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HomeMy WebLinkAboutKona Ice temp S-2022-00206CITY OF CARMEL/CLAY TOWNSHIP, HAMILTON COUNTY, INDIANA SIGN PERMIT APPLICATION 1. SIGN PERMIT NUMBER: S-2022-00206 SIGN COPY: Kona Ice SIGN ADDRESS: CLAY TERRACE BLVD RAMP, CARMEL, 46032 SIGN TYPE: Wall SIGN DURATION: Temporary (*See #7 Disclaimers, pg. 3) SIGN AREA DIMENSIONS: 79" x 146"TOTAL SIGN AREA SQ. FT.: 80.00 WALL MOUNTED SIGNS: SPANDREL PANEL DIMENSIONS: n/a SIGN DIMENSION AS A % OF SPANDREL PANEL: n/a HEIGHT OF SIGN FROM GROUND: 9.2 NUMBER OF SIDES: 4.00 (wall sign: measure to bottom of sign; groundsign: measure to top of sign) BUILDING / TENANT SPACE FRONTAGE: 88 x 12.2 SIGN DISTANCE FROM NEAREST R.O.W.: n/a (R.O.W. stands for Right of Way. The inside edge of sidewalk is often the end of the R.O.W. (City’s property) and a good spot to measure from.) LAND ACREAGE: n/a (Applies only to Temporary signs)SIGN FACE COLOR(S): blue, red, yellow, green, ILLUMINATION METHOD: None BUILDING TYPE: Other IDENTIFY ANY EXISTING SIGNS ON SITE: on trailer WHAT WAS THE NAME OF THE PREVIOUS TENANT (IF APPLICABLE)? n/a SHOPPING CENTER OR COMPLEX NAME: Clay Terrace SIGN STATUS: New TOTAL SIGN AREA PERMISSABLE SQ. FT.: 80.00 OTHER ILLUMINATION METHOD: OTHER BUILDING TYPE: Trailer 2. ZONING PARCEL ID: ZONING DISTRICT: PRIOR APPROVALS: P.C. Docket # n/a B.Z.A. Docket # n/a Building Permit# n/a 3. APPLICANT PERMIT NUMBER: S-2022-00206 NAME OF BUSINESS*: Kona Ice CITY: Fishers CONTACT EMAIL: INDY@KONA-ICE.COM PHONE: 3179995919 ADDRESS: 11581 Ludlow Drive CONTACT PERSON: Shawn Hickey (*Entity identified on the sign) STATE: IN ZIP: 46037 PROPERTY OWNER: JAIME MONTGOMERY PHONE: CONTACT PERSON: Shawn Hickey CONTACT EMAIL: konaiceindy@gmail.com ADDRESS: 11581 Ludlow Drive ZIP: 46037STATE: INCITY: Fishers I CERTIFY THAT A PICTURE OF THIS SIGN WILL BE SUBMITTED TO THE DEPARTMENT OFCOMMUNITYSERVICES WITHIN ONE (1) WEEK AFTER ERECTION OF THE SIGN. -OR- I WOULD PREFER AN INSPECTION FEE BE ADDED TO THE COST OF THIS PERMIT TO COVER THE COST OF THE STAFF OF THE DEPARTMENT OF COMMUNITY SERVICES TAKING THIS PICTURE. Y N 4. SIGN COMPANY/OWNER'S REP COMPANY NAME: Shawn Hickey CONTACT PERSON: Shawn Hickey ADDRESS: 11581 Ludlow Drive ZIP: 46037STATE: INCITY: Fishers EMAIL ADDRESS: konaiceindy@gmail.com PHONE: 3179995919 PERMIT NUMBER: S-2022-00206 Page 1 of 3 CITY OF CARMEL/CLAY TOWNSHIP, HAMILTON COUNTY, INDIANA SIGN PERMIT APPLICATION 5.FEES (COMPLETED BY DOCS STAFF)PERMIT NUMBER: S-2022-00206 ADMINISTRATIVE ADLS AMENDMENT SIGN PERMIT APPLICATION $112.00 SIGN ERECTION $350.00 INSPECTION FEE (Required if photography not provided) TOTAL FEE $462.00 PERMIT ISSUED ON: 6/24/2022 8:04:50PM FEE RECEIVED ON: 6. DEPARTMENT CONDITIONS (COMPLETED BY DOCS STAFF) THE FOLLOWING ITEMS LISTED BELOW ARE CONCERNS BY STAFF OR PRIOR COMMITMENTS THAT MUST BE ADHERED TO AS A CONDITION OF THE ISSUANCE OF THIS PERMIT (PLEASE INITIAL EACH ITEM INDIVIDUALLY ): 1) x ________ 2) x ________ 7.DISCLAIMERS (COMPLETED BY DOCS STAFF) APPLICANT, PLEASE NOTE THE FOLLOWING: PERMANENT SIGNS: •IF THE SIGN IN THIS APPLICATION IS A PERMANENT SIGN, THIS SIGN PERMIT IS APPROVED FOR THIS SIGN ATTHIS LOCATION ONLY. •IF THE APPLICANT RELOCATES AT A FUTURE DATE/TIME TO A NEW BUILDING, A NEW SIGN PERMIT IS REQUIRED FOR THE NEW LOCATION. ALL FEES APPLY. TEMPORARY SIGNS: •IF THE SIGN IN THIS APPLICATION IS A TEMPORARY SIGN , THIS SIGN PERMIT EXPIRES ON: THIS SIGN PERMIT MAY BE RENEWED ANNUALLY FOR AN ADDITIONAL YEAR WITH A PERMIT BY RE-APPLYING. ALL FEES APPLY. •IF THE SIGN IN THIS APPLICATION IS FOR AN INTERIM BANNER PENDING A PERMANENT SIGN, IT IS APPROVED FOR A THREE MONTH TIME PERIOD FROM THE DATE THE PERMIT IS APPROVED . A SIGN PERMIT IS REQUIRED. IT MAY BE RENEWED FOR AN ADDITION THREE MONTHS WITH A PERMIT BY RE-APPLYING. ALL FEES APPLY THE APPLICANT CERTIFIES THAT THE FOREGOING SIGNATURES , STATEMENTS AND ANSWERS HEREIN CONTAINED AND THE INFORMATION HEREWITH SUBMITTED ARE IN ALL RESPECTS TRUE AND CORRECT , AND THIS SIGN WILL BE ERECTED AND MAINTAINED IN ACCORDANCE WITH ALL APPLICABLE LAWS OF THE STATE OF INDIANA, AND THE ZONING ORDINANCE OF CARMEL /CLAY TOWNSHIP, INDIANA AND ALL ACTS AMENDATORY THERETO, AND SHALL BE ERECTED WITHIN SIX (6) MONTHS OF THE DATE OF ISSUANCE OR THIS PERMIT IS NULL AND VOID. FURTHER, THE APPLICANT CERTIFIES BY SIGNING THIS APPLICATION THAT ALL REPRESENTATIVES OF THE 8.CITY CONTACT PLEASE DIRECT ANY SIGN QUESTIONS TO THE DEPARTMENT OF COMMUNITY SERVICES (DOCS): CITY OF CARMEL Or call at 317-571-2417 DOCS 1 CIVIC SQUARE CARMEL, IN 46032 Page 2 of 3 4:44 ' 1 T-MOL Not too 1 Sunglass I Sunglasses s Y • � Ja 7emDorarilgplosed Express j i,; 50 0 COST: $38,450 ROYALTY: $1,000 annually FINANCING PARTNERS: PNC, Ally Financial, Eagle Finance FEATURES: • Interior and exterior Flavorwave • One Snowie Pro Cube ice shaver • Twenty 2-1/2 gallon jugs • High efficiency, foam insulated tempering well and storage bins (as in the 2.0) instead of standalone freezer (in home style) • Large sliding serving window on passenger side • Large stationary window on driver side with top section screened slider to allow cross ventilation • Fresh and grey water systems • 2.5 gallon water heater • One roof-mounted sign/wing • One fire extinguisher and one CO2 alarm • One roof-mounted Fan-Tastic Vent • One roof-mounted A/C unit • Four scissor-jacks for leveling/reinforcementINCLUDED WITH YOUR KET: 20 1 1 2 2 sheets 1 1 1 2.5 gallon jugs (as listed above) Ice Scoop Music CDs Money Aprons Flavor Labels Foot Pedal Extra Blade & Housing Sanitation Kit THE TOWING REQUIREMENTS: • Trailer weights 3,520 lbs empty; tongue weight 500 lbs. • 2" ball and hitch • 7-way receptacle • Braking System comes standard ELECTRICAL: • Equipped with interior and exterior LED light package accompanied with exterior Boogey Lights (LED color-changing lights) around serving window and on fin. • (1) Rooftop solar panel • One 115 Volt, 30 Amp line for A/C unit and charging house batteries • High fidelity stereo system including 4 Bose marine speakers and accompanying amplifier. • Inverter to change DC power to AC power • Converter to change AC power to DC power to charge house battery system • (4) 6 volt lead acid batteries • 2.5 gallon water heater ORDERING: A deposit of $5,000 will confirm your order. We will need your response to the following: 1) Target availability timeframe? 2) Do you plan to pick up the Trailer from Kona or have it delivered via carrier to your location? THE SPEC SHEET PARKING LOT LICENSE AGREEMENT CLAY TERRACE 14390 CLAY TERRACE 6LVD CARMEL, INDIANA 46032 This PARKING LOT LICENSE AGREEMENT (this "Agreement") made effective as of 9 by and between the parties identified in Section 1 as Licensor and Licensee, also referred to as a 'Party" and collectively, the "Parties". In consideration of the covenants and conditions hereinafter set forth, Licensor and Licensee hereby covenant and agree as follows: 1. PARTIES LICENSOR: CLAY TERRACE PARTNERS, LLC CLAY TERRACE ("Center") CLAY TERRACE 14390 CLAY TERRACE BLVD SUITE 165 CARMEL, INDIANA 46032 LICENSEE: HICKEY'S SHAVED ICE Q.B.A. KONA ICE OF INDY 11581 LUDLOW DRIVE FISHERS, IN 46037 Attn: JACKIE SHOWALTER (317) 999-5919 2. GRANT OF LICENSE 2.1. License. Licensor hereby grants to Licensee a non-exclusive license to use the Space, as defined in Section 2.2 for the sole purpose set out below (the "Event' or "Permitted Use") on the dates and during the times set out in Section 2.3, subject to the terms and conditions set forth in this Agreement and the specific rules and guidelines set out in Exhibit "B" attached hereto and forming part of this Agreement (the "Event Rules and Guidelines'). Permitted Use/Event: To serve coffee and ice products and for no other purposes.. 