#02 & #03 Access issues to 3377 Milton Avenue (File Res. #2011-788 & #2011-789)
Community Development Department Memorandum
Date: May 9, 2011
TO: Eric J. Levitt, City Manager
FROM: Brad Schmidt, AICP, Associate Planner
SUBJECT: Action on a proposed resolution accepting the conveyance of land for
public right-of-way at 3377 Milton Avenue and at 3359 Milton Avenue (File
Resolution No. 2011-788).
Action on a proposed resolution authorizing the acceptance of a quit claim
deed from WisDOT to permit access to STH 26 for the property located at
3377 Milton Avenue and a separate agreement between the City and the
owner of property at 3377 Milton Avenue (File Resolution No. 2011-789).
SUMMARY
The Planning Commission approved a conditional use on February 21, 2011, for a
gasoline/convenience store and a restaurant with a drive-up window at 3377 Milton
Avenue. One critical aspect of this proposal includes obtaining vehicular access to the
site from Milton Avenue. In order to provide access, the existing Milton Avenue frontage
road located on the adjacent property to the south (adjoining Kwik Trip) must be
extended a short distance north. The existing curb opening to the Milton Avenue
frontage road will continue to be utilized with this proposal.
However, in order for these measures to be implemented, the following actions must
occur:
1. City acceptance of a deed conveying land for the extension of a frontage road
at 3359 Milton Avenue.
2. City acceptance of a deed conveying land for right-of-way purposes at 3377
Milton Avenue to permit public access to Morse Street.
3. City acceptance of a deed from WisDOT to transfer jurisdictional control for
the STH 26 (Milton Avenue) driveway/access point adjacent to 3377 and
3359 Milton Avenue.
4. Agreement executed between the property owner of 3377 Milton Avenue and
the City complying with conditions of WisDOT to mitigate any future negative
impacts associated with the STH 26 driveway/access point.
Failure to approve any of the four requests listed above will result in a denial of the
Conditional Use Permit granted by the Plan Commission for the commercial
development located at 3377 Milton Avenue.
DEPARTMENT RECOMMENDATION
The Plan Commission and Community Development Department recommend that the
City Council support a motion to adopt Resolution No. 2011-788 accepting the
conveyance of land for public right-of-way at 3377 Milton Avenue and at 3359 Milton
Avenue; and a motion to adopt Resolution 2011-789 authorizing the acceptance of a
quit claim deed from WisDOT to permit access to STH 26 for the property located at
3377 Milton Avenue and a separate agreement between the City and the owner of
property at 3377 Milton Avenue.
CITY MANAGER RECOMMENDATION
The City Manager defers to the Plan Commission recommendation.
SUGGESTED MOTION
A motion to adopt Resolution No. 2011-788 accepting the conveyance of land for public
right-of-way at 3377 Milton Avenue and at 3359 Milton Avenue; and a motion to adopt
Resolution 2011-789 authorizing the acceptance of a quit claim deed from WisDOT to
permit access to STH 26 for the property located at 3377 Milton Avenue and a separate
agreement between the City and the owner of property at 3377 Milton Avenue.
ANALYSIS
A. The 3377 Milton Avenue site is currently undeveloped and was created as part of
the 2005 Oasis/Menards redevelopment project. The property is located at the
southwest corner of Milton Avenue and Morse Street.
B. On February 21, 2011, the Plan Commission approved a Conditional Use Permit
for a gasoline/convenience store and restaurant with a drive-up window (Exhibit
“A”). The project was approved subject to a variety of conditions to improve
traffic flow in and around the site. Two of the conditions required the dedication
of land for public right-of-way to allow access to Milton Avenue and include the
following:
1. Positive action on the acceptance and recording of a quit claim deed for a
public right-of-way conveyance adjoining Milton Avenue by the City
Council.
2. Recording of a deed held in trust by the City for a ten-foot wide strip of
land to extend the public frontage road north to the subject site. Positive
action by the City Council on acceptance of the deed is required.
C. In 1999, the Kwik Trip site located at 3359 Milton Avenue was redeveloped and
the lot was reconfigured as part of a Certified Survey Map. As part of the
process, the property owner (Marwood Corp.) dedicated land to allow for the
extension of the Milton Avenue frontage road adjoining the Kwik Trip parcel;
however, the property owner was reluctant to provide a frontage road dedication
extended to his north property line since a through connection of the frontage
road to Morse Street would not occur with that action. Staff negotiated an
agreement with Marwood Corp. that allowed a quit claim deed for the remaining
ten-foot portion of the right-of-way to be held in escrow by the City Attorney
(Exhibit “B”). The deed would be held in escrow until such time as the frontage
road dedication on the property to the north occurred to allow for an extension of
public access through to Morse Street.
D. The escrow agreement defines certain conditions which provide the City Attorney
authority to record the deed held in escrow. The owner of the proposed
development site, BLM Land, LLC, will dedicate by quit claim deed land for a
frontage road extension adjoining Milton Avenue, as described in the agreement
(Exhibit “C”). Additionally, a “Public Access” easement will be established across
other portions of the development site to allow traffic to access the property from
the Milton Avenue frontage road and exit onto Morse Street.
E. Concerns by two nearby businesses/property owners regarding the use of the
Milton Avenue access point were raised at the Plan Commission meeting and in
other correspondence with City Staff. The concerns focused on safety of
vehicles entering and exiting the Milton Avenue frontage road at the existing
opening in front of Kwik Trip. Staff believes that the proposed widening of the
Milton Avenue access point will reduce potential conflicts at this intersection.
The Planning Commission also required a condition to prohibit traffic from exiting
the development site onto the Milton Avenue frontage road and required certain
design features and placement of appropriate signage to reinforce this traffic
pattern.
F. The development site adjoins STH 26. The Wisconsin Department of
Transportation (WisDOT) typically maintains review and approval authority over
any access changes to State highways such as STH 26. However, in this case,
WisDOT agreed to allow for a jurisdictional transfer of this access point to the
City provided that a vehicle crash threshold not be exceeded (Exhibit “D”) at the
Milton Avenue or Morse Street access points, and provided that traffic does not
back up to the Milton Avenue and Morse Street intersection. If these conditions
are exceeded, the City would be responsible to remedy or reduce vehicle traffic
crashes including initiating traffic studies and paying for modification to the
access points to improve vehicular safety. One of the alternatives provided may
include closing the access point on the development site.
