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HomeMy WebLinkAboutPSD-088-07 RI!(Joy-b Jif Cl~n REPORT PLANNING SERVICES Meeting: COUNCIL Date: Monday, June 25, 2007 ~\Jicn' ~-?Jo3-0'7 Report #: PSD-088-07 File #: SPA 2007-0013 By-law #: Subject: AMENDMENTS TO PRINCIPLES OF UNDERSTANDING BETWEEN THE MUNICIPALITY, PLAYERS BUSINESS PARK LTD., WEST DIAMOND PROPERTIES INC. AND 1613881 ONTARIO INC., AND CERTAIN OTHER AGREEMENTS TO PERMIT SERVICING OF PLA YERSIWEST DIAMOND'S COMMERCIAL LAND RECOMMENDATIONS: It is respectfully recommended to Council the following: 1. THAT Report PSD-088-07 be received; 2. THAT Council approve the draft Servicing Agreement between the Municipality, Players Business Park Ltd., West Diamond Properties Inc. and Royal Bank of Canada and pass a By- law (Attachment 8) to authorize the Mayor and Municipal Clerk on behalf of the Municipality of Clarington to execute a Servicing Agreement with such parties substantially in the form of the draft Agreement contained in Attachment 3; 3. THAT Council approve the draft First Principles of Understanding Amendment Agreement between the Municipality, Players Business Park Ltd., West Diamond Properties Inc., 1613881 Ontario Inc., Royal Bank of Canada and 672003 Ontario Limited and pass a By-law (Attachment 9) to authorize the Mayor and Municipal Clerk on behalf of the Municipality of Clarington to execute an Agreement with such parties substantially in the form of the draft Agreement contained in Attachment 4; 4. THAT Council approve the draft Assumption Agreement with Royal Bank of Canada and others and pass a By-law (Attachment 10) to authorize the Mayor and Municipal Clerk on behalf of the Municipality of Clarington to execute an Assumption Agreement with such parties substantially in the form of the draft Agreement contained in Attachment 5; 5. THAT Council approve the draft Assumption Agreement with 672003 Ontario Limited and others and pass a By-law (Attachment 11) to authorize the Mayor and Municipal Clerk on behalf of CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623-3379 F (905)623-0830 . REPORT NO.: PSD-088-07 PAGE 2 the Municipality of Clarington to execute an Assumption Agreement with such parties substantially in the form of the draft Agreement contained in Attachment 6; 6. THAT Council approve the draft Subdivision/Consent Agreement between the Municipality, Players Business Park Ltd., West Diamond Properties Inc. and Royal Bank of Canada and pass a by-law (Attachment 12) to authorize the Mayor and Municipal Clerk on behalf of the Municipality of Clarington to execute a Subdivision/Consent Agreement substantially in the form of the draft Agreement contained in Attachment 7; and 7. THAT all interested parties listed in this report and any delegations be advised of Council's decision. Submitted by: Submitted by: avi J. Crome, MCIP, R.P.P. Director of Planning Services Reviewed bY:()~~ ~ Franklin Wu, Chief Administrative Officer AS. Cannella, C.E.T., Director of Engineering Services DH/COS/RH/DJC/df 19 June 2007 REPORT NO.: PSD-088-07 PAGE 3 1.0 BACKGROUND 1.1 At its Special Meeting on March 1, 2006, Council approved the recommendations contained in Report #PSD-027-06. The recommendations included the approval of Commercial Policy Review and the Bowmanville Main Central Area Secondary Plan Review Report. Council adopted Official Plan Amendments 43 and 44 and related Zoning By-law Amendments 2006-046 and 2006-047 to implement the recommendations contained in these two Reports and Report #PSD-027-06. Council also approved certain agreements between the Municipality and two groups of proponents: (1) Halloway Holdings Limited (“Halloway”) and (2) Players Business Park Ltd. (“Players”), West Diamond Properties Inc. (“West Diamond”), and 1613881 Ontario Inc. (“1613881”). Players, West Diamond and 1613881 are collectively referred to in this Report as “Players/West Diamond”. The agreements included the Players/West Diamond Principles of Understanding, and the Stevens Road Extension Agreement between the Municipality, Players/West Diamond and Halloway. 1.2 The map contained in Attachment 1 shows the commercial lands owned by Players and West Diamond located generally between Durham Highway 2, Green Road and the planned northerly extension of Boswell Drive (“Players/West Diamond commercial lands”). The map also shows residential lands owned by Players and West Diamond located generally between the north limit of their commercial lands, Green Road, the planned extension of Boswell Drive and the planned westerly extension of Longworth Avenue. Additionally, the plan shows residential lands owned by 1613881 located generally between the southerly limit of planned Brookhill Boulevard, Green Road, the planned northerly extension of Boswell Drive and northerly limit of commercial development on the subject lands. 1.3 Appeals from the adoption of Official Plan Amendment 44 and Zoning By-law Amendment 2006-047, both of which applied to the Players/West Diamond commercial lands, have been dismissed by the Ontario Municipal Board. No appeal was filed in respect of Zoning By-law Amendment 2006-046. Official Plan Amendment 44 and Zoning By-law Amendments 2006-046 and 2006-047 are in full force and effect. 2.0 PLAYERS/WEST DIAMOND PRINCIPLES OF UNDERSTANDING 2.1 The Players/West Diamond Principles of Understanding dated March 1, 2006 were based on the assumption that the development of the Players/West Diamond commercial lands will be phased with development occurring as market opportunities become available. 2.2 It is expected that the first phase of development of the Players/West Diamond commercial lands will include the proposed Wal-Mart store. An application for site plan approval under section 41 of the Planning Act has been submitted but it is incomplete at this stage. REPORT NO.: PSD-088-07 PAGE 4 2.3 The purpose of the Players/West Diamond Principles of Understanding is to provide a means for the Municipality to be satisfied that its key infrastructure, landscaping, streetscaping, urban design, building massing location of parking, the provision of Private Roads A, B1 and B2 will be provided in accordance with the Bowmanville West Town Centre Secondary Plan, Zoning By-law 2006-047 and the approved Concept Plan for Development no matter what the sequence of development of individual buildings might prove to be. 2.4 The Concept Plan for Development (Attachment 2) is central to the Principles of Understanding. It shows the conceptual development of buildings on the entire Players/West Diamond commercial lands including, Private Roads A, B1 and B2, driveways, parking and landscaping areas. All development is required to be consistent with the Concept Plan for Development. It therefore establishes the context for the consideration of applications for site plan approval under section 41 of the Planning Act. 2.5 Integral to the achievement of the purpose of the Players/West Diamond Principles of Understanding are arrangements for Players/West Diamond’s contribution to part of the cost of the Stevens Road Extension, the granting to the Municipality of an option to purchase Private Roads A, B1 and B2 which is to be exercisable by the Municipality when overall development of the Players/West Diamond commercial lands reaches a stipulated intensity, and Players/West Diamond’s contribution to the cost of urbanization of Durham Highway 2 between Green Road and Boswell Drive including landscaping and streetscaping works. 2.6 The Players/West Diamond Principles of Understanding contain cross-section drawings for the continuation of Private Roads A, B1 and B2, and streetscaping and landscaping of them. 2.7 The Principles of Understanding are registered on the title to Players’ and West Diamond’s commercial lands, and their residential lands. They are also registered on the title to 1613881’s residential lands. 