2.2. Space. Licensee shall have the right to use that certain portion of the Center parking area designated for Licensee's use by Licensor, as shown on Exhibit "A" attached hereto ("Space"). Licensee must submit to Licensor for Licensors approval a complete layout prior to the move -in date set out in Section 2.5 below or as otherwise agreed to by the Parties (the "Move -In Date'), which agreement may be made via email. Licensor shall have the right to change the layout and set-up of the Space. Licensee shall provide, at its own cost, all equipment necessary to operate in the Space. 2.3. Location Condition "As is'". Licensee accepts use of the Space, subject to the terms of this Agreement, "as is" and without warranty or representation. Licensor has made no representations or warranties as to the fitness of the Space for any specific use, including Licensee's Permitted Use. Licensee shall not require Licensor to make any changes to the Space or Center to accommodate the Permitted Use and, specifically, License shall not mark any parking spaces with paint, signage or in any other manner without the prior written approval of Licensor. 2A. Relocation. Notwithstanding the foregoing Section 2.2, Licensor reserves the right to change the Space and relocate the Licensee to a different Space at the Center, in its sole discretion, acting reasonably. 2.5. ey Dates and Times. Licensee shall use the Space for the Permitted Use on the following dates and during the times set out below or such times as agreed to'by the Parties ("Hours of Operation"). Any changes to Hours of Operation must be approved in advance by Licensor. Event Date StartTime End Time Move -In Date Move -Out Date 3. TERM AND TERMINATION. Commencement Date: 04/15/2022 Expiration Date: 07/31/2022 3.1. The term (the "Term") of this Agreement shall commence on the Commencement Date, and shall expire at 11:59 p.m. on the Expiration Date. 3.2. Notwithstanding the foregoing to the contrary, Licensor may terminate this Agreement (i) in its sole discretion and with or without cause, upon fifteen (15) days prior written notice delivered to Licensee at Licensee's address set out in Section 1: and (ii) in the event Licensee is in Default (as defined herein), Licensor may terminate this Agreement at any time pursuant to Section 10. Deaf ID: WPG-064436 4. LICENSE FEE AND PAYMENT 4.1. License Fee. As consideration for the license granted in this Agreement, Licensee shall pay to Licensor, without demand, set-off or counterclaim, the fee set out below (the "License Fee"), payable pursuant to Section 4.2. Due Date License Fee 04/15/2022 $400.00 05/01 /2022 $500.00 06101 /2022 $500.00 07/01 /2022 $500.00 License Fee Total: $1,900.00 4.2. Method of Payment. Any payments required by this Agreement shall be made payable by the payment method requested by Licensor and shall be delivered to Licensor as follows: MAKE CHECKS PAYABLE TO: Clay Terrace Partners, LLC MAIL PAYMENTS TO: Clay Terrace 14390 Clay Terrace Blvd Suite 165 Carmel, Indiana 46032 4.3. Late Payments and Returned Checks. If Licensee is late in making any payments required by this Agreement, Licensor may impose a late fee or fees, in its sole discretion. The payment of such fee or fine shall not be construed to extend the date for payment of any Fee or relieve Licensee of its obligation to pay the License Fee or Overage Fee. Licensee shall pay a service charge in the amount of $30.00 for each returned checks. 4A. Taxes. Licensee shall pay to Licensor any and all governmental or quasi -governmental taxes or charges (other than income tax), as may be in effect during the Term at the then -current rate set by the applicable taxing authority. Licensee understands that tax rates are subject to change and the tax amount charged to Licensee by Licensor will be adjusted accordingly. In addition, Licensee is obligated to collect State sales tax, where applicable, on its Gross Sales and to pay over such sales tax to the applicable taxing authority or authorities. 5. OVERAGE FEE 5.1. Overage Fee. In addition to the License Fee, Licensee shall pay the following Overage Fee (the "Overage Fee") during the Term payable pursuant to Section 4.2 herein. Effective Date Percentage Breakpoint 04115/2022 10,000/0 $ 4,000.00 05/0112022 10,00°l0 $ 10,000.00 5.2. Gross Sales and Statement. "Gross Sales' shall mean all revenue from all sales or transactions conducted in, on or from the Space, during the Term by Licensee or any person or entity, for cash, credit or otherwise without reserve or deduction. Excluded from Gross Sales shall be: (i) refunds to customers; and (ii) sales, excise or similar tax imposed by governmental authority and collected from customers and paid out by Licensee. No other tax or expenses shall be deducted from Gross Sales. Licensee shall deliver to Licensor on the Expiration Date or at such other time designated by Licensor, a completed and accurate written statement of Gross Sales during the Term and payment of the Overage Fee, if applicable. 5.3. Licensee's Book and Records. Licensee shall be required to provide proof of Gross Sales for the Event or Permitted Use. Licensor shall have the right to inspect and audit such records. Licensee will preserve for at least one (1) year all original books and records, separated and identifiable, disclosing information pertaining to Gross Sales, including but not limited to, cash register tapes, sales slips, sales checks, tax reports, bank deposit records, sales journals and other supporting data. At any time during the Term, Licensee shall, upon twenty-four (24) hours' notice from Licensor, present such records at the Center Management Office for examination or audit. Following the expiration or earlier termination of this Agreement, Licensee shall, within ten (10) days after receipt of written notice from Licensor, present such records at the Center Management Office for examination or audit. Licensee shall promptly pay any deficiency in the Overage Fee disclosed by such examination or audit. If such examination or audit discloses a liability that is three percent (3%) or more in excess of the Overage Fee paid by Licensee, Licensee shall promptly pay Licensor the cost of said audit and the deficiency in the Overage Fee, which deficiency shall be payable in any event. 6. INDEMNIFICATION. Licensee shall defend, indemnify and hold harmless Licensor and any other owners of the Center, and all their shareholders, partners, directors, related and affiliated entities, ground lessors, managers, management companies, employees, agents, guests, customers and invitees (collectively "Licensor Parties"), from and against any and all liabilities, obligations, losses, penalties, actions, suits, claims, damages, expenses, disbursements (collectively, "Claims'), including reasonable outside legal fees and expenses, or costs of any kind and nature whatsoever in any way relating to or arising out of any third party claim resulting from (i) any act or omission of Licensee (including without limitation the acts or omissions of the Licensee's officers, directors, employees, agents, contractors, invitees, and/or licensees within the Space or Center), (ii) any occurrence which takes place in or about the Space as the result of Licensee's negligence or willful misconduct, (iii) any damages to the Space excluding claims arising solely from the gross negligence or willful misconduct of Licensor. To the extent permitted by applicable taw, Licensee's duty to indemnify Licensor under this Deal ID: WPG-064436 Section 6 will apply regardless of and will extend to cover losses caused by either Licensee's or Licensor's concurrent, comparative, or contributory negligence. The foregoing indemnity shall include, but not be limited to, third party claims for property damage or personal injury, including death, claims of the Licensee's employees or agents, whether for injury, death, compensation, social security, pension, tax withholding, employment or workers compensation, or otherwise, claims of any suppliers or other third parties with whom the Licensee deals, and claims of infringement of copyrights, trademarks, trade secrets, or other proprietary interest with respect to the services provided by the Licensee hereunder. 