MINUTES MAY 24, 2021

BERKELEY COUNTY GOVERNMENT

FINANCE COMMITTEE

MINUTES ● MAY 24, 2021

REGULAR COMMITTEE MEETING

Administration Building - Assembly Room 6:19 PM

1003 HIGHWAY 52 MONCKS CORNER, SC 29461

Berkeley County Government Generated: 6/4/2021 10:07 AM Page 1

ELECTRONIC PARTICIPATION AUTHORIZED

CALL TO ORDER

During periods of discussion and/or presentations, minutes are condensed and

paraphrased. Video coverage of the full meeting is available on the Berkeley County

Government website.

Chairman Josh Whitley called the meeting to order.

In accordance with the Freedom of Information Act, the electronic and print media were

duly notified.

Attendee Name Title Status Arrived

Dan Owens Committee Member Present

Phillip Obie Committee Member Present

Tommy Newell Committee Member Present

Brandon Cox Committee Member Present

Jack H. Schurlknight Committee Member Present

Caldwell Pinckney Committee Member Present

Steve Davis Committee Member Present

Joshua Whitley Chairman Present

Johnny Cribb Ex-officio Present

APPROVAL OF MINUTES

Chairman Whitley asked for approval of minutes from the Regular Committee meeting

held on April 26, 2021 and the Special Committee meeting held on May 10, 2021.

1. Finance Committee - Regular Committee Meeting - Apr 26, 2021 6:07 PM

It was moved by Committee Member Obie and seconded by Committee Member

Newell to approve the minutes as presented. The motion passed by a unanimous voice

vote of the Committee.

Minutes Finance Committee May 24, 2021


RESULT: ACCEPTED [UNANIMOUS]

MOVER: Phillip Obie, Committee Member

SECONDER: Tommy Newell, Committee Member

AYES: Dan Owens, Phillip Obie, Tommy Newell, Brandon Cox, Jack H.

Schurlknight, Caldwell Pinckney, Steve Davis

2. Finance Committee - Special Committee Meeting - May 10, 2021 6:00 PM -

Add-On


Newell to approve the minutes as presented. The motion passed by a unanimous voice







AGENDA ITEMS

1. Emergency Rental Assistance Program 2 - U.S. Treasury American Rescue Plan

Presenter - Allen Milburn, Finance Director Mr. Allen Milburn, Finance Director, provided background information on this Grant.

Chairman Whitley voiced his concerns with regards to accepting funds from

Emergency Rental Assistance Program 2 when we have not even expended the initial

funding from Emergency Rental Assistance Program 1.

It was moved by Committee Member Davis and seconded by Committee Member

Pinckney to approve Providing the County Supervisor the Authority to Accept the

Emergency Rental Assistance Program 2 - U.S. Treasury American Rescue Plan

Grant Funds, in the amount of $5.45 Million, and to Sign any Required Grant

Documentation. Committee Member Cox voted Nay. The motion passed by a majority

voice vote of the Committee.

RESULT: APPROVED AND REFERRED [6 TO 1]

MOVER: Steve Davis, Committee Member

SECONDER: Caldwell Pinckney, Committee Member

AYES: Owens, Obie, Newell, Schurlknight, Pinckney, Davis

NAYS: Cox

2. Coronavirus State & Local Fiscal Recovery Funds - SLT-0860

Presenter - Allen Milburn, Finance Director



Mr. Milburn also provided background information on this Grant.

Chairman Whitley stated that he will support accepting these Grant funds with

this caveat to the public, “We, as a Council - I hope - will be devoted to spending this

money not on extras, but on a generational impact or something that’s a need that means

that we don’t have to raise local property taxes to address, and we are using this money to

forego a property tax increase. We are accepting this money, in my view - my vote

would be in support - with a pledge to absolutely use it on something we can hold up to

the public saying ‘this is how fiscally-responsible we are as a Council and we can

account for every penny of this $44 million.”

Committee Member Pinckney inquired about using the Grant funds for water and

sewer infrastructure, and he stated that everybody needs access to safe drinking water.

Chairman Whitley stated that he is going to place the topic of these funds on his

June Finance Committee agenda for determination on how to expend the Grant funds.

He stated that, this evening, we are voting on accepting these Grant funds, but not

spending the funds. He stated that he hopes to have a very thorough proposal from

Administration, with feedback from every Council Member. He stated that he hopes that

the funds are used in a manner that will defend our vote.

It was moved by Committee Member Newell and seconded by Committee

Member Pinckney to approve Providing the County Supervisor the Authority to Accept

the Coronavirus State & Local Fiscal Recovery Funds - SLT-0860, in the amount of

$44,268,263.00, and to Sign any Required Grant Documentation. The motion passed by

a majority voice vote of the Committee.

RESULT: APPROVED AND REFERRED [UNANIMOUS]

MOVER: Tommy Newell, Committee Member

SECONDER: Caldwell Pinckney, Committee Member

AYES: Owens, Obie, Newell, Cox, Schurlknight, Pinckney, Davis

3. Line Item Transfer from 41101 Personnel Services to 41101 Operating Expenses


Member Schurlknight to approve a Line Item Transfer from 41101 Personnel

Services to 41101 Operating Expenses, in the amount of $4,000.00. The motion passed

by a unanimous voice vote of the Committee.



SECONDER: Jack H. Schurlknight, Committee Member


CONSIDERATION PRIOR TO FIRST READING

1. BILL NO. 21-36, AN ORDINANCE AUTHORIZING THE EXECUTION AND DELIVERY OF A FEE-IN-LIEU OF TAX AGREEMENT BY AND BETWEEN BERKELEY COUNTY AND AN ENTITY IDENTIFIED BY THE COUNTY AS PROJECT MT. HOLLY AND ITS AFFILIATES AND RELATED ENTITIES



WHEREBY BERKELEY COUNTY WILL ENTER INTO A FEE-IN-LIEU OF TAX AGREEMENT WITH PROJECT MT. HOLLY AND PROVIDING FOR PAYMENT BY PROJECT MT. HOLLY OF CERTAIN FEES-IN-LIEU OF AD VALOREM TAXES; PROVIDING FOR THE ALLOCATION OF FEES-IN-LIEU OF TAXES PAYABLE UNDER THE AGREEMENT FOR THE ESTABLISHMENT OF A MULTI-COUNTY INDUSTRIAL/BUSINESS PARK; AND OTHER MATTERS RELATING THERETO.

Chairman Whitley stated that the passing of Ordinances is a 3-month process and

the public will receive details at Second Reading.


Member Obie to approve First Reading, Bill No. 21-36. The motion passed by a

unanimous voice vote of the Committee.



SECONDER: Phillip Obie, Committee Member


REVIEW PRIOR TO SECOND READING

1. BILL NO. 20-68, AN ORDINANCE AUTHORIZING THE EXECUTION AND DELIVERY OF A FEE-IN-LIEU OF TAX AGREEMENT BY AND BETWEEN BERKELEY COUNTY AND DUPONT SPECIALTY PRODUCTS USA, LLC WHEREBY BERKELEY COUNTY WILL ENTER INTO A FEE-IN-LIEU OF TAX AGREEMENT WITH DUPONT SPECIALTY PRODUCTS USA, LLC, AND PROVIDING FOR PAYMENT BY DUPONT SPECIALTY PRODUCTS USA, LLC OF CERTAIN FEES-IN-LIEU OF AD VALOREM TAXES; PROVIDING FOR THE ALLOCATION OF FEES-IN-LIEU OF TAXES PAYABLE UNDER THE AGREEMENT FOR THE ESTABLISHMENT OF A MULTI-COUNTY INDUSTRIAL/BUSINESS PARK; AND OTHER MATTERS RELATING THERETO.

Mr. John O. Williams, II, County Attorney stated that the terms of the Agreement

is 6% for 20 years with no SSRC’s.


Member Obie to approve Second Reading, Bill No. 20-68. The motion passed by a






2. BILL NO. 21-21, AN ORDINANCE AUTHORIZING THE EXECUTION AND DELIVERY OF A FEE-IN-LIEU OF TAX AGREEMENT BY AND BETWEEN BERKELEY COUNTY AND KLOECKNER METALS CORPORATION, A COMPANY PREVIOUSLY IDENTIFIED AS PROJECT COIL (THE “COMPANY”)



WHEREBY BERKELEY COUNTY WILL ENTER INTO A FEE-IN-LIEU OF TAX AGREEMENT WITH THE COMPANY AND PROVIDING FOR PAYMENT BY THE COMPANY OF CERTAIN FEES-IN-LIEU OF AD VALOREM TAXES; PROVIDING FOR THE BENEFITS OF A MULTI-COUNTY INDUSTRIAL OR BUSINESS PARK; PROVIDING FOR THE ALLOCATION OF FEES-IN-LIEU OF TAXES PAYABLE UNDER THE AGREEMENT FOR THE ESTABLISHMENT OF A MULTI-COUNTY INDUSTRIAL/BUSINESS PARK; AND OTHER MATTERS RELATING THERETO.

Ms. Kristen Lanier, Economic Development Director stated that the terms of the

Agreement is 6% for 10 years.








3. BILL NO. 21-27, AN ORDINANCE PROVIDING APPROPRIATIONS FOR THE FISCAL YEAR BEGINNING JULY 1, 2021 AND ENDING JUNE 30, 2022 FOR BERKELEY COUNTY; TO PROVIDE FOR LEVY OF TAXES ON ALL TAXABLE PROPERTY IN BERKELEY COUNTY FOR ALL COUNTY PURPOSES; TO PROVIDE FOR THE EXPENDITURES OF SAID TAXES AND OTHER REVENUES COMING INTO THE COUNTY FOR THE FISCAL YEAR.

Chairman Whitley inquired as to if Council wished to receive another budget

presentation at this time, and it was decided that they did not. However, a PDF version of

the presentation that was prepared by Finance Staff for the evening entitled, “FY22

FINAL 2nd Reading Budget Presentation 05.24.2021” is attached hereto and made a part

hereof.by this reference.

It was moved by Committee Member Schurlknight and seconded by Committee

Member Newell to approve Second Reading, Bill No. 21-27. The motion passed by a



MOVER: Jack H. Schurlknight, Committee Member



4. BILL NO. 21-28, AN ORDINANCE PROVIDING FOR THE ADOPTION OF FISCAL YEAR 2021-2022 (BEGINNING JULY 1, 2021 AND ENDING JUNE 30, 2022) BUDGETS FOR BERKELEY COUNTY WATER AND SANITATION SEWER AND WATER AND SOLID WASTE FUND; ESTABLISHING OPERATIONAL, DEBT SERVICE, AND CAPITAL IMPROVEMENT BUDGETS FOR WATER AND SEWER AND SOLID WASTE DIVISIONS; AND TO



PROVIDE FOR THE EXPENDITURES OF REVENUES COMING INTO BERKELEY COUNTY WATER AND SANITATION SEWER AND WATER AND SOLID WASTE DIVISIONS DURING THE FISCAL YEAR, AND TO AMEND THE CODE OF ORDINANCES, BERKELEY COUNTY, SOUTH CAROLINA, SETTING RATES, CHARGES AND PENALTIES FOR WATER AND SEWER AND SOLID WASTE SERVICE BY BERKELEY COUNTY WATER AND SANITATION.








5. BILL NO, 21-29, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR BEGINNING JULY 1, 2021, AND ENDING JUNE 30, 2022, FOR THE DEVON FOREST SPECIAL TAX DISTRICT OPERATIONAL BUDGET; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE DEVON FOREST SPECIAL TAX DISTRICT DURING THE FISCAL YEAR.

It was moved by Committee Member Cox and seconded by Committee Member

Newell to approve Second Reading, Bill No. 21-29. The motion passed by a



MOVER: Brandon Cox, Committee Member



6. BILL NO. 21-30, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR BEGINNING JULY 1, 2021 AND ENDING JUNE 30, 2022 FOR THE PIMLICO SPECIAL TAX DISTRICT OPERATIONAL BUDGET; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE PIMLICO SPECIAL TAX DISTRICT DURING THE FISCAL YEAR.


Newell to approve Second Reading, Bill No. 21-30. The motion passed by a






7. BILL NO. 21-31, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR BEGINNING JULY 1, 2021, AND ENDING JUNE 30, 2022, FOR THE SANGAREE SPECIAL TAX DISTRICT OPERATIONAL BUDGET; AND TO



PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE SANGAREE SPECIAL TAX DISTRICT DURING THE FISCAL YEAR.


Member Cox to approve Second Reading, Bill No. 21-31. The motion passed by a




SECONDER: Brandon Cox, Committee Member


8. BILL NO. 21-32, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR BEGINNING JULY 1, 2021, AND ENDING JUNE 30, 2022, FOR THE OPERATIONAL BUDGET OF THE BERKELEY COUNTY SPECIAL FIRE TAX DISTRICT WITHIN THE UNINCORPORATED PORTIONS OF BERKELEY COUNTY; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE SPECIAL FIRE TAX DISTRICT DURING THE FISCAL YEAR.


Member Newell to approve Second Reading, Bill No. 21-32. The motion passed by a






9. BILL NO. 21-33, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR BEGINNING JULY 1, 2021, AND ENDING JUNE 30, 2022, FOR THE TALL PINES SPECIAL TAX DISTRICT OPERATIONAL BUDGET; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE TALL PINES SPECIAL TAX DISTRICT DURING THE FISCAL YEAR.


Member Cox to approve Second Reading, Bill No. 21-33. The motion passed by a






REVIEW PRIOR TO THIRD READING

1. BILL NO. 21-34, AN ORDINANCE TO PROHIBIT INCENTIVES, ASSIGNMENTS, OR CHANGE INCENTIVES FOR ANY ENTITY, PERSON, OR COMPANY LOCATING OR LOCATED IN CAMP HALL DEVELOPMENT UNTIL SUCH TIME AS SANTEE COOPER PROVIDES ASSURANCE THAT NO LITIGATION REGARDING THE CONSTRUCTION OF SEWER LINE(S) WILL



BE INITIATED; AND TO PROVIDE AUTHORITY TO OFFER OR CHANGE INCENTIVES IN CAMP HALL DEVELOPMENT ONLY UPON A VOTE OF COUNTY COUNCIL FOR REASONS IN THE BEST INTERESTS OF BERKELEY COUNTY WATER AND SANITATION RATE PAYERS AND BERKELEY COUNTY TAXPAYERS.


Member Cox to approve Third Reading, Bill No. 21-34. Committee Member Obie

recused himself from the vote. The motion passed by a unanimous voice vote of the

Committee.




AYES: Owens, Newell, Cox, Schurlknight, Pinckney, Davis

RECUSED: Obie

ORDINANCE

CONSIDERATION OF A RESOLUTION

1. A RESOLUTION AUTHORIZING AND APPROVING AN AGREEMENT AS TO PARTIAL ASSIGNMENT AND ASSUMPTION OF A FEE IN LIEU OF TAX AND INCENTIVE AGREEMENT BY AND AMONG BERKELEY COUNTY, SOUTH CAROLINA, CHARLESTON OMNI 1, LLC AND SFG CHARLESTON OMNI, LLC.


Member Schurlknight to approve a Resolution Authorizing and Approving an

Agreement as to Partial Assignment and Assumption of a Fee in Lieu of Tax And

Incentive Agreement by and among Berkeley County, South Carolina, Charleston

OMNI 1, LLC And SFG Charleston OMNI, LLC. The motion passed by a




SECONDER: Jack H. Schurlknight, Committee Member


RESOLUTION

ADJOURNMENT

It was moved by Committee Member Newell and seconded by Committee Member

Schurlknight to adjourn the Committee on Finance meeting. The motion passed by unanimous


The meeting adjourned at 6:54 p.m.


FINANCE COMMITTEE

SUMMARY ● APRIL 26, 2021

REGULAR COMMITTEE MEETING





CALL TO ORDER



Government website.



duly notified.







Caldwell Pinckney Committee Member Present




INVOCATION

Mrs. Hannah Moldenhauer, Public Information Officer, provided the Invocation.

PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA

Committee Member Phillip Obie, II, led the Pledge of Allegiance to the Flag of the

United States of America.

APPROVAL OF MINUTES

Chairman Whitley asked for approval of minutes from the Regular Committee meeting

held on March 22, 2021.

1. Finance Committee - Regular Committee Meeting - Mar 22, 2021 6:21 PM

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Minutes Finance Committee April 26, 2021



Member Newell to approve the minutes as presented. The motion passed by a







PRESENTATION

1. Third Quarter Financial Review

Presenter - Allen Millburn, Finance Director & Johnette Connelley, Chief Financial Officer

Mr. Allen Milburn, Finance Director, and Ms. Johnette Connelley, Chief

Financial Officer, provided the Third Quarter Financial Review, and no action was taken.

A PDF version of the presentation entitled, “Presentation - Third Quarter

Financial Review - 04262021” is attached hereto and made a part hereof by this

reference.

RESULT: INFORMATION ONLY

CONSIDERATION PRIOR TO FIRST READING

1. BILL NO. 21-27, AN ORDINANCE PROVIDING APPROPRIATIONS FOR THE FISCAL YEAR BEGINNING JULY 1, 2021 AND ENDING JUNE 30, 2022 FOR BERKELEY COUNTY; TO PROVIDE FOR LEVY OF TAXES ON ALL TAXABLE PROPERTY IN BERKELEY COUNTY FOR ALL COUNTY PURPOSES; TO PROVIDE FOR THE EXPENDITURES OF SAID TAXES AND OTHER REVENUES COMING INTO THE COUNTY FOR THE FISCAL YEAR.


Member Newell to approve First Reading, Bill No. 21-27. The motion passed by a







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2. BILL NO. 21-28, AN ORDINANCE PROVIDING FOR THE ADOPTION OF FISCAL YEAR 2021-2022 (BEGINNING JULY 1, 2021 AND ENDING JUNE 30, 2022) BUDGETS FOR BERKELEY COUNTY WATER AND SANITATION SEWER AND WATER AND SOLID WASTE FUND; ESTABLISHING OPERATIONAL, DEBT SERVICE, AND CAPITAL IMPROVEMENT BUDGETS FOR WATER AND SEWER AND SOLID WASTE DIVISIONS; AND TO PROVIDE FOR THE EXPENDITURES OF REVENUES COMING INTO BERKELEY COUNTY WATER AND SANITATION SEWER AND WATER AND SOLID WASTE DIVISIONS DURING THE FISCAL YEAR, AND TO AMEND THE CODE OF ORDINANCES, BERKELEY COUNTY, SOUTH CAROLINA, SETTING RATES, CHARGES AND PENALTIES FOR WATER AND SEWER AND SOLID WASTE SERVICE BY BERKELEY COUNTY WATER AND SANITATION.









3. BILL NO, 21-29, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR

BEGINNING JULY 1, 2021, AND ENDING JUNE 30, 2022, FOR THE DEVON FOREST SPECIAL TAX DISTRICT OPERATIONAL BUDGET; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE DEVON FOREST SPECIAL TAX DISTRICT DURING THE FISCAL YEAR.

It was moved by Committee Member Cox and seconded by Committee Member

Newell to approve First Reading, Bill No. 21-29. The motion passed by a unanimous



MOVER: Brandon Cox, Committee Member




4. BILL NO. 21-30, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR

BEGINNING JULY 1, 2021 AND ENDING JUNE 30, 2022 FOR THE PIMLICO SPECIAL TAX DISTRICT OPERATIONAL BUDGET; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE PIMLICO SPECIAL TAX DISTRICT DURING THE FISCAL YEAR.

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Newell to approve First Reading, Bill No. 21-30. The motion passed by a unanimous








BEGINNING JULY 1, 2021, AND ENDING JUNE 30, 2022, FOR THE SANGAREE SPECIAL TAX DISTRICT OPERATIONAL BUDGET; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE SANGAREE SPECIAL TAX DISTRICT DURING THE FISCAL YEAR.




Chairman Whitley stated that he needed to take a Point of Personal Privilege. He

stated that we would be here for an hour discussing these budgets if we did not have so

many mayors here waiting for Community Development Block Grant checks.







BEGINNING JULY 1, 2021, AND ENDING JUNE 30, 2022, FOR THE OPERATIONAL BUDGET OF THE BERKELEY COUNTY SPECIAL FIRE TAX DISTRICT WITHIN THE UNINCORPORATED PORTIONS OF BERKELEY COUNTY; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE SPECIAL FIRE TAX DISTRICT DURING THE FISCAL YEAR.


Member Newell to approve First Reading, Bill No. 21-32. The motion passed by a


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BEGINNING JULY 1, 2021, AND ENDING JUNE 30, 2022, FOR THE TALL PINES SPECIAL TAX DISTRICT OPERATIONAL BUDGET; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE TALL PINES SPECIAL TAX DISTRICT DURING THE FISCAL YEAR.


Member Cox to approve First Reading, Bill No. 21-33. The motion passed by a







8. BILL NO. 21-34, AN ORDINANCE TO PROHIBIT INCENTIVES,

ASSIGNMENTS, OR CHANGE INCENTIVES FOR ANY ENTITY, PERSON, OR COMPANY LOCATING OR LOCATED IN CAMP HALL DEVELOPMENT UNTIL SUCH TIME AS SANTEE COOPER PROVIDES ASSURANCE THAT NO LITIGATION REGARDING THE CONSTRUCTION OF SEWER LINE(S) WILL BE INITIATED; AND TO PROVIDE AUTHORITY TO OFFER OR CHANGE INCENTIVES IN CAMP HALL DEVELOPMENT ONLY UPON A VOTE OF COUNTY COUNCIL FOR REASONS IN THE BEST INTERESTS OF BERKELEY COUNTY WATER AND SANITATION RATE PAYERS AND BERKELEY COUNTY TAXPAYERS.

Lengthy discussion ensued. The meeting video can be viewed on the Berkeley

County website’s Agenda and Minutes portal.

It was moved by Committee Member Davis and seconded by Committee Member

Newell to approve First Reading, Bill No. 21-34. Committee Member Obie recused

himself from the discussion and vote. The motion passed by a unanimous voice vote of

the Committee.

A special Finance Committee will be scheduled for May 10, 2021 for Second

Reading of Bill No. 21-34.

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MOVER: Steve Davis, Committee Member


AYES: Dan Owens, Tommy Newell, Brandon Cox, Jack H. Schurlknight, Caldwell

Pinckney, Steve Davis

RECUSED: Phillip Obie

AGENDA ITEM

1. Public Discussion of Santee Cooper Economic Incentives and Litigation Issues related to the Camp Hall Tract - Added per the Chairman

This item was held per the Chairman.

RESULT: HELD [0 TO 0] Next: 6/28/2021 6:00 PM

N/A: Dan Owens, Phillip Obie, Tommy Newell, Brandon Cox, Jack H.


ADJOURNMENT

It was moved by Committee Member Newell and seconded by Committee Member

Schurlknight to adjourn the Committee on Finance meeting. The motion passed by unanimous



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FINANCE COMMITTEE

SUMMARY ● MAY 10, 2021

SPECIAL COMMITTEE MEETING



Berkeley County Government Generated: 5/11/2021 4:15 PM Page 1


CALL TO ORDER



Government website.



duly notified.







Caldwell Pinckney Committee Member Excused




INVOCATION

Mrs. Hannah Moldenhauer, Public Information Officer, provided the Invocation.

PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA

Committee Member Jack Schurlknight, led the Pledge of Allegiance to the Flag of the

United States of America.

REVIEW PRIOR TO SECOND READING

1. BILL NO. 21-34, AN ORDINANCE TO PROHIBIT INCENTIVES, ASSIGNMENTS, OR CHANGE INCENTIVES FOR ANY ENTITY, PERSON, OR COMPANY LOCATING OR LOCATED IN CAMP HALL DEVELOPMENT UNTIL SUCH TIME AS SANTEE COOPER PROVIDES ASSURANCE THAT NO LITIGATION REGARDING THE CONSTRUCTION OF SEWER LINE(S) WILL BE INITIATED; AND TO PROVIDE AUTHORITY TO OFFER OR CHANGE

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Berkeley County Government Generated: 5/11/2021 4:15 PM Page 2

INCENTIVES IN CAMP HALL DEVELOPMENT ONLY UPON A VOTE OF COUNTY COUNCIL FOR REASONS IN THE BEST INTERESTS OF BERKELEY COUNTY WATER AND SANITATION RATE PAYERS AND BERKELEY COUNTY TAXPAYERS.


Member Owens to approve Review prior to Second Reading, Bill No. 21-34. The

motion passed by a unanimous voice vote of the Committee.

04/26/21 Finance Committee APPROVED AND REFERRED 04/26/21 County Council REFERRED

RESULT: APPROVED AND REFERRED [UNANIMOUS] Next: 5/10/2021 7:11 PM


SECONDER: Dan Owens, Committee Member


Schurlknight, Steve Davis

EXCUSED: Caldwell Pinckney

ADJOURNMENT

It was moved by Committee Member Davis and seconded by Committee Member Newell

to adjourn the Special Committee on Finance meeting. The motion passed by unanimous voice



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Emergency Rental Assistance Program 2 - U.S. Treasury American Rescue Plan

4878

STAFF SUMMARY

FOR The Finance Committee

Topic: Emergency Rental Assistance Program 2 - U.S. Treasury American Rescue Plan Prepared by: Sandi Riddle, Grants Administrator Date: 5/14/2021 1:49 PM

Background: Berkeley County has received a direct allocation from the U.S. Department of

Treasury as a qualifying entity for the Emergency Rental Assistance 2 (ERA-2) program, which

is funded by the American Rescue Plan. Based on population, Berkeley County is eligible to

receive $5.45 million for the ERA-2 program to assist households that are unable to pay rent and

utilities due to the COVID-19 pandemic.

Discussion: Treasury released 40% of the County’s allocation earlier this month. The Period of

Performance for this award ends on September 30, 2025. The County is currently implementing

its ERA-1 program with the original funding from the December 2020 Coronavirus Relief Fund.

Recommendation: Provide the Berkeley County Supervisor the authority to accept the grant

funds and sign any required grant documentation with the U.S. Department of Treasury.

Fiscal Impact:No local match required. This is a direct payment, and 15% of the grant funds can be used for administrative costs.

Attachments:

ERA-2 AcceptanceOfAwardTerms 5.5.21 fully executed (PDF)

.Approved and Referred this 24th day of May, 2021.

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U.S. DEPARTMENT OF THE TREASURY

EMERGENCY RENTAL ASSISTANCE OMB Approved No.: 1505-0270

Expiration Date: 10/31/2021

Eligible grantee name and address: DUNS Number:

Taxpayer Identification Number:

Assistance Listing Number and Title: 21.023-Emergency Rental Assistance

Program

Section 3201(a) of the American Rescue Plan Act of 2021, Pub. L. No. 117-2 (March 11, 2021), authorizes the Department of the Treasury (“Treasury”) to make payments to certain eligible grantees to be used to provide emergency rental assistance.

The eligible grantee hereby agrees, as a condition to receiving such payment from Treasury, to the terms attached hereto.

Authorized Representative Signature (above)

[To be signed by chief executive officer if recipient is a local government.]

Authorized Representative Name:

Authorized Representative Title:

Date Signed:

U.S. Department of the Treasury:

Authorized Representative

Title:

Date:

PAPERWORK REDUCTION ACT NOTICE: The information collected will be used for the U.S. Government to process requests for support. The estimated

burden associated with this collection of information is 15 minutes per response. Comments concerning the accuracy of this burden estimate and suggestions

for reducing this burden should be directed to the Office of Privacy, Transparency and Records, Department of the Treasury, 1500 Pennsylvania Ave., N.W., Washington, D.C. 20220. DO NOT send the form to this address. An agency may not conduct or sponsor, and a person is not required to respond to, a

collection of information unless it displays a valid control number assigned by OMB.

PRIVACY ACT STATEMENT

AUTHORITY:Solicitation of this information is authorized by the American Rescue Plan Act of 2021, Title III, Pub. L. No. 117-2.

PURPOSE:Treasury is required by the American Rescue Plan Act of 2021 to identify eligible grantees/recipients to provide emergency rental assistance to

individuals who qualify for relief under the Act. Eligible grantees/recipients are state, local, and territorial governments which identify households requiring

relief according to requirements contained in the Act. Treasury maintains contact information for authorized representatives and contact persons for the

purpose of communicating with eligible grantees regarding issues related to implementation of the Act.

