GOLF FACILITIES AGREEMENT
THIS GOLF FACILITIES AGREEMENT ("Agreement") is entered into as of the
19th day of December, 1996, by and between SEDONA GOLF RESORT, L.C. an Arizona
limited liability company, ("SGR") and UP Sedona, Inc., an Arizona corporation,
(""Hotel Owner") or nominee.
RECITALS
A. SGR owns and is in the process of developing a master planned
residential/golf community currently known as Sedona Golf Resort, (the
"Project") and operates the Sedona Golf Resort Golf Course, including the
clubhouse and practice facility (the "Golf Course") within the Project. The Golf
Course is graphically depicted as Parcel C on Exhibit "A" attached hereto and
legally described on Exhibit "B" attached hereto (the "Golf Course Property").
B. Hotel Owner is the fee owner of that certain parcel of real estate
located in Yavapai County, Arizona graphically depicted as Parcel B on Exhibit
"A" attached hereto and legally described on Exhibit "C" (the "Hotel Parcel").
Hotel Owner purchased the Hotel Parcel from SGR pursuant to a Real Estate
Purchase Agreement dated March 28, 1996 in which Hotel Owner has warranted to
SGR that it will construct a luxury "Mobil four-star" resort hotel facility
("Hotel") on the Hotel Property.
C. SGR desires to encourage the utilization of the Golf Course by
guests of the Hotel;
D. Hotel Owner desires to obtain certain Golf Course use preferences
for Hotel guests as an amenity for the development and operation of the Hotel;
E. The Purchase Agreement between SGR and Hotel Owner provides that
the parties shall negotiate and agree to the provision of preferred tee times
and other privileges to be extended to Hotel guests.
NOW, THEREFORE, for valuable consideration the receipt of which is
hereby acknowledged, Hotel Owner and SGR agree as follows:
1. Hotel Construction and Operation. Provided Hotel Owner constructs
and operates a luxury four star resort hotel on the Hotel Parcel, SGR agrees to
provide Hotel Guests as defined in paragraph 2.2 below with access to and use of
the Golf Course facilities upon the terms and conditions set forth herein.
2. Golf Course Facility.
EXHIBIT 10.1
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2.1 Continued Operation. SGR and/or its successors and assigns
agree to operate and maintain the Golf Course, in a manner commensurate with its
existing operation (i.e., a top quality championship Golf Course).
2.2 Hotel Guest Defined. A "Hotel Guest" as used in this
Agreement shall mean a person or persons residing at the Hotel in a room
registered in his name or registered in the name of another person on his
behalf. A tee time may be reserved for a Hotel Guest provided at least one (1)
member of the group of golfers for such tee time is a Hotel Guest.
2.3 Use of Golf Course. SGR shall make available to Hotel Owner
on a year-round basis, golf and related facilities sufficient to permit Hotel
Guests the use of the Golf Course for the number of rounds of golf stated in
Paragraph 2.4 below, with a "round of golf" being defined as a single golfer
playing 18 holes ("Hotel Guest Rounds").
2.4 Method of Determining Number of Hotel Guest Rounds. Hotel
Owner shall have the right to reserve a Hotel Guest Round up to sixty (60) days
in advance. Hotel Owner may reserve sixty (60) day advanced Hotel Guest Rounds
for up to forty percent (40%) of the prior year's total rounds of golf played at
the Golf Course. Hotel Owner must provide a credit card guarantee for each Hotel
Guest Round when the reservation is made with the Golf Course. This guaranteed
Hotel Guest Round is subject to cancellation only as provided in Paragraph 3.2
below.
2.5 Tee Times For Hotel Guests. Hotel Guest Rounds for weekends
and holidays shall be allocated equally between the morning and the afternoon.
The Hotel Owner shall be responsible for coordinating and booking all tee times
with the Golf Course's pro shop for individuals, tournaments and groups. SGR
shall cooperate with Hotel Owner in setting up an appropriate booking system,
including confirmations, to insure the bookings will be properly processed and
honored by SGR.
