25439-MP-TUR, of August 27, 1996 and its reforms, published in the Official Gazette La Gaceta No. 173 of September 11, 1996, with the rest of the regulation remaining unchanged, so that they read as follows:
"Article 2. ( ... )
( . . . )
- f)Project: Gulf of Papagayo Tourism Project, declared of public utility and comprising the land and maritime area located within the boundaries established by Article 1 of the Law "Declaring real estate of public utility to carry out and execute the tourism project in Bahía Culebra or Papagayo," Law No. 6370 of September 3, 1979, published in the Official Gazette La Gaceta No. 171 of September 13, 1979 and its reform (hereinafter Law 6370).
- h)Master Plan (Plan Maestro): Tool for the control and regulation of land use, zoning, roadways, densities, surface coverage ratio (coeficiente de ocupación de superficie, COS), also known as "coverage" (cobertura), as well as the bases for site design and general specifications for the development of the project and its urban development planning, according to the "General Master Plan Regulation of the Gulf of Papagayo Tourism Project," approved by the Board of Directors of the ICT, in Ordinary Session No. 4572, Article 2, subsection VIII, held on July 10, 1995 and published in the Official Gazette La Gaceta No. 140 of July 24, 1995 and its reforms.
The Master Plan is a directive planning instrument, as it sets forth the guiding principles, general directives, and master lines that are to guide and regulate urban or building planning and land use of the Gulf of Papagayo Tourism Project; all within the applicable legal limitations and whose nature, in addition to being technical, has normative and mandatory scope.
- i)Public Domain Asset (Bien Demanial): Each of the real estate properties and their attributes, declared of public utility, that make up the development area of the Gulf of Papagayo Tourism Project, subject by Laws 6370 and 6758 to tourism use and over whose legal destination the ICT exercises administrative, oversight, and control power, with the tourism purpose being the criterion for the designation of such properties, which may be granted in concession to private parties by the ICT.
Said territorial portion comprises those areas that have been acquired by the ICT for the development of the project, encompassing the fifty-meter inalienable public zone area, the one hundred fifty-meter restricted zone area, and the continental zone area, the latter being understood as the area located inland, beyond two hundred meters from the maritime terrestrial zone of the Pacific coast. The Gulf of Papagayo Tourism Project is located from Punta Cabuyal to the north, to one kilometer south of Punta Ballena, with the coordinates of Law 6370 prevailing, and also includes the area permanently covered by the sea located within said coordinates, intended for the construction, administration, and operation of tourist marinas and docks (marinas y atracaderos turísticos), within the Gulf of Papagayo Tourism Project, in accordance with the provisions of the Law for the Concession and Operation of Tourist Marinas and Docks, Law No. 7744 of December 19, 1997 and its reforms, published in the Official Gazette La Gaceta No. 26 of February 6, 1998.
- j)Concession (Concesión): Administrative act of a contractual nature agreed by the Board of Directors of the ICT in favor of a natural or legal person, which grants them an administrative real right for exclusive, private, and exclusionary use of a patrimonial nature over a public domain asset within the Gulf of Papagayo Tourism Project. This administrative real right allows the Concessionaire to exercise all the attributes of ownership except the transfer of land. For these purposes, the public tourism purpose of the Project implies the Concessionaire's power to use, enjoy, transform, build or co-build, defend, offer as security, encumber, subdivide, assign partially or totally, the concessioned public domain asset for the fulfillment of its tourism development project, always under the oversight, control, and approval of the ICT.
- o)ICT Fee (Canon del ICT): Pecuniary consideration that the concessionaire must pay to the ICT for the granting, extension (prórroga), term adjustment (ajuste de plazo), total or partial assignment (cesión) of the concession, and any modifications thereto, the amount of which shall be calculated in accordance with the procedure set forth in point IX) Procedure for indexing the value of the assignment fee and point X) Procedure for indexing the value of the fee for granting, extension, or adjustment, both of the Sole Annex of this Regulation.
- p)Municipal fee (Canon municipal): Pecuniary consideration that the Concessionaire must pay to the competent Municipality in accordance with the Law on the Maritime Terrestrial Zone, Law No. 6043 of March 2, 1977, its reforms (hereinafter Law 6043) and its Regulation, regarding the restricted zone area and public zone area granted in concession by way of exception, that it has included within its Concession, with the tax base being the value of the concession established by the ICT. In the event that the area is concessioned under Law 7744 and its Regulation, the fee to be paid to the respective municipality shall be that established in said regulation.