ROUTINE USES:The information you furnish may be shared in accordance with the routine uses outlined in the Treasury’s system of records notice, Treasury

.017 - Correspondence and Contact Information, which can be found at 81 FR 78266 (Nov. 7, 2016).

DISCLOSURE: Disclosure of this information to Treasury is required in order to comply with the requirements the American Rescue Plan Act of 2021. Disclosure of this information is voluntary, however, grantees/recipients that do not disclose contact information will be unable to communicate with Treasury

on issues related to their obligations under the Act and this may affect the status of their award.

DocuSign Envelope ID: CB801AC3-4291-4626-B6B3-FA546D3107A3

PO Box 6122

576000312

5/6/2021

SLT-0196

County Supervisor

John Cribb

Berkeley County

Submitted-DocuSign

037403797

Moncks Corner, South Carolina, 29461-6120

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U.S. DEPARTMENT OF THE TREASURY

EMERGENCY RENTAL ASSISTANCE OMB Approved No.: 1505-0270

Expiration Date: 10/31/2021 AWARD TERMS AND CONDITIONS

1. Use of Funds. Recipient understands and agrees that the funds disbursed under this award may only be used for the purposes set forth in subsection (d) of section 3201 of the American Rescue Plan Act of 2021, Pub. L. No. 117-2 (March 11, 2021) (“Section 3201”) and any guidance issued by Treasury regarding the Emergency Rental Assistance program established under Section 3201 (the “Guidance”).

2. Reallocation of Funds. Recipient understands and agrees that any funds allocated by Treasury to Recipient that are not disbursed to Recipient in accordance with Section 3201(c)(2) as a subsequent payment will be reallocated by Treasury to other eligible recipients under Section 3201(e). Such reallocation of funds shall be made in the manner and by the date, which shall be no sooner than March 31, 2022, as may be set by Treasury. Recipient agrees to obligate at least fifty (50) percent of the total amount of funds allocated by Treasury to Recipient under Section 3201 to be eligible to receive reallocated funds under Section 3201(e).

3. Assistance to Eligible Households. Recipient agrees to permit eligible households (as defined in Section 3201(f)(2)) to submit applications for financial assistance directly to Recipient, and to receive financial assistance directly from Recipient, under programs established by Recipient using funds disbursed under this award. Recipient may make payments to a landlord or utility provider on behalf of an eligible household, but if the landlord or utility provider does not agree to accept such payment after Recipient makes reasonable efforts to obtain its cooperation, Recipient must make such payments directly to the eligible household for the purpose of making payments to the landlord or utility provider.

4. Period of Performance. The period of performance for this award begins on the date hereof and ends on September 30, 2025. Recipient shall not incur any obligations to be paid with the funding from this award after such period of performance ends.

5. Administrative costs.

a. Recipient may use funds provided to the Recipient to cover both direct and indirect costs.

b. The total of all administrative costs, whether direct or indirect costs, may not exceed 15 percent of the total amount of the total award.

6. Reporting.Recipient agrees to comply with any reporting obligations established by Treasury as related to this award. Recipient acknowledges that any such information required to be reported pursuant to this section may be publicly disclosed.

7. Maintenance of and Access to Records.

a. Recipient shall maintain records and financial documents sufficient to support compliance with Section 3201 and the Guidance.

b. The Treasury Office of Inspector General and the Government Accountability Office, or their authorized representatives, shall have the right of access to records (electronic and otherwise) of Recipient in order to conduct audits or other investigations.

c. Records shall be maintained by Recipient for a period of five (5) years after the period of performance.

8. Cost Sharing.Cost sharing or matching funds are not required to be provided by Recipient.

9. Compliance with Applicable Law and Regulations.

a. Recipient agrees to comply with the requirements of Section 3201 and the Guidance. Recipient also agrees to comply with all other applicable federal statutes, regulations, and executive orders, and Recipient shall provide for such compliance in any agreements it enters into with other parties relating to this award.

b. Federal regulations applicable to this award include, without limitation, the following:

i. Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R. Part 200, other than such provisions as Treasury may determine are inapplicable to this Award and subject to such exceptions as may be otherwise provided by Treasury. Subpart F – Audit Requirements of the Uniform Guidance, implementing the Single Audit Act, shall apply to this award.

ii. Universal Identifier and System for Award Management (SAM), 2 C.F.R. Part 25 and pursuant to which the award term set forth in Appendix A to 2 C.F.R. Part 25 is hereby incorporated by reference.

DocuSign Envelope ID: CB801AC3-4291-4626-B6B3-FA546D3107A33.1.a

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iii. Reporting Subaward and Executive Compensation Information, 2 C.F.R. Part 170, pursuant to which the award term set forth in Appendix A to 2 C.F.R. Part 170 is hereby incorporated by reference.

iv. OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement), 2 C.F.R. Part 180 including the requirement to include a term or condition in all lower tier covered transactions (contracts and subcontracts described in 2 C.F.R. Part 180, subpart B) that the award is subject to 2 C.F.R. Part 180 and Treasury’s implementing regulation at 31 C.F.R. Part 19.

v. Recipient Integrity and Performance Matters, pursuant to which the award term set forth in 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference.

vi. Governmentwide Requirements for Drug-Free Workplace, 31 C.F.R. Part 20.

vii. New Restrictions on Lobbying, 31 C.F.R. Part 21.

c. Statutes and regulations prohibiting discrimination applicable to this award, include, without limitation, the following:

i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) and Treasury’s implementing regulations at 31 C.F.R. Part 22, which prohibit discrimination on the grounds of race, color, or national origin under programs or activities receiving federal financial assistance;

ii. The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 et seq.), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability;

iii. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), which prohibits discrimination on the

basis of disability under any program or activity receiving or benefitting from federal financial assistance;

iv. The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.) and Treasury’s implementing regulations at 31 C.F.R. Part 23, which prohibit discrimination on the basis of age in programs or activities receiving federal financial assistance; and

v. Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. §§ 12101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.

10. False Statements. Recipient understands that false statements or claims made in connection with this award is a violation of federal criminal law and may result in fines, imprisonment, debarment from participating in federal awards or contracts, and/or any other remedy available by law.

11. Conflicts of Interest. Recipient understands and agrees it must maintain a conflict of interest policy consistent with 2 C.F.R. § 200.318(c), and that such conflict of interest policy is applicable to each activity funded under this award. Recipients and subrecipients must disclose in writing to Treasury or the pass-through agency, as appropriate, any potential conflict of interest affecting the awarded funds in accordance with 2 C.F.R. § 200.112.

12. Publications. Any publications produced with funds from this award must display the following language: “This project [is being] [was] supported, in whole or in part, by federal award number [enter project FAIN] awarded to [name of Recipient] by the

U.S. Department of the Treasury.”

13. Debts Owed the Federal Government.

a. Any funds paid to Recipient (1) in excess of the amount to which Recipient is finally determined to be authorized to retain under the terms of this award; (2) that are determined by the Treasury Office of Inspector General to have been misused shall constitute a debt to the federal government.

b. Any debts determined to be owed the federal government must be paid promptly by Recipient. A debt is delinquent if it has not been paid by the date specified in Treasury’s initial written demand for payment, unless other satisfactory arrangements have been made. Interest, penalties, and administrative charges shall be charged on delinquent debts in accordance with 31 U.S.C. § 3717 and 31 C.F.R. § 901.9. Treasury will refer any debt that is more than 180 days delinquent to Treasury’s Bureau of the Fiscal Service for debt collection services.


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c. Penalties on any debts shall accrue at a rate of not more than 6 percent per year or such other higher rate as authorized by law. Administrative charges, that is, the costs of processing and handling a delinquent debt, shall be determined by Treasury.

14. Disclaimer.

a. The United States expressly disclaims any and all responsibility or liability to Recipient or third persons for the actions of Recipient or third persons resulting in death, bodily injury, property damages, or any other losses resulting in any way from the performance of this award or any other losses resulting in any way from the performance of this award or any contract, or subcontract under this award.

b. The acceptance of this award by Recipient does not in any way constitute an agency relationship between the United States and Recipient.

15. Protections for Whistleblowers.

a. In accordance with 41 U.S.C. § 4712, Recipient may not discharge, demote, or otherwise discriminate against an employee as a reprisal for disclosing information to any of the list of persons or entities provided below that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant.

b. The list of persons and entities referenced in the paragraph above includes the following:

i. A member of Congress or a representative of a committee of Congress;

ii. An Inspector General;

iii. The Government Accountability Office;

iv. A Treasury employee responsible for contract or grant oversight or management;

v. An authorized official of the Department of Justice or other law enforcement agency;

vi. A court or grand jury; and/or

vii. A management official or other employee of Recipient, contractor, or subcontractor who has the responsibility to investigate, discover, or address misconduct.

c. Recipient shall inform its employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.

16. Increasing Seat Belt Use in the United States. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 8, 1997), Recipient should and should encourage its contractors to adopt and enforce on-the-job seat belt policies and programs for their employees when operating company-owned, rented or personally owned vehicles.

17. Reducing Text Messaging While Driving. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 1, 2009), Recipient should encourage its employees, subrecipients, and contractors to adopt and enforce policies that ban text messaging while driving, and Recipient should establish workplace safety policies to decrease accidents caused by distracted drivers.


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Coronavirus State & Local Fiscal Recovery Funds - SLT-0860

4879

STAFF SUMMARY


Topic: Coronavirus State & Local Fiscal Recovery Funds - SLT-0860 Prepared by: Sandi Riddle, Grants Administrator Date: 5/14/2021 2:25 PM

Background: Berkeley County has received a direct allocation from the U.S. Department of

Treasury as a qualifying entity for the Coronavirus State & Local Fiscal Recovery Funds, which

is part of the American Rescue Plan. Based on federal formula, Berkeley County is eligible to

receive $44,268,263.

Discussion: These funds are provided to Berkeley County to meet pandemic response needs and

rebuild a stronger economy during recovery. Per guidance from Treasury, eligible uses for these

funds include: supporting public health expenditures; addressing negative economic impacts

caused by the public health emergency; replacing lost public sector revenue; providing premium

pay for essential workers; and investing in water, sewer, and broadband infrastructure.

Recommendation: Provide the Berkeley County Supervisor the authority to accept the grant

funds and sign any required grant documentation with the U.S. Department of Treasury.

Fiscal Impact:No local match required. This is a direct payment program with 50% of the funds dispersed in May 2021 and the balance provided approximately 12 months later.

Attachments:

Acceptance Of Award Terms for ARP 5.10.21 (PDF)

SLFRP-Fact-Sheet-FINAL1-508A (PDF)


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OMB Approved No.:1505-0271Expiration Date: 11/30/2021

U.S. DEPARTMENT OF THE TREASURYCORONAVIRUS LOCAL FISCAL RECOVERY FUND

Recipient name and address:Berkeley County

, South Carolina

DUNS Number: Taxpayer Identification Number: Assistance Listing Number and Title: 21.019

Sections 602(b) and 603(b) of the Social Security Act (the Act) as added by section 9901 of the American Rescue Plan Act, Pub. L.No. 117-2 (March 11, 2021) authorize the Department of the Treasury (Treasury) to make payments to certain recipients from theCoronavirus State Fiscal Recovery Fund and the Coronavirus Local Fiscal Recovery Fund.

Recipient hereby agrees, as a condition to receiving such payment from Treasury, to the terms attached hereto.

Recipient:

__________________________________________________Authorized Representative:Title:Date signed:

U.S. Department of the Treasury:

__________________________________________________Authorized Representative:Title:Date signed:

PAPERWORK REDUCTION ACT NOTICEThe information collected will be used for the U.S. Government to process requests for support. The estimated burden associatedwith this collection of information is 15 minutes per response. Comments concerning the accuracy of this burden estimate andsuggestions for reducing this burden should be directed to the Office of Privacy, Transparency and Records, Department of theTreasury, 1500 Pennsylvania Ave., N.W., Washington, D.C. 20220. DO NOT send the form to this address. An agency may notconduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control numberassigned by OMB.

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U.S. DEPARTMENT OF THE TREASURYCORONAVIRUS LOCAL FISCAL RECOVERY FUND

AWARD TERMS AND CONDITIONS

Use of Funds.

Recipient understands and agrees that the funds disbursed under this award may only be used in compliance withsection 603(c) of the Social Security Act (the Act), Treasury’s regulations implementing that section, and guidanceissued by Treasury regarding the foregoing.

Recipient will determine prior to engaging in any project using this assistance that it has the institutional,managerial, and financial capability to ensure proper planning, management, and completion of such project.

Period of Performance. The period of performance for this award begins on the date hereof and ends on December 31,2026. As set forth in Treasury’s implementing regulations, Recipient may use award funds to cover eligible costs incurredduring the period that begins on March 3, 2021, and ends on December 31, 2024.

Reporting. Recipient agrees to comply with any reporting obligations established by Treasury as they relate to this award.

Maintenance of and Access to Records

Recipient shall maintain records and financial documents sufficient to evidence compliance with section 603(c) ofthe Act, Treasury’s regulations implementing that section, and guidance issued by Treasury regarding the foregoing.

The Treasury Office of Inspector General and the Government Accountability Office, or their authorizedrepresentatives, shall have the right of access to records (electronic and otherwise) of Recipient in order to conductaudits or other investigations.

Records shall be maintained by Recipient for a period of five (5) years after all funds have been expended orreturned to Treasury, whichever is later.

Pre-award Costs. Pre-award costs, as defined in 2 C.F.R. § 200.458, may not be paid with funding from this award.

Administrative Costs. Recipient may use funds provided under this award to cover both direct and indirect costs.

Cost Sharing. Cost sharing or matching funds are not required to be provided by Recipient.

Conflicts of Interest. Recipient understands and agrees it must maintain a conflict of interest policy consistent with 2 C.F.R.§ 200.318(c) and that such conflict of interest policy is applicable to each activity funded under this award. Recipient andsubrecipients must disclose in writing to Treasury or the pass-through entity, as appropriate, any potential conflict ofinterest affecting the awarded funds in accordance with 2 C.F.R. § 200.112.

Compliance with Applicable Law and Regulations.

Recipient agrees to comply with the requirements of section 602 of the Act, regulations adopted by Treasurypursuant to section 602(f) of the Act, and guidance issued by Treasury regarding the foregoing. Recipient alsoagrees to comply with all other applicable federal statutes, regulations, and executive orders, and Recipient shallprovide for such compliance by other parties in any agreements it enters into with other parties relating to thisaward.

Federal regulations applicable to this award include, without limitation, the following:

Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2C.F.R. Part 200, other than such provisions as Treasury may determine are inapplicable to this Award andsubject to such exceptions as may be otherwise provided by Treasury. Subpart F – Audit Requirements ofthe Uniform Guidance, implementing the Single Audit Act, shall apply to this award.

Universal Identifier and System for Award Management (SAM), 2 C.F.R. Part 25, pursuant to which theaward term set forth in Appendix A to 2 C.F.R. Part 25 is hereby incorporated by reference.

Reporting Subaward and Executive Compensation Information, 2 C.F.R. Part 170, pursuant to which theaward term set forth in Appendix A to 2 C.F.R. Part 170 is hereby incorporated by reference.

OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement), 2 C.F.R.Part 180, including the requirement to include a term or condition in all lower tier covered transactions(contracts and subcontracts described in 2 C.F.R. Part 180, subpart B) that the award is subject to 2 C.F.R.Part 180 and Treasury’s implementing regulation at 31 C.F.R. Part 19.

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Recipient Integrity and Performance Matters, pursuant to which the award term set forth in 2 C.F.R. Part200, Appendix XII to Part 200 is hereby incorporated by reference.

Governmentwide Requirements for Drug-Free Workplace, 31 C.F.R. Part 20.

New Restrictions on Lobbying, 31 C.F.R. Part 21.

Uniform Relocation Assistance and Real Property Acquisitions Act of 1970 (42 U.S.C. §§ 4601-4655) andimplementing regulations.

Generally applicable federal environmental laws and regulations.

Statutes and regulations prohibiting discrimination applicable to this award include, without limitation, thefollowing:

Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) and Treasury’s implementingregulations at 31 C.F.R. Part 22, which prohibit discrimination on the basis of race, color, or national originunder programs or activities receiving federal financial assistance;

The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. §§ 3601 et seq.), whichprohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status,or disability;

Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), which prohibits discriminationon the basis of disability under any program or activity receiving federal financial assistance;

The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.), and Treasury’s implementingregulations at 31 C.F.R. Part 23, which prohibit discrimination on the basis of age in programs or activitiesreceiving federal financial assistance; and

Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. §§ 12101 et seq.), whichprohibits discrimination on the basis of disability under programs, activities, and services provided or madeavailable by state and local governments or instrumentalities or agencies thereto.

Remedial Actions. In the event of Recipient’s noncompliance with section 602 of the Act, other applicable laws, Treasury’simplementing regulations, guidance, or any reporting or other program requirements, Treasury may impose additionalconditions on the receipt of a subsequent tranche of future award funds, if any, or take other available remedies as set forthin 2 C.F.R. § 200.339. In the case of a violation of section 602(c) of the Act regarding the use of funds, previous paymentsshall be subject to recoupment as provided in section 602(e) of the Act and any additional payments may be subject towithholding as provided in sections 602(b)(6)(A)(ii)(III) of the Act, as applicable.

Hatch Act. Recipient agrees to comply, as applicable, with requirements of the Hatch Act (5 U.S.C. §§ 1501-1508 and7324-7328), which limit certain political activities of State or local government employees whose principal employment isin connection with an activity financed in whole or in part by this federal assistance.

False Statements. Recipient understands that making false statements or claims in connection with this award is a violationof federal law and may result in criminal, civil, or administrative sanctions, including fines, imprisonment, civil damagesand penalties, debarment from participating in federal awards or contracts, and/or any other remedy available by law.

Publications.Any publications produced with funds from this award must display the following language: “This project [isbeing] [was] supported, in whole or in part, by federal award number [enter project FAIN] awarded to [name of Recipient]by the U.S. Department of the Treasury.”

Debts Owed the Federal Government.

Any funds paid to Recipient (1) in excess of the amount to which Recipient is finally determined to be authorized toretain under the terms of this award; (2) that are determined by the Treasury Office of Inspector General to havebeen misused; or (3) that are determined by Treasury to be subject to a repayment obligation pursuant to sections602(e) and 603(b)(2)(D) of the Act and have not been repaid by Recipient shall constitute a debt to the federalgovernment.

Any debts determined to be owed the federal government must be paid promptly by Recipient. A debt is delinquentif it has not been paid by the date specified in Treasury’s initial written demand for payment, unless othersatisfactory arrangements have been made or if the Recipient knowingly or improperly retains funds that are a debtas defined in paragraph 14(a). Treasury will take any actions available to it to collect such a debt.

Disclaimer.

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The United States expressly disclaims any and all responsibility or liability to Recipient or third persons for theactions of Recipient or third persons resulting in death, bodily injury, property damages, or any other lossesresulting in any way from the performance of this award or any other losses resulting in any way from theperformance of this award or any contract, or subcontract under this award.

The acceptance of this award by Recipient does not in any way establish an agency relationship between the UnitedStates and Recipient.

Protections for Whistleblowers.

In accordance with 41 U.S.C. § 4712, Recipient may not discharge, demote, or otherwise discriminate against anemployee in reprisal for disclosing to any of the list of persons or entities provided below, information that theemployee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste offederal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to publichealth or safety, or a violation of law, rule, or regulation related to a federal contract (including the competition foror negotiation of a contract) or grant.

The list of persons and entities referenced in the paragraph above includes the following:

A member of Congress or a representative of a committee of Congress;

An Inspector General;

The Government Accountability Office;

A Treasury employee responsible for contract or grant oversight or management;

An authorized official of the Department of Justice or other law enforcement agency;

A court or grand jury; or

A management official or other employee of Recipient, contractor, or subcontractor who has theresponsibility to investigate, discover, or address misconduct.

Recipient shall inform its employees in writing of the rights and remedies provided under this section, in thepredominant native language of the workforce.

Increasing Seat Belt Use in the United States. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Recipientshould encourage its contractors to adopt and enforce on-the-job seat belt policies and programs for their employees whenoperating company-owned, rented or personally owned vehicles.

Reducing Text Messaging While Driving. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Recipientshould encourage its employees, subrecipients, and contractors to adopt and enforce policies that ban text messaging whiledriving, and Recipient should establish workplace safety policies to decrease accidents caused by distracted drivers.

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OMB Approved No. 1505-0271Expiration Date: November 30, 2021

ASSURANCES OF COMPLIANCE WITH CIVIL RIGHTS REQUIREMENTSASSURANCES OF COMPLIANCE WITH TITLE VI OF THE CIVIL RIGHTS ACT OF 1964

As a condition of receipt of federal financial assistance from the Department of the Treasury, the recipient named below(hereinafter referred to as the “Recipient”) provides the assurances stated herein. The federal financial assistance may includefederal grants, loans and contracts to provide assistance to the Recipient’s beneficiaries, the use or rent of Federal land or propertyat below market value, Federal training, a loan of Federal personnel, subsidies, and other arrangements with the intention ofproviding assistance. Federal financial assistance does not encompass contracts of guarantee or insurance, regulated programs,licenses, procurement contracts by the Federal government at market value, or programs that provide direct benefits.

The assurances apply to all federal financial assistance from or funds made available through the Department of the Treasury,including any assistance that the Recipient may request in the future.

The Civil Rights Restoration Act of 1987 provides that the provisions of the assurances apply to all of the operations of theRecipient’s program(s) and activity(ies), so long as any portion of the Recipient’s program(s) or activity(ies) is federally assisted inthe manner prescribed above.

Recipient ensures its current and future compliance with Title VI of the Civil Rights Act of 1964, as amended, whichprohibits exclusion from participation, denial of the benefits of, or subjection to discrimination under programs andactivities receiving federal financial assistance, of any person in the United States on the ground of race, color, or nationalorigin (42 U.S.C. § 2000d et seq.), as implemented by the Department of the Treasury Title VI regulations at 31 CFR Part22 and other pertinent executive orders such as Executive Order 13166, directives, circulars, policies, memoranda, and/orguidance documents.

Recipient acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited EnglishProficiency,” seeks to improve access to federally assisted programs and activities for individuals who, because of nationalorigin, have Limited English proficiency (LEP). Recipient understands that denying a person access to its programs,services, and activities because of LEP is a form of national origin discrimination prohibited under Title VI of the CivilRights Act of 1964 and the Department of the Treasury’s implementing regulations. Accordingly, Recipient shall initiatereasonable steps, or comply with the Department of the Treasury’s directives, to ensure that LEP persons have meaningfulaccess to its programs, services, and activities. Recipient understands and agrees that meaningful access may entailproviding language assistance services, including oral interpretation and written translation where necessary, to ensureeffective communication in the Recipient’s programs, services, and activities.

Recipient agrees to consider the need for language services for LEP persons when Recipient develops applicable budgetsand conducts programs, services, and activities. As a resource, the Department of the Treasury has published its LEPguidance at 70 FR 6067. For more information on taking reasonable steps to provide meaningful access for LEP persons,please visit http://www.lep.gov.

Recipient acknowledges and agrees that compliance with the assurances constitutes a condition of continued receipt offederal financial assistance and is binding upon Recipient and Recipient’s successors, transferees, and assignees for theperiod in which such assistance is provided.

Recipient acknowledges and agrees that it must require any sub-grantees, contractors, subcontractors, successors,transferees, and assignees to comply with assurances 1-4 above, and agrees to incorporate the following language in everycontract or agreement subject to Title VI and its regulations between the Recipient and the Recipient’s sub-grantees,contractors, subcontractors, successors, transferees, and assignees:

The sub-grantee, contractor, subcontractor, successor, transferee, and assignee shall comply with Title VI ofthe Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from excluding from aprogram or activity, denying benefits of, or otherwise discriminating against a person on the basis of race,color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by the Department of the Treasury’s TitleVI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract(or agreement). Title VI also includes protection to persons with “Limited English Proficiency” in anyprogram or activity receiving federal financial assistance, 42 U.S.C. § 2000d et seq., as implemented by theDepartment of the Treasury’s Title VI regulations, 31 CFR Part 22, and herein incorporated by reference andmade a part of this contract or agreement.

Recipient understands and agrees that if any real property or structure is provided or improved with the aid of federalfinancial assistance by the Department of the Treasury, this assurance obligates the Recipient, or in the case of a subsequenttransfer, the transferee, for the period during which the real property or structure is used for a purpose for which the federal

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6.

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financial assistance is extended or for another purpose involving the provision of similar services or benefits. If anypersonal property is provided, this assurance obligates the Recipient for the period during which it retains ownership orpossession of the property.

Recipient shall cooperate in any enforcement or compliance review activities by the Department of the Treasury of theaforementioned obligations. Enforcement may include investigation, arbitration, mediation, litigation, and monitoring ofany settlement agreements that may result from these actions. The Recipient shall comply with information requests, on-sitecompliance reviews and reporting requirements.

Recipient shall maintain a complaint log and inform the Department of the Treasury of any complaints of discrimination onthe grounds of race, color, or national origin, and limited English proficiency covered by Title VI of the Civil Rights Act of1964 and implementing regulations and provide, upon request, a list of all such reviews or proceedings based on thecomplaint, pending or completed, including outcome. Recipient also must inform the Department of the Treasury ifRecipient has received no complaints under Title VI.

Recipient must provide documentation of an administrative agency’s or court’s findings of non-compliance of Title VI andefforts to address the non-compliance, including any voluntary compliance or other agreements between the Recipient andthe administrative agency that made the finding. If the Recipient settles a case or matter alleging such discrimination, theRecipient must provide documentation of the settlement. If Recipient has not been the subject of any court or administrativeagency finding of discrimination, please so state.

If the Recipient makes sub-awards to other agencies or other entities, the Recipient is responsible for ensuring thatsub-recipients also comply with Title VI and other applicable authorities covered in this document State agencies that makesub-awards must have in place standard grant assurances and review procedures to demonstrate that that they are effectivelymonitoring the civil rights compliance of subrecipients.

The United States of America has the right to seek judicial enforcement of the terms of this assurances document and nothing inthis document alters or limits the federal enforcement measures that the United States may take in order to address violations ofthis document or applicable federal law.

Under penalty of perjury, the undersigned official(s) certifies that official(s) has read and understood the Recipient’s obligations asherein described, that any information submitted in conjunction with this assurances document is accurate and complete, and thatthe Recipient is in compliance with the aforementioned nondiscrimination requirements.

Berkeley CountyRecipient

_________________________________Date

_________________________________Signature of Authorized Official

PAPERWORK REDUCTION ACT NOTICEThe information collected will be used for the U.S. Government to process requests for support. The estimated burden associatedwith this collection of information is 30 minutes per response. Comments concerning the accuracy of this burden estimate andsuggestions for reducing this burden should be directed to the Office of Privacy, Transparency and Records, Department of theTreasury, 1500 Pennsylvania Ave., N.W., Washington, D.C. 20220. DO NOT send the form to this address. An agency may notconduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control numberassigned by OMB.

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FACT SHEET: The Coronavirus State and Local Fiscal Recovery Funds Will Deliver $350 Billion for State, Local, Territorial, and Tribal Governments to Respond to the

COVID-19 Emergency and Bring Back Jobs

May 10, 2021

Aid to state, local, territorial, and Tribal governments will help turn the tide on the pandemic, address its economic fallout, and lay the foundation for a strong and equitable recovery

Today, the U.S. Department of the Treasury announced the launch of the Coronavirus State and Local Fiscal Recovery Funds, established by the American Rescue Plan Act of 2021, to provide $350 billion in emergency funding for eligible state, local, territorial, and Tribal governments. Treasury also released details on how these funds can be used to respond to acute pandemic response needs, fill revenue shortfalls among these governments, and support the communities and populations hardest-hit by the COVID-19 crisis. With the launch of the Coronavirus State and Local Fiscal Recovery Funds, eligible jurisdictions will be able to access this funding in the coming days to address these needs.

