Lincoln City Council approves intergovernmental agreement with county regarding Mulligan Solar Farm

 

[May 27, 2021] 

After two weeks of debate and discussion, on May 17th the Lincoln City Council approved an intergovernmental agreement with the county pertaining to the construction of the new Mulligan Solar Farm south of Lincoln on Route 66.

At that vote the county had not yet made a decision as to whether or not to approve that same agreement. Therefore, at the end of the conversation in the city council, there was a proposal for a “Plan B” that would move the agreement from a mutual understanding about the decertification of the enterprise zone land assigned for the construction of the solar farm, to a memorandum of understanding that the city would be empowered to request the decertification at the appropriate time.

Either action will have the same end result. Either the county agrees with the timeline for the decertification or the city makes the request on its own for decertification. Either way the result is that the Mulligan Solar Farm may utilize enterprise zone status throughout the construction of the farm plus 18 months after it becomes operational.

At the May 11th meeting of the council, the agenda item was listed as an intergovernmental agreement between the city of Lincoln and Apex Clean Energy. When Mayor Tracy Welch introduced the topic he labeled as an agreement between the city and county.

He reminded the council that the city has already agreed to permit designation of enterprise zone land for the construction of the Mulligan Solar farm. He said that at that time, there was a contingency placed on the agreement that there would be a sub-agreement with the county pertaining to the decertification of the land.

Welch said that he and city attorney John Hoblit had drafted an intergovernmental agreement that was “heavily based” on a template for said decertification by Apex Energy. Welch said he had sent the draft to Erin Baker of Apex Energy and to Logan County Board Chairman Emily Davenport. Welch said since that time “this topic has taken on a life of its own.”

He said that he received back an amended version with amendments “not made by us.” He said that the other parties were frowning on the 180 day timeline for decertification after the project was completed and operational. Welch said that there was a concern that placing a timeline in the agreement would cause a problem for the project with the Illinois Department of Economic Opportunity. The IL DCEO administers the Enterprise Zone and has control over how it is utilized by the respective enterprise zone communities.

Welch said he didn’t understand how or why this would be an issue with DCEO because the agreement was an internal agreement between the city and county. He said the agreement was only to keep the city and county in sync as to when the request for decertification should take place. He added that the language specifies the process will start at that time, which doesn’t necessarily mean that it will happen at that time.

Welch pin-pointed terminology in the new draft “in good faith” and said it made “some of us nervous.” He explained that the term was referring directly to making the request at the appropriate time. He said the request could be brought to the table but then someone could say ‘we’re not interested.” The fact would remain that all came together in good faith, but nothing happened.

Welch said that the decision before the city would be, will they go along with the new amended version or will they revert back to the original document drawn up by Hoblit.

Steve Parrott asked who amended the agreement in the first place and Welch said it was the attorney for Apex Energy. Welch said that in itself was confusing because the timeline language was the same as it had been in the template provided by Apex. Because of that, he couldn’t understand specifically why this has become an issue now.

Parrott then asked if the county had issues with the changes. Welch said that Will D’Andrea, who is the administrator of the enterprise zone, was also concerned about the timeline the city had put in the original agreement.

Rick Hoefle asked what the city had to gain by letting this project move forward. Welch said that there were differing opinions. He said that some believe the city benefits because the high school receives money for this, but Welch said that the city doesn’t see that money and that it doesn’t do anything to help with city revenues. He said also there will be some short-term benefit to local businesses during construction. Chuck Conzo reminded the council that Apex has also agreed to pay $10,000 per year for five years to the city.
 

Hoblit was on the phone for the meeting. He said that he is concerned about exposing the city to liability on the topic. He said that there have been some comments that the city did not have the legal right to place a time limit on the decertification. He said he is still researching statutes and was not prepared to give a solid answer about those comments.

Hoefle asked if the attorney would like more time to research. Hoblit said more time would be good. Hoefle then wanted to know if there was a time limit on getting all these details worked out. Welch said, no, but the project can’t begin until everything is in place.

Erin Baker with Apex was also on the phone and said that while there were no time limits, the company was planning on taking delivery of construction materials in June. However, once the city and county do their part, there is still work that Apex will have to do directly with DCEO, so relatively speaking, yes, time is of the essence.

Baker said that Apex is willing to work with the city and accept the city’s terms, but to make changes now means that the company will also have to amend all the agreements with all the other communities that have already signed off on the original plan.

Welch said he didn’t think that was necessary. He said that there seems to be a misunderstanding as to what the city is seeking. He said the agreement before the council pertained to the relationship between the city and the county and was aimed at keeping both parties accountable for the decertification request with the same end goal. Welch said he didn’t want the city to say “okay, we’re ready” and the other parties say, no, not yet. He said the timeline was aimed to keep everyone involved ‘of a like mind.’

Baker said that the company was ready to comply. She said that some of the changes made to the original document were due to concerns expressed by D’Andrea. She said he had said he was afraid that Apex would start the project and not finish it. She said that the language was changed, taking out the time line and saying instead “at any time” so that the county and city could request decertification even if the project wasn’t completed.

Kevin Bateman said that the city had provided an agreement with concrete terms, but when the wording was changed to “good faith agreement” that had taken away the concrete. He said it opened the door for “yes, it could be decertified, but no promises made.” Baker said that again that change was due to concerns expressed by D’Andrea.

Parrott asked Baker if DCEO has approved the request by Apex. Baker said that this is the first time Apex has requested enterprise zone and so far they have received no answer.

The final word on the topic that evening was that Welch and others would meet in the coming week and try to iron out the misunderstandings and get the agreement written the way it should be.

The topic was back on the table for a vote at the Monday, May 17th meeting. Welch introduced the topic with Parrott offering the motion and Hoefle providing the second.

Welch then said that in the last week there had been a meeting with Welch, Downs, Hoefle, Hoblit, Davenport, Baker and Kyle Berry with Apex, and D’Andrea. Welch asked that Downs and Hoefle comment on the call.

Hoefle said that the county board has a proposal that is very similar to what the city had laid out, but there was a question as to whether board members would pass on a motion to approve that proposal. He said that they discussed an alternate proposal just in case. He said that Baker would send a letter stating that Apex was going to move ahead with the project for certain. This addressed a concern of D’Andrea that with the stipulations outlined in the proposal Apex would dump the project all together.

Welch said that Logan County Board member David Hepler had made a suggestion to the committee that the county defer the decision to the city. Welch explained that if the county followed that suggestion then the authority to request decertification would be given over to the city alone. The county would not have to sign an intergovernmental agreement and would not influence the timeline to request the decertification.

Welch said because the county hasn’t voted yet, the city needs to have a Plan B. Plan B would be a memorandum of understanding with the city and county stating that the city would move forward with the request for decertification after the solar farm is completed and has been operational 18 months. Welch said that the original 180 day stipulation was the sticking point that raised too many concerns and red flags for the other parties.

Welch said that he had heard from Baker via email and Apex is on board with the Plan B if it is needed.

Welch said that because there is a time crunch for Apex to get started on the project, he would like for the council to go ahead with the vote to approve the original intergovernmental agreement. He said depending on the county vote it might not be needed, but for the sake of the project, he didn’t want the city to be responsible for delaying progress for another month.

Welch called for the vote and with all seven aldermen present it passed unanimously.

At the Logan County Board’s Regular meeting on Tuesday, May 18, the board approved a motion stating the Logan County Board agrees to defer any action and discussion making authority regarding future decertification of the Mulligan Solar Farm to the Lincoln City Council.

[Nila Smith]