Berth Conditions

CALA DEL FORTE S.R.L.

VIA ROIVIA, N. 166 - 18038 SANREMO (IM)

 

General Contract conditions for Mooring, Parking and Port Services at the Ventimigilia Marina.

 

Definition

1. The following meanings shall apply for the purposes of this Contract:

- the Company: Cala del Forte s.r.l, with registered office in Sanremo 18038, Via Roma 166, Economic and Administrative Index (REA) IM-109594, tax identification code 12641330159; 

- the User: the natural or legal person identified in the Specific Conditions; 

- the Marina: the Marina in Ventimiglia, currently undergoing construction by Cala del Forte s.r.l. subsequent to the concessions on maritime state-owned property issued by the Municipality of Ventimiglia registration no. 4701/2010 and file no. 4687/2010, over an 85 year term, effective from 10/03/2010, and Building Permit no. 42/2010; 

- the Project: the port project approved with the Municipality of Ventimiglia building permit no. 42/2010 and subsequent amendments approved in the Services Conferences of 28/03/2013 and 04/11/2016, as well as addi-tional amendments that the Company reserves the right to request at its absolute discretion; 

- the Regulation: the combination of all the regulations that the Company reserves the right to adopt, amend and update at its absolute discretion to regulate the Mooring procedures, maneuvers, road access, to ensure safety and the prevention of fires, the protection of the environment, the hygiene and propriety of the Marina, to gov-ern the use of the services and utilities, the disposal of waste, and whatever else is necessary, including to com-ply with the directives issued by the Authorities. 

Fit for use certification: the administrative certification, which on termination of the port construction work, declares the port provisionally or definitively fit for use with the consequent possibility, (i) for vessels, to use the Moorings and the associated utilities, or, (ii) for motor vehicles, to access the Marina and stop at the spaces in-tended for Parking; 

- the Mooring Place: the space in the water within the Marina, intended for Mooring a vessel, demarcated by bits or rings on the dock or jetty, by banners, posts and chains at sea, with possible buoys or floating markers, all of which according to the Mooring plan that shall be submitted for the approval of the Maritime Authority, in or-der to obtain the Fit for use certification; 

- the Parking Space: the space intended for the Parking of motor vehicles, and appropriately demarcated, accord-ing to the final road access plan, which shall be submitted for the approval of the competent Authorities; 

- the Contract: the agreement entered into between the Company and the User based on a proposal and con-firmed in acceptance, governed by the Specific Conditions and these General Conditions; 

- the Port Services: the entirety of the General Services and the Services based on Individual Demand; 

- the General Services: sheltered harbor; radio information; meteorological information; lights; cleaning of Mooring stretch of water; cleaning of jetties and piers; collection of solid urban waste; lighting and signaling; docking and assistance with traffic; service to remove unauthorized items or vessels illegally occupying the Mooring or impeding the free use thereof; other services that could also be introduced in the future for the safe-ty and efficient use of the Marina and its appurtenances and fixtures at sea and on land; 

Services based on Individual Demand: provision of drinking water; provision of electricity; other services, such as telecommunications and wi-fi, specified in the Regulation. 

Subject

2. The subject of the Mooring Contract is the multiple year right to moor in the Mooring Place identified in the Specific Conditions, and the right to receive the associated Port Services provided. 

3. The subject of the Parking Contract is the right to park a vehicle in the Parking Space identified in the Specific Con-ditions. 

4. The Company may change the exact position of the Mooring Place or Parking Space, in accordance with directives that shall be issued by the administrative authorities or due to technical and operational requirements. 

Fee

The fee for the Mooring rights, Port Services and Parking rights is set in the Specific Conditions of the Contract, which constitute a single inseparable document. 

Fit for use certification and delivery

6.The Mooring Places and Parking Spaces shall be made available to Users as soon as the competent Authorities have declared they are Fit for use. 

7. The Fit for use certificate shall not be issued before the completion of the Marina works, envisaged for 31/12/2019. 

8. If the works are not completed by 31/12/2019, and therefore the Mooring Places and Parking Spaces forming the subject of the Contract are not usable within the aforementioned deadline, the User may withdraw from the Contract with the right only to receive the amounts paid in return, without any interest and without the right to compensation for damages or indemnity of any kind. 

Intuitu personae

9. This Contract is entered into intuitu personae and the User may therefore not transfer it to third parties, nor may the Mooring Place or Parking Space be transferred to third parties, without prior authorization from the Company. 