State, local, territorial, and Tribal governments have been on the frontlines of responding to the immense public health and economic needs created by this crisis – from standing up vaccination sites to supporting small businesses – even as these governments confronted revenue shortfalls during the downturn. As a result, these governments have endured unprecedented strains, forcing many to make untenable choices between laying off educators, firefighters, and other frontline workers or failing to provide other services that communities rely on. Faced with these challenges, state and local governments have cut over 1 million jobs since the beginning of the crisis. The experience of prior economic downturns has shown that budget pressures like these often result in prolonged fiscal austerity that can slow an economic recovery.

To support the immediate pandemic response, bring back jobs, and lay the groundwork for a strong and equitable recovery, the American Rescue Plan Act of 2021 established the Coronavirus State and Local Fiscal Recovery Funds, designed to deliver $350 billion to state, local, territorial, and Tribal governments to bolster their response to the COVID-19 emergency and its economic impacts. Today, Treasury is launching this much-needed relief to:

• Support urgent COVID-19 response efforts to continue to decrease spread of the virus and bring the pandemic under control;

• Replace lost public sector revenue to strengthen support for vital public services and help retain jobs;

• Support immediate economic stabilization for households and businesses; and,

• Address systemic public health and economic challenges that have contributed to the inequal impact of the pandemic on certain populations.

The Coronavirus State and Local Fiscal Recovery Funds provide substantial flexibility for each jurisdiction to meet local needs—including support for households, small businesses, impacted industries, essential workers, and the communities hardest-hit by the crisis. These funds also deliver resources that recipients can invest in building, maintaining, or upgrading their water, sewer, and broadband infrastructure.

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Starting today, eligible state, territorial, metropolitan city, county, and Tribal governments may request Coronavirus State and Local Fiscal Recovery Funds through the Treasury Submission Portal. Concurrent with this program launch, Treasury has published an Interim Final Rule that implements the provisions of this program.

FUNDING AMOUNTS

The American Rescue Plan provides a total of $350 billion in Coronavirus State and Local Fiscal Recovery Funds to help eligible state, local, territorial, and Tribal governments meet their present needs and build the foundation for a strong recovery. Congress has allocated this funding to tens of thousands of jurisdictions. These allocations include:

Type Amount

($ billions)

States & District of Columbia $195.3

Counties $65.1

Metropolitan Cites $45.6

Tribal Governments $20.0

Territories $4.5

Non-Entitlement Units of Local Government

$19.5

Treasury expects to distribute these funds directly to each state, territorial, metropolitan city, county, and Tribal government. Local governments that are classified as non-entitlement units will receive this funding through their applicable state government. Treasury expects to provide further guidance on distributions to non-entitlement units next week.

Local governments should expect to receive funds in two tranches, with 50% provided beginning in May 2021 and the balance delivered 12 months later. States that have experienced a net increase in the unemployment rate of more than 2 percentage points from February 2020 to the latest available data as of the date of certification will receive their full allocation of funds in a single payment; other states will receive funds in two equal tranches. Governments of U.S. territories will receive a single payment. Tribal governments will receive two payments, with the first payment available in May and the second payment, based on employment data, to be delivered in June 2021.

USES OF FUNDING

Coronavirus State and Local Fiscal Recovery Funds provide eligible state, local, territorial, and Tribal governments with a substantial infusion of resources to meet pandemic response needs and rebuild a stronger, more equitable economy as the country recovers. Within the categories of eligible uses, recipients have broad flexibility to decide how best to use this funding to meet the needs of their communities. Recipients may use Coronavirus State and Local Fiscal Recovery Funds to:

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• Support public health expenditures, by funding COVID-19 mitigation efforts, medical expenses, behavioral healthcare, and certain public health and safety staff;

• Address negative economic impacts caused by the public health emergency, including economic harms to workers, households, small businesses, impacted industries, and the public sector;

• Replace lost public sector revenue, using this funding to provide government services to the extent of the reduction in revenue experienced due to the pandemic;

• Provide premium pay for essential workers, offering additional support to those who have borne and will bear the greatest health risks because of their service in critical infrastructure sectors; and,

• Invest in water, sewer, and broadband infrastructure, making necessary investments to improve access to clean drinking water, support vital wastewater and stormwater infrastructure, and to expand access to broadband internet.

Within these overall categories, Treasury’s Interim Final Rule provides guidelines and principles for determining the types of programs and services that this funding can support, together with examples of allowable uses that recipients may consider. As described below, Treasury has also designed these provisions to take into consideration the disproportionate impacts of the COVID-19 public health emergency on those hardest-hit by the pandemic.

1. Supporting the public health response

Mitigating the impact of COVID-19 continues to require an unprecedented public health response from state, local, territorial, and Tribal governments. Coronavirus State and Local Fiscal Recovery Funds provide resources to meet these needs through the provision of care for those impacted by the virus and through services that address disparities in public health that have been exacerbated by the pandemic. Recipients may use this funding to address a broad range of public health needs across COVID-19 mitigation, medical expenses, behavioral healthcare, and public health resources. Among other services, these funds can help support:

• Services and programs to contain and mitigate the spread of COVID-19, including:

Vaccination programs Medical expenses Testing Contact tracing Isolation or quarantine PPE purchases Support for vulnerable populations to

access medical or public health services Public health surveillance (e.g.,

monitoring for variants) Enforcement of public health orders Public communication efforts

Enhancement of healthcare capacity, including alternative care facilities

Support for prevention, mitigation, or other services in congregate living facilities and schools

Enhancement of public health data systems

Capital investments in public facilities to meet pandemic operational needs

Ventilation improvements in key settings like healthcare facilities

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• Services to address behavioral healthcare needs exacerbated by the pandemic, including:

Mental health treatment Substance misuse treatment Other behavioral health services Hotlines or warmlines

Crisis intervention Services or outreach to promote access

to health and social services

• Payroll and covered benefits expenses for public health, healthcare, human services, public safety and similar employees, to the extent that they work on the COVID-19 response. For public health and safety workers, recipients can use these funds to cover the full payroll and covered benefits costs for employees or operating units or divisions primarily dedicated to the COVID-19 response.

2. Addressing the negative economic impacts caused by the public health emergency

The COVID-19 public health emergency resulted in significant economic hardship for many Americans. As businesses closed, consumers stayed home, schools shifted to remote education, and travel declined precipitously, over 20 million jobs were lost between February and April 2020. Although many have since returned to work, as of April 2021, the economy remains more than 8 million jobs below its pre-pandemic peak, and more than 3 million workers have dropped out of the labor market altogether since February 2020.

To help alleviate the economic hardships caused by the pandemic, Coronavirus State and Local Fiscal Recovery Funds enable eligible state, local, territorial, and Tribal governments to provide a wide range of assistance to individuals and households, small businesses, and impacted industries, in addition to enabling governments to rehire public sector staff and rebuild capacity. Among these uses include:

• Delivering assistance to workers and families, including aid to unemployed workers and job training, as well as aid to households facing food, housing, or other financial insecurity. In addition, these funds can support survivor’s benefits for family members of COVID-19 victims.

• Supporting small businesses, helping them to address financial challenges caused by the pandemic and to make investments in COVID-19 prevention and mitigation tactics, as well as to provide technical assistance. To achieve these goals, recipients may employ this funding to execute a broad array of loan, grant, in-kind assistance, and counseling programs to enable small businesses to rebound from the downturn.

• Speeding the recovery of the tourism, travel, and hospitality sectors, supporting industries that were particularly hard-hit by the COVID-19 emergency and are just now beginning to mend. Similarly impacted sectors within a local area are also eligible for support.

• Rebuilding public sector capacity, by rehiring public sector staff and replenishing unemployment insurance (UI) trust funds, in each case up to pre-pandemic levels. Recipients may also use this funding to build their internal capacity to successfully implement economic relief programs, with investments in data analysis, targeted outreach, technology infrastructure, and impact evaluations.

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3. Serving the hardest-hit communities and families

While the pandemic has affected communities across the country, it has disproportionately impacted low-income families and communities of color and has exacerbated systemic health and economic inequities. Low-income and socially vulnerable communities have experienced the most severe health impacts. For example, counties with high poverty rates also have the highest rates of infections and deaths, with 223 deaths per 100,000 compared to the U.S. average of 175 deaths per 100,000.

Coronavirus State and Local Fiscal Recovery Funds allow for a broad range of uses to address the disproportionate public health and economic impacts of the crisis on the hardest-hit communities, populations, and households. Eligible services include:

• Addressing health disparities and the social determinants of health, through funding for community health workers, public benefits navigators, remediation of lead hazards, and community violence intervention programs;

• Investments in housing and neighborhoods, such as services to address individuals experiencing homelessness, affordable housing development, housing vouchers, and residential counseling and housing navigation assistance to facilitate moves to neighborhoods with high economic opportunity;

• Addressing educational disparities through new or expanded early learning services, providing additional resources to high-poverty school districts, and offering educational services like tutoring or afterschool programs as well as services to address social, emotional, and mental health needs; and,

• Promoting healthy childhood environments, including new or expanded high quality childcare, home visiting programs for families with young children, and enhanced services for child welfare-involved families and foster youth.

Governments may use Coronavirus State and Local Fiscal Recovery Funds to support these additional services if they are provided:

• within a Qualified Census Tract (a low-income area as designated by the Department of Housing and Urban Development);

• to families living in Qualified Census Tracts;

• by a Tribal government; or,

• to other populations, households, or geographic areas disproportionately impacted by the pandemic.

4. Replacing lost public sector revenue

State, local, territorial, and Tribal governments that are facing budget shortfalls may use Coronavirus State and Local Fiscal Recovery Funds to avoid cuts to government services. With these additional resources, recipients can continue to provide valuable public services and ensure that fiscal austerity measures do not hamper the broader economic recovery.

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Many state, local, territorial, and Tribal governments have experienced significant budget shortfalls, which can yield a devastating impact on their respective communities. Faced with budget shortfalls and pandemic-related uncertainty, state and local governments cut staff in all 50 states. These budget shortfalls and staff cuts are particularly problematic at present, as these entities are on the front lines of battling the COVID-19 pandemic and helping citizens weather the economic downturn.

Recipients may use these funds to replace lost revenue. Treasury’s Interim Final Rule establishes a methodology that each recipient can use to calculate its reduction in revenue. Specifically, recipients will compute the extent of their reduction in revenue by comparing their actual revenue to an alternative representing what could have been expected to occur in the absence of the pandemic. Analysis of this expected trend begins with the last full fiscal year prior to the public health emergency and projects forward at either (a) the recipient’s average annual revenue growth over the three full fiscal years prior to the public health emergency or (b) 4.1%, the national average state and local revenue growth rate from 2015-18 (the latest available data).

For administrative convenience, Treasury’s Interim Final Rule allows recipients to presume that any diminution in actual revenue relative to the expected trend is due to the COVID-19 public health emergency. Upon receiving Coronavirus State and Local Fiscal Recovery Funds, recipients may immediately calculate the reduction in revenue that occurred in 2020 and deploy funds to address any shortfall. Recipients will have the opportunity to re-calculate revenue loss at several points through the program, supporting those entities that experience a lagged impact of the crisis on revenues.

Importantly, once a shortfall in revenue is identified, recipients will have broad latitude to use this funding to support government services, up to this amount of lost revenue.

5. Providing premium pay for essential workers

Coronavirus State and Local Fiscal Recovery Funds provide resources for eligible state, local, territorial, and Tribal governments to recognize the heroic contributions of essential workers. Since the start of the public health emergency, essential workers have put their physical well-being at risk to meet the daily needs of their communities and to provide care for others.

Many of these essential workers have not received compensation for the heightened risks they have faced and continue to face. Recipients may use this funding to provide premium pay directly, or through grants to private employers, to a broad range of essential workers who must be physically present at their jobs including, among others:

Staff at nursing homes, hospitals, and home-care settings

Workers at farms, food production facilities, grocery stores, and restaurants

Janitors and sanitation workers Public health and safety staff

Truck drivers, transit staff, and warehouse workers

Childcare workers, educators, and school staff

Social service and human services staff

Treasury’s Interim Final Rule emphasizes the need for recipients to prioritize premium pay for lower income workers. Premium pay that would increase a worker’s total pay above 150% of the greater of the state or county average annual wage requires specific justification for how it responds to the needs of these workers.

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In addition, employers are both permitted and encouraged to use Coronavirus State and Local Fiscal Recovery Funds to offer retrospective premium pay, recognizing that many essential workers have not yet received additional compensation for work performed. Staff working for third-party contractors in eligible sectors are also eligible for premium pay.

6. Investing in water and sewer infrastructure

Recipients may use Coronavirus State and Local Fiscal Recovery Funds to invest in necessary improvements to their water and sewer infrastructures, including projects that address the impacts of climate change.

Recipients may use this funding to invest in an array of drinking water infrastructure projects, such as building or upgrading facilities and transmission, distribution, and storage systems, including the replacement of lead service lines.

Recipients may also use this funding to invest in wastewater infrastructure projects, including constructing publicly-owned treatment infrastructure, managing and treating stormwater or subsurface drainage water, facilitating water reuse, and securing publicly-owned treatment works.

To help jurisdictions expedite their execution of these essential investments, Treasury’s Interim Final Rule aligns types of eligible projects with the wide range of projects that can be supported by the Environmental Protection Agency’s Clean Water State Revolving Fund and Drinking Water State Revolving Fund. Recipients retain substantial flexibility to identify those water and sewer infrastructure investments that are of the highest priority for their own communities.

Treasury’s Interim Final Rule also encourages recipients to ensure that water, sewer, and broadband projects use strong labor standards, including project labor agreements and community benefits agreements that offer wages at or above the prevailing rate and include local hire provisions.

7. Investing in broadband infrastructure

The pandemic has underscored the importance of access to universal, high-speed, reliable, and affordable broadband coverage. Over the past year, millions of Americans relied on the internet to participate in remote school, healthcare, and work.

Yet, by at least one measure, 30 million Americans live in areas where there is no broadband service or where existing services do not deliver minimally acceptable speeds. For millions of other Americans, the high cost of broadband access may place it out of reach. The American Rescue Plan aims to help remedy these shortfalls, providing recipients with flexibility to use Coronavirus State and Local Fiscal Recovery Funds to invest in broadband infrastructure.

Recognizing the acute need in certain communities, Treasury’s Interim Final Rule provides that investments in broadband be made in areas that are currently unserved or underserved—in other words, lacking a wireline connection that reliably delivers minimum speeds of 25 Mbps download and 3 Mbps upload. Recipients are also encouraged to prioritize projects that achieve last-mile connections to households and businesses.

Using these funds, recipients generally should build broadband infrastructure with modern technologies in mind, specifically those projects that deliver services offering reliable 100 Mbps download and 100

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Mbps upload speeds, unless impracticable due to topography, geography, or financial cost. In addition, recipients are encouraged to pursue fiber optic investments.

In view of the wide disparities in broadband access, assistance to households to support internet access or digital literacy is an eligible use to respond to the public health and negative economic impacts of the pandemic, as detailed above.

8. Ineligible Uses

Coronavirus State and Local Fiscal Recovery Funds provide substantial resources to help eligible state, local, territorial, and Tribal governments manage the public health and economic consequences of COVID-19. Recipients have considerable flexibility to use these funds to address the diverse needs of their communities.

To ensure that these funds are used for their intended purposes, the American Rescue Plan Act also specifies two ineligible uses of funds:

• States and territories may not use this funding to directly or indirectly offset a reduction in net tax revenue due to a change in law from March 3, 2021 through the last day of the fiscal year in which the funds provided have been spent. The American Rescue Plan ensures that funds needed to provide vital services and support public employees, small businesses, and families struggling to make it through the pandemic are not used to fund reductions in net tax revenue. Treasury’s Interim Final Rule implements this requirement. If a state or territory cuts taxes, they must demonstrate how they paid for the tax cuts from sources other than Coronavirus State Fiscal Recovery Funds—by enacting policies to raise other sources of revenue, by cutting spending, or through higher revenue due to economic growth. If the funds provided have been used to offset tax cuts, the amount used for this purpose must be paid back to the Treasury.

• No recipient may use this funding to make a deposit to a pension fund. Treasury’s Interim Final Rule defines a “deposit” as an extraordinary contribution to a pension fund for the purpose of reducing an accrued, unfunded liability. While pension deposits are prohibited, recipients may use funds for routine payroll contributions for employees whose wages and salaries are an eligible use of funds.

Treasury’s Interim Final Rule identifies several other ineligible uses, including funding debt service, legal settlements or judgments, and deposits to rainy day funds or financial reserves. Further, general infrastructure spending is not covered as an eligible use outside of water, sewer, and broadband investments or above the amount allocated under the revenue loss provision. While the program offers broad flexibility to recipients to address local conditions, these restrictions will help ensure that funds are used to augment existing activities and address pressing needs.

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Line Item Transfer

4890

STAFF SUMMARY


Topic: Line Item Transfer from 41101 Personnel Services to 41101 Operating Expenses Prepared by: Shelley Forest, Date: 5/19/2021 3:19 PM

Fiscal Impact:

Attachments:

Line Item Transfer Request 05242021 (XLSX)


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Department Name: County Council

Department Number: 41101

Department Director's Signature

Date of Request: 05/24/21

NOTE: Amounts CANNOT exceed $10,000Object: Object Description:

Transfer FROM line item: 5101 Salaries Amount: $4,000.00

Transfer TO line item: 5151 Advertising Amount: $500.00

5381 Office Supplies $100.00

5392 Travel Reimbursement $100.00

5515 Employee Training $2,400.00

5560 Other Operating Expenses $900.00

Justification: (purpose of transfer)

Unforeseen expenses not budgeted for during the COVID-19 pandemic

Reviewed by: Yes No

Approved: Yes NoFinance Director's Signature

Approved: Yes No

Supervisor's Signature

BERKELEY COUNTY

Budget Transfer Request for Fiscal Year 2020 - 2021

C:\Users\shelley.forest\appdata\roaming\iqm2\minutetraq\[email protected]\work\attachments\9374Revised 5/21/2021 1:15 PM

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Bill No. 21-36, FILOT with Project Mt. Holly

4886

STAFF SUMMARY


Topic: BILL NO. 21-36, AN ORDINANCE AUTHORIZING THE EXECUTION AND DELIVERY OF A FEE-IN-LIEU OF TAX AGREEMENT BY AND BETWEEN BERKELEY COUNTY AND AN ENTITY IDENTIFIED BY THE COUNTY AS PROJECT MT. HOLLY AND ITS AFFILIATES AND RELATED ENTITIES WHEREBY BERKELEY COUNTY WILL ENTER INTO A FEE-IN-LIEU OF TAX AGREEMENT WITH PROJECT MT. HOLLY AND PROVIDING FOR PAYMENT BY PROJECT MT. HOLLY OF CERTAIN FEES-IN-LIEU OF AD VALOREM TAXES; PROVIDING FOR THE ALLOCATION OF FEES-IN-LIEU OF TAXES PAYABLE UNDER THE AGREEMENT FOR THE ESTABLISHMENT OF A MULTI-COUNTY INDUSTRIAL/BUSINESS PARK; AND OTHER MATTERS RELATING THERETO.

Prepared by: Shelley Forest, Date: 5/17/2021 1:55 PM

Fiscal Impact:

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Bill No. 21-36, FILOT with Project Mt. Holly

4886

BILL NO. 21-36, AN ORDINANCE AUTHORIZING THE EXECUTION AND DELIVERY OF A FEE-IN-LIEU OF TAX AGREEMENT BY AND BETWEEN BERKELEY COUNTY AND AN ENTITY IDENTIFIED BY THE COUNTY AS PROJECT MT. HOLLY AND ITS

AFFILIATES AND RELATED ENTITIES WHEREBY BERKELEY COUNTY WILL ENTER INTO A FEE-IN-LIEU OF TAX AGREEMENT WITH PROJECT MT. HOLLY

AND PROVIDING FOR PAYMENT BY PROJECT MT. HOLLY OF CERTAIN FEES-IN-LIEU OF AD VALOREM TAXES; PROVIDING FOR THE ALLOCATION OF FEES-IN-LIEU OF TAXES PAYABLE UNDER THE AGREEMENT FOR THE ESTABLISHMENT

OF A MULTI-COUNTY INDUSTRIAL/BUSINESS PARK; AND OTHER MATTERS RELATING THERETO.

4.1

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Bill No. 20-68, FILOT with Dupont Specialty Svs (Project Evolution)

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STAFF SUMMARY


Topic: BILL NO. 20-68, AN ORDINANCE AUTHORIZING THE EXECUTION AND DELIVERY OF A FEE-IN-LIEU OF TAX AGREEMENT BY AND BETWEEN BERKELEY COUNTY AND DUPONT SPECIALTY PRODUCTS USA, LLC WHEREBY BERKELEY COUNTY WILL ENTER INTO A FEE-IN-LIEU OF TAX AGREEMENT WITH DUPONT SPECIALTY PRODUCTS USA, LLC, AND PROVIDING FOR PAYMENT BY DUPONT SPECIALTY PRODUCTS USA, LLC OF CERTAIN FEES-IN-LIEU OF AD VALOREM TAXES; PROVIDING FOR THE ALLOCATION OF FEES-IN-LIEU OF TAXES PAYABLE UNDER THE AGREEMENT FOR THE ESTABLISHMENT OF A MULTI-COUNTY INDUSTRIAL/BUSINESS PARK; AND OTHER MATTERS RELATING THERETO.

Prepared by: Kristen Lanier, Economic Development Director Date: 10/15/2020 5:07 PM

Fiscal Impact:

Attachments:

Ordinance - FILOT with Dupont Specialty Products USA LLC (Project Evolution) v1 (DOCX)

Agreement - FILOT with Dupont Specialty Products USA LLC (Project Evolution) v1 (DOCX)

5.1

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Bill No. 20-68, FILOT with Dupont Specialty Svs (Project Evolution)

4600

BILL NO. 20-68, AN ORDINANCE AUTHORIZING THE EXECUTION AND DELIVERY OF A FEE-IN-LIEU OF TAX AGREEMENT BY AND BETWEEN BERKELEY COUNTY AND DUPONT SPECIALTY PRODUCTS USA, LLC WHEREBY BERKELEY COUNTY

WILL ENTER INTO A FEE-IN-LIEU OF TAX AGREEMENT WITH DUPONT SPECIALTY PRODUCTS USA, LLC, AND PROVIDING FOR PAYMENT BY DUPONT SPECIALTY PRODUCTS USA, LLC OF CERTAIN FEES-IN-LIEU OF AD VALOREM

TAXES; PROVIDING FOR THE ALLOCATION OF FEES-IN-LIEU OF TAXES PAYABLE UNDER THE AGREEMENT FOR THE ESTABLISHMENT OF A MULTI-

COUNTY INDUSTRIAL/BUSINESS PARK; AND OTHER MATTERS RELATING THERETO.

5.1

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Bill No. 20-68

ORDINANCE NO.

AN ORDINANCE AUTHORIZING THE EXECUTION AND DELIVERY

OF A FEE-IN-LIEU OF TAX AGREEMENT BY AND BETWEEN

BERKELEY COUNTY AND DUPONT SPECIALTY PRODUCTS USA,

LLC WHEREBY BERKELEY COUNTY WILL ENTER INTO A FEE-IN-

LIEU OF TAX AGREEMENT WITH DUPONT SPECIALTY PRODUCTS

USA, LLC, AND PROVIDING FOR PAYMENT BY DUPONT SPECIALTY

PRODUCTS USA, LLC OF CERTAIN FEES-IN-LIEU OF AD VALOREM

TAXES; PROVIDING FOR THE ALLOCATION OF FEES-IN-LIEU OF

TAXES PAYABLE UNDER THE AGREEMENT FOR THE

ESTABLISHMENT OF A MULTI-COUNTY INDUSTRIAL/BUSINESS

PARK; AND OTHER MATTERS RELATING THERETO.

WHEREAS, Berkeley County, South Carolina (the “County”) would like to enter into a

Fee-in-Lieu of Tax Agreement with DuPont Specialty Products USA, LLC (the “Company”), as

the Company has expressed its intent to the County to make a capital investment in Berkeley

County and to hire full time employees in Berkeley County (the “Project”); and

WHEREAS, as a result of the Company’s desire to undergo the Project, the Company has

asked the County to enter into a Fee-in-Lieu of Tax Agreement by and between the County and

the Company dated as of ________________, 2021 in order to encompass the terms of the Project;

and

WHEREAS, the County, acting by and through its County Council (the “County Council”)

is authorized and empowered under and pursuant to the provisions of Title 12, Chapter 44 of the

Code of Laws of South Carolina 1976, as amended (the “FILOT Act”), to designate real and

tangible personal property as “economic development property” and to enter into an arrangement

which provides for payments-in-lieu of taxes (“Negotiated FILOT Payments”) for a project

qualifying under the FILOT Act; and

WHEREAS, the County, acting by and through the County Council, is further authorized

and empowered under and pursuant to the provisions of Title 4, Chapter 1 of the Code of Laws of

South Carolina 1976, as amended (the “Multi-County Park Act” or, as to Section 4-1-175 thereof,

the “Special Source Act”) (collectively, the “the MCIP Act”) to provide for payments-in-lieu of

taxes (“FILOT Payments”) with respect to property located in a multi-county business or industrial

park created under the MCIP Act; and

WHEREAS, the Company proposes to develop a facility in Berkeley County by acquiring,

constructing, equipping and furnishing machinery, equipment and other real and personal property

(the “Negotiated FILOT Project”) which the Company has represented will likely consist of a

capital investment of approximately $16,000,000 and creating employment for approximately 15

new, full time employees; and

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WHEREAS, the Negotiated FILOT Project is located entirely within Berkeley County and

will be included in and subject to the multi-county park and fee-in-lieu of tax arrangements as

described herein; and

WHEREAS, the County has made specific proposals, including proposals to offer certain

economic development incentives set forth herein, for the purpose of inducing the Company to

invest its funds to acquire and equip the Negotiated FILOT Project (the “Incentives”); and

WHEREAS, it is in the public interest, for the public benefit and in furtherance of the

public purposes of the FILOT Act and the MCIP Act that the County Council provide approval for

qualifying the Negotiated FILOT Project under the FILOT Act and the entire Negotiated FILOT

Project under the MCIP Act for the Incentives.

NOW, THEREFORE, BE IT ORDAINED by the County Council as follows:

Section 1. Evaluation of the Negotiated FILOT Project. County Council has evaluated the

Negotiated FILOT Project on the following criteria based upon the advice and assistance of the

South Carolina Department of Commerce and the South Carolina Department of Revenue:

(a) whether the purposes to be accomplished by the Negotiated FILOT Project are

proper governmental and public purposes; and

(b) the anticipated dollar amount and nature of the investment to be made; and

(c) the anticipated costs and benefits to the County.

Section 2. Findings by County Council. Based upon information provided by and

representations of the Company, County Council’s investigation of the Negotiated FILOT Project,

including the criteria described in Section 1 above, and the advice and assistance of the South

Carolina Department of Commerce and the South Carolina Department of Revenue, as required,

County Council hereby find that:

(a) the Negotiated FILOT Project continues to constitute a “project” as that term is

defined in the FILOT Act; and

(b) the Negotiated FILOT Project will continue to serve the purposes of the FILOT

Act; and

(c) the investment by the Company in the negotiated FILOT Project is anticipated to

be approximately $16,000,000 to be invested within five (5) years from the end of

the property tax year in which the Company and the County execute the FILOT

Agreement (as defined herein); and

(d) the Negotiated FILOT Project will be located entirely within the County; and

(e) the Negotiated FILOT Project will benefit the general public welfare of the County

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by providing services, employment, recreation or other public benefits not

otherwise adequately provided locally; and

(f) the Negotiated FILOT Project will not give rise to a pecuniary liability of the

County or any municipality nor a charge against its general credit or taxing power

of the County or any municipality; and

(g) the purposes to be accomplished by the Negotiated FILOT Project are proper

governmental and public purposes; and

(h) the inducement of the location of the Negotiated FILOT Project is of paramount

importance; and

(i) the benefits of the Negotiated FILOT Project to the public are greater than the costs

to the public.

