RENTAL POOL AGREEMENT

Transcription

1 RENTAL POOL AGREEMENT Entered into by and between The MANAGEMENT COMPANY Barra Cabanas Management Company Lda, a duly registered company in terms of the laws of the Republic of Mozambique at the Inhambane Commercial Registrar under registration number, herein represented by Dave Law, passport number dire number And The PERIODICAL PROPERTY RIGHT OWNER (Hereinafter referred to as the Owner) Full Names: Identity Numbers /Registration No : Full name of Representative : Marital Status: (if the owner is an individual) (* delete below which does not apply) In Community of Property / out of Community of Property / Other If other please specify : If married in community of property Full names of Spouse : Identity Number : Physical Address: Postal Code: Postal Address: Postal Code: Tel. No.(h) (w) cell: Fax No:

2 2 In respect of The PERIODICAL PROPERTY RIGHT IN THE HOLIDAY UNIT Share Block Number: Cabana No: Annual Week Number/s:. RECORDAL The Owner is the registered owner of and holder of a Notarial Deed over the Periodical Property Right in a Holiday Unit at the development known as Barra Cabanas. The Owner wishes to engage the services of the Management Company to offer, manage, and operate the Owner s right in the Holiday Unit as a transient self service holiday unit within Barra Cabanas pursuant to the terms and conditions set forth in this agreement, hereafter known as the Rental Pool. The Owner does not intend to occupy the Holiday Unit at all times that he has the right to do so, and the Owner desires to engage Management Company for the purpose of renting the Holiday Unit, in whole or in part as described below, to others when not occupied by the Owner or the Owner s guests, on the terms and conditions set forth in this Agreement.

3 3 The Parties agree as follows: 1 INTERPRETATION A Reference to one gender shall include the other genders, except where the context indicates otherwise. A reference to the singular shall include the plural and vice versa, except where the context indicates otherwise. A reference to a person shall include a reference to a natural person and a legal person and a reference to a natural person shall include a legal person and vice versa, except where the context indicates otherwise. Where the day on or by which anything is to be done is not a business day, it shall be done on or by the first business day thereafter; For purposes of this agreement, a reference to business days or public holidays shall mean the business days and public holidays in Mozambique and South Africa. When any number of days is prescribed in this agreement, same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a Saturday, Sunday or Public Holiday, in which case, the last day shall be the next succeeding day which is not a Saturday, Sunday or Public Holiday; The head notes to the clauses in this agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate. Reference to this agreement shall include this agreement and all annexures hereto.

4 4 2 APPOINTMENT OF MANAGEMENT COMPANY 2.1 The Owner hereby appoints the Management Company as his agent, effective from the date upon which registration of transfer of the Owner's Periodical Property Right in the Holiday Unit is effected in the name of the Owner, to utilise his right as a participating right for the duration of the Management Company's management contract with the developer including extensions of such contract. 2.2 The Owner undertakes and agrees to bind his successor in title to the provisions of this Rental Pool Agreement and agrees to ensure that any successor in title shall acknowledge in writing that he shall be bound by the provisions of this Rental Pool Agreement. 3 RENTAL POOL 3.1 Subject to the Owner's right of use set out in clause 5 below, the Management Company shall, subject to the terms of this agreement, be entitled to utilise the Owner s Periodical Property Right in the Holiday Unit during the currency of this agreement in order to rent it out. 3.2 The Management Company shall throughout the duration of this agreement have the right, in its sole discretion, to set the rental rates of the Holiday Unit and all other properties in the Rental Pool. The initial rack rate is set out in Annexure A hereto. Rate specials may be given from time to time to maximise occupancy in low seasons. 3.3 The Management Company shall receive the total revenue received from the letting of the Holiday Units in the Rental Pool and distribute it to the Owners in accordance with this agreement. 3.4 All operating costs and other necessary expenses of the Management Company s business which are provided for in this agreement and/or in any

5 5 operating budget and/or as required by Law and/or necessarily incidental to the running of its business, including the Management Company s management fees and any operating loss shall be covered by the Owner s Monthly Levy and the Daily Usage Levy. 3.5 The Management Company is entrusted with the control and management of the Holiday Units and is responsible for the maintenance of the Holiday Units and their interior. 3.6 The Management Company shall ensure the following, the cost of which shall be met by the Management Company (from Levy Revenue) as part of the operating costs of its business: that the Holiday Units are supplied with guest supplies, cleaning supplies, daily cleaning service and a laundry service for the Holiday Unit linen; that all furniture, fittings, fixtures, operating equipment and other contents of the Holiday Units are adequately insured both as to amount and risks covered; that on due date, the electricity, water and telephone service charges and value added tax incurred in respect of the Rental Pool, are paid; the Management Company shall itself be entitled to exercise its fullest discretion in the control of conduct of guests and other occupiers of the Holiday Unit and facilities in the development; that there is adequate public liability insurance (taking into account any other public liability insurance which may already exist in respect of the development, Holiday Unit and/or the Rental Pool) cover for claims that may be brought against the Owner, the Management Company, and/or anyone of them, and/or their agents and/or their employees;

