of address is given then to the new address,
except in the case of notice given under clause 10, which must be given in the manner specified in paragraphs (a) or (b) above.
22. SEVERABILITY
Each part of this agreement is severable from the balance of this agreement and if any part of this agreement is illegal, void, invalid or unenforceable, then that will not affect the legality, effectiveness, validity or enforceability of the balance of this agreement.
23. GOVERNING LAW
This agreement is governed by and must be construed in accordance with the laws of New Zealand. The parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New Zealand.
24. ENTIRE AGREEMENT AND COUNTERPARTS
This agreement constitutes the complete and exclusive agreement between the parties. This agreement may be signed in two counterparts both of which when taken together shall constitute one and the same instrument.
166 20
EXECUTED as an agreement.
Signed for and on behalf of CENTRAL OTAGO DISTRICT COUNCIL
Signature of Authorised person Signature of Authorised Person
(Name of signature above) (Name of signature above)
Witness to above signature: Witness to above signature:
Name: ______Name: ______
Signature: ______Signature: ______
Signed for and on behalf of LINK MARKET SERVICES LIMITED
Signature of Director
Full name of Director
Witness to above signature:
Name: ______
Occupation: ______
Address: ______
Signature: ______
167 21
SCHEDULE A
STANDARD SERVICES FOR ALL REGISTERS UNDER MANAGEMENT
Debt registry issuance and paying agency services – issuing an LGFA eligible security
. Input on planning of issue and tender notice if required
. Receipt of tender instructions and term sheet of LGFA borrowing for matching of trades on settlement day
. Set-up of Security Stock Certificate (as defined in the Debenture Trust Deed) and wholesale note/ bond (LGFA) security – commercial paper ('CP') or zero-rated note on Link’s systems
. Set up of new issuer/ security codes on Link registry system and on-going maintenance of data such as: security code, minimum amount and multiples, coupon payment date, maturity date etc.
. Liaison with Reserve Bank of New Zealand (NZClear) on new issuance, set up of the Security, ISIN, initial lodgement and trades
. Creation of investors on Register, including all relevant data
. Facilitate settlement of the new issue via NZClear where required
. Payment of funds to the Council once settlement has occurred
. Confirmation register lists to legal advisers
. Facilitate uplifts via NZClear once Security is down-sold to other investors if required
Ongoing registry services
Ongoing registry service will include the maintenance of debt register(s) and would cover aspects of day-to-day activities such as:
. Updating and maintaining all investor records
. Attending to all investor inquiries via phone, correspondence, in person or, email
. NZClear uplifts and lodges
. IRD number and tax elections (where applicable
. Provision of Issuer Service Centre (‘ISC’)
Payment Services (coupon and maturity) for note/bonds/CP
Services for payments over the Council’s Register will include:
. Provision of bank account for the Council’s exclusive use
. Managing of the Council’s bank account
. Payment of principal (at maturity) of Security
. Calculation and payment of interest payments to investors
. Providing the Council with a funding letter stating amounts, withholding tax, etc, prior to interest
168 22
payments (if applicable)
. Preparation of data files relating to direct credit payment for lodging with the bank
. Preparation of data files to facilitate mailing of payment advice
. Full bank reconciliation services and reporting on outstanding payments
. Payment of New Zealand Central Securities Depository Limited payments through NZClear; and
. Calculation and payment of interest and deduction of withholding tax or Approved Issuer Levy to Inland Revenue on the Council’s behalf (if applicable)
169 23
SCHEDULE B
AUTHORISED SIGNATORIES
The Council confirms that the persons specified below are authorised signatories on behalf of the Council for the purposes of this agreement.
Full Name Responsibility (position) Signature
170 24
SCHEDULE C
ADDRESS OF PARTIES
LINK MARKET SERVICES LIMITED:
Attention: Stan Malcolm
Address: P.O. Box 91976 Auckland 1142
Telephone: +64 9 375 5994
Email: [email protected]
CENTRAL OTAGO DISTRICT COUNCIL:
Attention: Leanne Macdonald
Address: 1 Dunorling Street, Alexandra 9320
Telephone: +64 3 440 0669
Email: [email protected]
171 25
SCHEDULE D
FEES
SET-UP OF SECURITY STOCK CERTIFICATE (or REGISTERED CERTIFICATE OF DEPOSIT)
Wholesale Issuance Fee Basis Fee
Issuance of new wholesale note/bond/ CP reflecting One-off fee per $250.00 debt borrowing through LGFA wholesale note, bond, or CP. (Includes set-up of note/bond/CP details, allotment of wholesale note/bond/CP, and provision of confirmation/ reporting to the Council and LGFA legal advisers where applicable)
Registration of existing Security Stock Certificate (for One-off fee per $250.00 non-LGFA borrowing Stock Certificate) If required
Amendment or cancellation of terms for wholesale Per notification of $75.00 note/bond/ CP/security stock certificate (usually adjustment adjustment of amount after initial issue) If required
Confirmation letter for audit purposes Per confirmation $100.00
If required
Maturity and repayment of wholesale note/bond/ CP One-off fee per $250.00 wholesale note, bond or CP
ONGOING REGISTRY MAINTENANCE FEE FOR WHOLESALE NOTE, BOND or CP
Wholesale Issuance Fee Basis Fee
Registry monthly maintenance fee Base Monthly fee $50.00
Transfers out of NZClear Account Per transfer $15.00
If required
Set up run for payment of quarterly interest coupon (if Per run (for $250.00 required) for wholesale note/ bond/CP- set-up of payments other parameters, calculation, run processing and payment to than maturity bank account(s), provision of funding letter, and payment) provision of confirmations and payment advice
172 26
Payment of resident withholding tax/non-resident Per return $150.00 withholding tax/Approved Issuer Levy if required for payment run and lodgement of IRD returns when due. If required
Bank reconciliation Hourly rate $85
Reporting requested (not drawn down on ISC or Ad- Per report $100.00 hoc) provided If required
Collective Assurance Opinion – Audit of Register as Per report Per required under Section 217 of Financial Markets arrangement Conduct Act 2013. Group audit carried out which can be with OAG used by the Council to meet compliance obligations. The Council can alternatively have its own auditors If required carry out a Register audit
Provision of ISC. Fee waived No charge
Note: All fees exclude: 1. NZClear recovery fees – these will be charged on as a disbursement (to a maximum of $30 per trade) 2. Third party print, mail house, stationery, postage, photocopying and other external disbursements
Disbursements
All out-of-pocket expenses are charged to clients. The following are examples of disbursements that will be charged to the Council separately:
▪ printing costs, stationery ▪ mailing house services ▪ NZClear recovery fee charge (if applicable) ▪ postage and/or courier charges ▪ copying, or telephone calls related to maintenance of the register ▪ external storage costs.
Invoicing Method and Information
Invoices will be submitted monthly in arrears and must be paid by the 20th of the month in which the invoice is received.
Goods and Services Tax
The fees above are exclusive of GST. Link will charge an additional amount in respect of GST payable on supply of its services when rendering invoices in accordance with this proposal. Link reserves the right to apply to the fees, any change in the rate of GST or any amendment to the GST law.
173 27
SCHEDULE E
PERFORMANCE STANDARD AND SERVICE LEVEL AGREEMENT
Description of Service
General and Maintenance Services Performance Standard
Maintain records of each Holding along with Maintain records and transaction histories related name and address and other relevant of current and non-current Investors in details. accordance with legislation and, to the extent required for preparation of tax statements, and to enable response to enquiries.
Receive and respond to telephone enquiries All matters raised by telephone resolved and general correspondence from Investors. within 2 Business Days of the call (or depending on investigation required).
The filing and storage of all transactions and Storage at the Council’s cost for the full 7 related records after processing. years as required by the Companies Act, 1993 or other such time as agreed.
Receipt of Off market transfer Forms Processed within 2 days of receipt
Rejections of off-market transfers. Within 2 Business Days of receipt.
NZClear uplifts and lodges Within 1 hour of receipt
Name and address changes, and other Within 2 Business Days excluding day of maintenance transactions. receipt of request.
(i) Interest Payment Services Performance Standard
Payment of coupon interest or principal Despatched by the due date, in repayment to Investors registered at Record accordance with the terms sheet/ terms of Date/ maturity date. issuance.
Preparation and remittance of applicable Payment made to Inland Revenue no withholding tax and returns (if applicable) to later than 20th day of the month following Inland Revenue payment. Returns filed with Inland Revenue in the required timeframes
Provision of Bank Reconciliation (as at last By the 10th day of the month following business day of the month)
Reports
ISC reports Available 24/7
Ad-hoc reports. Within 1 Business Days of request
174 28
SCHEDULE F
FORM OF ISSUE NOTICE
ISSUE NOTICE
To: Link Market Services Limited Attention:
Email [email protected]
Re: Security Issuance – Central Otago District Council
We confirm our instructions to you as Link to enter Securities on the Register as at the specified Issue Date with the details set out below:
Details of Notes:
Issue Date: [DATE] Maturity Date: [DATE] Interest Dates: [ ] ([Modified Following Business Day Convention]) Record Date: [10 Calendar Days] Interest Rate: [ ]% per annum First Interest Period: [Full coupon payable to Holder as at Record Date] Face Value: $[ ] Minimum/Multiple: $500,000 and $100,000
Details of first registered Holder Name: [NAME] [ADDRESS]
Yours sincerely CENTRAL OTAGO DISTRICT COUNCIL
By:
……………………………………….. Authorised Officer
175 29
CONFIRMATION
To: Central Otago District Council [ ] Attention:
Email [ ]
We confirm the registration of the Notes as described herein.
Yours sincerely
LINK MARKET SERVICES LIMITED
By:
……………………………………….. Authorised Officer
176 30
SCHEDULE G
AUTHORITY TO ACT
I, ______
(full name of person giving authority) being duly authorised by Central Otago District Council give authority to Link Market Services Limited to act on behalf of
Central Otago District Council.
...... - ...... - ...... for the following tax types: Non-Resident Withholding Tax (‘NRWT’), Resident Withholding Tax(‘RWT’) and Approved Issuer Levy (‘AIL’).
Authority is given for Link Market Services Limited to:
1. Complete and file NRWT, RWT and AIL returns; and 2. Obtain information from Inland Revenue about NRWT, RWT and AIL. This includes obtaining information through all Inland Revenue media and communication channels.
This Authority will continue until Central Otago District Council explicitly advises Inland Revenue to revoke the Authority.
Signature ______
Date ______
177 31
CHIEF EXECUTIVE CERTIFICATE
I, Sanchia Jacobs, the Chief Executive of Central Otago District Council (Council) certify as follows:
1. RESOLUTIONS
1.1 The Council has, by all necessary resolutions duly passed (Resolutions):
(a) approved the transactions contemplated by the:
(i) Debenture Trust Deed dated on or about the date of this certificate between Covenant Trustee Services Limited and the Council; and
(ii) Registry Customer Agreement dated on or about the date of this certificate between Link Market Services Limited and the Council,
(together, the Documents); and
(b) authorised execution of the Documents by the Council,
or has delegated sufficient authority to officers of the Council to provide the approval and authorisation referred to in paragraphs (a) and (b), and that approval and authorisation has been given in accordance with that delegated authority.
1.2 The Resolutions remain in full force and effect.
2. COMPLIANCE WITH THE ACT
For the purposes of section 118 of the Local Government Act 2002 (Act), in entering into the Documents and performing its obligations under the Documents, and all other documentation contemplated by or entered into in connection with the Documents, the Council has complied with the Act.
3. DUE EXECUTION
The Documents have been properly executed by the Council.
This certificate is given by me in my capacity as Chief Executive of the Council in good faith on behalf of the Council and I shall have no personal liability in connection with the issuing of this certificate.
Dated: 2020
______Sanchia Jacobs Chief Executive
178 33739524_3 Accession Deed to Multi- issuer Deed
PARTIES
Central Otago District Council Acceding Party
New Zealand Local Government Funding Agency Limited Subscriber
179 4138883 v2 DEED dated
PARTIES
Central Otago District Council ("Acceding Party")
New Zealand Local Government Funding Agency Limited ("Subscriber")
pursuant to the Multi-issuer Deed defined below.
INTRODUCTION
A. The Subscriber has agreed that the Acceding Party may accede to the Multi-issuer Deed as an "Issuer".
B. This deed records the accession.
COVENANTS
1. INTERPRETATION
1.1 Interpretation: In this deed:
"Local Authority" has the meaning given to it in the Local Government Act 2002.
"Multi-issuer Deed" means the deed dated 7 December 2011 (as amended and restated on 6 July 2020) between the Subscriber and various Local Authorities entitled "Multi-issuer Deed".
1.2 Multi-issuer Deed: Terms defined in the Multi-issuer Deed have the same meaning in this deed unless the context requires otherwise.
1.3 Inconsistency: In the event of any inconsistency between the terms of this deed and those of the Multi-issuer Deed, the terms of this deed will prevail in respect of the Acceding Party.
2. ACCESSION
2.1 Accession: The Acceding Party hereby:
(a) agrees with the Subscriber that with effect on and from the date of this deed, it will be bound by the Multi-issuer Deed as an Issuer as if it had been an original party thereto and named therein as an Issuer, and agrees to be bound by the terms of, and perform its obligations under, the Multi-issuer Deed; and
(b) agrees that it will be bound by the special conditions (if any) set out in the annexure to this deed as if those were terms of the Multi-issuer Deed.
180 4138883 v2 1 2.2 Acknowledgement: The Subscriber acknowledges and agrees to the accession made under this deed.
2.3 Implied provisions: For the purposes of section 14 of the Property Law Act 2007, the Acceding Party acknowledges that this deed is, and for all purposes and at all times shall be construed as being, supplemental to the Multi-issuer Deed.
3. NOTICE
The details for notices for the Acceding Party for the purposes of the Multi-issuer Deed are:
Delivery Address: Central Otago District Council 1 Dunorling Street ALEXANDRA 9320
Attention: Leanne Macdonald
Email: [email protected]
Postal Address: Central Otago District Council PO Box 122 ALEXANDRA 9340
4. GOVERNING LAW
This deed shall be governed by the laws of New Zealand.
5. NO CROWN GUARANTEE
The obligations and liabilities of the Acceding Party and Subscriber under this deed and the Multi-issuer Deed are not guaranteed by the Crown.
6. COUNTERPARTS
This deed may be signed in any number of counterparts, all of which together constitute one and the same instrument, and any of the parties may execute this deed by signing any such counterpart.
EXECUTED AS A DEED Acceding Party
CENTRAL OTAGO DISTRICT COUNCIL by:
Signature of Elected Member Signature of Elected Member
Name of Elected Member Name of Elected Member
181 4138883 v2 2 Subscriber
NEW ZEALAND LOCAL GOVERNMENT FUNDING AGENCY LIMITED by:
Signature of director Signature of director
Name of director Name of director
182 4138883 v2 3 ANNEX TO THE ACCESSION DEED
[Annex intentionally left blank.]
183 4138883 v2 4
SECURITY STOCK CERTIFICATE
Stock Certificate No: 1
CENTRAL OTAGO DISTRICT COUNCIL (the Council)
Principal Office: Central Otago District Council William Fraser Building 1 Dunorling Street ALEXANDRA
Stock Transfer Office: Link Market Services Limited Level 11 Deloitte Centre 80 Queen Street AUCKLAND 1010 (the Registrar and Paying Agent)
Obligations under the Multi-Issuer Deed and related Accession Deed
Security Stock Certificate
The Security Stock referred to in this Certificate is Security Stock constituted and secured by a debenture trust deed (Trust Deed) dated on or about the date of this Certificate between the Council and Covenant Trustee Services Limited and is issued with the benefit and subject to the provisions of the Trust Deed, the conditions endorsed on and/or otherwise applicable to such Stock and this Certificate, including the further conditions (included in the term Conditions).
THIS IS TO CERTIFY THAT
1. New Zealand Local Government Funding Agency Limited (Holder) will, upon registration of the Stock pursuant to the Trust Deed, be the registered Holder of Security Stock (Stock) in a nominal amount equal to the aggregate amount, from time to time, of the liabilities, advances and other accommodation or obligations referred to in clause 2 of this Certificate;
2 SUBJECT to the provisions of clause 3 of this Certificate, the Stock is issued by way of continuing security for the due payment and satisfaction to the Holder of all liabilities of the Council to the Holder in respect of:
(a) the Accession Deed to Multi-Issuer Deed between the Council and the Holder dated on or about the date of this Certificate; and
(b) the Multi-Issuer Deed between various local authorities and the Holder dated 7 December 2011 (as amended, supplemented or restated from time to time),
(each an Agreement and together the Agreements) whether incurred before or after the issue of the Stock and whether matured or not and whether incurred by the Council alone, or jointly, or jointly and severally with others and whether as principal or surety and whether absolute or contingent and shall include, but not by way of limitation,
184 33739529_3
obligations and liabilities in respect of any indemnities granted by the Council pursuant to the Agreements;
3. THE Stock is issued on the special condition that at any date (Relevant Date) the Priority Total Amount relating to the Stock is not more than:
(a) the lesser of:
(i) the aggregate amount (as finally determined) of all the liabilities, advances and other accommodation or obligations referred to in clause 2 of this Certificate at the Relevant Date, including capitalised interest owing at the Relevant Date but excluding any interest accrued pursuant to the terms of the Agreements and owing at the Relevant Date; and
(ii) the nominal amount of the Stock,
(such lesser amount being referred to in this Certificate as the Priority Principal Amount); and
(b) as interest, all interest (for the avoidance of doubt excluding capitalised interest) accrued pursuant to the terms of the Agreements and payable to the Holder on the amount referred to in paragraph 3(a)(i) above (up to the Priority Principal Amount) but excluding any interest accrued pursuant to the Agreements which has been due and owing since a date more than six months prior to the Date of Enforcement,
AND upon any distribution of the money available to Stockholders pursuant to the provisions of clause 15 of the Trust Deed the Stock shall entitle the Holder to payment pari passu with the other Stockholders in respect only of their Priority Principal Amount together with interest calculated pursuant to the provisions of paragraph (b) above PROVIDED ALWAYS that any amounts owing to the Holder in respect of which this Stock is issued but which do not form part of the Priority Total Amount shall rank for payment subsequent to the Priority Total Amounts of the other Stockholders but pari passu with any amounts referred to in the equivalent to this proviso in Security Stock Certificates held by other Stockholders (and as consistent with clause 6.3.1(c) of the Trust Deed); all in accordance with the Trust Deed (including the Conditions).
GIVEN by or on behalf of the Council this day of 2020
SIGNED for and on behalf of CENTRAL OTAGO DISTRICT COUNCIL ______Sanchia Jacobs Chief Executive Witness:
Signature of witness
Full name of witness
Occupation of witness
Address of witness
Page 2
185 33739529_3
NOTES:
(1) The Holder is entitled to the benefit of, is bound by, and is deemed to have notice of, all the provisions of the Trust Deed (including the Conditions) (which may be inspected at the Principal Office of the Council).
(2) This Certificate must be surrendered to the Council or the Registrar before transfer of the whole or any part of the Stock can be registered.
(3) All sums specified in this Certificate relate to New Zealand currency.
(4) Words and expressions used in this Certificate and in the Conditions shall have the same definition as in the Trust Deed unless otherwise defined or the context otherwise requires.
Page 3
186 33739529_3
CONDITIONS
1. SUBJECT as herein provided, the Holder of the Stock is entitled pari passu and rateably with the holders of all other Stock constituted by the Trust Deed to the benefit of, and is subject to, the provisions of the Trust Deed (including the Conditions).
2. EVERY Holder will be recognised by the Council, the Paying Agent and the Registrar as entitled to its Stock and to the Principal Money and interest payable thereon free from any equity, security interest, set-off or cross-claim or counter-claim between the Council and the original or any intermediate holder of the Stock (not being the Holder).
3. THE Stock may, to the same extent as the debts, liabilities, advances or other accommodation or obligations to which it relates, be transferred in accordance with the Trust Deed by an instrument in writing in the usual or common form, and the following provisions shall apply:
(a) every instrument of transfer must be executed by the transferor in the manner required by the Council or the Registrar or as required by the FMC Act and the transferor shall be deemed to remain the owner of the Stock until the name of the transferee is entered in the Register (as defined in the Trust Deed) in respect thereof;
(b) every instrument of transfer must be left at the registered office of the Registrar for registration accompanied by any Certificate in respect of the Stock to be transferred and such other evidence as the Council or the Registrar may require to prove the title of the transferor or its right to transfer the Stock. Upon being satisfied as to the due execution of the transfer, and the due compliance with the provisions of any Act relating to stamp duties, the Registrar will register the transfer in accordance with the Registrar and Paying Agency Agreement (as defined in the Trust Deed) and will recognise the transferee as the Holder entitled to the amount of Stock comprised in the transfer;
(c) all instruments of transfer which shall be registered will be retained by the Council or the Registrar, but any instrument of transfer which the Registrar may decline (on reasonable grounds) to register shall be returned to the person who has delivered the same together with the reasons for such non-registration;
(d) the Registrar shall not be obliged to, but may, register any transfer of Stock during the period between the Registrar's close of business on the Record Date immediately preceding the date for repayment of the Principal Money (or any part of the Principal Money) or payment of interest and the date for repayment of the Principal Money (or any part of the Principal Money) or payment of interest, or the period between the Registrar's close of business on the date 14 days before any meeting (inclusive of the date on which such meeting is held) of Holders is convened in accordance with the Trust Deed and the date of such meeting. For the purposes of these Conditions, Record Date means the tenth day before the relevant date for payment of any Principal and/or interest in respect of any Stock or, if such day is not a business day then such day as determined by the Paying Agent in accordance with its usual practice;
(e) no fee shall be charged by the Council for the registration of a transfer;
(f) the Council, the Trustee, the Paying Agent and the Registrar will recognise only the Holder as the absolute owner thereof and, except as ordered by a court of competent jurisdiction or by statute, shall not be bound to take notice or see to the execution of any trust whether express, implied or constructive to which any Stock may be subject. The receipt of such Holder, or in the case of joint Holders
Page 4
187 33739529_3
the receipt of any of them, of the Principal Money and the interest from time to time accruing due in respect thereof or for any other money payable in respect thereof, or the compliance with the payment directions of the Holders or any one of joint Holders, shall be a good discharge to the Council, the Trustee, the Paying Agent or to the Registrar, as the case may be, notwithstanding any notice it may have whether express or otherwise of the right, title, interest (including security interest) or claim of any other person to or in respect of such Stock, interest or money. No notice of any trust express, implied or constructive, nor of any security interest, shall be entered on the Register in respect of any Stock,
provided that the requirements for transfer in paragraphs (b), (c) and (d) shall not apply to the extent that the Council and the Registrar agree a different method of transfer either with the Trustee or, in respect of a particular transfer, with the relevant transferor and transferee.