Section 3. Fee-in-Lieu of Taxes Arrangement. Pursuant to the authority of the FILOT Act,

the Negotiated FILOT Project is designated as “economic development property” under the FILOT

Act and there is hereby authorized a fee-in-lieu of taxes arrangement with the Company which will

provide Negotiated FILOT Payments to be made with respect to the Negotiated FILOT Project based

upon a 6% assessment ratio and a millage of rate of 273.7 mills, all as more fully set forth in the Fee-

in-Lieu of Tax Agreement by and between the County and the Company (the “FILOT Agreement”).

Section 4. Execution of the Fee Agreement. The form, terms and provisions of the FILOT

Agreement presented to this meeting and filed with the Clerk of the County Council be and hereby

are approved, and all of the terms, provisions and conditions thereof are hereby incorporated herein

by reference as if such FILOT Agreement were set out in this Ordinance in its entirety. The

Supervisor/Chairman of the County Council and the Clerk of the County Council be and they are

hereby authorized, empowered and directed to execute, acknowledge and deliver the FILOT

Agreement in the name and on behalf of the County, and thereupon to cause the FILOT Agreement

to be delivered to the Company. The FILOT Agreement is to be in substantially the form now

before this meeting and hereby approved, or with any changes therein as shall not materially

adversely affect the rights of the County thereunder and as shall be approved by the County

Attorney and the officials of the County executing the same, their execution thereof to constitute

conclusive evidence of their approval of all changes therein from the form of FILOT Agreement

now before this meeting.

Section 5. Miscellaneous.

(a) The Supervisor/Chairman and all other appropriate officials of the County are hereby

authorized to execute, deliver and receive any other agreements and documents as

may be required by the County in order to carry out, give effect to and consummate

the transactions authorized by this Ordinance; and

(b) This Ordinance shall be construed and interpreted in accordance with the laws of the

State of South Carolina; and

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(c) This Ordinance shall become effective immediately upon approval following third

reading by the County Council; and

(d) The provisions of this Ordinance are hereby declared to be severable and if any

section, phrase or provision shall for any reason be declared by a court of competent

jurisdiction to be invalid or unenforceable, that declaration shall not affect the validity

of the remainder of the sections, phrases and provisions hereunder; and

(e) All ordinances, resolutions and parts thereof in conflict herewith are, to the extent of

the conflict, hereby repealed.

Section 6. Allocation of MCIP FILOT Revenues.

(a) By separate ordinance of the County Council, the County, in cooperation with an

adjacent county, shall use its best efforts to designate the site of the Negotiated

FILOT Project as a multi-county park pursuant to Article VIII, Section 13 of the

Constitution of South Carolina, the MCIP Act, and the terms of the Agreement for

the Establishment of Multi-County Industrial/Business Park (the “MCIP

Agreement”). In the FILOT Agreement, the County will agree to use its best efforts

to maintain such designation for a term of at least 20 years.

(b) Pursuant to the terms of the MCIP Act and the MCIP Agreement, the County hereby

provides that for 20 years, commencing the first year in which property that is a

part of the Negotiated FILOT Project will be placed in service, the annual allocation

of the fee-in-lieu of ad valorem taxes payable to the County in accordance with the

terms of the MCIP Agreement, after deducting any amounts distributed to the

Partner County, will be distributed as follows:

(1) To the County and the other overlapping taxing entities, as set forth in

greater detail in the MCIP Agreement and the related implementing

ordinances of the County.

[Remainder of this page intentionally left blank. Signature page to follow.]

5.1.a

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ORDAINED this ______ day of __________, 2021.

BERKELEY COUNTY, SOUTH CAROLINA

[SEAL]

_______________________________________

John P. Cribb, County Supervisor

Chairman, Berkeley County Council

Attest:

__________________________

Shelley R. Forest

Interim Clerk to County Council

Approved as to form:

__________________________

John O. Williams, II

County Attorney

First Reading: October 26, 2020

Second Reading:

Public Hearing:

Third Reading:

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HSB: 6715129 v.1 HSB 6715129 v.1

FEE-IN-LIEU OF TAX AGREEMENT

by and between

BERKELEY COUNTY, SOUTH CAROLINA,

and

DUPONT SPECIALITY PRODUCTS USA, LLC

Dated as of ______________, 2021

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HSB: 6715129 v.1 HSB 6715129 v.1


THIS FEE-IN-LIEU OF TAX AGREEMENT is dated as of ___________, 2021, by and

between BERKELEY COUNTY, SOUTH CAROLINA, a body politic and corporate and a

political subdivision of the State of South Carolina (the “County”) and DuPont Specialty Products

USA, LLC (the “Company”).

WITNESSETH:

WHEREAS, the County, acting by and through its County Council (the “Council”), is

authorized and empowered under and pursuant to the provisions of Title 12, Chapter 44 (the “Act”)

of the Code of Laws of South Carolina 1976, as amended (the “Code”) and Title 4, Chapter 1 of

the Code (the “Multi-County Park Act”): (i) to enter into agreements with certain investors to

construct, operate, maintain, and improve certain industrial and commercial properties through

which the economic development of the State of South Carolina will be promoted and trade

developed by inducing manufacturing and commercial enterprises to locate and remain in the State

of South Carolina and thus utilize and employ the manpower, agricultural products, and natural

resources of the State; (ii) to covenant with such investors to accept certain payments in lieu of ad

valorem taxes with respect to the project (a “FILOT”); and (iii) to maintain, create or expand, in

conjunction with one or more other counties, a multi-county industrial park in order to afford

certain enhanced income tax credits to such investors; and

WHEREAS, the Company proposes to expand its manufacturing operations in the County

(the “Project”); and

WHEREAS, the Company anticipates that the Project will result in the creation of

approximately 15 new, full time jobs and an investment of $3,000,000 in real property in the

County and $13,000,000 in personal property in the County; and

WHEREAS, the Council approved an Ordinance enacted on _________ __, 2021

authorizing the County to enter into this Agreement with the Company; and

WHEREAS, as a result of the Company contemplating locating its facility in the County,

the Company requested that the County complete the FILOT arrangement referred to in that certain

Ordinance referred to above and approved by County Council on _____________, 2021 by

entering into this Fee-in-Lieu of Tax Agreement with the Company pursuant to the Act, and the

Company elects to enter into such FILOT arrangement with the County in an effort to encompass

the terms surrounding the Project and allowing the Company to make FILOT payments pursuant

to the Act; and

WHEREAS, for the Project, the parties have also determined that the Company is a Project

Sponsor, and that the Project constitutes Economic Development Property within the meaning of

the Act; and

WHEREAS, this Fee-in-Lieu of Tax Agreement by and between the County and the

Company and dated as of ______________, 2021 is referred to herein as the “Agreement”; and

5.1.b

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WHEREAS, for the purposes set forth above, the County has determined that it is in the

best interests of the County to enter into this Agreement with the Company, subject to the terms

and conditions herein set forth.

NOW, THEREFORE, in consideration of the respective representations and agreements

hereinafter contained, and the sum of $10.00 in hand, duly paid by the Company to the County,

the receipt and sufficiency of which are hereby acknowledged, the County and the Company agree

as follows:

ARTICLE I

DEFINITIONS AND RECAPITULATION

Section 1.01. Statutorily Required Recapitulation.

(a) Pursuant to Section 12-44-55(B) of the Act, the County and the Company

agree to waive the recapitulation requirements of Section 12-44-55 of the Act, except as

expressly provided in paragraph (b) below, to the extent that and so long as the Company

timely provides the County with copies of all filings required by the Act to be made by the

Company with regard to the Project. If the Company should be required to retroactively

comply with all of the recapitulation requirements of Section 12-44-55 of the Act, then the

County agrees, to the extent permitted by law, to waive all penalties of the County for the

Company’s noncompliance that are within the County’s control.

(b) Recapitulation.

1. Legal name of each initial party to this Agreement:

DuPont Specialty Products USA, LLC and Berkeley County, South

Carolina.

2. County and street address of the project and property to be subject

to this Agreement:

3300 Cypress Gardens Road, Moncks Corner, SC, 29461

2. Minimum investment agreed upon:

$3,000,000 (real property)

$13,000,000 (personal property)

4. Length and term of this Agreement:

20 years for each annual increment of investment in the Project

during the Investment Period.

5. Assessment ratio applicable for each year of this Agreement:

6%

6. Millage rate applicable for each year of this Agreement:

Every year of the term: 273.7 mills

5.1.b

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7. Schedule showing the amount of the fee and its calculation for

each year of this Agreement:

Waived by the County and the Company

8. Schedule showing the amount to be distributed annually to each of

the affected taxing entities:


9. Statements

(a) The Project is to be located in a multi-county park;

(b) Disposal of property, subject to Payments-in-Lieu-of-Taxes

is allowed;

(c) Special Source Revenue Credits will not be included.

(d) Payment will not be modified using a net present value

calculation; and

(e) Replacement property provisions will apply.

10. Any other feature or aspect of this Agreement which may affect the

calculation of items (7) and (8) of this Recapitulation.


11. Description of the effect upon the schedules required by items (7)

and (8) of this Recapitulation of any feature covered by items (9)

and (10) not reflected in the schedules for items (7) and (8)


12. Which party or parties to this Agreement are responsible for

updating any information contained in this Recapitulation:

The Company

Section 1.02. Definitions. In addition to the words and terms elsewhere defined in

this Agreement, the following words and terms as used herein and in the preambles hereto shall

have the following meanings, unless the context or use indicates another or different meaning or

intent.

“Act” or “Simplified FILOT Act” shall mean Title 12, Chapter 44 of the Code, as amended

through the date hereof.

“Administration Expense” shall mean the reasonable and necessary expenses actually

incurred by the County with respect to this agreement, including without limitation reasonable and

actual attorneys’ fees (such attorneys’ fees will not exceed $5,000.00 without prior written consent

of the Company); provided, however, that no such expense shall be considered an Administration

Expenses until the County has furnished to the Company a statement in writing indicating the

amount of such expense and the reason it has been or will be incurred.

“Affiliate” shall mean any person or entity directly or indirectly controlling, controlled by,

or under common control with such other person or entity. For purposes of this definition,

5.1.b

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“control” means the possession, directly or indirectly, of the power to direct or cause the direction

of the management and policies of the person or entity, whether through the ownership of voting

securities, by contract, or otherwise.

“Agreement” shall mean this Agreement by and among the County and the Company, as

originally executed and from time to time supplemented or amended as permitted herein, and dated

as of _______________, 2021.

“Code” shall mean the Code of Laws of South Carolina 1976, as amended through the date

hereof, unless the context clearly requires otherwise.

“Company” shall mean DuPont Specialty Products USA, LLC and any surviving, resulting,

or transferee entity in any merger, consolidation, or transfer of assets permitted under Section 8.02

or Article IX hereof; or any assignee hereunder which is designated by the Company and approved

or ratified by the County. Except as required by law, the County’s subsequent approval or

ratification of an assignee hereunder shall not be required if the subsequent Assignee is a member

of the Controlled Group.

“Company Affiliate” shall mean any affiliate of the Company which would qualify as a

sponsor affiliate within the meaning of that term as defined and used in Section 12-44-30(20) of

the Code; provided, however, that such affiliate must be specifically approved by the County as a

sponsor affiliate and must agree in writing to be bound by this Agreement as to any investment by

such sponsor affiliate to be subject to FILOT Payments hereunder.

“Controlled Group” shall mean the Company and all Company Affiliates.

“County” shall mean Berkeley County, South Carolina, a body politic and corporate and a

political subdivision of the State of South Carolina, and its successors and assigns.

“County Council” shall mean the governing body of the County and its successors.

“Department of Revenue” shall mean the South Carolina Department of Revenue.

“Economic Development Property” shall mean each item of real and tangible personal

property comprising the Project, except Non-Qualifying Property, within the meaning of that term

as defined and used in Sections 12-44-30(6) and 12-44-40(C) of the Code.

“Equipment” shall mean all machinery, equipment, furnishings, and other personal

property acquired by the Controlled Group and installed as part of the Project during the

Investment Period in accordance with this Agreement.

“Event of Default” shall mean an Event of Default as defined in Section 11.01 hereof.

“Existing Property” shall mean property proscribed from becoming Economic

Development Property pursuant to Section 12-44-110 of the Code, including, without limitation,

property which has been subject to ad valorem taxes in the State prior to the execution and delivery

of this Agreement and property included in the Project as part of the repair, alteration, or

modification of such previously taxed property; provided, however, that Existing Property shall

5.1.b

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not include: (a) property acquired or constructed by the Company or members of the Controlled

Group during the Investment Period which has not been placed in service in this State prior to the

Investment Period notwithstanding that ad valorem taxes have heretofore been paid with respect

to such property; or (b) modifications which constitute an expansion of Existing Property.

“FILOT” shall mean the fee-in-lieu of taxes, which the Company is obligated to pay to the

County pursuant to Section 5.01 hereof.

“FILOT Payments” shall mean the payments to be made by the Company pursuant to

Section 5.01 hereof.

“FILOT Revenues” shall mean the revenues received by the County from the Company’s

payment of the FILOT.

“Investment Period” shall mean the period beginning with the first day that the Controlled

Group purchased or purchases Economic Development Property and ending on the date that is five

years from the end of the property tax year in which this Agreement is executed by the Company

and the County, unless extended by written agreement of the County and the Company pursuant

to Section 12-44-30(13) of the Code.

“Investment Requirement” shall mean the minimum investment the Company shall make

in the Project to receive the incentives described herein. For purposes of this Agreement, the

minimum investment shall mean an investment of at least $16,000,000 in property subject to ad

valorem taxation (in the absence of this Agreement and/or the Multi-County Park) by the Company

and any Company Affiliate.

“Land” shall mean the real estate upon which the Project is to be located, as described in

Exhibit A attached hereto, as Exhibit A may be supplemented from time to time in accordance

with the provisions hereof.

“Multi-County Park” shall mean the multi-county industrial/business park established

pursuant to a qualifying agreement with Williamsburg County, dated April 24, 1995, as amended

(the “Multi-County Park Agreement”).

“Multi-County Park Act” shall mean Title 4, Chapter 1 of the Code, as amended through

the date hereof.

“Negotiated FILOT Payment” shall mean the FILOT due pursuant to Section 5.01(b)

hereof with respect to that portion of the Project consisting of Economic Development Property.

“Non-Qualifying Property” shall mean that portion of the Project, if any, consisting of: (i)

property as to which the Company or any members of the Controlled Group incurred expenditures

prior to the Investment Period or, except as to Replacement Property, after the end of the

Investment Period; (ii) Existing Property; and (iii) any Released Property or other property which

fails or ceases to qualify for Negotiated FILOT Payments, including without limitation property

as to which the Company has terminated the Negotiated FILOT pursuant to Section 4.03(a)(iii)

hereof. The Company agrees that the real estate improvements on the Land as of the date of this

Agreement shall constitute Non-Qualifying Property for purposes of this Agreement.

5.1.b

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“Person” shall mean and include any individual, association, unincorporated organization,

corporation, partnership, limited liability company, joint venture, or government or agency or

political subdivision thereof.

“Project” shall mean, collectively herein, the Project, and shall include the buildings and

other improvements on the Land to the extent placed thereon by the Company or any member of

the Controlled Group including water, sewer treatment and disposal facilities, and other

machinery, apparatus, equipment, office facilities, and furnishings which are necessary, suitable,

or useful, including the Equipment; and any Replacement Property.

“Project Commitments” shall mean the investment and job commitments of the Company

with respect to the Project as set forth in Section 2.02(d) of this Agreement.

“Released Property” shall mean any portion of the Project removed, scrapped, traded in,

sold, or otherwise disposed of pursuant to Section 4.03 hereof, any portion of the Project stolen,

damaged, destroyed, or taken by condemnation or eminent domain proceedings as described in

Article VII hereof, and any infrastructure which the Company dedicates to the public use (within

the meaning of that phrase as used in Section 12-6-3420(C) of the Code).

“Replacement Property” shall mean all property installed in or on the Land in substitution

of, or as replacement for, any portion of the Project, but only to the extent that such property may

be included in the calculation of the Negotiated FILOT pursuant to Section 5.01(f) hereof and

Section 12-44-60 of the Code.

“Simplified FILOT Act” shall mean Title 12, Chapter 44 of the Code, as amended through

the date hereof.

“State” shall mean the State of South Carolina.

“Streamlined FILOT Act” shall mean Title 4, Chapter 12 of the Code, as amended through

the date hereof.

“Term” shall mean the term of this Agreement, as set forth in Section 10.01 hereof.

“Transfer Provisions” shall mean the provisions of Section 12-44-120 of the Code, as

amended through the date hereof.

Section 1.03. References to Agreement. The words “hereof”, “herein”,

“hereunder”, and other words of similar import refer to this Agreement as a whole.

ARTICLE II

REPRESENTATIONS AND WARRANTIES

5.1.b

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Section 2.01. Representations and Warranties by County. The County makes the

following representations and warranties as the basis for the undertakings on its part herein

contained:

(a) The County is a body politic and corporate and a political subdivision of the

State of South Carolina and is authorized and empowered by the provisions of the Act to

enter into the transactions contemplated by this Agreement and to carry out its obligations

hereunder.

(b) The County, based on representations of the Company, has determined that

the Project will serve the purposes of the Act, and has made all other findings of fact

required by the Act in order to designate the Project (other than the Non-Qualifying

Property) as Economic Development Property.

(c) By proper action of the County Council, the County has duly authorized the

execution and delivery of this Agreement and any and all actions necessary and appropriate

to consummate the transactions contemplated hereby.

(d) This Agreement has been duly executed and delivered on behalf of the

County.

(e) The County agrees to use its best faith efforts to cause the Land to be located

within the Multi-County Park, and the County will use its best faith efforts to ensure that

the Project will continuously be included within the boundaries of the Multi-County Park

or another multi-county park in order that the maximum tax benefits afforded by the laws

of the State for projects in the County located within multi-county industrial parks will be

available to the Company.

(f) No actions, suits, proceedings, inquiries, or investigations known to the

undersigned representatives of the County are pending or threatened against or affecting

the County in any court or before any governmental authority or arbitration board or

tribunal, which could materially adversely affect the transactions contemplated by this

Agreement or which could, in any way, adversely affect the validity or enforceability of

this Agreement.

Section 2.02. Representations and Warranties by Company. The Company makes

the following representations and warranties as the basis for the undertakings on its part herein

contained:

(a) DuPont Specialty Products USA, LLC is a limited liability company,

validly existing and in good standing under the laws of the State of Delaware and

authorized to do business in the State; has all requisite power to enter into this Agreement;

and by proper action has been duly authorized to execute and deliver this Agreement.

(b) The agreements with the County with respect to the FILOT have been

instrumental in inducing the Company to locate the Project within the County and the State.

5.1.b

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(c) No actions, suits, proceedings, inquiries, or investigations known to the

undersigned representatives of the Company are pending or threatened against or affecting

the Company in any court or before any governmental authority or arbitration board or



this Agreement.

(d) For the Project, the Company hereby commits to an Investment

Requirement of Three Million Dollars ($3,000,000) in land, buildings, and other real

property and Thirteen Million Dollars ($13,000,000) in machinery, equipment, and other

personal property at the Project by the end of the Investment Period. The investment

amount shall not include any amount paid by the Company for real estate improvements

on the land existing as of the date of this Agreement. The Company agrees to meet and

maintain the real property investment commitment throughout the entire term of the

FILOT.

(e) If the Company fails to meet the Investment Requirement, then the Fee

Agreement shall terminate and the Company shall repay the benefits received for any of the

previous years constituting the Investment Period as if the Investment Requirement was not met.

(f) The income tax year of the Company, and accordingly the property tax year,

for federal income tax purposes is December 31.

(g) No event has occurred and no condition currently exists with respect to the

Company, which would constitute a Default or an “Event of Default” as defined herein.

(h) The Company intends to operate the Project as a manufacturing facility, and

for such other purposes permitted under the Act as it may deem appropriate. The Project

constitutes a “project” and “economic development property” as provided under the Act.

ARTICLE III

UNDERTAKINGS OF THE COUNTY

Section 3.01. Agreement to Accept FILOT Payments. The County hereby agrees

to accept FILOT Payments made by the Company in accordance with Section 5.01 hereof in lieu

of ad valorem taxes with respect to the Project until this Agreement expires or is sooner terminated.

Section 3.02. No Warranties by County. The Company acknowledges that the

County has made no warranties or representations, either express or implied, as to the condition or

state of the Project or as to the design or capabilities of the Project or that it will be suitable for the

Company’s purposes or needs. No representation of the County is hereby made with regard to

compliance by the Project or any Person with laws regulating: (i) the construction or acquisition

of the Project; (ii) environmental matters pertaining to the Project; (iii) the offer or sale of any

securities; or (iv) the marketability of title to any property.

Section 3.03. Execution of Lease. The parties acknowledge that the intent of this

Agreement is to afford the Company the benefits of the Negotiated FILOT Payments in

5.1.b

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consideration of the Company’s decision to locate the Project within Berkeley County and that

this Agreement has been entered into in reliance upon the enactment of the Simplified FILOT Act.

In the event that a court of competent jurisdiction holds that the Simplified FILOT Act is

unconstitutional or that this Agreement or agreements similar in nature to this Agreement are

invalid or unenforceable in any material respect or should the parties determine that there is a

reasonable doubt as to the validity or enforceability of this Agreement in any material respect, then

the County, upon the provision by the Company of evidence acceptable to the County that the

Project is free from environmental contamination and the conveyance of title to the Project to the

County at the expense of the Company, agrees to lease the Project to the Company pursuant to the

Streamlined FILOT Act and, to the extent permitted under the law in effect at such time, use its

best efforts to ensure that the Company receives the benefits of the Negotiated FILOT as

contemplated by this Agreement.

In addition to and notwithstanding the foregoing paragraph, the County shall not be

obligated to perform any of its obligations or promises under this Section 3.03 unless the Company

has otherwise complied with or provides satisfactory evidence to the County that it intends to

comply with its obligations and responsibilities under this Agreement.

ARTICLE IV

INVESTMENT BY COMPANY IN PROJECT; MAINTENANCE

AND MODIFICATION OF PROJECT

Section 4.01. Investment by Company in Project. For the Project, the Company

agrees to invest approximately Three Million Dollars ($3,000,000) in land, buildings, and other

real property and Thirteen Million Dollars ($13,000,000) in machinery, equipment, and other

personal property at the Project by the end of the initial Investment Period. The investment amount

shall not include any amount paid by the Company for real estate improvements on the Land

existing as of the date of this Agreement. The Company agrees to meet and maintain the real

property investment commitment throughout the entire term of the FILOT.

Section 4.02. Reporting and Filing.

(a) The Company agrees to provide a copy of Form PT-443 filed with the

Department of Revenue not later than 30 days after execution and delivery of this

Agreement to the County Treasurer, Assessor, Economic Development Director and

County Attorney. Each year during the term of this Agreement, the Company shall deliver

to the County Auditor, County Treasurer, Assessor, Economic Development Director and

County Attorney a copy of their most recent annual filings made with the Department of

Revenue with respect to the Project, not later than thirty (30) days following delivery

thereof to the Department of Revenue.

(b) The Company agrees to obtain the written consent of the County prior to

applying for a reclassification of, or attempting to reclassify, any asset(s) previously

reported to the Department of Revenue.

5.1.b

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(c) The Company agrees to maintain such books and records with respect to the

Project as will permit the identification of those portions of the Project placed in service in

each property tax year during the Investment Period, the amount of investment with respect

thereto and its computations of all FILOT Payments made hereunder and will comply with

all reporting requirements of the State and the County applicable to property subject to

FILOT Payments under the Act, including the reports described in paragraph (a)

(collectively, “Filings”).

(d) Notwithstanding any other provision of this Section, the Company may

designate with respect to any Filings delivered to the County segments thereof that the

Company believes contain proprietary, confidential, or trade secret matters. To the

maximum extent permitted by law, the County shall conform to all written requests made

by the Company with respect to maintaining the confidentiality of such designated

segments. If the County receives a request for information under Title 30, Chapter 4 of the

Code, the County shall notify the Company of the request and, subject to the time

constraints imposed by such law, give the Company the opportunity to designate those

portions of the Project, which the Company believes to be confidential or proprietary. To

the extent permitted by law, the County shall not release information which has been

designated as confidential or proprietary by the Company.

Section 4.03 Modification of Project.

(a) As long as no event of default exists hereunder, the Company shall have the

right at any time and from time to time during the Term hereof to undertake any of the

following:

(i) The Company may, at its own expense, add to the Project any real

and personal property as the Company in its discretion deems useful or desirable.

(ii) In any instance where the Company in its discretion determines that

any items included in the Project have become inadequate, obsolete, worn out,

unsuitable, undesirable, or unnecessary for operations at the Project, the Company

may remove such items or portions from the Project and sell, trade in, exchange, or

otherwise dispose of them (as a whole or in part) without the consent of the County;

as such may be permitted under the Simplified FILOT Act.

(iii) The Company may, at any time in its discretion by written notice to

the County, remove any real or personal property from the Negotiated FILOT (as

defined in Section 5.01) set forth in this Agreement, and thereafter such property

will be considered Non-Qualifying Property and will be subject to FILOT Payments

as set forth in Section 5.01(b) hereof.

ARTICLE V

PAYMENTS IN LIEU OF TAXES

Section 5.01. Payments in Lieu of Ad Valorem Taxes.

5.1.b

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(a) In accordance with the Act, the parties hereby agree that, during the Term

of the Agreement, the Company shall pay annually, with respect to the Project, a FILOT

in the amount calculated as set forth in this Section, on or before the date, and at the places,

in the manner, and subject to the penalty assessments prescribed by the County or the

Department of Revenue for ad valorem taxes.

(b) The FILOT Payment due for the Project with respect to each property tax

year shall equal:

(i) With respect to any portion of the Project consisting of Non-

Qualifying Property, as long as such property is located in the Multi-County Park, a

payment equal to the ad valorem taxes that would otherwise be due on such Non-

Qualifying Property were it taxable giving effect to all credits, exemptions, rebates

and abatement that would be available if such undeveloped land or Non-Qualifying

Property were taxable; plus

(ii) With respect to those portions of the Project consisting of Economic

Development Property, for each of the twenty (20) consecutive years following the

year in which such portion of the Project is placed in service, a payment calculated

each year as set forth in paragraphs (c) below (a “Negotiated FILOT”).

(c) The Negotiated FILOT Payments shall be calculated with respect to each

property tax year based on: (1) the fair market value (determined in accordance with

Section 12-44-50(A)(1)(c) of the Code) of the improvements to real property and

Equipment included within the Project theretofore placed in service (less, for Equipment,

depreciation allowable for property tax purposes as provided in Section 12-44-50(A)(1)(c)

of the Code), (2) a fixed millage rate of [273.7] for the entire term of this Agreement, and

(3) an assessment ratio of six percent (6%). All such calculations shall take into account

all deductions for depreciation or diminution in value allowed by the Code or by the tax

laws generally, as well as tax exemptions which would have been applicable if such

property were subject to ad valorem taxes, except the exemption allowed pursuant to

Section 3(g) of Article X of the Constitution of the State of South Carolina and the

exemptions allowed pursuant to Sections 12-37-220(B)(32) and (34) of the Code.

(d) The FILOT payments are to be recalculated:

(i) to reduce such payments in the event the Company disposes of any

part of the Project within the meaning of Section 12-44-50(B) of the Code and as

provided in Section 4.03 hereof, by the amount applicable to the Released Property;

(ii) to increase such payments in the event the Company adds property

(other than Replacement Property) to the Project; or

(iii) to adjust such payments if the Company elects to convert any

portion of the Project from the Negotiated FILOT to the FILOT required by Section

5.01(b) above, as permitted by Section 4.03(a)(iii).

5.1.b

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(e) To the extent permitted by law, because the FILOT Payments agreed to

herein are intended to be paid by the Company to the County in lieu of taxes, it is agreed

that said FILOT Payments shall not, as to any year, be in any amount greater than what

would otherwise be payable by the Company to the County in property taxes if the

Company had not entered into a fee-in-lieu of taxes arrangement with the County (except

it is not intended that said FILOT Payments would necessarily be less than such property

taxes to the extent that the constitutional abatement of property taxes would otherwise

apply).