G. In a similar fashion, the City is requiring that the developer acknowledge the
restrictions outlined in the quit claim deed from WisDOT and accept similar terms
by entering into a separate agreement with the City (Exhibit “E”). The agreement
between the City and the land owner/developer of 3377 Milton Avenue places the
responsibility on the developer and/or future property owner(s) to pay for all costs
associated with any traffic or engineering studies required by the City. The
developer or property owner(s) are also required to pay for all site improvements
or modifications, including closing access to the development site from the Milton
Avenue frontage road or Morse Street if it is found that vehicle accident rates
exceed WisDOT crash rate threshold data. The agreement also limits access off
of STH 26 (Milton Avenue) to right-in only to the subject site. Traffic is prohibited
from exiting the subject site onto the Milton Avenue frontage road.
PLAN COMMISSION ACTION – 21 FEBRUARY 2011
Brad Schmidt, Associate Planner, presented the written staff report.
Chairperson Zolidis asked about the ingress point over the 10-foot wide gap to clarify that
there would not be egress from that spot onto Milton Avenue. Schmidt confirmed that was
correct due to safety issues related to traffic pulling out onto Milton Avenue. Chairperson
Zolidis asked how no-egress would be controlled and Schmidt answered that staff was
working with Angus Young to increase the landscape island in the area to narrow it and that
there would be signage to discourage egress as well. Chairperson Zolidis asked if there
was currently egress from the frontage road onto Milton Avenue and Schmidt answered that
there was right-out egress.
Commissioner Werner asked if Condition #1 of the staff report would be nullified if it is
determined that the Wisconsin Department of Transportation does not have review authority
over a change of use at the Milton Avenue access point. Cherek confirmed that was so and
added that if Wisconsin Department of Transportation approval is required, then the
conditional use permit is subject to the Wisconsin Department of Transportation allowing for
the use of the Milton Avenue access point.
Commissioner Werner asked if Condition #5 would be nullified if the adjacent owner didn’t
agree to allow access for the construction of roadway improvements. Cherek stated that the
language may need to be tightened up on both Conditions #1 and #5 in regards to
nullification.
The public hearing was opened and the following persons appeared to speak. Speakers
who had already spoken at previous meetings on this topic were given a three-minute time
limit:
Attorney John Groessl, representing Marwood Corporation, referred to the “Required
Findings for Conditional Use Permit Approval” section of the staff report. He stated that
he did not believe the plan met Finding #2 as Kwik Trip will be affected with vehicles
using this driveway for ingress into the SARA project, that Kwik Trip will lose an egress
point and the value of the property will be diminished. He stated that adequate access
would not be provided as required in Finding #4. He added, referring to Finding #5, that
adequate traffic measures were designed for this site five years ago. Lastly, he believed
that required Finding #6, regarding adequate size and shape to accommodate this use,
was not being met.
Attorney Groessl stated that the project required 500 cars a day to make the service
station viable and that many cars slowing down rapidly on Milton Avenue to make a u-
turn could cause safety concerns. He also felt that there wasn’t fairness and
consistency in the review of this project as compared to the when the frontage road was
required for Target, Perkins, Fazolis, Arbys, Kwik Trip who were forced to pay for curb,
gutter, paving. He stated that his client will not agree to release the escrow deed but will
instead go to court starting with a restraining order.
Commissioner Perrotto stated that he would like staff to address each of Attorney
Groessl’s comments.
Carl Weber, Public Works Director, addressed Attorney Groessl’s first concern regarding
no access southbound through the new development. He stated that this was correct
and that initially what was considered was a two-lane access easement that would allow
movement both north and south, but in order to reduce the number of conflicts at the
current access point (north side of Kwik Trip property), staff added a requirement that
there be no egress southbound from the new development. In order to block egress
from that development, there is no way to allow egress southbound through the site.
Weber addressed the second concern regarding the restriction of egress from the Kwik
Trip site by stating that nothing in the site plan changes in any way the traffic movements
in and out of the Kwik Trip property as they occur now. He indicated that restrictions to
the southbound movement would be on the new development site fully north of Kwik
Trip’s existing access point and that restriction will be controlled not only by signage but
by the extension of a landscape island which will reduce the lane width so that it is not
two-lane. He added that movements into the site would logically come from the
interstate or north of the interstate so egress would be sought at the intersection of
Milton and Morse to return to the north.
Weber stated that he could not speak to the concerns regarding job loss or diminished
value of property.
Attorney Nancy Johnson, Brennan Steil Law Firm, on behalf of Milton Avenue Holdings,
stated objections to the ingress & egress points at Milton Avenue and Morse Street as
she believed that there are traffic flow problems even with minor modifications to include
this as an ingress. She felt that putting up a sign doesn’t necessarily prohibit people
from exiting. She stated that she doesn’t believe that the required Findings #2, #3 and
#5 of the staff report have been met and recommends denial of the conditional use
permit.
Commissioner Perrotto asked Attorney Johnson if she was still not satisfied by Carl
Weber’s responses and she stated that she doesn’t believe that changing the access
point from ingress-egress to ingress only is going to prevent a traffic problem on Milton
Avenue.
Commissioner Werner asked Attorney Johnson if she had any proof of diminished value
to property and she answered that she did not but she assumed there would be
diminished value if Milton Avenue becomes congested and people have trouble
accessing the site.
Paul Phillips, DUP Engineering, stated that he reviewed the site plan for the project and
that the main concern is the traffic on Milton Avenue. He stated that a U-turn would be
done at a slower rate than a typical 90 degree right-turn drive which would cause back
up onto to Milton Avenue. He added that if someone has a green light they would be
expecting to drive through but may have to slow to a stop which could raise the potential
for rear-end accidents in that intersection. He stated that he sees a potential loss of
revenue for businesses that are currently operating there because they would be harder
to access, and the Morse Street access could become blocked with backed-up traffic.