2.8 When the Principles of Understanding were registered on title a plan of survey showing the boundaries of each of Private Roads A, B1 and B2 had not been deposited on title. On June 15, 2007, Plan 40R-24933 showing these boundaries was deposited on title. In order that the option granted to the Municipality to purchase Private Roads A, B1 and B2 is enforceable against successors in title of Players and West Diamond, it is recommended below that the Players/West Diamond Principles of Understanding be amended to add descriptions of Private Road A, B1 and B2 by reference to Plan 40R-24933. 2.9 The Principles of Understanding require that a Subdivision/Consent Agreement be made with the Municipality under the Planning Act before application is made for a building permit and before the division of the Players/West Diamond commercial lands REPORT NO.: PSD-088-07 PAGE 5 into parcels for transfer to others is permitted by the consent to divide becoming final on satisfaction of the conditions to the provisional consent. 2.10 PlayersNVest Diamond has applied for a provisional consent to divide their commercial lands into a number of parcels. It is anticipated that the Region of Durham Land Division Committee will grant its provisional consent to these divisions in July 2007 and that it will be subject to conditions including that a Subdivision/Consent Agreement be made with the Municipality and that an agreement be made with the Region of Durham respecting, among other things, the reconstruction of Durham Highway 2 between Boswell Drive and Green Road. 2.11 A draft Subdivision/Consent Agreement with the Municipality has been prepared in anticipation of the Provisional Consent being granted. It is recommended for approval below in this Report. 2.12 In addition to requiring the owners to construct Private Roads A, B1 and B2, the PlayersNVest Diamond Principles of Understanding also required the owners to construct Boswell Drive northerly from Durham Highway 2 to the north limit of the PlayersNVest Diamond commercial lands. 2.13 The PlayersNVest Diamond Principles of Understanding also require that proposed purchasers, mortgagees or long-term lessees enter into Assumption Agreements with the Municipality. The mortgagees of portions of the lands to which the Principles of Understanding apply, Royal Bank of Canada and 672003 Ontario Limited have executed Assumption Agreements which are discussed below. Also, PlayersNVest Diamond and 1613881 have executed Acknowledgements and Directions for the registration of restrictions against the title to their respective lands under section 118 of the Land Titles Act as required by the Principles of Understanding. 3.0 SERVICING AGREEMENT 3.1 Related to the Principles of Understanding between the Municipality and PlayersNVest Diamond and Halloway, respectively, is the Stevens Road Extension Agreement dated March 1, 2006. It provides for the design and construction of the Stevens Road Extension from Regional Road 57 to Green Road. The construction is to be undertaken by Municipality. PlayersNVest Diamond agreed to pay the cost of construction to an "Urban Profile" of the section of Stevens Road from Clarington Boulevard. Each of them has deposited securities with the Municipality for their respective financial contribution in the total amount of Five Hundred and Ninety-Six ($596,000.00) Thousand Dollars. 3.2 Tenders have been called for the construction of the section of Stevens Road from Clarington Boulevard to Green Road. It is anticipated that Council will award the construction contract for this section and the reconstruction of Green Road from Stevens Road to Durham Highway 2 at its meeting on June 25, 2007. 3.3 Sanitary and storm sewers as well as a water main to service the PlayersNVest Diamond commercial lands will be located in the Green Road and Stevens Road REPORT NO.: PSD-088-07 PAGE 6 rights-of-way. Players/West Diamond have requested that these services be constructed by the Municipality in these rights-of-way at their cost in conjunction with the construction of the Green Road reconstruction works and the Stevens Road construction works. These services will connect with services internal to the Players/West Diamond commercial lands. 3.4 It is in the Municipality’s interest to grant Players/West Diamond’s request as this will avoid the inconvenience and disturbance of service installation after the reconstruction of Green Road and the construction of Stevens Road from Green Road to Clarington Boulevard have been completed. 3.5 The recommended Servicing Agreement is contained in Attachment 3. It provides for the Municipality to construct the requested services conditional on Players/West Diamond depositing security with the Municipality on or before June 25 in the amount of the estimated costs $657,284.33. The Municipality will draw on the security as work progresses. Provisions are made in the Servicing Agreement for revisions to the works cost estimates and the ultimate payment to the Municipality of the as-constructed costs of the services in question. 4.0 PRINCIPLES OF UNDERSTANDING AMENDMENT AGREEMENT 4.1 As is noted above in section 2 of this Report, amendments are required to be made to the Players/West Diamond Principles of Understanding in order to add legal descriptions of Private Roads A, B1 and B2. On registration of these amendments on title, the options to purchase the Private Roads granted to the Municipality will be enforceable against successors in title of Players/West Diamond. 4.2 Attachment 4 contains the draft First Principles of Understanding Amendment Agreement. It provides for the necessary amendments and is recommended for Council’s approval. 5.0 ASSUMPTION AGREEMENTS 5.1 As is noted above in section 2 of this Report, mortgagees of any portion of the lands to which the Players/West Diamond Principles of Understanding apply are required to enter into Assumption Agreements with the Municipality. Under these Agreements, mortgagees assume the obligations of the original parties to the Principles of Understanding if they were to take possession or control of the Players/West Diamond commercial lands. 5.2 Attachment 5 contains the draft Assumption Agreement between the Municipality and Royal Bank of Canada. Attachment 6 contains the Assumption Agreement between the Municipality and 672003 Ontario Limited. Each of these Agreements implements the requirements of the Principles of Understanding in this regard and are recommended for Council’s approval. REPORT NO.: PSD-088-07 PAGE 7 6.0 SUBDIVISION/CONSENT AGREEMENT 6.1 Attachment 7 contains recommended draft Subdivision/Consent Agreement necessary to implement the requirements of the Players/West Diamond Principles of Understanding and the applicable condition of the Provisional Consent anticipated to be granted by the Region of Durham Land Division Committee. 6.2 The Subdivision/Consent Agreement between the Municipality and Players/West Diamond provides for: ? The transfer of land required for the Durham Highway 2/Boswell Drive intersection improvements, Boswell Drive between the northerly limit of Durham Highway 2 and the northerly limit of the Players/West Diamond commercial lands, a 0.3 metre reserve on the west side of Boswell Drive and the widening of Green Road. ? The construction of the Boswell Drive Works including the intersection improvements. ? Players/West Diamond to provide drainage, erosion control, grading, landscaping and servicing of their commercial lands in accordance with specified drawings. ? The payment of $305,000.00 to the Municipality for the Durham Highway 2 landscaping and streetscaping works. ? The construction including the phasing of construction of specified elements and the maintenance of Private Roads A, B1 and B2 Improvements in accordance with specified construction and completion schedules. ? The incorporation of the Players/West Diamond Principles and the Stevens Road Extension Agreement into the Subdivision/Consent Agreement. ? The postponement of the mortgage to Royal Bank of Canada to the right of the Municipality under the Principles of Understanding and the Stevens Road Extension Agreement and the Subdivision/Consent Agreement. 