(f) Upon the Company’s installation of any Replacement Property for any

portion of the Project removed under Section 4.03 hereof and sold, scrapped, or disposed

of by the Company, such Replacement Property shall become subject to Negotiated FILOT

Payments to the fullest extent allowed by law, subject to the following rules:

(i) Replacement Property does not have to serve the same function as

Economic Development Property it is replacing. Replacement Property is deemed

to replace the oldest property subject to the FILOT, whether real or personal, which

is disposed of in the same property tax year as the Replacement Property is placed

in service. Replacement Property qualifies for Negotiated FILOT Payments up to

the original income tax basis of Economic Development Property which it is

replacing. More than one piece of property can replace a single piece of property.

To the extent that the income tax basis of the Replacement Property exceeds the

original income tax basis of the Economic Development Property which it is

replacing, the excess amount is subject to payments equal to the ad valorem taxes

which would have been paid on such property but for this Agreement. Replacement

property is entitled to the FILOT payment for the period of time remaining on the

twenty-year FILOT period for the property which it is replacing.

(ii) The new Replacement Property which qualifies for the Negotiated

FILOT payment shall be recorded using its income tax basis, and the Negotiated

FILOT Payment shall be calculated using the millage rate and assessment ratio

provided on the original property subject to FILOT payment.

(g) In the event that the Act or the FILOT or any portion thereof, are declared,

by a court of competent jurisdiction following allowable appeals, invalid or unenforceable,

in whole or in part, for any reason, the Company and the County express their intentions

that such payments be reformed so as to afford the Company the maximum benefit then

permitted by law, including, without limitation, the benefits afforded under Section 12-44-

50 of the Code and, specifically, that the Company may, at the Company’s expense,

exercise the rights granted by Section 12-44-160 of the Code. If the Project is deemed not

to be eligible for a Negotiated FILOT pursuant to the Act in whole or in part, the Company

and the County agree that the Company shall pay an alternate fee-in-lieu of tax calculated

in the manner set forth in Section 5.01(b)(i) hereof. In such event, the Company shall be

entitled, to the extent permitted by law: (1) to enjoy the five-year exemption from ad

valorem taxes (or fees in lieu of taxes) provided by Section 3(g) of Article X of the

Constitution of the State of South Carolina, and any other exemption allowed by law; and

(2) to enjoy all allowable depreciation.

5.1.b

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ARTICLE VI

DEFAULT

Section 6.01. Defaulted Payments. In the event the Company should fail to make

any of the payments required under this Agreement, the item or installment so in default shall

continue as an obligation of the Company until the amount in default shall have been fully paid. If

any such default relates to its obligations to make FILOT Payments hereunder, the Company

agrees to pay the same with interest thereon at the rate per annum provided by the Code for late

payment of ad valorem taxes together with any penalties provided by the Code for late payment

of ad valorem taxes, all as provided in Section 12-44-90 of the Code.

Section 6.02. Failure to Reach Investment Requirement. If the Company fails to

meet the Investment Requirement, then the Agreement shall terminate and the Company shall

repay the benefits received for any of the previous years constituting the Investment Period as if

the Act Minimum Investment Requirement was not met.

ARTICLE VII

CASUALTY AND CONDEMNATION

Section 7.01. Adjustments in the Event of Damage and Destruction or

Condemnation. In the event that the Project or any portion thereof is damaged or destroyed, lost

or stolen, or the subject of condemnation proceedings, the Company, in its sole discretion, may

determine whether or not to repair or replace the same. The parties hereto agree that if the Company

decides not to repair or replace all or any portion of the Project pursuant to this Section, the FILOT

required pursuant to Section 5.01 hereof shall be abated in the same manner and in the same

proportion as if ad valorem taxes were payable with respect to the Project.

ARTICLE VIII

PARTICULAR COVENANTS AND AGREEMENTS

Section 8.01. Use of Project for Lawful Activities. During the Term of this

Agreement, the Company shall use the Project for any lawful purpose authorized pursuant to the

Act.

Section 8.02. Assignment. The Company agrees that the County shall have the sole

discretion to allow, or not allow, the assignment of any of the incentives or benefits identified

herein. The Company shall provide the County and the Department of Revenue with notice of any

such assignment, transfer, or investment in accordance with the Act, and the County agrees, upon

the request of the Company, to take all further action necessary to implement such assignment,

transfer, or investment in accordance with the provisions of the Act.

Section 8.03. Indemnification. The Company releases the County, including the

members of the governing body of the County, and the employees, officers, attorneys and agents

of the County (herein collectively referred to as the “Indemnified Parties”) from, agrees that the

Indemnified Parties shall not be liable for, and agrees to hold the Indemnified Parties harmless

5.1.b

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against, any loss or damage to property or any injury to or death of any person that may be

occasioned by any cause whatsoever pertaining to this Agreement, the Project or the use thereof,

except for that occasioned by grossly negligent or intentional acts of an Indemnified Party. The

Company further agrees to indemnify and save harmless Indemnified Parties against and from any

and all costs, liabilities, expenses, and claims arising from any breach or default on the part of the

Company in the performance of any covenant or agreement on the part of the Company to be

performed pursuant to the terms of this Agreement or arising from any act or negligence of, or

negligent failure to act where there is a duty to do so by, the Company, or any of its agents,

attorneys, contractors, servants, employees, or licensees, and from and against all cost, liability,

and expenses incurred in or in connection with any such claim or action or proceeding brought

thereon.

All covenants, stipulations, promises, agreements, and obligations of the County contained

herein shall be deemed to be covenants, stipulations, promises, agreements, and obligations of the

County and not of any member of the County Council or any officer, agent, attorney, servant, or

employee of the County in his or her individual capacity, and, absent bad faith, no recourse shall

be had for the payment of any moneys hereunder or the performance of any of the covenants and

agreements of the County herein contained or for any claims based thereon against any member

of the governing body of the County or any officer, attorney, agent, servant, or employee of the

County.

Notwithstanding the fact that it is the intention of the Indemnified Parties hereto that none

of them shall incur any pecuniary liability by reason of the terms of this Agreement, any related

agreements or the undertakings required of the County hereunder by reason of the performance of

any act requested of the County by the Company, including all claims, liabilities, or losses arising

in connection with the violation of any statutes or regulations pertaining to the foregoing,

nevertheless, if any Indemnified Party shall incur any such pecuniary liability, then in such event

the Company shall indemnify and hold them harmless against all claims by or on behalf of any

Person, firm, or corporation or other legal entity arising out of the same and all costs and expenses

incurred in connection with any such claim or in connection with any action or proceeding brought

thereon provided, however, that nothing herein shall absolve the Indemnified Parties from, or

entitle the Indemnification Parties to indemnification from, any obligation such Indemnified Party

has specifically agreed to undertake (including, without limitation, the obligation to place and

maintain the Land within a multi-county park). If any action, suit, or proceeding is brought against

any Indemnified Party to which such Indemnified Party is entitled to indemnification, such

Indemnified Party shall promptly notify the Company, and the Company shall have the sole right

and duty to assume, and shall assume, the defense thereof, at its expense, with full power to litigate,

compromise, or settle the same in its sole discretion; provided the Company shall obtain the prior

written consent of the County to settle any such claim unless such claim is for monetary damages

for which the Company has the ability to, and does, pay. Notwithstanding the foregoing, if the

Indemnified Party is the County, in the event the County reasonably believes there are defenses

available to it that are not being pursued or that the counsel engaged by the Company reasonably

determines that a conflict of interest exists between the County and the Company, the County may,

in its sole discretion, hire independent counsel to pursue its own defense, and the Company shall

be liable for the reasonable cost of such counsel.

5.1.b

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The indemnity specified in this Section shall be in addition to any heretofore extended by

the Company to any Indemnified Party and shall survive the termination of this Agreement with

respect to liability arising out of any event or act occurring prior to such termination.

ARTICLE IX

FINANCING ARRANGEMENTS; CONVEYANCES; ASSIGNMENTS

Section 9.01. Conveyance of Liens and Interests; Assignment. The Company may

at any time: (a) transfer all or any of its rights and interests hereunder or with respect to the Project

to any Person; or (b) enter into any lending, financing, security, or similar arrangement or

succession of such arrangements with any financing entity with respect to the Agreement or the

Project, including without limitation any sale, leaseback, or other financing lease arrangement;

provided that, in connection with any of the foregoing transfers: (i) except in connection with any

transfer to another member of the Controlled Group, any of the Company Affiliates (collectively,

the “Related Entities”), or transfers pursuant to clause (b) above (as to which such transfers the

County hereby consents), the Company shall first obtain the prior written consent or subsequent

ratification of the County; (ii) except where a financing entity, which is the income tax owner of

all or part of the Project, is the transferee pursuant to clause (b) above and such transferee or

financing entity assumes in writing the obligations of the Company hereunder, or where the

County consents in writing, no such transfer shall affect or reduce any of the obligations of the

Company hereunder, but all obligations of the Company hereunder shall continue in full force

and effect as the obligations of a principal and not of a guarantor or surety; (iii) the Company,

transferee, or financing entity shall, within 60 days thereof, furnish or cause to be furnished to the

County and the Department of Revenue a true and complete copy of any such transfer agreement;

and (iv) the Company and the transferee shall comply with all other requirements of the Transfer

Provisions. The County agrees that, to the extent allowed by law, any consent hereunder (such

consent shall be in the sole discretion of the County) may be approved and evidenced by a

resolution of County Council.

The Company acknowledges that such a transfer of an interest under this Agreement or in

the Project may cause the Project to become ineligible for a Negotiated FILOT or result in penalties

under the Act absent compliance by the Company with the Transfer Provisions.

Section 9.02. Relative Rights of County and Financing Entities as Secured Parties.

The parties acknowledge the application of the provisions of Section 12-44-90 of the Act, and that

the County’s right to receive FILOT Payments hereunder shall be the same as its rights conferred

under Title 12, Chapter 49 and 54, among others, of the Code relating to the collection and

enforcement of ad valorem property taxes. The County’s rights under this Agreement, except for

its rights to receive FILOT revenues, shall be subordinate to the rights of any secured party or

parties under any financing arrangements undertaken by the Company with respect to the Project

pursuant to Section 9.01 hereof, such subordination to be effective without any additional action

on the part of the County; provided, however, that the County hereby agrees, at the Company’s

expense, to execute such agreements, documents, and instruments as may be reasonably required

by such secured party or parties to effectuate or document such subordination.

5.1.b

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ARTICLE X

TERM; TERMINATION

Section 10.01. Term. Unless sooner terminated pursuant to the terms and

provisions herein contained, this Agreement shall be and remain in full force and effect for a term

commencing on the date on which the Company executes this Agreement, and ending at midnight

on the last day of the property tax year in which the last Negotiated FILOT Payment is due

hereunder. The Project has a term of twenty (20) years, as calculated pursuant to the respective

dates when the relevant portions of the Project are placed in service, and as discussed in greater

detail in this Agreement. The County’s rights to receive indemnification and payment of

Administration Expenses pursuant hereto shall survive the expiration or termination of this

Agreement.

Section 10.02. Termination. The County and the Company may agree in writing to

terminate this Agreement at any time, or the Company, may, at its option, terminate this Agreement

at any time upon providing the County thirty (30) days’ written notice of such termination, in

which event the Project shall be subject to ad valorem taxes from the date of termination.

ARTICLE XI

EVENTS OF DEFAULT AND REMEDIES

Section 11.01. Events of Default by Company. Any one or more of the following

events (herein called an “Event of Default”, or collectively “Events of Default”) shall constitute

an Event of Default by the Company:

(a) if default shall be made in the due and punctual payment of any FILOT

Payments, indemnification payments, or Administration Expenses, which default shall not

have been cured within thirty (30) days following receipt of written notice thereof from the

County;

(b) if default shall be made by the Company in the due performance of or

compliance with any of the terms hereof, including payment, other than those referred to

in the foregoing paragraph (a), and such default shall continue for ninety (90) days after

the County shall have given the Company written notice of such default, provided, the

Company shall have such longer period of time as necessary to cure such default if the

Company proceeds promptly to cure such default and thereafter to prosecute the curing of

such default with due diligence; or

(c) a cessation of operations at the Project.

Section 11.02. Remedies on Event of Default by Company. Upon the occurrence

of any Event of Default, the County may exercise any of the following remedies, any of which

may be exercised at any time during the periods permitted under the following clauses:

(a) terminate this Agreement by delivery of written notice to the Company not

less than thirty (30) days prior to the termination date specified therein;

5.1.b

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(b) have access to and inspect, examine, and make copies of the books, records,

and accounts of the Company pertaining to the construction, acquisition, or maintenance

of the Project; or

(c) take whatever action at law or in equity as may appear necessary or

desirable to collect the amounts then due and thereafter to become due or to enforce

observance or performance of any covenant, condition, or agreement of the Company

under this Agreement.

Section 11.03. Default by County. Upon the default of the County in the

performance of any of its obligations hereunder, the Company may take whatever action at law or

in equity as may appear necessary or desirable to enforce its rights under this Agreement, including

without limitation, a suit for mandamus or specific performance. Provided, however, that anything

herein to the contrary notwithstanding, any financial obligation the County may incur hereunder,

including for the payment of money, shall not be deemed to constitute a pecuniary liability or a

debt or general obligation of the County.

ARTICLE XII

MISCELLANEOUS

Section 12.01. Rights and Remedies Cumulative. Each right, power, and remedy

of the County or of the Company provided for in this Agreement shall be cumulative and

concurrent and shall be in addition to every other right, power or remedy provided for in this

Agreement or now or hereafter existing at law or in equity, in any jurisdiction where such rights,

powers and remedies are sought to be enforced; and the exercise by the County or by the Company

of any one or more of the rights, powers or remedies provided for in this Agreement or now or

hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous

or later exercise by the County or by the Company of any or all such other rights, powers or

remedies.

Section 12.02. Successors and Assigns. The terms and provisions of this

Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective

successors and assigns as permitted hereunder.

Section 12.03. Notices; Demands; Requests. All notices, demands and requests to

be given or made hereunder to or by the County or the Company shall be in writing and shall be

deemed to be properly given or made if sent by United States first class mail, postage prepaid or

via facsimile or other commonly-used electronic transmission or reputable courier service,

addressed as follows or to such other persons and places as may be designated in writing by such

party.

(a) As to the County:

Berkeley County, South Carolina

Attn: Economic Development Director

1003 Highway 52

P.O. Box 6122

5.1.b

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Moncks Corner, South Carolina 29461

Phone: (843) 719-4096

With a copy to (which shall not constitute notice):


Attn: Berkeley County Attorney

Post Office Box 6122


Phone: (843) 719-4010

(b) As to the Company:

DuPont Specialty Products USA, LLC

Attn: Leslie Fisher (State and Local Tax)

P.O. Box 2899

Wilmington, Delaware, 19805

With a copy to:

Haynsworth Sinkler Boyd, P.A.

Attn: Will Johnson

P.O. Box 11889

Columbia, SC 29211

Section 12.04. Applicable Law. This Agreement shall be governed by and

construed in accordance with the laws of the State of South Carolina.

Section 12.05. Entire Understanding. This Agreement expresses the entire

understanding and all agreements of the parties hereto with each other, and neither party hereto

has made or shall be bound by any agreement or any representation to the other party which is not

expressly set forth in this Agreement or in certificates delivered in connection with the execution

and delivery hereof.

Section 12.06. Severability. In the event that any clause or provisions of this

Agreement shall be held to be invalid by any court of competent jurisdiction, the invalidity of such

clause or provision shall not affect any of the remaining provisions hereof.

Section 12.07. Headings and Table of Contents:, References. The headings of the

Agreement and any Table of Contents annexed hereto are for convenience of reference only and

shall not define or limit the provisions hereof or affect the meaning or interpretation hereof. All

references in this Agreement to particular articles or Sections or paragraphs of this Agreement are

references to the designated articles or Sections or paragraphs of this Agreement.

5.1.b

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Section 12.08. Multiple Counterparts. This Agreement may be executed in

multiple counterparts, each of which shall be an original but all of which shall constitute one and

the same instrument.

Section 12.09. Amendments. Subject to the limitations set forth in the Act, this

Agreement may be amended, or the rights and interest of the parties hereunder surrendered, only

by a writing signed by both parties.

Section 12.10. Waiver. Either party may waive compliance by the other party with

any term or condition of this Agreement only in a writing signed by the waiving party.

Section 12.11. Force Majeure. The Company shall not be responsible for any

delays or non-performance caused in whole or in part, directly or indirectly, by strikes, accidents,

freight embargoes, labor shortages, fire, floods, inability to obtain materials, conditions arising

from government orders or regulations, war or national emergency, acts of God, and any other

cause, similar or dissimilar, beyond the Company's reasonable control.

[SIGNATURE PAGE TO FOLLOW]

5.1.b

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IN WITNESS THEREOF, the parties hereto, each after due authorization, have executed

this Fee-in-Lieu of Tax Agreement to be effective as of the ____ day of _____________, 2021.


(SEAL) By:

Name: John P. Cribb

Title: Supervisor/Chairman, Berkeley County

Council

ATTEST:

By:

Name: Shelley R. Forest

Title: Interim Clerk to Berkeley County Council

DUPONT USA SPECIALTY PRODUCTS, LLC

By:

Name:

Title:

5.1.b

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EXHIBIT A

PROPERTY DESCRIPTION

Dupont Cooper River Site

3300 Cypress Gardens Road, Moncks Corner, SC 29461-6429

All that piece, parcel or tract of land measuring and containing at least 48.661 acres, situated in

Berkeley County, South Carolina, with the following tax map numbers:

• 2260000002

• 2260000003

• 2260000007

• 2260000008

• 2260000004

• 2260000001

• 1620002004

• 2260000005

• 2120001009

• 2260000006

Further described as follows:

BEGINNING AT CONCRETE MONUMENT FOUND, SAID POINT BEING THE POINT OF

BEGINNING;

THENCE S84°04'07"W, A DISTANCE OF 61.11 FEET TO A FOUND CONCRETE

MONUMENT;

THENCE CONTINUE WESTERLY ALONG SAID LINE, A DISTANCE OF 1,036.56 FEET

TO A FOUND CONCRETE MONUMENT;

THENCE CONTINUE WESTERLY ALONG SAID LINE, A DISTANCE OF 1,746.39 FEET

TO A FOUND CONCRETE MONUMENT;

THENCE S83°58'07"W, A DISTANCE OF 1,250.47 FEETTO A FOUND IRON ROD;

THENCE N20°30'47"E, A DISTANCE OF 403.76 FEET TO A FOUND CONCRETE

MONUMENT;

5.1.b

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THENCE N20°29'48"E, A DISTANCE OF 529.45 FEETTO A FOUND IRON ROD;

THENCE N14°48'12"W, A DISTANCE OF 800.00 FEET;

THENCE N08°14'12"W, A DISTANCE OF 429.80 FEET TO A CONCRETE MONUMENT;

THENCE N56°45'40"W, A DISTANCE OF 105.47 FEET TO A FOUND CONCRETE

MONUMENT;

THENCE N33°23'51"E, A DISTANCE OF 170.12 FEET;












THENCE WESTERLY, A DISTANCE OF 709.41 FEET ALONG A NON TANGENT CURVE

TO THE RIGHT OF WHICH THE RADIUS POINT LIES N01°57'58"W A RADIUS OF

1,920.89 FEET, AND HAVING A CENTRAL ANGLE OF 21°09'36";




THENCE N06°32'02"E, A DISTANCE OF 4,274.30 FEET;

5.1.b

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THENCE NORTHERLY, A DISTANCE OF 1,206.06 FEET ALONG A NON TANGENT

CURVE TO THE RIGHT OF WHICH THE RADIUS POINT LIES S83°27'46"E A RADIUS

OF 2,737.80 FEET, AND HAVING A CENTRAL ANGLE OF 25°14'24";


THENCE S58°13'09"E, A DISTANCE OF 225.00 FEET;




THENCE NORTHEASTERLY, A DISTANCE OF 584.43 FEET ALONG A NON TANGENT

CURVE TO THE RIGHT OF WHICH THE RADIUS POINT LIES S58°13'10"E A RADIUS

OF 2,704.80 FEET, AND HAVING A CENTRAL ANGLE OF 12°22'48";


TO A POINT ON THE WEST BANK OF THE COOPER RIVER

THENCE CONTINUING ALONG THE WEST BANK OF THE COOPER RIVER THE

FOLLOWING COURSES AND DISTANCES

S12°53'E, A DISTANCE OF 557 FEET;




S32°40’E, A DISTANCE OF 835 FEET;


N84°27'E, A DISTANCE OF 1,036 FEET;




S10°59'W, A DISTANCE OF 228 FEET;

S39°50'W, A DISTANCE OF 1,056 FEET;










N85°04'E, A DISTANCE OF 910 FEET;

5.1.b

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S01°23"W, A DISTANCE OF 495 FEET;

S07°38’W, A DISTANCE OF 257 FEET;

S14°09’W, A DISTANCE OF 1307 FEET;






N73°40'W, A DISTANCE OF 322 FEET;


N56°14'W, A DISTANCE OF 1,103 FEET;






S28°12'E, A DISTANCE OF 1,208 FEET;





THENCE S00°52'07"E, A DISTANCE OF 37.33 FEET

THENCE S84°04'07"W, A DISTANCE OF 1,150.00 FEET TO THE POINT OF BEGINNING.

CONTAINING 87,670,012 SQUARE FEET OR 2,012.63 ACRES, MORE OR LESS.

5.1.b

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Bill No. 21-21, FILOT with Kloeckner Metal Corp (Project Coil)

4806

STAFF SUMMARY


Topic: BILL NO. 21-21, AN ORDINANCE AUTHORIZING THE EXECUTION AND DELIVERY OF A FEE-IN-LIEU OF TAX AGREEMENT BY AND BETWEEN BERKELEY COUNTY AND KLOECKNER METALS CORPORATION, A COMPANY PREVIOUSLY IDENTIFIED AS PROJECT COIL (THE “COMPANY”) WHEREBY BERKELEY COUNTY WILL ENTER INTO A FEE-IN-LIEU OF TAX AGREEMENT WITH THE COMPANY AND PROVIDING FOR PAYMENT BY THE COMPANY OF CERTAIN FEES-IN-LIEU OF AD VALOREM TAXES; PROVIDING FOR THE BENEFITS OF A MULTI-COUNTY INDUSTRIAL OR BUSINESS PARK; PROVIDING FOR THE ALLOCATION OF FEES-IN-LIEU OF TAXES PAYABLE UNDER THE AGREEMENT FOR THE ESTABLISHMENT OF A MULTI-COUNTY INDUSTRIAL/BUSINESS PARK; AND OTHER MATTERS RELATING THERETO.

Prepared by: Suzanne Burckhalter, Clerk to Council Date: 3/16/2021 9:14 AM

Fiscal Impact:

Attachments:

FILOT with Kloeckner Metals Corporation - Ordinance (DOCX)

FILOT with Kloeckner Metals Corporation - Agreement (DOCX)

5.2

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Bill No. 21-21, FILOT with Kloeckner Metal Corp (Project Coil)

4806

BILL NO. 21-21, AN ORDINANCE AUTHORIZING THE EXECUTION AND DELIVERY OF A FEE-IN-LIEU OF TAX AGREEMENT BY AND BETWEEN BERKELEY COUNTY

AND KLOECKNER METALS CORPORATION, A COMPANY PREVIOUSLY IDENTIFIED AS PROJECT COIL (THE “COMPANY”) WHEREBY BERKELEY

COUNTY WILL ENTER INTO A FEE-IN-LIEU OF TAX AGREEMENT WITH THE COMPANY AND PROVIDING FOR PAYMENT BY THE COMPANY OF CERTAIN

FEES-IN-LIEU OF AD VALOREM TAXES; PROVIDING FOR THE BENEFITS OF A MULTI-COUNTY INDUSTRIAL OR BUSINESS PARK; PROVIDING FOR THE

ALLOCATION OF FEES-IN-LIEU OF TAXES PAYABLE UNDER THE AGREEMENT FOR THE ESTABLISHMENT OF A MULTI-COUNTY INDUSTRIAL/BUSINESS PARK;

AND OTHER MATTERS RELATING THERETO.

5.2

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Bill No. 21-21

ORDINANCE NO.

AN ORDINANCE AUTHORIZING THE EXECUTION AND DELIVERY

OF A FEE-IN-LIEU OF TAX AGREEMENT BY AND BETWEEN

BERKELEY COUNTY AND KLOECKNER METALS CORPORATION, A

COMPANY PREVIOUSLY IDENTIFIED AS PROJECT COIL (THE

“COMPANY”) WHEREBY BERKELEY COUNTY WILL ENTER INTO A

FEE-IN-LIEU OF TAX AGREEMENT WITH THE COMPANY AND

PROVIDING FOR PAYMENT BY THE COMPANY OF CERTAIN FEES-

IN-LIEU OF AD VALOREM TAXES; PROVIDING FOR THE BENEFITS

OF A MULTI-COUNTY INDUSTRIAL OR BUSINESS PARK;

PROVIDING FOR THE ALLOCATION OF FEES-IN-LIEU OF TAXES

PAYABLE UNDER THE AGREEMENT FOR THE ESTABLISHMENT OF

A MULTI-COUNTY INDUSTRIAL/BUSINESS PARK; AND OTHER

MATTERS RELATING THERETO.

WHEREAS, Berkeley County, South Carolina (the “County”) would like to enter into a

Fee-in-Lieu of Tax Agreement with Kloeckner Metals Corporation, a corporation organized and

existing under the laws of the State of Delaware and previously identified as Project Coil, acting

for itself, one or more affiliates, and/or other project sponsors (collectively, the “Company”), as

the Company has expressed its intent to the County to make, or cause to be made, a capital

investment in Berkeley County and to hire, or cause to be hired, full time employees in Berkeley

County through the establishment of certain manufacturing and related facilities in the County (the

“Project”); and

WHEREAS, as a result of the Company’s desire to undergo the Project, the Company has

asked the County to enter into a Fee-in-Lieu of Tax Agreement by and between the County and

the Company dated as of ________________, 2021 (the “FILOT Agreement”) in order to

encompass the terms of the Project; and

WHEREAS, the County, acting by and through its County Council (the “County Council”)

is authorized and empowered under and pursuant to the provisions of Title 12, Chapter 44 of the

Code of Laws of South Carolina 1976, as amended (the “FILOT Act”), to designate real and

tangible personal property as “economic development property” and to enter into an arrangement

which provides for payments-in-lieu of taxes (“Negotiated FILOT Payments”) for a project

qualifying under the FILOT Act; and

WHEREAS, the County, acting by and through the County Council, is further authorized

and empowered under and pursuant to the provisions of Title 4, Chapter 1 of the Code of Laws of

South Carolina 1976, as amended (collectively, the “MCIP Act”) to provide for payments-in-lieu

of taxes (“FILOT Payments”) with respect to property located in a multi-county business or

industrial park created under the MCIP Act and to create, in conjunction with one or more other

counties, a multi-county park in order to afford certain enhanced tax credits to such investors; and

5.2.a

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WHEREAS, the Company proposes to develop a facility in Berkeley County by acquiring,

constructing, equipping and furnishing machinery, equipment and other real and personal property

(the “Negotiated FILOT Project”), which the Company has represented will likely consist of a

capital investment of at least $17,900,000 and the creation of employment for approximately 4

new, full time employees; and

WHEREAS, the Negotiated FILOT Project is located entirely within Berkeley County and

will be included in and subject to the multi-county park and fee-in-lieu of tax arrangements as

described herein; and

WHEREAS, the County has made specific proposals, including proposals to offer certain

economic development incentives set forth herein, for the purpose of inducing the Company to

invest its funds to acquire and equip the Negotiated FILOT Project (the “Incentives”); and

WHEREAS, it is in the public interest, for the public benefit and in furtherance of the

public purposes of the FILOT Act and the MCIP Act that the County Council provide approval for

qualifying the Negotiated FILOT Project under the FILOT Act and the entire Negotiated FILOT

Project under the MCIP Act for the Incentives; and

WHEREAS, in accordance with such findings and determinations, and in order to induce

the Company to locate the Project in the County, the Council is enacting this Ordinance, which

Ordinance is also intended to serve as an “inducement resolution” for the purposes of Section 12-

44-30(11) of the FILOT Act.