Commissioner Perrotto said that Mr. Phillips has some valid points and asked if Weber
could address them. Weber, responding to Mr. Phillips concern about turning from
Milton Avenue into the existing access, stated that it’s not an ideal traffic situation for
Highway 26, however, it is an existing access point. He indicated that staff was asked
early on if the new development could have their own access point and staff said no. He
continued that because it’s an existing access point, traffic in this area is accustomed to
movements being made at this location. The ingress is built as a drive apron rather than
as a street and drivers making a turn there need to slow down at the crosswalk to protect
pedestrians. He stated, therefore, that the difference in speed of those making a U-turn
movement rather than a 90-degree turning movement would not be much different. He
added that there would be an expectation that those turning would be using a turn signal
and break lights and that drivers following them need to respect that. He continued that
the accident history at this location shows 4 traffic accidents at this access point in the
past 3 years. One accident involved a driver making an inappropriate lane change, from
the center lane to the right lane striking the vehicle in the right lane, which had little to do
with turning movements in and out, and another accident involved a driver rear-ending
an individual who was in the driveway before they were able to complete their turn. The
other two accidents were vehicles egressing from the Kwik Trip site and colliding with
vehicles that were traveling on Milton Avenue. There were no rear-end accidents related
to the current configuration at the intersection.
Weber stated that there shouldn’t be any traffic backups to the Morse Street entrance as
the turn lane by design is a certain length to provide storage for the number of vehicles
expected to cue at that location. As far as concerns regarding backups in the
roundabout, he stated that roundabouts are designed to slow people down for the safety
of both vehicle and pedestrian traffic.
Commissioner Werner asked if having three lanes on Milton Avenue, when entering or
existing the site, improves flow or reduces any of the potential backup problems. Weber
stated that by law, someone leaving the site from Morse to Milton going south would
need to enter into the nearest lane. Mr. Philips concurred with Weber’s statement and
added that on the flip side, if you’re turning right off of Morse going eastbound, you’d turn
into an immediate right-turn lane which could cause a potential conflict for people turning
right on red. However, the accident history at this location doesn’t point this out as an
issue.
Jeff Woodman, representing Marwood Corporation & Lawrence/Gloria Woodman, 406
Matterhorn Drive, Verona, stated that they were against the plan as presented tonight
and questioned why the City reversed its position from 5 years ago when they cited
safety concerns regarding opening up and extending the access road. He asked about
the new condition (#5) within the staff report concerning the extension of the private
roadway west of the site and said that he had not seen or agreed to the referenced
Attachment B. He stated that they would like more information regarding this and how it
would affect them.
In responding to Mr. Woodman’s question, Weber stated that the discussion five years
ago involved alternatives for getting traffic from the south to the north and his
predecessor came up with three proposals. One was an extension of the frontage road
in a conventional manner, which would have intersected with Morse Street in the same
way that a frontage road intersects with other streets up and down Milton Avenue. A
common problem with frontage roads is that their intersections with the streets
perpendicular to the main road are too close and don’t provide enough queuing distance
between the frontage road and the main road to allow vehicles to ingress and egress
while there are vehicles stopped for the light on the side road. For that reason, the City
did not want to see a conventional frontage road alignment there. A second alternative
that came up followed the south and west sides of the new parcel. The third alternative
was to complete a north south connection roadway between what is the existing east-
west road in front of Target carrying past the strip mall and Kwik Trip out to Milton
Avenue and the roundabout at Morse St. City Staff has put great effort into brokering an
agreement between the new developer, existing property owners and the adjoining
owner.
Regarding Mr. Woodman’s comment on Condition #5, Weber indicated that the
requirement staff has put on the new developer is that they do their portion to get the
roadway built to their property line but if Marwood was to provide permission to get this
completed and constructed (public access easement), that the developer still would hold
that responsibility as they have offered to pay for the cost of that improvement. Staff has
an agreement from this developer (Sara) to do its part but the condition is open ended
as it is based on the agreement of the adjoining owner. Weber stated that to date, staff
has not been able to accomplish the task of getting the parties to agree and that
Condition #5 does not require anything of Marwood; it just requires something of SARA if
Marwood agrees to participate.
Chairperson Zolidis asked who owns the westerly access road and Weber answered
that it was owned by BLM, the developer of the Menards site.
James Campbell, Representing Cambeck Petroleum, owner of Exxon station on Milton
Avenue. Stated that the access point to this development is less than ideal on Milton
Avenue and questioned why something that is less than ideal would be placed on the
gateway into Janesville where many dollars have been spent doing traffic studies. He
stated that the frontage roads have been a problem for so many years and asked why
the City would take a chance on creating more traffic problems. He stated that the
development would need potentially 500 cars per day to exist and that he felt most of
those cars would head for the nearest driveway which would be on Milton Avenue.
Joseph Stadleman, AYA, representing Sara Investments. Stated that several changes
to the plan have been agreed upon including the angled fuel canopy, reduction of one
fuel pump, elimination of diesel from the site, rear access road design, moving of access
easement to pave more land, and elimination of the ability to egress onto Milton Avenue
from that location at Milton Avenue. He stated that the project was within the DOT
standards of 75 feet from the intersection having ingress immediately from Milton
Avenue onto our property. He said that traffic counts on Milton Avenue are roughly
30,000 per day past the site and that there had only been 4 accidents there within the
past 3 years. He said that adding an outlet into the ingress means that if Kwik Trip is
backed up, there will be an option to take a right and move off of Milton Avenue and that
in his opinion, adding this egress makes it safer. Lastly, he said that the taper is
designed for a larger volume of traffic than will ever be seen there and is designed for
highway speeds.
Eric Schwartz, President of Sara Investments, Madison, WI, and developer of the site.
Stated that at the Plan Commission’s request, he had met with Mr. Woodman to try to
work out some of the issues regarding the project but didn’t have any success. He
asked that the Plan Commission not delay their decision.
Bill Mears, 21 Forest Park Blvd, one of the owners of the site, stated that he worked on
this gateway several years ago when developing the new Menards site. He stated that
he appreciated all of the hard work that City Staff has put forth during this process and
that he would like to see the Plan Commission come to a decision on this item today.
The public hearing was closed.
Commissioner Voskuil asked what would happen if the Plan Commission voted on this item
tonight and then found out that the Wisconsin Department of Transportation would not allow
the Milton Avenue access point. Cherek stated that based on staff’s conversation with the
DOT, this change is viewed as an eligible alteration in an area along their right-of-way that
would require a permit but that staff is still awaiting final verification on that. Weber stated
that because this is a connecting highway, the City holds the authority but the DOT holds
the right to review and object. He added that the DOT advised staff they had purchased the
access rights back in the 60’s, permitted a driveway at this location under certain conditions,
and that they can chose to not allow those conditions to be expanded. Weber answered
that if the Plan Commission chose to approve staff’s recommendation on the project tonight,
the DOT cannot override that decision but they can restrict access.