10. In the case of the User being a legal person, which intends selling its company, or a branch thereof, in which the Contract is included, the User shall send the Company: 

∙ notification, which is also signed by the third party buyer, with authorization to process personal data pursuant to Italian Legislative Decree 196/2003; 

∙ a copy of the current General Conditions and Specific Conditions, including the Regulation - if adopted in the meantime - signed by the third party buyer, in acceptance and as an undertaking of its precise compliance; 

∙ copy of the third party buyer's valid identity document, or in the case of a company, a copy of the document proving the company's existence, tax identification code, the registration in public registers, and a copy of the legal representative's identity document. 

11. On receipt of the aforementioned notification, the Company may withdraw from the Contract within three months from the news of the transfer, should there be just cause, as per Art. 2558, paragraph 2 of the Italian Civil Code. In this case, the User shall only be entitled to a refund of an amount calculated according to the following formula: 

 

P

___ Tr     

                                                                                          Tt

 

 

 

where:

P  = the price paid as recorded in the Specific Conditions, up until its natural expiry, as recorded in the Specific Conditions; 

Tt = term of the Contract from the date of the Fit for use certification, up until its natural expiry recorded in the Specific Conditions; 

Tr = residual term of the Contract from the date of issue of the Mooring Place or Parking Space, follow-ing the withdrawal pursuant to Art. 2558 of the Italian Civil Code, up until its natural expiry as recorded in the Specific Conditions. 

Cancellation of the concession

12. The User declares that it is cognisant pursuant to Art. 42 of the Naval Code, that due to supervening specific reasons inherent to the use of the sea or for other reasons of public interest, the competent administrative authority may re-voke the maritime state-owned property concessions to the Company before its natural expiry, and that as a result of said cancellation, the Mooring contract and Port Services would also become invalid; in this case the User shall not be entitled to refunds, compensation or indemnity of any kind. 

Port Services

13. For the term of the Contract, the Company shall be responsible for managing the Port Services. 

14. The General Services are essential for the safe and efficient operation of the Marina and may not be waived by the User and its assignees. 

15. The User may not refuse to pay for the General Services, even by claiming not to use said services. 

16. Having noted the objective difficulty of establishing the procedures for calculating and paying the fee for General Services, the Specific Conditions of the Contract record a flat-rate fee for these services, which is set for the calendar year during which the Contract is entered into. The fee shall be paid by the User every year, in advance in a single installment; for the first year or for the relative installment, the payment shall be due as soon as the User receives the Marina's Fit for use notification, albeit provisional, and the notice that it is possible to use the Mooring Place. 

17. The fee for the services set in the Specific Condition for the current calendar year in which the Contract is entered into, shall be revised annually as from 1 January of the next year at a rate of one point five percent (1.5%), added to a coefficient calculated as follows: 

∙ for twenty percent (20%), based on the change in the ISTAT consumer price index for families of workers and employee during the previous year; 

∙ for eighty percent (80%), intended on a flat-rate basis as the component of the fee resulting from the expenses incurred by the Company for labour costs, in relation to increases in the relative costs as per the National Col-lective Labour Agreements (CCNL) for the sector the Company belongs to. 

18. The amount calculated annually as set out above shall constitute the basis for the fee payable for the next year, and in particular, for the subsequent update to be carried out using the aforementioned criteria. This shall be paid as from the date that the notice is communicated as per Art. 8. Furthermore, from this point forward the User accepts addi-tional increases to the annual fee as determined above, once again from 1 January of the next year to the signing of this contract, as a consequence of an increase that is not offset by the aforementioned updating criteria, in respect of expenses encumbered to managing the Marina, or supervening new fees, such as for example and not limited to, those relating to the state-owned concession fee, duties, taxes, tariffs, both local and not local, even if introduced on the basis of subsequent regulations, those for new General Services introduced and provided, or for other technical port activities that the competent administrative Authorities deem necessary for the safe and efficient use of the Ma-rina. 

19. The Company is expressly exonerated of any liability for interruptions in the provision of the aforementioned ser-vices or should it be impossible to totally and partially use the Mooring Place or Parking Space, with all risks thus remaining with the User regarding the effective usability of the Marina, unless the event is attributable to a fact or fault of the Company. 

20. The expenses related to the services based on individual demand shall be debited to the User according to the relative tariff that the Company shall periodically issue. 

21. The payment of the above services or whatever else may be owed for ancillary services or other ancillary expenses may not be suspended or delayed by claims or objections by the User, for any cause and reason. 

22. The Company shall be entitled to suspend the provision of the above services to the User that is in default with the payments owed for the provision of said services, prior to 10 (ten) days' notice; the default User shall also be charged interest at the default maximum rate contemplated by Legislative Decree 231/2002. 

Regulation - Removal - Exclusion of safekeeping

23. The User, on its own and its assignee's account, undertakes to adhere to the Regulation, and to comply without delay with the directives issued by the competent administrative Authorities. 