6.3 The Subdivision/Consent Agreement will be registered on title to the Players/West Diamond Principles. It will be enforceable against successors in title to Players/West Diamond. 7.0 DURHAM HIGHWAY 2 LANDSCAPING AND STREETSCAPING 7.1 Council policy has established the Bowmanville West Town Centre area as one the two main commercial areas of Clarington with high standards for building and streetscape design. Through the Bowmanville West Town Centre Secondary Plan, one of the goals adopted by Council was “to ensure high quality of architecture and urban design in all phases of development in order to create a unique sense of place and foster social interaction in the West Town Centre”. REPORT NO.: PSD-088-07 PAGE 8 7.2 To implement Council’s policy, the Municipality developed urban design principles and guidelines that have been implemented through the Official Plan policies and zoning by-law for the area. To ensure Council’s direction of creating “a unique sense of place” and to complement the high standards in building design agreed upon with Home Depot and Wal-Mart, the Municipality initiated the Bowmanville West Town Centre Streetscape Implementation Plan (Streetscape Plan) a forwarded through Report #PSD-045-07. 7.3 The nature and size of the proposed developments requires the reconstruction and urbanization of Highway 2 and as such requires special consideration in terms of design and pedestrian orientation. The Streetscape Plan recognizes the importance of Highway 2 as the main regional corridor in the community. The importance of Highway 2 is also recognized in the Regional Corridor Guidelines and the Regional Official Plan. 7.4 The Streetscape Plan concept for Durham Highway 2 will be implemented in phases. The first phase requires that the structural elements like raised planters in the median and boulevard be undertaken at the same time as the reconstruction of Durham Highway 2. 7.5 To this end, staff have developed a cost sharing structure that requires a contribution from Players/West Diamond for streetscaping and landscape improvements of $305,000.00 exclusive of design costs, a contingency allowance and GST. The payment of this amount as provided for in the Subdivision/Consent Agreement is to be made on or prior to the execution of this Agreement by the Municipality. Players/West Diamond’s responsibility includes works in and north of the median between Green Road and Boswell Drive. The Municipality will be responsible for landscaping and Streetscaping costs south of the median. 8.0 CONCLUSIONS AND RECOMMENDATIONS 8.1 The making of the Agreements referred to in this Report will allow the servicing of the Players/West Diamond commercial lands to take place in an expeditious manner. When application is made for site plan approval of the proposed Wal-Mart store and associated facilities a further report will be submitted on the site and the removal of the Holding Symbol from the zoning of the portion of the lands on which the store and supporting facilities will be located. 8.2 It is recommended that Council approve the draft Agreements contained in Attachments 3 to 7 and authorize the Mayor and Municipal Clerk to execute them on behalf of the Municipality. REPORT NO.: PSD-088-07 PAGE 9 Attachments: Attachment 1 - Property Location Map Attachment 2 - Concept Plan for Development Attachment 3 - Draft Servicing Agreement Attachment 4 - Draft First Principles of Understanding Amendment Agreement Attachment 5 - Draft Assumption Agreement between the Municipality, Royal Bank of Canada and others Attachment 6 - Draft Assumption Agreement between the Municipality, 672003 Ontario Limited and others Attachment 7 - Draft Subdivision/Consent Agreement Attachment 8 - Draft By-law to authorize execution of Servicing Agreement Attachment 9 - Draft By-law to authorize execution of the First Principles of Understanding Amendment Agreement Attachment 10 - Draft By-law to authorize execution of Assumption Agreement with Royal Bank of Canada and Others Attachment 11 - Draft By-law to authorize execution of Assumption Agreement with 672003 Ontario Limited and Others Attachment 12 - Draft By-law to authorize execution of Subdivision/Consent Agreement List of interested parties to be advised of Council's decision: Peter Murphy, Metrus Properties Peter Smith, Bousfields Inc. Rosly Houser, Goodmans LLP Attachment 1 rt PSD-088-07 To Repo Co CIl :::E c o ~ u o .J ~ II) Co e D.. - c M CI) or- E Q " Q c I CI) ..... E Q <c Q c N CIS <( - C. 0.. CI) tIJ :!:: en ~ -au - c .J- ~ en ~ CI) CIS .- 0..; en c. en 0 CI) ~ co.. 'en " ::s c alo en E ~ CIS CI) .- ~c CIS_ - en 0.. CI) i.:3: !" ~ c o CIS Attachment 2 To Report PSD-088-07 CONCEPT PLAN FOR DEVELOPMENT - ~ ~ ~, II ,'I J' ~ ~ j l! f'! lj~. JI a e; ~ . II -' lillII' ! j i~~ ji~M L; I", I: II! elJiiii ---- _/ ---/--\.....--: .------ /o"'~. ~.--~ - .... .. .. ~ Ii ~ Attachment 3 To Report PSD-088-07 SERVICING AGREEMENT THIS SERVICING AGREEMENT made as of the 25th day of June, 2007. BET WEE N: PLAYERS BUSINESS PARK LTD. ("Players") and WEST DIAMOND PROPERTIES INC. ("West Diamond") (hereinafter collectively called the "Owners") OF THE FIRST PART - and - THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE SECOND PART - and - ROYAL BANK OF CANADA (hereinafter called "Royal Bank") OF THE THIRD PART WHEREAS: A. Principles of Understanding dated March I, 2006 ("Principles") were made by the Owners, the Municipality and 1613881 Ontario Inc. ("1613881"). They were registered in the Land Registry Office for the Land Titles Division of Durham (No. 40) as Instrument No. DR495847 on the title to the lands identified by the following Property Identification Numbers ("PIN'"). PIN# 26612-0113 26612-0114 26612-0024 26613-0102 Owner Players West Diamond Players 1613881 Ontario Inc. B. The Principles were amended by the First Principles of Understanding Amendment Agreement ("First Amendment Agreement") dated June 25, 2007 made between the Owners, the Municipality, 1613881, Royal Bank of Canada and 672003 Ontario Inc. The First Amendment 2 Agreement was registered on title to the land referred to in Recital A as Instrument No. . The Principles as amended by the First Amendment Agreement are hereinafter referred to hereinafter as the "Principles As Amended". C. A Charge in favour of Royal Bank dated April 6, 2004 was registered in the Land Registry Office on the title to the lands identified by the following PINs as Instrument No. DR265437. PIN# 26612-0113 26612-0114 26612-0024 Owner Players West Diamond Players D. Royal Bank has agreed with the Municipality to postpone its rights under the Charge referred to in Recital C to the rights of the Municipality under the Principles As Amended and under the Stevens Road Extension Agreement dated March I, 2006 between Players, West Diamond, Halloway Holdings Limited and the Municipality. A copy of the Stevens Road Extension Agreement is contained in Schedule "H" to the Principles. E. The Municipality intends to call for tenders and award a construction contract(s) for the following works: 1. The "Green Road Reconstruction Works" between the Stevens Road Extension and the Region of Durham ("Region") Highway No.2. The Green Road Reconstruction Works are described in Schedule "A" hereto. 