Omnibus Policy of the Subic Bay Metropolitan Authority on the Imposition of Performance Bond and Its Applicable Rates

August 25, 2016

SBMA MEMORANDUM

 

Certification No. 285-16

This certifies that:

The records of the Office of the Corporate Secretary show that during the Three Hundred Twenty-Third (323rd) Meeting of the Board of Directors of the Subic Bay Metropolitan Authority held last 29 July 2016 wherein there was a quorum to validly transact business, the following resolution was approved:

Resolution No. 16-07-5898

"Resolve, as it is hereby resolved, that upon recommendation of Management and without prejudice to COA Regulations and pertinent laws on the matter, the Board hereby approves the following:

1. Omnibus Policy of the Subic Bay Metropolitan Authority on the Imposition of Performance Bond and its applicable rates, as revised, a copy of which is incorporated herein by way of reference;

2. For the Office of the Board Secretariat to issue three (3) certified true copies of said policy to the Office of Chairman and Administrator for filing to the Office of the National Administrative Register (ONAR); and

3. Instruction to the Office of the Chairman and Administrator to proceed with the publication of the Omnibus Policy and filing of the same to the ONAR."

Issued this 25th day of August 2016.

Signed by representativeCorporate Secretary

ATTACHMENT

 

THE OMNIBUS POLICY OF THE SUBIC BAY METROPOLITAN AUTHORITY ON THE IMPOSITION OF PERFORMANCE BOND AND ITS APPLICABLE RATES

The following are hereby promulgated by the Board of Directors of the Subic Bay Metropolitan Authority pursuant to:

1. Paragraphs (b) (2) and (b) (11) of Section 13 of Republic Act No. 7227, as amended by Republic Act No. 9400, otherwise known as the Bases Conversion and Development Act of 1992; and

2. Paragraphs (b), (k) (11) and (m) of Section 10; Paragraphs (a), (e), and (f) of Section 11; Section 12; and Paragraph (c) of Section 40 of the Rules and Regulations Implementing the Provisions Relative to the Subic Special Economic and Freeport Zone and the Subic Bay Metropolitan Authority under Republic Act No. 7227.

RULE I

GENERAL PROVISIONS

SECTION 1. Title. — This Policy shall be known and cited as "The Omnibus Policy of the Subic Bay Metropolitan Authority on the Imposition of Performance Bond and its Applicable Rates."

SECTION 2. Declaration of Policy. — It is the declared policy of the Subic Bay Metropolitan Authority to take all measures necessary to secure the best use of its properties within the Subic Bay Freeport Zone. The imposition of performance bonds help ensure that only investors with the proven ability to develop SBMA properties are allowed to lease them, and that even if they fail to develop, SBMA is compensated for any attendant opportunity cost.

SECTION 3. Purposes, Intents and Objectives. — It is the purpose, intent and objective of this Policy:

a. To establish the framework and mechanism for the posting of performance bonds including the applicable rates for the same;

b. To ensure that the development commitments of Subic Bay Freeport Enterprises on the properties within the Subic Bay Freeport Zone and the expansion areas covered by Executive Order No. 675, Series of 2007 are fulfilled;

c. To protect the interest of the Subic Bay Metropolitan Authority over these properties by imposing necessary penalties in case of violations or non-compliance with this Policy.

SECTION 4. Definition of Terms. — For purposes of this Policy, the following definitions shall apply to the following terms:

a. "Act" shall refer to Republic Act No. 7227, as amended by Republic Act No. 9400, otherwise known as the Bases Conversion and Development Act of 1992.

b. "Accounting Department" shall refer to the Accounting Department of SBMA.

c. "BIDs" shall refer to the Business and Investment Departments of SBMA.

d. "Board of Directors" shall refer to the Board of Directors of SBMA.

e. "BPSD" shall refer to the Building Permit and Safety Department of SBMA.

f. "Certificate" shall refer collectively to the Certificate of Registration and the Certificate of Registration and Tax Exemption issued by SBMA to SBF Enterprises.

g. "Development Commitment" shall refer to the contractual obligation of an SBF Enterprise to construct and/or develop physical improvements on a SBMA property according to a contractually agreed schedule and in a manner that meets a contractually agreed investment amount: Provided, however, that for purposes of this Policy, the term "Development Commitment" shall only pertain to commitments that are covered under Section 5 hereof.

