Council Backtracks on Flamingo Marina Vote
By Zoraida Diaz
The Beach Times |
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The Municipality of Santa Cruz has backtracked on a decision to adjudicate the Flamingo Marina, instead suspending a municipal accord which had awarded the concession to an international consortium.
Also suspended is the Master Plan for the marina and adjoining land, which the council approved in February 2006.
The temporary suspension, effectively halting the process, is yet a further blow to what has been a drawn-out four year process now mired in appeals and inconsistencies.
The suspensions are in effect until the council is able to study and respond to unresolved appeals from two companies outside the bidding process, who had called for the adjudication process to be declared null and void.
The municipal council voted (5-2), earlier this month, to “suspend” the municipal accord that had given the tender for the right to build, develop and operate the Marina Flamingo to the company Desarrollo de Marinas Matapalo DEMM S.A.
At $91 million, Matapalo DEMM was the biggest and most ambitious project among the four. The company’s plans call for a new breakwater plus 442 boat slips, some capable of handling mega-yachts of up to 45 meters (150 feet).
The project boasted an extended pier for cruise liners, a 20,000-square-meter hotel, a commercial center and an unspecified number of condominiums.
The Flamingo-based companies Inversiones Flamingo S.A and Sueño de Flamingo S.A. (holding companies for the hotel and condominiums known as Flamingo Marina Resort) have — according to the municipal accord document — presented written complaints since January 2006 regarding their opposition to the Master Plan of the marina, without response from the municipality.
The council has also agreed to convene a new three-member marina commission, giving it two weeks to study the complaints and present a report.
“We order said accords [adjudication and master plan] suspended…and suspend any administrative consequences and before third parties, until the report [to be drafted by the marina commission] eliminates any doubt of legality, opportunity and due process,” says the council.
Braulio Moreno, Santa Cruz councilor and member of the newly formed marina commission, was one of the main supporters of the accord that suspended the adjudication.
“We had suspended the adjudication until we studied the appeals on file,” he said adding that “just last week, we were going to continue the process, were going to lift the suspension, when the order from the Sala IV came in.”
Mr Moreno refers to the Constitutional Chamber or Sala IV’s early dictate on one of two appeals filed by Willily Ocean View against the council’s choice of Matapalo DEMM, a decision which went against the recommendation of an outside legal consultant hired by Santa Cruz.
Willily Ocean View S.A, was one of three companies which lost the bid to build and operate the marina.
According to Mr James Lynskey, Willily’s representative, “the Sala ordered the adjudication act be suspended, and that until [the appeal] is resolved, it is not possible to carry out the adjudication of the concession in favor of the company chosen by the municipal council.”
“We have already answered the Sala on that front,” said Mr Moreno, “for us, the council’s decision is valid, for the municipality reached a decision based on the criteria of ‘opportunity and convenience’ for the municipality.”
Answering a second appeal by Willily, which accused the municipality of awarding the tender to a company whose project would cause extensive environmental damage, the Constitutional Chamber said it would review the appeal.
The Chamber threw out all other objections. However, the high court found that the municipality had not replied to Willily’s request that Demm’s offer be rendered ineligible because of environmental violations.
The constitutional court confirmed “there is no pronouncement in response to the appeal,” and that the municipality had “not paid attention” to the concerns presented.
The Chamber gives the Municipality three days from the moment they are notified (according to court docket, only Willily’s legal representative Mr Lynskey had been notified) to respond to the charges.
The high court also orders the Council and Mayor of Santa Cruz to “take necessary measures and issue pertinent orders to guarantee that the environment is at all times protected during the building, development and operation of the tourism marina… according to the dictates of the National Technical Environmental Secretariat (SETENA), until the Sala resolves the appeal.”
“There’s no way we can determine if a project has more or less impact,” said Mr Moreno, “we do not have the technical know-how to make that decision.
“It’s almost like putting your socks on after your shoes,” he said referring to the way the tender process had been designed.
The process called for the municipality to decide on a marina project taking into consideration issues such as financing, canon to be paid by the concessionaire, and scope of the project.
Once the concessionaire had been chosen, it was then, that the developer would present an environmental impact study before SETENA. Further, their plans must pass scrutiny by the Comisión Interinstitutional de Marinas y Atracaderos Turísticos, (or CIMAT), the government department charged with overseeing all technical aspects of this and other marinas.
Both departments are likely to seek changes to the original plans.
“The drafted project is then subject to technical analysis,” said Oscar Villalobos, CIMAT’s Technical Secretary. “It will be transformed and it will mature and end up being different: this is a fact.”
Mr Villalobos seemed surprised by the apparent confusion at the municipality.
“It was clear that the tender was designed to avoid having all bidders go through a lengthy and costly process of obtaining an environmental viability and meeting all the requirements exacted by the Law of Marinas,” he said.
“The winning bidder must now go through that process, and only when both SETENA and CIMAT are satisfied can the developers formally apply to the municipality for the concession.”
Juan Victory of Matapalo DEMM, is confident the Chamber will reject the appeals.
“In this process, we were adjudicated the concession. Of course, every work of this scope has an impact,” he said when asked about the environmental liabilities of the project.
“We have to still go through SETENA and in the end, we will do what they tell us we can do.”