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30 April 2014
On February 17 2014 the National Agency for Waterway Transportation (ANTAQ) published Resolution 3290, which sets forth the authorisation procedures for the construction, development and expansion of private use terminals, cargo transshipment stations, small public port facilities and tourist port facilities. The resolution entered into force on the date of its publication.
Under the new resolution, a 'private use terminal' is defined as a facility located outside the organised port area that cannot be characterised as an cargo transshipment station, tourist port facility or small public port facility.
A 'cargo transshipment station' is a port facility located outside the organised port area that is used exclusively for the operations of transshipment of goods on inland or coastal navigation vessels.
A 'tourist port facility' is a port facility used for the embarkation, disembarkation and transit of passengers, crew and baggage, as well as inputs for the supply of tourist vessels. Such facilities fall into three types:
Finally, a 'small public port facility' is a port facility located outside the organised port area that is used to move passengers or goods onto inland navigation vessels.
Before authorisation to develop such types of facilities can be obtained, an application must be filed with ANTAQ. The application must be supported by the applicant's legal qualification documentation, as well as specifications of the terminal, its construction timetable, the amount of investment and the proposal guarantee, if applicable.
With regard to the land on which the terminal will be built, the resolution requires the presentation of the land's deed, occupancy registration, emphyteutic lease contract or assignment contract under the property interest regime, or other legal instrument ensuring the right of use and enjoyment.
The proposal guarantee offered to the venture must be 1% of the investment value, limited to R$200,000. The performance guarantee, which replaces the previous guarantee on the execution of the adhesion contract, will correspond to 2% of the venture and have no limit.
Call for submissions
After receiving the application, the agency will hold a call for submissions, giving other companies interested in exploring a similar venture the opportunity to respond and to submit documentation similar to that presented by the applicant. If no other companies show interest within the time allowed, the relevant government entity may grant authorisation to the applicant, provided that it deems competition between the applicant's projects and those of interested parties responding to the call for submissions to be viable.
If competition between the projects is not viable, ANTAQ will carry out another selection process, which will define the project to be authorised according to the objective criteria set forth in the request for proposals. The selection criteria may be based on:
The authorisation for construction and exploration of port facilities will be formalised upon an adhesion contract being entered into by and between the relevant government entity and the party granted the authorisation, with the intervention of ANTAQ.
The authorisation will be valid for up to 25 years, extendable for successive periods, provided that the port activity is kept consistent and the party granted authorisation makes the necessary investment for the expansion and modernisation of port facilities.
The resolution points out that authorisation can be transferred to another holder only with the prior approval of the relevant government entity, in which case the need to enter into a new adhesion contract will be waived, provided that the conditions originally set forth in the contract in force remain the same.
The resolution makes it possible for private port facilities to share berthing infrastructure. The rights and obligations derived from shared use of the berthing infrastructure by private port facilities will be included in the contract entered into by the parties. This contract must be submitted to ANTAQ with the application documentation and such sharing must be expressed in the respective adhesion contracts.
For further information on this topic please contact Godofredo Mendes Vianna at Kincaid | Mendes Vianna Advogados by telephone (+55 21 2276 6200), fax (+55 21 2253 4259) or email (firstname.lastname@example.org). The Kincaid | Mendes Vianna Advogados website can be accessed at www.kincaid.com.br.
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