- q)Tourism Purpose (Fin Turístico): It is the ultimate and supreme public purpose pursued by Law No. 6758, consisting of the productive tourism development of the Gulf of Papagayo Tourism Project, in harmony with the uses established in the Master Plan of the Gulf of Papagayo Tourism Project." "Article 3 bis.( ... )
( ... )
- f)Recommend to the Board of Directors the determination of the amount of the fee to be paid to the ICT for the granting of the concession, extension, term adjustment, assignments, and for all other acts provided for in this regulation.
( ... )
- h)Oversee the work and exercise disciplinary authority over the executive director. In the absence of specific regulations, the disciplinary regime of the Institute shall be applied supplementarily.
- k)Appoint the executive director. ICT officials charged to its budget shall be appointed by the General Management of the ICT, upon the recommendation of the executive director, with the latter being responsible for exercising disciplinary authority over them." "Article 3 ter. ( ... )
( ... )
- j)Coordinate the necessary actions to have a public access information system on the concessions granted and their respective updating.
- k)Oversee, jointly with the Financial Department of the ICT, the budgetary control over processes, transactions, and operations related to public investment infrastructure works that the Project is responsible for developing; as well as investments for the planning, development, execution, promotion, and marketing of the Gulf of Papagayo Tourism Project, for which it must coordinate with the Marketing Department of the ICT." "Article 4. The ICT may grant concessions in all areas of the Project that have been acquired and declared of public utility by Law 6370, which may only be used for said Project and which are subject to the technical standards of the General Master Plan by the Board of Directors of the ICT to form part of the Gulf of Papagayo Tourism Project, assigned to the public purpose of tourism use. Concessions may be granted to natural persons, nationals or foreigners, and regarding legal persons, concessions shall only be granted to entities incorporated and domiciled in the country.
Natural persons, legal persons, as well as legal representatives, members of the Board of Directors, Agent Holders, and Administrators with representation of a legal person, who submit the application to become awardees of a concession must comply with the provisions set forth in the respective tender specifications, prove their lack of a criminal record in the exercise of their position, and their economic capacity for the execution of the projects, before the Executive Council (Consejo Director). To prove the lack of a criminal record and economic capacity, the interested party must meet the requirements established in the Sole Annex of this Regulation, point 11) Requirements to demonstrate economic capacity and point 111) Requirements to demonstrate the lack of a criminal record.
Any change of partners and legal representatives of a concessionaire legal person, as well as the merger of concessionaire commercial companies, by virtue of the provisions of Articles 19, 22 and Chapter Ten of the Commercial Code, Law No. 3284 of April 30, 1964 and its reforms, published in the Official Gazette La Gaceta No. 119 of May 27, 1964, must be accredited to the ICT within the thirty business days following the occurrence of such change, providing the legal documentation established in the Sole Annex of this Regulation, point IV) Requirements for accreditation of new legal representatives and transfer of share capital. In the event that the change is only of legal representatives, the period to inform the ICT shall commence upon the respective registration in the Registry of Legal Persons.
Anyone seeking to be awarded a concession must also comply with the requirements established in the specifications of the respective public tender.
Anyone seeking to acquire a concession through assignment must comply with the provisions of the Sole Annex of this Regulation, point V) Requirements for Total or Partial Assignment of Concession." "Article 5. Concessions shall be granted through a prior public tender, the terms and conditions of which must be published in the Official Gazette La Gaceta and in a newspaper of national circulation." "Article 6. Concession applications shall be studied in detail to verify compliance with the requirements established in the terms and conditions of the public tender. This analysis is the responsibility of the technical staff of the Executive Office and the Legal Advisory Office of the ICT regarding strictly legal aspects, whose report shall be the basis for the Executive Council's recommendation for the award of the concession.
The Executive Council shall make its recommendation to the Board of Directors of the Institute, which shall make the final decision." "Article 9. The original term of the concessions shall be a maximum of 50 years. The determination of the term must be duly motivated and based on an objective and technical analysis to be carried out by the administration.
In those cases where the term of the concession is less than fifty years, the concessionaire may request at any time, in a duly justified and reasoned manner, the adjustment of the term of their concession, which may never exceed the maximum term stipulated in this article.