2. The Stevens Road Construction Works between Clarington Boulevard and Green Road. The Stevens Road Construction Works are described in Schedule "B" hereto. F. In order to facilitate the development of the "Owners' Commercial Lands" (as defined in the Principles As Amended) and in order and to satisfy requirements of the Region respecting the construction and installation of a sanitary sewer main and water main and the requirement of the Municipality respecting the construction and installation of a stom1 sewer main at the Owners' request, the Owners and the Municipality have agreed that these Works may be constructed and installed in sections of the road allowances of Green Road and Stevens Road at the cost of the Owners. The sanitary sewer, storm sewer and water main works are described in Schedule "c" hereto. These works referred to hereinafter as the "Sanitary, Storm and Water Works". G. The execution of this Servicing Agreement by the Mayor and the Municipal Clerk on behalf of the Municipality of Clarington is authorized by By-law No. 2007-142 passed by the Municipality's Council at its meeting on June 25th 2007. 3 NOW THEREFORE in consideration of the premises herein contained and the sum of TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt whereof by each of the Parties is hereby acknowledged) each of the Parties covenants and agrees with the other Parties as follows: Recitals and Schedules 1. Each of Recitals D to F, inclusive, and the Schedules hereto are hereby incorporated into the operative part of this Servicing Agreement and shall be construed and given the effect of covenants contained in it. If there is an inconsistency between any of the Recitals and of the following paragraphs, the text of the paragraph shall prevail to resolve the inconsistency. Financin!!: and Construction of Sanitary. Storm and Water Works 2. (a) The Owners shall pay to the Municipality the cost of construction and installation of the Sanitary, Storm and Water Works as provided in this Servicing Agreement. Conditional on the Performance Guarantee required by paragraph 3 as security for the Owners' obligations to make the aforesaid payment being deposited with the Municipality on or prior to June 25, 2007, the Municipality shall include the construction and installation of the Sanitary, Storm and Water Works as components of the Green Road Reconstruction Works and the Stevens Road Construction Works tender package. Subject to the provisions of this Servicing Agreement, the Sanitary, Stonn and Water Works are intended to be included as works to be constructed in a contract(s) with the successful bidder(s) in response to the aforesaid tender call made by the Municipality. (b) The Parties acknowledge that the Municipality' present intention is to call for tenders for the Green Road Reconstruction Works and the Stevens Road Construction Works on or prior to June 25, 2007 and to enter into a construction contract or contracts with the contractor(s) to which the construction contract(s) is (are) awarded on or before July 31, 2007. (c) If the Owners do not make the payment referred to in paragraph 2(a) to the Municipality on or before June 25, 2007, this Servicing Agreement shall terminate. For clarity, on termination of this Servicing Agreement the Municipality shall have the unfettered right to delete from the tender package and/or the construction contract(s) referred to in paragraph 2(a) all reference to the construction and installation of the Sanitary, Storm and Water Works. The Owners shall indemnify the Municipality against all costs, losses and damages including without limitation its reasonable legal fees and disbursements that may be incurred by the Municipality resulting from the aforesaid deletion. 4 Owners' Payment to be Secured bv Performance Guarantee 3. The performance guarantee ("Performance Guarantee") referred to in the Servicing Agreement to be provided by the Owners to the Municipality to secure their obligations to the Municipality hereunder shall either be cash (which shall be deposited in a segregated reserve account by the Municipality) or an irrevocable and unconditional letter of credit issued by a bank listed in Schedule I or II of the Bunk Act in a form and containing terms and conditions that are acceptable to the Municipality's Director of Finance. The amount of the Performance Guarantee shall be as provided for in the "Sanitary, Storm and Water Works Cost Estimate" contained in Schedule "D" hereto and shall be adjusted from time to time as provided in this Servicing Agreement. Revised Sanitary. Storm and Water Works Cost Estimates and Additional Pavments 4. (a) Prior to the Owners payment to the Municipality of the as-constructed costs of the Sanitary, Storm and Water Works, the Municipality's Director of Engineering Services ("Director") may from time to time give written notice to the Owner of his revised cost estimate of the cost of such Works ("Revised Sanitary, Storm and Water Works Cost Estimate"), together with an explanation of the reason for the revised cost estimate. The amount to be paid by the Owners to the Municipality for the construction and installation of the Sanitary, Storm and Water Works shall be deemed to be the amount of the latest of the Sanitary, Storm and Water Works Cost Estimate and the Revised Sanitary, Storm and Water Works Cost Estimate of which written notice is given to the Owners by the Director. Following the giving of notice pursuant to this paragraph, the latest Revised Sanitary, Storm and Water Works Cost Estimate shall be deemed to be the Sanitary, Storm and Water Works Cost Estimate for the purposes of this Servicing Agreement. (b) If the Director gives written notice to the Owners of the Revised Sanitary, Storm and Water Works Cost Estimate subsequent to the Owners having deposited the Performance Guarantee with the Municipality pursuant to paragraph 3, the Owners shall deposit with the Municipality an additional Performance Guarantee in the amount of the increase in the Sanitary, Stom1 and Water Works Cost Estimate within thirty (30) days of such notice being given. As-Constructed Costs 5. Upon completion of the Sanitary, Storm and Water Works, the Director shall give the Owners wTitten notice that the Sanitary, Storm and Water Works have been completed. No later than ten (l0) days following the date on which this written notice is given to the Owners, the Director shall give the Owners written notice of the as-constructed costs thereof. If the as-constructed costs exceed the Sanitary, Storm and Water Works Cost 5 Estimate then in force, forthwith after written demand is given them, the Owners shall pay the Municipality any amount by which such as-constructed costs exceed such Sanitary, Storm and Water Works Cost Estimate ("As-Constructed Payment"). If the Director determines that the as-constructed costs are less than the Sanitary, Storm and Water Works Cost Estimate then in force, the Municipality shall return any Performance Guarantee not required for the payment of the cost of the Sanitary, Storm and Water Works without interest to the Owners within thirty (30) days after the aforesaid written notice is given to the Owners by the Director. Use of Funds bv the Municillalitv 6. (a) The Municipality shall use the Performance Guarantee and the As-Constructed Payment only for costs actually incurred in respect of the Sanitary, Storm and Water Works. (b) During regular business hours of the Municipality at a time to be arranged in advance with the Director, the Owners may inspect copies of such documents a may be reasonably required to verify the costs incurred by the Municipality respecting the Sanitary, Storm and Water Works (including copies of invoices, approved purchase orders, and/or certified progress certificates in respect of such costs). Consequences of Default 7. In the event that the Owners fail to provide any Performance Guarantee or make any payments to the Municipality required pursuant to this Agreement within the time periods required herein, the Owners in default shall not apply for or require the issuance of any permit for the construction of or occupancy by or occupy any Large Format Retail Store on any portion of the "Owners' Commercial Lands" (as defined in the Principles As Amended) pursuant to the Ontario Building Code Act until such Performance Guarantee or payments (including the payment of any interest that has accrued pursuant to paragraph 8) have been fully deposited or made. Unpaid Monies 8. Except as otherwise provided in this Servicing Agreement the due date of any money payable under it, unless a different due date is specified in this Agreement, shall be ten (10) days after the date of the giving of written notice by the Municipality to the Owners, as the case may be. Where the Owners are in default in respect of such payment, interest shall be calculated and be paid to the Municipality by the Owners on all sums in default at the same rate. and in the same manner, and at the same time as is the case with municipal taxes which arc ill arrears at the date 011 which the default in question commences. 