2.6 Tournaments. A tournament ("Tournament") shall be defined as
any scheduled use of the Golf Course which would preclude playing for a certain
period of time during the day by anyone not a part of the Tournament. SGR may
schedule any number of Tournaments. Hotel Owner may also schedule Tournaments,
provided SGR is given at least ninety (90) days' prior written notice of such
event. Equal distribution of tournament times A.M. and P.M. shall be made
available to Hotel tournament bookings.
2.7 Fees. Hotel Guests shall be required to pay greens fees and
cart fees, (collectively "Base Fees"), for use of the Golf Course as established
by SGR each year with such fees to be the "Base Fees" by season for the ensuing
year. Hotel Guests shall be granted a ten percent (10%) reduction of the "Base
Fees", provided tee times are arranged by the Hotel in advance as provided
herein and only for the number of Hotel Guest Rounds provided in paragraph 2.4
above. The Hotel's ten percent (10%) "Base Rate" discount shall also apply
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to tournament bookings. Tournament discounts shall be determined at the time of
booking, based on the number of golfers and services to be provided by SGR.
2.8 Base Fee Adjustment. The Base Fees shall be subject to an
increase or decrease in the reasonable discretion of the Golf Course, provided
however: (a) the fees available to Hotel Guests shall be subject to adjustment
by SGR only once per calendar year (during either September or October)
effective January or February and shall thereafter remain constant for one year
from the date of each adjustment.
2.9 Distribution of Starting Times. Except as may be limited by
tournaments as defined herein, SGR agrees that the starting times during each
season shall be allocated fifty percent (50%) before noon, and fifty percent
(50%) after noon, and shall be further distributed daily between Hotel Guests
and other individual golfers on a first come, first booked basis. If Hotel Owner
has not reserved its allotment of starting times at least fourteen (14) days
prior to the commencement of play of a given day, SGR may assign all such
unreserved starting times to golfers on a first come, first booked basis. SGR
will reasonably cooperate with Hotel Owner in providing unreserved starting
times to accommodate Hotel Guests desiring to golf without advance reservations.
2.10 Driving Range/Practice Putting Greens. All players of the
Golf Course shall have the right to use the driving range and practice putting
greens on a first-come, first-served basis.
2.11 Over-seeding and Holidays. Notwithstanding anything above to
the contrary, SGR may cease operation of the Golf Course due to weather
conditions or on holidays and at such other times as it is not reasonable to
operate the Golf Course provided that SGR will provide as much advance written
notice to Hotel Owner, where such cessation is anticipated, as is reasonably
possible.
2.12 Advance Booking Fee Waiver. The Golf Course's then
applicable advance booking fee shall be waived for the number of Hotel Guest
Rounds provided in paragraph 2.4 above. The current advance booking fee is ten
and no/100 Dollars ($10.00) for reservations of 14-60 days in advance. For all
rounds of golf played by Hotel Guests in excess of the number provided in
paragraph 2.4 above, the Golf Course's then applicable advance booking fee shall
apply.
3. Guaranteed Tee Times.
3.1 Hotel Owner to Guarantee in Advance. Hotel Owner shall have
the right to book Tournaments or group outings (minimum of twenty four players)
up to twelve (12) months in advance of the scheduled Tournament or group play
date provided that Hotel Owner shall be required to guarantee said group or
Tournament reservation up to sixty
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(60) days prior thereto. Once payment is received by SGR, these tee times shall
be considered guaranteed. All Tournament or group tee time bookings shall be
handled on a case by case basis subject to the terms hereof. If Hotel Owner
should fail to make payment for the Tournament or group outing sixty (60) days
in advance, the reservation may be deemed canceled. No payment shall be required
prior to sixty (60) days of Tournament day.
3.2 Cancellation of Tee Times and/or Tournament Reservations.
Hotel Owner shall have the right to cancel Hotel Guest Rounds by written notice
to SGR up to six (6) days prior to scheduled tee time without penalty. Further,
Hotel Owner shall have the right to cancel Tournaments or group outings by
written notice to SGR up to sixty-one (61) days prior to the scheduled
Tournament date without penalty.
3.3 Tournament Formats. SGR agrees to cooperate with Hotel Owner
in the planning and running tournaments scheduled by Hotel Owner in formats that
are typical in the industry.
