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10-D Draft Management and Use Agreement
between the Association and Wilderness
Hotel & Resort, Inc.
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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
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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.
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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
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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").
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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.
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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.
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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.
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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.
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00. 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.
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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
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