MANAGEMENT AND USE AGREEMENT
AGREEMENT made this ___ day of ____________, 1997 between
WILDERNESS HOTEL CONDOMINIUM ASSOCIATION, INC. (the "Association") and
WILDERNESS HOTEL & RESORT, INC. (the "Manager").
RECITALS
WHEREAS, Association, a non-profit corporation of which all unit
owners of the Wilderness Hotel Condominium, a hotel condominium (the
"Condominium") are members, and Manager desire to enter into an agreement
under which Manager agrees to (a) manage the Condominium's affairs, (b)
act as manager for those condominium unit owners (the "Unit Owner" or
"Owner") who desire to rent Owner's unit (the "Unit") and engage Manager
to locate persons desirous of occupying Owner's Units ("Occupants") and to
charge for such occupancy, and (c) rent and manage certain Common Elements
of the Condominium in order to provide services to Unit Owners; and
WHEREAS, the Association believes that an agreement for
management between the Manager and the individual Unit Owners may lead to
confusion and disparity and both parties are willing to abide by the terms
of a management agreement between the Association and the Manager;
NOW, THEREFORE, in consideration of the mutual covenants herein,
the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
A. MANAGEMENT AGREEMENT
1. Manager's Appointment by Association. Association hereby
appoints Manager and Manager hereby accepts appointment, on the terms and
conditions hereinafter provided, as managing agent of the Condominium
known as The Wilderness Hotel Condominium, a hotel condominium, with the
duties specified in paragraph 3 below. Manager fully understands that the
function of the Board of Directors of the Condominium (the "Board") is the
operation and management of the Condominium; and Manager agrees,
notwithstanding the authority given to Manager in this Agreement, to
confer fully and freely with the Board in the performance of its duties as
herein set forth and to attend meetings of Unit Owners and the Board at
any reasonable time or times requested by the Board.
2. Compensation as Manager. Except as expressly set forth
herein, the sole compensation which Manager shall be entitled to receive
from Association for services performed for Association under this
Agreement shall be a fee computed and payable monthly in an amount
equivalent to one hundred and twenty-five percent (125%) of the actual
cost to perform the management duties pursuant to the agreement.
3. Manager's Duties to Association. Manager agrees to manage,
operate and maintain the Condominium according to standards consistent
with the overall plan of the Board and agrees to perform the management
function and do all things normally expected of management in a hotel
condominium project, including but not limited to the following:
a. Manager shall clean and perform ordinary maintenance
of the Condominium's Common Elements. Manager's duties hereunder
shall include, but not be limited to, maintenance and repair of the
entryways, meetings rooms and other areas constituting Common
Elements within buildings.
b. Manager shall manage, operate and maintain any
personal property acquired by the Association for the use and benefit
of the Unit Owners and other occupants of the Condominium including,
if the Board so determines, charging a reasonable price for the use
and consumption thereof (the "Personal Property").
c. Manager shall use its best efforts to collect all
assessments and special assessments as determined by the Board and
any revenue from the use and consumption of the Personal Property.
Such collections shall be deposited into the account established
pursuant to paragraph 3(l) below. Manager shall pay, out of such
account, all the costs associated with management of the Condominium
and the Personal Property and cleaning, maintenance, repair,
replacement and alteration of the Common Elements and Limited Common
Elements that are the responsibility of Association hereunder, that
are authorized by the Board, or that are listed in the annual budget.
d. Manager shall hire in its own name all managerial and
other personnel it deems appropriate in order to perform its duties
hereunder. Compensation for the services of such employees shall be
the responsibility of Manager. In lieu thereof, Manager may contract
in its own name and at its own expense for any such services.
Manager shall also provide, at its own expense, all supplies and
equipment necessary or appropriate to perform such services. Manager
may arrange, but the Association shall pay, for utility services for
which Association (as opposed to the Unit Owners) is responsible
under the Declaration and By-Laws.
e. Except in the event of an emergency, Manager shall
notify the Board of the need to repair, replace, alter and add to
Common Elements, when such expenses exceed $1,000. (Any repair,
replacement, alteration or addition costing less than $1,000 shall be
deemed ordinary maintenance.) The Board may designate the Manager to
perform the repairs, replacements, alterations and additions in an
emergency, and Manager may undertake such emergency repairs without
consulting the Board. Manager shall make such repairs, replacements,
alterations and additions with its own employees, by contracting with
third parties in the name of Association, or by a combination of
both. Association shall be responsible for the payment of all
amounts necessary to effect such repairs, replacements, alterations
and additions. To the extent that the work is performed by employees
of Manager, Association shall compensate Manager by paying it 125% of
the materials, wages, or salaries of the employees performing such
work for the actual time that they performed such work, which amounts
Association shall pay promptly after receipt of an invoice from
Manager. Manager shall keep accurate records of any such work.
f. Manager shall keep detailed accurate records in
chronological order, of the receipts and expenditures affecting the
Common Elements and itemizing the maintenance and repair expense of
the Common Elements and any other expenses incurred. Records and
vouchers authorizing the payments rendered shall be available for
examination by the Unit Owners at convenient hours of working days.