Page 5
188 33739529_3 Accession Deed to Equity Commitment Deed
PARTIES
Central Otago District Council Additional Guarantor
New Zealand Local Government Funding Agency Limited Company
189 4138890 DEED dated 2020
PARTIES
Central Otago District Council ("Additional Guarantor")
New Zealand Local Government Funding Agency Limited ("Company")
INTRODUCTION
A. Each of the Local Authorities listed in schedule 1 to this deed ("Guarantors") is (as at 14 September 2020) party to an equity commitment deed with the Company ("EC Deed") dated 7 December 2011 (as amended and restated on 4 June 2015) (whether as a party to the original EC Deed or by becoming a party pursuant to a deed equivalent to this deed).
B. The Additional Guarantor is to become a Guarantor under the EC Deed by entering into this deed.
COVENANTS
1. Definitions: In this deed, capitalised terms shall have the meanings given to them in the EC Deed unless they are defined in this deed.
2. Deemed to be a Guarantor: With effect from the date of this deed, the Additional Guarantor will be deemed to be named as a Guarantor under the EC Deed as if originally included and named in the EC Deed.
3. Warranties and undertakings: The Additional Guarantor makes the representations, warranties and undertakings in clause 6.1 and 6.2 of the EC Deed in relation to itself to the Company by reference to the facts and circumstances then existing (and as though each reference in clause 6.1 and 6.2 to Guarantor was to the Additional Guarantor).
4. Implied provisions: For the purposes of section 14 of the Property Law Act 2007, the Additional Guarantor acknowledges that this deed is, and for all purposes and at all times shall be construed as being, supplemental to the EC Deed.
5. Address for notice: The initial address, email address and contact person (if any) of the Additional Guarantor for the service of notices is:
Delivery Address: Central Otago District Council 1 Dunorling Street ALEXANDRA 9320
Attention: Leanne Macdonald
Email: [email protected]
Postal Address: Central Otago District Council PO Box 122 ALEXANDRA 9340
6. Governing law: This deed shall be governed by, and construed in accordance with the laws of New Zealand, and the parties hereby submit to the non-exclusive jurisdiction of the courts of New Zealand.
190 4138890 1 7. No Crown guarantee: The obligations and liabilities of the Additional Guarantor and Company under this deed and the EC Deed are not guaranteed by the Crown.
8. Counterparts: This deed may be signed in any number of counterparts, all of which together constitute one and the same instrument, and any of the parties may execute this deed by signing any such counterpart.
EXECUTED AS A DEED
Additional Guarantor
CENTRAL OTAGO DISTRICT COUNCIL by:
Signature of Elected Member Signature of Elected Member
Name of Elected Member Name of Elected Member
Company
NEW ZEALAND LOCAL GOVERNMENT FUNDING AGENCY LIMITED by:
Signature of director Signature of director
Name of director Name of director
191 4138890 2 SCHEDULE 1 EXISTING GUARANTORS
1. Ashburton District Council 2. Auckland Council 3. Bay of Plenty Regional Council 4. Canterbury Regional Council 5. Christchurch City Council 6. Far North District Council 7. Gisborne District Council 8. Gore District Council 9. Hamilton City Council 10. Hastings District Council 11. Hauraki District Council 12. Hawke's Bay Regional Council 13. Horowhenua District Council 14. Hurunui District Council 15. Hutt City Council 16. Invercargill City Council 17. Kaipara District Council 18. Kapiti Coast District Council 19. Manawatu District Council 20. Manawatū-Whanganui Regional Council 21. Marlborough District Council 22. Masterton District Council 23. Matamata-Piako District Council 24. Nelson City Council 25. New Plymouth District Council 26. Northland Regional Council 27. Ōtorohanga District Council 28. Palmerston North City Council 29. Porirua City Council 30. Queenstown-Lakes District Council 31. Rotorua District Council 32. Ruapehu District Council 33. Selwyn District Council 34. South Taranaki District Council 35. South Waikato District Council 36. South Wairarapa District Council 37. Stratford District Council
192 4138890 3 38. Taranaki Regional Council 39. Tararua District Council 40. Tasman District Council 41. Taupo District Council 42. Tauranga City Council 43. Thames-Coromandel District Council 44. Timaru District Council 45. Upper Hutt City Council 46. Waikato District Council 47. Waikato Regional Council 48. Waimakariri District Council 49. Waipa District Council 50. Waitomo District Council 51. Wellington City Council 52. Wellington Regional Council 53. Western Bay of Plenty District Council 54. Whakatane District Council 55. Whanganui District Council 56. Whangarei District Council
193 4138890 4
SECURITY STOCK CERTIFICATE
Stock Certificate No: 2
CENTRAL OTAGO DISTRICT COUNCIL (the Council)
Principal Office: Central Otago District Council William Fraser Building 1 Dunorling Street ALEXANDRA
Stock Transfer Office: Link Market Services Limited Level 11 Deloitte Centre 80 Queen Street AUCKLAND 1010 (the Registrar and Paying Agent)
Obligations under the Equity Commitment Deed and related Accession Deed
Security Stock Certificate
The Security Stock referred to in this Certificate is Security Stock constituted and secured by a debenture trust deed (Trust Deed) dated on or about the date of this Certificate between the Council and Covenant Trustee Services Limited and is issued with the benefit and subject to the provisions of the Trust Deed, the conditions endorsed on and/or otherwise applicable to such Stock and this Certificate, including the further conditions (included in the term Conditions).
THIS IS TO CERTIFY THAT
1. New Zealand Local Government Funding Agency Limited (Holder) will, upon registration of the Stock pursuant to the Trust Deed, be the registered Holder of Security Stock (Stock) in a nominal amount equal to the aggregate amount, from time to time, of the liabilities, advances and other accommodation or obligations referred to in clause 2 of this Certificate;
2 SUBJECT to the provisions of clause 3 of this Certificate, the Stock is issued by way of continuing security for the due payment and satisfaction to the Holder of all liabilities of the Council to the Holder in respect of:
(a) the Accession Deed to Equity Commitment Deed between the Council and the Holder dated on or about the date of this Certificate; and
(b) the Equity Commitment Deed between various local authorities and the Holder dated 7 December 2011 (as amended, supplemented or restated from time to time),
(each an Agreement and together the Agreements) whether incurred before or after the issue of the Stock and whether matured or not and whether incurred by the Council alone, or jointly, or jointly and severally with others and whether as principal or surety and whether absolute or contingent and shall include, but not by way of limitation,
33761874_2 194
obligations and liabilities in respect of any indemnities granted by the Council pursuant to the Agreements;
3. THE Stock is issued on the special condition that at any date (Relevant Date) the Priority Total Amount relating to the Stock is not more than:
(a) the lesser of:
(i) the aggregate amount (as finally determined) of all the liabilities, advances and other accommodation or obligations referred to in clause 2 of this Certificate at the Relevant Date, including capitalised interest owing at the Relevant Date but excluding any interest accrued pursuant to the terms of the Agreements and owing at the Relevant Date; and
(ii) the nominal amount of the Stock,
(such lesser amount being referred to in this Certificate as the Priority Principal Amount); and
(b) as interest, all interest (for the avoidance of doubt excluding capitalised interest) accrued pursuant to the terms of the Agreements and payable to the Holder on the amount referred to in paragraph 3(a)(i) above (up to the Priority Principal Amount) but excluding any interest accrued pursuant to the Agreements which has been due and owing since a date more than six months prior to the Date of Enforcement,
AND upon any distribution of the money available to Stockholders pursuant to the provisions of clause 15 of the Trust Deed the Stock shall entitle the Holder to payment pari passu with the other Stockholders in respect only of their Priority Principal Amount together with interest calculated pursuant to the provisions of paragraph (b) above PROVIDED ALWAYS that any amounts owing to the Holder in respect of which this Stock is issued but which do not form part of the Priority Total Amount shall rank for payment subsequent to the Priority Total Amounts of the other Stockholders but pari passu with any amounts referred to in the equivalent to this proviso in Security Stock Certificates held by other Stockholders (and as consistent with clause 6.3.1(c) of the Trust Deed); all in accordance with the Trust Deed (including the Conditions).
GIVEN by or on behalf of the Council this day of 2020
SIGNED for and on behalf of CENTRAL OTAGO DISTRICT COUNCIL ______Sanchia Jacobs Chief Executive Witness:
Signature of witness
Full name of witness
Occupation of witness
Address of witness
195 33761874_2
NOTES:
(1) The Holder is entitled to the benefit of, is bound by, and is deemed to have notice of, all the provisions of the Trust Deed (including the Conditions) (which may be inspected at the Principal Office of the Council).
(2) This Certificate must be surrendered to the Council or the Registrar before transfer of the whole or any part of the Stock can be registered.
(3) All sums specified in this Certificate relate to New Zealand currency.
(4) Words and expressions used in this Certificate and in the Conditions shall have the same definition as in the Trust Deed unless otherwise defined or the context otherwise requires.
196 33761874_2
CONDITIONS
1. SUBJECT as herein provided, the Holder of the Stock is entitled pari passu and rateably with the holders of all other Stock constituted by the Trust Deed to the benefit of, and is subject to, the provisions of the Trust Deed (including the Conditions).
2. EVERY Holder will be recognised by the Council, the Paying Agent and the Registrar as entitled to its Stock and to the Principal Money and interest payable thereon free from any equity, security interest, set-off or cross-claim or counter-claim between the Council and the original or any intermediate holder of the Stock (not being the Holder).
3. THE Stock may, to the same extent as the debts, liabilities, advances or other accommodation or obligations to which it relates, be transferred in accordance with the Trust Deed by an instrument in writing in the usual or common form, and the following provisions shall apply:
(a) every instrument of transfer must be executed by the transferor in the manner required by the Council or the Registrar or as required by the FMC Act and the transferor shall be deemed to remain the owner of the Stock until the name of the transferee is entered in the Register (as defined in the Trust Deed) in respect thereof;
(b) every instrument of transfer must be left at the registered office of the Registrar for registration accompanied by any Certificate in respect of the Stock to be transferred and such other evidence as the Council or the Registrar may require to prove the title of the transferor or its right to transfer the Stock. Upon being satisfied as to the due execution of the transfer, and the due compliance with the provisions of any Act relating to stamp duties, the Registrar will register the transfer in accordance with the Registrar and Paying Agency Agreement (as defined in the Trust Deed) and will recognise the transferee as the Holder entitled to the amount of Stock comprised in the transfer;
(c) all instruments of transfer which shall be registered will be retained by the Council or the Registrar, but any instrument of transfer which the Registrar may decline (on reasonable grounds) to register shall be returned to the person who has delivered the same together with the reasons for such non-registration;
(d) the Registrar shall not be obliged to, but may, register any transfer of Stock during the period between the Registrar's close of business on the Record Date immediately preceding the date for repayment of the Principal Money (or any part of the Principal Money) or payment of interest and the date for repayment of the Principal Money (or any part of the Principal Money) or payment of interest, or the period between the Registrar's close of business on the date 14 days before any meeting (inclusive of the date on which such meeting is held) of Holders is convened in accordance with the Trust Deed and the date of such meeting. For the purposes of these Conditions, Record Date means the tenth day before the relevant date for payment of any Principal and/or interest in respect of any Stock or, if such day is not a business day then such day as determined by the Paying Agent in accordance with its usual practice;
(e) no fee shall be charged by the Council for the registration of a transfer;
(f) the Council, the Trustee, the Paying Agent and the Registrar will recognise only the Holder as the absolute owner thereof and, except as ordered by a court of competent jurisdiction or by statute, shall not be bound to take notice or see to the execution of any trust whether express, implied or constructive to which any Stock may be subject. The receipt of such Holder, or in the case of joint Holders
33761874_2 197
- ii -
the receipt of any of them, of the Principal Money and the interest from time to time accruing due in respect thereof or for any other money payable in respect thereof, or the compliance with the payment directions of the Holders or any one of joint Holders, shall be a good discharge to the Council, the Trustee, the Paying Agent or to the Registrar, as the case may be, notwithstanding any notice it may have whether express or otherwise of the right, title, interest (including security interest) or claim of any other person to or in respect of such Stock, interest or money. No notice of any trust express, implied or constructive, nor of any security interest, shall be entered on the Register in respect of any Stock,
provided that the requirements for transfer in paragraphs (b), (c) and (d) shall not apply to the extent that the Council and the Registrar agree a different method of transfer either with the Trustee or, in respect of a particular transfer, with the relevant transferor and transferee.
198 33761874_2 Accession Deed to Guarantee and Indemnity
PARTIES
Central Otago District Council Additional Guarantor
TEL Security Trustee (LGFA) Limited Security Trustee
199 4138887 DEED dated 2020
GRANTED
Central Otago District Council ("Additional Guarantor")
IN FAVOUR OF
TEL Security Trustee (LGFA) Limited ("Security Trustee")
INTRODUCTION
A. Each of the Local Authorities listed in schedule 1 to this deed ("Guarantors") is (as at 14 September 2020) party to a guarantee and indemnity ("Guarantee") dated 7 December 2011 (as amended and restated on 6 July 2020) in favour of the Security Trustee (whether as a party to the original Guarantee or by becoming a Guarantor pursuant to a deed equivalent to this deed).
B. The Additional Guarantor is to become a Guarantor under the Guarantee by entering into this deed.
COVENANTS
1. Definitions: In this deed, capitalised terms shall have the meanings given to them in the Guarantee unless they are defined in this deed.
2. Deemed to be a Guarantor: With effect from the date of this deed, the Additional Guarantor will be deemed to be named as a Guarantor under the Guarantee as if originally included and named in the Guarantee.
3. Guarantee: The Additional Guarantor guarantees to the Security Trustee, for the benefit of the Guaranteed Creditors, the due payment or delivery by the Principal Debtor of the Principal Debt. The provisions of the Guarantee shall apply to the guarantee given by the Additional Guarantor under this deed in the same manner, and to the same extent, as if the same had (with all necessary modification) been set out in full in this deed.
4. Representations and warranties: The Additional Guarantor makes the representations and warranties in clause 9.1 of the Guarantee in relation to itself to the Security Trustee by reference to the facts and circumstances then existing (and as though each reference in clause 9.1 to Guarantor was to the Additional Guarantor and each reference to the Transaction Documents included this deed).
5. Attorney: The Additional Guarantor irrevocably appoints the Security Trustee and every officer of the Security Trustee, individually, to be the attorney of the Additional Guarantor ("Attorney") (with full power to delegate the Attorney's powers to any person for any period and to revoke any such delegation) to, on behalf of the Additional Guarantor, do anything which, in the Attorney's opinion, is desirable to protect the Security Trustee's or any other Guaranteed
200 4138887 1 Creditor's interests under this deed and/or the Guarantee, and the Additional Guarantor hereby ratifies anything done by the Attorney or any delegate in accordance with this clause 5.
6. Implied provisions: For the purposes of section 14 of the Property Law Act 2007, the Additional Guarantor acknowledges that this deed is, and for all purposes and at all times shall be construed as being, supplemental to the Guarantee.
7. Address for notice: The initial address, facsimile number, email address and contact person (if any) of the Additional Guarantor for the service of notices is:
Address: Central Otago District Council 1 Dunorling Street ALEXANDRA 9320
Attention: Leanne Macdonald
Fax: N/A
Email: [email protected]
Postal Address: Central Otago District Council PO Box 122 ALEXANDRA 9340
8. Governing law: This deed shall be governed by, and construed in accordance with the laws of New Zealand, and the parties hereby submit to the non-exclusive jurisdiction of the courts of New Zealand.
9. No Crown guarantee: The obligations and liabilities of the Additional Guarantor under this deed and the Guarantee are not guaranteed by the Crown.
EXECUTED AS A DEED Additional Guarantor
CENTRAL OTAGO DISTRICT COUNCIL by:
Signature of Elected Member Signature of Elected Member
Name of Elected Member Name of Elected Member
201 4138887 2 SCHEDULE 1 EXISTING GUARANTORS
1. Ashburton District Council 2. Auckland Council 3. Bay of Plenty Regional Council 4. Canterbury Regional Council 5. Christchurch City Council 6. Far North District Council 7. Gisborne District Council 8. Gore District Council 9. Hamilton City Council 10. Hastings District Council 11. Hauraki District Council 12. Hawke's Bay Regional Council 13. Horowhenua District Council 14. Hurunui District Council 15. Hutt City Council 16. Invercargill City Council 17. Kaipara District Council 18. Kapiti Coast District Council 19. Manawatu District Council 20. Manawatū-Whanganui Regional Council 21. Marlborough District Council 22. Masterton District Council 23. Matamata-Piako District Council 24. Nelson City Council 25. New Plymouth District Council 26. Northland Regional Council 27. Ōtorohanga District Council 28. Palmerston North City Council 29. Porirua City Council 30. Queenstown-Lakes District Council 31. Rotorua District Council 32. Ruapehu District Council 33. Selwyn District Council 34. South Taranaki District Council 35. South Waikato District Council 36. South Wairarapa District Council 37. Stratford District Council
202 4138887 3 38. Taranaki Regional Council 39. Tararua District Council 40. Tasman District Council 41. Taupo District Council 42. Tauranga City Council 43. Thames-Coromandel District Council 44. Timaru District Council 45. Upper Hutt City Council 46. Waikato District Council 47. Waikato Regional Council 48. Waimakariri District Council 49. Waipa District Council 50. Waitomo District Council 51. Wellington City Council 52. Wellington Regional Council 53. Western Bay of Plenty District Council 54. Whakatane District Council 55. Whanganui District Council 56. Whangarei District Council
203 4138887 4
SECURITY STOCK CERTIFICATE
Stock Certificate No: 3
CENTRAL OTAGO DISTRICT COUNCIL (the Council)
Principal Office: Central Otago District Council William Fraser Building 1 Dunorling Street ALEXANDRA
Stock Transfer Office: Link Market Services Limited Level 11 Deloitte Centre 80 Queen Street AUCKLAND 1010 (the Registrar and Paying Agent)
Obligations under the Guarantee and Indemnity and related Accession Deed
Security Stock Certificate
The Security Stock referred to in this Certificate is Security Stock constituted and secured by a debenture trust deed (Trust Deed) dated on or about the date of this Certificate between the Council and Covenant Trustee Services Limited and is issued with the benefit and subject to the provisions of the Trust Deed, the conditions endorsed on and/or otherwise applicable to such Stock and this Certificate, including the further conditions (included in the term Conditions).
THIS IS TO CERTIFY THAT
1. TEL Security Trustee (LGFA) Limited (Holder) will, upon registration of the Stock pursuant to the Trust Deed, be the registered Holder of Security Stock (Stock) in a nominal amount equal to the aggregate amount, from time to time, of the liabilities, advances and other accommodation or obligations referred to in clause 2 of this Certificate;
2 SUBJECT to the provisions of clause 3 of this Certificate, the Stock is issued by way of continuing security for the due payment and satisfaction to the Holder of all liabilities of the Council to the Holder in respect of:
(a) the Accession Deed to Guarantee and Indemnity granted by the Council in favour of the Holder dated on or about the date of this Certificate; and
(b) the Guarantee and Indemnity granted by various local authorities in favour of the Holder (for the benefit of any Guaranteed Creditor as defined in the Guarantee and Indemnity) dated 7 December 2011 (as amended, supplemented or restated from time to time),
(each an Agreement and together the Agreements) whether incurred before or after the issue of the Stock and whether matured or not and whether incurred by the Council alone, or jointly, or jointly and severally with others and whether as principal or surety and whether absolute or contingent and shall include, but not by way of limitation,
33761881_2 204
obligations and liabilities in respect of any indemnities granted by the Council pursuant to the Agreements;
3. THE Stock is issued on the special condition that at any date (Relevant Date) the Priority Total Amount relating to the Stock is not more than:
(a) the lesser of:
(i) the aggregate amount (as finally determined) of all the liabilities, advances and other accommodation or obligations referred to in clause 2 of this Certificate at the Relevant Date, including capitalised interest owing at the Relevant Date but excluding any interest accrued pursuant to the terms of the Agreements and owing at the Relevant Date; and
(ii) the nominal amount of the Stock,
(such lesser amount being referred to in this Certificate as the Priority Principal Amount); and
(b) as interest, all interest (for the avoidance of doubt excluding capitalised interest) accrued pursuant to the terms of the Agreements and payable to the Holder on the amount referred to in paragraph 3(a)(i) above (up to the Priority Principal Amount) but excluding any interest accrued pursuant to the Agreements which has been due and owing since a date more than six months prior to the Date of Enforcement,
AND upon any distribution of the money available to Stockholders pursuant to the provisions of clause 15 of the Trust Deed the Stock shall entitle the Holder to payment pari passu with the other Stockholders in respect only of their Priority Principal Amount together with interest calculated pursuant to the provisions of paragraph (b) above PROVIDED ALWAYS that any amounts owing to the Holder in respect of which this Stock is issued but which do not form part of the Priority Total Amount shall rank for payment subsequent to the Priority Total Amounts of the other Stockholders but pari passu with any amounts referred to in the equivalent to this proviso in Security Stock Certificates held by other Stockholders (and as consistent with clause 6.3.1(c) of the Trust Deed); all in accordance with the Trust Deed (including the Conditions).
