ACCESS/USE AGREEMENT
THIS ACCESS/USE AGREEMENT, made this ___ day of ____________,
1997 between and among WILDERNESS HOTEL & RESORT, INC., a Wisconsin
corporation ("WH&RI"), WILD GOLF, INC., a Wisconsin corporation ("Wild
Golf"), XXXXXX X. XXXXX AND XXXXX X. XXXXX of Wisconsin Dells, Wisconsin
("Xxxxxx") (WH&RI, WILD GOLF and XXXXXX, herein collectively referred to
as "Grantors") and the WILDERNESS HOTEL CONDOMINIUM ASSOCIATION, INC., a
Wisconsin non-stock corporation ("Association") on behalf of all
Association members who are hotel condominium unit owners ("Owners") in
the Wilderness Hotel Condominium, a hotel condominium ("Condominium").
RECITALS
WHEREAS, WH&RI is the owner and operator of the Wilderness Hotel
& Resort located on a parcel of land at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx
Dells, Sauk County, Wisconsin ("Wilderness Hotel & Resort"); and
WHEREAS, the Xxxxxx are owners of the land upon which the
Wilderness Hotel & Resort is located and have, as Lessors, entered into a
long-term land lease of the Wilderness Hotel & Resort land with WH&RI, as
Lessee; and
WHEREAS, Wild Golf is the owner and operator of the golf course
which is adjacent to and operated in conjunction with the Wilderness Hotel
& Resort; and
WHEREAS, the Association, on behalf of present and future Owners
of the Condominium, by virtue of an Owner's purchase of a hotel
Condominium unit (the "Unit") desires to secure for the Owners certain
access and use rights to the Wilderness Hotel & Resort and its amenities
and the Grantors are willing to extend certain access and use rights.
NOW, THEREFORE, in consideration of the mutual covenants herein,
and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. Wilderness Hotel & Resort Access Grant. Subject to the
terms and conditions as set forth in this Agreement, Grantors hereby grant
to Owners access to and use of the recreational and other facilities in
the Wilderness Hotel & Resort, including the Wilderness Hotel & Resort's
indoor/outdoor swimming pools, water games, slides, lobbies, snack bars,
gift shop, lockerrooms and public restrooms (the "Facilities") on the same
basis and at the same cost (if any) that the Facilities are utilized by
paying patrons of the Wilderness Hotel & Resort. This access and use of
the Facilities are intended for the benefit of the Owners and the
transient hotel rental tenants (the "Occupants") and guests of an Owner's
Unit (the "Guests"), subject to rules and regulations regarding the
Facilities.
2. Golf Benefits. Wild Golf hereby grants to Owners the right
to purchase green fees at the Wilderness Golf Course (the "Golf Facility")
at 50% of the green fee rate applicable at time of play (the "Golf
Benefits"). This benefit shall apply only to a maximum of two Owners of
Units of record in the Condominium as shown on the books of the
Association. Notwithstanding anything contained in this Agreement to the
contrary, the benefit related to the Golf Facility shall not be available
to any guest of the Owner and/or any person renting the Unit.
3. Conditions Precedent. Conditions precedent to the access,
use, benefits and rights as granted in paragraphs 1 and 2 above
("Privileges") shall be:
a. Ownership. A person must be an Owner of a Unit in the
Condominium and a member of the Association, as provided in paragraph
1 above, an Occupant of Owner's Unit or a Guest of Owner in the Unit.
The Occupants and Guests of a Unit shall not, however, be entitled to
the Golf Benefits as described in Paragraph 2 above.
b. Good Standing. The Owner must be in good standing
with the Association and not in default of any Association dues,
assessments, or in default of any of the terms, conditions or
provisions as provided in the Association's Articles of
Incorporation, By-Laws, Rules and Regulations and/or the Condominium
Declaration.
c. Management and Lease Agreement and Rental Pooling and
Agency Agreements. The Management and Lease Agreement and the Rental
Pooling and Agency Agreement (as described herein), or any extension,
renewal or amendment thereto, between the Owners and/or the
Association and Wilderness Development Corporation and Wilderness
Hotel & Resort, Inc., respectively, (or its successors and/or
assigns) originally dated the ___ day of _______________, 1997, in
respect to the Management and Lease Agreement and at various dates,
in respect to the Rental Pooling and Agency Agreement, must be in
full force and effect, unless cancellation thereof was solely
attributable to Wilderness Hotel & Resort, Inc. and/or Wilderness
Development Corporation or their successors' and/or assigns' election
and option.