6 All Actions at Risk of Owners 9. All actions taken by the Municipality in respect of the Sanitary, Stonn and Sewer Works provided for in the Servicing Agreement are entirely at the risk of the Owners who shall have no recourse against the Municipality except where loss or damage is caused by the negligence of the Municipality, its officials, employees, agents, or contractors. Ownership of Sanitary. Storm and Water Works 10. The Owners agree that when the construction and installation of the Sanitary, Stonn and Water Works are completed, the sanitary, sewer and water main shall be deemed to be owned by the Region and the storm sewer shall be deemed to be owned by the Municipality without compensation therefore being paid to the Owners either by the Region or by the Municipality. Actin!!: Reasonablv 11. All discretionary decisions of officials of the Municipality and the Municipality which are referred to in this Agreement shall be deemed to be qualified by the words "acting reasonably" . Notice 12. If any notice or other document is required to be or may be given to or by the Municipality or by any official of the Municipality to a party to this Servicing Agreement, such notice shall be transmitted by telefax, mailed by first class prepaid post or delivered to: Players/: West Diamond Players Business Park Ltd. 1700 Langstaff Road Suite 2003 Concord, ON L4K 3S3 Attention: Mr. Bruce Fisher West Diamond Properties Inc. 30 Floral Parkway Concord, ON L4K 4Rl Attention: Mr. Robert DeGasperis And: Royal Bank Royal Bank of Canada 180 Wellington Street West 5th Floor Toronto, ON M5J IJ2 7 Or, Municipality: The Municipality of Clarington 40 Temperance Street Bowmanville, ON Ll C 3A6 Attention: Director of Planning Services Fax: 905-623-0830 or such other telefax number or address of which any party has notified the other parties in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this Agreement and if telefaxed or delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) shall be deemed to have been received at the time of delivery or transmission and if mailed by pre-paid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the mailing thereof. Notwithstanding the foregoing, in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above, then such notice shall be sent by an alternate means of transportation which may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. Force Maieure 13. In this Servicing Agrcement, the term "Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military authority, acts of public enemics, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, tire or explosion; flood, wind, water, earthquake or other casualty, or an Act of God and any act, omission or event whethcr of the kind herein enumerated or otherwise not within the control of a party to this Agreement, none of which has been caused by the deliberate default or act or omission by such party and none of which has been avoidable by the exercise of reasonable effort or foresight by such party. The Municipality or other party to this Agreement, as the case may be, shall notify the other parties to this Agreement of the commencement, duration and consequence (so far as the same is within the knowledge of the Municipality or such other party, as the case may be) of any Force Majeure affecting the performance of any of its obligations hereunder within thirty (30) days of gaining such knowledge. Postponement of Charges 14. Royal Bank hereby postpones its rights under the Charge registered in the Land Registry Office as Instruments No. DR 265437 to the rights of the Municipality under this Agreement. 8 Registration 15. The parties hereto other than the Municipality consent to the registration of a Notice of this Agreement as a charge against the title to the "Owners' Commercial Lands" (as defined in the Principles). Forthwith after the Owners have satisfied their obligations to the Municipality under this Servicing Agreement, the Municipality shall execute at the Owners' written request, such documents prepared by the Owners as are necessary to remove the registration of the Notice of this Agreement from title. Time is of the Essence 16. Time is of the essence of the Servicing Agreement. Authority of the Municipality 17. The parties hereto acknowledge and agree that the Municipality has authority to enter into this Security Agreement, that every provision hereto is authorized by the law and enforceable and that this Servicing Agreement is executed by the Municipality in reliance on such acknowledgement and agreement. Further Assurances 18. The parties hereby covenant and agree to forthwith execute and provide all further documents, instruments and assurances as may be necessary or required in order to carry out (and give effect to) the true intent of this Agreement, and to effect the registration against and release from title to the lands subject to this Agreement of such notices or other instruments in accordance with the provisions of this Agreement. Enurement 19. This Agreement shall enure to the benefit of and be binding on the Parties hereto, and their respective successors and assigns. Counterpart Executions 20. This Agreement may be executed in counterparts. 9 IN WITNESS WHEREOF the parties hereto have hereunto have set their hands and seals the day and year first above written and the parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED In the presence of: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk I/We have authority to bind the Corporation PLA YERS BUSINESS PARK LTD. Name: Title: J/We have authority to bind the Corporation Name: Title: J/We have authority to bind the Corporation WEST DIAMOND PROPERTIES INC. Name: Title: I1We have authority to bind the Corporation Name: Title: J/We have authority to bind the Corporation ROYAL BANK OF CANADA Name: Title: Name: Title: I/We have authority to bind the Corporation SCHEDULE "A" THIS SCHEDULE IS SCHEDULE "A" to this Servicing Agreement which has been authorized and approved by By-Law 2007-141 of the Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007 Description of Green Road Reconstruction Works The Works shown on the following drawings prepared by D.G. Biddle & Associates Limited as finally approved by and on file with the Municipality's Director of Engineering Services: . Underground Services and Roadworks - Grecn Road North, Drawing No. C I, March 2007 . Underground Services and Roadworks - Green Road North, Drawing No. C2, March 2007 SCHEDULE "8" THIS SCHEDULE IS SCHEDULE "8" to this Servicing Agreement which has been authorized and approved by By-Law 2007-141 of the Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007 Descriotion of Stevens Road Construction Works The Works shown on the following drawings prepared by D.G. Biddle & Associates Limits as finally approved by and on file with the Director of Engineering Services: . Underground Services and Roadworks -Stevens Road, Drawing No. C3, March 2007 . Underground Services and Roadworks - Stevens Road, Drawing No. C4, March 2007 SCHEDULE "C" THIS SCHEDULE IS SCHEDULE "C" to this Servicing Agreement which has been authorized and approved by By-Law 2007-141 of the Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007 Description of Sanitary. Storm and Water Works Storm Supply and install stom1 sewer pipe, conc. C!.65-d (unless otherwise noted) up to 825mm dia. bedding as specified on drawings Supply and install storm sewer manholes, concrete precast unless otherwise specified up to 1800mm dia. Break into existing manhole, connect, parge and rebench Camera inspection (inc!. CB leads) Sanitary Supply and install sanitary sewer pipe, PYC SDR-35 (unless otherwise noted) up to 425mm dia. bedding as specified on drawings Supply and install sanitary sewer manholes, 1200mm dia. (OrSD 701.010) precast (unless otherwise specified) (inc!. water tight locking cover OPSD 401.030) Camera Inspection Watermain Supply and insta1l400mm CPP watermain including all appurtenances, Le. temporary blow-offs, bends, swabbing, pressure-testing at operating pressure Supply and install hydrants along 400mm dia. crr watermain including temp. t1ushing hydrant General All servicing requirements for the Sanitary. Storm and Water Works shown on the Drawings referred to in Schedules "A" and "B" are not described above in this Schedule "C". Schcdulc "D" THIS SCHEDULE IS SCHEDULE "D" to this Servicing Agreement which has been authorized and approved by By-Law 2007-141 of the Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007 Sanitary. Storm and Watcr Works Cost Estimate Estimated Value 1 2 3 Storm Sewers Sanitary Sewers Water Distribution System $ 160,209.50 $ 200,952.20 $ 108,595.45 Sub-Total $ 469,757.16 10% Contingency Sub-Total $ 46,975.72 $ 516,732.88 20% Engineering Sub-Total $ 103,346.58 $ 620,079.46 6% G.S.T. 37,204.77 Total Estimated Cost of Services $ 657,284.23 Total Performance Guarantee Required $ 657,284.23 Attachment 4 To Report PSD-088-07 FIRST PRINCIPLES OF UNDERSTANDING AMENDMENT AGREEMENT THIS FIRST PRINCIPLES OF UNDERSTANDING AMENDMENT AGREEMENT made as of the 25th day of June, 2007. BET WEE N: PLAYERS BUSINESS PARK LTD. (" Players") and WEST DIAMOND PROPERTIES INC. ("West Diamond") (hereinafter collectively called the "Owners") OF THE FIRST PART - and - THE CORPORATION OF THE MUNICIPALITY OF CLARlNGTON (hereinafter called the "Municipality") OF THE SECOND PART - and - 1613881 ONTARIO INC. (hereinafter called "1613881") OF THE THIRD PART - and - ROYAL BANK OF CANADA (hereinafter called "Royal Bank") OF THE FOURTH PART - and - 672003 ONT ARlO INC. (hereinafter called "672003") OF THE FIFTH PART 2 WHEREAS: A. Principles of Understanding dated March 1, 2006 were made by the Owners, the Municipality and 1613881 ("Principles"). They were registered in the Land Registry Office for the Land Titles Division of Durham (No. 40) ("Land Registry Office") as Instrument No. DR495847 on the title to the lands identified by the following Property Identification Numbers ("PIN"). PIN# 26612-0113 26612-0114 26612-0024 26613-0102 Owner Players West Diamond Players 1613881 B. A Charge in favour of Royal Bank dated April 6, 2004 was registered in the Land Registry Office on the title to the lands identified by the following PINs as Instrument No. DR265437. PIN# 26612-0114 26612-0113 26612-0024 Owner West Diamond Players Players C. A Charge in favour of 672003 dated November 3, 2004 was registered in the Land Registry Office on the title to the lands identified by PIN# 26613-102 owned by 1613881 as Instrument No. DR334853. D. A Charge in favour of Royal Bank dated April 3, 2004 was registered in the Land Registry Office in the title to the lands identified by PIN #26613-102 owned by 1613881 as Instrument No. DR334854. E. Royal Bank and 672003 have agreed with the Municipality to postpone their rights under the Charges referred to in Recitals B, C and D to the rights of the Municipality under the Principles as amended by this Agreement and under the Stevens Road Extension Agreement. A copy of the Stevens Road Extension Agreement is contained in Schedule "H" to the Principles. F. Paragraphs 8, 9 and Schedule "G" of the Principles refer to Private Roads A, Bland B2. Plan 40R-24933, deposited in the Land Registry Office on June 15,2007, among other things, more particularly describes the lands within Private Roads A, Bland B2. 3 G. The Owner, the Municipality and 1613881 have agreed to amend the Principles to incorporate descriptions of Private Roads A, Bland B2 as Parts as follows: Bl B2 Parts 8,9,11,12,13,14, 29,30,32,33 2,34,40 20,23,27,38 Private Road A H. The execution of this First Principles of Understanding Amendment Agreement on behalf of the Municipality by the Mayor and the Municipal Clerk was authorized by By-law No. 2007- 143 passed by the Municipality's Council at its meeting on the 25th day of June, 2007. NOW THEREFORE in consideration of the premises herein contained and the sum of TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt whereof by each of the parties is hereby acknowledged) each of the parties hereto covenants and agrees with the other parties as follows: Recitals 1. Each of Recitals E to G, inclusive, is hereby incorporated into the operative part of this Agreement and shall be construed and given the effect of covenants contained in this Agreement. If there is an inconsistency between any of them and any of the following paragraphs, the text of the paragraphs shall prevail to the extent of the inconsistency. Postponement of Charges 2. (a) Royal Bank hereby postpones its rights under the Charges registered in the Land Registry Office as Instruments No. DR 265437 and DR 334854 to the rights of the Municipality under the Principles as amended by this First Principles of Understanding Amendment Agreement and under the Stevens Road Extension Agreement; and (b) 672003 hereby postpones its rights under the Charge registered in the Land Registry Office as Instrument No. DR 334853 to the rights of the Municipality under the Principles as amended by this First Principles of Understanding Amendment Agreement and under the Stevens Road Extension Agreement. Private Roads A. HI and H2 3. The Principles are amended as follows: 4 (a) by deleting paragraph 8(b) and replacing it with a new paragraph 8(b) as follows: "8(b) For the purposes of these Principles: (i) Private Road A comprises the lands more particularly described as Parts 8, 9, II, 12, 13, 14, 29, 30, 32 and 33 on Plan 40R-24933 deposited in the Land Registry Office; (ii) Private Road B I is the land more particularly described as Parts 2, 34 and 40 on Plan 40R-24933 deposited in the Land Registry Office; and (iii) Private Road B2 is the lands more particularly described as Parts 20, 23, 27 and 38 on Plan 40R- 24933 deposited in the Land Registry Office."; (b) by amending paragraph 9(a) by deleting from the second and third lines thereof the following words, numbers and blank spaces "described as Parts _, _, and on Plan "; (c) by amending paragraph 9(b) by deleting the words and blanks "of any portion of Parts _, _, and _ on Plan " and replacing them with the words and numbers "of any of the Parts on Plan 40R-24933 by which they are described for the purposes of these Principles,"; and (d) deleting from paragraph 22 of the Principles the number "9" and replacing it with the number and letter "8(b)". Principles as Amended to Continue to Bind 4. Except as otherwise provided in this First Principles of Understanding Amendment Agreement, the Principles continue to bind the Owners, the Municipality and 1613881 and are enforceable by and against each of them. Time of Essence 5. Time is of the essence of this First Principles of Understanding Amendment Agreement. Time continues to be of the essence of the Principles. Enurement 6. This First Principles of Understanding Amendment Agreement shall enure to the benefit of and bind the parties hereto and their respective successors and assigns. 