GIVEN by or on behalf of the Council this day of 2020
SIGNED for and on behalf of CENTRAL OTAGO DISTRICT COUNCIL ______Sanchia Jacobs Chief Executive Witness:
Signature of witness
Full name of witness
Occupation of witness
Address of witness
205 33761881_2
NOTES:
(1) The Holder is entitled to the benefit of, is bound by, and is deemed to have notice of, all the provisions of the Trust Deed (including the Conditions) (which may be inspected at the Principal Office of the Council).
(2) This Certificate must be surrendered to the Council or the Registrar before transfer of the whole or any part of the Stock can be registered.
(3) Words and expressions used in this Certificate and in the Conditions shall have the same definition as in the Trust Deed unless otherwise defined or the context otherwise requires.
206 33761881_2
CONDITIONS
1. SUBJECT as herein provided, the Holder of the Stock is entitled pari passu and rateably with the holders of all other Stock constituted by the Trust Deed to the benefit of, and is subject to, the provisions of the Trust Deed (including the Conditions).
2. EVERY Holder will be recognised by the Council, the Paying Agent and the Registrar as entitled to its Stock and to the Principal Money and interest payable thereon free from any equity, security interest, set-off or cross-claim or counter-claim between the Council and the original or any intermediate holder of the Stock (not being the Holder).
3. THE Stock may, to the same extent as the debts, liabilities, advances or other accommodation or obligations to which it relates, be transferred in accordance with the Trust Deed by an instrument in writing in the usual or common form, and the following provisions shall apply:
(a) every instrument of transfer must be executed by the transferor in the manner required by the Council or the Registrar or as required by the FMC Act and the transferor shall be deemed to remain the owner of the Stock until the name of the transferee is entered in the Register (as defined in the Trust Deed) in respect thereof;
(b) every instrument of transfer must be left at the registered office of the Registrar for registration accompanied by any Certificate in respect of the Stock to be transferred and such other evidence as the Council or the Registrar may require to prove the title of the transferor or its right to transfer the Stock. Upon being satisfied as to the due execution of the transfer, and the due compliance with the provisions of any Act relating to stamp duties, the Registrar will register the transfer in accordance with the Registrar and Paying Agency Agreement (as defined in the Trust Deed) and will recognise the transferee as the Holder entitled to the amount of Stock comprised in the transfer;
(c) all instruments of transfer which shall be registered will be retained by the Council or the Registrar, but any instrument of transfer which the Registrar may decline (on reasonable grounds) to register shall be returned to the person who has delivered the same together with the reasons for such non-registration;
(d) the Registrar shall not be obliged to, but may, register any transfer of Stock during the period between the Registrar's close of business on the Record Date immediately preceding the date for repayment of the Principal Money (or any part of the Principal Money) or payment of interest and the date for repayment of the Principal Money (or any part of the Principal Money) or payment of interest, or the period between the Registrar's close of business on the date 14 days before any meeting (inclusive of the date on which such meeting is held) of Holders is convened in accordance with the Trust Deed and the date of such meeting. For the purposes of these Conditions, Record Date means the tenth day before the relevant date for payment of any Principal and/or interest in respect of any Stock or, if such day is not a business day then such day as determined by the Paying Agent in accordance with its usual practice;
(e) no fee shall be charged by the Council for the registration of a transfer;
(f) the Council, the Trustee, the Paying Agent and the Registrar will recognise only the Holder as the absolute owner thereof and, except as ordered by a court of competent jurisdiction or by statute, shall not be bound to take notice or see to the execution of any trust whether express, implied or constructive to which any Stock may be subject. The receipt of such Holder, or in the case of joint Holders
33761881_2 207
- ii -
the receipt of any of them, of the Principal Money and the interest from time to time accruing due in respect thereof or for any other money payable in respect thereof, or the compliance with the payment directions of the Holders or any one of joint Holders, shall be a good discharge to the Council, the Trustee, the Paying Agent or to the Registrar, as the case may be, notwithstanding any notice it may have whether express or otherwise of the right, title, interest (including security interest) or claim of any other person to or in respect of such Stock, interest or money. No notice of any trust express, implied or constructive, nor of any security interest, shall be entered on the Register in respect of any Stock,
provided that the requirements for transfer in paragraphs (b), (c) and (d) shall not apply to the extent that the Council and the Registrar agree a different method of transfer either with the Trustee or, in respect of a particular transfer, with the relevant transferor and transferee.
208 33761881_2 Accession Deed to Notes Subscription Agreement
PARTIES
Central Otago District Council Acceding Party
New Zealand Local Government Funding Agency Limited Issuer
209 4138881 v2 DEED dated
PARTIES
Central Otago District Council ("Acceding Party")
New Zealand Local Government Funding Agency Limited ("Issuer")
pursuant to the Notes Subscription Agreement defined below.
INTRODUCTION
A. The Issuer has agreed that the Acceding Party may accede to the Notes Subscription Agreement as a "Subscriber".
B. This deed records the accession.
AGREEMENT
1. INTERPRETATION
1.1 Interpretation: In this deed:
"Local Authority" has the meaning given to it in the Local Government Act 2002.
"Notes Subscription Agreement" means the notes subscription agreement dated 7 December 2011 (as amended and restated on 6 July 2020) between the Issuer and various Local Authorities.
1.2 Notes Subscription Agreement: Terms defined in the Notes Subscription Agreement have the same meaning in this deed unless the context requires otherwise.
2. ACCESSION
2.1 Accession: The Acceding Party hereby agrees with the Issuer that with effect on and from the date this deed is counter-signed by the Issuer, it will be bound by the Notes Subscription Agreement as a Subscriber as if it had been an original party thereto and named therein as a Subscriber, and agrees to be bound by the terms of, and perform its obligations under, the Notes Subscription Agreement.
2.2 Acknowledgement: The Issuer acknowledges and agrees to the accession made under this deed.
210 4138881 v2 1 2.3 Implied provisions: For the purposes of section 14 of the Property Law Act 2007, the Acceding Party acknowledges that this deed is, and for all purposes and at all times shall be construed as being, supplemental to the Notes Subscription Agreement.
3. NOTICE
3.1 The details for notices for the Acceding Party for the purposes of the Notes Subscription Agreement are:
Delivery Address: Central Otago District Council 1 Dunorling Street ALEXANDRA 9320
Attention: Leanne Macdonald
Email: [email protected]
Postal Address: Central Otago District Council PO Box 122 ALEXANDRA 9340
4. GOVERNING LAW
This deed shall be governed by the laws of New Zealand.
5. NO CROWN GUARANTEE
The obligations and liabilities of the Acceding Party and Issuer under this deed and the Notes Subscription Agreement are not guaranteed by the Crown.
6. COUNTERPARTS
This deed may be signed in any number of counterparts, all of which together constitute one and the same instrument, and any of the parties may execute this deed by signing any such counterpart.
EXECUTED AS A DEED
Acceding Party
CENTRAL OTAGO DISTRICT COUNCIL by:
Signature of Elected Member Signature of Elected Member
Name of Elected Member Name of Elected Member
211 4138881 v2 2 Issuer
NEW ZEALAND LOCAL GOVERNMENT FUNDING AGENCY LIMITED by:
Signature of director Signature of director
Name of director Name of director
212 4138881 v2 3
STOCK ISSUANCE CERTIFICATE
I, Sanchia Jacobs, the Chief Executive of Central Otago District Council (the Council) hereby certify that:
1. the issue of Security Stock (represented by three separate Security Stock Certificates dated on or about the date of this certificate) with, in each case, a nominal amount equal to the aggregate amount, from time to time, of the liabilities, advances and other accommodation or obligations referred to in the Stock Certificate for the relevant Stock (together, the New Stock) under the terms of the Debenture Trust Deed dated on or about the date of this certificate (the Trust Deed) has been duly authorised by the Council, or has been authorised by a person or persons within the delegated authorities approved by the Council;
2. as at the date of this certificate (but prior to the issuance of the New Stock if it is to be issued on the date of this certificate) the total nominal amount of Stock issued and outstanding under the Trust Deed (showing separately the respective total nominal amounts) is as follows:
(i) Debenture Stock of: $0.00
(ii) Security Stock (issued with a fixed nominal amount) of: $0.00
(iii) Bearer Stock of: $0.00
together with:
(iv) Security Stock (issued with a floating nominal amount), which as at amounted to: $0.00
3. no Enforcement Event has occurred and remains unremedied;
4. for the purposes of section 115(3) of the Act, the loans or obligations secured by the New Stock have been raised for the benefit of all of the Council's district;
5. for the purposes of section 118 of the Act, the Council has complied with the Act in entering into and the performance of its obligations under the Trust Deed, the Registrar and Paying Agency Agreement and all other obligations entered into by the Council in connection with the Council's borrowing and granting security under the Trust Deed, including in respect of the New Stock.
This Certificate is given by me as Chief Executive of the Council in good faith on behalf of the Council and I shall have no personal liability in connection with the issuing of this Certificate.
213 33739545_4
Unless otherwise defined or the context otherwise requires, terms with a defined meaning in the Trust Deed shall have the same meaning where used in this Certificate.
Dated: 2020
______Sanchia Jacobs Chief Executive Central Otago District Council
Page 2 214 33739545_4 Officer's Certificate
TO: New Zealand Local Government Funding Agency Limited
AND TO: TEL Security Trustee (LGFA) Limited
I, Sanchia Jacobs, a duly authorised officer of Central Otago District Council (Council), hereby certify that all necessary regulatory or statutory authorisations, consents, approvals and licences in relation to:
a) the Council's entry into the Accession Deed to Multi-issuer Deed (MID Accession Deed) dated on or about the date of this certificate between the Council and New Zealand Local Government Funding Agency Limited (LGFA) and the Multi-issuer Deed dated 7 December 2011 (as amended and restated on 6 July 2020) between LGFA and various local authorities (Multi-issuer Deed);
b) the Council's entry into the Accession Deed to Notes Subscription Agreement dated on or about the date of this certificate between the Council and LGFA and the Notes Subscription Agreement (as amended and restated on 6 July 2020);
c) the Council's entry into the Accession Deed to Equity Commitment Deed (ECD Accession Deed) dated on or about the date of this certificate between the Council and LGFA and the Equity Commitment Deed (as amended and restated on 4 June 2015);
d) the Council's entry into the Accession Deed to Guarantee and Indemnity (Guarantor Accession Deed) dated on or about the date of this certificate granted by the Council in favour of TEL Security Trustee (LGFA) Limited and the Guarantee (as amended and restated on 6 July 2020); and
e) the issuance of Security Stock and Security Stock Certificates in respect of the Council's obligations under:
i. the MID Accession Deed and the Multi-issuer Deed; ii. the ECD Accession Deed and the Equity Commitment Deed; and iii. the Guarantor Accession Deed and the Guarantee,
have been obtained and are current and satisfactory.
Words and expressions defined in the Multi-issuer Deed have the same meanings in this certificate.
DATED: 2020
SIGNED:
Sanchia Jacobs Chief Executive Central Otago District Council
215 4138873 CHIEF EXECUTIVE CERTIFICATE
I, Sanchia Jacobs, the Chief Executive of Central Otago District Council (Council) certify as follows:
1. RESOLUTIONS
1.1 The Council has, by all necessary resolutions duly passed (Resolutions):
(a) approved the transactions contemplated by the documents referred to in the schedule to this certificate (Documents), or delegated sufficient authority to the person(s) who has approved those transactions to give that approval; and
(b) authorised execution of the Documents by the Council, or delegated sufficient authority to the person(s) who authorised execution of the Documents to give that authorisation.
1.2 The Resolutions remain in full force and effect.
2. COMPLIANCE WITH THE ACT
For the purposes of section 118 of the Local Government Act 2002 (Act), in entering into the Documents and performing its obligations under the Documents, and all other documentation contemplated by or entered into in connection with the Documents, the Council has complied with the Act.
3. DUE EXECUTION
The Documents have been properly executed by the Council.
This certificate is given by me in my capacity as Chief Executive of the Council in good faith on behalf of the Council and I shall have no personal liability in connection with the issuing of this certificate.
Dated: 2020
______Sanchia Jacobs Chief Executive Central Otago District Council
216 4138876 v2 SCHEDULE "Documents"
Words and expressions defined in the Multi-issuer Deed dated 7 December 2011 (as amended and restated on 6 July 2020) between New Zealand Local Government Funding Agency Limited and various local authorities ("Multi-issuer Deed") have the same meanings in this certificate.
1. Accession Deed to Multi-issuer Deed dated on or about the date of this certificate between the Council and New Zealand Local Government Funding Agency Limited and the Multi-issuer Deed.
2. Accession Deed to Notes Subscription Agreement dated on or about the date of this certificate between the Council and New Zealand Local Government Funding Agency Limited and the Notes Subscription Agreement (as amended and restated on 6 July 2020).
3. Accession Deed to Equity Commitment Deed dated on or about the date of this certificate between the Council and New Zealand Local Government Funding Agency Limited and the Equity Commitment Deed (as amended and restated on 4 June 2015).
4. Accession Deed to Guarantee and Indemnity dated on or about the date of this certificate granted by the Council in favour of TEL Security Trustee (LGFA) Limited and the Guarantee (as amended and restated on 6 July 2020).
5. Security Stock Certificate in favour of New Zealand Local Government Funding Agency Limited in relation to the Council's obligations under the Accession Deed to Multi-issuer Deed and the Multi-issuer Deed.
6. Security Stock Certificate in favour of New Zealand Local Government Funding Agency Limited in relation to the Council's obligations under the Accession Deed to Equity Commitment Deed and the Equity Commitment Deed.
7. Security Stock Certificate in favour of TEL Security Trustee (LGFA) Limited as Security Trustee in relation to the Council's obligations under the Accession Deed to Guarantee and Indemnity and the Guarantee.
8. Stock Issuance Certificate in respect of the issue of Security Stock evidenced by the above Security Stock Certificates.
217
Council 7 October 2020
Report for Decision
Disaster Recovery Reserve (Doc ID 500768)
1. Purpose of Report
To rename and repurpose the Disaster Recovery Reserve.
------
Recommendations
That the Council:
A. Receives the report and accepts the level of significance.
B. Resolves that Council retains its Disaster Recovery Reserve but rename it to “Emergency Event Reserve” and continue to retain a minimum of $50,000, and use the balance of interest, if necessary, to reduce rates, in any given year following any event that meets the criteria to access the fund.
C. Resolves to amend the purpose of the Emergency Event Reserve to “It is reasonable to consider claims from any “essential service” or “community group” within the district that has been affected by an “act of god” or an “unplanned event” such as a pandemic, and which is not already covered by insurance”. Essential service can include any services council provides that impact on the four community well-beings (social, economic, environmental and cultural).
D. Resolves that the general rules for claiming against the Emergency Event Reserve be used to fund: i. losses to council’s infrastructure or assets not otherwise insured (capital or operational costs); ii. losses to subsidised or non-subsidised roading to the extent that the fund exceeds $1 million. iii. losses to council’s essential services to offset increased costs of providing or reinstating a service impacted from the event; iv. the impact to the community or a specific segment of the community that is experiencing financial hardship as a result of an unplanned event. This may include allocating funds to minimise the rating impact on a community that is impacted financially from the event or allocating funds to support rate remissions.
Report author: Executive Manager – Corporate Services 218 In determining any claim the Council will take into account whether it might be fair and equitable to reduce the amount provided from the disaster relief fund by the schemes previously accumulated depreciation as per the fixed asset register, other existing funds available to a particular locality. The possibility that a proportion might be raised by a loan attributed to that scheme and any other local factors that it considers may be relevant.
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2. Executive Summary
In May 2020 a paper was brought to Council regarding the use of the Disaster Recovery Reserve. If recommended that funds from the reserve be used to help offset some of the costs incurred to the rate-payer as a result of growing costs for wastewater and waste minimisation. This was required as a direct result of the financial burden placed on the community from the COVID-19 pandemic.
The purpose of the Disaster Recovery Reserve was debated at the time, and while it was recognised that interest earned from the scheme could offset rate increases and therefore support a rates reduction for the community. It was also acknowledged that as a result of the COVID-19 pandemic, the purpose of this reserve needed to be revisited at a later date.
As at 30 June 2020, the current Disaster Recovery Reserve including interest is $2,533,427. However, $500,000 has been budgeted in the 2020/21 Annual Plan fund increases in wastewater and waste minimisation rising costs.
3. Background
In 1999 a paper from the then Finance Manager addressed the use of the fund. It provided an analysis of the risks from the risk assessment review, including the need to have in place funding mechanisms to fund a disaster and discussed both external insurance and Council’s Disaster Recovery Reserves. As part of that paper the question was raised as who should pay for this fund, and it was proposed that the “opportunity cost of the funding of disaster relief should be treated as an overall public good in the same manner that the Government has offered to cover 60% of the losses from its reserves. Therefore, it is not proposed that the cost should be recovered from any particular scheme or locality nor accounted for against any particular activity”.
This underlying philosophy of this reserve has not changed; however, it is recognised that the reserve needs to widen its scope to allow for the inclusion of pandemics and other such events as opposed to simply ‘disasters’ that may directly impact on infrastructure damage. It is recognised events, such as a pandemic, have a significant financial impact on the community, even if the infrastructure remains undamaged.
Therefore, it is proposed that the purpose of the reserve change from:
Report author: Executive Manager – Corporate Services
219 • “It is reasonable to consider claims from any “essential service” within the district that has been affected by an “act of god” which is not already covered by insurance”, to • It is reasonable to consider claims from any “essential service” or “community group” within the district that has been affected by an “act of god” or an “unplanned emergency event” and which is not already covered by insurance.
Essential service can include any services council provides that impact on the four community well-beings (social, economic, environmental and cultural).
4. Discussion
In the 2015-25 Long-term Plan and more recently in the 2018-28 Long-term Plan under Council’s Financial Strategy “Council continues to build its initial response fund for any natural disaster to provide for underground assets that are not covered by insurance and any unsubsidised costs in relation to natural disasters. Due to the size and spread of the councils staff, it is considered unlikely a disaster would affect the entire district at any one time, so the modelling of council’s exposure has taken this into account to determine our share of the funds required. Currently the disaster recovery reserve stands at $2.53 million and is projected to reach $4.66 million by Year 10, assuming council returns to rating for this reserve at $120 per annum and the reserve is not accessed for any rates reduction or emergency events. If an event caused damage that exceeded the balance of the reserve, Council has the borrowing capacity to raise debt for the balance.” This by itself, has not changed, however as a result of COVID-19, the need for this reserve has extended.
Natural disasters are often considered to be events such as flooding, earthquakes and droughts. A pandemic such as COVID-19 may not technically be considered a natural disaster. When this policy and funding were set up it is likely that officers and elected members never envisaged a pandemic of the magnitude of COVID-19 impacting New Zealand (and the world) to the degree it has. If it had been envisaged it is likely that the policy wording would have reflected this.
The more recent wording in the Long-term Plan 2018-28 and the subsequent discussions post the development of the policy around the use of this fund it is evident that the intention was for the fund to be used for such events as the COVID-19 pandemic. Staff propose that the fund can be used for both underground assets that are not covered by insurance and any unsubsidised costs in relation to natural disasters and emergency events.
Therefore, it is suggested that Council could use the fund in two ways: 1. The interest earned is used to subsidise or offset increases to rates to ease the burden on rate-payers during times council is required to increase rates above a level identified in their Financial Strategy. As per the original intent of the policy, the interest used does not require a disaster or unplanned event to trigger this usage, and
2. To meet any specific costs incurred as a result of a natural disaster or an unplanned significant event such as a pandemic. This could include allocating funds to specific operational or capital costs incurred as a result of damage from an event (disaster or
Report author: Executive Manager – Corporate Services
220 otherwise) to council’s assets, or to offset increased cost of providing or reinstating a service impacted from the event. This can be achieved by allocating funds to minimise the rating impact on a community that is impacted financially from the event, or allocating funds to support rate remissions.
5. Options
Option 1 – (recommended)
Rename and repurpose the intention of the Disaster Relief Recovery Reserve to include unplanned significant events such as a pandemic. Potential name could be, Emergency Event Reserve.
Advantages: • The funds will continue to be used in the manner intended when the reserve was established. • The fund will evolve to recognise the increased needs resulting from pandemics and such like unplanned events. • It will benefit Central Otago District Council ratepayers. • It will prevent a bow-wave effect if funding one-off costs that have arisen as a result of emergency events.
Disadvantages: • The Disaster Recovery Reserve will decrease resulting in less reserves available for a future disaster that may impact on Council’s assets or community. • The relief may not meet all ratepayers needs as some will still experience increases specific to their property and services received.