h. "FPBD" shall refer to the Financial Planning and Budget Department of SBMA.

i. "IRR" shall refer to the Rules and Regulations Implementing the Provisions Relative to the Subic Special Economic and Freeport Zone and the Subic Bay Metropolitan Authority under Republic Act No. 7227, as amended.

j. "Legal Department" shall refer to the Legal Department of SBMA.

k. "OSDABI" shall refer to the Office of the Senior Deputy Administrator for Business and Investment.

l. "Performance Bond" shall refer to an Instrument that serves as a guarantee or promise to pay or forfeit money in the event a SBF Enterprise is unable to fulfill its development commitment.

m. "Policy" shall refer to this Omnibus Policy of the Subic Bay Metropolitan Authority on the Imposition of Performance Bond and its Applicable Rates.

n. "SBF Enterprise" shall refer to any individual, partnership, corporation, Philippine branch of a foreign corporation, or other entity incorporated and/or organized and existing under Philippine laws, duly registered by the SBMA to operate any lawful economic activity within SBFZ and the expansion areas covered by Executive Order No. 675, Series of 2007: Provided, however, that for purposes of this Policy, the term "SBF Enterprise" shall only pertain to entities covered under Section 5 hereof.

o. "SBFZ" shall refer to the Subic Bay Freeport Zone, a secured and fenced-in area operated as a separate customs territory consisting of the portions of the City of Olongapo and the Municipality of Subic of the Province of Zambales and the Municipalities of Morong and Hermosa of the Province of Bataan.

p. "SBMA" shall refer to the Subic Bay Metropolitan Authority created under Section 13 of the Act.

SECTION 5. Coverage and Exclusions. — This Policy shall be applicable to all SBF Enterprises with development commitments on new projects, repairs of facility or expansion projects; regardless of status, whether a direct lessee of SBMA, a sublessee, further sublessee or assignee; newly registered or already existing, and granted with tax incentives or not: Provided, That the Board of Directors has the discretion to override this Policy and impose a different set of requirements for the posting of Performance Bonds on a case to case basis.

The following shall be excluded from the compliance requirements for the posting and renewal of Performance Bonds as provided in Sections 6, 7, and 8 hereof:

a. SBF Enterprises with development commitments amounting to Two Million Pesos (Php2,000,000.00) and below;

b. SBF Enterprises with direct and realized investments in SBFZ amounting to at least Two Billion Pesos (Php2,000,000,000.00) based on their latest available Audited Financial Statements; and

c. Additional developments within properties under perfected lease agreements between SBMA and the SBF Enterprise that intends to develop: Provided, That the original development commitment on these properties have already been fulfilled or completed.

For avoidance of doubt, the foregoing shall continue to be covered by the compliance requirements on the submission of reports on development commitments as provided in Section 15 hereof.

RULE II

COMPLIANCE REQUIREMENTS FOR SBF ENTERPRISES ON THE POSTING OF THE PERFORMANCE BOND

SECTION 6. Performance Bond. — The SBF Enterprise within the coverage of this Policy shall post a performance bond to guarantee faithful performance and satisfactory completion of its development commitments, as approved by the Board of Directors.

The Performance Bond to be posted by the SBF Enterprise for its approved development commitment should conform to the following conditions:

a. For development commitments amounting to more than Two Million Pesos (Php2,000,000.00) but not exceeding Thirty Million Pesos (Php30,000,000.00):

1. That the Performance Bond should be equivalent to one percent (1%) of the total amount of the approved development commitment if in the form of cash, manager's check or bank guarantee, or equivalent to ten percent (10%) of the total amount of the approved development commitment if in the form of a surety bond;

2. That the Performance Bond, if in the form of cash or manager's check, shall not be interest bearing;

3. That the Performance Bond, if in the form of a surety bond, should be callable upon demand without need of any explanation and issued by the Government Service Insurance System or by a surety or insurance company duly registered with or accredited by SBMA and certified by the Insurance Commission to issue such bond and belonging to the Top 30 Non-Life Insurance Companies according to Networth based on the latest available ranking issued by said Commission;

4. That the Performance Bond, if in the form of a bank guarantee, should be issued by a commercial bank;

5. That SBMA should be the sole beneficiary of the Performance Bond; and

6. That the Performance Bond should be effective for the whole duration of the approved development commitment schedule of the SBF Enterprise up to one hundred twenty (120) calendar days after the target date of completion of the development commitment: Provided, That if the development commitment is more than one year and if the Performance Bond is in the form of a surety bond or bank guarantee covering the first year of such development commitment, the same should be renewed annually in accordance with Section 8 hereof.