5 Authority of Municipality 7. Players, West Diamond and 1613881 acknowledge and agree that the Municipality has authority to enter into this First Principles of Understanding Amendment Agreement, that every provision hereof is authorized by the law and is fully enforceable by Players, West Diamond, 1613881 and the Municipality, and that this Agreement is executed by the Municipality in reliance on the aforesaid acknowledgement and agreement. Rce:istration of A!!rccment on Title 8. Players and West Diamond hereby consent to the registration of a Notice of this First Principles of Understanding Amendment Agreement as a charge against the title to their respective lands identified under PINs 26612-0113, 26612-0114 and 26612-0024. 1613881 hereby consents to the registration of a Notice of this Agreement as a charge against the title to its lands identified under PIN 266 I 3-0102. Further Assurances 9. The parties hereby covenant and agree, after a request in \\-Titing by one party to the other parties, to forthwith execute and provide all further documents, instruments and assurances as may be necessary or required in order to carry out (and give effect to) the true intent of this Agreement, and to effect the registration against and release from title to the lands subject to this Agreement of such notices or other instruments in accordance with the provisions of this Agreement. Notice 10. If any notice or other document is required to be or may be given by the Municipality or by any official of the Municipality to any of the other parties to this First Principles of Understanding Amendment Agreement, such notice shall be transmitted by telefax, mailed by first class prepaid post or delivered to: Players/: West Diamond Players Business Park Ltd. 1700 Langstaff Road Suite 2003 Concord, ON L4K 3S3 Attention: Mr. Bruce Fisher West Diamond Properties Inc. 30 Floral Parkway Concord, ON L4K 4Rl Attention: Mr. Robert DeGasperis 613881: 613881 Ontario Inc. 1700 Langstaff Road Suite 2003 Concord, ON L4K 3S3 6 Attention: Mr. Bruce Fischer And: Royal Banle Royal Bank of Canada 180 Wellington Street West 5th Floor Toronto, ON M5J 112 And: 672003 : 672003 Ontario Inc. [address] Or, Municipality: The Municipality of Clarington 40 Temperance Street Bo\\-manville, ON LIC 3A6 Attention: Director of Planning Services Fax: 905-623-0830 or such other telefax number or address of which any party has notified the other parties in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this Agreement and if telefaxed or delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) shall be deemed to have been received at the time of delivery or transmission and if mailed by pre-paid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the mailing thereof. Notwithstanding the foregoing, in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above, then such notice shall be sent by an alternate means of transportation which may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. Force Maieure II. In this First Principles of Understanding Amendment Agreement, the term "Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military authority, acts of public enemies, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, tire or explosion; Hood, wind, water, earthquake or other casualty, or an Act of God and any act, omission or event whether of the kind herein enumerated or otherwise not within the control of the Owners, 1613881, Royal Bank or 672003, none of which has been caused by the deliberate default or act or omission by such party and none of ~vhieh has been avoidable by the exercise of reasonable effort or foresight by such party. the Owners, 1613881, Royal Bank or 672003 or the Municipality, as the case 7 may be, shall notify the other parties to this First Principles of Understanding Amendment Agreement of the commencement, duration and consequence (so far as the same is within the knowledge of the Owners, 1613881, Royal Bank or 672003 or the Municipality, as the case may be) of any Force Majeure affecting the performance of any of its obligations hereunder within thirty (30) days of gaining such knowledge. 8 IN WITNESS WHEREOF the parties hereto have hereunto have set their hands and seals the day and year first above written and the parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED In the presence of: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON John Mutton, Mayor Patti L. Barrie, Municipal Clerk I/We have authority to bind the Corporation PLAYERS BUSINESS P ARK LTD. Name: Title: I/We have authority to bind the Corporation Name: Title: I/We have authority to bind the Corporation WEST DIAMOND PROPERTIES INC. Name: Title: I/We have authority to bind the Corporation Name: Title: I/We have authority to bind the Corporation 1613881 ONTARIO INC. Name: Title: I/We have authority to bind the Corporation Name: Title: l/We have authority to bind the Corporation ROYAL BANK OF CANADA Name: Title: Name: Title: I/We have authority to bind the Corporation Attachment 5 To Report PSD-088-07 ASSUMPTION AGREEMENT PRINCIPLES OF UNDERSTANDING AS AMENDED THIS ASSUMPTION AGREEMENT made as of the 25th day of June, 2007. BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARlNGTON (hereinafter called the "Municipality") OF THE FIRST PART - and - ROYAL BANK OF CA~ADA (hereinafter called "Royal Bank") OF THE SECOND PART - and - PLAYERS BUSINESS P ARK LTD. ("Players") and WEST DIAMOND PROPERTIES INC. ("West Diamond") (hereinafter collectively called the "Owners") OF THE THIRD PART - and - 1613881 ONTARIO INC. (hercinafter called "1613881") OF THE FOURTH PART WHEREAS: A. Principles of Understanding datcd March 1, 2006 were made by the Owners, the Municipality and 1613881 ("Players/West Diamond Principles"). They were registered in the Land Registry Office for the Land Titles Division of Durham (No. 40) ("Land Registry Office") as Instrument No. DR495847 on the title to the lands identified by the following Property Identification Numbers ("PIN"). - 2 - PIN No. Owner 26612-0113 Players 26612-0114 West Diamond 26612-0024 Players 26613-0 I 02 1613881 B. The Players/West Diamond Principles were amended by the First Principles of Understanding Amendment Agreement dated June 25, 2007, made between the Municipality, Players, West Diamond, 1613881, Royal Bank and 672003 Ontario Inc. and registered in the Land Registry Office as Instrument No. . The Players/West Diamond Principles as so amended is hereinafter referred to as the "Players/West Diamond Principles as Amended. C. A Charge in favour of Royal Bank dated April 6, 2004 was registered in the Land Registry Office on the title to the lands identified by the following PINs as Instrument No. DR265437. PIN No. Owner 26612-0114 West Diamond 26612-0113 Players 26612-0024 Players D. A Charge in favour of Royal Bank dated April 3, 2004 was registered in the Land Registry Office on the title to the lands identified by PIN #26613-102 owned by 1613881 as Instrument No. DR334854. E. Royal Bank has agreed with the Municipality to postpone its rights under the Charges referred to in Recitals B, C and D to the rights of the Municipality under the Players/West Diamond Principles As Amended and under the Stevens Road Extension Agreement. A copy of the Stevens Road Extension Agreement is contained in Schedule "H" to the Principles. F. Royal Bank has agreed to assume the covenants of the parties to the Players/West Diamond Principles As Amended and the covenants of certain of the parties to the Stevens Road Extension Agreement on the terms set out below in this Assumption Agreement. G. The parties hereto other than the Municipality have consented to the registration of a Notice of this Assumption Agreement on the title to the lands owned by them as referred to in Recital A. - 3 - H. The execution of this Assumption Agreement by the Mayor and the Municipal Clerk on bchalf of the Municipality of Clarington is authorized by By-law 2007-144 passed by the Municipality's Council at its meeting on June 25, 2007. NOW THEREFORE in consideration of the premises herein contained and the sum of TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt whereof by each of the parties is hereby acknowledged) each of the parties covenants and agrees with the other parties as