Option 2
Do not rename and re-purpose the Disaster Recovery Reserve.
Advantages: • Reserve funds are retained for future events. • Interest continues to accrue.
Disadvantages: • Rate increases as a result of events other than listed in the current policy cannot be mitigated, resulting in potential higher rates than many of council’s rate paying community would prefer. • Council are not seen to be using their emergency funds in the manner the public may expect. • No funds are released to provide relief to those in the community hardest hit unplanned events such as pandemics.
Report author: Executive Manager – Corporate Services
221 6. Compliance
Local Government Act 2002 This decision enables democratic local Purpose Provisions decision making and action by, and on behalf of the community. It meets the intended use of the Disaster Recovery Reserve as specified in the most recent Long-term Plan while also recognising that natural disasters are not the only impact the community now faces when experiencing disasters. AND This decision promotes the economic wellbeing of the community, in the present and for the future by providing relief when the public are experiencing a disaster or unplanned significant event such as a pandemic. Financial implications: Is this Yes. This proposal will use Council decision consistent with proposed reserves, meaning Council will not have activities and budgets in long term these reserves for an alternative disaster plan/annual plan? and Council will also earn less interest as a result of the reduced funds. There will be no budget constraint as the reserves already exist and is budgeted in the current Long-term Plan to continue to accumulate. Decision consistent with other Yes. Council has the right to use the Council plans and policies, such accumulated funds in line with how the as the District Plan, Economic principles of collecting these reserves. Development Strategy, etc? Considerations as to sustainability, No implications. the environment and climate change impacts Risk Analysis There is a risk that a ratepayer affected by the disaster/unplanned event may not agree with the council’s decision. There is also a risk that the district may suffer another disaster in the near future which this fund may be required for. Significance, Consultation and This does not meet the threshold under Engagement (internal and external) the Significance and Engagement policy to require consultation.
7. Next Steps
• Staff will update the 2021/31 Long-term Plan to to reflect the amended name and purpose of the Reserve. • The amended name and purpose will be updated and the policy placed on the website.
Report author: Executive Manager – Corporate Services
222
Report author: Reviewed and authorised by:
Leanne Macdonald Sanchia Jacobs Executive Manager – Corporate Services Chief Executive Officer 16/09/2020 23/09/2020
Report author: Executive Manager – Corporate Services
223
Council 7 October 2020
Report for Information
Mayor’s Report (Doc ID 508069)
------Recommendations
That the Council receives the report
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Some days are better than others in the life of a Mayor. The best days are when important things that have been worked at for a while come to fruition. “Fruition” is an apt word actually. Mayor Boult of Queenstown and myself have been engaging closely with Immigration Minister Kris Faafoi regarding the coming worker-shortage crisis in Central and the looming unemployment figure in Queenstown.
A big cohort of the unemployed in Queenstown are overseas workers who have not been able to get home following the outbreak of Covid. Mayor Boult and I wrote to Minister Faafoi on more than one occasion arguing that our mutual solutions lay in our mutual problems. A Zoom meeting was arranged, and I felt greatly encouraged when there were eight officials in the Zoom with the Minister as the more staff a Minister brings with them, the more likely action will ensue in my experience.
As a result of that meeting, and of course the work of others seeking the same outcome, the Supplementary Seasonal Employment (SSE) visa will be automatically given to around 11,000 working holiday visa holders in New Zealand with visas expiring between 1 November 2020 and 31 March 2021. These visas will allow them to work in horticulture and viticulture roles, where there are not enough New Zealanders available to do this work. Government changes will also enable other work visa holders to apply for an SSE visa if they have a job offer from a qualifying employer or if the job is on a specific Ministry of Social Development list currently being compiled.
This was a good result, but I need to emphasise that it will not, on its own, solve the labour shortage issue this season and that as a community, we are all going to need to do our part to get the fruit in, be that picking or packing ourselves, encouraging family members to stay and work over summer or offering board to a picker or two in our homes.
Another very good result this month was the announcement that The Gate in Cromwell and the Alexandra Unichem Pharmacy will be offering visitor information services in replacement to the closed i-Sites. The decision to close the i-Sites was not an easy one for those of us around the Council table, especially given the cost to the excellent people who worked there and I recognise the decision was not a popular one with some in the community. However, I always had faith that private enterprise would see the great opportunity that was presented by this decision and that has now come to pass. And, of course, the saving of $320,000 p.a. to ratepayers accompanied the closure is significant and a compelling reason behind the decision. I wish the new ventures every success.
I attended an excellent day out in the Millers Flat Hall convened by Teviot Prospects to look at where the Valley is at present and where it is/wants to go. Special guest was Report author: His Worship the Mayor 224 Distinguished Professor Paul Spoonley, a Massey based sociologist specialising in New Zealand demographics. We were privileged to hear him speak and to have the opportunity to be part of a broad and diverse group discussing afterwards what the community can do for itself.
Any discussion about the future of the Teviot and beyond has to take into account the big question of whether the proposed Lake Onslow battery will be built. This is something that will affect the whole of Central Otago if it happens, and I note that the Prime Minister raised it as a key policy plank early on during the TV One Leaders debate. Looking at current polling, my gut feeling (for what that is worth) is that the project is slightly more likely to happen than not and as I said last month, we need to start thinking about how best the people of the district both now and in the future can best benefit from the project and what it leaves behind.
Speaking of the election; I have been deeply disappointed at the vandalism of election hoardings right across the district. We need to be proud of, treasure and respect our democracy and hoardings pushing a view that might not align with yours are part of that precious institution. It might sound dramatic, but attacking these signs is, to me, attacking democracy. The people concerned need to have a bit of a look at themselves.
I also attended a candidate meeting in Cromwell for the Waitaki hopefuls. It was a joy being at the back of the room instead of up the front I must say, and it was enjoyable watching how the seven different candidates approached their five minute talk and answering questions from the chairman and the floor. It was a relatively quiet meeting until the very end when passions got aroused by a question referring to Agenda 2030, which is a theory based around world domination by the UN, or so I’m led to believe. Suddenly people were shouting and waving fists in the air. I was really quite staggered that this was the topic that got the biggest reaction on the night.
Quote of the night went to one candidate who proclaimed “there is no room for ideology in democracy”, plainly missing the point that democracy itself is an ideology. It would have been funny had they not been quite so earnest about it.
Report author:
Tim Cadogan Mayor 28/09/2020
Report author: His Worship the Mayor 225
CENTRAL OTAGO DISTRICT COUNCIL
VINCENT COMMUNITY BOARD
MINUTES of a meeting of the Vincent Community Board held in Ngā Hau e Whā, 1 Dunorling Street, Alexandra on Tuesday, 15 September 2020, commencing at 2.00 pm.
PRESENT: R Garbutt (Deputy Chair), R Browne, L Claridge, I Cooney, A Robinson and S Stirling-Lindsay
APOLOGIES: An apology was received from M McPherson.
It was moved (Browne/Claridge):
That the apology be accepted.
Motion carried
IN ATTENDANCE: His Worship the Mayor T Cadogan, L Macdonald (Executive Manager – Corporate Services), J Muir (Executive Manager - Infrastructure Services), S Righarts (Chief Advisor), G Bailey (Parks and Recreation Manager), C Martin (Property and Facilities Officer – Vincent and Teviot Valley), R de Witt (Accountant), L Stronach (Property Officer – Statutory), R Williams (Governance Manager) and W McEnteer (Governance Support Officer)
20.5.1 Public Forum
Graham Sinnamon (Central Otago Trotting Club): Mr Sinnamon wished to thank the Board in person for their grant in support of Central Otago Trotting Club race day. He reported that the grant had been spent on hiring a big screen for spectators. He mentioned that this was especially helpful not only for broadcasting the races themselves but also being able to show sponsors messages and show events on the day beyond racing. He noted that with the recent review of rural racecourses, future meetings of the Trotting Club would be held in Cromwell. Mr Sinnamon then took questions from the Board.
20.5.2 Confirmation of Minutes
It was moved (Browne/Sterling-Lindsay):
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That the Board confirms and receives the minutes of the meeting of the Vincent Community Board held on 4 August 2020 as a true and correct record.
Motion carried
20.5.3 Declaration of Interest
Members were reminded of their obligations in respect of declaring any interests. There were no declarations of interest and no changes to the interests noted in the agenda were declared.
Note: It was agreed that item 20.5.5 would be brought forward.
20.5.5 Alexandra Theatre – Stage Upgrade (Doc ID 501525)
A report from the Property and Facilities Officer – Vincent and Teviot Valley to provide an update on the design and costings of the Alexandra Theatre Stage Upgrade Project, and to get direction on the proposed funding and next steps had been circulated.
After discussion it was agreed that if the project was unable to achieve its external funding targets then there would be a report back to the Board.
It was moved (Browne/Claridge):
That the Board:
A. Receives the report and accepts the level of significance.
B. Agrees to proceed with the Alexandra Theatre Stage Upgrade Project at an updated estimate cost at the detailed design stage of $590,000.
C. Approves the updated funding structure of the project to be as follows:
Central Otago District Council 33% Otago Community Trust 10% Lotteries Community Facilities 44% Transpower Community Care Fund 8% Alexander McMillan Trust 5%
The draft Long Term Plan 2021/31 to be updated once the project tender has been concluded.
D. Approves the updated project programme as outlined in the report, and instructs Council staff to start the tendering process.
Motion carried
20.5.4 Police Update
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Senior Sergeant Clinton Wright gave an update on policing in the community. He mentioned that there had been an increase in serious and fatal crashes, with the vast majority of those drivers residing locally. He reported that there had recently been a decrease in methamphetamine being found, which was perhaps due to boarder closures and less domestic travel. He mentioned that MDMA remained a drug of concern for the Central Lakes region.
He noted that the region was yet to see full effects of the COVID-19 slowdown, but would once the wage subsidy ended. He noted the effects in particular on mental health and discussed the range of services available for people should they need to seek help. Senior Sergeant Wright then took questions from the Board.
20.5.6 Adoption of the Draft Molyneux Park Reserve Management Plan 2020 (COM-07-61-09)
A report from the Parks and Recreation Manager to consider the adoption of the Draft Molyneux Park Reserve Management Plan 2020 so that it may go out for public consultation as required under the Reserves Act 1977 had been circulated.
It was moved (Browne/Robinson):
That the Board:
A. Receives the report and accepts the level of significance.
B. Agrees to adopt the Draft Molyneux Park Reserve Management Plan 2020 and notify the plan for public submission.
C. Agrees that the Vincent Community Board hear submissions received on the draft plan.
Motion carried
20.5.7 Financial Report Period Ending 30 June 2020 (Doc ID 500444)
A report from the Accountant to provide a financial performance overview as at 30 June 2020 had been circulated.
It was moved (Cooney/Browne):
That the Board receives the report.
Motion carried
20.5.8 Mayor’s Report
228
His Worship the Mayor spoke to his report and added that he was happy to see that the Blossom Festival would go ahead this year after a lot of uncertainty. He mentioned the Job Fair that was scheduled for 10 October 2020 in Queenstown which hoped to match jobs in the horticulture and viticulture industries with people looking for work after losing their jobs due to COVID -19.
It was moved (Stirling-Lindsay/Robinson):
That the Board receives the report.
Motion carried
20.5.9 Chair’s Report
There was no report from the Chair.
20.5.10 Members’ Reports
Dr Browne reported on the following:
• Attended a Creative Writers Circle meeting and also the AGM. • Attended the Commerce Commission drop-in session regarding Aurora Energy • Reported that he had stepped down from the Chair of the Central Otago Districts Arts Trust. • Attended the drop-in session for the Vincent Spatial Plan. • Attended the Leaning Rock Village AGM. • Attended a Keep Alexandra / Clyde Beautiful meeting. • Reflected on some annual leave away on the West Coast. • Attended the opening of the Denis Kemp art exhibition currently at Central Stories. • Attended various REAP meetings.
Councillor Claridge reported on the following:
• Attended Council Longterm Plan meetings and Council meetings. • Attended the Denis Kemp exhibition at Central Stories. • Noted the industrial areas currently in development off Boundary Road by Placemakers and also the residential properties around Larch Crescent. • Also noted a lot of development currently underway around Bridge Hill. • Acknowledged everyone’s resilience during the current uncertain times.
Ms Sterling-Lindsay reported on the following:
• Acknowledged the committee for the Blossom Festival, as until just recently there was uncertainty around whether the festival would take place.
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• Attended the Puna Rangatahi board meeting and AGM. She acknowledged the completion of the recent youth survey which seeks to identify the biggest issues facing youth in this area. • Attended a meeting of the Central Otago Youth Council. • Attended a Waitaki Mental Health and Addictions Network meeting.
Ms Robinson reported on the following:
• Attended the Leaning Rock Village AGM. • Attended the Keep Alexandra/Clyde Beautiful meeting in to sort plans for upcoming clean up week. • Also attended a clean up session along Earnscleugh Road. • Noted the good attendance at the Vincent Spatial Plan meeting. • Attended the Haehaeata AGM, and reported on the guest speaker • Reported that she was currently helping Tourism Central Otago to look at developing a sustainably strategy.
Councillor Cooney reported on the following:
• Attended several meetings of the Hearings Panel. • Attended Long-term Planning sessions for Council. • Attended a Council meeting, noted that he attended via Microsoft Teams as his employment is at an aged care facility and they were in lockdown at that time. • Attended a workshop on the Vincent Spatial Plan.
Mr Garbutt reported on the following:
• Attended a Clyde Museum Group meeting. Noted that they are waiting for the museum strategy document to become available. • Attended the Commerce Commission session regarding Aurora Energy. Noted the large turnout at those sessions. • Noted that the proposed Chorus fibre meeting was cancelled, with many not knowing it was cancelled until they arrived at the venue on the day. • Attended the Vincent Spatial Plan meeting. • Attended the Central Otago Heritage Trust board meeting. • Attended a meeting in Ophir that included Ministers O’Connor and Parker regarding water in the Manuherekia River and discussed issues around water quality and use.
It was moved (Robinson/Cooney):
That the Board receives the reports.
Motion carried
20.5.11 Governance Report (Doc ID 501326)
A report from the Governance Support Officer for the Board to receive updates on ongoing projects not captured in status reports had been circulated.
230
It was moved (Cooney/Claridge):
That the Board receives the report.
Motion carried
20.5.12 Status Report on Resolutions
A report from Governance Support Officer to provide an update on resolutions had been circulated.
It was moved (Cooney/Claridge):
That the Board receives the report.
Motion carried
20.5.13 Date of the Next Meeting
The date of the next scheduled meeting is Tuesday, 3 November 2020.
231
THE BOARD IN CLOSED MEETING
In accordance with section 48(1) of the Local Government Official Information and Meetings Act 1987 and the particular interest or interests protected by section 6 or section 7 of that Act (or sections 6, 7 or 9 of the Official Information Act 1982, as the case may be), it is
It was moved (Robinson/Claridge):
That the public be excluded from:
• The following parts of the proceedings of this meeting, namely: item 20.5.14- 20.5.15.
The general subject of the matters to be considered while the public is excluded, the reason for passing this resolution in relation to each matter, and the specific grounds for excluding the public, as specified by s 48(1) of the Local Government Official Information and Meetings Act 1987, are set out below:
Meeting Item Reason for excluding the Grounds for excluding the public No. and public subject 20.5.14 The premature disclosure of To carry on, without prejudice or Clyde Heritage the financial information disadvantage, negotiations (including Precinct Land would detrimentally affect the commercial and industrial negotiations) Purchase – Council’s position in the (s 7(2)(i)). Sunderland negotiations. Street
20.5.15 The premature disclosure of To carry on, without prejudice or Status Report the financial information disadvantage, negotiations (including would detrimentally affect the commercial and industrial negotiations) Council’s position in the (s 7(2)(i)). negotiations.
Motion carried
The public were excluded at 3.46 pm.
232
THE BOARD IN OPEN MEETING
It was moved (Claridge/Stirling-Lindsay):
That the Board readmits the public.
Motion carried
The public were readmitted at 4.52 pm and the meeting closed at 4.52 pm.
……………………………….. CHAIR / /
234
CENTRAL OTAGO DISTRICT COUNCIL
MANIOTOTO COMMUNITY BOARD
MINUTES of a meeting of the Maniototo Community Board will be held in the Meeting Room, Ranfurly Service Centre, 15 Pery Street, Ranfurly on Thursday, 17 September 2020, commencing at 2.05 pm.
PRESENT: R Hazlett (Chair), M Harris (Deputy), S Duncan, D Helm and S Umbers
IN ATTENDANCE: His Worship the Mayor T Cadogan (joined via Microsoft Teams), J Muir (Executive Manager - Infrastructure Services), L Macdonald (Executive Manager – Corporate Services), S Righarts (Chief Advisor), R de Witt (Accountant) R Williams (Governance Manager) and W McEnteer (Governance Support Officer)
20.5.1 Public Forum
There were no speakers in the public forum.
20.5.2 Condolences
The Chair referred to the deaths of Betty Huddleston and Glenys Anderson. Members stood and observed a minute’s silence as a mark of respect.
20.5.3 Confirmation of Minutes
It was moved (Umbers/Harris):
That the Board confirms and receives the minutes of the meeting of the Maniototo Community Board held on 6 August 2020 as a true and correct record.
Motion carried
20.5.4 Declaration of Interest
Members were reminded of their obligations in respect of declaring any interests. There were no declarations of interest and no changes to the interests noted in the agenda were declared.
20.5.5 Financial Report Period Ending 30 June 2020
A report from the Accountant to provide a financial performance overview as at 30 June 2020 had been circulated.
235
It was moved (Harris/Duncan):
That the Board receives the report.
Motion carried
20.5.6 Mayor’s Report
His Worship the Mayor reported on the following:
• Had ‘Coffee and Chat’ sessions recently in Ranfurly, Naseby and Oturehua. Three people attended the Naseby session, two in Oturehua and none in Ranfurly. • Attended the turf turning for the new buildings at Maniototo Area School. • Attended the business group meeting in Ranfurly and reported good numbers present. • Noted that the Blossom Festival was next week and that that would mean more visitors throughout Central Otago. • Spoke to the Transpower hut build but reflected there was not a lot of detail currently.
It was moved (Duncan/Umbers):
That the Board receives the report.
Motion carried
20.5.7 Chair’s Report
Mr Hazlett reported on the following:
• Spoke with Renee Weir from Maniototo promotions about ideas for revitalising and beautifying Ranfurly. One of the ideas was a new sign at the Alexandra end of town. It was noted that there would need to be a discussion with Waka Kotahi about that as it was on the state highway network. • Had a conversation with John Dowling about the trees on Bullock Dray Road. They were falling into the landowners property. Staff to follow up. • Tabled a letter from the Maniototo Community Trust asking for a letter of support for pass through funding from Otago Community Trust. It was decided that writing a support letter would be put on hold pending further information from the Trust around its plans. • Noted that the new footpath in Oturehua was almost finished. • Noted that Transpower are waiting for consent to move relocatable huts to Ranfurly.
It was moved (Hazlett/Harris):
That the Board receives the report.
Motion carried
236
20.5.8 Members’ Reports
Ms Umbers reported on the following:
• Attended the launch of the Maniototo book. She reported that it was well received and well supported. • Enquired about the restrictors on the Patearoa water supply. She mentioned that there was now a call out fee for anyone who had service issues where there wasn’t before. Staff to follow up. • Enquired about the Ranfurly pool and whether there would be enough staff this year to keep it open for the full day. It was mentioned that the recruitment of pool staff is currently underway. Staff to follow up.
Mr Harris reported on the following:
• Made comment around problem dogs in Ranfurly.
Mr Helm reported on the following:
• Noted the condition of the road patching in Daisybank and that it needed further repairs. That road is part of the state highway network. • Commented that there had been some confusion on road conditions and whether roads were closed between the radio and other sources. It was clarified that the NZTA website was the best place to check for all roading conditions and closures. • Mentioned that rural fire training begins on Sunday. Mr Helm noted they have a good number of volunteers.
Councillor Duncan reported on the following:
• Attended the business group meeting. Commented that there was a mixed response from businesses, some doing well, some very bad. • Attended meetings at Council about the Long-term Plan. • Discussed the Touring Route announcement which was due shortly. Hopefully that would be good for local businesses. • Noted that it was great to see that the Blossom Festival was going ahead. • Reflected on banking and the rural community. • Attended the ‘Meet the Candidates’ session in Ranfurly. Mentioned that there was poor attendance. • Attended the launch of the Maniototo book. • Reflected on Otago Regional Council water rules and changes.
It was moved (Helm/Harris):
That the Board receives the reports.
Motion carried
20.5.9 Governance Report
A report from the Governance Support Officer for the Board to receive updates on ongoing projects not captured in status reports had been circulated.
It was moved (Harris/Umbers):
237
That the Board receives the report.
Motion carried
20.5.10 Status Report
A report from Governance Support Officer to provide an update on resolutions had been circulated.
It was moved (Umbers/Harris):
That the Board receives the report.
Motion carried
20.5.11 Date of the Next Meeting
The date of the next scheduled meeting is Thursday, 5 November 2020.