b. For development commitments amounting to more than Thirty Million Pesos (Php30,000,000.00):

1. That the Performance Bond should be equivalent to the following, as the case may be:

i. For development commitments that shall be undertaken in a single schedule without phases, two percent (2%) of the total amount of the approved development commitment if in the form of cash, manager's check or bank guarantee; or equivalent to ten percent (10%) of the total amount of the approved development commitment if in the form of a surety bond; or

ii. For development commitments that shall be undertaken following a schedule with phases and with specified amounts of committed development for each phase, two percent (2%) of the total amount of the development commitment for each phase if in the form of cash, manager's check or bank guarantee; or equivalent to ten percent (10%) of the total amount of the development commitment for each phase if in the form of a surety bond.

2. That the Performance Bond, if in the form of cash or manager's check, shall not be interest bearing;

3. That the Performance Bond, if in the form of a surety bond, should be callable upon demand without need of any explanation and issued by the Government Service Insurance System or by a surety or insurance company duly registered with or accredited by SBMA and certified by the Insurance Commission to issue such bond and belonging to the Top 30 Non-Life Insurance Companies according to Networth based on the latest available ranking issued by said Commission;

4. That the Performance Bond, if in the form of a bank guarantee, should be issued by a commercial bank;

5. That SBMA should be the sole beneficiary of the Performance Bond;

6. That, for development commitments that shall be undertaken in a single schedule without phases, the Performance Bond should be effective for the whole duration of the approved development commitment schedule of the SBF Enterprise up to one hundred twenty (120) calendar days after the target date of completion of the development commitment: Provided, That if the Performance Bond is in the form of a surety bond or bank guarantee covering the first year of the development commitment, the same should be renewed annually in accordance with Section 8 hereof; and

7. That, for development commitments that shall be undertaken following a schedule with phases and with specified amounts of committed development for each phase, the Performance Bond should be effective for the whole duration of the applicable phase of the development commitment schedule of the SBF Enterprise up to one hundred twenty (120) calendar days after the target date of completion of such phase of the development commitment: Provided, That if a particular phase of the development commitment is more than one year and if the Performance Bond is in the form of a surety bond or bank guarantee covering the first year of such phase of the development commitment, the same should be renewed annually in accordance with Section 8 hereof.

c. For development commitments amounting to at least One Billion Pesos (Php1,000,000,000.00), the Performance Bond shall be based on the approved development commitment schedule.

No Performance Bond shall be accepted by the BIDs unless the same conforms to the conditions set forth in this Section.

SECTION 7. Posting of Performance Bond. — The SBF Enterprise shall post the full amount of Performance Bond, without need of demand, within the following periods, as the case may be:

a. Within thirty (30) calendar days from the issuance of the Certificate for newly registered SBF Enterprises;

b. Within thirty (30) calendar days from the signing and execution of the New Lease Agreement for additional facility or the Amendment to the Lease Agreement or the Deed of Undertaking for Assignment of Leasehold Rights, as the case may be, reflecting the approved development commitment of existing SBF Enterprises that are direct lessees of SBMA; or

c. Within thirty (30) calendar days from the signing and execution of the Deed of Undertaking reflecting the approved development commitments of existing SBF Enterprises that are not direct lessees of SBMA.

d. For approved development commitments that shall be undertaken following a schedule with phases and with specified amounts of committed development for each phase, the posting of the Performance Bond for the subsequent phases of the development commitment shall be within thirty (30) days from the commencement of such phase.

For posting of the Performance Bond in the form of cash or manager's check, the SBF Enterprise shall secure a billing assessment from its BID prior to the posting of the Performance Bond to the Treasury Department.

For posting of Performance Bond in the form of a surety bond or bank guarantee, the SBF Enterprise shall submit the original surety bond or bank guarantee to its BID.