NOW, THEREFORE, BE IT ORDAINED by the County Council as follows:

Section 1. Evaluation of the Negotiated FILOT Project. County Council has evaluated the

Negotiated FILOT Project on the following criteria based upon the advice and assistance of the

South Carolina Department of Commerce and the South Carolina Department of Revenue:

(a) whether the purposes to be accomplished by the Negotiated FILOT Project are

proper governmental and public purposes; and

(b) the anticipated dollar amount and nature of the investment to be made; and

(c) the anticipated costs and benefits to the County.

Section 2. Findings by County Council. Based upon information provided by and

representations of the Company, County Council’s investigation of the Negotiated FILOT Project,

including the criteria described in Section 1 above, and the advice and assistance of the South

Carolina Department of Commerce and the South Carolina Department of Revenue, as required,

County Council, pursuant to the FILOT Act and particularly Section 12-44-40(I) thereof, hereby

finds that:

(a) the Negotiated FILOT Project continues to constitute a “project” as that term is

defined in the FILOT Act; and

5.2.a

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(b) the Negotiated FILOT Project will continue to serve the purposes of the FILOT

Act; and

(c) the investment by the Company in the Negotiated FILOT Project is anticipated to

be at least $17,900,000 to be invested within five (5) years from the end of the

property tax year in which initial property comprising all or a portion of the

Negotiated FILOT Project is placed in service pursuant to the FILOT Agreement

(as defined herein); and

(d) the Negotiated FILOT Project will be located entirely within the County; and

(e) the Negotiated FILOT Project will benefit the general public welfare of the County

by providing services, employment, recreation or other public benefits not

otherwise adequately provided locally; and

(f) the Negotiated FILOT Project will not give rise to a pecuniary liability of the

County or any municipality nor a charge against its general credit or taxing power

of the County or any municipality; and

(g) the purposes to be accomplished by the Negotiated FILOT Project are proper

governmental and public purposes; and

(h) the inducement of the location of the Negotiated FILOT Project is of paramount

importance; and

(i) the benefits of the Negotiated FILOT Project to the public are greater than the costs

to the public.

Section 3. Fee-in-Lieu of Taxes Arrangement. Pursuant to the authority of the FILOT Act,

the Negotiated FILOT Project is designated as “economic development property” under the FILOT

Act and there is hereby authorized a fee-in-lieu of taxes arrangement with the Company which will

provide for Negotiated FILOT Payments to be made with respect to the Negotiated FILOT Project

based upon a 6% assessment ratio and a millage rate of 273.7 mills, all in accordance with the FILOT

Act and as more fully set forth in the FILOT Agreement.

Section 4. Execution of the FILOT Agreement. The form, terms and provisions of the

FILOT Agreement presented to this meeting and filed with the Clerk of the County Council be

and hereby are approved, and all of the terms, provisions and conditions thereof are hereby

incorporated herein by reference as if such FILOT Agreement were set out in this Ordinance in its

entirety. The Supervisor/Chairman of the County Council and the Clerk of the County Council be

and they are hereby authorized, empowered and directed to execute, acknowledge and deliver the

FILOT Agreement in the name and on behalf of the County, and thereupon to cause the FILOT

Agreement to be delivered to the Company. The FILOT Agreement is to be in substantially the

form now before this meeting and hereby approved, or with any changes therein as shall not

materially adversely affect the rights of the County thereunder and as shall be approved by the

5.2.a

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County Attorney and the officials of the County executing the same, their execution thereof to

constitute conclusive evidence of their approval of all changes therein from the form of FILOT

Agreement now before this meeting.


(a) the Supervisor/Chairman of the County Council and all other appropriate officials of

the County are hereby authorized to execute, deliver and receive any other agreements

and documents as may be required by the County in order to carry out, give effect to

and consummate the transactions authorized by this Ordinance; and

(b) this Ordinance shall be construed and interpreted in accordance with the laws of the

State of South Carolina; and

(c) this Ordinance shall become effective immediately upon approval following third

reading by the County Council; and

(d) the provisions of this Ordinance are hereby declared to be severable and if any section,

phrase or provision shall for any reason be declared by a court of competent

jurisdiction to be invalid or unenforceable, that declaration shall not affect the validity

of the remainder of the sections, phrases and provisions hereunder; and

(e) all ordinances, resolutions and parts thereof in conflict herewith are, to the extent of

the conflict, hereby repealed.

Section 7. Allocation of MCIP FILOT Revenues.

(a) By separate ordinance of the County Council, the County, in cooperation with an

adjacent county, shall use its best efforts to designate the site of the Negotiated FILOT

Project as a multi-county park pursuant to Article VIII, Section 13 of the Constitution

of South Carolina, the MCIP Act, and the terms of a qualifying multi-county

industrial/business park agreement (the “MCIP Agreement”). In the FILOT

Agreement, the County will agree to use its best efforts to maintain such designation

for a term of at least 10 years.

(b) Pursuant to the terms of the MCIP Act and the MCIP Agreement, the County hereby

provides that for 10 years, commencing with the first year in which property that is a

part of the Negotiated FILOT Project will be placed in service, the annual allocation

of the fee-in-lieu of ad valorem taxes payable to the County in accordance with the

terms of the MCIP Agreement, after deducting any amounts distributed to the partner

county, will be distributed to the County and the other overlapping taxing entities, as

set forth in greater detail in the MCIP Agreement and the related implementing

ordinances of the County.


5.2.a

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ORDAINED this ____ day of _____, 2021.


[SEAL]

_______________________________________



ATTEST:

__________________________________

Shelley R. Forest

Interim Clerk to Berkeley County Council


__________________________________


Berkeley County Attorney

First Reading: March 22, 2021

Second Reading:

Public Hearing:

Third Reading:

5.2.a

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by and between


and

KLOECKNER METALS CORPORATION

Dated as of ______________, 2021

5.2.b

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THIS FEE-IN-LIEU OF TAX AGREEMENT is dated as of ___________, 2021, by and

between BERKELEY COUNTY, SOUTH CAROLINA, a body politic and corporate and a

political subdivision of the State of South Carolina (the “County”) and KLOECKNER METALS

CORPORATION, a corporation organized and existing under the laws of the State of Delaware

and previously identified as Project Coil, acting for itself, one or more affiliates, and/or other

project sponsors (collectively, the “Company”).

WITNESSETH:

WHEREAS, the County, acting by and through its County Council (the “Council”), is

authorized and empowered under and pursuant to the provisions of Title 12, Chapter 44 (the “Act”)

of the Code of Laws of South Carolina 1976, as amended (the “Code”) and Title 4, Chapter 1 of

the Code (the “Multi-County Park Act”): (i) to enter into agreements with certain investors to

construct, operate, maintain, and improve certain industrial and commercial properties through

which the economic development of the State of South Carolina will be promoted and trade

developed by inducing manufacturing and commercial enterprises to locate and remain in the State

of South Carolina and thus utilize and employ the manpower, agricultural products, and natural

resources of the State; (ii) to covenant with such investors to accept certain payments in lieu of ad

valorem taxes with respect to the project (a “FILOT”); and (iii) to maintain, create or expand, in

conjunction with one or more other counties, a multi-county industrial park in order to afford

certain enhanced income tax credits to such investors; and

WHEREAS, the Company proposes to expand certain manufacturing and related

operations in the County (the “Project”); and

WHEREAS, the Company anticipates that the Project will result in the creation of

approximately 4 new, full time jobs and an investment of at least $4,540,000 in real property in

the County and at least $13,360,000 in personal property in the County; and

WHEREAS, the Council approved an Ordinance enacted on _________ __, 2021

authorizing the County to enter into this Agreement with the Company; and

WHEREAS, as a result of the Company contemplating locating the Project in the County,

the Company requested that the County complete the FILOT arrangement referred to in that certain

Ordinance referred to above and approved by County Council on ____________, 2021 by entering

into this Fee-in-Lieu of Tax Agreement with the Company pursuant to the Act, and the Company

elects to enter into such FILOT arrangement with the County in an effort to encompass the terms

surrounding the Project and allowing the Company to make FILOT payments pursuant to the Act;

and

WHEREAS, for the Project, the parties have also determined that the Company is a Project

Sponsor and that the Project constitutes Economic Development Property within the meaning of

the Act; and

5.2.b

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WHEREAS, this Fee-in-Lieu of Tax Agreement by and between the County and the

Company and dated as of ______________, 2021 is referred to herein as the “Agreement”; and

WHEREAS, for the purposes set forth above, the County has determined that it is in the

best interests of the County to enter into this Agreement with the Company, subject to the terms

and conditions herein set forth.

NOW, THEREFORE, in consideration of the respective representations and agreements

hereinafter contained, and the sum of $10.00 in hand, duly paid by the Company to the County,

the receipt and sufficiency of which are hereby acknowledged, the County and the Company agree

as follows:

ARTICLE I

DEFINITIONS AND RECAPITULATION

Section 1.01. Statutorily Required Recapitulation.

(a) Pursuant to Section 12-44-55(B) of the Act, the County and the Company

agree to waive the recapitulation requirements of Section 12-44-55 of the Act, except as

expressly provided in paragraph (b) below, to the extent that and so long as the Company

timely provides the County with copies of all filings required by the Act to be made by the

Company with regard to the Project. If the Company should be required to retroactively

comply with all of the recapitulation requirements of Section 12-44-55 of the Act, then the

County agrees, to the extent permitted by law, to waive all penalties of the County for the

Company’s noncompliance that are within the County’s control.

(b) Recapitulation.

1. Legal name of each initial party to this Agreement:

Kloeckner Metals Corporation and Berkeley County, South

Carolina

2. County and street address of the project and property to be subject

to this Agreement:

[to be updated]

3. Minimum investment agreed upon:

$4,540,000 (real property)

$13,360,000 (personal property)

4. Length and term of this Agreement:

10 years for each annual increment of investment in the Project

during the Investment Period.

5. Assessment ratio applicable for each year of this Agreement:

6%

5.2.b

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6. Millage rate applicable for each year of this Agreement:

Every year of the term: 273.7 mills

7. Schedule showing the amount of the fee and its calculation for

each year of this Agreement:


8. Schedule showing the amount to be distributed annually to each of

the affected taxing entities:


9. Statements:

(a) The Project is to be located in a multi-county park;

(b) Disposal of Project property, subject to FILOT payments is

allowed;

(c) FILOT payments will not be modified using a net present

value calculation; and

(d) Replacement property provisions will apply.

10. Any other feature or aspect of this Agreement which may affect the

calculation of items (7) and (8) of this Recapitulation.


11. Description of the effect upon the schedules required by items (7)

and (8) of this Recapitulation of any feature covered by items (9)

and (10) not reflected in the schedules for items (7) and (8)


12. Which party or parties to this Agreement are responsible for

updating any information contained in this Recapitulation:

The Company

Section 1.02. Definitions. In addition to the words and terms elsewhere defined in

this Agreement, the following words and terms as used herein and in the preambles hereto shall

have the following meanings, unless the context or use indicates another or different meaning or

intent.

“Act” or “Simplified FILOT Act” shall mean Title 12, Chapter 44 of the Code, as amended

through the date hereof.

“Administration Expense” shall mean the reasonable and necessary expenses actually

incurred by the County with respect to this Agreement and the Multi-County Park Agreement,

including without limitation reasonable and actual attorneys’ fees (such attorneys’ fees will not

exceed $5,000 without prior written consent of the Company), but excluding any expenses incurred

by the County in defending either challenges to the incentives provided herein by third parties or

suits brought by the Company under Section 11.03 hereof; provided, however, that no such

expense shall be considered an Administration Expense until the County has furnished to the

5.2.b

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Company a statement in writing indicating the amount of such expense and the reason it has been

or will be incurred.

“Affiliate” shall mean any person or entity directly or indirectly controlling, controlled by,

or under common control with such other person or entity. For purposes of this definition,

“control” means the possession, directly or indirectly, of the power to direct or cause the direction

of the management and policies of the person or entity, whether through the ownership of voting

securities, by contract, or otherwise.

“Agreement” shall mean this Fee-in-Lieu of Tax Agreement by and among the County and

the Company, as originally executed and from time to time supplemented or amended as permitted

herein, and dated as of _______________, 2021.

“Code” shall mean the Code of Laws of South Carolina 1976, as amended through the date

hereof, unless the context clearly requires otherwise.

“Company” shall mean Kloeckner Metals Corporation, a corporation organized and

existing under the laws of the State of Delaware and previously identified as Project Coil, and any

surviving, resulting, or transferee entity in any merger, consolidation, or transfer of assets

permitted under Section 8.02 or Article IX hereof; or any assignee hereunder which is designated

by the Company and approved or ratified by the County. Except as required by law, the County’s

subsequent approval or ratification of an assignee hereunder shall not be required if the subsequent

assignee is a member of the Controlled Group.

“Company Affiliate” shall mean any Affiliate of the Company which would qualify as a

sponsor affiliate within the meaning of that term as defined and used in Section 12-44-30(20) of

the Code; provided, however, that such Affiliate must be specifically approved by the County as a

sponsor affiliate and must agree in writing to be bound by this Agreement as to any investment by

such sponsor affiliate to be subject to FILOT Payments hereunder.

“Controlled Group” shall mean the Company and all Company Affiliates.

“County” shall mean Berkeley County, South Carolina, a body politic and corporate and a

political subdivision of the State of South Carolina, and its successors and assigns.

“County Council” shall mean the governing body of the County and its successors.

“Department of Revenue” shall mean the South Carolina Department of Revenue.

“Economic Development Property” shall mean each item of real and tangible personal

property comprising the Project, except Non-Qualifying Property, within the meaning of that term

as defined and used in Sections 12-44-30(6) and 12-44-40(C) of the Code.

“Equipment” shall mean all machinery, equipment, furnishings, and other personal

property acquired by the Controlled Group and installed as part of the Project during the

Investment Period in accordance with this Agreement.

“Event of Default” shall mean an Event of Default as defined in Section 11.01 hereof.

5.2.b

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“Existing Property” shall mean property proscribed from becoming Economic

Development Property pursuant to Section 12-44-110 of the Code, including, without limitation,

property which has been subject to ad valorem taxes in the State prior to the execution and delivery

of this Agreement and property included in the Project as part of the repair, alteration, or

modification of such previously taxed property; provided, however, that Existing Property shall

not include: (a) property acquired or constructed by any member of the Controlled Group during

the Investment Period which has not been placed in service in this State prior to the Investment

Period notwithstanding that ad valorem taxes have heretofore been paid with respect to such

property; or (b) property which has been placed in service in the State pursuant to an inducement

agreement or other preliminary approval by the County prior to the execution of this Agreement

pursuant to Section 12-44-40(E) of the Code, which property shall qualify as Economic

Development Property; (c) modifications which constitute an expansion of Existing Property.

“FILOT” shall mean the fee-in-lieu of taxes, which the Company and/or any Company

Affiliate is obligated to pay to the County pursuant to Section 5.01 hereof.

“FILOT Payments” shall mean the payments to be made by the Company and/or any

Company Affiliate pursuant to Section 5.01 hereof.

“FILOT Revenues” shall mean the revenues received by the County from payment of the

FILOT by the Company and/or any Company Affiliate.

“Indemnified Parties” shall have the meaning ascribed thereto in Section 8.03 hereof.

“Investment Period” shall mean, initially, the period beginning with the first day that the

Controlled Group purchased or purchases Economic Development Property, whether before or

after the date of this Agreement, and ending on the date that is five years from the end of the

property tax year in which the initial Economic Development Property comprising all or a portion

of the Project is placed in service, unless extended by written agreement of the County and the

Company, all in accordance with Section 12-44-30(13) of the Code.

“Investment Requirement” shall mean the minimum investment the Controlled Group shall

make in the Project to receive the incentives described herein, as such term is defined in Section

4.01 hereof.

“Land” shall mean the real estate upon which the Project is to be located, as described in

Exhibit A attached hereto, as Exhibit A may be revised, modified, or supplemented from time to

time in accordance with the provisions hereof.

“Multi-County Park” shall mean the multi-county industrial/business park established

pursuant to a qualifying agreement with Williamsburg County, dated April 24, 1995, as amended

(the “Multi-County Park Agreement”).

“Multi-County Park Act” shall mean Title 4, Chapter 1 of the Code, as amended through

the date hereof.

5.2.b

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“Negotiated FILOT” or “Negotiated FILOT Payment” shall mean the FILOT payments due

pursuant to Section 5.01(b) hereof with respect to that portion of the Project consisting of

Economic Development Property.

“Non-Qualifying Property” shall mean that portion of the Project, if any, consisting of: (i)

property as to which the Company or any members of the Controlled Group incurred expenditures

prior to the Investment Period or, except as to Replacement Property, after the end of the

Investment Period; (ii) Existing Property; and (iii) any Released Property or other property which

fails or ceases to qualify for Negotiated FILOT Payments, including without limitation property

as to which the Company has terminated the Negotiated FILOT pursuant to Section 4.03(a)(iii)

hereof. [The Company agrees that the real estate improvements on the Land as of the date

of this Agreement shall constitute Non-Qualifying Property for purposes of this Agreement.]

“Person” shall mean and include any individual, association, unincorporated organization,

corporation, partnership, limited liability company, joint venture, or government or agency or

political subdivision thereof.

“Project” shall mean, collectively herein, the Project, and shall include the buildings and

other improvements on the Land to the extent placed thereon by the Company or any member of

the Controlled Group including water, sewer treatment and disposal facilities, and other

machinery, apparatus, equipment, office facilities, and furnishings which are necessary, suitable,

or useful, including, without limitation, the Equipment; and any Replacement Property.

“Real Property Investment” shall have the meaning ascribed thereto in Section 4.01 hereof.

“Released Property” shall mean any portion of the Project removed, scrapped, traded in,

sold, or otherwise disposed of pursuant to Section 4.03 hereof, any portion of the Project stolen,

damaged, destroyed, or taken by condemnation or eminent domain proceedings as described in

Article VII hereof, and any infrastructure which the Company dedicates to the public use (within

the meaning of that phrase as used in Section 12-6-3420(C) of the Code).

“Replacement Property” shall mean all property placed in service in or on the Land in

substitution of, or as replacement for, any portion of the Project, but only to the extent that such

property may be included in the calculation of the Negotiated FILOT pursuant to Section 5.01(f)

hereof and Section 12-44-60 of the Code.

“Simplified FILOT Act” shall mean Title 12, Chapter 44 of the Code, as amended through

the date hereof.

“State” shall mean the State of South Carolina.

“Streamlined FILOT Act” shall mean Title 4, Chapter 12 of the Code, as amended through

the date hereof.

“Term” shall mean the term of this Agreement, as set forth in Section 10.01 hereof.

“Transfer Provisions” shall mean the provisions of Section 12-44-120 of the Code, as

amended through the date hereof.

5.2.b

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Section 1.03. References to Agreement. The words “hereof”, “herein”,

“hereunder”, and other words of similar import refer to this Agreement as a whole.

ARTICLE II

REPRESENTATIONS AND WARRANTIES

Section 2.01. Representations and Warranties by County. The County makes the

following representations and warranties as the basis for the undertakings on its part herein

contained:

(a) The County is a body politic and corporate and a political subdivision of the

State of South Carolina and is authorized and empowered by the provisions of the Act and

the Multi-County Park Act and to enter into the transactions contemplated by this

Agreement and to carry out its obligations hereunder.

(b) The County, based on representations of the Company, has determined that

the Project will serve the purposes of the Act, and has made all other findings of fact

required by the Act in order to designate the Project (other than the Non-Qualifying

Property) as Economic Development Property.

(c) By proper action of the County Council, the County has duly authorized the

execution and delivery of this Agreement and any and all actions necessary and appropriate

to consummate the transactions contemplated hereby.

(d) This Agreement has been duly executed and delivered on behalf of the

County.

(e) The County agrees to use its best faith efforts to cause the Land to be located

within the Multi-County Park, and the County will use its best faith efforts to ensure that

the Project will continuously be included within the boundaries of the Multi-County Park

or another multi-county park in order that the maximum tax benefits afforded by the laws

of the State for projects in the County located within multi-county industrial parks will be

available to the Company.

(f) The authorization, execution, and delivery of this Agreement and the

performance by the county of its obligations hereunder will not, to the best knowledge of

the County, conflict with or constitute a breach of, or a default under, any South Carolina

law, court or administrative regulation, decree, order, provision of the Constitution or laws

of the State relating to the establishment of the County or its affairs, or any material

agreement, mortgage, lease, or other instrument to which the County is subject or by which

it is bound, nor, to the best knowledge of the County any existing law or provisions of the

Constitution of the State.

(g) No actions, suits, proceedings, inquiries, or investigations known to the

undersigned representatives of the County are pending or threatened against or affecting

the County in any court or before any governmental authority or arbitration board or


5.2.b

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this Agreement.

Section 2.02. Representations and Warranties by Company. The Company makes

the following representations and warranties as the basis for the undertakings on its part herein

contained:

(a) The Company is a corporation validly existing and in good standing under

the laws of the State of Delaware and authorized to do business in the State; has all requisite

power to enter into this Agreement; and by proper action has been duly authorized to

execute and deliver this Agreement.

(b) The agreements with the County with respect to the FILOT and the Multi-

County Park have been instrumental in inducing the Company to locate the Project within

the County and the State.

(c) No actions, suits, proceedings, inquiries, or investigations known to the

undersigned representatives of the Company are pending or threatened against or affecting

the Company in any court or before any governmental authority or arbitration board or



this Agreement.

(d) For the Project, the Company hereby commits to satisfy, or cause the

satisfaction of, the Investment Requirement by the end of the Investment Period. [The

Investment Requirement shall not include any amount paid by the Company for real

estate improvements on the land existing as of the date of this Agreement.] The

Company agrees to satisfy, or cause the satisfaction of, and maintain, or cause the

maintenance of, the Real Property Investment throughout the entire term of the FILOT.

(e) If the Company fails to meet, or cause to be met by the Controlled Group,

the Investment Requirement, then this Agreement shall terminate and the Company and

any other Company Affiliate shall repay the benefits received for any of the previous years

constituting the Investment Period as if the Investment Requirement was not met.

(f) The income tax year of the Company, and accordingly the property tax year,

for federal income tax purposes is __________________.

(g) No event has occurred and no condition currently exists with respect to the

Company, which would constitute a default hereunder or an “Event of Default” as defined

herein.

(h) The Company intends to operate the Project as a manufacturing facility, and

for such other purposes permitted under the Act as it may deem appropriate. The Project

constitutes a “project” and “economic development property” as provided under the Act.

5.2.b

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ARTICLE III

UNDERTAKINGS OF THE COUNTY

Section 3.01. Agreement to Accept FILOT Payments. The County hereby agrees

to accept FILOT Payments made by the Company and any Company Affiliate in accordance with

Section 5.01 hereof in lieu of ad valorem taxes with respect to the Project until this Agreement

expires or is sooner terminated.

Section 3.02. No Warranties by County. The Company acknowledges that the

County has made no warranties or representations, either express or implied, as to the condition or

state of the Project or as to the design or capabilities of the Project or that it will be suitable for the

Company’s purposes or needs. No representation of the County is hereby made with regard to

compliance by the Project or any Person with laws regulating: (i) the construction or acquisition

of the Project; (ii) environmental matters pertaining to the Project; (iii) the offer or sale of any

securities; or (iv) the marketability of title to any property.

Section 3.03. Execution of Lease. The parties acknowledge that the intent of this

Agreement is to afford the Company and any Company Affiliates the benefits of the Negotiated

FILOT Payments and the Multi-County Park in consideration of the Company’s decision to locate

the Project within Berkeley County and that this Agreement has been entered into in reliance upon

the enactment of the Simplified FILOT Act and the Multi-County Park Act. In the event that a

court of competent jurisdiction holds that the Simplified FILOT Act or the Multi-County Park Act

is unconstitutional or that this Agreement, the Multi-County Park Agreement, or agreements

similar in nature to this Agreement or the Multi-County Park Agreement are invalid or

unenforceable in any material respect or should the parties determine that there is a reasonable

doubt as to the validity or enforceability of this Agreement or the Multi-County Park Agreement

in any material respect, then the County, upon the provision by the Company of evidence

acceptable to the County that the Project is free from environmental contamination and the

conveyance of title to the Project to the County at the expense of the Company, agrees to lease the

Project to the Company and each other Company Affiliate designated by the Company pursuant

to the Streamlined FILOT Act with respect to each such entity’s respective portion of the Project

and, to the extent permitted under the law in effect at such time, use its best efforts to ensure that

the Company and any Company Affiliate receives the benefits of the Negotiated FILOT and the

Multi-County Park Act as contemplated by this Agreement.

In addition to and notwithstanding the foregoing paragraph, the County shall not be

obligated to perform any of its obligations or promises under this Section 3.03 unless the Company

has otherwise complied with or provides satisfactory evidence to the County that it intends to

comply with its obligations and responsibilities under this Agreement.

Section 3.04. Multi-County Park Designation. The County agrees to use its best

efforts to designate the Project, including, but not limited to, the Land, as part of a Multi-County

Park, if not already so designated, and agrees to maintain such property within the boundaries of

the Multi-County Park pursuant to the provisions of the Multi-County Park Act and Article VIII,

Section 13(D) of the State Constitution on terms which provide for all jobs created at the Project

5.2.b

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through the end of the Investment Period, any additional jobs tax credits afforded by the laws of

the State for projects located within multi-county industrial or business parks.

ARTICLE IV

INVESTMENT BY COMPANY IN PROJECT; MAINTENANCE

AND MODIFICATION OF PROJECT

Section 4.01. Investment by Company in Project. For the Project, the Company,

together with any Company Affiliates, agrees to invest, or cause to be invested, approximately

Four Million Five Hundred and Forty Thousand Dollars ($4,540,000) (without regard to

depreciation or other diminution in value) in land, buildings, and other real property

improvements, in the aggregate, (the “Real Property Investment”) and Thirteen Million Three

Hundred and Sixty Thousand Dollars ($13,360,000) (without regard to depreciation or other

diminution in value) in machinery, equipment, and other personal property, in the aggregate, at the

Project by the end of the initial Investment Period (collectively, the “Investment Requirement”).

[The investment amount shall not include any amount paid by the Company for real estate

improvements on the Land existing as of the date of this Agreement.] The Company, together

with any Company Affiliates, agrees to satisfy, or cause the satisfaction of, and maintain, or cause

the maintenance of, the Real Property Investment throughout the entire term of the FILOT.

Section 4.02. Reporting and Filing.

(a) The Company agrees to provide a copy of Form PT-443 filed with the

Department of Revenue not later than 30 days after execution and delivery of this

Agreement to the County Treasurer, Assessor, Economic Development Director and

County Attorney and the auditor and assessor of each other county which is a party to the

Multi-County Park Agreement. Each year during the term of this Agreement, the Company

and each Company Affiliate shall deliver to the County Auditor, County Treasurer,

Assessor, Economic Development Director and County Attorney a copy of their most

recent annual filings made with the Department of Revenue with respect to its respective

portion of the Project, not later than thirty (30) days following delivery thereof to the

Department of Revenue.

(b) The Company agrees to obtain the written consent of the County prior to

applying for a reclassification of, or attempting to reclassify, any asset(s) comprising the

Project and previously reported to the Department of Revenue pursuant to this Section 4.02

from real property to personal property or, conversely, from personal property to real

property.

(c) The Company and each Company Affiliate agrees to maintain such books

and records with respect to its respective portion of the Project as will permit the

identification of those portions of the Project placed in service in each property tax year

during the Investment Period, the amount of investment with respect thereto and its

computations of all FILOT Payments made hereunder and will comply with all reporting

5.2.b

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requirements of the State and the County applicable to property subject to FILOT Payments

under the Act, including the reports described in paragraph (a) (collectively, “Filings”).