7. INSURANCE 7.1. Required Coverage. Commencing upon the earlier of the Move -in Date or the Commencement Date (the "Insurance Date"), Licensee shall bear the entire risk of loss for all of its property, furniture, fixtures, carpets, machinery, improvements and betterments, equipment, inventory, stock in trade and goods placed in the Space. Licensee shall carry, at its own expense, from the Insurance Date throughout the Term, insurance providing the following: (a) "All Risk" Special Perils coverage on the Licensee's personal property, improvements, fixtures, etc. located within the Space or parking lot of the Center, (b) Commercial General Liability insurance covering the Space and Licensee's use of the Space with a minimum coverage of $3,000,000 per occurrence and $3,000,000 aggregate for Bodily Injury and Property Damage, including Loss of Use, (c) Workers' Compensation insurance as to comply with the laws and regulations of the state in which the Center is located; and (d) Automobile Liability insurance in a minimum amount of $2,000,000 each accident, covering all owned, hired or non -owned vehicles used in the furtherance of this Agreement, if applicable. Licensee's insurance policies(collectively, "Licensee's Policies"), shall be written with insurers licensed to do business in the state in which the Center is located, in a form satisfactory to Licensor and shall carry an A.M. Best rating of at least A-. With the exception of Workers Compensation, Licensee's Policies shall name Licensor, its parent and any related affiliates or subsidiaries and their employees as additional insureds and shall provide Licensor with no less than thirty (3D) days prior written notice of cancellation or non -renewal. Licensee's policies shall also reflect that in the event that coverage benefiting Licensor exists under Licensee's Policies, coverage under the Licensee's Policies shall be primary and non-contributory. Licensee may achieve the above limits through a combination of primary and umbrella policies. 7.2. Liquor Liability Coverage. If alcoholic beverages are served, sold or otherwise distributed in, on or at the Space, Licensee shall carry, at its sole cost and expense, liquor liability insurance for the benefit of Licensor and Licensee against claims for bodily injury, death or property damage resulting from or arising out of the sale, distribution, service or consumption of alcohol (liquor, beer or wine) from the Space of not less than $3,000,000 per occurrence in respect of such personal injury, death or property damage. Licensee may achieve such limits through a combination of primary and excess policies. Licensee's insurance policy(ies) shall be written with insurers licensed to do business in the state in which the Center is located, in a form satisfactory to Licensor and shall carry an A.M. Best rating of at least A-. 7.3. Certificates. Licensee shall provide Licensor with a certificate of insurance (ACORD 25) prior to the date of occupancy by Licensee; and, within thirty (30) days of each anniversary of Licensee providing such proof of insurance. 8. MUTUAL WAIVER OF SUBROGATION. Licensor and Licensee each waive all claims against each other, and shall cause their insurers to waive all rights of subrogation against the other, its officers, directors, employees and agents, mortgagees and ground lessor(s), from any and all loss, damages or liability covered under any policy of insurance required to be maintained by this Agreement, including deductibles or retentions, notwithstanding that such loss, damages or liability may have arisen from the negligence, tortious act or omission of the other party, or anyone for whom such party may be responsible. 9. WAIVER OF LIABILITY. Licensor and the Licensor Parties shall not be liable to Licensee for, and Licensee waives all claims for loss or damage, including, but not limited to consequential damages, to person, property or otherwise, sustained by Licensee or any person claiming through Licensee resulting from any condition, accident or occurrence in or upon the Space, or any other part of the Center. There shall be absolutely no personal liability of Licensor with respect to this Agreement. If a breach by Licensor occurs, Licensee shall look solely to the value of the consideration paid by Licensee to Licensor for the satisfaction of Licensee's remedies. 10. DEFAULT AND TERMINATION. The failure of Licensee to fulfill or perform any obligation, term or condition of this Agreement shall be a default ("Default'). If Licensee is in Default, Licensor may pursue such remedy as is provided for in Section 3 of this Agreement and Licensor may pursue any other remedy or remedies available to Licensor at law or in equity. Licensor shall not, under any circumstances, be obligated to accept any payments and/or to allow Licensee to cure any Default hereunder. Licensor may pursue any damages (including, but not limited to Licensors reasonable attorney fees and legal costs and expenses) and/or any other losses sustained by Licensor as a result of Licensee's Default. Without limiting Licensor's rights and damages under the terms of this Agreement or applicable law, if Licensor exercises its right to recover possession of the Space, the Parties specifically agree and acknowledge that Licensor shall be entitled to recover from Licensee monetary damages equal to Licensor's costs in facilitating such recovery. 11. PERMITS AND COMPLIANCE. Licensee shall obtain, prior to the Commencement Date, any licenses, authorizations, or permits required by any governmental agency or authority for the Permitted Use and for any type of activity to be carried on at or the Space. If the Event is shut down by any government agency for any reason, Licensee shall not be entitled to a refund of any fees paid. Licensee shall, at its own expense, comply with all laws, orders, ordinances and with directions of public officers thereunder as well as the Event Rules and Regulations and any other direction of Licensor regarding the use of the Space. 12. ALCOHOL CONSUMPTION, SERVICE AND SALE PROHIBITED. The consumption, service or sale of alcoholic beverages on or from the Space or the Center by Licensee, its employees, agents, contractors, or invitees is strictly prohibited, unless otherwise agreed to in writing by the Parties. 13. SECURITY, SUPERVISION AND CONTROL. Licensee shall at all times during its occupancy of the Space provide sufficient supervision and maintain adequate control of its employees, guests, customers, and invitees while the same are at or about the Center, so as to prevent unlawful or offensive actions and actions which are a breach of this Agreement. In addition, Licensee assumes full Deal ID: WPG-064436 responsibility for the protection of the Space, Licensee's employees, invitees, licensees, guests and customers against the acts of third parties, and will indemnify, defend, and hold harmless Licensor from any such claims made by the above specified persons of any damages, including reasonable outside attorneys' fees, resulting therefrom. 