Manager shall, as a common expense, furnish the Association with a
copy of an annual compilation of such books and records.
g. Manager will prepare at its own expense, with the
assistance of an accountant, if need be, an operating budget setting
forth an itemized statement of the anticipated receipts and
disbursements for the new fiscal year based upon the then current
schedule of monthly assessments, and taking into account the general
condition of the Condominium. Each such budget shall be submitted to
the Board in final draft at least 30 days prior to the commencement
of the annual period for which it has been made. The budget shall
serve as a supporting document for the schedule of monthly
assessments proposed for the new fiscal year.
h. Manager shall not expend more than the total amount
budgeted in any fiscal year of the Association, nor exceed by more
than 5% the amount budgeted for any individual item in any such
fiscal year, without first obtaining the prior written consent of the
Board, except in the event of an emergency.
i. Manger shall maintain businesslike relations with the
Unit Owners whose service requests shall be received, considered and
recorded in systematic fashion in order to show the action taken with
respect to each. Complaints of a serious nature shall, after
thorough investigation, be reported to the Board with appropriate
recommendations as part of a continuing program to resolve such
complaints and to provide for the full discharge of responsibilities
of the Manager and Unit Owners with reference thereto.
j. Manager shall cause to be placed and kept in force all
of those policies of insurance which are required by Article XI of
the Declaration of the Condominium, or authorized by the Board.
Association shall pay all premium costs, and assess the individual
Owners prorated share thereof. All of the various types of insurance
shall be placed with such companies, in such amounts, and with such
beneficial interests appearing therein as shall be acceptable to the
Board. Manager may have itself, the Declarant and appropriate
affiliates listed as additional insureds. Manager shall promptly
investigate and make a full written report as to all accidents or
claims for damage covered by any such policy of insurance and shall
cooperate and make any and all reports required by any insurance
company in connection therewith.
k. Manager shall, to the best of its ability, arrange for
whatever additional services are requested by Unit Owners beyond the
scope of regular condominium services. These extra services will be
billed to the Unit Owner who requests the services on a time and
material basis.
l. Manager shall establish and maintain a separate bank
account for the deposit of the moneys of the Condominium with
authority to draw thereon for any payments to be made by Manager to
discharge any liabilities or obligations of Association incurred
pursuant to this Agreement, including the payment of the management
fee.
B. USE AGREEMENT
4. Identification of Property To Be Used. Subject to the
conditions hereinafter expressed, Association hereby grants use rights to
Manager for the following property (collectively "Use Property"):
a. that part of the Condominium designated "meeting
rooms" on the Plat of Condominium for the Wilderness
Hotel Condominium ("Meeting Rooms");
b. that part of the Condominium designated "lockerrooms
and restrooms" on the Plat of the Condominium
(collectively "Lockerrooms");
c. the telephone wiring system serving the Common
Elements, each Unit and any other outlet on the
Condominium ("Telephone System");
d. that part of the Common Elements as may be mutually
agreed between Association and Manager as a location
for video, pinball and other games ("Game Room"); and
e. that part of the Common Elements as may be mutually
agreed between Association and Manager as a location
for food and drink vending machines or other means of
selling food and drink ("Vending Area").
5. Consideration. The obligations of the Manager pursuant to
this Agreement shall be the consideration for the Manager's use of the Use
Property. The parties hereto agree and this consideration is sufficient
and adequate.
6. Use of Property. The Meeting Rooms shall be available for
use of Owners and the Occupants of the Condominium and Wilderness Hotel &
Resort for meetings and gatherings. The showers shall be available for
use of the Owners and the Occupants of the Condominium and Wilderness
Hotel & Resort. Manager shall use the Game Room and Vending Area only for
the installation of Games to be played and Vending Equipment to be used by
Occupants of the Condominium or the Wilderness & Resort.
7. Use of Telephone Equipment. The Association agrees to
allow the Manager to install telephone hardware equipment in each of the
Units. The Manager's telephone hardware equipment shall be the sole and
exclusive telephone hardware equipment in all of the Units. Manager
agrees to operate the telephone hardware equipment in conjunction with the
telephone operations at the Wilderness Hotel & Resort. All income from
the telephone operations shall be paid to the Manager.