Chairperson Zolidis asked what the timeline for issuance of a permit would be if the DOT
approves the access point. Weber stated it would depend on how the state looks at the
widening of the driveway and whether they determine it needs to go through a permit
process. Staff is still waiting for a definitive answer from the state on this question.
Commissioner Perrotto stated that although the project is not ideal, it’s rare for any project to
be ideal and that there are always concerns and problems which hopefully can be mitigated.
He added that he was impressed with Staff’s work and Carl Weber’s rebuttal and that he will
be voting for approval of the conditional use permit.
Commissioner Voskuil stated she is torn on this project but she was surprised by the
number of non-accidents at this location. She stated that everyone did a good job of
presenting information on the project and that she will vote in favor of the conditional use
permit.
Chairperson Zolidis stated that she still has ingress/egress concerns and would be voting
against the project.
There was a motion by Commissioner Adams with a second by Commissioner Perrotto to
approve the request subject to Staff’s recommendation. Commissioner Werner offered a
friendly amendment to Conditions #1 and #5. With acceptanceof the friendly amendment,
the motion presented was to approve the conditional use permit to allow the construction of
a gasoline station/convenience store and a restaurant with a drive-up window at the
southwest corner of the intersection of Milton Avenue and Morse Street (3377 Milton
Avenue) subject to the following conditions:
1. It appears likely that the Wisconsin Department of Transportation has review approval
authority over a change of use of the Milton Avenue access point and has not yet made
a final determination. Therefore, approval of this use is subject to the Wisconsin
Department of Transportation allowing for the use of the Milton Avenue access point
adjacent to the development site. If it is determined that the Wisconsin Department of
Transportation does not have review approval authority, this condition will be nullified.
2. Approval of this use is subject to positive action on the acceptance and recording of a
quit claim deed for a public right-of-way conveyance adjoining Milton Avenue by the City
See Attachment A
Council. ().
3. Approval of this use is subject to the recording of a deed held in trust by the City for a
ten-foot wide strip of right-of-way to extend the frontage access road dedication north to
See Attachment A
the subject site (). Positive action by the City Council on acceptance
of the deed is required.
4. The private roadway adjoining the west side of the developmental site must be extended
See Attachment A
and improved to the south property line ().
5. The project developer must extend and improve the private roadway located west of the
site onto the adjacent property to the south (behind Kwik Trip), as shown on the site
plan, if the adjacent property owner agrees to allow access within two years of
conditional use permit approval for construction of roadway improvements. This
condition shall be nullified if the project developer does not construct a gasoline station
and restaurant with drive-up window as being requested by this conditional use.
Improvements to this public access road must follow substantially the design specifics as
Attachment B
shown on.
6. Compliance with the conditions of the updated site plan review letter dated February 10,
2011.
7. That the signage for the proposed building meets the requirements of the Janesville Sign
Ordinance for Sign District A except as follows:
Two ground signs may be permitted instead of one.
Per the submitted ground sign plan, the large “hi-rise” pylon sign shall be located
on the north section of the lot adjacent to Morse Street. The “low rise” ground
See
sign shall be located on the east section of the lot adjacent to Milton Avenue (
Attachment A
).
The “hi-rise” pylon sign shall not exceed 300 square feet per face.
The “low rise” sign shall not exceed 90 square feet, excluding the gas price sign
which is exempt from signage regulations.
8. The access on the south property line near the Milton Avenue access point connecting
See Attachment
to the frontage road must be designed and marked as ingress only. (
A
).
9. At no time shall diesel fuel be sold on this site.
The motion carried on a 5-1-0 vote with Chairperson Zolidis voting in opposition.
cc: Eric Levitt
Jay Winzenz
Duane Cherek
RESOLUTION NO. 2011-788
A resolution authorizing the acceptance of a right-of-way dedication at 3377
Milton Avenue and the acceptance of a separate deed held in trust adjoining
property located at 3359 Milton Avenue for a public frontage road extension.
WHEREAS,
the City of Janesville and Marwood Corporation entered into an escrow
agreement on January 6, 1999, providing an executed quit claim deed for a public
frontage road conveyance to be held in escrow by the City Attorney; and
WHEREAS
, said quit claim deed would dedicate as right-of-way to the City of Janesville
a 10-foot wide parcel of land to extend the Milton Avenue frontage road north to a
frontage road to be constructed and dedicated to the City upon the property located at
3377 Milton Avenue as described in “Attachment A”; and
WHEREAS
, BLM Land, LLC, owner of adjoining property to the north located at 3377
Milton Avenue, proposes to dedicate as public right-of-way a 30-foot wide strip of land
adjacent to Milton Avenue extending from the south property line north to Morse Street
as described in “Attachment B”; and
WHEREAS
, the proposed BLM Land, LLC dedication of land upon 3377 Milton Avenue
would satisfy the condition(s) precedent in the aforementioned escrow agreement
between the City and Marwood Corporation granting the City Attorney the authority to
record the quit claim deed; and
WHEREAS
, the Janesville Plan Commission reviewed and voted to approve a
conditional use permit for a proposed gasoline/convenience store and restaurant with
drive-up window subject to City Council: (1) acceptance of the deed held in trust, and
(2) the conveyance of land for public right-of-way at 3377 Milton Avenue; and
WHEREAS
, the acceptance and recording of said conveyances for public right-of-way
purposes will facilitate traffic circulation improvements which benefit this specific area of
City, the City as a whole, the community, and its citizens; and
WHEREAS
, the Janesville Plan Commission reviewed this proposed land acquisition in
combination with their approval of the conditional use permit at their meeting on 3
January, 2011 recommending approval, but not commenting upon the financial aspects
of the proposed transactions; and;
WHEREAS
, the Common Council of the City of Janesville hereby find these two matters
and proposed conveyances are of benefit to, and in the best interests of, the specific
area and the City.