(d) Notwithstanding any other provision of this Section, the Company and each

Company Affiliate may designate with respect to any Filings delivered to the County

segments thereof that the Company or such Company Affiliate believes contain

proprietary, confidential, or trade secret matters. To the maximum extent permitted by law,

the County shall conform to all written requests made by the Company or any such

Company Affiliate with respect to maintaining the confidentiality of such designated

segments. If the County receives a request for information under Title 30, Chapter 4 of the

Code, the County shall notify the Company and each Company Affiliate of the request and,

subject to the time constraints imposed by such law, give the Company and such Company

Affiliate the opportunity to designate those portions of its respective portion of the Project,

which the Company and such Company Affiliate believe to be confidential or proprietary.

To the extent permitted by law, the County shall not release information which has been

designated as confidential or proprietary by the Company and each Company Affiliate.

Section 4.03 Modification of Project. As long as no Event of Default exists

hereunder, the Company and each Company Affiliate shall have the right at any time and

from time to time during the Term hereof to undertake any of the following:

(a) The Company or any Company Affiliate may, at its own expense, add to

the Project any real and personal property as the Company or such Company Affiliate in

its discretion deems useful or desirable.

(b) In any instance where the Company or any Company Affiliate in its

discretion determines that any items included in the Project have become inadequate,

obsolete, worn out, unsuitable, undesirable, or unnecessary for operations at the Project,

the Company or such Company Affiliate may remove such items or portions from the

Project and sell, trade in, exchange, or otherwise dispose of them (as a whole or in part)

without the consent of the County, as such may be permitted under the Simplified FILOT

Act.

(c) The Company or any Company Affiliate may, at any time in its discretion

by written notice to the County, remove any real or personal property from the Negotiated

FILOT (as defined in Section 5.01) set forth in this Agreement and thereafter such property

will be considered Non-Qualifying Property and will be subject to FILOT Payments as set

forth in Section 5.01(b) hereof.

ARTICLE V

PAYMENTS IN LIEU OF TAXES

Section 5.01. Payments in Lieu of Ad Valorem Taxes.

(a) In accordance with the Act, the parties hereby agree that, during the Term

of the Agreement, the Company and any Company Affiliate shall pay, or cause to be paid,

annually, with respect to the Project, a FILOT in the amount calculated as set forth in this

5.2.b

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Section, on or before the date, and at the places, in the manner, and subject to the penalty

assessments prescribed by the County or the Department of Revenue for ad valorem taxes.

(b) The FILOT Payment due for the Project with respect to each property tax

year shall equal:

(i) With respect to any portion of the Project consisting of Non-

Qualifying Property, as long as such property is located in the Multi-County Park, a

payment equal to the ad valorem taxes that would otherwise be due on such Non-

Qualifying Property were it taxable giving effect to all credits, exemptions, rebates

and abatement that would be available if such undeveloped land or Non-Qualifying

Property were taxable; plus

(ii) With respect to those portions of the Project consisting of Economic

Development Property, for each of the ten (10) consecutive years following the year

in which such portion of the Project is placed in service, a payment calculated each

year as set forth in paragraph (c) below (a “Negotiated FILOT”).

(c) The Negotiated FILOT Payments shall be calculated with respect to each

property tax year based on: (1) the fair market value (determined in accordance with

Section 12-44-50(A)(1)(c) of the Code) of the improvements to real property and

Equipment included within the Project theretofore placed in service (less, for Equipment,

depreciation allowable for property tax purposes as provided in Section 12-44-50(A)(1)(c)

of the Code), (2) a fixed millage rate of 273.7 for the entire term of this Agreement, and

(3) an assessment ratio of six percent (6%). All such calculations shall take into account

all deductions for depreciation or diminution in value allowed by the Code or by the tax

laws generally, as well as tax exemptions which would have been applicable if such

property were subject to ad valorem taxes, except the exemption allowed pursuant to

Section 3(g) of Article X of the Constitution of the State of South Carolina and the

exemptions allowed pursuant to Sections 12-37-220(B)(32) and (34) of the Code.

(d) The FILOT payments are to be recalculated:

(i) to reduce such payments in the event the Company or any Company

Affiliate disposes of any part of the Project within the meaning of Section 12-44-

50(B) of the Code and as provided in Section 4.03(b) hereof, by the amount

applicable to the Released Property;

(ii) to reduce such payments in the event that Project property or any

portion thereof is damaged or destroyed, lost or stolen, or subject to condemnation

proceedings or otherwise removed from the Project as a result of circumstances

beyond the control of the Company or any Company Affiliate, as provided in Section

7.01 hereof;

(iii) to increase such payments in the event the Company or any

Company Affiliate adds property (other than Replacement Property) to the Project;

or

5.2.b

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(iv) to adjust such payments if the Company or any Company Affiliate

elects to convert any portion of the Economic Development Property from the

Negotiated FILOT to the FILOT required by Section 5.01(b)(i) above, as permitted

by Section 4.03(c).

(e) To the extent permitted by law, because the FILOT Payments agreed to

herein are intended to be paid by the Company and Company Affiliate to the County in

lieu of taxes, it is agreed that said FILOT Payments shall not, as to any year, be in any

amount greater than what would otherwise be payable by the Company or such Company

Affiliate to the County in property taxes if the Company had not entered into a fee-in-lieu

of taxes arrangement with the County (except it is not intended that said FILOT Payments

would necessarily be less than such property taxes to the extent that the constitutional

abatement of property taxes would otherwise apply).

(f) Upon the placing in service of any Replacement Property for any portion of

the Economic Development Property removed under Section 4.03 hereof and sold,

scrapped, or disposed of by the Company or any Company Affiliate, such Replacement

Property shall become subject to Negotiated FILOT Payments to the fullest extent allowed

by law, subject to the following rules:

(i) Replacement Property does not have to serve the same function as

Economic Development Property it is replacing. Replacement Property is deemed

to replace the oldest property subject to the Negotiated FILOT, whether real or

personal, which is disposed of in the same property tax year as the Replacement

Property is placed in service. Replacement Property qualifies for Negotiated FILOT

Payments up to the original income tax basis of Economic Development Property

which it is replacing. More than one piece of property can replace a single piece of

property. To the extent that the income tax basis of the Replacement Property

exceeds the original income tax basis of the Economic Development Property which

it is replacing, the excess amount is subject to payments equal to the ad valorem

taxes which would have been paid on such property but for this Agreement.

Replacement property is entitled to the Negotiated FILOT Payment for the period

of time remaining on the ten-year FILOT period for the property which it is

replacing.

(ii) All Replacement Property which qualifies for the Negotiated FILOT

Payment shall be recorded using its income tax basis, and the Negotiated FILOT

Payment shall be calculated using the millage rate and assessment ratio provided on

the original property subject to Negotiated FILOT Payment which the Replacement

Property is replacing.

(g) In the event that the Act or the Negotiated FILOT or any portion thereof,

are declared, by a court of competent jurisdiction following allowable appeals, invalid or

unenforceable, in whole or in part, for any reason, the Company and the County express

their intentions that such payments be reformed so as to afford the Company and any

Company Affiliates the maximum benefit then permitted by law, including, without

limitation, the benefits afforded under Section 12-44-50 of the Code and, specifically, that

5.2.b

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the Company may, at the Company’s expense, exercise the rights granted by Section 12-

44-160 of the Code. If the Project is deemed not to be eligible for a Negotiated FILOT

pursuant to the Act in whole or in part, the Company and the County agree that the

Company and any Company Affiliate shall pay an alternate fee-in-lieu of tax calculated in

the manner set forth in Section 5.01(b)(i) hereof. In such event, the Company shall be

entitled, to the extent permitted by law: (1) to enjoy the five-year exemption from ad

valorem taxes (or fees in lieu of taxes) provided by Section 3(g) of Article X of the

Constitution of the State of South Carolina, and any other exemption allowed by law; and

(2) to enjoy all allowable depreciation.

ARTICLE VI

DEFAULT

Section 6.01. Defaulted Payments. In the event the Company should fail to make,

or cause to be made, any of the payments required to be made under this Agreement, the item or

installment so in default shall continue as an obligation of the Company until the amount in default

shall have been fully paid. If any such default relates to its obligations to make Negotiated FILOT

Payments hereunder, the Company agrees to pay the same with interest thereon at the rate per

annum provided by the Code for late payment of ad valorem taxes together with any penalties

provided by the Code for late payment of ad valorem taxes, all as provided in Section 12-44-90 of

the Code.

Section 6.02. Failure to Reach Investment Requirement. If the Company fails to

satisfy, or cause the satisfaction of, the Investment Requirement by the end of the Investment

Period, then this Agreement shall terminate and the Company shall repay, or cause to be repaid,

the benefits received pursuant to this Agreement for any of the previous years constituting the

Investment Period as if the Act Minimum Investment Requirement was not met.

ARTICLE VII

CASUALTY AND CONDEMNATION

Section 7.01. Adjustments in the Event of Damage and Destruction or

Condemnation. In the event that the Project or any portion thereof is damaged or destroyed, lost

or stolen, or the subject of condemnation proceedings, the Company, in its sole discretion, may

determine whether or not to repair or replace the same. The parties hereto agree that if the Company

decides not to repair or replace all or any portion of the Project pursuant to this Section, the FILOT

required pursuant to Section 5.01 hereof shall be abated in the same manner and in the same

proportion as if ad valorem taxes were payable with respect to the Project.

ARTICLE VIII

PARTICULAR COVENANTS AND AGREEMENTS

5.2.b

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Section 8.01. Use of Project for Lawful Activities. During the Term of this

Agreement, the Company shall use the Project for any lawful purpose authorized pursuant to the

Act.

Section 8.02. Assignment. The Company agrees that the County shall have the sole

discretion to allow, or not allow, the assignment of any of the incentives or benefits identified

herein. The Company shall provide the County and the Department of Revenue with notice of any

such assignment, transfer, or investment in accordance with the Act, and the County agrees, upon

the request of the Company, to take all further action necessary to implement such assignment,

transfer, or investment in accordance with the provisions of the Act.

Section 8.03. Indemnification. The Company releases the County, including the

members of the governing body of the County, and the employees, officers, attorneys and agents

of the County (herein collectively referred to as the “Indemnified Parties”) from, agrees that the

Indemnified Parties shall not be liable for, and agrees to hold the Indemnified Parties harmless

against, any loss or damage to property or any injury to or death of any person that may be

occasioned by any cause whatsoever pertaining to this Agreement, the Project or the use thereof,

except for that occasioned by grossly negligent or intentional acts of an Indemnified Party. The

Company further agrees to indemnify and save harmless Indemnified Parties against and from any

and all costs, liabilities, expenses, and claims arising from any breach or default on the part of the

Company in the performance of any covenant or agreement on the part of the Company to be

performed pursuant to the terms of this Agreement or arising from any act or negligence of, or

negligent failure to act where there is a duty to do so by, the Company, or any of its agents,

attorneys, contractors, servants, employees, or licensees, and from and against all cost, liability,

and expenses incurred in or in connection with any such claim or action or proceeding brought

thereon.

All covenants, stipulations, promises, agreements, and obligations of the County contained

herein shall be deemed to be covenants, stipulations, promises, agreements, and obligations of the

County and not of any member of the County Council or any officer, agent, attorney, servant, or

employee of the County in his or her individual capacity, and, absent bad faith, no recourse shall

be had for the payment of any moneys hereunder or the performance of any of the covenants and

agreements of the County herein contained or for any claims based thereon against any member

of the governing body of the County or any officer, attorney, agent, servant, or employee of the

County.

Notwithstanding the fact that it is the intention of the Indemnified Parties hereto that none

of them shall incur any pecuniary liability by reason of the terms of this Agreement, any related

agreements or the undertakings required of the County hereunder by reason of the performance of

any act requested of the County by the Company, including all claims, liabilities, or losses arising

in connection with the violation of any statutes or regulations pertaining to the foregoing,

nevertheless, if any Indemnified Party shall incur any such pecuniary liability, then in such event,

the Company shall indemnify and hold them harmless against all claims by or on behalf of any

Person, firm, or corporation or other legal entity arising out of the same and all costs and expenses

incurred in connection with any such claim or in connection with any action or proceeding brought

thereon provided, however, that nothing herein shall absolve the Indemnified Parties from, or

entitle the Indemnification Parties to indemnification from, any obligation such Indemnified Party

5.2.b

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has specifically agreed to undertake (including, without limitation, the obligation to place and

maintain the Land within a multi-county park). If any action, suit, or proceeding is brought against

any Indemnified Party to which such Indemnified Party is entitled to indemnification, such

Indemnified Party shall promptly notify the Company, and the Company shall have the sole right

and duty to assume, and shall assume, the defense thereof, at its expense, with full power to litigate,

compromise, or settle the same in its sole discretion; provided the Company shall obtain the prior

written consent of the County to settle any such claim unless such claim is for monetary damages

for which the Company has the ability to, and does, pay. Notwithstanding the foregoing, if the

Indemnified Party is the County, in the event the County reasonably believes there are defenses

available to it that are not being pursued or that the counsel engaged by the Company reasonably

determines that a conflict of interest exists between the County and the Company, the County may,

in its sole discretion, hire independent counsel to pursue its own defense, and the Company shall

be liable for the reasonable cost of such counsel.

The indemnity specified in this Section shall be in addition to any heretofore extended by

the Company to any Indemnified Party and shall survive the termination of this Agreement with

respect to liability arising out of any event or act occurring prior to such termination.

ARTICLE IX

FINANCING ARRANGEMENTS; CONVEYANCES; ASSIGNMENTS

Section 9.01. Conveyance of Liens and Interests; Assignment. The Company and

each Company Affiliate may at any time: (a) transfer all or any of its rights and interests hereunder

or with respect to the Project to any Person; or (b) enter into any lending, financing, security, or

similar arrangement or succession of such arrangements with any financing entity with respect to

the Agreement or the Project, including without limitation any sale, leaseback, or other financing

lease arrangement; provided that, in connection with any of the foregoing transfers: (i) except in

connection with any transfer to another member of the Controlled Group, any of the Company

Affiliates (collectively, the “Related Entities”), or transfers pursuant to clause (b) above (as to

which such transfers the County hereby consents), the Company or such Company Affiliate shall

first obtain the prior written consent or subsequent ratification of the County; (ii) except where a

financing entity, which is the income tax owner of all or part of the Project, is the transferee

pursuant to clause (b) above and such transferee or financing entity assumes in writing the

obligations of the Company or such Company Affiliate hereunder, or where the County consents

in writing, no such transfer shall affect or reduce any of the obligations of the Company or such

Company Affiliate hereunder, but all obligations of the Company or such Company Affiliate

hereunder shall continue in full force and effect as the obligations of a principal and not of a

guarantor or surety; (iii) the Company, such Company Affiliate, transferee, or financing entity

shall, within 60 days thereof, furnish or cause to be furnished to the County and the Department

of Revenue a true and complete copy of any such transfer agreement; and (iv) the Company or

such Company Affiliate and the transferee shall comply with all other requirements of the

Transfer Provisions. The County agrees that, to the extent allowed by law, any consent hereunder

(such consent shall be in the sole discretion of the County) may be approved and evidenced by a

resolution of County Council.

5.2.b

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The Company acknowledges that such a transfer of an interest under this Agreement or in

the Project may cause the Project to become ineligible for a Negotiated FILOT or result in penalties

under the Act absent compliance by the Company or such Company Affiliate with the Transfer

Provisions.

Section 9.02. Relative Rights of County and Financing Entities as Secured Parties.

The parties acknowledge the application of the provisions of Section 12-44-90 of the Act, and that

the County’s right to receive FILOT Payments hereunder shall be the same as its rights conferred

under Title 12, Chapter 49 and 54, among others, of the Code relating to the collection and

enforcement of ad valorem property taxes. The County’s rights under this Agreement, except for

its rights to receive FILOT revenues, shall be subordinate to the rights of any secured party or

parties under any financing arrangements undertaken by the Company or any Company Affiliates

with respect to the Project pursuant to Section 9.01 hereof, such subordination to be effective

without any additional action on the part of the County; provided, however, that the County hereby

agrees, at the Company’s expense, to execute such agreements, documents, and instruments as

may be reasonably required by such secured party or parties to effectuate or document such

subordination.

ARTICLE X

TERM; TERMINATION

Section 10.01. Term. Unless sooner terminated pursuant to the terms and

provisions herein contained, this Agreement shall be and remain in full force and effect for a term

commencing on the date on which the Company executes this Agreement, and ending at midnight

on the last day of the property tax year in which the last Negotiated FILOT Payment is due

hereunder. The Negotiated FILOT arrangement set forth herein has a term of ten (10) years, as

calculated pursuant to the respective dates when the relevant portions of the Project are placed in

service, and as discussed in greater detail in this Agreement. The County’s rights to receive

indemnification and payment of Administration Expenses pursuant hereto shall survive the

expiration or termination of this Agreement.

Section 10.02. Termination. The County and the Company may agree in writing to

terminate this Agreement at any time, or the Company or any Company Affiliate, may, at its

option, terminate this Agreement at any time with respect to all, or any part of, its respective

portion of the Project upon providing the County thirty (30) days’ written notice of such

termination, in which event all, or any part of, its respective portion of the Project so terminated

shall be subject to ad valorem taxes from the date of termination.

ARTICLE XI

EVENTS OF DEFAULT AND REMEDIES

Section 11.01. Events of Default by Company. Any one or more of the following

events (herein called an “Event of Default”, or collectively “Events of Default”) shall constitute

an Event of Default by the Company:

5.2.b

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(a) if default shall be made in the due and punctual payment of any FILOT

Payments, indemnification payments, or Administration Expenses, which default shall not

have been cured within thirty (30) days following receipt of written notice thereof from the

County;

(b) if default shall be made by the Company in the due performance of or

compliance with any of the terms hereof, including payment, other than those referred to

in the foregoing paragraph (a), and such default shall continue for ninety (90) days after

the County shall have given the Company written notice of such default, provided, the

Company shall have such longer period of time as necessary to cure such default if the

Company proceeds promptly to cure such default and thereafter to prosecute the curing of

such default with due diligence; or

(c) a cessation of operations at the Project. For the purposes of this Agreement,

a “cessation of operations” means a publicly announced closure of the Project or a cessation

in production at the Project that continues for a period of twelve (12) consecutive months.

Section 11.02. Remedies on Event of Default by Company. Upon the occurrence

of any Event of Default, the County may exercise any of the following remedies, any of which

may be exercised at any time during the periods permitted under the following clauses:

(a) terminate this Agreement by delivery of written notice to the Company not

less than thirty (30) days prior to the termination date specified therein;

(b) have access to and inspect, examine, and make copies of the books, records,

and accounts of the Company pertaining to the construction, acquisition, or maintenance

of the Project; or

(c) take whatever action at law or in equity as may appear necessary or

desirable to collect the amounts then due and thereafter to become due or to enforce

observance or performance of any covenant, condition, or agreement of the Company

under this Agreement.

Section 11.03. Default by County. Upon the default of the County in the

performance of any of its obligations hereunder, the Company may take whatever action at law or

in equity as may appear necessary or desirable to enforce its rights under this Agreement, including

without limitation, a suit for mandamus or specific performance. Provided, however, that anything

herein to the contrary notwithstanding, any financial obligation the County may incur hereunder,

including for the payment of money, shall not be deemed to constitute a pecuniary liability or a

debt or general obligation of the County.

ARTICLE XII

MISCELLANEOUS

Section 12.01. Rights and Remedies Cumulative. Each right, power, and remedy

of the County or of the Company or any Company Affiliate provided for in this Agreement shall

be cumulative and concurrent and shall be in addition to every other right, power or remedy

5.2.b

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provided for in this Agreement or now or hereafter existing at law or in equity, in any jurisdiction

where such rights, powers and remedies are sought to be enforced; and the exercise by the County

or by the Company or any Company Affiliate of any one or more of the rights, powers or remedies

provided for in this Agreement or now or hereafter existing at law or in equity or by statute or

otherwise shall not preclude the simultaneous or later exercise by the County or by the Company

or any Company Affiliate of any or all such other rights, powers or remedies.

Section 12.02. Successors and Assigns. The terms and provisions of this

Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective

successors and assigns as permitted hereunder.

Section 12.03. Notices; Demands; Requests. All notices, demands and requests to

be given or made hereunder to or by the County or the Company shall be in writing and shall be

deemed to be properly given or made if sent by United States first class mail, postage prepaid or

via facsimile or other commonly-used electronic transmission or reputable courier service,

addressed as follows or to such other persons and places as may be designated in writing by such

party.

(a) As to the County:


Attn: Economic Development Director

1003 Highway 52

P.O. Box 6122


Phone: (843) 719-4096



Attn: Berkeley County Attorney

Post Office Box 6122


Phone: (843) 719-4010

(b) As to the Company:

Kloeckner Metals Corporation

Attn:_________________

_____________________

_____________________

Phone: _______________


Nexsen Pruet, LLC

Attn: Tushar V. Chikhliker

5.2.b

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1230 Main Street, Suite 700

Columbia, South Carolina 29201

Phone: (803) 540-2188

Section 12.04. Applicable Law. This Agreement shall be governed by and

construed in accordance with the laws of the State of South Carolina.

Section 12.05. Entire Understanding. This Agreement expresses the entire

understanding and all agreements of the parties hereto with each other, and neither party hereto

has made or shall be bound by any agreement or any representation to the other party which is not

expressly set forth in this Agreement or in certificates delivered in connection with the execution

and delivery hereof.

Section 12.06. Severability. In the event that any clause or provisions of this

Agreement shall be held to be invalid by any court of competent jurisdiction, the invalidity of such

clause or provision shall not affect any of the remaining provisions hereof.

Section 12.07. Headings and Table of Contents; References. The headings of the

Agreement and any Table of Contents annexed hereto are for convenience of reference only and

shall not define or limit the provisions hereof or affect the meaning or interpretation hereof. All

references in this Agreement to particular articles or Sections or paragraphs of this Agreement are

references to the designated articles or Sections or paragraphs of this Agreement.

Section 12.08. Multiple Counterparts. This Agreement may be executed in

multiple counterparts, each of which shall be an original but all of which shall constitute one and

the same instrument.

Section 12.09. Amendments. Subject to the limitations set forth in the Act, this

Agreement may be amended, or the rights and interest of the parties hereunder surrendered, only

by a writing signed by both parties.

Section 12.10. Waiver. Either party may waive compliance by the other party with

any term or condition of this Agreement only in a writing signed by the waiving party.

Section 12.11. Force Majeure. The Company and/or any Company Affiliate shall

not be responsible for any delays or non-performance caused in whole or in part, directly or

indirectly, by strikes, accidents, freight embargoes, labor shortages, fire, floods, inability to obtain

materials, conditions arising from government orders or regulations, war or national emergency,

acts of God, and any other cause, similar or dissimilar, beyond the reasonable control of the

Company and/or such Company Affiliate.

[SIGNATURE PAGES TO FOLLOW]

5.2.b

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IN WITNESS THEREOF, the parties hereto, each after due authorization, have executed

this Fee-in-Lieu of Tax Agreement to be effective as of the ____ day of _____________, 2021.


(SEAL) By:

Name: John P. Cribb

Title: Supervisor/Chairman, Berkeley County

Council

ATTEST:

By: __________________________________

Name: Shelley R. Forest

Title: Interim Clerk to Berkeley County Council

5.2.b

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KLOECKNER METALS CORPORATION

By:

Name:

Title:

5.2.b

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EXHIBIT A

PROPERTY DESCRIPTION

[To be updated]

5.2.b

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Bill No. 21-27, 2021-2022 BC Budget

4841

STAFF SUMMARY


Topic: BILL NO. 21-27, AN ORDINANCE PROVIDING APPROPRIATIONS FOR THE FISCAL YEAR BEGINNING JULY 1, 2021 AND ENDING JUNE 30, 2022 FOR BERKELEY COUNTY; TO PROVIDE FOR LEVY OF TAXES ON ALL TAXABLE PROPERTY IN BERKELEY COUNTY FOR ALL COUNTY PURPOSES; TO PROVIDE FOR THE EXPENDITURES OF SAID TAXES AND OTHER REVENUES COMING INTO THE COUNTY FOR THE FISCAL YEAR.


Fiscal Impact:

5.3

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Bill No. 21-27, 2021-2022 BC Budget

4841

BILL NO. 21-27, AN ORDINANCE PROVIDING APPROPRIATIONS FOR THE FISCAL YEAR BEGINNING JULY 1, 2021 AND ENDING JUNE 30, 2022 FOR

BERKELEY COUNTY; TO PROVIDE FOR LEVY OF TAXES ON ALL TAXABLE PROPERTY IN BERKELEY COUNTY FOR ALL COUNTY PURPOSES; TO PROVIDE

FOR THE EXPENDITURES OF SAID TAXES AND OTHER REVENUES COMING INTO THE COUNTY FOR THE FISCAL YEAR.

5.3

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Bill No. 21-28 BCWS 2021-2022 Budget Ordinance

4842

STAFF SUMMARY


Topic: BILL NO. 21-28, AN ORDINANCE PROVIDING FOR THE ADOPTION OF FISCAL YEAR 2021-2022 (BEGINNING JULY 1, 2021 AND ENDING JUNE 30, 2022) BUDGETS FOR BERKELEY COUNTY WATER AND SANITATION SEWER AND WATER AND SOLID WASTE FUND; ESTABLISHING OPERATIONAL, DEBT SERVICE, AND CAPITAL IMPROVEMENT BUDGETS FOR WATER AND SEWER AND SOLID WASTE DIVISIONS; AND TO PROVIDE FOR THE EXPENDITURES OF REVENUES COMING INTO BERKELEY COUNTY WATER AND SANITATION SEWER AND WATER AND SOLID WASTE DIVISIONS DURING THE FISCAL YEAR, AND TO AMEND THE CODE OF ORDINANCES, BERKELEY COUNTY, SOUTH CAROLINA, SETTING RATES, CHARGES AND PENALTIES FOR WATER AND SEWER AND SOLID WASTE SERVICE BY BERKELEY COUNTY WATER AND SANITATION.


Fiscal Impact:

5.4

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Bill No. 21-28 BCWS 2021-2022 Budget Ordinance

4842

BILL NO. 21-28, AN ORDINANCE PROVIDING FOR THE ADOPTION OF FISCAL YEAR 2021-2022 (BEGINNING JULY 1, 2021 AND ENDING JUNE 30, 2022)

BUDGETS FOR BERKELEY COUNTY WATER AND SANITATION SEWER AND WATER AND SOLID WASTE FUND; ESTABLISHING OPERATIONAL, DEBT

SERVICE, AND CAPITAL IMPROVEMENT BUDGETS FOR WATER AND SEWER AND SOLID WASTE DIVISIONS; AND TO PROVIDE FOR THE EXPENDITURES OF

REVENUES COMING INTO BERKELEY COUNTY WATER AND SANITATION SEWER AND WATER AND SOLID WASTE DIVISIONS DURING THE FISCAL YEAR,

AND TO AMEND THE CODE OF ORDINANCES, BERKELEY COUNTY, SOUTH CAROLINA, SETTING RATES, CHARGES AND PENALTIES FOR WATER AND SEWER AND SOLID WASTE SERVICE BY BERKELEY COUNTY WATER AND

SANITATION.

5.4

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Bill No. 21-29 Devon Forest STD 2021-2022 Budget Ordinance

4843

STAFF SUMMARY


Topic: BILL NO, 21-29, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR BEGINNING JULY 1, 2021, AND ENDING JUNE 30, 2022, FOR THE DEVON FOREST SPECIAL TAX DISTRICT OPERATIONAL BUDGET; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE DEVON FOREST SPECIAL TAX DISTRICT DURING THE FISCAL YEAR.


Fiscal Impact:

5.5

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Bill No. 21-29 Devon Forest STD 2021-2022 Budget Ordinance

4843

BILL NO, 21-29, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR BEGINNING JULY 1, 2021, AND ENDING JUNE 30, 2022, FOR THE DEVON FOREST SPECIAL

TAX DISTRICT OPERATIONAL BUDGET; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE DEVON FOREST

SPECIAL TAX DISTRICT DURING THE FISCAL YEAR.