The act approving the extension of the term must be based on technical studies carried out for this purpose, with the concessionaire being up to date with compliance with the provisions of Article 14 of this regulation, which must be verified by the Executive Directorate. All term adjustment procedures shall be carried out in accordance with the procedure described in the Sole Annex of this regulation, point XI) "Procedure for adjusting the term of concessions." "Article 10. Consecutive extensions (prórrogas) of the term granted by the Board of Directors of the ICT may be granted, unless the public interest justifies the rescission of the concession in accordance with the provisions of Article fifteen of the Law Regulating this Tourism Hub.
The new term requested must be justified by the needs of the project and be consistent with it, provided that the concessionaire maintains the requirements demanded for this, in accordance with the obligations established in the concession and the laws and regulations governing the Gulf of Papagayo Tourism Hub. To this end, the Executive Directorate shall verify that the area and its buildings and facilities are maintained in a good state of conservation and that the applicant concessionaire is up to date in the fulfillment of their contractual and regulatory obligations. An extension of the term may not be requested if at least half of the originally granted term has not elapsed.
The request for an extension must be made by the concessionaire to the Executive Council within one year prior to the expiration of the term of the concession, unless the concession contract has provided for a different extension procedure. For each extension, the concessionaire must pay the ICT the corresponding fee adjusted in accordance with the procedure established in point X) Procedure for Indexing the Value of the Fee for granting, extension, or adjustment, Sole Annex of this Regulation." "Article 12. It is the responsibility of the Board of Directors to authorize the granting of concessions, modifications to the General Master Plan, total or partial assignments, subdivision (segregación), all types of liens (gravámenes), as well as transfers in trust (traspasos en propiedad fiduciaria) of the concessions, as well as the submission of the concession to the condominium regime, the transfer of concessions to investment fund management companies, and commercial mergers by absorption of concessionaire legal persons resulting in a new concessionaire, land-use change (cambio de uso de suelo), density and coverage compensation, and in general any act affecting the administrative real right of the concession that requires modification of the concession contract. In those cases where the approved act requires registration, a prior technical and legal report shall be required.
Every awardee of a concession, as well as in the case of an extension or adjustment, must pay the concession fee to the ICT. Said value shall be adjusted following the procedure established in Point X. Procedure for Indexing the Value of the fee for granting, extension, or adjustment, of the Sole Annex of this Regulation.
Acquirers by assignment or transfer of a concession must demonstrate that they meet all the requirements to be concessionaires.
In the case of partial or total assignments, or in the case of awardees in enforcement processes for guarantees established on concessions without interest in developing the concession, they must prove the requirements established in Point V) Requirements for Total or Partial Assignment of Concession, of the Sole Annex of this Regulation and Executive Decree 29794-MP-TUR of August 30, 2001, called "Regulation of Real Guarantees Encumbering Concessions of the Gulf of Papagayo Tourism Hub" published in La Gaceta No. 180 of September 19, 2001, and its reforms, respectively.
In cases of total or partial assignments, an assignment fee must be paid to the ICT, once the agreement of the Board of Directors of the ICT approving the partial or total assignment is final and prior to the signing of the respective contract.
Said amount shall be adjusted by the ICT according to the procedure described in the Sole Annex of this regulation, Point IX) Procedure for Indexing the Value of Assignment Fees. The concessionaire must pay the ICT the corresponding transfer fee, according to the land to be assigned and the indexed value of the fee on the date of the request.
In the event of a request for assignment and subsequent combination of concessions, an adjustment must be requested in order to equalize the term of the combined concessions, for which point XI "Procedure for adjusting the term of concessions," established in the Sole Annex of this Regulation, must be complied with." "Article 13. The granting of concessions, total or partial assignments, liens, transfer in trust, subjection to the condominium regime, transfer to investment fund management companies, and in general those acts that affect the registered administrative real right must be registered in the Concessions Registry of the National Registry.
In cases of total or partial assignments, the acquirer shall be considered for all purposes as the concessionaire, for which reason, once the agreement of the Board of Directors authorizing the assignment is final, the execution of the concession contract with the assignee and the corresponding public deed before a Notary Public contracted by the concessionaire shall proceed.