SECTION 8. Renewal of Performance Bond if in the Form of a Surety Bond or Bank Guarantee. — For the annual renewal of Performance Bonds posted in the form of a surety bond or bank guarantee, the SBF Enterprise shall, without need of demand and not later than fifteen (15) calendar days prior to the expiration of its existing surety bond or bank guarantee, submit to its BID the new surety bond or bank guarantee for the subsequent annual coverage of the remaining duration of its approved development commitment up to one hundred twenty (120) calendar days from the target date of completion of the development commitment or one hundred twenty (120) calendar days from the target date of completion of each phase of the development commitment, as the case may be: Provided, That the new surety bond or bank guarantee should conform to the conditions provided in Section 6 hereof.

RULE III

MONITORING AND REPORTORIAL MECHANISMS FOR THE POSTING AND RENEWAL OF THE PERFORMANCE BOND

SECTION 9. Role of BIDS. — The BIDs shall:

a. Inform the SBF Enterprise in writing, within five (5) working days from approval of the development commitment of the latter, of the requirement to post the Performance Bond as provided for in this Policy;

b. Inform BPSD in writing, within five (5) working days from receipt from the SBF Enterprise of the signed and notarized Lease Agreement, Amendment to the Lease Agreement or Deed of Undertaking, as the case may be, of the development commitment reflected in these instruments;

c. Furnish the Accounting Department a copy of the signed and executed Deed of Undertaking reflecting the approved development commitment of existing SBF Enterprises that are not direct lessees of SBMA within five (5) working days from receipt of the same;

d. Issue the Billing Assessment to the SBF Enterprise for the posting of Performance Bond if in the form of cash or manager's check;

e. Endorse to the Treasury Department the original surety bond or bank guarantee submitted by the SBF Enterprise within five (5) working days from receipt of the same;

f. Keep a copy of the surety bond or bank guarantee endorsed to the Treasury Department for record and monitoring purposes;

g. In case of non-posting or non-renewal of the Performance Bond:

1. Issue a Notice of Non-compliance to the SBF Enterprise that falls under the First Period of Non-compliance provided in Section 14 a.1 and b.1 hereof, within five (5) working days from commencement of said period, informing the latter of the imposition of the fine and reminding the same of the requirement to post or renew the Performance Bond, as the case may be;

2. Issue a Second Notice of Non-compliance to the SBF Enterprise that falls under the Second Period of Non-compliance provided in Section 14 a.2 and b.2 hereof, within five (5) working days from commencement of said period, informing the SBF Enterprise of the imposition of the additional fine, reminding the same of the requirement to post or renew the Performance Bond and giving a warning that continuous non-compliance would result to the suspension of the Certificate of the SBF Enterprise.

h. Submit to OSDABI, every 7th day of the month, or on the immediately following work day in case the 7th day of the month falls on a Saturday, Sunday or holiday, a report to containing the following:

1. List of SBF Enterprises that failed to post the Performance Bond for the immediately preceding month (Annex "A");

2. List of SBF Enterprises that failed to renew the Performance Bond, if posted in the form of a surety bond or bank guarantee, for the immediately preceding month (Annex "B"); and

3. List of SBF Enterprises that has outstanding non-compliance with regard to the posting and renewal of Performance Bond for prior months indicating therein to which period of non-compliance, as provided in Section 14 hereof, the SBF Enterprise falls under (Annex "C").

i. Inform the SBF Enterprise in writing, not later than ninety (90) calendar days prior to the target date of completion of its development commitment or one hundred twenty (120) calendar days from the target date of completion of a particular phase of the development commitment, as the case may be, to remind the same of the forthcoming committed date of completion of the development as provided under agreement.

j. Advice and assist the SBF Enterprise in cases when completion of the development is not possible by the time specified under agreement or if the amount of investment does not meet the amount in the agreement, or any other circumstances requiring agreement amendment.

SECTION 10. Role of OSDABI. — The OSDABI shall:

a. Consolidate the reports submitted by the BIDs;

b. Submit to the Accounting Department, every 15th day of the month or on the immediately following work day in case the 15th day of the month falls on a Saturday, Sunday or holiday, a report containing the list of SBF Enterprises that fall under the First, Second and Third Periods of Non-compliance provided in Section 14 hereof;

c. Submit to the Legal Department, every 15th day of the month or on the immediately following work day in case the 15th day of the month falls on a Saturday, Sunday or holiday, a report containing the list of SBF Enterprises that fall under the Third Period of Non-compliance provided in Section 14 hereof;

d. Recommend to the Board of Directors the suspension or cancellation of the Certificates, pre-termination of lease agreements, revocation of SBMA's consent on sublease agreements and issuance of Cease and Desist Orders, as the case may be, to SBF Enterprises that fall under the Third and Final Periods of Non-compliance provided in Section 14 hereof, copy furnished the Legal Department.