5.5

Packet Pg. 109

Bill No. 21-30, Pimlico STD 2021-2022 Budget Ordinance

4844

STAFF SUMMARY


Topic: BILL NO. 21-30, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR BEGINNING JULY 1, 2021 AND ENDING JUNE 30, 2022 FOR THE PIMLICO SPECIAL TAX DISTRICT OPERATIONAL BUDGET; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE PIMLICO SPECIAL TAX DISTRICT DURING THE FISCAL YEAR.


Fiscal Impact:

5.6

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Bill No. 21-30, Pimlico STD 2021-2022 Budget Ordinance

4844

BILL NO. 21-30, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR BEGINNING JULY 1, 2021 AND ENDING JUNE 30, 2022 FOR THE PIMLICO SPECIAL TAX

DISTRICT OPERATIONAL BUDGET; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE PIMLICO SPECIAL TAX DISTRICT

DURING THE FISCAL YEAR.

5.6

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Bill No. 21-31, Sangaree STD 2021-2022 Budget Ordinance

4845

STAFF SUMMARY


Topic: BILL NO. 21-31, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR BEGINNING JULY 1, 2021, AND ENDING JUNE 30, 2022, FOR THE SANGAREE SPECIAL TAX DISTRICT OPERATIONAL BUDGET; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE SANGAREE SPECIAL TAX DISTRICT DURING THE FISCAL YEAR.


Fiscal Impact:

5.7

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Bill No. 21-31, Sangaree STD 2021-2022 Budget Ordinance

4845

BILL NO. 21-31, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR BEGINNING JULY 1, 2021, AND ENDING JUNE 30, 2022, FOR THE SANGAREE SPECIAL TAX

DISTRICT OPERATIONAL BUDGET; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE SANGAREE SPECIAL TAX DISTRICT

DURING THE FISCAL YEAR.

5.7

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Bill No. 21-32. Special Fire Tax District 2021-2022 Budget Ordinance

4846

STAFF SUMMARY


Topic: BILL NO. 21-32, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR BEGINNING JULY 1, 2021, AND ENDING JUNE 30, 2022, FOR THE OPERATIONAL BUDGET OF THE BERKELEY COUNTY SPECIAL FIRE TAX DISTRICT WITHIN THE UNINCORPORATED PORTIONS OF BERKELEY COUNTY; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE SPECIAL FIRE TAX DISTRICT DURING THE FISCAL YEAR.


Fiscal Impact:

5.8

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Bill No. 21-32. Special Fire Tax District 2021-2022 Budget Ordinance

4846

BILL NO. 21-32, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR BEGINNING JULY 1, 2021, AND ENDING JUNE 30, 2022, FOR THE OPERATIONAL BUDGET OF

THE BERKELEY COUNTY SPECIAL FIRE TAX DISTRICT WITHIN THE UNINCORPORATED PORTIONS OF BERKELEY COUNTY; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE SPECIAL FIRE TAX

DISTRICT DURING THE FISCAL YEAR.

5.8

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Bill No. 21-33, Tall Pines STD 2021-2022 Budget Ordinance

4847

STAFF SUMMARY


Topic: BILL NO. 21-33, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR BEGINNING JULY 1, 2021, AND ENDING JUNE 30, 2022, FOR THE TALL PINES SPECIAL TAX DISTRICT OPERATIONAL BUDGET; AND TO PROVIDE FOR THE EXPENDITURES OF THE REVENUES RECEIVED BY THE TALL PINES SPECIAL TAX DISTRICT DURING THE FISCAL YEAR.


Fiscal Impact:

5.9

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Bill No. 21-33, Tall Pines STD 2021-2022 Budget Ordinance

4847

BILL NO. 21-33, AN ORDINANCE PROVIDING FOR THE FISCAL YEAR BEGINNING JULY 1, 2021, AND ENDING JUNE 30, 2022, FOR THE TALL PINES SPECIAL TAX DISTRICT OPERATIONAL BUDGET; AND TO PROVIDE FOR THE EXPENDITURES

OF THE REVENUES RECEIVED BY THE TALL PINES SPECIAL TAX DISTRICT DURING THE FISCAL YEAR.

5.9

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Bill No. 21-34, Prohibit Incentives within Camp Hall Ordinance

4856

STAFF SUMMARY


Topic: BILL NO. 21-34, AN ORDINANCE TO PROHIBIT INCENTIVES, ASSIGNMENTS, OR CHANGE INCENTIVES FOR ANY ENTITY, PERSON, OR COMPANY LOCATING OR LOCATED IN CAMP HALL DEVELOPMENT UNTIL SUCH TIME AS SANTEE COOPER PROVIDES ASSURANCE THAT NO LITIGATION REGARDING THE CONSTRUCTION OF SEWER LINE(S) WILL BE INITIATED; AND TO PROVIDE AUTHORITY TO OFFER OR CHANGE INCENTIVES IN CAMP HALL DEVELOPMENT ONLY UPON A VOTE OF COUNTY COUNCIL FOR REASONS IN THE BEST INTERESTS OF BERKELEY COUNTY WATER AND SANITATION RATE PAYERS AND BERKELEY COUNTY TAXPAYERS.


Fiscal Impact:

Attachments:

Prohibit Incentives within Camp Hall Development (DOCX)


6.1

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Bill No. 21-34, Prohibit Incentives within Camp Hall Ordinance

4856

BILL NO. 21-34, AN ORDINANCE TO PROHIBIT INCENTIVES, ASSIGNMENTS, OR CHANGE INCENTIVES FOR ANY ENTITY, PERSON, OR COMPANY LOCATING OR

LOCATED IN CAMP HALL DEVELOPMENT UNTIL SUCH TIME AS SANTEE COOPER PROVIDES ASSURANCE THAT NO LITIGATION REGARDING THE

CONSTRUCTION OF SEWER LINE(S) WILL BE INITIATED; AND TO PROVIDE AUTHORITY TO OFFER OR CHANGE INCENTIVES IN CAMP HALL

DEVELOPMENT ONLY UPON A VOTE OF COUNTY COUNCIL FOR REASONS IN THE BEST INTERESTS OF BERKELEY COUNTY WATER AND SANITATION RATE

PAYERS AND BERKELEY COUNTY TAXPAYERS.

6.1

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Bill No. 21-34

ORDINANCE NO.

AN ORDINANCE TO PROHIBIT INCENTIVES, ASSIGNMENTS,

OR CHANGE INCENTIVES FOR ANY ENTITY, PERSON, OR

COMPANY LOCATING OR LOCATED IN CAMP HALL

DEVELOPMENT UNTIL SUCH TIME AS SANTEE COOPER

PROVIDES ASSURANCE THAT NO LITIGATION REGARDING

THE CONSTRUCTION OF SEWER LINE(S) WILL BE INITIATED;

AND TO PROVIDE AUTHORITY TO OFFER OR CHANGE

INCENTIVES IN CAMP HALL DEVELOPMENT ONLY UPON A

VOTE OF COUNTY COUNCIL FOR REASONS IN THE BEST

INTERESTS OF BERKELEY COUNTY WATER AND

SANITATION RATE PAYERS AND BERKELEY COUNTY

TAXPAYERS.

WHEREAS, Berkeley County Council is both the governing body charged with

offering county-based incentives to recruit industry; and

WHEREAS, Berkeley County Council is also the effective board of directors of

the Berkeley County Water and Sanitation Government and has fiduciary duties to the rates

payers of the Authority; and

WHEREAS, since on or about July 24, 2015, Santee Cooper has owned the Camp

Hall Development; and

WHEREAS, on at least two occasions, Santee Cooper has proposed a sewer route

down Highway 176 in violation of the development agreement and promise to the Lebanon

community, which was rejected by County Council, as a whole or by a committee of the

whole; and

WHEREAS, Santee Cooper has represented that the cost of the sewer line down I-

26 instead of Highway 176 or a transmission line would be much more expensive; and

WHEREAS, although more expensive, County Council has voted repeatedly that

I-26 is the route contemplated by the development agreement and was known at the time

of Santee Cooper’s purchase of the Camp Hall Development; and

WHEREAS, in response to County Council’s affirmance of the I-26 route, agents

of Santee Cooper refuse to provide assurance to the County that no litigation against the

County will result from this sewer project ; and

WHEREAS, as part of a grant opportunity for the design of the sewer route,

members of County Council sought assurance that there would be no litigation related to

the construction of the line; and

6.1.a

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WHEREAS, to date, Santee Cooper has affirmatively refused to give the following

assurance, at this time, to Berkeley County Council:

Santee Cooper Assurance. Santee Cooper hereby acknowledges that the County is

under no obligation to construct or pay for the sewer infrastructure improvements for the

Camp Hall development.

WHEREAS, Berkeley County Council desires to indicate to all industry, currently

existing and those being recruited, that the cost of construction for sewer that should go

down I-26 from Camp Hall, which was known by Santee Cooper prior to its purchase of

the Camp Hall Tract, is more expensive than routing sewer down Highway176; and

WHEREAS, in closed door meetings with the County and councilmembers, Santee

Cooper has repeatedly indicated that it did not plan to file a lawsuit against the County for

any contribution of the costs associated with the sewer line, but refuses to give similar

assurances publicly; and

WHEREAS, the costs of the construction of the sewer lines could be devastating

to the rate payers and taxpayers of Berkeley County and is unfair to all others that have had

to pay for the cost of their own lines; and

WHEREAS, other users, developers, and even public schools, must pay for the

construction of their sewer lines; and

WHEREAS, Santee Cooper’s lack of referenced assurance is a concerning risk to

Berkeley County and BCWS; and

WHEREAS, County Council desires to protect the rate payers of BCWS and

taxpayers of Berkeley County until such times as the referenced assurance is provided.

NOW, THEREFORE, BE IT ORDAINED by Berkeley County Council, in a

meeting duly assembled, that there shall not be any incentives offered for projects located

in the Camp Hall development until such time as Santee Cooper gives the following

assurance in writing:

Santee Cooper Assurance. Santee Cooper hereby acknowledges that the County is

under no obligation to construct or pay for the sewer infrastructure improvements for the

Camp Hall development.

BE IT FURTHER ORDAINED, that any Berkeley County Government

employee, including personnel of the economic development department must disclose to

any entity or person interested in incentives in the Camp Hall development of the existence

of this ordinance and the dispute related to the costs associated with the construction of

sewer.

6.1.a

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BE IT FURTHER ORDAINED, to the extent a project is being scouted for Camp

Hall that would make a large-scale positive difference for Berkeley County, Berkeley

County Council, via this ordinance, intends that incentives may be offered to a person or

entity situated or to be situated at Camp Hall, on recommendation of the Supervisor and a

positive majority or qualified majority of County Council, which shall be five (5) members.

BE IT FURTHER ORDAINED, that this Ordinance shall expire by formal

amendment process, or by Santee Cooper executing a legally binding contract that it will

never seeks costs for the construction of sewer from Berkeley County or Berkeley County

Water and Sanitation. Nothing herein shall exclude the County from voluntarily

contributing to any project it deems in the best interest of the County and BCWS.

ORDAINED this 24th day of May, 2021.


SEAL]

_______________________________________



Attest:

____________________

Shelley R. Forest

Interim Clerk to Council


____________________


County Attorney

First Reading: April 26, 2021

Second Reading: May 10, 2021

Public Hearing: May 24, 2021

Third Reading: May 24, 2021

6.1.a

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Partial FILOT Assignment CHS Omni 1

4876

STAFF SUMMARY


Topic: A RESOLUTION AUTHORIZING AND APPROVING AN AGREEMENT AS TO PARTIAL ASSIGNMENT AND ASSUMPTION OF A FEE IN LIEU OF TAX AND INCENTIVE AGREEMENT BY AND AMONG BERKELEY COUNTY, SOUTH CAROLINA, CHARLESTON OMNI 1, LLC AND SFG CHARLESTON OMNI, LLC.


Fiscal Impact:

Attachments:

Resolution - CHS Omni 1 (HYT 050621 v3) (DOCX)

Partial FILOT Assmt CHS Omni 1 (HYT 050621 v3) (DOCX)


7.1

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Partial FILOT Assignment CHS Omni 1

4876

A RESOLUTION AUTHORIZING AND APPROVING AN AGREEMENT AS TO PARTIAL ASSIGNMENT AND ASSUMPTION OF A FEE IN LIEU OF TAX AND

INCENTIVE AGREEMENT BY AND AMONG BERKELEY COUNTY, SOUTH CAROLINA, CHARLESTON OMNI 1, LLC AND SFG CHARLESTON OMNI, LLC.

7.1

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RESOLUTION NO.

A RESOLUTION AUTHORIZING AND APPROVING AN AGREEMENT

AS TO PARTIAL ASSIGNMENT AND ASSUMPTION OF A FEE IN LIEU

OF TAX AND INCENTIVE AGREEMENT BY AND AMONG BERKELEY

COUNTY, SOUTH CAROLINA, CHARLESTON OMNI 1, LLC AND SFG

CHARLESTON OMNI, LLC.

WHEREAS, Berkeley County, South Carolina (the “County”), acting by and through its

County Council (the “Council”), is authorized by the Code of Laws of South Carolina, 1976, as

amended (the “Code”), particularly Title 12, Chapter 44 (the “FILOT Act”): (i) to enter into a fee

agreement with companies meeting the requirements of the FILOT Act, which identifies certain

property of such companies as economic development property, to induce such companies to

locate in the State of South Carolina (the “State”) and to encourage companies now located in the

State to expand their investments and thus make use of and employ workers and other resources

of the State; and (ii) to covenant with such companies to accept certain fees in lieu of ad valorem

tax payments with respect to projects in the County; and

WHEREAS, Charleston Omni 1, LLC, an Illinois limited liability company (the

“Company”) is party, by way of a partial assignment from MWV-Omni, LLC (“MWV”) to that

certain Fee in Lieu of Tax and Incentive Agreement originally executed by and between the County

and MWV dated as of December 10, 2012 (as amended, supplemented and assigned, the “Fee

Agreement”); and

WHEREAS, MWV and the Company entered into that certain Agreement as to Partial

Assignment and Assumption of Fee in Lieu of Tax and Incentive Agreement dated May 12, 2017,

whereby MWV assigned its right, title and interest in the Fee Agreement to the Company with

respect to certain property conveyed by MWV to the Company (the “Property”); and

WHEREAS, the Company and SFG Charleston Omni, LLC, a Delaware limited liability

company (the “Purchaser”), are parties to a Purchase and Sale Agreement dated as of April 21,

2021 (as amended and assigned, the “Purchase and Sale Agreement”) with respect to the Property,

wherein and whereby Purchaser has agreed to purchase the Property for the consideration

expressed in the Purchase and Sale Agreement; and

WHEREAS, the Company and Purchaser desire to enter into that certain Agreement as to

Partial Assignment and Assumption of Fee in Lieu of Tax and Incentive Agreement effective as

the date of the closing of the transactions contemplated by the Purchase and Sale Agreement (the

“Assignment”), pursuant to which the Company shall assign those relevant terms, covenants,

conditions and agreements of the Fee Agreement to Purchaser, as such relate to the Property, and

Purchaser shall assume the relevant terms, covenants, conditions and agreements of the Fee

Agreement from the Company, as such relate to the Property; and

WHEREAS, the Company and Purchaser have requested that the County approve such

Assignment to Purchaser in accordance with the provisions of Section 8.01 of the Fee Agreement

and in accordance with the provisions of Section 12-44-120 of the South Carolina Code of Laws,

1976, as amended, including the transfer of the Property to Purchaser.

7.1.a

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NOW, THEREFORE, BE IT RESOLVED by the Council as follows:

Section 1. County Authorization, Ratification, Approval and Consent. The County

hereby authorizes, ratifies, approves and consents to the Assignment of the Fee Agreement by the

Company to Purchaser. The Company shall assign the Fee Agreement to Purchaser, as it relates to

the Property, and Purchaser shall assume the Fee Agreement from the Company, as it relates to

the Property. Subject to the terms of such Assignment, the Company shall assign to Purchaser and

Purchaser shall assume from the Company those relevant terms, covenants, conditions and

agreements of the Fee Agreement from the Company, as it relates to the Property.

Section 2. Further Documentation. The Council and the County’s duly authorized

representatives shall take such action as may be necessary to effectuate the action herewith taken

and the Assignment herein authorized. The County Supervisor is hereby authorized and directed,

in the name and on behalf of the County, to execute the Assignment and such other documents,

agreements, affidavits and certificates (including any estoppel certificates), and the Clerk of

County Council is hereby authorized to attest the same, and to deliver the Assignment and such

other documents, agreements, affidavits, and certificates to the Company and the Purchaser, in

order to consummate the transactions contemplated by this Resolution. The Assignment shall be

in the form presented to Council at this meeting or with such changes as may be approved by the

County Attorney (the execution by the County of the Assignment constituting evidence of such

approval).


(a) This Resolution shall be construed and interpreted in accordance with the laws

of the State of South Carolina; and

(b) This Resolution shall become effective immediately upon approval by the

Council following reading before Council; and

(c) The provisions of this Resolution are hereby declared to be severable and if any

section, phrase or provision shall for any reason be declared by a court of competent

jurisdiction to be invalid or unenforceable, that declaration shall not affect the validity of

the remainder of the sections, phrases and provisions hereunder; and

(d) All resolutions and parts thereof in conflict herewith are, to the extent of the

conflict, hereby repealed.


7.1.a

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EXECUTED this 24th day of May, 2021.


[SEAL]

_______________________________________



Attest:

__________________________

Shelley R. Forest



__________________________


County Attorney

7.1.a

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STATE OF SOUTH CAROLINA ) AGREEMENT AS TO PARTIAL

) ASSIGNMENT AND ASSUMPTION OF FEE

IN

) LIEU OF TAX AND INCENTIVE

COUNTY OF BERKELEY ) AGREEMENT

This AGREEMENT AS TO PARTIAL ASSIGNMENT AND ASSUMPTION OF FEE IN

LIEU OF TAX AND INCENTIVE AGREEMENT (this “Agreement”) is made and entered into to

be effective as of [DATE], 2021 by and between CHARLESTON OMNI 1, LLC an Illinois limited

liability (“Assignor”), and SFG CHARLESTON OMNI, LLC, a Delaware limited liability

company (“Assignee”), and BERKELEY COUNTY, SOUTH CAROLINA, a body politic and

corporate and a political subdivision of the State of South Carolina (the “County”).

RECITALS:

WHEREAS, pursuant to the provisions of the Code of Laws of South Carolina 1976, as

amended (the “Code”), particularly Title 12, Chapter 44 of the Code and Title 4, Chapter 1 of the

Code (the “Multi-County Park Act”), the County, acting by and through its County Council,

previously entered into that certain Fee in Lieu of Tax and Incentive Agreement dated as of

December 10, 2012, as partially assigned to Assignor pursuant to that certain Agreement as to

Partial Assignment and Assumption of Fee in Lieu of Tax and Incentive Agreement dated as of

May 12, 2017 (as amended, modified and assigned through the date hereof, the “Incentive

Agreement”) in connection with the anticipated location, construction and equipping of various

types of new facilities, including without limitation, manufacturing, warehouse and distribution

facilities, as set forth in greater detail in the Incentive Agreement the (the “Project”) to be located

on land located in the County, as described on Exhibit A to the Incentive Agreement (the “ Project

Site”), under which Assignor has agreed to make certain Negotiated FILOT Payments (as defined

in the Incentive Agreement) with respect to its portion of the Project (collectively, the “Negotiated

FILOT Payments”) and the County has agreed, inter alia: (i) to accept such Negotiated FILOT

Payments; (ii) to provide certain special source revenue credits against certain such Negotiated FILOT

Payments (the “Special Source Credits”); and (iii) to designate and maintain the Project, including,

without limitation, the Project Site, as part of a multi-county industrial or business park pursuant to

the Multi-County Park Act, all as set forth in greater detail, and subject to the limitations contained,

in the Incentive Agreement; and

WHEREAS, Assignor and Assignee have previously entered into, or will hereafter

enter into one or more agreements or other instruments (the “Property Transfer

Documentation”) providing for the sale, transfer, and conveyance, as of [Date], 2021 (the

“Effective Transfer Date”), by Assignor to Assignee of all of Assignor's right, title, and interest in

approximately 100.41 acres of the Project Site, as described on Exhibit A attached hereto, and any real

and/or personal property located thereon (collectively, the “Transfer Property”); and

WHEREAS, Assignor desires to hereby assign, transfer, convey, and set over to Assignee, all

of Assignor's right, title and interest in, to, and under the Incentive Agreement with respect to the

Transfer Property, and Assignee desires to hereby assume, all of Assignee's duties, obligations, and

7.1.b

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liabilities under the Incentive Agreement with respect to the Transfer Property, all as set forth in greater

detail in this Agreement; and

WHEREAS , by Resolution duly adopted by the County Council of the County on [DATE],

2021 (the “Transfer Resolution”), the County approved and consented to such transfer, assignment,

and assumption described above and the release of Assignor from all duties, obligations, and liabilities

under the Incentive Agreement as set forth herein, and authorized execution and delivery of this

Agreement by the County.

AGREEMENT:

NOW, THEREFORE, for and in consideration of the premises and for good and valuable

consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby

covenant and agree as follows:

1. Partial Assignment and Assumption. Assignor does hereby assign, transfer, convey

and set over to Assignee, it successors and assigns, all of Assignor's right, title and interest in, to,

and under the Incentive Agreement with respect to the Transfer Property accruing on or after 12:00

a.m. on the Effective Transfer Date, including, without limitation, all rights to: (i) make future

investment in property eligible for Negotiated FILOT Payments at or in the portion of the Project

Site comprising all or a portion of the Transfer Property; (ii) make Negotiated FILOT Payments

with respect to the Transfer Property and such additional investment made at or in the portion of

the Project comprising all or a portion of the Transfer Property (with respect to the period from

and after the Effective Transfer Date); and (iii) claim Special Source Credits against such

collective Negotiated FILOT Payments; all in accordance with the terms and provisions of the

Incentive Agreement. Assignee does hereby assume and agrees to perform, in full, al l of Assignor's

duties, obligations, and liabilities under the Incentive Agreement with respect to the Transfer

Property accruing on or after 12:00 a.m. on the Effective Transfer Date, including, without

limitation, all obligations to make Negotiated FILOT Payments with respect to the Transfer

Property (with respect the period from and after the Effective Transfer Date).

2. Release of Assignor. Pursuant to the Transfer Resolution, the County hereby releases

Assignor from any and all duties, obligations, and liabilities under the Incentive Agreement with

respect to the Transfer Property, accruing on or after 12:00 a.m. on the Effective Transfer Date.

Nothing contained in this Section 2 shall release Assignor from any other duties, obligations, or

liabilities under the Incentive Agreement.

3. Acknowledgements by Assignor. Assignee acknowledges receipt of the Incentive

Agreement and all Exhibits thereto and agrees to be bound by the terms thereof, including, without

limitation, with respect to the Transfer Property and any additional investment made by the Assignee

at the Transfer Property, and with respect to Section 6.01 thereof.

4. Representations and Warranties by Assignor and County.

(a) Assignor hereby represents and warrants to Assignee that to the best of Assignor’s

knowledge, neither Assignor nor the Transfer Property are in default under the

Incentive Agreement.

7.1.b

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(b) County hereby represents and warrants to Assignor and Assignee that to the best of

County’s knowledge, neither Assignor nor the Transfer Property are in default under

the Incentive Agreement; provided, however, the County does not waive any breaches

or defaults of which the County does not have actual knowledge.

5. Requisite Power and Due Authorization. Each of the parties hereto represents that it

has all requisite power to enter into this Agreement and to carry out its obligations hereunder, and by

proper action has been duly authorized to execute and deliver this Agreement.

6. Notices. All notices given hereunder shall be in writing by either party to the other,

shall be sent by registered or certified mail, postage prepaid, return receipt requested or prepaid by

nationally recognized overnight courier, and shall be addressed as follows:

If to Assignee: SFG Acquisitions, LLC

3280 Peachtree Road, NE, Suite 2770

Atlanta, Georgia 30305

Attention: Mike Patel

Email: [email protected]

with a copy to: Alston & Bird LLP

1201 West Peachtree Street

Atlanta, Georgia 30309

Attn: Jeffrey M. H. Adams


and: Womble Bond Dickinson (US) LLP

5 Exchange Street

Charleston, South Carolina 29401

Attn: Stephanie Few


If to Assignor: Charleston Omni 1, LLC

c/o Clarius Partners

200 West Madison Street, Suite 1625

Chicago, Illinois 60606

Attention: Kevin D. Matzke


With a copy to: Charleston Omni 1 LLC

c/o Wanxiang America Real Estate Group, LLC

150 N. Riverside Plaza, Suite 1810

Chicago, IL 60606

Attn: Lawrence J. Krueger

E-Mail: [email protected]

With a copy to: The Selig Law Firm, P.C.

7.1.b

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150 N. Riverside Plaza, Suite 1810

Chicago, IL 60606

Attn: Randal J. Selig

E-Mail: [email protected]

If to County: Berkeley County

ATTN: County Supervisor/Chairman

1003 Highway 52

Moncks Corner, SC 29641

With a copy to: Berkeley County Attorney

1003 Highway 52

Moncks Corner, SC 29461

or to such other addresses as either party shall designate in a notice to the other given in accordance

with the provisions of this Section 6.

7. Severability. In the event that any term, covenant or provision of this Agreement should

be determined to be illegal, invalid or unenforceable, that term, covenant or provision shall be severed

and removed herefrom and this Agreement shall be construed as if such term, covenant or provision

had never been contained herein.

8. Governing Law. This Agreement and all matters relating thereto shall be governed

by and construed and interpreted in accordance with the laws of the State of South Carolina.

9. Entire Agreement. This Agreement (including any Exhibits hereto and the other

agreements and instruments contemplated herein) embodies the entire Agreement and

understanding between the parties hereto as to the matters herein addressed and supersedes all prior

agreements and understandings (whether oral or written) relating to the subject matter hereof.

10. Amendment. No provision of this Agreement or any document or instrument relating

to the Agreement may be amended, modified, supplemented, changed, waived, discharged, or

terminated unless all of the parties hereto consent thereto in writing.

11. Successor and Assigns. This Agreement shall be binding upon and inure to the benefit

of the parties hereto and their respective successors and assigns.

12. Multiple Counterparts. This Agreement may be executed in multiple

counterparts and by electronic means, each of which shall be an original but all of which shall

constitute but one and the same instrument.

[Remainder of page intentionally left blank]

[EXECUTION PAGES TO FOLLOW]

7.1.b

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IN WITNESS WHEREOF, the parties hereto, each after due authorization, have executed this

Agreement as to Partial Assignment and Assumption of Fee in Lieu of Tax and Incentive Agreement

to be effective as of the Effective Transfer Date.

ASSIGNOR:

CHARLESTON OMNI 1, LLC, an Illinois limited

liability company

By:

Name:

Title:

ASSIGNEE:

SFG CHARLESTON OMNI, LLC, a Delaware limited liability company

By:

Name: Title:


By: __________________________________



Attest:

___________________________

Shelley R. Forest


7.1.b

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EXHIBIT A

LEGAL DESCRIPTION

ALL that parcel or tract of land located in Berkeley County, South Carolina being designated as

"LOT 1" as shown on a plat entitled "PLAT OF THE PROPERTY LINE ABANDONMENT

BETWEEN TRACT A (192.62 +/- Ac.) & TRACT A-1 (50.53 +/- Ac.) TO CREATE TRACT A

(243.15 +/- Ac.) AND THE SUBSEQUENT SUBDIVISION OF TRACT A (243.15 +/- Ac.) TO

CREATE LOT 1 (100.41 Ac.) P.O.A. PARCEL #1 (13.70 Ac.) LOT 10 (35.01 Ac.) & TRACT A

(94.03 +/- Ac.)" prepared by Thomas and Hutton dated February 14, 2017, and recorded March

14, 2017, in Plat Cabinet S, at Page 88q in the ROD Office for Berkeley County, South Carolina.

Tax Map Nos.: 207-00-02-146

7.1.b

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