ORDINANCE #11-32-07

 

STATE OF SOUTH CAROLINA               )        ORDINANCE AUTHORIZING

                                                                        )                    AMENDMENT TO

COUNTY  OF  NEWBERRY                          )   FEE IN LIEU OF TAX AGREEMENT

 

 

ORDINANCE AUTHORIZING THE AMENDMENT OF THE FEE IN LIEU OF TAX AGREEMENT DATED AS OF DECEMBER 11, 2002 BY AND BETWEEN NEWBERRY COUNTY, SOUTH CAROLINA AND PIONEER FROZEN FOODS SOUTH CAROLINA, INC. PROVIDING FOR A PAYMENT OF A FEE IN LIEU OF TAXES.

 

 

            WHEREAS, Newberry County, South Carolina (the “County”) acting by and through its County Council (the “County Council”) is authorized and empowered pursuant to the provisions of Title 12, Chapter 44 of the Code of Laws of South Carolina, 1976, as amended (the “Act”), to enter into fee agreements with any industry, with said agreements identifying certain properties of such industries as economic development property, through which powers the industrial development of the State of South Carolina (the  “State”) and the County will be promoted and trade developed by inducing manufacturing and commercial enterprises to locate, remain, and expand in the State and the County and thus utilize and employ the manpower, products, and natural resources and benefit the general public welfare of the State and County by providing services, employment, or other public benefits not otherwise adequately provided locally; and

 

            WHEREAS, the County previously entered into a fee in lieu of tax agreement (the “Agreement”) dated as of December 11, 2002 with Pioneer Frozen Foods South Carolina, Inc. (the “Company”) providing for a fee in lieu of taxes; and

 

            WHEREAS, the Company and/or its subsidiaries, affiliates, successors, assigns, sponsors, lessors, and others desire to invest capital in the County in order to expand their facility used for the purposes of manufacturing food products (the “Expansion”); and

 

            WHEREAS, without further action, the investment period under the Agreement (the “Investment Period”) terminates on December 31, 2007; and

 

            WHEREAS, pursuant to an Inducement Resolution dated as of April 18, 2007, the County authorized the amendment of the Agreement (the “Amendment”) to extend the Investment Period for five additional years (the “Extension”), as authorized by the Agreement and Section 12-44-30(13) of the Act, such that the Expansion would be subject to fee in lieu of tax payments under the Agreement; and

 

            WHEREAS, the Company has caused to be prepared and presented to this meeting the form of an amendment to the Agreement that the County Council has determined is an appropriate instrument to be executed and delivered by the County for the purposes intended.

 

            NOW, THEREFORE, BE IT ORDAINED by the County Council in a meeting duly assembled as follows:

 

            Section 1.         In order to promote industry, develop trade, and utilize and employ the manpower, products, and natural resources of the State of South Carolina by assisting the Company to expand an industrial facility in the State of South Carolina, the County Council hereby authorizes an amendment to the Agreement as follows:

 

(a)        The Investment Period shall be extended for five additional years such that the Investment Period ends on December 31, 2012.

 

(b)        The special source revenue credit provided for in the Agreement shall not apply with regard to investment during the Extension.

 

            Section 2.         The County hereby confirms and acknowledges that investments in the Expansion placed in service during the Investment Period or the Extension will be eligible for a fee in lieu of taxes.  The fee shall be calculated using a 6% assessment ratio and a fixed millage rate equal to 257 mills, all as provided in the Agreement.

 

            Section 3.         It is hereby found, determined, and declared by the County Council, as follows:

 

(a)        The Expansion will constitute a “project” as said term is referred to and defined in the Act, and the County’s actions herein will subserve the purposes and in all respects conform to the provisions and requirements of the Act.

 

(b)        The Expansion and the payments in lieu of taxes set forth herein are beneficial to the County, and the County has evaluated the Expansion based upon all criteria prescribed by law, including the anticipated dollar amount and nature of the investment to be made and the anticipated costs and benefits to the County.

 

(c)        The Expansion is anticipated to benefit the general public welfare of the County by providing services, employment, recreation, or other public benefits not otherwise adequately provided locally.

 

(d)        The Expansion gives rise to no pecuniary liability of the County or any incorporated municipality or a charge against the general credit or taxing power of either.

 

(e)        The purposes to be accomplished by the Expansion, i.e., economic development, creation of jobs, and addition to the tax base of the County, are proper governmental and public purposes.

 

(f)         The inducement of the Expansion within the County and State is of paramount importance.

 

(g)        The benefits of the Expansion to the public will be greater than the costs to the public.

 

            Section 4.         The form, terms, and provisions of the Amendment presented to this meeting are hereby approved, and all of the terms, provisions and conditions thereof are incorporated herein by reference as if the Amendment were set out in this Ordinance in its entirety.  The Chairman of the County Council is authorized, empowered, and directed to execute, acknowledge, and deliver the Amendment in the name of and on behalf of the County, and thereupon to cause the Amendment to be delivered to the Company.  The Amendment is to be in substantially the form now before this meeting and hereby approved, with such changes therein as shall not be materially adverse to the County and as shall be approved by the officials of the County executing the same, upon the advice of counsel to the County, such officer’s execution thereof to constitute conclusive evidence of such officer’s approval of any and all changes or revisions therein from the form of the Amendment now before this meeting.

 

            Section 5.         The Chairman of the County Council, for and on behalf of the County, is hereby authorized and directed to do any and all things necessary to effect the execution and delivery of the Amendment and the performance of all obligations of the County under and pursuant to the Amendment.

 

            Section 6.         The provisions of this Ordinance are hereby declared to be separable, and if any section, phrase, or provision shall for any reason be declared by a court of competent jurisdiction to be invalid or unenforceable, such declaration shall not affect the validity of the remainder of the sections, phrases, and provisions hereunder. 

 

            Section 7.         All orders, resolutions, ordinances, and parts thereof in conflict herewith are, to the extent of such conflict, hereby repealed, and this Ordinance shall take effect and be in full force from and after its passage and approval.

 

(Signature Page Follows)

            Passed and approved this 19th day of December 2007.

 

                                                                        NEWBERRY COUNTY,

                                                                        SOUTH CAROLINA

 

 

                                                                        ____________________________________

                                                                        By:  Henry B. Summer

                                                                                Chairman of County Council

                                                                                Newberry County, South Carolina

 

STATE OF SOUTH CAROLINA            )

                                                            )

COUNTY  OF  NEWBERRY            )

 

I, the undersigned, Clerk to County Council of Newberry County, South Carolina (“County Council”) DO HEREBY CERTIFY:

 

That the foregoing constitutes a true, correct, and verbatim copy of an Ordinance adopted by the County Council.  The Ordinance was read and received a favorable vote at three public meetings of the County Council on November 14, 2007, December 5, 2007, and December 19, 2007.  At least one day passed between first and second reading, and at least seven days passed between second and third readings.  A public hearing was held on December 5, 2007, and notice of the public hearing was published in The Newberry Observer on November 7, 2007.  At each meeting a quorum of County Council was present and remained present throughout the meeting. 

 

Attached hereto are excerpts of the minutes of the meetings of the County Council.  The County Council complied with the Freedom of Information Act, Chapter 4, Title 30 of the S.C. Code of Laws, 1976, in connection with said meetings of County Council.

 

The Ordinance is now in full force and effect.

 

IN WITNESS WHEREOF, I have hereunto set my Hand and the Seal of the Newberry County Council as of this 19th day of December, 2007.

 

 

                                                                        _________________________________

                                                                        Susan C. Fellers,

Clerk to Newberry County Council

Newberry County, South Carolina