14. SIGNAGE. All signage and/or other display materials used in the Space must be of professional quality and approved by Licensor prior to use or display. Hand-written signage is not permitted. Licensor reserves the right to remove, alter or relocate signage or display materials at Licensor's sole discretion and without consequence from Licensee. 15. MAINTENANCE OF SPACE. Licensee shall maintain the Space, at its sole cost and expense, in good, clean and safe condition and make all necessary replacements and repairs to the Space except for structural repairs. 16. HAZARDOUS MATERIAL. Licensee shall not cause or permit any hazardous material to be brought upon, stored, kept, used, or discharged on or about the Space. 17. DAMAGE. Licensee shall be liable for all damages to the Space and, upon demand, shall reimburse Licensor for the cost of the repair of the Space or any other damage elsewhere to the Center caused by Licensee or its employees, agents, contractors, or invitees. 18. REMOVAL. No later than 11:59 pm on the Expiration Date, Licensee shall remove any signage, display materials and any other goods and effects from the Space, repair any damage caused by such removal, and peaceably yield up the Space in clean and good order, repair and condition. Any trash must be removed by Licensee pursuant to the Event Rules and Guidelines. Personal property of Licensee not removed by the end of the Expiration Date or earlier revocation of this Agreement may be sold or destroyed by Licensor, at Licensor's option, without liability to Licensee therefor. 19. MARKS AND NAMES. Licensee hereby acknowledges that the Center name (the "Name") is a name and mark which may have been (a) registered with both the state where the Center is located and the U.S. Patent and Trademark Office and (b) licensed to the Licensor for its use generally in connection with the operation of the Center. Accordingly, Licensee shall use no symbol, design, name, mark or insignia adopted by or identifying the Center, including without limitation the Name or the name of the Licensor or any of its affiliates, without the prior written approval of the Licensor. Should Licensor grant such consent, Licensee shall not assign or transfer in any way such rights to any third party without the written consent of Licensor. 20. HOLDING OVER. If Licensee does not vacate the Space at the end of the Term pursuant to the terms of this Agreement, Licensor, at its option, may (i) deem the Licensee to be occupying the Space as a holdover Licensee and agrees to pay Licensor for such period at double the License Fee in effect during the Term and otherwise subject to all of the terms and conditions of this License, or (ii) Licensor may exercise any other remedies it has under this Agreement or at law or in equity including an action for wrongfully holding over. 21. GENERAL 21.1. Relationship of Parties. The relationship of the Parties created by this Agreement shall be that of independent contractors. Neither Party shall have the power to obligate or bind the other in any manner. Licensee is expressly not authorized to represent in any manner or context that Licensor is a guarantor of any product or service of Licensee. 21.2. Assignment and Subletting. Licensee shall not sell, assign, mortgage, pledge or transfer this Agreement or any interest therein, nor sublet all of the Space or any part of the Space, nor license concessions or departments therein, without Licensors prior written approval, which may be withheld at Licensor's sole and absolute discretion. 21.3. Notice. Notice to Licensee or Licensor ("Notice") shall be effective only if Notice is in writing and is (1) delivered in person, (ii) delivered by U.S. mail, or (iii) delivered by a reputable overnight courier. Any such Notice shall be delivered (1) to Licensor at the address set forth in Section 1, or to such other address as Licensor shall designate by giving written Notice thereof to Licensee; or, (2) if to Licensee, at the address set forth in Section 1 or such other address as Licensee shall designate by giving written Notice thereof to Licensor. Any such Notice (including any statement, certificate, request or demand) shall be deemed to have been given upon receipt or refusal of receipt. 21.4. Entire Agreement. This Agreement and any and all attachments and exhibits thereto, constitute the entire and complete agreement between the Parties and supersedes any prior oral or written representations, promises or agreements between the Parties with respect to the subject matter hereof. 21.5. Amendment. This Agreement may not be amended or modified, and no waiver of any term or condition shall be effective, unless made in writing and signed by the Parties hereto. 21.6. Failure to Enforce. The failure of either Party to this Agreement to object to or take affirmative action with respect to any conduct of the other which is in violation of the terms of this Agreement shall not be construed as a waiver thereof, or of any future breach or subsequent wrongful conduct. 21.7. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, 21.8. Survival. The obligations of Licensee (i) for payment of rent and charges under this Agreement, (ii) for performance of obligations which by their nature must be performed after the expiration or earlier termination of this Agreement, and (iii) under Sections 6 of this Agreement, shall survive the expiration or earlier termination of this Agreement Deal io: WPG-064436 21.9. Governing Law. This Agreement shall be governed by and shall be construed in accordance with the laws of the State where the Center is located, excluding any conflict of laws rule or principle that might refer the governance or the construction of this Agreement to the law of another jurisdiction. The Parties expressly waive all right to trial by jury in any action, proceeding or counterclaim arising out of this Agreement. 21.10. Counterparts and Electronic Copies. This Agreement may be executed in any number of counterparts with the same effect as if all signing parties had signed the same document. All counterparts shall be construed together and constitute the same instrument. A signature to this Agreement executed and/or transmitted electronically shall have the same authority, effect, and enforceability as an original signature. IN WITNESS WHEREOF, the undersigned parties hereto have caused this Agreement to be duly executed by their authorized representatives. LICENSOR LICENSEE CLAY TERRACE PARTNERS, LLC, a Delaware limited liability HICKEY'S SHAVED ICE company Indiana Limited Liability Company D.B.A. Kona Ice of Indy ' By: By: Print Name: Print Name: f�%: t �e Title: Title: 45►/n Date: 3 /�ol- / ax Date: Deal ID: WPG-064436 N k EXHIBIT A EVENT SPACE Kona Ice Truck Location FOODS [P@n 30,127 SF va XA V LEASE 22 1 LEVEL ," 1(9 f,� 2 ice Machine Location mN PRODIGY Mrl 5-109 sc nt® QDOBA EXHIBIT B EVENT RULES AND GUIDELINES These Event Rules and Guidelines are attached to and form part of an Agreement between Licensor and Licensee, in the event of a conflict between the terms of these Event Rules and Guidelines, the Agreement, the terms of the Agreement shall govern. Capitalized words not defined in these Rules and Guidelines shall have the meaning assignment to them in the Agreement. 