The reports submitted by OSDABI shall be deemed as an endorsement to the Legal Department and the Accounting Department to take appropriate actions against non-compliant SBF Enterprises in accordance with the schedule of penalties provided in Section 14 hereof.

SECTION 11. Role of the Legal Department. — The Legal Department shall, within five (5) working days from receipt of the report submitted by OSDABI, and in accordance with the schedule of penalties provided in Section 14 hereof, issue Final Demand Letters, Notices of Default and Notices of Pre-termination of Lease Agreement, as the case may be, to SBF Enterprises that are non-compliant with the posting or renewal requirements under this Policy, copy furnished the BIDs.

SECTION 12. Role of the Accounting Department. — The Accounting Department shall, after receiving the report submitted by OSDABI, bill the SBF Enterprises that are non-compliant with the posting and renewal requirements under this Policy with the appropriate fine in accordance with the schedule of penalties provided in Section 14 hereof.

SECTION 13. Role of the Treasury Department. — The Treasury Department shall be the document custodian of the Performance Bonds posted by SBF Enterprises, regardless of whether in the form of cash, manager's check, surety bond or bank guarantee, and keep an updated record of the same.

SECTION 14. Role of the BPSD. — The BPSD shall, after receipt of the endorsement from the BIDs, validate the report on the development commitment submitted by the SBF Enterprise.

RULE IV

PENALTY PROVISIONS

SECTION 15. Penalties for Non-compliance with the Posting and Renewal Requirements. — Any SBF Enterprise which fails to comply with the posting and renewal requirements under this Policy shall be imposed the following penalties:

a. For SBF Enterprises that are direct lessees of SBMA:

1. First Period of Non-compliance (from 1st calendar day up to 30th calendar day after the lapse of the period provided in Section 7 hereof or the expiration of the surety bond or bank guarantee, as the case may be) — Issuance of a Notice of Non-Compliance and imposition of a non-interest bearing fine amounting to Twenty Five Thousand Pesos (Php25,000.00);

2. Second Period of Non-compliance (from 31st calendar day up to 60th calendar day after the lapse of the period provided in Section 7 hereof or the expiration of the surety bond or bank guarantee, as the case may be) — Issuance of a Second Notice of Non-compliance and imposition of an additional non-interest bearing fine amounting to Fifty Thousand Pesos (Php50,000.00);

3. Third Period of Non-compliance (from 61st calendar day up to 90th calendar day after the lapse of the period provided in Section 7 hereof or the expiration of the surety bond or bank guarantee, as the case may be) — Suspension of the Certificate of the SBF Enterprise, issuance of a Notice of Default and imposition of an additional non-interest bearing fine amounting to Seventy Five Thousand Pesos (Php75,000.00).

 The Notice of Default and the suspension of the Certificate of the SBF Enterprise shall not be lifted until compliance with the requirements for the posting or renewal of the Performance Bond and the full payment of all fines imposed pursuant to this Section;

4. Final Period of Non-compliance (from 91st calendar day after the lapse of the period provided in Section 7 hereof or the expiration of the surety bond or bank guarantee, as the case may be, and moving forward) — cancellation of the Certificate of the SBF Enterprise and pre-termination of the lease agreement with SBMA.

b. For SBF Enterprises that are not direct lessees of SBMA:

1. First Period of Non-compliance (from 1st calendar day up to 30th calendar day after the lapse of the period provided in Section 7 hereof or the expiration of the surety bond or bank guarantee, as the case may be) — Issuance of a Notice of Non-Compliance and imposition of a non-interest bearing fine amounting to Twenty Five Thousand Pesos (Php25,000.00);

2. Second Period of Non-compliance (from 31st calendar day up to 60th calendar day after the lapse of the period provided in Section 7 hereof or the expiration of the surety bond or bank guarantee, as the case may be) — issuance of a Second Notice of Non-compliance and imposition of an additional non-interest bearing fine amounting to Fifty Thousand Pesos (Php50,000.00);

3. Third Period of Non-compliance (from 61st calendar day up to 90th calendar day after the lapse of the period provided in Section 7 hereof or the expiration of the surety bond or bank guarantee, as the case may be) — suspension of the Certificate of the SBF Enterprise, issuance of a Final Demand Letter and imposition of an additional non-interest bearing fine amounting to Seventy Five Thousand Pesos (Php75,000.00).