NOW, THEREFORE, BE IT RESOLVED
, by the Common Council of the City of
Janesville, that they hereby approve and authorize the City of Janesville’s acceptance
of said conveyances from the respective owners of property adjoining Milton Avenue
south of Morse Street; and
BE IT FURTHER RESOLVED
, that the City Manager and his designee(s) may, from
time to time, negotiate, draft, amend, execute and enter into such additional
agreements, forms, conveyances, documents, and amendments thereof; and take all
other action(s) concerning these two property conveyances and related matters as the
City Manager may, from time to time and at any time, decide necessary and/or
desirable to effectuate the intent of this resolution.
ADOPTED:
Motion by:
Second by:
APPROVED:
Councilmember Aye Nay Pass Absent
Brunner
Dongarra-Adams
Eric J. Levitt, City Manager
Liebert
McDonald
ATTEST:
Rashkin
Steeber
Voskuil
Jean Ann Wulf, City Clerk-Treasurer
APPROVED AS TO FORM:
Wald Klimczyk, City Attorney
Proposed by: Community Development Department
Prepared by: Community Development Department
and City Attorney
RESOLUTION NO. 2011-789
A resolution authorizing the City Manager to accept and record a quit claim deed
conveyance from the Wisconsin Department of Transportation (WisDOT)
concerning an Access Point on STH 26 (Milton Avenue) and further authorizing
the City Manager to enter into a Memorandum of Understanding with BLM Land,
LLC and Sara Investment Real Estate, LLC., concerning the STH 26 (Milton
Avenue) Access Point pertaining to their property at 3377 Milton Avenue.
WHEREAS,
BLM Land, LLC. (hereinafter “BLM”) owns certain real property located at
3377 Milton Avenue located on the southwest corner of STH 26 (Milton Avenue) and
Morse Street in the City of Janesville, County of Rock, State of Wisconsin (hereinafter
Subject Property”
“); and
WHEREAS
, BLM intends to sell the Subject Property in fee simple to Sara Investment
Developer”
Real Estate, LLC. (hereinafter “) who thereupon desires to construct a
Development”
gasoline/convenience store with a restaurant (hereinafter “) and obtain
right-in only access off of STH 26 (Milton Avenue) to the current Milton Avenue
Subject Property
frontage road adjoining the to the south; and
WHEREASAccess Point”
, the STH 26 (Milton Avenue) access point (hereinafter “)
Subject Property
would not provide direct access to the but would provide right-in only
Subject Property
access to the from the Milton Avenue frontage road (see Attachment
“A”); and
WHEREASWisDOT”
, the Wisconsin Department of Transportation (hereinafter “)
Subject Property
purchased the access rights for the STH 26 frontage of the several
WisDOT
years ago; however, now has agreed to provide to the City of Janesville
City”Access
(hereinafter “) a jurisdictional transfer to allow, maintain, and alter the
PointWisDOT
if needed, subject to various conditions set forth in the quit claim deed
conveyance to the City (see Attachment “B”); and
WHEREASWisDOT
, is requiring that in order to allow for the jurisdictional transfer of
Access PointCityCity
the to the , the agrees to accept and record a quit claim deed
conveyance that specify the terms, conditions, and responsibilities associated with this
City
Access Point, and/or that subject the to current and future conditions,
requirements, and performance as set forth in the attached quit claim deed conveyance;
and
WHEREAS
, the terms and provisions of the transfer document and conveyances allow
WisDOT
to require future traffic studies, construction, improvements, and even closure
Access Point
of the if warranted by a demonstrated accident history at the intersection
which exceeds statewide crash rates for this type of roadway and/or as otherwise
WisDOT
required in the conditions set forth in the quit claim deed conveyance; and
WHEREASCityDeveloperBLM
, the is requiring that the and enter into a separate
MOU stating that all restrictions, requirements, limitations, and liabilities outlined by
WisDOT
in quit claim deed conveyance to the City shall be the sole responsibility of the
DeveloperSubject Property since the Developer/City
and every future owner of the
agreement will be recorded and run with the land,
which Developer and successor
responsibilities shall include, but not be limited to, the payment and/or reimbursement to
the City of any and all costs, expenses, fees, payments, liabilities, and expenditures of
any kind or nature by the City directly and/or indirectly associated with, arising from,
Access Point
and/or pertaining to the including, but not limited to, reconfiguration,
construction, closure, traffic studies, and/or mitigation to resolve traffic issues; and
WHEREASCity
, the Common Council of the of Janesville hereby find that accepting
the Access Points right(s), privileges, conditions, responsibilities, and authority from
WisDOTCity
, are of benefit to, and in the best interests of, the ; and
WHEREASBLMDeveloperCity
, and the have agreed to enter into a MOU with the
Developer
addressing the key points of and successor responsibility (see Attachment
“C”); and
WHEREASCity
, the Common Council of the of Janesville hereby find that entering into
Developer
the MOU with the concerning the right(s), privileges, conditions,
WisDOT
responsibilities, and authority from , are of benefit to, and in the best interests
City
of, the ; and
WHEREASCity’sWisDOT
, the acceptance of the conveyed right(s), privileges, and
Developer
responsibilities is not conditioned upon nor subject to the City’s entry into the
MOU.
NOW, THEREFORE, BE IT RESOLVED
, by the Common Council of the City of
Janesville, they hereby authorize and direct the City Manager, City Clerk, and/or his/her
designee(s) to negotiate, enter into, and execute on behalf of the City of Janesville the
attached quit claim deed conveyance and MOU; and to negotiate, draft, execute,
record, and file such additional agreements, documents, papers, and forms as may,
from time to time, be necessary and/or desirable to effectuate such agreement and/or
the intent of this resolution, as the City Manager may decide; and
BE IT FURTHER RESOLVED
, that the City Manager and/or his designee(s) may, from
time to time, negotiate, draft, amend, execute, and enter into such changes, other
documents, and other agreements and/or take such other action(s) as the City Manager
from time to time may deem necessary and/or desirable to effectuate the intent of this
resolution
.
ADOPTED:
Motion by:
Second by:
APPROVED:
Councilmember Aye Nay Pass Absent
Brunner
Dongarra-Adams
Eric J. Levitt, City Manager
Liebert
McDonald
Rashkin
Steeber
Voskuil
ATTEST:
Jean Ann Wulf, City Clerk-Treasurer
APPROVED AS TO FORM:
Wald Klimczyk, City Attorney
Proposed by: Community Development Department
Prepared by: Community Development Department
and City Attorney
Document Number
QUIT CLAIM DEED
State Grantor
Wisconsin Department of Transportation
Exempt from fee: s.77.25(2r) Wis. Stats.