1. Management and Staffing. Licensee will maintain an onsite management "office" at the Space and/or have management representation present and accessible in the Space during all Hours of Operation. In addition, Licensee shall have sufficient staff for Move -in, Move -Out and all aspects of the Event during all Hours of Operation. 2. Set -Up. Licensee may not commence set up of the Space prior to the Move -In Date, Licensee shall provide Licensor with 24 hours prior notice of its time of arrival to the Space. At all times, Licensee will conduct its activities in a manner that does not hinder the activities of Center patrons in any way. 3. Anchoring and Parking Lot Surface. The use of stakes in asphalt surfaces is strictly prohibited. Parking Lot Surface is to be left in the same condition as was provided to Licensee. If any damage should occur to the surface of the Space, it is the sole responsibility and expense of Licensee to restore the surface to its original condition and to the satisfaction of Licensor. Licensee is required to use a non-destructive anchoring system designed to handle the live, dead and wind loads of the item to be anchored, such as: concrete counter weights, water -filled counterweights utilizing barrels, jersey barricades or any other system recommended by a safetylstructural engineer. 4. Security. Theft, loss or damage to equipment or property is the sole risk and responsibility of the Licensee. Licensee will provide security at its own expense during all Hours of Operation. Security to be attired in identifiable jackets. The number of security personnel must be approved in advance by the Licensor. No armed guards will be permitted. 5. Maintenance and Trash. Licensee shall maintain the Space in a clean, safe and tidy condition. Specifically, Licensee shall clean up the Space nightly at the close of business. Licensee shall dispose of trash only in the areas designated by Licensor and shall break down all boxes and bag all loose trash before disposal. Licensee shall provide a dumpster for Licensee's exclusive use and shall locate the dumpster in the area approved by Licensor. If a separate dumpster is not provided by Licensee, Licensee will reimburse Licensor for any additional charges incurred for trash disposal. Licensee shall not dump raw sewage or grease in storm drains. 6. Noise. Licensee shall comply at all times with applicable noise ordinances. 7. Utility. Licensee will provide electricity and phone service to the Space, as necessary, at its own expense. 8. Water. Water, if necessary and where available, shall be set up and metered at Licensee's expense. g. Portable Toilets ("Ponta-Lets"l. Licensee shall provide, at its expense, an adequate number of portable toilets for use by the public and place them in areas pre -approved by Licensor. Licensee shall keep the portable toilets clean and well stocked with toilet paper at all times. 10. VAhicles and Parking. Licensee shall not park any large trucks or other vehicles which exceed the size of an individual parking Space, including ride transportation vehicles, except in the designated area approved by Licensor for such vehicles. No campers, mobile homes or other vehicles used for lodging purposes will be permitted on the parking lot. Violations of this provision will be fined $500.00 per occurrence. 11. EmplWg Candy. Licensee agrees that all employees or agents of the Licensee working in the Space shall behave in an appropriate manner, treating customers in a courteous and hospitable manner at all times. Licensee and its employees shall wear suitable attire for conducting business. No bathing suits, tube tops or halter -tops are allowed. Shirts and shoes must be worn at all times. Employees are prohibited from using the Center bathrooms for bathing purposes. No alcoholic beverages are permitted anywhere on the Center property. No drugs or alcohol shall be consumed and no vulgar language used on the Center property. Licensor reserves the right to require the immediate removal of any individual that behaves in a manner contrary to these Rule and Guidelines, in the sole discretion of the Licensor 12. Unlawful Activities and Alcohol. No unlawful activities shall be permitted at the Space. The consumption, service or sale of alcoholic beverages on or from the Space is strictly prohibited. 13. Promo i n. The Licensee will contact the Center marketing director to coordinate advertising and any possible tie-ins with the Center. 14. Ad_vertising and Si na e. All advertising and signage must be approved in advance by Licensor, including, but not limited to, the format and content of any and all promotional, advertising and display materials, such approval not to be unreasonably withheld. There will be no third -party advertising or promotion whatsoever. Signage must be professionally produced and at no time will hand written signs be permitted. Licensee must immediately remove any signage when requested by the Licensor. The Licensee is responsible for any and all local advertising including, but not limited to, newspaper, radio, and television. 15. Misrepresentation. The Licensee and its employees shall represent their business, product and organization in an honest manner. Misleading customers, or not providing complete and correct information about a product, game or ride is prohibited. 16 Licen2oe2 Rigeht to Exclusion. Licensor reserves the right to require the Licensee to remove any component of the Event located in the Space for any reason, in the sole discretion of the Licensor. WAS H i N GTO N PRIME GROUP' MEDIA ADVERTISING AGREEMENT (For signage and digital media only) CLAY TERRACE 14390 CLAY TERRACE BLVD. CARMEL, INDIANA 46032 This Media Advertising Agreement (this "Agreement") made effective as of 5' between the parties identified in Section 1 as Licensor and Licensee, each of whit may collectively as the "Parties". herein as a "Party" and by and In consideration of the foregoing and the payment of charges and fees provided for herein, Licensor and Licensee hereby covenant and agree as follows: 1. PARTIES LICENSOR: CLAY TERRACE PARTNERS, LLC CLAY TERRACE ("Center") CLAY TERRACE 14390 CLAY TERRACE BLVD SUITE 165 CARMEL, INDIANA 46032 LICENSEE: KONA ICE OF INDY D.B.A. HICKEY'S SHAVED ICE, LLC 11581 LUDLOW DRIVE FISHERS, IN 46037 Attn: JACKIE SHOWALTER (317) 999-5919 2. TERM. Commencement Date: 04/16/2022 Expiration Date: 07/31/2022 The term of this Agreement (the "Term") shall begin on the Commencement Date and end on the Expiration Date. Notwithstanding the foregoing to the contrary, Licensor may terminate this Agreement upon thirty (30) days' notice to Licensee delivered to Licensee's address set out in Section 1. 3. ADVERTISING DISPLAY 3.1 Advertising Display. Licensor will display the Advertising Materials in the Display Location (s) during the period of time set out in the Advertising Summary (each a "Display Period"). Advertising Materials, Digital Content, Space Quantity and Size Display Location Display Period Category Description Start Date End Date Print Media Four (4) posters to promote food court activation Four (4), 22x28" posters Clay Terrace Food Court & around property 04/16/2022 07/31/2022 Website Tenant listed on website TBD TBD 04/16/2022 07/31/2022 3.2 Digital Sian Advertisements. Advertisements displayed on digital signs at the Center ("Digital Signs", each a "Digital Sign") are subject to those additional terms and conditions set forth in Exhibit "A" attached hereto and forming part of this Agreement. 