238
THE BOARD IN CLOSED MEETING
In accordance with section 48(1) of the Local Government Official Information and Meetings Act 1987 and the particular interest or interests protected by section 6 or section 7 of that Act (or sections 6, 7 or 9 of the Official Information Act 1982, as the case may be), it is
It was moved (Duncan/Helm):
That the public be excluded from:
• The following parts of the proceedings of this meeting, namely: item 20.5.12
The general subject of the matters to be considered while the public is excluded, the reason for passing this resolution in relation to each matter, and the specific grounds for excluding the public, as specified by s 48(1) of the Local Government Official Information and Meetings Act 1987, are set out below:
Meeting Item Reason for excluding the Grounds for excluding the public No. and public subject 20.5.12 The premature disclosure of To carry on, without prejudice or Status Report the financial information disadvantage, negotiations (including would detrimentally affect the commercial and industrial negotiations) Council’s position in the (s 7(2)(i)). negotiations.
Motion carried
The public were excluded at 3.05 pm.
239
THE BOARD IN OPEN MEETING
It was moved (Duncan/Harris):
That the Board readmits the public.
Motion carried
The public were readmitted at 3.06 pm and the meeting closed at 3.06 pm.
……………………………….. CHAIR / /
241
CENTRAL OTAGO DISTRICT COUNCIL
CROMWELL COMMUNITY BOARD
MINUTES of a meeting of the Cromwell Community Board held in Cromwell Service Centre, 42 The Mall, Cromwell on Tuesday, 22 September 2020, commencing at 2.02 pm.
PRESENT: A Harrison (Chair), W Murray (Deputy Chair), T Buchanan, R Dicey, N Gillespie, C Laws and N McKinlay
IN ATTENDANCE: His Worship the Mayor T Cadogan, S Jacobs (Chief Executive Officer), L Macdonald (Executive Manager – Corporate Services), L van der Voort (Executive Manager – Planning and Environment), S Righarts (Chief Advisor), B McLeay (Consultant Development Manager), G Robinson (Property and Facilities Manager), L Stronach (Property Officer – Statutory), F Somerville (Roading Administration Assistant), R de Witt (Accountant), R Williams (Governance Manager) and W McEnteer (Governance Support Officer)
20.6.1 Confirmation of Minutes
It was moved (McKinlay/Buchanan):
That the Board confirms and receives the minutes of the meeting of the Cromwell Community Board held on 10 August 2020 as a true and correct record.
Motion carried
20.6.2 Declaration of Interest
Members were reminded of their obligations in respect of declaring any interests. Mr Buchanan declared that he is not the treasurer of the Collie Dog Club or secretary of the Carrick Irrigation Co Ltd as mentioned in the agenda.
Note: Mr Phil Alison from Cherri Global Limited joined the meeting for item 20.6.3
20.6.3 Application for Road Name Approval – unnamed road off Thomson Gorge Road, Bendigo (Doc ID 451198)
A report from the Roading Administration Assistant to consider a request to name a public road off Thomson Gorge Road had been circulated.
Mr Alison spoke to the report and outlined his rationale for suggesting alternative names.
Note: With the agreement of the meeting, item 20.6.3 was left to lie on the table pending further work on the proposed road name.
242
20.6.4 Application for Easement over Sugarloaf Scenic Reserve (PRO: 62- 3006-00)
A report from the Property Officer - Statutory to consider an application for an easement, to construct bores and to convey water and electricity over the Sugarloaf Scenic Reserve, for irrigation purposes had been circulated.
After discussion the Board requested further information from the applicant. They requested a landscaping plan, to investigate whether the site could be located further north or in another place, options for Swann Road, what the value of the easement was, a hydrology report and whether the pipework could be located underground.
Note: With the agreement of the meeting, item 20.6.4 was left to lie on the table pending further information from the applicant.
20.6.5 An Overview of the Work on Council’s Role in Housing and Direction on the Next Steps for the Remaining Land at Gair Avenue (Doc ID 500895)
A report from the Chief Advisor to provide an overview of the work to date on council’s role in housing and to receive approval to progress advice on the next stage of the Gair Avenue development as part of this work had been circulated.
It was moved (Gillespie/McKinlay):
That the Board:
A. Receives the report.
B. Notes the progress on the work on council’s role in housing.
C. Agrees to receive a paper on developing the remaining land at Gair Avenue as part of the ‘land and development’ options in the housing work.
Motion carried
20.6.6 Financial Report - Period Ending 30 June 2020 (Doc ID 500812)
A report from the Accountant to provide the financial performance overview as at 30 June 2020 had been circulated.
It was moved (Murray/Buchanan):
That the Board receives the report.
Motion carried
243
20.6.7 Mayor’s Report
His Worship the Mayor reported on the following:
• Attended the Commerce Commission sessions about Aurora in Alexandra and Cromwell. Reported strong opinion and vigorous debate at both of those sessions. • Reflected on the coming shortage of seasonal workers in the horticulture and viticulture sectors. Reported that there had been an update to a number of visa categories through to 31 March 2021, which would go some way to assisting. Mentioned the Jobs Fair on 10 October in Queenstown which would seek to pair workers with employers in the horticulture and viticulture sector. • Attended a Maternity Services meeting organised by SDHB in August in Cromwell. There was a discussion around a centralised location in Central Otago for these services. • Collected for Daffodil Day this year in Cromwell. He acknowledged the generosity of the Cromwell Community. • Reflected on the Three Waters reforms and what it could mean for Central Otago. • Attended two business meetings in Cromwell, including one that was originally cancelled but a number of participants arrived anyway so there was an impromptu session. • Attended the ‘Meet the Candidates’ session in Cromwell.
It was moved (Harrison/Murray):
That the Board receives the report.
Motion carried
20.6.8 Chair’s Report
Ms Harrison reported on the following:
• Attended the Museum Trust meeting. Mentioned that the museum had gained “Arts in the Regions” funding. • Attended the Commerce Commission meeting about Aurora in Cromwell. • Attended the Promotions Group meeting. • Attended the Kāhui Ako management meeting. • Hosted the University of Otago medical students’ community contact session via Zoom. • Attended NZSTA finance training. • Reported that she was unable to attend the Youth Trust meeting due to be given the incorrect time for the meeting. • Attended the Wellbeing in Education Conference, recently held in Christchurch.
It was moved (Harrison/Buchanan):
That the Board receives the report.
Motion carried
244
20.6.9 Members’ Reports
Councillor McKinlay reported on the following:
• Attended a meeting of the Major Water Project Governance Group. Gave an overview to members about current issues in that space. • Attended the Council Long-term Plan meeting. • Attended a Council meeting. Reflected on the proposed Three Waters changes and the memorandum of understanding between Council and central government that has been signed for the first tranche of funding.
Councillor Laws reported on the following:
• Attended the Commerce Commission meeting about Aurora in Cromwell. • Attended Council meetings including the Long-term Plan workshop. • Attended the Historic Precinct meeting. Reported that plans for McNulty House were proceeding well. • Attended a meeting regarding Three Waters reforms. • Was a collector for the Cancer Society for Daffodil Day.
Mr Dicey reported on the following:
• Reported that he had assisted Mohiki Trust with some water issues they had. • Attended the Commerce Commission meeting about Aurora in Cromwell. • Recently attended a seminar at Cromwell museum. • Reported his recent excursion to view cherry orchards in the region.
Councillor Gillespie reported on the following:
• Attended several meetings of the Hearings Panel. Mentioned a visit to Queensbury to view a site as part of the Hearings Panel. • Attended several Council meetings including a Long-term Plan meeting. Reflected on several items from the Council meeting including the Queenstown Lakes Sport Policy and that the transfer of harbourmaster duties between the Council and the Otago Regional Council had been completed. • Attended the meeting in Ophir with Ministers O’Connor and Parker about the Manuherekia Catchment Exemplar announcement. • Met with Mike Singleton from Christchurch International Airport. • Mentioned the rugby club in Cromwell and the success they have had this year. Congratulations was given all round. Also commented that Cromwell College were champions in netball this year.
Mr Buchanan reported on the following:
• Attended several meetings of the Bannockburn Recreation Reserve committee. • Mentioned a letter he had received regarding the campground in Bannockburn. • Reported the corner of Swann and Heaney Roads had loose and broken gravel and it is difficult to pass anyone safely without hitting the loose material. Staff to follow up. • Reported an enquiry about the lack of daytime parking around the Mall.
245
Mr Murray reported on the following:
• Attended two meetings of the Museum Trust. • Attended a meeting of the Cromwell and Districts Community Trust. Mentioned that the draft Community Plan would be released shortly. • Attended the Commerce Commission meeting about Aurora in Cromwell.
It was moved (Dicey/Laws):
That the Board receives the report.
Motion carried
20.6.10 Governance Report (Doc ID 499549)
Attached is a report from the Governance Support Officer to provide updates on ongoing projects not captured in status reports.
After discussion it was queried whether the Board appoints a board member for Cromwell Community House. Staff to follow up.
It was moved (Gillespie/McKinlay):
That the Board receives the report.
Motion carried
20.6.11 Status Report on Resolutions
Attached is a report from Governance Support Officer to provide an update on resolutions.
It was moved (Murray/McKinlay):
That the Board receives the report.
Motion carried
20.6.12 Date of the Next Meeting
The date of the next scheduled meeting is Monday, 9 November 2020.
246
THE BOARD IN CLOSED MEETING
In accordance with section 48(1) of the Local Government Official Information and Meetings Act 1987 and the particular interest or interests protected by section 6 or section 7 of that Act (or sections 6, 7 or 9 of the Official Information Act 1982, as the case may be), it is
It was moved (Gillespie/Dicey):
A. That the public be excluded from:
• The following parts of the proceedings of this meeting, namely: items 20.6.13- 20.6.15
The general subject of the matters to be considered while the public is excluded, the reason for passing this resolution in relation to each matter, and the specific grounds for excluding the public, as specified by s 48(1) of the Local Government Official Information and Meetings Act 1987, are set out below:
Meeting Item Reason for excluding the Grounds for excluding the public No. and public subject 20.6.13 The public are excluded The withholding of the information is because the report includes necessary to protect information where Commercial financial details submitted by the making available of the information Subdivision, another party. If the financial would be likely unreasonably to Cromwell details were made public prejudice the commercial position of the prior to the proposed actions person who supplied or who is the being completed, it would subject of the information. (s 7(2)(b)(ii)) prejudice that party’s position.
The premature disclosure of To carry on, without prejudice or the financial information disadvantage, negotiations (including would detrimentally affect the commercial and industrial negotiations) Council’s position in the (s 7(2)(i)). negotiations. 20.6.14 The premature disclosure of To carry on, without prejudice or the financial information disadvantage, negotiations (including Request for would detrimentally affect the Licence to commercial and industrial negotiations) Council’s position in the (s 7(2)(i)). Occupy - part negotiations. Cromwell Wastewater Treatment Plant
20.6.15 The premature disclosure of To carry on, without prejudice or the financial information Status Report disadvantage, negotiations (including would detrimentally affect the commercial and industrial negotiations) Council’s position in the (s 7(2)(i)). negotiations.
B. That Shirley Calvert is permitted to remain at this meeting after the public has been excluded as a member of Council.
Motion carried
247
The public were excluded at 3.53 pm.
Note: The meeting was adjourned at 3.53 pm and resumed at 4.02 pm
248
THE BOARD IN OPEN MEETING
It was moved (Gillespie/Dicey):
That the Board readmits the public.
Motion carried
The public were readmitted at 4.59 pm and the meeting closed at 4.59 pm.
……………………………….. CHAIR / /
251
CENTRAL OTAGO DISTRICT COUNCIL
TEVIOT VALLEY COMMUNITY BOARD
MINUTES of a meeting of the Teviot Valley Community Board held in Roxburgh Service Centre, 120 Scotland Street, Roxburgh on Thursday, 24 September 2020, commencing at 2.07 pm.
PRESENT: S Feinerman (Acting Chair), C Aitchison, N Dalley and S Jeffery
APOLOGIES: An apology was received from R Gunn
It was moved (Jeffery/Aitchison):
That the apology be accepted.
Motion carried
IN ATTENDANCE: His Worship the Mayor T Cadogan, S Jacobs (Chief Executive Officer), L Macdonald (Executive Manager – Corporate Services), L van der Voort (Executive Manager – Planning and Environment), S Righarts (Chief Advisor), G Bailey (Parks and Recreation Manager), R de Witt (Accountant), R Williams (Governance Manager) and W McEnteer (Governance Support Officer)
20.5.1 Confirmation of Minutes
It was moved (Dalley/Aitchison):
That the Board confirms and receives the minutes of the meeting of the Teviot Valley Community Board held on 13 August 2020 as a true and correct record.
Motion carried
20.5.2 Declaration of Interest
Members were reminded of their obligations in respect of declaring any interests. Mr Dalley declared he was now the chair of Teviot Valley Rest Home Incorporated.
20.5.3 Financial Reporting Period Ending 30 June 2020 (Doc ID 501127)
A report from the Accountant to provide a financial performance overview as at 30 June 2020 had been circulated.
It was moved (Jeffery/Aitchison):
252
That the Board receives the report.
Motion carried
20.5.4 Mayor’s Report
His Worship the Mayor reported on the following:
• Attended the Teviot Futures Forum in Millers Flat. Mentioned the range of interesting presentations given. Also noted the strong iwi representation at the event. • Mentioned work on the potential hydro project at Lake Onslow and noted that the topic appeared on the recent TV One Leaders debate. • Attended a ‘coffee and chat’ session at Ettrick. • Attended the Roxburgh Business Breakfast. He reported that amongst the topics discussed was ways to keep and enhance Roxburgh as a place to stop and visit.
It was moved (Feinerman/Aitchison):
That the Board receives the report.
Motion carried
20.5.5 Chair’s Report
Ms Feinerman read out the Chair’s report in his absence:
• Attended a meeting of the Teviot Valley Rest Home. • Attended the AGM of the Millers Flat Water Company. • Attended a Medical Services Trust meeting. • Attended the AGM of the Roxburgh Trotting Club. • Attended the AGM of the Teviot Valley Rest Home. • Reported a large branch that had broken away from the cedar trees in King George Park. He noted that the debris had been removed. • Noted that there was some concern about the frequency of the bins being emptied in Roxburgh. Had followed up with staff to resolve.
It was moved (Jeffery/Aitchison)
That the Board receives the report.
Motion carried
20.5.6 Members’ Reports
Ms Feinerman reported on the following:
• Attended a Teviot Prospects meeting. • Attended a Walking Committee meeting. Among the topics discussed was the pending arrival of new signage and a potential project to upgrade the river track.
253
• Attended the business breakfast meeting. • Attended the Teviot Futures Forum. • Gave an update on the swimming pool. She mentioned that the final costings of the project would be known shortly. Might be useful for a public meeting to receive ideas about fundraising.
Mr Dalley reported on the following:
• Attended a Teviot Prospects meeting. • Reported that he was unable to attend the last meeting of the Roxburgh Cemetery Trust. • Attended the meeting of the Entertainment Centre committee. • Attended the Teviot Futures Forum. Commented on the very engaging speakers that gave presentations. • Attended the AGM for the Teviot Valley Rest Home. Mentioned that he was elected chair at that meeting.
Mrs Aitchison reported on the following:
• Attended an Entertainment Centre meeting. Reported that they had applied for funding for new screen and sound system. Discussed the name change for the cinema to Lumière. • Discussed the Breast Cancer fund organising a movie night and converting the attic in the Entertainment Centre into cinema.
Councillor Jeffery reported on the following:
• Attended the business breakfast meeting. • Attended the Long-term Plan meeting. • Attended the horticulture and viticulture update via Zoom. • Attended several Hearings Panel meetings. • Met with Joseph Mooney, the National Party candidate for Southland and discussed labour shortage concerns. • Attended a Zoom meeting with MP Mark Patterson to discuss labour shortage issues. • Attended a Teviot Prospects meeting. • Attended a Council meeting and gave an update on topics discussed. • Attended the Teviot Futures Forum. • Attended the Central Otago Labour Market Governance group meeting. • Attended a Vincent Spatial Plan workshop.
It was moved (Jeffery/Aitchison):
That the Board receives the report.
Motion carried
20.5.7 Governance Report (Doc ID 499902)
254
Attached is a report from the Governance Support Officer to provide an update on ongoing projects not captured in status reports.
It was moved (Feinerman/Aitchison):
That the Board receives the report.
Motion carried
20.5.8 Status Report on Resolutions
Attached is a report from Governance Support Officer to provide an update on resolutions.
It was moved (Dalley/Aitchison):
That the Board receives the report.
Motion carried
20.5.9 Date of the Next Meeting
The date of the next scheduled meeting is Thursday, 12 November 2020.
The meeting closed at 2:40 pm.
……………………………………………..
CHAIR / /
255 256 257 258 259
Council 7 October 2020
Report for Information
Status Report on Resolutions – Planning and Environment
Purpose of Report
To provide Council with an update on resolutions.
------Recommendations
A. Recommended that the report be received.
------
Resolution 20.7.9 – August 2020 Minister of Conservation’s Consent to the Reclassification of Part of the Clyde Recreation Reserve and the Granting of Easements over the Adjacent Reserve
That the Council:
A. Receives the report and recognises the level of significance
B. Agrees to grant consent (under delegated authority) on behalf of the Minister of Conservation, to the Council:
o reclassifying an area of approximately 1 hectare of the Clyde Recreation Reserve, being part of Section 1 Block LVI Town of Clyde, to Local Purpose (Pumping Station) Reserve, and; o to the granting of a right of way and the right to convey services over Lot 1 DP 12265 and Lot 1 DP 17540.
C. Authorises the Chief Executive to do that is necessary to give effect to the resolution
STATUS
September 2020 – Reclassification will commence once legal boundary can be identified.
August 2020 – Action memo sent to Property Officer – Statutory.
Resolution 20.7.18 – August 2020 Legalising the Existing Rural Networks South Island Occupations
That the Council:
Report Author: Executive Manager - Planning and Environment 260
A. Receives the report and recognises the level of significance
B. Approves, subject to the Reserves Act 1977, the granting of licences to Rural Networks South Island for the purpose of locating telecommunications towers on sites on the following reserves:
• Gilligans Gully Road, being Part Lot 8 DP 429123, • Clyde Lookout Road, being Part Town Belt of Clyde, • Earnscleugh Road, being Part Section 149 Block I Fraser Survey District, and; • Sugarloaf, being Part Lot 15 DP 418764
C. Agrees to the inclusion of terms in the Gilligans Gully licence providing for:
• the existing sub-tenancy to 2 Degrees Limited, and; • the charging of a fee to cover power at $750 per annum per tenant, subject to adjustment by any increases in supply of energy or network charges.
D. Agrees to include a term in the Clyde Lookout Road licence providing for the charging of a fee to cover power at $750 per annum, subject to adjustment by any increases in supply of energy or network charges.
E. Agrees to grant consent (under delegated authority), on behalf of the Minister of Conservation, to Council issuing licences over sites on the scenic and recreation reserves identified above in B.
F. Approves, subject to the Airport Authorities Act 1966, the granting of a lease to Rural Networks South Island for the purpose of locating a telecommunications tower at the Alexandra Airport, being Part Lot 2 DP 300842, subject to the Company continuing to provide free internet services to the Airport Terminal.
G. Agrees to the new licences and the lease being granted for a term of 5 years each, with one right of renewal, subject to adjustment by CPI on renewal, commencing 01 July 2020.
H. Approves the use of the Licence Fee Calculator (shown in Figure 6) for the purpose of determining current rentals and subrentals.
I. Agrees, subject to adjustment by CPI, to the Licence Fee Calculator being adopted as the standard for determining future rentals and subrentals for telecommunications sites on Council reserves.
J. Authorises the Chief Executive to do all that is necessary to give effect to the resolution.
Report author: Executive Manager - Planning and Environment
261 STATUS
September 2020 – Licencee notifed of outcome.
August 2020 – Action memo sent to Property Officer – Statutory.
Resolution 20.7.17 – August 2020 Central Stories Building – Fees and Charges
That the Council:
A. Receives the report and recognises the level of significance
B. Agrees to amend the Annual Plan 2020/21 Fees and Charges Schedule to include the Central Stories Building meeting room and theatre hire at:
i. Commercial $40/hour ii. Non-commercial $20/hour
C. Authorises the Chief Executive Officer to do all that is necessary to give effect to the Council’s resolution.
STATUS
September 2020 – Bookings are now being taken and charged at the agreed rate.
August 2020 – Action memo sent to Property and Facilities Officer – Vincent and Teviot Valley.
Resolution 20.7.12 – August 2020 Harbourmaster – Deed of Transfer Update
That the Council:
A. Receives the report and recognises the level of significance
B. Agrees to the transfer agreement and associated transfer of assets to Otago Regional Council.
C. Agrees the Central Otago District Council Lake Dunstan Navigation Safety Bylaw 2017 is revoked subject to the execution of the transfer agreement between Central Otago District Council and Otago Regional Council regarding the harbourmaster functions, duties and powers.
STATUS CLOSED
September 2020 – Deed is complete. Matter closed.
Report author: Executive Manager - Planning and Environment
262 August 2020 – Action memo sent to Regulatory Services Manager. Resolution 20.7.6 – August 2020 Central Otago District Tree Policy
That the Council:
A. Receives the report and recognises the level of significance
B. Adopts the Central Otago District Council Tree Policy 2020, noting that the policy to be reviewed and include planting guidelines within 18 months.
STATUS CLOSED
September 2020 – Approved at August 2020 Council meeting. Matter closed.
August 2020 – Action memo sent to Parks and Recreation Manager.