The signing by the ICT representative of the public deed (escritura pública) that must be submitted to the National Registry for its registration shall be understood to be limited to granting consent for any acts of those indicated in this article to be carried out by the parties, with said public instrument being subject to compliance with the requirements set forth in the Executive Decree "Creating the Concessions Registry of the Gulf of Papagayo Tourism Project in Bahía Culebra," Executive Decree No. 22489-MP-J-TUR of September 2, 1992 and its reforms, published in the Official Gazette La Gaceta No. 174 of September 10, 1993; in Articles 73, 81 et seq. of the Notarial Code, Law No. 7764 of April 17, 1998 and its reforms, published in the Official Gazette La Gaceta No. 98 of May 22, 1998, and in Articles 448 et seq. of the Civil Code, Law No. 63 of September 28, 1887 and its reforms." "Article 14. Every concessionaire of the Gulf of Papagayo Tourism Project, in the exercise of their concession right, is obliged to comply with the following provisions:
- a)The regulations established by Law No. 6758.
- b)The provisions of this regulation.
- c)The provisions of the General Master Plan approved by the Board of Directors.
- d)The stipulations in the respective concession contract.
- e)The provisions of the Development Plan for the specific project approved by the Board of Directors of the Institute and the Project Execution Schedule.
- f)The provisions contained in the respective Environmental Viability (Viabilidad Ambiental) granted by the Secretaría Técnica Ambiental (SETENA).
- g)The regulations and provisions issued by the Board of Directors of the ICT for the operation of the Project.
- h)Compliance with all tax and pecuniary obligations to the respective municipality.
- i)Being up to date with the employer-employee obligations established by the Constitutive Law of the Caja Costarricense de Seguro Social, Law No. 17 of October 22, 1943 and its reforms; as well as with the Fondo de Desarrollo Social y Asignaciones Familiares (FODESAF) according to the Law on Social Development and Family Allowances, Law No. 5662 of December 23, 1974 and its reforms; j) Being up to date with the tax on legal persons, as established by the Law on Tax on Legal Persons, Law No. 9428 of March 21, 2017 and its reforms.
- k)Being up to date with their tax obligations before the Ministry of Finance.
- l)Being up to date with the provision of information established in the chapter called "Transparency and final beneficiaries of legal persons and other legal structures," of the Law to Improve the Fight against Tax Fraud, No. 9416 of December 14, 2016.
- m)Payment to the ICT of the amount of the fee for granting, extension, term adjustment, and total or partial assignment, once the Board of Directors authorizes the corresponding administrative act and prior to the signing of the respective contract.
The concessionaire shall be considered up to date with their obligations in those cases where they have formally challenged the amounts claimed by the administrative authorities in accordance with the procedure indicated by the applicable laws and regulations for these purposes. The foregoing provided that the debt has not been ratified by a final administrative resolution that resolves said challenge. Compliance with these conditions shall be verified by the Executive Directorate of the Gulf of Papagayo Tourism Project.
"Article 15. All income obtained from the administration of the Project shall be transferred to the Fund created by Article 7 of Law 6758, whose budget shall cover all expenses and investments for the development and execution of the Gulf of Papagayo Tourism Project, including its maintenance, promotion, and marketing." "Article 16. The awardees of concessions, whether by public tender or by assignment of rights, except for the case of awardees resulting from a guarantee enforcement process over a concession without interest in its development, must provide the ICT with a performance bond (garantía de cumplimiento) to guarantee the execution of their projects of up to four percent (4%) of the estimated value of each stage of the project to be carried out, which has been approved. The respective determination shall be made by the Executive Directorate once the project to be executed is approved, taking into consideration the accumulated investment from the previous stage. For projects of up to ten million dollars ($10,000,000.00), they must provide a bond of 4% of the value of the stage; for projects over ten million dollars ($10,000,000.00) and up to one hundred million dollars ($100,000,000.00), they must provide a bond of 2% of the value of the stage; and for projects exceeding one hundred million dollars ($100,000,000.00), they must provide a bond of 1% of the value of the stage.
These amounts shall be updated every four years using the indexing methodology established in the procedure set forth in point X. Procedure for Indexing the Value of the fee, of the Sole Annex of this Regulation." "Article 17. Once the concession is awarded or the total or partial assignment of the concession is authorized, the respective contract must be signed within a term not exceeding three months after notification of the final agreement of the Board of Directors. Within a period of thirty business days from the signing of the concession contract, the public deed must be signed for registration purposes.