3.3 Unmanned Display. Notwithstanding anything contained herein to the contrary, this Agreement is for an unmanned display or exhibit. Accordingly, there shall not be any Licensee employees, contractors or other Licensee staff at or in the Center in connection with this Agreement. 4. FEE AND PAYMENT 4.1 Fee and Payment. As consideration for the benefits granted in this Agreement, Licensee shall pay to Licensor without demand, set off or deduction, a fee ("Fee") in the amount indicated on the following schedule using the payment method requested by Owner from time to time and delivered to Licensor at the Licensor address in Section 1 above within thirty (30) days of the due date set out below. Due Date Fee Estimated Tax* Total Due 04/15/2022 $250.00 $0.00 $250.00 05/01/2022 $500.00 $0.00 $500.00 06/01/2022 $500.00 $0.00 $500.00 07/01/2022 $500.00 $0.00 $500.00 Overall Total: $1,750.00 *TAX RATES ARE SUBJECT TO CHANGE BY THE APPLICABLE TAXING AUTHORITY. 4.2 Late Payments and Returned Checks. A late fee of $50.00 will be enforced if payments are not paid according to the terms of this Agreement. Licensee shall pay a service charge of $30.00 on all returned checks. Deal ID: WPG-064941 4.3 Taxes. Licensee shall pay to Licensor any and all governmental or quasi -governmental taxes or charges (other than income tax), based in whole or in part, on the Fee to be paid under this License, as may be in effect during the Term at the then -current rate set by the applicable taxing authority. Licensee understands that tax rates are subject to change and the tax amount charged to Licensee by Licensor will be adjusted accordingly. 5. PRODUCTION AND DELIVERY OF ADVERTISING MATERIALS. Any artwork or advertising materials to be displayed in a Display Location (the "Advertising Materials") shall be produced by Licensee and delivered to the location at which they are to be displayed or such other location specified in advance by Licensor in accordance with the specifications set out in the Advertising Summary and no later than seven (7) days prior to the display date agreed upon by the Parties ("Display Date"), which agreement may be made by way of email. Licensee acknowledges sole responsibility for complete compliance with Display Location specifications and submission deadlines. Failure to deliver Advertising Materials seven (7) days prior to the Display Date may result in delay of installation and/or additional charges for expedited installation. In the event of any time delay and/or non-compliance, the Fee remains due and payable in full based upon the agreed upon Display Date. 6. INSTALLATION AND RELOCATION OF ADVERTISING MATERIALS. Licensor or its agent will install the Advertising Materials at the Display Location(s) on the corresponding Display Date, unless otherwise agreed upon by the Parties. Licensor reserves the right to relocate Advertising Materials in the Center, in its sole discretion, acting reasonably. 7. ADVERTISING MATERIALS STANDARDS. All signage and/or other Advertising Materials must be of professional quality and approved by Licensor prior to Posting Date. Such approval by Licensor shall not be deemed to be an assumption of liability in relation to such Advertising Material. Hand-written signage is not permitted. Licensor reserves the right to remove, alter or relocate the Advertising Materials at Licensor's sole discretion and without consequence from Licensee. In the event that Advertising Materials are refused or withdrawn as inappropriate, Licensor may terminate this Agreement immediately without further obligation and Licensee shall only be obligated to pay Licensor the Fee for the period prior to termination. 8. USE OF ADVERTISING MATERIALS. Licensee acknowledges that Licensor may use photographs or other reproductions of Licensee's copy to promote Licensor's services and releases Licensor from any claims regarding same. 9. PERMITS AND COMPLIANCE. Licensee shall obtain, prior to the Commencement Date, any licenses, authorizations, or permits required by any governmental agency, authority or third party for the display of the Advertising Materials pursuant to the terms of this Agreement. If Licensor is unable to display Advertising Materials as a result of a breach of this Section 9, Licensee shall not be entitled to a refund of any fees paid. Licensee shall, at its own expense, comply with all laws, orders, ordinances and with directions of public officers thereunder and any other direction of Licensor regarding the use of a Display Location. 10. LICENSEE REPRESENTATION. Licensee represents that it either owns the artwork and/or printed portion of the Advertising Materials used in connection with the Agreement, or has obtained the consent of all third parties necessary for its use, and such copy does not infringe upon the proprietary rights of any such third parties. 11. REMOVAL. Licensor or its agent, or at Licensor's option, Licensee or its agent, shall at the expiration or earlier termination of this Agreement remove the Advertising Materials and any other goods and effects from the Display Location. Advertising Materials removed by Licensor shall be disposed of at Licensor's discretion, without liability to Licensee; unless Licensee makes other arrangements for the Advertising Materials with the Licensor in advance of removal by Licensor. 12. LICENSEE INSURANCE 12.1 Coverage. Licensee shall carry Commercial General Liability insurance, including personal and advertising injury coverage, in an amount no less than $1,000,000 per occurrence, and upon Licensor's request therefor, shall provide evidence of such coverage naming Licensor as additional insured thereon. 12.2 Mutual Waiver of Subrogation. Licensor and Licensee each waive all claims against each other, and shall cause their insurers to waive all rights of subrogation against the other, its officers, directors, employees and agents, mortgagees and ground lessor(s), from any and all loss, damages or liability covered under any policy of insurance required to be maintained by this Agreement including deductibles or retentions, notwithstanding that such loss, damages or liability may have arisen from the negligence, tortious act or omission of the other party, or anyone for whom such party may be responsible. 13. INDEMNIFICATION. To the fullest extent permitted by law, Licensee shall defend, indemnify and hold harmless Licensor and Licensor's property manager, and their officers, directors, employees, and agents, and any mortgagee and master lessor of the Center, ("Licensor Parties") from and against all claims or liability (including but not limited to attorneys' fees) relating to or arising from or in connection with the display of the Advertising Materials or Digital Content, including, but not limited to, Licensee's breach of any representation, warranty, covenant or other obligation contained in this Agreement, and all claims or demands on account of any allegation that the use of any name, visual presentation of any kind, or other material in any graphic or production authorized for display by this Agreement, including, without limitation, the content of or representations made in any Digital Content, is illegal, unauthorized or damaging in any way to any person or entity, and other claims of any nature arising from or attributable to the display of Digital Content or Advertising Materials. The obligations set out in this Section 13 shall survive the expiration or earlier termination of this Agreement. 