8. Covenant of Quiet Enjoyment. Manager, upon performing all
the other terms of this Agreement, shall quietly have and enjoy the
Property during the term of this Agreement without hindrance or
interference by anyone claiming by or through Association or any Unit
Owner.
9. Maintenance of the Property. Manager shall, at its own
expense, clean and perform ordinary maintenance on the Property in order
to maintain it in good and tenantable condition. Association shall be
responsible for all structural repairs and replacements to the Property,
including but not limited to the replacement of the Telephone System once
it becomes obsolete or requires replacement for any other reason. Manager
shall perform all cleaning, maintenance, repairs and replacement to the
Meeting Rooms, Lockerrooms, Games, Vending Equipment and any personal
property which it places in the Common Elements. Each party shall perform
those cleaning, maintenance, repairs and replacements for which it is
responsible promptly, as and when necessary.
10. Taxes. Association or the Unit Owners of the Condominium
shall pay all real and personal property taxes on the Common Areas and the
Property and personalty owned by the Association. Manager shall pay all
personal property taxes on the Equipment and the personal property owned
by Manager and placed in the Common Elements. If the governmental
authorities with taxing jurisdiction do not separate the taxes on the
personal property owned by or leased to Manager from the taxes on the
personal property of the Association, the parties shall agree on a fair
and reasonable means of allocating such taxes based on the relative values
of such personal property.
11. Utilities. Association shall pay all electric, gas, water,
sewer and other public utility charges attributable to the Property and
the personal property thereon during the term of this Agreement at the
time such charges become due and payable. If such charges are not
separately metered from charges payable by Wilderness Hotel & Resort
and/or Unit Owners, the parties shall allocate such charges on a fair and
reasonable basis.
12. Charges to Unit Owners, Occupants and Guests. Manager may
charge Unit Owners and Occupants for each telephone call that they or
their guests place from the Unit.
13. Insurance. As set forth in paragraph 3.j above, Manager
shall cause to be placed and kept in force certain policies of insurance
on behalf of Association and Owners, including a policy of fire and
extended hazards insurance protecting all of the Property. Manager shall,
at its own expense, during the terms hereof, maintain fire and extended
hazards insurance protecting the Manager's personal property located on
the Property. Manager shall also secure, and the Association shall pay
for a policy of public liability and property damage insurance with
respect to all of its obligations under this Agreement, including its
operations with respect to and upon the Property, protecting Manager
against such liability. Any policy taken out by Manager shall have limits
of at least $3,000,000 for personal injury and $500,000 for property
damage.
14. Damage or Destruction. Except as limited below, if, during
the term of this Agreement, fire or other casualty shall so damage or
destroy any element of the Property that it is untenantable or unfit for
use, either Association or Manager may terminate this Agreement upon
thirty (30) days written notice to the other. Except as limited below, if
such damage does not render any of the elements of the Property
untenantable or unfit for use, Association or Manager may so terminate
this Agreement only if Association shall fail or refuse, within thirty
(30) days after such destruction, to agree in writing to restore the same
within ninety (90) days of such destruction.
15. Alterations, Improvements. Except as otherwise provided
herein, Manager shall not make any alterations or improvements to the
Property, except with the prior consent of Association and upon such terms
to which Association agrees.
16. Fixtures. Manager may install the Games, Vending Equipment
and any other machinery, equipment, apparatus and trade fixtures in the
Property (including but not limited to the Equipment) without obtaining
the prior written consent of Association. Manager shall have the right to
remove from the Property all such Games, Vending Equipment, machinery,
apparatus, equipment and fixtures prior to the expiration of the
Agreement, whether or not they are attached to the real estate, and
Manager shall restore and repair said damage to the Property caused by
such removal, if so requested by Association.
17. Right of Entry. Association and the Unit Owners may enter
the Common Elements, Game Room and Vending Area at any time at which they
are open and may use the Telephone System at any time during normal
business hours. Manager shall establish and post the times at which the
Common Elements, Game Room and Vending Area shall be open.
18. Signs. Manager shall have the right to erect
identification signs throughout the Property.
19. Compliance With Applicable Laws. Manager, at its sole
expense, shall comply with all laws, orders, and regulations of federal,
state and municipal authorities, and with any lawful direction of any
public office, which shall impose any duty upon Association or Manager
with respect to Manager's activities on the Property. Manager, at its
sole expense, shall obtain all required licensees or permits for the
conduct of its business of the Property, and Association, when necessary,
will join with Manager in applying for all such permits or licenses.
20. Assignment and Sublease. Manager may assign, mortgage, or
encumber its rights under this Lease, or sublet or permit the Property or
any part thereof to be used by others.
