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 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-five (25) 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”); less Special Source Revenue Credits given to the Economic Development Property in amounts equal to twenty-five percent (25%) for years 1 – 10 and fifteen percent (15%) for years 11 – 20, and ten percent (10%) for years 21 – 25. (iii) The Company agrees to forego the Special Source Revenue Credits commencing with the first Negotiated FILOT Payment until a total of $2,000,000 of Special Source Credits has been waived. Upon reaching this amount, the County will make certain improvements to Bushy Park Road as further described on Exhibit B attached hereto, provided, however, that if the County is able to obtain funding for all or a portion of such improvements from a source other than County ad valorem tax revenues, the Special Source Credits foregone by the Company will be restored by the County increasing the Special Source Credits to fifty percent (50%) for the years following the year in which such funding becomes available until the amount of waived Special Source Credits is restored in an amount equal to the amount of the non-county ad valorem tax road funding received by the County (such percentage to be adjusted as necessary for reimbursement of the last annual installment of the restoration amount). (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 equal to the millage rate applicable on June 30, 2024, which the parties understand is 258.7 ▇▇▇▇▇ 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 within the Investment Period or Extended Investment Period; 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). (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 ▇▇-▇▇-▇▇▇ 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
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Sources: Fee in Lieu of Tax Agreement, Fee in Lieu of Tax Agreement
Payments in Lieu of Ad Valorem Taxes. (a) In accordance with the Act, the parties hereby agree that, during the Term of the Agreement, each of the Company and any Sponsor Affiliate shall pay pay, or cause to be paid, annually, with respect to its respective portion of 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-five twenty (2520) 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 paragraph (c) below (a “Negotiated FILOT”); less special source revenue credits (the “Special Source Revenue Credits given Credits”) against each Negotiated FILOT Payment, or portion thereof, due with respect to the Economic Development Property Equipment from the Company and any Sponsor Affiliate in amounts an annual amount equal to twenty-forty- five percent (2545%) of each such payment for years 1 – 10 and fifteen percent (15%) for years 11 – 20, and a period of ten percent (10%) consecutive tax years, commencing with the initial tax year for years 21 – 25.
(iii) The which a Negotiated FILOT Payment, or portion thereof, is due with respect to Equipment; provided, however, if aggregate investment in the Project by the Company agrees and all Sponsor Affiliates, without regard to forego depreciation or other diminution in value, is equal to or greater than $50,000,000 by the end of the Compliance Period, then the Special Source Revenue Credits commencing with Credit benefit period set forth in this Section 5.01(b)(ii) shall be automatically extended, without further action or proceedings of the first Negotiated FILOT Payment until a County or the County Council, by ten (10) consecutive tax years, such that the total of $2,000,000 of Special Source Credits has been waived. Upon reaching this amount, the County will make certain improvements to Bushy Park Road as further described on Exhibit B attached hereto, provided, however, that if the County is able to obtain funding for all or Revenue Credit benefit period shall be a portion period of such improvements from a source other than County ad valorem twenty (20) consecutive tax revenues, the Special Source Credits foregone by the Company will be restored by the County increasing the Special Source Credits to fifty percent (50%) for the years following the year in which such funding becomes available until the amount of waived Special Source Credits is restored in an amount equal to the amount of the non-county ad valorem tax road funding received by the County (such percentage to be adjusted as necessary for reimbursement of the last annual installment of the restoration amount)years.
(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 real property (including the Land), 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 equal to the millage rate applicable on June 30, 2024, which the parties understand is 258.7 ▇▇▇▇▇ 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 within the Investment Period or Extended Investment Period; 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).
(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 ▇▇-▇▇-▇▇▇ 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
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