14. WAIVER OF LIABILITY. Licensor and the Licensor Parties shall not be liable to Licensee for, and Licensee waives all claims for loss or damage, including, but not limited to consequential damages, to person, property or otherwise, sustained by Licensee or any person claiming through Licensee resulting from any condition, accident or occurrence in or upon the Displace Space, or any other part Deal ID: WPG-064941 of the Center. There shall be absolutely no personal liability of Licensor with respect to this Agreement. If a breach by Licensor occurs, Licensee shall look solely to the value of the consideration paid by Licensee to Licensor for the satisfaction of Licensee's remedies. 15. DAMAGES AND FORCE MAJEURE. Licensor shall have the option to cancel this Agreement at any time upon the loss of any Display Location resulting from any act or cause beyond Licensors control, including any termination of a location lease, change in law, ordinance, rule or regulation; in such event, Licensee shall receive, at Licensor's option_ (i) an equivalent amount of advertising space at another location, or (ii) a refund of amounts actually paid to Licensor for the unexpired term. 16. DEFAULT. Notwithstanding any other provisions of this Agreement, Licensor may terminate this Agreement immediately upon any default of this Agreement by Licensee and shall have the right to pursue all other remedies or damages available to it at law or in equity. Licensor shall not, under any circumstances, be obligated to accept any payments and/or to allow Licensee to cure any default hereunder. 17. MARKS AND NAMES. Licensor and Licensee hereby acknowledge that the name of the Center (the "Name") is a name and mark which may have been (a) registered with both the State where the Center is located and the U.S. Patent and Trademark Office and (b) licensed to Licensor for its limited use generally in connection with the operation of the Center. Accordingly, Licensee shall use no symbol, design, name, mark or insignia adopted by or identifying Licensor (or any of its affiliates) or the Center, including without limitation the Name, without the prior written approval of Licensor. Should Licensor grant such consent, Licensee shall not assign or transfer in any way such rights to any third party without the written consent of Licensor. 18. GENERAL 19.1 Relationship of Parties The relationship of the Parties created by this Agreement shall be that of independent contractors. Neither Party shall have the power to obligate or bind the other in any manner. Licensee is expressly not authorized to represent in any manner or context that Licensor is a guarantor of any product or service of Licensee. 19.2 Assignment and Subletting. Licensee shall not sell, assign, mortgage, pledge or transfer this Agreement or any interest therein, nor license concessions or departments therein, without Licensor's prior written approval, which may be withheld at Licensor's sole and absolute discretion. 19.3 Notice. Unless otherwise stated herein, notice to Licensee or Licensor ("Notice") shall be effective only if Notice is in writing and is (i) delivered in person, (ii) delivered by U.S. mail, or (iii) delivered by a reputable overnight courier. Any such Notice shall be delivered (1) to Licensor at the address set forth in Section 1, or to such other address as Licensor shall designate by giving written Notice thereof to Licensee; or, (2) if to Licensee, at the address set forth in Section 1 or such other address as Licensee shall designate by giving written Notice thereof to Licensor. Any such Notice shall be deemed to have been given upon receipt or refusal of receipt. 19.4 Entire Agreement. This Agreement and any and all attachments and exhibits thereto, constitute the entire and complete agreement between the Parties and supersedes any prior oral or written representations, promises or agreements between the Parties with respect to the subject matter hereof. 19.5 Amendment. This Agreement may not be amended or modified, and no waiver of any term or condition shall be effective, unless made in writing and signed by the Parties hereto. 19.6 Failure to Enforce. The failure of either Party to this Agreement to object to or take affirmative action with respect to any conduct of the other which is in violation of the terms of this Agreement shall not be construed as a waiver thereof, or of any future breach or subsequent wrongful conduct. 19.7 Severabilitv. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 19.8 Survival. The obligations of Licensee (i) for payment of the Fee and any other charges under this Agreement, (ii) for performance of obligations which by their nature must be performed after the expiration or earlier termination of this Agreement, and (iii) under Section 13 (Indemnification) of this Agreement, shall survive the expiration or earlier termination of this Agreement. 19.9 Governing Law. This Agreement shall be governed by and shall be construed in accordance with the laws of the State where the Center is located, excluding any conflict of laws rule or principle that might refer the governance or the construction of this Agreement to the law of another jurisdiction. The Parties expressly waive all right to trial by jury in any action, proceeding or counterclaim arising out of this Agreement. 19.10 Counterparts and Electronic Conies This Agreement may be executed in any number of counterparts with the same effect as if all signing parties had signed the same document. All counterparts shall be construed together and constitute the same instrument. A signature to this Agreement executed and/or transmitted electronically shall have the same authority, effect, and enforceability as an original signature. Deal ID: WPG-064941 IN WITNESS WHEREOF, the undersigned parties hereto have caused this Agreement to be duly executed by their authorized representatives. LICENSOR: LICENSEE: CLAY TERRACE PARTNERS, LLC, a Delaware limited liability KONA ICE OF INDY company Indiana Limited Liability Company D.B.A. Hickey's Shaved Ice, LLC By: By: Name: Name: a v' �p Title: Title: � Date: Date: Deal ID; WPG-064941 4 EXHIBIT "A" TO MEDIA ADVERTISING AGREEMENT (the "Agreement") DIGITAL SIGN ADVERTISING TERMS AND CONDITIONS These Digital Sign Advertising Terms and Conditions are attached to and form part of the Agreement between Licensor and Licensee, in the event of a conflict between the provisions of these Digital Sign Terms and Conditions and the Agreement and/or another exhibit, these Digital Sign Advertising Terms and Conditions shall prevail and supersede any conflicting provisions of the Agreement and/or an exhibit, unless otherwise expressly agreed to in writing by the Parties that specific terms of the Agreement or a specific exhibit shall control. 1. Defined Terms. Capitalized words not defined in these Digital Sign Advertising Terms and Conditions shall have the meaning assigned to them in the Agreement. 2. Digital Sign Advertising Standards and Specifications. 2.1. All Advertising Materials to be displayed ("Digital Content') on the Digital Signs, as defined in the Agreement and described in the advertising summary included in Section 3.1 of the Agreement (the "Advertising Summary") shall at all times be subject to the terms of the Agreement. The Digital Content shall meet the specification guidelines provided by Licensor from time to time ("Specifications'); conform to the Licensor's existing programming and operating policies and standards; and not be contrary to public interest. 