SCENE METROSPACE OPERATING AGREEMENT AGREEMENT made this day of June, 2015 between the CITY OF EAST LANSING, a Michigan municipal corporation, with its principal offices located at 410 Abbot Road, East Lansing, MI 48823 ( City ) and the BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, a constitutional corporation of the state of Michigan ( MSU ) SECTION 1 - AGREEMENT TERM In consideration of the mutual covenants contained herein, the sufficiency of which is hereby acknowledged, MSU agrees to operate the property located at 110 Charles Street, East Lansing Michigan, currently occupied by (SCENE) Metrospace for the entire term specified herein without any fees or charges to City except those specified herein and without any fees or charges to MSU except those specified herein, as long as the premises is used in conformity with this Agreement. Use of the premises shall be limited to the continued operation of (SCENE) Metrospace under the terms and conditions described herein. The term of the agreement shall commence on, 2015 and expire on, 2020. This agreement may be renewed or extended by mutual agreement prior to the expiration date. Either party may at any time and for any reason terminate this Agreement by giving the other 90 days written notice. Notice of termination to City shall be given to:. Notice of termination to MSU shall be given to:. SECTION 2 - PROPERTY MAINTENANCE MSU agrees to keep the premises in good condition. Ordinary wear resulting from careful uses and damage by the elements without fault on the part of the MSU alone are excepted. MSU shall not suffer or commit any waste in or about said premises, nor the building of which they are a part and shall keep said premises, together with the fixtures therein and appurtenances, in a clean, sightly and sanitary condition and in good repair and free from vermin and rodents, all at the expense of MSU, and shall yield the same back to the City upon termination of this Agreement by expiration of the term or in any other manner, in the same condition, except as repaired or altered by the MSU, as at the date of the execution of this Agreement, loss by fire and reasonable wear and tear expected. MSU shall promptly repair all damages caused by MSU s acts or neglect of the premises or other property of the City, upon the demand of the City. The City shall repair damages to the structure not caused by MSU s act or neglect and causing interference with MSU s use and operation of the premises. However, the parties agree -1-
that the City shall not be responsible for any losses of property within the premises, whether owned by MSU or a third party, no matter the cause, including but not limited to mechanical failures, structural defect, water leak or water backup, sewer leak or backup, or fire, and in no event shall City be responsible for theft, vandalism or mysterious disappearance to MSU's or a third party s property regardless of the state of security of the premises. SECTION 3 - USE OF PREMISES, OPERATING COSTS AND CONTROL MSU shall use the premises solely for the operation of (SCENE) Metrospace as an art gallery with affiliated art gallery functions and performances. MSU shall continue to operate under and use the name (SCENE) Metrospace unless otherwise agreed to, in writing, by City. MSU shall have complete curatorial control. The parties acknowledge that this Agreement creates no agency relationship and MSU acknowledges that MSU and MSU s employees, students, and agents are not agents of City. MSU is operating the gallery independently and in its sole discretion. MSU intends to continue to offer opportunities for the general public to attend the exhibits and events on average of approximately 20 hours per week. Except as otherwise specified herein, MSU shall be responsible for all operating costs including, but not limited to, signage, publicity, staffing, receptions, and the like. City shall be responsible for normal utilities and normal utility usage (currently around $4,000 annually). In the event of extraordinary utility usage caused by neglect and/or other unusual circumstances solely in MSU s control, for instance, displays requiring an extraordinary amount of electricity or other utilities, MSU shall be responsible for any utility charges above charges for ordinary usage and operation. MSU shall not operate the gallery in such a manner or allow its use to violate the laws or regulations of any state, county, municipality, or other governmental authority, including any ordinances of the City of East Lansing. MSU shall make no alterations, including, but not limited to, locks, bolts or latches, additions or improvements in or to the premises without prior written consent of the City. All alterations, additions or improvements upon the premises, made by either party, shall, in City's sole discretion, become the property of the City. SECTION 4 - LIABILITY AND INDEMNITY Except for property losses identified in Section 2, City shall defend, indemnify and hold harmless MSU for any claims for damages or personal injuries arising out of use of the building that are solely the result of City s negligence. MSU shall otherwise defend, indemnify, and hold City harmless for any and all claims for property damage identified in Section 2 and for any and all claims arising out of the use, operation, or maintenance of the premises that are attributable to actions or inactions of MSU or of any agents or employees of MSU. -2-
To the extent fault for any claim can be attributed to both parties, each shall be responsible for their own negligence. Nothing contained herein shall establish any rights in favor of any third parties and neither party waives any defenses to any actions it may otherwise have, including immunity from liability. SECTION 5 - TERMINATION FOR BREACH In the event MSU breaches this agreement, City may terminate the agreement upon notice to MSU of breach and MSU s failure to cure the breach within 30 days. SECTION 6 - NOTICE All notices required under this Agreement shall be given in writing and delivered personally or deposited into the U.S. mail, postage prepaid, addressed to the regular business address of the other party. SECTION 7 - LEASE NOT ASSIGNABLE MSU may not assign its rights under this agreement without the express written approval of the City. SECTION 8 -NON-DISCRIMINATION MSU agrees that it will comply with the City s Civil Rights Ordinance, Article II, Chapter 22 of the Code of the City of East Lansing, which in part requires that an employer not discriminate against any employee or applicant for employment with respect to hire, tenure, terms, conditions, or privileges of employment including benefit plan or system, or a matter directly or indirectly related to employment because of religion, race, color, national origin, age, sex, height, weight, marital status, sexual orientation, gender identity or expression, student status, because of the use by an individual of adaptive devices or aids, or because of an arrest record when a conviction did not result, except as allowed under Section 22-33(b)(6) of Chapter 22. An employer may apply to the City Human Relations Commission for an exemption on the basis that religion, national origin, age, sex, height, weight, marital status, sexual orientation, gender identity or expression, or student status is a bona fide occupational qualification reasonably necessary to the normal operation of the business or enterprise. Further, the City s Civil Rights ordinance also prohibits discrimination on the basis of marital status, sexual orientation, or gender identity or expression by failing to provide employment benefits for employees with domestic partners that it otherwise provides for the spouse of a married employee. These requirements of Article II, Chapter 22, shall be considered material terms of this Agreement, and breach of any of these requirements will be regarded as a material breach of this Agreement. -3-
The parties to this lease have signed this lease the day and year first above written. WITNESSES: CITY OF EAST LANSING By George Lahanas, City Manager BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY By Its -4-
Drafted by and approved as to form: Thomas M. Yeadon (P38237) East Lansing City Attorney McGinty, Hitch, Housefield, Person, Yeadon & Anderson, P.C. 601 Abbot Road, PO Box 2502 East Lansing, MI 48826-2502 (517) 351-0280 -5-