DT1563 98 (Replaces RE3047)
THIS DEED, made by the State of Wisconsin, Department of Transportation,
GRANTOR, quit claims to the City of Janesville, GRANTEE(s),
for the sum of (mutual benefits) pursuant to Section 84.09(5), (5)(c) and (5m) Wisconsin
Statutes, the property right/restriction described below and that is fully accepted and
agreed to by the City of Janesville by the act of recording this quit claim deed.
Legal Description / Restrictions
See attached
This space is reserved for recording data
Return to
Wisconsin Department of Transportation
Division of Transportation System Development
Southwest Region, La Crosse Office
Attention:
3550 Mormon Coulee Road
La Crosse, WI 54601
Parcel Identification Number/Tax Key Number
N/A
As approved by the Governor of the State of Wisconsin on
(Date)
(State Real Estate Manager)
(Date)
Print Name
State of Wisconsin )
) ss.
La Crosse County )
On the above date, this instrument was acknowledged before me
by the named person(s) or officers.
(Signature, Notary Public, State of Wisconsin)
(SEAL) (Print or Type Name, Notary Public, State of Wisconsin)
(Date Commission Expires)
Project ID F014-2(2) This instrument was drafted by Wisconsin Department of Transportation Parcel No. 8
LEGAL DESCRIPTION AND RESTRICTIONS
A non-exclusive restrictedright of direct access
between the right-of-way of the highway,
currently designated as STH 26/Milton Avenue, and which right of direct access interest is owned by
the State of Wisconsin, Department of Transportation in land contained within the following described
tract being part of the NE1/4-SE1/4 of section 18, Township 3 North, Range 13 East lying
northwesterly and adjacent to the right of way line located 65 feet northwesterly of and parallel to the
following described reference line:
Commencing at a point on the east line of said Section 18, 1070 feet south of the east one-quarter
corner;
Thence N71°
Thence N25°ne.
Access rights were originally conveyed to the grantor in the Conveyance of Access Rights document
Document 611328 in Volume 59, Page 634
recorded as , in the office of the Register of Deeds, in
Rock County.
Additional Restrictions
: The following restrictions apply to the above non-exclusive restricted right
of direct access:
1. Access is limited to Right-In/Right-
2. Access to Milton Ave Frontage Road 11 (1) to the north is limited to ingress only as shown on
Exhibit A
the attached site plan [ hereto];
3. Any new access location and configuration created by GRANTEE must be first reviewed by,
approved by and recorded by the GRANTOR;
4. All costs associated with the design and construction and maintenance of this access must be
paid by GRANTEE;
5. GRANTOR reserves the right to require the modification, including modification to type of
access, or elimination of this access in the event that traffic patterns result in constrictions or
backups into the intersection with Morse Street or crash rates
expectations for the function of this type of connecting highway facility or exceed other similar
objective safety or function determinations or judgments made by GRANTOR;
6. GRANTEE shall pay all costs associated with the modification or removal of this access in the
event that it is deemed necessary by the GRANTOR for any of the above reasons;
7. GRANTEE shall modify or eliminate this access and pay the costs associated therewith as
specified by GRANTOR within 60 days of written demand by GRANTOR, unless a longer
8. GRANTEE assumes all risk of damages due to loss of access should this access be closed or
modified in the future and shall not seek any compensation whatsoever from GRANTOR for
such losses;
9. This conveyance is not valid until it is recorded with the Rock County Register of Deeds and
returned to GRANTOR;
10. This conveyance is not valid until a corresponding and conforming permit is issued under Wis.
Stat. 86.07(2) by the authority in charge of maintenance of STH 26/Milton Avenue and a
certified copy of the permit provided to GRANTOR.
This non-exclusive restricted right to highway access provided to GRANTEE by this instrument does
not allow GRANTEE to deny other existing users access to the highway at this location whose right of
access is presently reflected in any recorded instrument at the time of execution of this instrument by
GRANTOR. It is the intent of this instrument that GRANTEE will work cooperatively with area
developers and property owners so as not to obstruct the connection of the roadway constructed on
the public access easement which runs along the property line between Lots 2 and 3 of Certified
Survey Map Document 1777507 Volume 30, Page 333-342, described as follows: Part of the NE ¼.
Section 18, T3N, R13E, City of Janesville, Rock Co, WI to property currently occupied by the Kwik
Trip Convenience store located at 3359 Milton Avenue and the Target shopping center
It is expressly intended and agreed between the GRANTOR AND GRANTEE as parties hereto that:
These covenants, burdens, and restrictions are individual and personal to the GRANTEE City of
Janesville and do not run with the land and do not apply to any successors or assigns of GRANTEE.
They forever bind the GRANTEE; and upon breach or failure of all or any part thereof all right, title and
interest in and to the above-described non-exclusive restricted right of direct access and restricted right
to use the highway access shall immediately vest in the GRANTOR, State of Wisconsin, the same as if
this instrument had not been given, except that GRANTEE shall remain obligated to fulfill all of the
covenants, burdens and restrictions imposed with regard to modification, elimination, payment and risk
of loss of access.