Resolution 20.7.6 – August 2020 Queenstown Lakes and Central Otago Regional Sport and Recreation Facility Strategy
That the Council:
A. Receives the report and recognises the level of significance
B. Notes that the Strategy provides a framework to assist Council's decision-making over the next 10 years across several areas including in the development of new facilities; major upgrades and optimisation of existing facilities; potential divestment of facilities no longer meeting community needs; and partnership opportunities with other providers of community facilities.
STATUS CLOSED
September 2020 – Resolved at August 2020 Council meeting. Matter closed.
August 2020 – Action memo sent to Parks and Recreation Manager.
Resolution 20.5.17 – July 2020 Hearing Panel Members
That the Council:
A. Receives the report and accepts the level of significance.
B. Appoints Councillors Stephen Jeffery, Ian Cooney, Tracy Paterson and Cheryl Laws to hear and determine the objection to a disqualified owner notice.
Report author: Executive Manager - Planning and Environment
263 STATUS ON HOLD
September 2020 – Appeal is lodged with District Court. Awaiting hearing date. On hold until advised of hearing date, when updates will resume.
August 2020 – The objection to the disqualification notice hearing was held on 7 August 2020.
July – Action memo sent to the Regulatory Services Manager
Resolution 20.5.14 – July 2020 Submission on Proposed Amendments to the National Environmental Standards for Air Quality
That the Council:
A. Receives the report and accepts the level of significance.
B. Approves the draft submission to the Proposed amendments to the National Environmental Standards for Air Quality, as attached in Appendix 1, subject to amendments as discussed.
STATUS CLOSED
September 2020 – Submission was lodged in August. Matter closed.
August 2020 – Submission lodged
July – Action memo sent to the Planning Manager
Resolution 20.5.4 – July 2020 Lease of Kyeburn Reserve – Ratification
That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees to grant the Kyeburn Committee a lease pursuant to Section 61(2A) of the Reserves Act 1977, on the following terms:
1. Permitted use: Community Hall 2. Term: 33 years 3. Rights of Renewal: None 4. Land Description Sec 20 Blk V11 Maniototo SD 5. Area: 0.4837 hectares 6. Rent: $1.00 per annum if requested
Subject to the Kyeburn Hall Committee
1. Becoming an Incorporated Society
Report author: Executive Manager - Planning and Environment
264 2. Being responsible for all outgoings, including utilities, electricity, telephone, rubbish collection, rates, insurance and ground maintenance
STATUS
September 2020 – E-mailed the Kyeburn Hall Committee to follow up progress on getting their status as an Incorportaed Society.
August 2020 – Advised Kyeburn Hall Committee of Council’s resolution and waiting for confirmation of their status as an Incorporated Society before issuing the lease.
July – Action memo sent to Property and Facilities Officer - Maniototo
Resolution 20.5.3 – July 2020 Cemeteries Bylaw 2020
That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees that the proposed Central Otago District Council Cemeteries Bylaw 2020 is the most appropriate way to address and regulate the management of cemeteries in the Central Otago district.
C. Approves the proposed Central Otago District Council Cemeteries Bylaw 2020 and proposed Cemeteries Handbook as the preferred option for managing cemeteries.
D. Authorises the proposed Central Otago District Council Cemeteries Bylaw 2020 and proposed Cemeteries Handbook for public consultation following the special consultative procedure.
STATUS
September 2020 – To be considered at October Council meeting.
August 2020 – Bylaw currently out for public consultation unitl 21 August. Submissions received will be heard at October Council meeting.
July – Action memo sent to Parks and Recreation Manager.
Resolution 20.4.9 – June 2020 Minister of Conservation’s Consent – Easement over Recreation Reserve That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees to grant consent (under delegated authority), on behalf of the Minister of Conservation, to Council issuing an easement over Blackmore Park Recreation reserve, in favour of Aurora Energy Limited.
Report author: Executive Manager - Planning and Environment
265
STATUS
September 2020 – New title issued for Blackmore Park. Trenching to install services continues.
August 2020 – With contractor to manage in conjuction with subdivision.
July – Contractor and surveyor advised of consent, Authority and Instruction forms and vesting certificate executed.
June 2020 – Action memo sent to Property Officer – Statutory.
Resolution 20.4.7 – June 2020 Central Otago District Council Draft Tree Policy 2020
That the Council:
A. Receives the report.
B. Agrees the draft Central Otago District Council District Tree Policy 2020 be referred for public consultation.
C. Notes that a 5-year cyclical tree maintenance regime will be developed with the financial implications for each ward to be considered as part of the 2021 - 2031 long term plan process.
STATUS CLOSED
September 2020 – Considered by Council at its August 2020 meeting. Refer to resolution 20.7.6. Matter closed.
August 2020 – Final report to Council’s August meeting.
June 2020 – Tree policy out for public comment which closes 27 June. Final report to Council’s August meeting.
June 2020 – Action memo sent to Parks and Recreation Manager.
Resolution 20.4.5 – June 2020 Request for Private Plan Change 15 – Clyde Claim Limited, Houlahan Enterprises Ltd, Colin Foster, Vicki Anne Geytha Gillies and Ostex Corporation Ltd (PC0015)
That the Council:
A. Receives the report and accepts the level of significance.
B. Resolves that Plan Change 15 be accepted in terms of Clause 25(2) (b) of the First Schedule to the Resource Management Act 1991.
Report author: Executive Manager - Planning and Environment
266 C. Resolves that Plan Change 15 be publicly notified pursuant to Clause 26 of the First Schedule to the Resource Management Act 1991 at the earliest opportunity.
STATUS
September 2020 – Hearing scheduled for late October.
August 2020 – Plan change notified.
July 2020 – Plan change to be notified.
June 2020 – Action memo sent to Planning Manager.
Resolution 20.4.6 – June 2020 Proposed Dog Control Bylaw and Dog Control Policy 2020
That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees that a bylaw is the most appropriate way of addressing the perceived problem, and the proposed bylaw is in the most appropriate form and does not give rise to any implications under the Bill of Rights Act 1990.
C. Approves the proposed dog control bylaw and the dog control policy amended as follows “so that dogs on prohibited areas are permitted by express permission of the landowner”.
D. Authorises the proposed dog control bylaw and the dog control policy for public consultation following the special consultative procedure.
E. Appoints the Hearings Panel to hear any submissions and to make a recommendation to Council on the proposed dog control bylaw and dog control policy.
STATUS
September 2020 – Submissions were heard. Deliberations to be arranged with Hearings Panel.
August 2020 – A hearing has been scheduled for 21 August to hear submissions.
July 2020 – The consultation process is still underway. Submissions close on 6th July 2020.
June 2020 – Action memo sent to Regulatory Services Manager.
Report author: Executive Manager - Planning and Environment
267 Resolution 20.2.5 – March 2020 Vincent Spatial Plan
That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees to the development of the Vincent Spatial Plan for the Alexandra Basin, to be funded through existing 2019-20 and 2020-21 annual budgets.
STATUS
September 2020 – Stakeholder workshop was held on 9 September 2020. Options being developed from the workshop for public consultation.
August 2020 – Public drop-in sessions being held during August.
July 2020 – ILM workshop held and work underway on the options with further consultation also planned.
April & May 2020 – Initial consultation through survey completed with over 600 responses. Scoping of Spatial Plan with consultants completed and workshops to commence once restrictions eased.
March 2020 – Action memo sent to Executive Manager – Planning and Environment.
Resolution 19.11.18 – December 2019 Minister of Conservation's Consent - Easement over Recreation Reserve
Receives the report and accepts the level of significance.
A. Agree to grant an easement in gross to Aurora Energy on commercial terms, over Lot 202 DP 359319, with all costs associated with preparing and registering the easement being met by Aurora Energy
B. Authorises the Chief Executive Officer to do all that is necessary to give effect to the resolution.
STATUS
September 2020 – Application remains on hold.
August 2020 – Application remains on hold.
July 2020 – Application is still on hold.
May 2020 – Application on hold while alternate options are investigated with a view to avoiding payment of the easement fees.
February 2020 – Applicants advised of valuation, awaiting response.
Report author: Executive Manager - Planning and Environment
268 January 2020 – Action memo sent to Property Officer – Statutory.
Resolution 19.11.17 – December 2019 Easement over Endowment Land in favour of Aurora Energy Ltd
That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees to grant an easement in gross to Aurora Energy Limited for $1 over Lot 3 DP 526140, with all costs associated with preparing and registering the easement being met by Aurora Energy.
C. Authorises the Chief Executive Officer to do all that is necessary to give effect to the resolution.
STATUS
September 2020 – Awaiting completion advice from Aurora Energy.
August 2020 – Advised by Aurora that works will be completed in October.
July 2020 – Previously oustanding works are now in progress.
May 2020 – June 2020 – Works were to be undertaken between 24 March and 8 April – most have been completed but some remain outstanding due to COVID-19 restricitions.
February 2020 – Documentation signed and returned to Aurora who will now undertake works.
January 2020 – Action memo sent to Property Officer – Statutory. Resolution 19.11.16 – December 2019 Proposed Road Stopping – Cemetery Road, Tarras
That the Council:
A. Receives the report and accepts the level of significance.
B. Approves the proposal to stop an area of approximately 452 square metres of legal road, known as ‘Cemetery Road’, and for it to be amalgamated with the adjoining record of title OT4B/1266, subject to the applicants meeting all costs.
C. Authorises the Chief Executive to do all that is necessary to give effect to the resolution.
STATUS
September 2020 – Gazettal underway.
August 2020 – LINZ-Accredited Supplier working through gazettal process.
Report author: Executive Manager - Planning and Environment
269 July 2020 – Sale and Purchase Agreement since executed by all parties and returned to Council’s lawyer.
May 2020 – Valuation accepted, Sale and Purchase Agreement drafted and sent to applicants for execution.
February 2020 – Applicants advised of valuation, awaiting response.
January 2020 – Action memo sent to Property Officer – Statutory.
Resolution 19.11.15 – December 2019 Proposed Road Stopping – Off Swann Road
That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees to stop the redundant portion of the road, being approximately 4150 square metres, and to amalgamate the stopped road with the applicant’s adjoining record of title OT8C/743.
C. Notes that the land is to be given in exchange for the new Lot 100.
D. Authorises the Chief Executive to do all that is necessary to give effect to the resolution.
STATUS
September 2020 – New road formed. Plan still with LINZ.
August 2020 – Plan still with LINZ for approval (note is dependent on works relating to associated subdivision of Swann Road Farm).
July 2020 – Awaiting approval of plan.
May 2020 – Survey complete, plan lodged with LINZ for approval.
February 2020 – Field work to be undertaken in conjunction with the existing subdivision.
January 2020 – Action memo sent to Property Officer – Statutory.
Resolution 19.10.9 – November 2019 Minister of Conservation’s Consent – Lease of Recreation Reserve
That the Council:
A. Receives the report and accepts the level of significance.
Report author: Executive Manager - Planning and Environment
270 B. Agrees to grant consent (under delegated authority), on behalf of the Minister of Conservation, to Council issuing a lease over part of the Clyde Recreation Reserve, to the Dunstan Golf Club Incorporated.
STATUS
September 2020 – Club’s lawyer advised of reclassification of reserve over area for pump station, and has been asked to follow up with the club.
August 2020 – Club have advised they will not sign their lease until the submissions to the proposal to reclassify part of the reserve to local purpose have been heard.
July 2020 – Query received from the Club regarding term of lease. No other update available.
May 2020 – Lease drafted and forwarded to the Dunstan Golf Club for execution.
February 2020 – With Council’s lawyers, awaiting new title to be issued in the name of Council as the existing title is outdated and in the name of HMTQ.
January 2020 – Advice to be sought on defining the various areas of occupation on the reserve prior to the lease being drafted.
November 2019 – Action memo sent to the Property Officer – Statutory.
Resolution 19.7.13 – August 2019 Harbourmaster – Deed of Transfer (Doc ID 386315)
A. RESOLVED that the report be received and the level of significance accepted.
B. AGREED that Council wish to relinquish the Deed of Transfer (dated 16 June 2006) back to Otago Regional Council.
C. AGREED to delegate the operational function to relinquish the Deed of Transfer to the Chief Executive and to update Council on its progress.
D. RESOLVED to acknowledge the contribution made, and work done by, the Enforcement and Education Officer (Shayne Hitchcock) for many years.
STATUS CLOSED
September 2020 – Deed is complete. Refer to Resolution 20.7.12 of August 2020 Council meeting. Matter closed.
August 2020 – The transfer deed final sign off will go to Council in August with a scheduled completion date of 1 September 2020.
July 2020 – Hearing being held by ORC late June/early July. Final sign-off expected to occur at the next Council meeting.
Report author: Executive Manager - Planning and Environment
271 May 2020 – The Otago Regional Council heard the matter in February 2020 and subsequently undertook joint consultation with CODC. The submission period has closed, with three submissions having been received. It is proposed that a report will go to the Otago Regional Council June meeting for final sign off and reversal of the delegation.
February 2020 – Otago Regional Council has advised that this matter was not discussed at the January meeting as anticipated, but is planned for 26 February 2020, with consultation from 2 March to 3 April, hearings between 28 – 30 April for adoption and the transfer being complete in May 2020.
January 2020 – Otago Regional Council has advised the process will take 6 to 8 months. They anticipate having the new merged version of the navigation bylaws to the first regional council meeting in January 2020. The transfer can only be completed once they have the bylaw process completed and adopted, which will involve a consultation period (likely 6 weeks) and hearings to get through as well as advising Maritime New Zealand and the Minister.
November 2019 – Otago Regional Council are continuing to work through their process.
October 2019 – Otago Regional Council have accepted the request and are working through the process. The Otago Regional Council Harbourmaster and Deputy Harbourmaster have been warranted by CODC to enable education and enforcement while the process is worked through.
September 2019 – Letter sent to Otago Regional Council requesting to relinquish the deed of transfer agreement.
August 2019 - Action memo sent to the Regulatory Services Manager.
Resolution 18.4.7 – April 2018 Omakau Waste Water Treatment (PRJ 04-2018-01, PRO 61-6020-00)
A. RESOLVED that the report be received and the level of significance accepted.
B. AGREED to enter into enter into negotiations to acquire an easement for Council over the existing gravel road described as Part Section 54 Block I Tiger Hill Survey District for right of access, and power infrastructure.
C. AUTHORISED the Chief Executive to do all that is necessary to give effect to this resolution.
STATUS
September 2020 – Paperwork for power easement drafted and will be presented to property owner at the end of September.
August 2020 – Alternate options for securing access for Aurora are being investigated as the landowner has objected to the proposal.
Report author: Executive Manager - Planning and Environment
272
July 2020 – Aurora have asked to be added to the agreement as a grantee as this will enable them to access and maintain network infrastructure that is located at the plant.
May 2020 – Landowner has signed & returned the amended documents, survey plan lodged with LINZ for approval, additional A & I (to cover registration of the right to convey water) being prepared.
February 2020 – Landowner has now agreed to the agreement being varied to include the right to convey water. Amended documents forwarded for execution at the end of January. No response received as yet.
January 2020 – Water Services Manager writing to the landowner to advise that the works to install power to the treatment plant are to commence later this month. If the landowner does not respond, neither the plant or the landowner will be connected to water. Refer to June 2019 update.
November 2019 – Water Services have advised that the additional right to convey (water) is on hold while a waterless option is investigated.
October 2019 – Landowner is declining to negotiate, options under PWA to be discussed.
September 2019 – Negotiations underway with Grantor regarding the proposed variation to the easement.
July 2019 – Negotiations still in progress regarding the amendment to the agreement. An offer has been made. Awaiting response.
June 2019 – New negotiations underway to have the right to convey water added to the existing agreement – registration of existing document on hold in the interim.
May 2019 – Signed Authority and Instruction Certificate returned to GCA Legal for registration.
April 2019 – With CEO for signature. Registration to follow.
March 2019 – This now sits with Property Officer – Statutory. Waiting on survey to be approved, then the Easement documents can be registered.
January 2019 – Owners have been contacted and are still reviewing documentation. Update to be provided once the documentation has been signed.
October 2018 – Awaiting owner to return the signed documents.
September 2018 – The owner has reviewed the documentation and an onsite meeting has occurred. The document has been amended where appropriate. The agreement is now with the owners to sign.
Report author: Executive Manager - Planning and Environment
273 August 2018 – Owner is reviewing documentation. Extra time required, as owner had a family bereavement.
July 2018 – Easement agreement sent to owner. Owner is currently reviewing documentation.
June 2018 – Meeting with landowner has occurred. Lawyer drafting agreement for owner to review.
May 2018 – Meeting with the landowner set for late May.
April 2018 – Action memo sent to the Property and Facilities Officer – Vincent and Teviot Valley.
Resolution 17.9.9 – October 2017 Council Owned Land, Pines Plantation Area North of Molyneux Park Netball Courts, Alexandra – Consider Sale/Development by Joint Venture of Residential Land (PRO 61-2079-00)
A. RESOLVED that the report be received and the level of significance accepted.
B. AGREED to the sale of part of Lot 25 DP 3194 and part of Lot 6 DP 300663, located south of the Transpower corridor at the north end of Alexandra and adjacent to the Central Otago Rail trail.
C. APPROVED the Vincent Community Board’s recommendation for sale of the land by way of a joint venture development and sale of Lots, the minimum terms and conditions including: • The joint venture partner funding development with no security registered over the land. • Council receiving block value. • Council receiving 50% of the net profit, with a minimum guaranteed of $500,000. • Priority order of call on sales income:
First: Payment of GST on the relevant sale. Second: Payment of any commission and selling costs on the relevant sale. Third: Payment to the Developer of a fixed portion of the estimated Project Development Costs per lot as specified in the Initial Budget Estimate and as updated by the Development Costs Estimate breakdown. Fourth: Payment of all of the balance settlement monies to Council until it has received a sum equivalent to the agreed block value. Fifth: Payment of all of the balance settlement monies to Council until it has received an amount equivalent to the agreed minimum profit share to Council. Sixth: Payment of all of the balance to the Developer for actual Project Costs incurred in accordance with this Agreement. Seventh: Payment of all of the balance amounts (being the Profit Share) to be divided 50 / 50 (after allowance for payment of the Minimum Profit to Council. Report author: Executive Manager - Planning and Environment
274
D. AGREED to delegate to the Chief Executive the authority to select the preferred joint venture offer and negotiate “without prejudice” a joint venture agreement.
E. AGREED that the Chief Executive be authorised to do all necessary to achieve a joint venture agreement.
STATUS
September 2020 – Work expected to start on site in October for Stage 1 and some sections will be marketed. Stage 1 completion scheduled for April 2021.
August 2020 – Continuing to await outcome of Shovel Ready Projects application as this may affect how development progresses.
July 2020 – Still awaiting outcome of Shovel Rady Projects application which may affect how development progresses.
May 2020 – Delays with engineering design and construction start date due to Covid 19. Engineering design mostly complete and work on site expected to start soon with a staged approach. Awaiting outcome of Shovel Ready Projects application which may affect how this development progresses.
February 2020 – The developer is working on engineering design for subdivision to be approved by Council. Work expected to start on site for subdivision in approximately 6 weeks.
January 2019 – Subdivision consent granted 18 December 2019.
November 2019 – Subdivision consent was lodged on 22 November 2019.
October 2019 - The affected party consultation process with NZTA and Transpower is now complete however the process with DOC is still being progressed. Once finalized, the application to connect Dunstan Road to the State Highway will be complete. Subdivision consent will then be lodged.
September 2019 - The affected party consultation process with NZTA, Transpower and DOC for the application to connect Dunstan Road to the State Highway is almost complete. The developer is also close to finalising the subdivision plan to allow for the resource consent to be lodged.
July 2019 – Subdivision consent expected to be lodged in August.
June 2019 – Tree felling complete. Subdivision consent expected to be lodged in July or August.
May 2019 - Tree felling commenced 20 May and is expected to take up to 6 weeks to complete. Subdivision scheme plan close to being finalised before resource consent application.
Report author: Executive Manager - Planning and Environment
275 April 2019 – Security fencing has been completed. Felling of trees expected to commence in the next month. Concept plan is in final draft. Next step is for the surveyor to apply for resource consent.
March 2019 – Concept plan is in final draft. Next step is for the surveyor to convert to a scheme plan and apply for resource consent. The fencer is booked in for March.
January 2019 – Development agreement was signed by AC & JV Holdings before Christmas. Subdivision plan now being developed for resource consent application and removal of trees expected to start mid to late January.
October 2018 – The development agreement is with the developer’s accountant for information. Execution imminent.
September 2018 – The development agreement is under final review.
August 2018 – Risk and Procurement Manager finalising development agreement to allow development to proceed.
June 2018 – Preferred developer approved. All interested parties being advised week of 11 June. Agreement still being finalised to enable negotiation to proceed.
April 2018 – No change.
March 2018 – Staff finalising the preferred terms of agreement.
February 2018 – Requests received. Council staff have been finalising the preferred terms of agreement to get the best outcome prior to selecting a party, including understanding tax implications.
December 2017 – Request for Proposals was advertised in major New Zealand newspapers at the end of November 2017 with proposals due by 22 December. Three complying proposals received.
November 2017 – Council solicitor has provided first draft of RFI document for staff review.
November 2017 – Action Memo sent to the Property Officer.