6 that all normal repairs and maintenance to the development and Holiday Unit as may in the discretion of the Management Company be required from time to time, be effected control and manage all staff members employed to clean and maintain the Holiday Units and common property. 3.7 The Management Company, or its subcontractor, shall undertake an adequate and ongoing marketing campaign with the aim of ensuring reasonable levels of occupancy, the cost of which shall be part of the operating costs of its business. 3.8 The Management Company shall, upon finding out that Owner is in arrears with amounts owed to the Management Company, be entitled to, notwithstanding any other provision contained in this agreement, deduct from the rental payable to the Owner such amount as may be due. 3.9 The Management Company shall keep proper records of all income and expenditure in the Rental Pool. The accounts shall be made available to Owners no later than 6 (six) months after the financial year end of the Management Company The Management Company is responsible for the management of the site and for renting it out on behalf of the Owners as lucratively as possible, acting in good faith and to the best of his ability, charging rent and applying the conditions as stipulated by the Management Company in accordance with legal and economic norms current in the resort-business in accordance with comparable graded developments The Management Company will exploit the Rental Pool Holiday Units as part of a resort-operation, which has no other meaning than that the Holiday Units will be rented out to resort-guests exclusively. Any and all fringe-activities,

7 7 such as diving or entertainment activities, car, 4x4 or quad rentals and the running of the clubhouse, bar or restaurant, fall outside the scope of this agreement The Management Company is responsible for the raising of special levies in respect of the operation of its business as envisaged in this agreement. 4 ACKNOWLEDGEMENTS, DUTIES AND OBLIGATIONS OF THE OWNER 4.1 The Owner acknowledges that: it shall not be entitled to interfere in any way whatsoever with the control and management of the Management Company s business; the Management Company has an absolute and unfettered discretion in implementing its duties in terms of this agreement; it shall not have any claim or cause of action against the Management Company, and/or any director of the Management Company other than as set out in this agreement, arising out of: the letting of the Holiday Units by the Management Company to guests and the running of its business; the failure of the Management Company to let the Holiday Units, forming part of the Rental Pool, to guests; any actions undertaken by the Management Company and/or its directors;

8 the termination of the Rental Pool in terms of this agreement or the reduction or increase of the size of the Rental Pool at any time; the only claim that the Owner has upon the income received by the Management Company from the letting and hiring of the Holiday Units is the amount set out in clause 6; 5 THE OWNER S USE 5.1 The owner shall be entitled to use and occupy the Holiday Unit free of rental subject to payment of the Daily Usage Levy, as he may wish, either personally or through any invitee, provided that: the Owner shall be obliged to give the Management Company at least 90 (Ninety) days prior notice of any period for which he may require the use of his apartment; the operator will endeavour to accommodate the owner or his invitee in the apartment if it is available, failing which in another hotel apartment; 5.2 For all periods during which the Owner or his authorised invitee so occupies the Holiday Unit the Owner shall not participate in the Rental Pool. 6 REVENUE SPLIT 6.1 Nett revenue being total revenue, less commissions for marketing and less the Daily Usage levy, shall be split in the following proportions: % of nett revenue direct to the Management Company;

9 the remaining 70% of nett revenue shall be split pro rata according to the Owner s number of Periodical Property Rights in the Rental Pool irrespective of which time of year or particular Holiday Unit is the object of such right. 6.2 In the event that special group rates are negotiated, which includes certain activities and meals, the income relative to the activities and meals will be deducted for the purpose of assessing nett revenues as determined in the sole discretion of the Management Company. 7 BREACH In the event of any of the parties committing a material breach of this agreement and failing to remedy such breach within a reasonable time of the receipt of a notice from any other party or parties of such breach, taking into consideration the nature and extent thereof, the aggrieved party or parties shall be entitled to cancel this agreement and claim damages without prejudice to any of its other rights in law. 8 DURATION 8.1 This agreement shall commence upon the date of signature and shall endure for so long as the Owner is the owner of the Periodical Property Right. 8.2 Either party shall be entitled to cancel this agreement by giving not less than 90 (ninety) days written notice of cancellation to the other party. 9 MOZAMBICAN LAW The parties specifically agree that the laws of the Republic of Mozambique shall be applicable to this agreement as regards the interpretation of this agreement and in any contractual disputes arising from the relationships, rights, duties, obligations and

10 10 responsibilities created in this agreement irrespective of the nationality of the either of the Committed Seller or the Committed Purchaser. 10 NOTICES Where in terms of this agreement any communication is required to be in writing, the terms writing shall include communications by and telefax. Communications by or telefax, as the case may be, shall, unless the contrary is proved by the addressee, be deemed to have been received by the addressee 24 hours after the time of transmission. 11 GENERAL PROVISIONS 11.1 No agreement or arrangement between the parties in terms of which: any of the provisions hereof are cancelled, amended or added to; or this agreement is cancelled in its entirety; shall be binding upon the parties or be of any force or effect unless such agreement or arrangement is reduced to writing and signed by the parties or by their duly authorised agents No indulgence, extension of time for any payment, latitude or concession in respect of the performance of any obligation hereunder, made, granted or allowed by the Management Company to an Owner at any time, shall under any circumstances be deemed to be a waiver by the Management Company of any of their rights against an Owner arising here from, or to be a novation of any such obligation, or to create a precedent, and shall not in any way affect, diminish or prejudice any of the Management Company s rights against an Owner and the Management Company shall be entitled at any time to demand strict and punctual fulfilment of all an Owner s obligations hereunder, despite any latitude or concession.

11 11 12 COOLING OFF The Owner has the right to cancel this agreement within ten (10) days of signature, provided that written notice is given to the Management Company. THUS SIGNED AT ON THIS DAY OF 20 AS WITNESSES DAVE LAW ON BEHALF OF MANAGEMENT COMPANY THUS SIGNED AT ON THIS DAY OF 20 AS WITNESSES OWNER

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