The award or assignment must be processed for registration in the Concessions Registry of the National Registry within a term not exceeding two months from the signing of the public deed through which it is formalized for registration purposes.
Within six months following the execution of the contract, the processing of the corresponding permits must begin, which must be diligently carried out by the concessionaire. This is except for the case of assignments for tourist residential use or in the case of awardees in guarantee enforcement processes over concessions without interest in developing the concession. In any case, the concessionaire must inform the Executive Directorate of the status of the processing of the permits requested.
The construction work must begin within three months following the obtaining of all necessary permits and authorizations.
In the case of concessions for tourist residential use and in pursuit of the public purpose pursued by the Gulf of Papagayo Tourism Hub, the period to build the residence must not exceed the equivalent of one-fifth of the total original concession term. In the case of partial or total assignments, in which there is a residual term shorter than the period to build the residence indicated supra, the period to build shall be until the expiration of the concession term.
The period to build the residence shall commence upon the approval by the Board of Directors of the concession granted for tourist residential use.
The deadlines granted by the ICT to the concessionaire for the fulfillment of contractual obligations may be extended by the Board of Directors of the ICT upon prior recommendation from the Executive Council, through a final, duly motivated and justified agreement, at the request of the concessionaire. The deadline for completion of the work shall be defined in the concession contract.
Any change of project must comply with the requirements established in Point l. Procedure for approval and approval marks of plans, Sole Annex of this regulation.
In accordance with the legal framework regulating the Golfo de Papagayo Tourism Project (article 3 bis, subsection a) of this Regulation), the ICT may modify the zoning map known as the Master Plan (Plan Maestro) by varying the land use (uso de suelo) originally designated for each concession, provided the tourism purpose is maintained. The change or addition of land use in the concessioned area may be total or partial with respect to the current use. The modification or addition of land use must be duly justified, reasoned, and substantiated, whether due to a supervening cause or an improvement in the quality of the proposal, demonstrating an increase in socio-economic linkage benefits. Land-use changes that have not been requested by the concessionaire or that diminish the proposal initially agreed with the ICT shall not proceed. The baseline studies and the request for land-use change must be analyzed in light of the General Master Plan (Plan Maestro General) of the Golfo Papagayo Tourism Hub and its Regulation. The baseline studies and the request for land-use change must be analyzed in light of the General Master Plan of the Golfo Papagayo Tourism Hub and its Regulation." "Article 18. The failure of the concessionaire to comply with its legal, regulatory, and contractual obligations, specifically applicable to its status, shall be considered a disciplinable offense." "Article 23. In the event of a presumed breach by a concessionaire, a preliminary procedure must be carried out, through which the Executive Directorate, as agreed by the Board of Directors (Consejo Director), shall notify, within ten calendar days following the date of notification of said agreement, the concessionaire and those creditors with secured interests (garantías reales) over the concession, as well as all natural or legal persons involved with the concession duly accredited in the administrative file, so that any of them wishing to cure the breach may do so by notifying the ICT in writing and curing the breach within fifteen business days following said notification.
Once the preliminary procedure period has ended and the presumed breach persists, the Executive Directorate, through a final report, shall make a recommendation to the Board of Directors, and the Board of Directors in turn to the Board of Directors (Junta Directiva), so that the latter may proceed with the opening of an ordinary administrative procedure against the concessionaire.
The imposition of sanctions shall be carried out following an ordinary procedure, in accordance with the provisions of Title Six, Chapter I, Article 308 and following, of the General Public Administration Act (Ley General de la Administración Pública), Act No. 6227 of May 2, 1978 and its amendments (hereinafter Act 6227)." "Article 24. The Board of Directors (Junta Directiva) shall be responsible for imposing the appropriate sanctions, in accordance with the provisions of Article 13 of Act 6758, the Regulatory Act for the Development and Execution of the Golfo Papagayo Tourism Project (Ley Reguladora del Desarrollo y Ejecución del Proyecto Turístico Golfo Papagayo), and this Regulation, following a report from the directing body of the ordinary administrative procedure.
Decisions of the Board of Directors regarding the imposition of sanctions shall be subject to appeal before the same body, within three business days following the notification thereof." Article sheet