4. Term. The term of this Agreement shall commence as of the
day first written above and shall continue for an initial twenty (20) year
term. Thereafter, this Agreement shall automatically renew for like
twenty (20) year terms, unless otherwise terminated as provided herein.
5. Termination. This Agreement shall terminate as to the
Association and all Owners, or to individual Owners, as the case may be,
upon thirty (30) days written notice to the Owner or Owners that any of
the conditions precedent as provided in paragraph 3 above exist, and the
failure on the part of an Owner or Owners to cure the condition precedent
within said thirty (30) day notice period. Upon the initial approval of
this Agreement by the Association, after the initial election of the
Association officers by the Unit Owners (other than Grantors or Wilderness
Development Corporation), termination of this Agreement by the Association
may be effectuated by the Association, providing Grantors (their
successors and/or assigns) give at least ninety (90) days written notice
of the Association's intent to terminate this Agreement.
6. Use Fee. The Owners, by and through the Association, shall
pay to the Grantors, their successors and/or assigns, a fee assessed and
payable on a monthly basis which shall be in an amount reasonably related
to the cost of operating, maintaining, repairing and funding replacement
reserves for the Facilities and the Golf Facilities.
7. Damage or Destruction. If, during the term of this
Agreement, fire or other casualty shall so damage or destroy any element
of the Wilderness Hotel & Resort that it is untenantable, or unfit for
use, the rights granted hereunder shall be suspended until such time as
Grantors elect to and complete actions necessary to make the Wilderness
Hotel & Resort tenantable and fit for use. This Agreement shall impose no
duty upon the Grantors to restore the Wilderness Hotel & Resort to its
pre-destruction condition. This Agreement shall terminate as to any
Facilities not rebuilt because of fire, casualty, damage or destruction to
the Wilderness Hotel & Resort or any portion thereof.
8. Management and Control. Grantors shall retain full
management and control of the Wilderness Hotel & Resort and the Facilities
and Golf Facility, and this Agreement shall impose no further duty upon
Grantors in addition to the duties owned by Grantors to its Occupants and
Guests.
9. Compliance With Applicable Laws and Rules. Owners shall
comply with all laws, orders and regulations of federal, state and
municipal authorities, and with any lawful direction of any public
officer, and shall follow such rules and regulations as set forth by the
Grantors and any direction of Grantors' employees or agents with respect
to the Owners' activities at the Wilderness Hotel & Resort and its
Facilities and Golf Facilities.
10. Assignment. This Agreement may be assigned by Grantors to
any of their successors in interest. Any such assignment shall relieve
Grantors from any and all liabilities and duties hereunder and the same
shall be assumed by Grantors' successors and/or assigns.
11. Arbitration. Except as expressly provided herein, any
controversy between the parties 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.
12. 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.
13. 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.
14. 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.
15. Notices. Any notice required to be given to Association or
Manager shall be sent or personally delivered to the following addresses
respectively:
To Grantors:
Wilderness Hotel & Resort, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
Wild Golf, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx
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
To Association:
Wilderness Hotel Condominium Association, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
To Owners:
Last address as shown on the books of the Association.
All parties shall notify the others of a change of address.
16. 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.
GRANTORS:
WILDERNESS HOTEL & RESORT, INC.
BY:______________________________________
Xxxxxx X. Xxxxx, President
-NO CORPORATE SEAL-
ATTEST:___________________________________
S. Xxxxx Xxxxxxx, Xx., Secretary
WILD GOLF, INC.
BY:______________________________________
Xxxxxx X. Xxxxx, President
-NO CORPORATE SEAL-
ATTEST:___________________________________
S. Xxxxx Xxxxxxx, Xx., Secretary
_________________________________________
Xxxxxx X. Xxxxx
_________________________________________
Xxxxx X. Xxxxx
ASSOCIATION:
WILDERNESS HOTEL CONDOMINIUM ASSOCIATION, INC.
BY:______________________________________
Xxxxxx X. Xxxxx, President
-NO CORPORATE SEAL-
ATTEST:___________________________________
S. Xxxxx Xxxxxxx, Xx., Secretary
OWNERS:
________________________________