This quit claim deed and all its covenants, burdens and restrictions are duly accepted by the City of
Janesville and binding on the City of Janesville as indicated by the undersigned duly authorized
official of the GRANTEE City of Janesville:
FOR CITY OF JANESVILLE
NAME
TITLE
DATE
MEMORANDUM OF UNDERSTANDING
(MOU)
By and Between
BLM Land, LLC (BLM) and SARA Investment Real Estate, LLC (GRANTEE,
DEVELOPER)
and
The CITY of Janesville (GRANTOR, CITY)
Permitting DEVELOPER Right-in Only Access off of Highway 26 in Janesville,
Wisconsin Under Certain Terms, Conditions, and Obligations
BLM Land, LLC owns real property located at 3377 Milton Avenue and desires to sell
the property to SARA Investment Real Estate, LLC (DEVELOPER) who proposes to
develop the property and desires right-in access off of Highway 26 (Milton Avenue) to
this site and project
WHEREAS, BLM
BLM Land, LLC property located at
3377 Milton Avenue located on the southwest corner of STH 26 (Milton Avenue) and
CITY
Morse Street constituting approximately 1.5 acres in the of Janesville, County of
) (See Attachment "A");
and
WHEREASBLMSUBJECT PROPERTY
, intends to sell the in fee simple to SARA
Investment Real Estate, LLC. (hereinafte) who thereupon desires to
construct a gasoline/convenience store with a restaurant (hereinafter
) and obtain right-in only access off of STH 26 (Milton Avenue) to the
SUBJECT PROPERTY
current Milton Avenue frontage road adjoining the to the south;
and
WHEREAS
)
SUBJECT PROPERTY
would not provide direct access to the but would provide right-in
SUBJECT PROPERTY
only access to the from the current north terminus of the Milton
WHEREAS
)
SUBJECT PROPERTY
purchased the access rights for the STH 26 frontage of the
WisDOTCITY
several years ago; however, now has agreed to provide to the of
CITY
) a jurisdictional and rights grant transfer to the to
Access Point
allow, maintain, and alter the if needed, subject to various conditions set
WisDOTCITY
forth in the quit claim deed and conveyances to the (see Attachment
WHEREASWisDOTCITY
, and the have entered in separate writings including, but not
limited to, a certain quit claim deed and related conveyance(s) and attachments thereto
WisDOT QUIT CLAIM DEED
(hereinafter collectively "") that effectuate the jurisdictional
and rights grant transfer and that specify the terms, conditions, obligations,
Access Point
responsibilities, and privileges associated with and pertaining to this ,
CITY
and/or that subject the to current and future conditions, requirements, obligations,
WisDOT QUIT CLAIM DEED
and performance as set forth in the attached ; and
WHEREASWisDOT
, , in order to allow for the jurisdictional and rights grant transfer of
Access PointCITYCITY,
the to the , is requiring that the in part, engage in future traffic
Access Point
studies, construction, improvements, and even closure of the if warranted
by a demonstrated accident history at the intersection which exceeds statewide crash
rates for this type of roadway and/or as otherwise required in the conditions set forth in
WisDOT QUIT CLAIM DEED
the ; and
WHEREAS, WisDOT WisDOT QUIT
has retained certain rights and privileges in the
CLAIM DEED;WisDOT QUIT CLAIM DEED
and the assigns, grants, vests, and
WisDOT Access Point
conveys many of the rights, privileges, and authority to the
CITY;
and
WHEREASWisDOT QUIT CLAIM DEED
, said specifically enumerates restrictions
CITY
including, but not limited to, such as requiring the pay for traffic studies and/or
SUBJECT PROPERTY
close the connection on the to Morse Street or to the Milton
WisDOT
Avenue frontage road if determines that vehicle crash data exceeds standards
CITY
for similar intersections and that any costs associated be paid for by the ; and
WHEREASCITYDEVELOPERBLM
, the is requiring the and to enter into this separate
MOU agreeing that all restrictions, requirements, limitations, obligations, conditions,
WisDOTWisDOT
liabilities, and current privileges outlined and enumerated by in the
QUIT CLAIM DEEDBLMDEVELOPER,
shall be the sole responsibility of and the and
SUBJECT PROPERTY
then of each and every future owner of the since this
DEVELOPER/CITY
MOU will be recorded and shall run with the land; and
WHEREASBLMDEVELOPER,
, , the and successor responsibilities, obligations,
restrictions, limitations, conditions, liabilities, and privileges shall include, but are not
CITYWisDOT QUIT CLAIM DEED
limited to, those set forth for the in the ; and
WHEREASBLMDEVELOPER,
, , the and each and every successor shall pay and/or
CITY
reimburse to the any and all costs, expenses, fees, payments, liabilities, and
CITY
expenditures of any kind or nature by the directly and/or indirectly associated with,
WisDOT QUIT CLAIM
arising from, and/or pertaining to any provision set forth in the
DEEDAccess Point
and/or the including, but not limited to, reconfiguration,
construction, reconstruction, maintenance, repair, closure, traffic studies, penalties,
and/or mitigation to resolve traffic issues; and
WHEREASCITY
, the Common Council of the in open session found that accepting the
Access Points
right(s), privileges, conditions, responsibilities, liabilities, authority, and
WisDOTWisDOT QUIT CLAIM DEED
privileges from and entering into the were and
CITY
are of benefit to, and in the best interests of, the ; and
WHEREASBLMDEVELOPER
, and the have agreed to enter into this MOU with the
CITYBLMDEVELOPER
addressing the key points of , , and successor responsibility;
and
WHEREASCITY
, the Common Council of the in open session found that entering into
BLMDEVELOPER
this MOU with , the , and all successors concerning the right(s),
WisDOTWisDOT
privileges, conditions, responsibilities, and authority from and the
QUIT CLAIM DEEDCITY
, are of benefit to, and in the best interests of, the ; and
WHEREASWisDOT
, the acceptance of the conveyed and granted right(s),
privileges, responsibilities, conditions, obligations, and liabilities is not conditioned upon
BLMDEVELOPER
nor subject to the entry into this and MOU; and
WHEREAS
, by signing below, Terry McGuire represents and certifies that he is
empowered to fully bind each and every of the other general, managing, and limited
BLM
partner members of ; and
WHEREAS
, by signing below, Eric Schwartz represents and certifies that he is
empowered to fully bind each and every of the other general, managing, and limited
DEVELOPER
partner members of the ; and
WHEREAS
, by signing below, the Janesville City Manager and City Clerk-Treasurer
CITY
represent and certify that they are jointly and severally empowered to bind the ,
pursuant to duly adopted Resolution No. 2011- 789; and
Now, therefore, for the good and valuable consideration
of the rights, interests,
privileges, responsibilities, and benefits flowing and inuring to each party hereto from
this MOU, the sufficiency of which is hereby acknowledged by all parties hereto, the
CITY, BLM,DEVELOPER
and the hereby acknowledge, understand, agree, promise,
and enter into this MOU, especially agreeing to the following conditions for using said
ACCESS POINTS
, as follows:
Each of the above recitals is reiterated and incorporated herein by reference as if
1.
fully set forth verbatim.
Lawfully adopted Janesville Common Council File Resolution No. 2011-789
2.
is reiterated and incorporated herein by reference as if fully set forth verbatim.
ACCESS POINT
To ensure that the public safety is facilitated at the for the
3.