2.2. Licensee acknowledges and agrees that Licensor has no right to control the materials, form or content of other displays or advertising in the vicinity of the Digital Sign(s) and that Licensor shall, in its absolute discretion control the materials, form and content of all other advertising materials and content displayed on the Digital Sign(s) without Licensee having any right to consent or approve with respect thereto. The Digital Sign(s) shall at all times remain the property of Licensor. 3. Delivery of Digital Content 3.1. Licensee shall, in accordance with the Specifications and at its sole cost and expense, produce and deliver the Digital Content to Licensor no later than seven (7) days prior to the start of the Display Period set forth in the Advertising Summary, or such other display date agreed upon by the Parties, which agreement may be made by way of email. 3.2. All Digital Content provided by Licensee to Licensor must be ready for display and in the form required by Licensor to fulfill Licensor's obligations under the Agreement. Licensee is liable for all costs and expenses incurred by Licensor as a result of Licensee's failure to deliver Digital Content as instructed by Licensor. 3.3. If Digital Content is not delivered in a timely manner or if it does not conform to the Specifications, Licensor may, in its sole discretion, (i) install the content, (ii) display substitute content of any type and install the Licensee's Digital Content on the Digital Sign(s) at a later date if and when delivered by Licensee to Licensor in conformity with the Specifications or (iii) terminate the Agreement as it pertains to Digital Sign(s) advertising. Notwithstanding any failure on the part of Licensee to comply with the requirements set forth in this Section 3, the Fee remains due and payable in full based upon the agreed upon Display Period. 3.4. If, at Licensor's discretion, any Digital Content resembles news matter, Licensee shall, prior to delivery to Licensor, plainly designate such Digital Content as advertising with the word "Advertisement" or such other designation deemed appropriate by Licensor. 4. Acceptance, Errors and Modifications of Digital Content 4.1. Licensor prohibits, and may postpone, cancel or otherwise return, any Digital Content that violates its advertising standards. 4.2. It is Licensee's responsibility to check for errors in its Digital Content before and after display. Licensor is not responsible for errors, including typographical errors, on copy or artwork. Licensor's liability for an error shall not exceed the cost of the digital time occupied by the error. 4.3. All Digital Content is subject to Licenser's prior approval and continuing right to reject and/or cause Licensee to edit the Digital Content. Licensor may reject or remove after display any Digital Content for any reason, in its sole discretion. 4.4. If Digital Content is rejected, Licensee may submit suitable substitute Digital Content subject to the terms and conditions of this Agreement. Licensor shall not be responsible in any way, and Licensee will not be entitled to a refund, if Licensee does not provide suitable substitute Digital Content or if there is no time to obtain a suitable substitute Digital Content from Licensee. 4.5. If Licensor is unable to display any Digital Content for any reason, same is not to be considered a breach of this Agreement. The Licensee's exclusive remedy is for Licensor to provide a suitable "make good" or pro-rata credit for lost time or space. If Licensor cannot provide "make good" time for the Digital Content, then that portion of the Fee charged for such Digital Content display will be reduced proportionately, except in the event of Force Majeure, as defined herein. Deal ID: WPG-064941 4.6. Subject to the terms and conditions of this Agreement and at the Licensee's sole cost and expense, Licensee may change the Digital Content in accordance with Licensor's policy for changes in effect from time to time. 5. Obligations of Licensor. 5.1. Licensor, or its agent, shall, at Licensor's expense, program and install the Digital Content on the Digital Sign(s) on the Display Period Start Date. Licensor will maintain all approved Digital Content, which will be displayed during Center Hours of Operation an average of ninety-two and one-half percent (92.5%) of the time during the Term. 5.2. After the Display Period, if Licensee requests it, Licensor will provide to Licensee a proof of performance report within ten (10) business days of receipt of a request from Licensee. 6. License to Advertising Materials 6.1. Licensee grants Licensor a non-exclusive, perpetual, irrevocable and worldwide license to copy, store, display, print and distribute any and all Advertising Materials and/or Digital Content provided by Licensee or its agents, including but not limited to photographs, artwork, text and graphics, in any media, presently known or unknown, including but not limited to Licensor's electronic publications on the Internet and in any archival retrieval system whether that information is digitally stored or stored on any other media. 6.2. Licensor has no obligation to return any material (including Advertising Material) submitted to Licensor by or on behalf of Licensee, and Licensor shall have no liability for its loss or destruction. Licensor and its service providers shall have the right to use any Digital Content displayed by Licensor for the purpose of promoting the Center or any of the products and services of Licensor or applicable service provider. 7. Limitation of Liability. Except with respect to Licensee's indemnification obligations, in no event will either Party be liable to the other for any consequential, incidental, indirect, exemplary, special or punitive damages whatsoever (including damages for loss of use, revenue or profit, business interruption and loss of information), whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damage was foreseeable and whether or not such party has been advised of the possibility of such damages. In no event shall Licensor be liable to Licensee for any amount greater than the amount paid by Licensee to Licensor under this Agreement. LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING ITS SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, AND ANY WARRANTY REGARDING ANY BENEFIT LICENSEE MIGHT OBTAIN FROM ANY ADVERTISING AND THE SPEED, ACCESSIBILITY, OPERATION OR FUNCTIONALITY OF ANY DIGITAL SIGN(S) ADVERTISING. 8. Force Majeure. Except for payment obligations, neither Party will be liable for delay or failure to perform any obligations required under the Agreement if such delay or failure is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, earthquake, labor disputes or strikes, unavoidable accident, government action, legal restrictions, electronic or electrical interference, telecommunications difficulties, system failure, technical failure, equipment breakdown, electrical outages, network failures, failure of any third -party system or product, act of God, or any other cause beyond the control of that Party. If Licensor suffers such a delay or default, Licensor will make reasonable efforts within five (5) business days to recommend a substitute display or time period for the Digital Content. Deal ID: WPG-064941 Receipt#:7399 Carmel City Hall:317-571-2400 Date:6/28/2022 One Civic Square www.carmel.in.gov Payment Receipt Paid ByShawn Hickey Invoice #Case Type Case Number Sub Type -SIGN S-2022-00206 COM Tender Type/Description Amount CREDIT-Credit Card 462.00 - - Sub Total:462.00 Fees: Fees Code /Description Amount SIGNINIMP-Sign Installation Improvement 350.00 SIGNPERMIT-Sign Permit 112.00 - - - - - - Sub Total:462.00 Total Amount Due:462.00 Total Payment:462.00 Received By:ashalit Code:DEFAULT_Recpt7399_28_6_2022_ashalit Page:1 of 1