24. In the event of infringing the Regulation, and in the case of illegally or unauthorized occupation of the Mooring Place or Parking Space, the Company shall order the immediate release of the Mooring Place or Parking Space, and in the event of failure to comply, shall arrange for the removal of the vessel or vehicle, and relocation to another sec-tion of the Marina, including towing and moving it to an authorized shipyard. 

25. The costs for the removal, towing, haulage, launch, Parking and storage shall be charged to the User, who shall pay these as a condition for the return of the asset. 

26. The Company assumes no obligation for the safekeeping of vessels moored in the Mooring Place or of vehicles parked in the Parking Space and the items there in contained; the User therefore declares that it is cognizant and ac-cepts that the Company is in no way responsible for damages incurred by the vessel or vehicle, caused by meteoro-logical events, acts of vandalism, theft or other damage caused by third parties. 

Free loan for use

27. For a period of not more than 30 consecutive days, and for not more than 60 non-consecutive days a year, the User may allow third parties to moor in the Mooring Place or park in the Parking Space, free-of-charge, prior to written communication provided to the Company with the third parties' details. 

28. The owner of the moored vessel or the parked vehicle shall be jointly responsible with the User for all the charges, expenses and costs inherent to the Mooring Place or Parking Space and shall comply with the Regulation and the di-rectives of the competent administrative Authorities; in this regard, the User must have the commodatary sign a copy of the Contract with specific reference to this clause. 

Failed use

29. In the case of failing to use the Mooring Place or the Parking Space, the User may entrust the Company with trans-ferring the associated Mooring or Parking rights to third parties on a monthly or annual basis, according to the tariffs set annually by the Company. If the Company should find an interested third party, it shall collect the amount due, which it shall pay to the User, withholding a percentage to be agreed on as commission and refund of the general ex-penses incurred, which shall not be less than 10% (ten percent) of the amount paid by the third party. 

30. It remains understood that the Company shall not assume any obligation to achieve a result in this regard and that the temporary management does not exonerate the User from the obligations set out in the Contract. 

31. The Contract is deemed to be legally terminated pursuant to Art. 1456 of the Italian Civil Code, with the consequent obligation to return full and free availability of the Mooring Place or Parking Space to the Company, in the case of: 

∙ delays of over 3 (three) months in payments by the User regarding the general expenses and/or ancillary ser-vices and/or other amounts payable to the Company, based on the Contract or Regulation; 

∙ failure to comply with the provisions of the Regulation; 

∙ any other serious non-compliance in respect of the obligations set by the Contract, including the legislative pro-visions applicable to the use of the Mooring Place or Parking Space. 

32. In the case of the Contract being terminated, no compensation, indemnity, refund, even of part of the fee, advances on the management fee and Port Services fee, shall be due to the User, with any claim to a refund deemed to have been expressly waived, including by way of an agreement based penalty. 

Succession 

33. In the case of succession mortis causa, the heirs and/or legatees of the User replace the User in the Contract. 

34. In the case of multiple heirs, without prejudice to their joint responsibility in respect of the Company, the co-heirs shall designate a single representative, who shall sign a deed acknowledging the replacement of the holder of the Mooring Place or Parking Space in the in name and on behalf of the other co-heirs, and shall exclusively manage all relations with the Company. 

Processing of personal data

35. Pursuant to Italian Legislative Decree 196/2003, the User having been duly informed regarding the purposes and methods for processing, the optional nature of providing personal data, the consequences of a possible refusal to re-spond, the data subjects whose personal data shall be communicated or that could become known as the Data Super-visor or person in charge of processing and the scope of circulating said data, the rights pursuant to Art. 7 of the aforementioned Legislative Decree, the details of the Data Controller, corresponding with the Company, declares that it duly authorizes the processing of its personal data. 

Management of the Marina 

36. At any time, the Company may entrust the management of the Marine to another party, providing the User with spe-cific notification in this regard. 

37. In this case, all the Company's rights based on the Contract and the Regulation shall be exercised by the party en-trusted for the management of the Marina. 

Contract expenses

38. The User shall be responsible for all the expenses inherent to and/or consequent to entering into the Contract, quanti-fied on a flat-rate basis at an amount equaling one percent (1%) of the fee contemplated in the Specific Conditions, excluding VAT in addition to the refund of any other indirect tax payable by law, including those based on new regulations in the future. 

Governing Law - Jurisdiction - Language

39. This Contract is governed by Italian Law. 

40. Any dispute that may arise between the parties regarding the interpretation or execution of the Contract shall be re-ferred exclusively to the Court of Sanremo. 

41. In the case of doubts regarding the interpretation in the dual language version of the Contract, the version in Italian shall prevail.