DEVELOPMENTSUBJECT PROPERTY
access drive and into the and , the
CITY, BLM,DEVELOPER
and agree to and shall limit access off of STH 26
(Milton Avenue) as right-in only.
CITYBLMDEVELOPER
The , , and agree to and shall limit access to Morse
4.
Street as set forth below.
Each and every restriction, obligation, condition, requirement, promise, and
5.
WisDOT QUIT CLAIM DEED
privilege set forth in the and related conveyance(s)
CITY
and documents to the are reiterated and incorporated herein by reference
as if fully set forth verbatim AND become the sole obligations, responsibilities,
BLMDEVELOPER
conditions, requirements, and privileges with which , the , and
each and every of their respective joint and several heirs, successors, and
assigns, shall and must comply at all times in all ways.
All restrictions, requirements, limitations, obligations, and liabilities outlined and
6.
WisDOTWisDOT QUIT CLAIM DEED herenceforth
enumerated by in their
BLMDEVELOPER,
shall be the sole responsibility of and the and each and
every of their respective heirs, successors, and assigns, such that each of them
SUBJECT PROPERTY
and then of each and every future owner of the is so
responsible.
This MOU shall be recorded and shall run with the land.
7.
BLMDEVELOPERSUBJECT PROPERTY
The , , and successor owner
8.
responsibilities shall include, but not be limited to, the payment and/or
CITY
reimbursement to the of any and all costs, expenses, fees, payments,
liabilities, and expenditures of any kind or nature by the CITY directly and/or
indirectly associated with, arising from, and/or pertaining to the Access Point
including, but not limited to, reconfiguration, construction, closure, traffic studies,
and/or mitigation to resolve traffic issues; and
BLMDEVELOPER
, the , and each and every of their respective joint and several
9.
heirs, successors, and assigns, shall at all times in all ways indemnify, save, and
CITY
hold harmless, and repay and reimburse to the , within five (5) days of
CITY
invoicing from the , any and all costs, fees, expenses of whatever kind or
CITY
nature paid, expended, or incurred by the arising from and/or pertaining to
WisDOT QUIT CLAIM DEEDAccess Point,
the , and/or this MOU.
BLMDeveloper
and and each of their respective successors and assigns as fee
10.
Subject Property
simple owners of the shall cease to have further liability under
this MOU with respect to facts or circumstances first arising after the party has
Subject Property
transferred its fee simple interest in the , except, however, for
CITY
The shall monitor traffic flow and crash rates at the connections of the
11.
Milton Avenue Frontage Road to STH 26 (Milton Avenue) and Morse Street. If
WisDOT
crash rates in the areas of these connections meet or exceed the
DEVELOPER
statewide crash rate for similar connections, the or the owner of
SUBJECT PROPERTY
the may be required to close or remove any access onto
SUBJECT PROPERTY
the adjacent to and from the Milton Avenue frontage
road and Morse Street.
Any and all costs associated with traffic or engineering studies and the costs of
12.
SUBJECT PROPERTY
removing or closing the access points onto the adjacent
to the Milton Avenue frontage road and Morse Street shall be paid by the
DEVELOPERSUBJECT PROPERTY
or the then owner of the .
CITY
If and/or when the has determined the need for a traffic study to examine
13.
ACCESS POINT
crash rates at or near the and that traffic study has indicated
WisDOTDEVELOPER
that the crash rate threshold has been exceeded, or the
SUBJECT PROPERTY
owner of the shall comply with any and all deadlines set
CITY
by the for compliance.
The covenants, burdens and restrictions shall run with the land and shall forever
14.
DEVELOPER SUBJECT PROPERTY
bind the or owner of the
CITY
and assigns; and upon breach or failure of all or any part thereof, the may
bring an action in the courts of this state to enforce said restriction, and shall
recover in any such action its costs and expenses of enforcing the restriction
BLM
including, but limited to, actual attorney and expert fees and time, from , the
DEVELOPERSUBJECT PROPERTY
, subsequent owners, and their respective
heirs, successors, and assigns, trustees, personal representatives, or
administrators.
CITY
The Administration will make sincere, good faith effort to work cooperatively
15.
with area developers and property owners so as not to obstruct the connection of
the roadway constructed on the public access easement which runs along the
property line between Lots 2 and 3 of Certified Survey Map Document 1777507
Volume 30, Page 333-342, described as follows: Part of the NE ¼. Section 18,
T3N, R13E, CITY of Janesville, Rock Co, WI., to property currently occupied by
the Kwik Trip Convenience store located at 3359 Milton Avenue and the Target
shopping center.
This MOU is effective on the date the document is duly executed by all
16.
signatories. This MOU will be null and void if not duly executed by all signatories
by noon, June 1, 2011.
SARA INVESTMENT REAL ESTATE, LLC CITY OF JANESVILLE
By: By:
Eric Schwartz Eric J. Levitt, City Manager
Dated:
By:
Jean Ann Wulf, City Clerk-Treasurer
BLM LAND, LLC
Dated:
By:
Terry McGuire
Dated:
State of Wisconsin )
) ss.
Dane County )
On the above date, this instrument was acknowledged before me
by the named person(s) or officers, Eric Schwartz.
(SEAL)
(Signature, Notary Public, State of Wisconsin)
(Print or Type Name, Notary Public, State of Wisconsin)
(Date Commission Expires)
State of Wisconsin )
) ss.
Rock County )
On the above date, this instrument was acknowledged before me
by the named person(s) or officers, Terry McGuire.
(SEAL)
(Signature, Notary Public, State of Wisconsin)
(Print or Type Name, Notary Public, State of Wisconsin)
(Date Commission Expires)
State of Wisconsin )
) ss.
Rock County )
On the above date, this instrument was acknowledged before me
by the named person(s) or officers, Jean Ann Wulf, City Treasurer.
(SEAL)
(Signature, Notary Public, State of Wisconsin)
(Print or Type Name, Notary Public, State of Wisconsin)
(Date Commission Expires)
State of Wisconsin )
) ss.
Rock County )
On the above date, this instrument was acknowledged before me
by the named person(s) or officers, Eric J Levitt, City Manager.
(SEAL)
(Signature, Notary Public, State of Wisconsin)
(Print or Type Name, Notary Public, State of Wisconsin)
(Date Commission Expires)
The CITY of Janesville by Resolution No. 2011-789 agrees to the obligation under this
MOU.