Outstanding resolutions from the previous Planning and Environment Committee
Resolution 17.8.15 – September 2017 Rural Fire Land and Buildings (COM 09-02-03)
A. RESOLVED that the report be received and the level of significance accepted.
Report author: Executive Manager - Planning and Environment
276 B. AUTHORISED the Chief Executive Officer under the financial delegations to negotiate leases and/or sales to New Zealand Fire Service Commission for the following properties: • Omakau Rural Fire site: Section 1 SO 462989 • Tarras Rural Fire Depot: PT SEC 19 BLK I TARRAS SD • Boundary Road Alexandra: LOT 1 DP 432084 • Millers Flat Rural Fire station: Part Section 167 Block III Benger SD
STATUS
September 2020 – Meeting has taken place. Now awaiting proposed plans for Tarras site from FENZ.
August 2020 – A meeting with Fire and Emergency New Zealand representatives has been set in August to start negotiations with regards to Tarras Rural Fire Depot transfer.
July 2020 – No update to the below. An update will be provided as soon as able.
May 2020 – Update provided to Council on 11 March within the Alexandra Men’s Shed Development. Each property to be looked at indivually. Boundary Road transaction complete. Tarras Rural Fire Depot next.
February 2020 – Update to be provided to Council at its 11 March meeting.
January 2020 – This has now been handed over to Property and Facilities Officer - Vincent and Teviot Valley. Report to Council with regards to Boundary Road was provided on 18 December 2019. The next report to Council regarding this property will be on 11 March 2020, together with an update on the balance of properties.
November 2019 – Update to Council will be given at the December meeting as part of the Men’s Shed Development Report.
October 2019 – No further update. An update will be provided once FENZ has responded to Council.
September 2019 – No further update.
May 2019 – No further update. Update to be provided once FENZ has responded to Council.
March 2019 – No further update. This is to be followed up by Property Officer – Statutory.
February 2019 – Meeting held with FENZ at the end of January who confirmed they have no budget for purchasing land and/or buildings. Further information has been requested from FENZ. When information is received, Property staff will update Council on FENZ position and preferred options.
Report author: Executive Manager - Planning and Environment
277 January 2019 – Meeting scheduled with FENZ on 18 January to discuss preferred options. FENZ have advised they have no budget for purchasing land and/or buildings.
October 2018 – Feedback received from FENZ. Further discussion required with FENZ before preferred options are confirmed.
September 2018 – Awaiting feedback from FENZ. Update to be provided once this has been received.
August 2018 – Awaiting feedback from FENZ
July 2018 – Met with FENZ. Options for sites discussed and options paper provided to FENZ 6 July to consider for further discussion.
April 2018 – In negotiations with Fire, Emergency New Zealand.
March 2018 – In negotiations with Fire, Emergency New Zealand.
February 2018 – Property Manager met with Fire Emergency New Zealand to discuss options, Council preference being the sale of properties. Scoping options for more negotiations, land is a mix of Council freehold and reserve and therefore sale not an option for all.
November 2017 – With Property team.
September 2017 – Initial meeting held with FENZ Representatives. Further discussion being handled by Property team.
September 2017 – Action Memo sent to Chief Financial Officer.
Outstanding resolutions from the previous Waste and Property Infrastructure Committee
Resolution 19.7.6 – September Road Stopping and Realignment – Butchers Point Road, Alexandra
A. RESOLVED that the report be received, and the level of significance accepted.
B. APPROVED the proposal to stop an area of approximately 4,250 square metres of legal road, known as ‘Butchers Point Road’, and for it to be amalgamated with the adjoining record of title 826313.
C. APPROVED the proposal to take an area of approximately 1,950 square metres, and for it to be declared legal road.
D. AGREED that the land exchanged is on the basis of nil compensation to either party.
E. AGREED that the Chief Executive be authorised to do everything required to complete the stopping and amalgamation, and the taking of land to be declared legal road.
Report author: Executive Manager - Planning and Environment
278 STATUS
September 2020 – Plan lodged with LINZ for approval.
August 2020 – Job to be pegged in August, as surveyor is running behind schedule.
July 2020 – Pegging delayed, now to be pegged in July.
May 2020 – Survey works were scheduled for March but delayed due to Covid-19. Job will now be pegged in June.
February 2020 – As per the below.
January 2020 – No update on previous.
November 2019 – Surveyor & LINZ Accredited Supplier engaged. Work will not commence until 2020.
October 2019 – Action memo sent to the Property Officer – Statutory.
Report author:
Louise van der Voort Executive Manager – Planning and Environment 25/09/2020
Report author: Executive Manager - Planning and Environment
279
Council 7 October 2020
Report for Information
Status Report on Resolutions – Infrastructure Services
Purpose of Report To provide Council with an update on resolutions.
------Recommendations
That the Council receives the report.
------
Resolution 20.7.16 Water Stimulus Delivery Plan
That the Council:
A. Receives the report and recognises the level of significance
B. Notes that the Central Otago District Council has been allocated $4.73 million of funding, which will be received as a grant once the signed Memorandum of Understanding and Funding Agreement are returned to the Department of Internal Affairs, and a Delivery Plan has been supplied and approved.
C. Notes that a further $4.73million is expected to be allocated to Central Otago District Council from the Otago regional allocation of $20.4 million.
D. Notes that the Delivery Plan must show that the funding is to be applied to operating and/or capital expenditure relating to three waters infrastructure and service delivery, and which:
a) supports economic recovery through job creation; and b) maintains, increases, and/or accelerates investment in core water infrastructure renewal and maintenance.
E. Approves the following program of water stimulus projects up to the value of $9.46 million:
• Separating Alexandra pump station and new Manuherekia river crossing • Cromwell pump station capacity and resilience upgrades • Falling water main replacements • Omakau water pressure upgrade
Report author: Executive Manager - Infrastructure Services280 • Flood protection of Roxburgh water treatment plant • Additional Alexandra water reservoir • Data collection • Additional staff to deliver the program • Regional work program contributions
STATUS
September 2020 – Delivery Plan submitted to Crown Infrastructure Partners for approval, project planning underway.
August 2020 – Action memo sent to Executive Manager – Infrastructure Services.
Resolution 20.7.15 Clyde Wastewater Reticulation and Main Pump Station Construction
That the Council:
A. Receives the report and recognises the level of significance
B. Approves proceeding with construction of stage 1 of the Clyde wastewater reticulation and main pump station.
C. Approves awarding construction of the reticulation and minor pump stations to Seipp Construction Ltd, who were the successful first stage early contractor tenderer for the Clyde Wastewater Reticulation and Pump Station Physical Works Contract
D. Approves re-tendering construction of the main pump station as a traditional measure and value contract.
E. Rescinds the decision that income from the sale of the Bannockburn wastewater site, expected to be within $300,000 - $500,000 be used to fund the Clyde wastewater project.
F. Approves inclusion of the additional funding to meet the increased project scope in the 2021-22 Long Term Plan.
STATUS
September 2020 – Resolution B is now complete. Resolution C contract documents are receiving final legal review. Agreements will be signed in early October with construction to follow soon after. Resolution D design of Cromwell wastewater storage tanks have commenced. This work is to be packaged and tendered with the main Clyde wastewater pump station. Resolution E and F Complete.
August 2020 – Action memo sent to Capital Projects Programme Manager.
Report author: Executive Manager - Infrastructure Services281 Resolution 20.7.14 Lake Dunstan Water Supply Treatment Plant Options
That the Council:
A. Receives the report and recognises the level of significance
B. Notes construction of all treatment stages required to meet the New Zealand Drinking Water Standards on the Lake Dunstan Water Supply was committed to in the 2018 Long Term Plan.
C. Agrees that the design average day peak week flowrate be provided as follows:
a) 2028: 14 million litres per day (MLD) b) 2048: 20 million litres per day (MLD)
D. Agrees that additional capacity at the Alexandra Northern Reservoir of 4,000m3 be provided by 2023.
E. Approves proceeding with detailed design of a membrane water treatment plant to meet the New Zealand Drinking Water Standards 4-log credit requirements and tendering for construction.
F. Approves further development of the Clyde borefield to include Bore 3 and increased pumping capacity on all three bores, to increase resilience and meet demand until 2048.
G. Approves inclusion of the additional funding to meet the increased project scope in the 2021-22 Long Term Plan.
STATUS
September 2020 – Resolution A, B, and C are complete. Resolution D design commencing in October 2020, funding for construction included in water stimulus funding delivery plan. Resolution E water treatment plant trials completed. Design is underway. Complete. Resolution F trials on Bore 3 are ongoing and will be completed in October 2020. Borefield design to follow. Resolution G complete.
August 2020 – Action memo sent to Capital Projects Programme Manager.
Resolution 20.7.13 Water Reform Memorandum of Understanding
That the Council:
A. Receives the report and recognises the level of significance
Report author: Executive Manager - Infrastructure Services282 B. Notes that:
a) in July 2020, the Government announced an initial funding package of $761 million to provide a post COVID-19 stimulus to maintain and improve water networks infrastructure, and to support a three-year programme of reform of local government water services delivery arrangements. b) initial funding will be made available to those councils that agree to participate in the initial stage of the reform programme, through a Memorandum of Understanding (MoU), Funding Agreement, and approved Delivery Plan. c) this initial funding will be provided in two parts: a direct allocation to individual territorial authorities and a regional allocation. The participating individual authorities in each region will need to agree an approach to distributing the regional allocation d) the Steering Committee has recommended a preferred approach to the allocation of regional funding, being the same formula as was used to determine the direct allocations to territorial authorities
C. Agrees to sign the MoU at Appendix 1 and Funding Agreement at Appendix 2.
D. Agrees to nominate the Chief Executive of the Council as the primary point of communication for the purposes of the MoU and reform programme – as referred to on page 6 of the MoU.
E. Agrees to delegate decisions about the allocation of regional funding to the Mayor and Chief Executive, with the understanding that the minimum level of funding to the Council be based upon the formula used to calculate the direct council allocations, and noting that participation by two-thirds of territorial authorities within the Otago region is required to access the regional allocation.
F. Notes that the MoU and Funding Agreement cannot be amended or modified by either party, and doing so would void these documents.
G. Notes that participation in this initial stage is to be undertaken in good faith, but this is a non-binding approach, and the Council can opt out of the reform process at the end of the term of the agreement (as provided for on page 5 of the MoU).
H. Notes that the Council has been allocated $4.73 million of funding, which will be received as a grant as soon as practicable once the signed MoU and Funding Agreement are returned to the Department of Internal Affairs, and a Delivery Plan has been supplied and approved (as described on page 5 of the MoU).
I. Notes that a further amount of $20.6 million of funding has been allocated to an Otago regional fund, which will be allocated to four territorial authorities provided two-thirds of territorial authorities within the Otago region sign the MoU.
J. Notes that the Delivery Plan must show that the funding is to be applied to operating and/or capital expenditure relating to three waters infrastructure and service delivery and which: a) supports economic recovery through job creation; and b) maintains, increases, and/or accelerates investment in core water infrastructure renewal and maintenance.
STATUS MATTER CLOSED
Report author: Executive Manager - Infrastructure Services283 September 2020 – MoU funding agreement and delivery plan submitted.
August 2020 – Action memo sent to Executive Manager – Infrastructure Services.
Resolution 20.7.11 Roading Bylaw Review
That the Council:
A. Receives the report and recognises the level of significance
B. Notes the proposed amendments to the Roading Bylaw.
C. Endorses option B in the report as the preferred method for time-restricted parking fines.
D. Agrees that the proposed Roading Bylaw 2020 is the most appropriate way to address roading issues in Central Otago.
E. Approves the proposed Roading Bylaw 2020 for public consultation.
STATUS
September 2020 – Submissions closed 30 September. An analysis of submissions is underway, and this will be presented to Council on 18 November.
August 2020 – Action memo sent to Policy Officer.
Resolution 20.5.12 Development of a Solid Waste Bylaw
That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees a bylaw is an appropriate mechanism for achieving waste minimisation objectives
C. Approves the draft bylaw for public consultation.
D. Directs staff to prepare a statement of proposal for public consultation for a Waste Bylaw.
STATUS
September 2020 – Statement of proposal is delayed and will be brought to the 18th November 2020 Council meeting.
August 2020 – Statement of proposal will be brought to the 7th October 2020 Council meeting.
Report author: Executive Manager - Infrastructure Services284
July 2020 – Action memo sent to Environmental Engineering Manager.
Resolution 20.5.10 Appointment of Consultant for Bridge Structural Advice for 2020-21
That the Council:
A. Receives the report and accepts the level of significance.
B. Approves the direct appointment of Beca for the provision of structural advice for bridges for the 2020-21 financial year.
STATUS MATTER CLOSED
September 2020 – Beca advised.
August 2020 – Planning underway.
July 2020 – Action memo sent to Acting Roading Manager.
Resolution 20.5.8 – July 2020 Legalisation for Roading Purposes – Kerry Street, Alexandra That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees to legalise the encroachment of the path and to secure rights to the bridge anchor by taking approximately 33 square metres of the land held in record of title OT360/148 to, to vest the land as road, and to pay all associated costs.
C. Authorises the Chief Executive to do all that is necessary to give effect to the resolution.
STATUS
September 2020 – Compensation Agreement executed, Compensation Certificate ready for execution by CEO. Once executed agreement will be registered on property title.
August 2020 – Property owner (and her lawyer) notified of resolution.
July – Action memo sent to Property Officer – Statutory
Resolution 20.5.7 – July 2020 Road Stopping and Taking (Legislation) – Ferris Road, Alexandra That the Council:
A. Receives the report and accepts the level of significance.
Report author: Executive Manager - Infrastructure Services285 B. Agrees to legalise the existing formation of Ferris Road as shown in figure 3 of the report by: • taking the areas marked ‘Lot 5’ and ‘Lot 6’, and for these to be vested as legal road, • stopping the area marked ‘Road to be stopped’, and for it to be amalgamated with the new Lot 4, • paying the component of the survey costs associated with the legalisation, • paying the applicant’s Roading Contributions of $5,316.00 plus GST in lieu of compensation.
C. Authorises the Chief Executive to do all that is necessary to give effect to the resolution.
STATUS
September 2020 – Surveying underway.
August 2020 – Property owner and surveyor notified of Resolution.
July – Action memo sent to Property Officer – Statutory
Resolution 20.5.6 – July 2020 Proposed Road Stopping, Taking and Realignment – Off Bendigo Loop Road, Tarras That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees to stop, take, and realign part of the unformed roading network off Bendigo Loop Road as shown in figure 5 by:
• Stopping approximately 4.1839 hectares of unformed road, being Sections 11 – 16, • Taking approximately 2.8493 hectares of land for legal road, being Sections 1 – 5.
Subject to:
• The applicants paying all costs, including purchase of the land at valuation, • The stopped road being amalgamated in accordance with the provisions as shown in figure 5 of the report.
C. Authorises the Chief Executive to do all that is necessary to give effect to the resolution.
STATUS
September 2020 – Quotes requested from surveyor and LINZ accredited supplier.
August 2020 – Property owner and surveyor notified of Resolution.
Report author: Executive Manager - Infrastructure Services286 July – Action memo sent to Property Officer – Statutory
Resolution 20.5.5 – July 2020 Road Stopping and Taking (Legalisation) – Cave Creek Road, Roxburgh That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees to legalise the existing formation of Cave Creek Road, as shown in figure 3 of the report by: • taking the areas marked ‘B’ and ‘C’, and for these to be vested as road, • stopping the areas of the unformed road marked ‘D’ and ‘E’, and for these to be amalgamated with the adjoining record of title OT 14A/998, • paying the component of the survey costs associated with the legalisation.
C. Notes that the land is to be exchanged based on nil compensation to either party.
D. Authorises the Chief Executive to do all that is necessary to give effect to the resolution.
STATUS
September 2020 – Survey works underway.
August 2020 – Property owner and surveyor notified of Resolution.
July – Action memo sent to Property Officer – Statutory
Resolution 19.11.7 – December 2019 Management of the Ripponvale Community Water Scheme
That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees in principle that Council take over the management and operation of the Ripponvale Community Water Scheme from 1 July 2020.
C. Directs staff to investigate and report back on the costs associated with taking over the scheme and options for charging the users those costs.
STATUS
September 2020 – Cost implications being finalised. Report on options to be provided to 18 November meeting.
Report author: Executive Manager - Infrastructure Services287 August 2020 – No further progress due to prioritisation of other matters relating to the Three Waters Reform Program.
July 2020 – Ripponvale Water Supply Committee are talking to Public Health South about what information is required to transfer responsibly for the water supply to Council. Staff to report to Council once implications of the merging of the Ripponvale supply is understood.
June 2020 – Consultants engaged to gather financial information for taking over the water supply.
February 2020 – No change.
January 2020 – Water Services team are investigating; report to be provided to 3 June Council meeting.
January 2020 – Action memo sent to Water Services Manager.
Resolution 19.8.10 – September 2019 Consideration of New Zealand Standard (NZS) 4404:2010 (Doc ID 422658)
A. RESOLVED that the report be received, and the level of significance accepted.
B. AGREED to adopt NZS 4404:2010 as Council’s subdivision standard subject to the development of an updated addendum for local conditions.
STATUS
September 2020 – No change.
August 2020 – No change.
July 2020 – No change.
June 2020- No change.
February 2019 – No change.
January 2019 – No change.
December 2019 – Workshops continuing for updating engineering standards. The Environmental Engineering team will be working with planning to ensure the design standards from the Cromwell masterplan are developed alongside the updated engineering standards.
November 2019 – Drafting of an updated addendum is underway and expected to be included in report to Council in early 2020.
October 2019 – Action memo sent to the Environmental Engineering Manager.
Report author: Executive Manager - Infrastructure Services288 Outstanding resolutions from the previous Three Waters Infrastructure Committee
Resolution 19.7.4 – September Procurement of Clyde Wastewater Pump Station and Stage 1 Reticulation Construction (Doc ID 425121)
A. RESOLVED that the report be received, and the level of significance accepted.
B. APPROVED a cost reimbursement model of contract for the Clyde wastewater pump station and Stage 1 reticulation.
C. APPROVED a two staged contract - early contractor involvement as stage 1 and construction as stage 2.
D. AUTHORISED the Chief Executive Officer to award the contract for early contractor involvement for the Clyde wastewater pump station and Stage 1 reticulation to the highest scoring tenderer.
E. DIRECT that the project estimate and funding requirements be approved by Council following design and prior to awarding the stage 2 of the contract for construction to the contractor who was awarded the contract for early contractor involvement.
STATUS MATTER CLOSED
September 2020 – Council considered project estimate and funding requirements on 26 August and provided approval to proceed with construction.
August 2020 – No change.
July 2020 – Resolution E: Final reports from designers and consultants are still required and another round of cost estimate review needs to occur to make a more informed report to Council therefore a progress update report will be provided to Council on 15 July 2020 and estimate and funding requirements expected to be provided to Council on 26 August 2020.
June 2020 – Resolution E: Stantec, Seipp Construction Limited and Council staff have optimized the design and costings. Estimate and funding requirements expected to be provided to Council on 15 July 2020.
February 2020 – No change.
January 2020 – Resolutions A-D completed. Resolution E Stantec are working on design with Seipp Construction Limited with estimate and funding requirements expected to be provided to Council on 22 April 2020.
December 2019 – Contract for early contractor involvement for the Clyde Wastewater Pump Station and Stage 1 Reticulation has been awarded to Seipp Construction Limited.
November 2019 – A tender early contractor involvement contract will be awarded in November.
October 2019 – Action memo sent to the Capital Projects Manager.
Report author: Executive Manager - Infrastructure Services289 Outstanding resolutions from the previous Roading Committee
Resolution 19.6.3 – August 2019 2019-2021 Roading Improvement Projects (Doc ID 387801)
A. RESOLVED that the report be received, and the level of significance accepted.
B. APPROVED construction of the following road improvement projects for 2019-2021:
• New footpaths • Central Otago Touring Route • Associated Improvements • Bannockburn bridge cycle facility • Omakau - Ophir cycle path • Clyde Historic Precinct streetscape work • Small bridge replacement • Speed threshold and restriction treatments • Swindon Street, Ophir traffic calming • Roxburgh streetscape improvements • Vehicle activated speed signs – Patearoa and Bannockburn • Harvey Street/Deaker Street, Omakau - Intersection improvement • Naseby drainage upgrades • Boundary Road, safety improvements
C. APPROVED that Council’s share of the funding for the Bannockburn Bridge clip on to be shared equally between the Central Otago District Council and the Central Otago Queenstown Trail Network Trust.
STATUS
September 2020 – • New footpaths – nearing completion. • Central Otago Touring Route – nearing completion. • Associated Improvements – Completed. • Bannockburn bridge cycle facility – nearing completion. • Omakau – Ophir – Clyde path – Completed. • Clyde Historic Precinct streetscape work – design nearing completion. • Small bridge replacement – still to be progressed. • Speed threshold and restriction treatments – still to be progressed. • Swindon Street, Ophir traffic calming – design options still being considered. • Roxburgh streetscape improvements – underway. • Vehicle activated speed signs – Patearoa and Bannockburn – completed • Harvey Street/Deaker Street, Omakau – Intersection improvement – design options still being considered. • Naseby drainage upgrades – underway. • Boundary Road, safety improvements – underway.
August 2020 – • New footpaths – Construction underway, expected completion September 2020
Report author: Executive Manager - Infrastructure Services290 • Central Otago Touring Route – Construction of two observation areas completed on Blacks Hill June 2020. Inspection for additional site near Oturehua carried out. Signage and landscaping work • Associated Improvements – Completed. • Bannockburn bridge cycle facility – Construction underway, expected completion August 2020. • Omakau – Ophir cycle path – Construction completed June 2020. • Clyde Historic Precinct streetscape work – design underway, vegetation work has begun. • Small bridge replacement – 2020/21 financial year. • Speed threshold and restriction treatments – 2020/21 financial year. • Swindon Street, Ophir traffic calming – Roading Manager met with community group to consider traffic calming options. Community group asked for further information. • Roxburgh streetscape improvements – 2020/21 financial year. • Vehicle activated speed signs – Patearoa and Bannockburn – Installation complete • Harvey Street/Deaker Street, Omakau – Intersection improvement – design complete, works to be carried out late 2020. • Naseby drainage upgrades – 2020/21 financial year. • Boundary Road, safety improvements – Expected completion Winter 2020, delayed due to management change at wastebusters.