21. Default. Neither Manager nor Association shall be deemed
to have defaulted or committed a breach of any covenant under this Lease
unless it has received written notice of such default or breach and failed
to remedy such default or breach within thirty (30) days of receipt of
such notice. Any dispute arising from an alleged breach of any other
covenant by either party shall be resolved by arbitration, as set forth
below.
C. MISCELLANEOUS
22. Use of Name of Condominium. To the extent that the
Association has the right to use the name of the Condominium, it consents
to Manager's non-exclusive use of the name of the Condominium in any
advertisements that it places for the use of the occupancy Units.
23. Term. The initial term of this Agreement shall commence on
the day first written above and continue for an initial twenty (20) year
term. Thereafter, it shall automatically renew for like twenty (20) year
terms, unless otherwise terminated as provided herein.
24. Declaration and By-Laws. Manager shall make reasonable
efforts to fulfill its duties under this Agreement in conformity with the
provisions of the Declaration and By-Laws of the Condominium.
25. Definitions. Any terms not defined herein shall have the
meaning set forth in the Declaration.
26. Termination. This Agreement may be terminated at any time
by Manager upon sixty (60) days written notice. Upon assignment by
Manager, this contract may be terminated by the Association upon sixty
(60) days written notice. Subsequent to the initial election of the
Association officers by the Unit Owners (other than Agent or Wilderness
Development Corporation), either party may terminate this Agreement at any
time by giving the other party at least ninety (90) days written notice of
its intent to terminate this Agreement. Upon the initial approval of this
Agreement by the Association after the initial election of the Association
officers by the Unit Owners (other than Agent or Wilderness Development
Corporation) termination of this Agreement by the Association may be
effectuated by the Association only upon: (a) Manager's default and
written notice to Manager of such default and Manager's right to cure any
alleged default within thirty (30) days of Manager's receipt of such
written notice; or (b) at least ninety (90) days prior to the expiration
of any term, written notice to Manager of the Association's intent not to
renew this Agreement for an additional twenty (20) year term, or (c) upon
mutual written agreement between the Association and Manager.
27. Arbitration. Except as expressly provided herein, any
controversy between the Manager and Association arising out of or relating
to this Agreement or the breach hereof shall be settled by arbitration.
Either party may notify the other that it intends to ask for arbitration
at any time. If the parties cannot resolve their disagreement within
twenty (20) days of such notification or cannot mutually agree on a third
party to arbitrate their dispute, either party may request the Chief Judge
of the Sauk County Circuit Court, or if there is none, the Judge of Branch
1, to designate such arbitrator. Any such arbitration shall be conducted
in accordance with the procedure set forth in Chapter 788 of the Wisconsin
Statutes or any successor thereto. The parties shall divide equally the
fees and expenses of the arbitrator. The arbitrator shall have the power
to award the victorious party part or all of its costs, including
reasonable attorneys fees, if the arbitrator believes the other party was
acting in bad faith in failing to reach agreement prior to or during
arbitration.
28. Entire Agreement. This Agreement shall constitute the
entire agreement between the contracting parties, and no alleged prior
agreements, either oral or in writing, shall be valid and enforceable.
29. Captions. The captions in this Agreement are for the
convenience of the parties only, and shall not be used to construe the
meaning of any provision.
30. Enforceability. If any provision of this Agreement or any
specific application shall be invalid or unenforceable, the remainder of
this Agreement, or the application of the provisions in other
circumstances, shall not be affected, and each provision shall be valid
and enforceable to the fullest extend permitted by law.
31. Notices. Any notice required to be given to Association or
Manager shall be sent or personally delivered to the following addresses
respectively:
To Association:
Wilderness Condominium Association, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
To Manager:
Wilderness Hotel & Resort, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
With a Copy to:
Attorney Xxxxxxx X. Xxxxxxx
and Attorney Xxxxxxx X. Xxxxxxx
Xxxxxxx & Xxxxxxx, S.C.
000 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Either party shall notify the other of a change of address.
32. Successors and Assigns. This Agreement shall inure to the
benefit of and bind the parties, and their respective successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
ASSOCIATION:
WILDERNESS HOTEL CONDOMINIUM ASSOCIATION, INC.
BY: WILDERNESS HOTEL & RESORT, INC., ONE OF ITS DECLARANTS
BY:______________________________________
Xxxxxx X. Xxxxx, President
-NO CORPORATE SEAL-
ATTEST:___________________________________
S. Xxxxx Xxxxxxx, Xx., Secretary
MANAGER:
WILDERNESS HOTEL & RESORT, INC.
BY:_______________________________________
Xxxxxx X. Xxxxx, President
-NO CORPORATE SEAL-
ATTEST:___________________________________
S. Xxxxx Xxxxxxx, Xx., Secretary