 The Final Demand Letter and the suspension of the Certificate of the SBF Enterprise shall not be lifted until compliance with the requirement for the posting or renewal of the Performance Bond and the full payment of all fines imposed pursuant to this Section;

4. Final period of Non-compliance (from 91st calendar day after the lapse of the period provided in Section 7 hereof or the expiration of the surety bond or bank guarantee, as the case may be, and moving forward) — cancellation of the Certificate of the SBF Enterprise, revocation of SBMA's consent on the Sublease Agreement and issuance of a Cease and Desist Order to do business.

RULE V

COMPLIANCE REQUIREMENTS FOR SBF ENTERPRISES ON THE SUBMISSION OF REPORTS ON THE DEVELOPMENT COMMITMENT

SECTION 16. Submission of Reports on the Development Commitment. — All SBF Enterprises shall, without need of demand, submit to its BID a complete report on the development commitment project not later than thirty (30) calendar days from the target date of completion of each phase of the development commitment or not later than thirty (30) calendar days from the approved target date of completion of the development commitment, as the case may be. Such report shall contain the documents listed in Annex "D". All documents submitted pursuant to this Section must be duly signed by the authorized representative of the SBF Enterprise and the supervising construction architect or engineer for the project and must bear the professional seal of the latter.

RULE VI

MECHANISMS FOR THE VALIDATION OF REPORTS ON THE DEVELOPMENT COMMITMENT AND PROCESSING OF REFUND OR FORFEITURE OF PERFORMANCE BONDS

SECTION 17. Validation of Reports. — The following procedure shall govern the validation of the reports submitted by SBF Enterprise in compliance with Section 15 hereof:

a. The BID shall endorse to BPSD, for its validation, the report submitted by the SBF Enterprise within five (5) working days from receipt of the same;

b. The BPSD shall issue the result of its validation to the BID concerned within thirty (30) calendar days from receipt of the endorsement for the same. The validation of the report submitted by the SBF Enterprise shall be liberally construed so that BPSD may perform its functions in an efficient, effective, equitable, just, speedy and inexpensive manner;

c. The BID shall inform the SBF Enterprise of the result of the validation within five (5) working days from receipt of such result and, in accordance with the same result, the refund or forfeiture of the Performance Bond, as the case may be.

SECTION 18. Processing of Refund of Performance Bonds. — The following procedure shall govern the processing of refund of the Performance Bonds of SBF Enterprises that were validated by BPSD to meet their approved development commitments:

a. For refund of a Performance Bond that was posted in the form of cash or manager's check:

1. The BID shall, within five (5) working days from receipt of the result of the validation from BPSD, submit to FPBD a completely filled up Budget Utilization Request for such refund with the result of the validation as an attachment to the same;

2. The FPBD shall have a period of not more than five (5) working days from receipt of the Budget Utilization Request to act on it and endorse the same directly to the Accounting Department for processing;

3. The Accounting Department shall have a period of not more than five (5) working days from receipt of the Budget Utilization Request acted upon by FPBD to process it and endorse the same to the Treasury Department for check preparation;

4. The Treasury Department shall have a period of not more than five (5) working days from receipt of the endorsement of the Accounting Department to prepare the check and issue the same to the SBF Enterprise as refund of the Performance Bond.

b. For refund of a Performance Bond that was posted in the form of a surety bond or bank guarantee:

1. The BID shall, within five (5) working days from receipt of the result of the validation from BPSD, submit to the Accounting Department a request for such refund with the result of the validation as an attachment to the same;

2. The Accounting Department shall have a period of not more than five (5) working days from receipt of the request for refund from the BID to Verify the same with the provisions of the Lease Agreement or Deed of Undertaking, as the case may be, and endorse the same to the Treasury Department for release of the surety bond or bank guarantee;

3. The Treasury Department shall have a period of not more than five (5) working days from receipt of the endorsement of the Accounting Department to issue the surety bond or bank guarantee, as the case may be, to the SBF Enterprise as refund of the Performance Bond.