4. Miscellaneous.
4.1 Rules and Policies. Hotel Guests will be permitted to use the
Golf Course and facilities provided they adhere to the policies, rules and
procedures adopted by the Golf Course.
4.2 Sale of Golf Merchandise and Use of Name. Hotel Owner agrees
for itself and its successors and assigns that neither the Hotel nor any vendor
or occupant of the Hotel Parcel shall operate a pro shop or other entity which
sells golf clubs, golf balls, golf bags, golf clothing or other golfing
paraphernalia or otherwise compete with the Golf Course and affiliated pro shop
within the Project; however, Hotel Owner shall have the right to sell non-golf
related merchandise in the resort such as resort (Hotel) apparel, accessories,
souvenirs and clothing.
4.3 Clothing. Hotel Owner shall have the right, subject to the
prior reasonable written approval of SGR, to utilize the "Sedona Golf Resort"
name and logo in connection with Hotel Owner's development, operation and
advertisements concerning the Hotel.
4.4 Governing Law. This Agreement shall be governed by the laws
of the State of Arizona. Each party shall have such remedies at law available to
it in order to enforce the terms of this Agreement.
4.5 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the successors and assigns.
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4.6 Notices. All notices, demands and writing in this Agreement
provided to be given, made or sent shall be deemed to have been given, made or
sent only when made in writing and actually received or deemed, pursuant to the
following sentence to have been received. Any item sent by Federal Express, or
similar overnight delivery or certified U.S. mail, return receipt requested and
postage prepaid, shall be deemed to have been received on the date indicated on
the return receipt as (i) the date of delivery, or (ii) the date delivery was
refused, or (ii) the date the item was finally determined to be undeliverable.
Notices, demands, and any other writings shall be addressed to the parties at
their respective addresses set forth below:
Hotel Owner UNITED PROPERTIES, INC.
Attn: William S. Oliver
2601 East Thomas Road
Suite 225
Phoenix, Arizona 85016
With a Copy to:
Robert L. Shaw, Esq.
Byrne, Beaugreau, Shaw, Zukowski & Hancock
2111 E. Highland, Suite 255
Phoenix, AZ 85016
SGR c/o SunCor Development Company
3838 North Central Avenue
Suite 1500
Phoenix, AZ 85016
Attn: Peggy Kirch
With a Copy to: SunCor Resort and Golf Management
3838 North Central Avenue
Suite 1500
Phoenix, AZ 85016
Attn: Tom Patrick
4.7 Continued Use. The parties hereto agree: (a) the terms of
this Agreement shall remain in effect so long as the Golf Course Property
remains in use as a public use or public access, private or semi-private golf
course; and (b) to meet and confer in good faith, every five (5) years form the
date of this Agreement with regard to the number of rounds allotted to Hotel
Owner.
4.8 SGR Representations. SGR represents and warrants to Hotel
Owner that: (a) execution and performance of its obligations under this
Agreement has been duly
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authorized by appropriate organizational or other action of SGR and does not
violate any agreement, law or other arrangement by which SGR is bound.
4.9 Hotel Owner Representations. Hotel Owner represents and
warrants to SGR that execution and performance of its obligations under this
Agreement has been duly authorized by appropriate organizational or other action
of Hotel Owner, and does not violate any agreement, law or other arrangement by
which Hotel Owner is bound.
4.10 Recordation. A Notice of this Agreement shall be recorded by
SGR on the land occupied by the golf clubhouse in the county in which the Golf
Course Property and/or Hotel Property are located.
4.11 Benefit. This Agreement shall benefit the Hotel Property.
All references to "SGR" shall refer to the owner and holder of title to the Golf
Course Property. All references to "Hotel Owner" shall refer to the owner and
holder of title to the Hotel Property.
IN WITNESS WHEREOF the parties have executed this Agreement as of the
day and year first above written.
SEDONA GOLF RESORT, L.C. an
Arizona limited liability company
By: SunCor Development Company,
an Arizona corporation, its Managing
Member
By:/s/ Peggy Kirch
-------------------------------------
Its: Vice President
HOTEL OWNER
By:/s/ William S. Oliver
-------------------------------------
Its: President
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