July 2020 – • New footpaths – Construction underway, expected completion September 2020 • Central Otago Touring Route – Construction of two observation areas completed on Blacks Hill June 2020. • Associated Improvements – Completed. • Bannockburn bridge cycle facility – Construction underway, expected completion August 2020. • Omakau – Ophir cycle path – Construction completed June 2020. • Clyde Historic Precinct streetscape work – design underway, vegetation work has begun. • Small bridge replacement – 2020/21 financial year. • Speed threshold and restriction treatments – 2020/21 financial year. • Swindon Street, Ophir traffic calming – Roading Manager met with community group to consider traffic calming options. Community group asked for further information. • Roxburgh streetscape improvements – 2020/21 financial year. • Vehicle activated speed signs – Patearoa and Bannockburn – Installation complete • Harvey Street/Deaker Street, Omakau – Intersection improvement – design complete, works to be carried out late 2020. • Naseby drainage upgrades – 2020/21 financial year. • Boundary Road, safety improvements – Expected completion Winter 2020, delayed due to management change at Wastebusters.
June 2020 – • New footpaths – Report going to June Council meeting with list of sites • Central Otago Touring Route – construction planned on two observation areas on Blacks Hill June 2020. • Associated Improvements – completed. • Bannockburn bridge cycle facility – Construction underway, expected completion August 2020
Report author: Executive Manager - Infrastructure Services291 • Omakau – Ophir cycle path – Construction underway, expected completion June 2020 • Clyde Historic Precinct streetscape work – design underway. • Small bridge replacement – 2020/21 financial year. • Speed threshold and restriction treatments – 2020/21 financial year. • Swindon Street, Ophir traffic calming – Roading Manager met with community group to consider traffic calming options. Community group asked for further information. • Roxburgh streetscape improvements – 2020/21 financial year. • Vehicle activated speed signs – Patearoa and Bannockburn – signs ordered; installation June 2020. • Harvey Street/Deaker Street, Omakau – Intersection improvement – design complete, works to be carried out late 2020 • Naseby drainage upgrades – 2020/21 financial year. • Boundary Road, safety improvements – Expected completion June 2020.
February 2020 – • New footpaths – prioritise list being prepared for Council consideration on 22 April. • Central Otago Touring Route – construction planned on two observation areas on Blacks Hill May 2020. • Associated Improvements – completed. • Bannockburn bridge cycle facility – design underway, construction April - June. • Omakau – Ophir cycle path – location being identified, and construction priced. • Clyde Historic Precinct streetscape work – design underway. • Small bridge replacement – 2020/21 financial year. • Speed threshold and restriction treatments – 2020/21 financial year. • Swindon Street, Ophir traffic calming – Roading Manager met with community group to consider traffic calming options. Community group asked for further information. • Roxburgh streetscape improvements – 2020/21 financial year. • Vehicle activated speed signs – Patearoa and Bannockburn – signs ordered; delivery expected in March. • Harvey Street/Deaker Street, Omakau – Intersection improvement – design complete, pole replacement being arranged with Aurora. • Naseby drainage upgrades – 2020/21 financial year. • Boundary Road, safety improvements – preliminary design with contractor.
January 2020 – • New footpaths – it’s anticipated that the new footpaths programme to be presented in March 2020 Council meeting for approval. • Bannockburn bridge cycle facility – project approved now with Fulton Hogan design phase. • Central Otago Touring Route – CODC ready to proceed, waiting on DCC team input. • Boundary Road, safety improvements – liaison with landowners complete, consultants finalising design. • Remaining project remain no change.
November 2019 – • Associated Improvements – Omakau School, Road marking safety improvements. Completed • New footpaths – it’s anticipated that the new footpaths programme to be presented in March 2020 Council meeting for approval. • Bannockburn bridge cycle facility – projects report, and estimates received awaiting approval to proceed. • Remaining projects remain no change.
Report author: Executive Manager - Infrastructure Services292 October 2019 – Central Otago Touring Route Memorandum of Understanding signed with CODC, QLDC and DCC. Scoping visit planned for Monday 14/10/19. Discussion with Central Otago Queenstown Trail Network Trust still to occur. This is awaiting estimates.
• New footpaths – paths currently being priced; report will be provided in December to enable Councillors to approve a prioritised list. • Central Otago Touring Route - MoU has been signed with QLDC, DCC, CODC & NZTA, site visit undertaken with all parties, work being priced. • Associated Improvements – underway. • Bannockburn bridge cycle facility – design options report due early November, with estimates. • Omakau - Ophir cycle path – location being finalised and contractor pricing. • Clyde Historic Precinct streetscape work – design is underway. • Small bridge replacement – no change. • Speed threshold and restriction treatments – no change. • Swindon Street, Ophir traffic calming – no change. • Roxburgh streetscape improvements – no change. • Vehicle activated speed signs – Patearoa and Bannockburn – pricing underway, and signs expected to be ordered in November. • Harvey Street/Deaker Street, Omakau - intersection improvement – design complete currently being priced. • Naseby drainage upgrades – no change. • Boundary Road, safety improvements – draft design completed, liaison occurring with adjoining landowners prior to proceeding.
September 2019 – Work underway on delivery of 2019/20 road improvement projects.
August 2019 – Action memo sent to Asset Engineer.
Report author:
Julie Muir Executive Manager – Infrastructure Services 21/09/2020
Report author: Executive Manager - Infrastructure Services293
Council 7 October 2020
Report for Information
Status Report on Resolutions – Corporate Services
Purpose of Report
To provide Council with an update on resolutions.
------Recommendations
That the Council receives the report.
------Resolution 20.7.20 – August 2020 Carry Forwards from Financial Year 2019-2020 and July Revised Forecast Full Year Financial Year 2020-21
That the Council:
A. Receives the report and accepts the level of significance.
B. Approves the changes to the revised budget as detailed in appendix 1 of the report.
C. Authorises an increase in debt provisions up to $10 million, if requested.
STATUS CLOSED September 2020 – Carry forwards and forecast have now been incorporated into the revised budget and will be included in future financial reports.
August 2020 – Action memo sent to Corporate Accountant. Resolution 20.7.21 – August 2020 Register of Delegations
That the Council:
A. Receives the report and accepts the level of significance.
B. Approves the following change to the Register of Delegations to staff.
54. In the case of power to enter into financial commitments the Chief Executive Officer may delegate authority:
a) Up to a value of $500,000 to members of the Executive Team for any budgeted individual transaction; b) To other staff positions up to a value of $50,000 for any individual transaction.
Report author: Executive Manager – Corporate Services 294
STATUS CLOSED September 2020 - The revised Register of Delegations has been updated and published on the Council website.
August 2020 – Action memo sent to Business Risk and Procurement Manager.
Resolution 20.7.22 – August 2020 Procurement Policy
That the Council:
A. Receives the report and accepts the level of significance.
B. Adopts the Procurement Policy.
STATUS CLOSED September 2020 – The Procurement Policy has been published on the Council website.
August 2020 – Action memo sent to Business Risk and Procurement Manager.
Resolution 20.7.23 – August 2020 Risk Management Policy
That the Council:
A. Receives the report and accepts the level of significance.
B. Adopts the Risk Management Policy.
STATUS CLOSED September 2020 – The Risk Management Policy has been published on the Council website.
August 2020 – Action memo sent to Business Risk and Procurement Manager.
Reviewed and authorised by:
Leanne Macdonald Executive Manager – Corporate Services 15/09/2020
Report author: Executive Manager – Corporate Services 295
Council 7 October 2020
Report for Information
Status Report on Resolutions – Chief Executive Officer
Purpose of Report To provide an update on Council resolutions.
------Recommendations
That the Council receives the report.
------
Resolution 20.5.18 Process for the Appointment of an Audit and Risk Chairperson
That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees to seek expressions of interest for the independent Chair of the Audit and Risk Committee.
C. Appoints the Mayor and Councillor McKinlay to the appointment panel, along with the Executive Manager – Corporate Services, as the Chief Executive’s appointment.
D. Agrees that the appointment panel will recommend a preferred candidate to Council for final approval.
STATUS CLOSED
September 2020 - Interviews of shortlisted candidates to take place on 28 September. Non- public report will be presented at the October meeting.
August 2020 – Advertisement placed, with applications closing 27 August.
July 2020 – Action memo sent to Governance Manager.
Resolution 20.4.8 – June 2020 Economic Recovery Plan
That the Council:
A. Receives the report and accepts the level of significance.
B. Notes that COVID-19 will have a significant impact on the Central Otago economy, with initial indications the market will take until 2025 to return to current levels. Report author: Chief Executive Officer 296
C. Agrees that Council has a role in the economic recovery.
D. Adopts the economic recovery plan.
STATUS
September 2020 – Implementation of the Economic Recovery Plan is underway. Progress report will be presented at November Council meeting.
August 2020 - Implementation of the Economic Recovery Plan underway. Progress report will be presented at August Council meeting.
June 2020 – Action memo sent to Economic Development Manager.
Resolution 19.11.8 – December 2019 Business Case for Central Stories Building
That the Council:
A. Receives the report and accepts the level of significance.
B. Agrees that once Council has made decisions on the i-SITE review and draft Museum Strategy, the business case to then go to Vincent Community Board for comment and report back to Council.
STATUS
September 2020 – Council/Vincent Community Board workshop scheduled to discuss this project.
January-July 2020 – Action memo sent to Community and Engagement Manager. Awaiting outcomes of the i-SITE review and museum strategy adoption before proceeding.
Resolution 19.10.6 – November 2019 Council’s Role in Housing
That the Council:
A. Receives the report and accepts the level of significance.
B. Notes the work to date on council’s role in housing.
C. Approves the expenditure of up to $50,000 from general reserves to progress the work on council’s role in housing.
STATUS
September – A paper was presented to the 22 September Cromwell Community Board meeting. Further advice will be provided to the Cromwell Community Board at their meeting in November.
Report author: Chief Executive Officer 297 August 2020 – Potential development options for Gair Avenue to be discussed at the next Cromwell Community Board meeting.
June 2020 – Modelling work underway.
May 2020 - Council agreed to a new two-stage approach for this work at their May meeting. For stage one, in addition to work on incentivise and promote density options, that land development and construction options be developed as part of a COVID-19 economic recovery package for consideration. For stage two an updated market analysis will be provided in 2021 and any further work an affordable housing option will be deferred until consideration of the updated market analysis.
February 2020 – Investment logic mapping and options analysis workshop held on 18/19 February. A Council workshop is scheduled for 18 March 2020.
January 2020 – Ward data analysis now underway. Investment logic mapping analysis workshop to identify possible options is scheduled for the 18/19th February 2020. It is intended that there will be a presentation of the data and discussion of options with Council during March.
December 2019 – Preferred contractor has been notified. Work now underway.
November 2019 – Action memo sent to the Chief Advisor.
Resolution 19.8.8 – September 2019 Responsible Camping 2019/20 (Doc ID 425320)
A. RESOLVED that the report be received and the level of significance accepted.
B. NOTED that funding of $377,338 has been received from the Ministry of Business, Innovation and Employment for responsible camping initiatives during the 2019/20 peak season.
C. NOTED that this funding will be used to run a monitoring, education and enforcement programme to manage camping this summer.
D. RESOLVED that the proposal to begin developing a responsible camping strategy in the absence of the national policy direction be endorsed.
STATUS
September 2020 – Costings have been agreed with Land Information New Zealand and council’s share will be included in the draft budgets being presented to Council in December. An application for additional funding to cover costs this summer was made to the Ministry of Business, Employment and Innovation and staff are awaiting the outcome of this application.
August 2020 – Discussions underway with Land Information New Zealand to develop and agree the shared costing model.
June 2020 – The options paper will be workshopped at the July Council meeting.
May 2020 - An options workshop was held with stakeholders on 12 March 2020, and a draft options paper developed. Partner agencies are currently considering these options in light of COVID-19, with an update expected at the July 2020 Council meeting.
Report author: Chief Executive Officer 298
February 2020 – Expressions of interest for the options analysis called for and a preferred contractor appointed. Options analysis workshop with stakeholders scheduled for 12 March 2020.
January 2020 – MBIE have approved expenditure of up to $50,000 for work on the options analysis this Summer. Process is underway to identify a preferred contractor.
December 2019 – Second interagency meeting held. Memorandum of understanding and project plan agreed. Discussions underway between agencies to source funding to facilitate options work.
November 2019 – First interagency meeting held. Draft project plan developed.
October 2019 – Action memo sent to the Policy Advisor.
Resolution 18.13.7 – December 2018 Lighting Policies to Reinforce Council’s Position on Dark Skies Protection (COM 01-02-021)
A. RESOLVED that the report be received and the level of significance accepted
B. RESOLVED that Council commits to the development of a Lighting Policy for the Central Otago District owned and managed or administered building facilities and infrastructure which promotes lighting standards that comply with current International Dark Sky Association requirements
C. RESOLVED that Council commits to promoting lighting standards that comply with current International Dark Sky Association requirements, into the first draft of the new Central Otago District Plan.
STATUS
September 2020 – The community are currently undertaking consultation with local residents in regard to the proposed plan change.
August 2020 – The community is developing content (including the required community consultation) for a District Plan change application, and are in liaison with Council staff during the process.
May-June 2020 – No update available.
March 2020 – Met with local planning consultant who is willing to assist Naseby community put together a plan change request. They will work with Naseby group to prepare this.
February 2020 – No further update available. An update will be provided once there is progress to report on.
January 2020 – No further update available.
Report author: Chief Executive Officer 299 December and November 2019 – Council staff are currently investigating how to include dark skies protection parameters within the District Plan.
October 2019 - The Project Plan for the District Plan Review is being prepared and includes this, as well as other topics. There has been no prioritisation of any urgent topics at this stage.
May 2019 – Further scoping work for Naseby is occurring with Council’s Community Development Manager and Planning Team. Update to be provided in Spring 2019.
April 2019 – Council adopted a lighting policy for Council-owned assets in February 2019. Planning staff are reviewing recommended International Dark Skies lighting requirements and their potential fit into the Central Otago District Plan.
January 2019 - Council staff are preparing a lighting policy on Council-owned infrastructure and this is scheduled for presentation to the February 2019 Council meeting. Naseby Vision has circulated a newsletter on IDA lighting standards to residents over the Christmas period and are collecting signatures from people who are willing to adhere to these standards on their own properties.
January 2019 – Action Memo sent to the Community Development Manager.
Resolution 17.5.7 – May 2017 Manuherekia River Minimum Flow Economic Impact Study (COM 27-03-001)
A. RESOLVED that the report be received and the level of significance accepted.
B. AUTHORISED a study of the economic impact on the Central Otago District of flow settings for the Manuherikia River based on lower and upper minimum flows shown in the Otago Regional Council Plan.
STATUS
September 2020 – Hydrology model expected late September August 2020 – Hydrology model expected late September June 2020 – No further update available. May 2020 – No further update available. February 2020 – No further update available. January 2020 – No further update available. December 2019 – Meeting held with contractors and hydrologist to plan work for early next year (dependent on ORC agreeing to hydrology model at a meeting to be held in December). November 2019 – No further update available. September 2019 - Work is planned before the end of the calendar year. An update will be provided once this commences.
Report author: Chief Executive Officer 300 August 2019 – No further update at this stage.
June 2019 – No further update at this stage. May 2019 – Work is underway to confirm the best model to use for the hydrology report before the study is commissioned. It has been recommended that the Goldsim model that has been developed is modified so that it can be used for this study. Currently waiting for advice before we proceed. January 2019 – a verbal update provided at the meeting. November 2018 – Work is still progressing taking into consideration recent decisions by Otago Regional Council. Further update will be given at next meeting. August 2018 – Work is still under way with the contractor to determine the flows of the Manuherikia that should be modelled. July 2018 - A hydrology model is now available that is able to provide the information on the hydrology of the main catchment. Work is now under way with the contractor to determine the flows of the Manuherikia that will be modelled and to refine other aspects of the project. The contract will then be reconfirmed. June 2018 – Awaiting updated hydrology report to progress this project. February 2018 – Work is under way to gain more information on the hydrology of the main catchment necessary to inform economic modelling. September 2017 – Commissioning study, Short Form Agreement has been approved for the contractor to commence work. July 2017 – Economic Development Manager is arranging a meeting with Compass Agribusiness to commence this process. June 2017 – Action memo sent to Economic Development Manager.
June 2019 – No further update at this stage. May 2019 – Work is underway to confirm the best model to use for the hydrology report before the study is commissioned. It has been recommended that the Goldsim model that has been developed is modified so that it can be used for this study. Currently waiting for advice before we proceed. January 2019 – a verbal update provided at the meeting. November 2018 – Work is still progressing taking into consideration recent decisions by Otago Regional Council. Further update will be given at next meeting. August 2018 – Work is still under way with the contractor to determine the flows of the Manuherikia that should be modelled. July 2018 - A hydrology model is now available that is able to provide the information on the hydrology of the main catchment. Work is now under way with the contractor to determine the flows of the Manuherikia that will be modelled and to refine other aspects of the project. The contract will then be reconfirmed. June 2018 – Awaiting updated hydrology report to progress this project. February 2018 – Work is under way to gain more information on the hydrology of the main catchment necessary to inform economic modelling.
Report author: Chief Executive Officer 301 September 2017 – Commissioning study, Short Form Agreement has been approved for the contractor to commence work. July 2017 – Economic Development Manager is arranging a meeting with Compass Agribusiness to commence this process. June 2017 – Action memo sent to Economic Development Manager.
Report author:
Sanchia Jacobs Chief Executive Officer 23/09/2020
Report author: Chief Executive Officer 302
SEALING REGISTER to 24 September 2020
Date Details Resolution 25/8/2020 Section 75 Certificate CODC and JL Pinckney, PT Pinckney and GM Todd BC190889 1/9/2020 Deed of Transfer CODC and ORC 20.7.12 Council 24/9/2020 Section 75 Certificate CODC and Darryl John Spence BC200169
Jackie Smith Governance Administration Assistant
303 20.7.30 Date of Next Meeting
The date of the next scheduled meeting is Wednesday, 18 November 2020.
304 THE COUNCIL IN CLOSED MEETING
In accordance with s 48(1) of the Local Government Official Information and Meetings Act 1987 and the particular interest or interests protected by s 6 or s 7 of that Act it is recommended:
1. That the public is excluded from:
• The following parts of the proceedings of this meeting, namely, items 20.8.14 – 20.8.20
The general subject of the matters to be considered while the public is excluded, the reason for passing this resolution in relation to each matter, and the specific grounds for excluding the public, as specified by s 48(1) of the Local Government Official Information and Meetings Act 1987, are set out below:
Meeting Item Reason for excluding the public Grounds for excluding the public No. and subject 20.8.14 The withholding of the information is To enable the Council to carry out, without Acquisition of necessary to enable the Council to prejudice or disadvantage, negotiations (including Easements for carry out, without prejudice or commercial and industrial negotiations) (s 7(2)(i)) Council disadvantage, negotiations (including Infrastructure commercial and industrial negotiations) 20.8.15 The withholding of the information is To enable the Council to carry out, without Request for necessary to enable the Council to prejudice or disadvantage, negotiations (including Licence to carry out, without prejudice or commercial and industrial negotiations) (s 7(2)(i)) Occupy – part disadvantage, negotiations (including Cromwell commercial and industrial Wastewater negotiations) Treatment Plant 20.8.16 The withholding of the information is To enable the Council to carry out, without Commercial necessary to enable the Council to prejudice or disadvantage, negotiations (including Subdivision – carry out, without prejudice or commercial and industrial negotiations) (s 7(2)(i)) Cromwell disadvantage, negotiations (including commercial and industrial negotiations) 20.8.17 The withholding of the information is To protect information where the making available Wastebusters – necessary to protect information of the information would be likely unreasonably to Variation to where the making available of the prejudice the commercial position of the person Contract information would be likely who supplied or who is subject to the information. unreasonably to prejudice the (s 7(2)(b)(ii)) commercial position of the person who supplied or who is the subject of the information. 20.8.18 The withholding of the information is To protect the privacy of natural persons. (s 7 District necessary to protect the privacy of (2)(a)) Licensing natural persons, including that of Committee deceased natural persons. Appointments 2020
20.8.19 The withholding of the information is To protect the privacy of natural persons. (s 7 Appointment of necessary to protect the privacy of (2)(a)) the Audit and natural persons, including that of Risk deceased natural persons. Chairperson
305 Meeting Item Reason for excluding the public Grounds for excluding the public No. and subject 20.8.20 The withholding of the information is To enable the Council to carry out, without Non-Public necessary to enable the Council to prejudice or disadvantage, negotiations (including Status Reports carry out, without prejudice or commercial and industrial negotiations) (s 7(2)(i)) disadvantage, negotiations (including commercial and industrial negotiations)
2 That B McLeay (Consultant Development Manager) is permitted to stay in the meeting as the Consultant Development Manager.
306 THE COMMITTEE IN OPEN MEETING
RECOMMENDED that the public be readmitted.
379