SECTION 19. Processing of Forfeiture of Performance Bonds. — The following procedure shall govern the processing of forfeiture of the Performance Bonds of SBF Enterprises that were validated by BPSD of failing to meet their approved development commitments:

a. For forfeiture of a Performance Bond that was posted in the form of cash or manager's check:

1. The BID shall, within five (5) working days from receipt of the result of the validation from BPSD, submit to the Accounting Department a notice to forfeit the Performance Bond in favor of SBMA with the result of the validation as an attachment to the same;

2. The Accounting Department shall have a period of not more than five (5) working days from receipt of notice to forfeit from the BID to process the same.

b. For forfeiture of a Performance Bond that was posted in the form of a surety bond or bank guarantee:

1. The BID shall, within five (5) working days from receipt of the result of the validation from BPSD, submit to the Accounting Department a notice to forfeit the Performance Bond in favor of SBMA with the result of the validation as an attachment to the same;

2. The Accounting Department shall have a period of not more than five (5) working days from receipt of notice to forfeit from the BID to process it and endorse the same to the Treasury Department for forfeiture of the Performance Bond;

3. The Treasury Department shall have a period of not more than five (5) working days from receipt of the endorsement of the Accounting Department to write the surety provider or the bank guarantor to inform the same of calling on the surety bond or bank guarantee as forfeiture of the Performance Bond in favor of SBMA. In addition, the Treasury Department shall, upon issuance of the letter to the surety provider or bank guarantor, notify the SBF Enterprise in writing that the surety bond or bank guarantee has already been called as forfeiture of the Performance Bond in favor of SBMA. Once the SBF Enterprise has been notified of such forfeiture, the same shall no longer be reversed.

RULE VII

MISCELLANEOUS PROVISIONS

SECTION 20. Amendments to the Performance Bond Already Posted. — Any amendment to the Performance Bond already posted resulting from an amendment of the approved development commitment of a SBF Enterprise shall strictly conform to the provisions of this Policy.

SECTION 21. Amendments to the Approved Development Commitment. — Any request of a SBF Enterprise for the amendment of its approved development commitment should be made prior to the target date of completion for said development commitment. As such, no request for any amendment to the approved development commitment shall be entertained by SBMA upon the lapse of the target date of completion for said development commitment. Such request for amendments to the approved development commitment may include changes such as but not limited to the following:

a. Extension of the schedule for the completion of the development commitment;

b. Reduction of the amount of the development commitment; or

c. Change in the actual development commitment structure to be constructed.

SECTION 22. Deviations from the Approved Development Commitment. — Any deviation from the approved development commitment done by the SBF Enterprise without the prior written approval of SBMA shall be a ground for the forfeiture of the Performance Bond posted by such SBF Enterprise.

SECTION 23. Deed of Undertaking. — Any development commitment and posting of Performance Bond of a SBF Enterprise that is a direct lessee of SBMA by virtue of an Assignment of Leasehold Rights and that of a SBF Enterprise that is not a direct lessee of SBMA, regardless of whether newly registered or already existing, shall be covered by a Deed of Undertaking executed by such SBF Enterprise in favor of SBMA. Such Deed of Undertaking should be signed, executed and submitted to the BID by the SBF Enterprise within thirty (30) calendar days from the approval by SBMA of the proposal containing the development commitment. The copy of the Model Deed of Undertaking is incorporated herein as Annex "E".

SECTION 24. Amendments to the Policy. — Any amendment or revision of any provision of this Policy shall be subject to the approval of the Board of Directors and shall have prospective application.

SECTION 25. Effectivity of Amendment. — Any amendment or revision of any provision of this Policy duly approved by the Board of Directors shall take effect fifteen (15) days after its complete publication in at least one (1) newspaper of general circulation and filing with the Office of the National Administrative Register in accordance with the Administrative Code of 1987.

RULE VIII

FINAL PROVISIONS

SECTION 26. Transitory Provisions. — The posting of Performance Bonds by SBF Enterprises for existing development commitments under contracts that were already perfected prior to the effectivity of this Policy shall continue to be governed by the pertinent provisions of such contracts and the old SBMA Policy on Performance Bond that was in place prior to the perfection of such contracts: Provided, That any new development commitment of such SBF Enterprises that will be approved by SBMA after the effectivity of this Policy shall already be covered by the latter.

The posting of Performance Bonds by SBF Enterprises for development commitments that were already approved by SBMA but whose contracts have yet to be perfected as of date of effectivity of this Policy shall already be covered by the latter.

SECTION 27. Repealing Clause. — All policies, rules, regulations, memoranda or other issuances or any part thereof inconsistent with the provisions of this Policy are hereby repealed, amended or modified accordingly.

SECTION 28. Separability Clause. — If for any reason or reasons, any portion or provision of this Policy is declared unconstitutional or invalid, all other parts or provisions not affected thereby shall continue to remain in full force and effect.

SECTION 29. Effectivity. — This Policy shall take effect fifteen (15) days after its complete publication in at least one (1) newspaper of general circulation and filing with the Office of the National Administrative Register in accordance with the Administrative Code of 1987.

 

ANNEX A

(Name of Business and Investment Department)

 

 

ANNEX B

(Name of Business and Investment Department)

 

 

ANNEX C

(Name of Business and Investment Department)

 

 

ANNEX D

LIST OF DOCUMENTS REQUIRED FOR THE SUBMISSION OF THE REPORTS ON THE DEVELOPMENT COMMITMENT

1. As-Built Drawings.

2. Statement of Work Accomplishments (SWA) for the Development Commitment, to include:

a. Itemized list of work.

b. Work Accomplishment:

i. Percentage Accomplished.

ii. Work Time Start and Completion.

c. Work Labor and Material Cost.

3. Progress Photographs as of Target Date of Completion of the Particular Phase of the Development Commitment or Target Date of Completion of the Whole Development Commitment, as the case may be.

* Note: The foregoing documents must be duly signed by the authorized representative of the SBF Enterprise and the supervising construction architect or engineer for the project and must bear the professional seal of the latter.

ANNEX E

DEED OF UNDERTAKING

I, ______________________________ of legal age, _______________ (citizenship), in my official capacity as the authorized representative of ____________________ (insert company name) (hereinafter referred to as the "COMPANY"), a corporation duly organized and existing under Philippine Laws, with office address at ______________________________________, Subic Bay Freeport Zone, Philippines, to execute this Deed of Undertaking for and in behalf of the COMPANY as evidenced by the attached Secretary's Certificate which is incorporated herein and made an integral part hereof, do hereby warrant, attest, depose and say that:

1. The COMPANY, as Sublessee/Assignee, executed a Sublease Agreement/Assignment of Leasehold Rights with (insert name of sublessor/assignor), as Sublessor/Assignor, over a property with an area of _____ sq.m. located at __________________________, Subic Bay Freeport Zone;

2. The COMPANY acknowledges and understands that, among other concessions, the Subic Bay Metropolitan Authority (hereinafter referred to as "SBMA") gave its consent to the abovementioned Sublease Agreement/Assignment of Leasehold Rights by reason of the COMPANY's representation to introduce development works on the aforementioned property at a minimum cost of ____________ through __________ within a period of __________ (hereinafter referred to as the "DEVELOPMENT COMMITMENT");

3. The COMPANY hereby undertakes and ensures the fulfillment of its aforestated DEVELOPMENT COMMITMENT as represented to SBMA;

4. The COMPANY hereby further undertakes to deliver to SBMA, within thirty (30) calendar days from the date of execution of this Deed of Undertaking, a Performance Bond for the aforestated DEVELOPMENT COMMITMENT in the amount and manner strictly complying with the provisions of The Omnibus Policy of SBMA on the Imposition of Performance Bond and its Applicable Rates (hereinafter referred to as the "POLICY");

5. The COMPANY hereby finally undertakes to submit to SBMA a complete final report on the aforestated DEVELOPMENT COMMITMENT not later than thirty (30) calendar days from the approved target date of completion of the same and in the form and manner strictly complying with the provisions of the POLICY.

6. The COMPANY acknowledges and understands that failure to fulfill the aforestated DEVELOPMENT COMMITMENT shall authorize SBMA to forfeit, in the latter's favor, the Performance Bond posted by the COMPANY;

7. The COMPANY acknowledges and understands that its failure to comply with any of the provisions of this Deed of Undertaking shall authorize SBMA to unilaterally rescind its consent on the abovementioned Sublease Agreement/Assignment of Leasehold Rights without need of prior judicial determination or court action.

IN WITNESS WHEREOF, I have hereunto affixed my signature this _____ day of _______________ at ____________________.

________________________Affiant

(*THIS DOCUMENT SHALL BE NOTARIZED)