follows: RECITALS 1. Each of Recitals C to G, inclusive, is hereby incorporated into the operative part of this Assumption Agreement and shall be construed and given effect as covenants contained in this Assumption Agreement. ASSllMPTION OF COVENANTS BY ROYAL BANK AS CHARGEE UNDER INSTRUMENT No. DR265437 2. Pursuant to and in accordance with paragraph 18(a) of the Players/West Diamond Principles As Amended as Chargee under the Charge registered in the Land Registry Ofiice as Instrument No. DR265437 hereby assumes each of Players/West Diamond's covenants contained in the Players/West Diamond Principles As Amended on the same basis and to the same extent as if Royal Bank had been a party to it, provided that Royal Bank shall not be bound by such covenants unless and until and to the extent that it takes possession or control of the land to which Instrument No. DR265437 applies. The provisions of paragraph 18(a) of the Players/West Diamond Principles As Amended apply to paragraph 2 of this Assumption Agreement with all necessary changes to it being assumed to have been made in order to give effect to the intent of paragraph 2 of this Assumption Agreement. The assumption by Royal Bank hereunder shall expire and terminate upon the discharge ofInstrument No. DR265437. ASSUMPTION OF COVENANTS BY ROYAL BANK AS CHARGEE UNDER INSTRUMENT No. DR334854 3. Pursuant to and in accordance with paragraph 18(a) of the Players/West Diamond Principles As Amended, Royal Bank hereby assumes each of 1613881's covenants contained in the Players/West Diamond Principles As Amended on the same basis and to the same extent as if Royal Bank had been a party to it, provided that Royal Bank shall not be bound by such covenants unless and until and to thc extent that it takes possession or control of the land to which Instrument No. DR334854 applies. The provisions of paragraph 18(a) of the Players/West Diamond Principles As Amended apply to paragraph - 4- 3 of this Assumption Agreement with all necessary changes to it being assumed to have been made in order to give effect to the intent of paragraph 3 of this Assumption Agreement. The assumption by Royal Bank hereunder shall expire and terminate upon the discharge of Instrument No. DR334854. REGISTRATION OF ASSUMPTION AGREEMENT ON TITLE 4. Players, West Diamond and 1613881 consent to the registration of a Notice of this Assumption Agreement on the title to the lands owned by them as referred to in Recital A. FURTHER ASSURANCES 5. The parties hereto covenant and agree, after a request in writing by any party to the other parties, to forthwith execute and provide all further documents, instruments and assurances as may be necessary or required in order to carry out and give effect to the true intent of these presents, and to effect the registration against and release from title to the lands subject to this Assumption Agreement of such notices or other instruments in accordance with the provisions of this Assumption Agreement. No DEROGATION FROM PLA YERS!WEST DIAMOND PRINCIPLES AS AMENDED 6. Nothing contained in this Assumption Agreement shall derogate or shall be deemed to derogate in any way from the provisions of either the Players/West Diamond Principles As Amended or the Stevens Road Extension Agreement and time shall continue to be of their essence. TIME OF ESSENCE 7. Time is of the essence of this Assumption Agreement. ENUREMENT 8. This Assumption Agreement shall enure to the benefit of and be bind the parties hereto, their respective successors and assigns. LAWS OF ONT ARlO ApPLY 9. The parties agree that this Assumption Agreement shall be interpreted, applied and enforced in accordance with the laws of the Province of Ontario and without limiting the - 5 - generality of the foregoing, the laws of the Province of Ontario shall be applied to determine the rights and duties of the parties hereunder. NOTICE 10. If any notice or other document is required to be or may be given by the Municipality or by any official of the Municipality or by any of the other parties hereto by this Assumption Agreement, such notice shall be mailed by first class prepaid post, mailed by first class registered prepaid post, or delivered to: The Municipality: The Municipality of Clarington 40 Temperance Street Bowmanville, ON Ll C 3A6 Attention: Director of Planning Services Fax: 905-623-0830 OR, Players: Players Business Park Ltd. 1700 Langstaff Road Suite 2003 Concord, ON L4K 3S3 Attention: Mr. Bruce Fischer AND: West Diamond: West Diamond Properties Inc. 30 Floral Parkway Concord, ON L4K 4Rl Attention: Mr. Robert DeGasperis AND: 1613881 1613881 Ontario Inc. 1700 Langstaff Road Suite 2003 Concorde, ON L4K 3S3 Attention: Mr. Bruce Fischer OR, Royal Bank Royal Bank of Canada 180 Wellington Street West 5lh Floor Toronto, ON M5J 112 or such other address of which any party has notified the other parties in writing. Any such notice if mailed by first class prepaid post or delivered shall be deemed good and sufficient notice under the tenns of this Assumption Agreement on the day on which it is received, if it is delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) otherwise such notice shall be deemed to be received on the next following business day (excluding Saturdays, Sundays and statutory holidays) after the day on which in fact it was delivered. If such notice is mailed by first class prepaid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the day on which it is mailed. Notwithstanding the foregoing, in the event that it may be reasonably - 6 - anticipated that due to Force Majeure any notice will not be received within the time limit set out above, then such notice shall be sent by an alternate means of transportation which may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. FORCE MA.IEURE 11. In this Assumption Agreement, the term "Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military authority, acts of public enemies, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water, earthquake or other casualty, or an Act of God and any act, omission or event whether of the kind herein enumerated or otherwise not within the control of any of the parties to this Assumption Agreement, none of which has been caused by the deliberate default or act or omission by such parties and none of which has been avoidable by the exercise of reasonable effort or foresight by such parties of the parties hereto, as the case may be, shall notify the other parties to this Assumption Agreement of the commencement, duration and consequence (so far as the same is within the knowledge of such party, as the case may be) of any Force Majeure affecting the performance of any of its obligations hereunder within thirty (30) days of gaining such knowledge. AUTHORITY OF THE MUNICIPALITY 12. The parties hereto other than the Municipality acknowledge and agree that the Municipality has authority to enter into this Assumption Agreement, that every provision hereof is authorized by the law and is fully enforceable by any of the parties against any of the other parties, and that this Assumption Agreement is executed by the Municipality in reliance on the aforesaid acknowledgement and agreement. - 7 - IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED In the presence of: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk We have authority to bind the Corporation. ROYAL BANK OF CANADA Name: Title: Name: Title: I/We have authority to bind the Corporation. PLAYERS BUSINESS PARK L TD Name: Title: Name: Title: IIWe have authority to bind the Corporation. WEST DIAMOND PROPETIES INC. Name: Title: Name: Title: 1613881 ONTARIO INC. Name: Title: Name: Title: IIWe have authority to bind the Corporation. Attachment 6 To Report PSD-088-07 ASSUMPTION AGREEMENT PRINCIPLES OF UNDERSTANDING AS AMENDED THIS ASSUMPTION AGREEMENT made as of the 25th day of June, 2007. BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE FIRST PART - and - 672003 ONTARIO LIMITED (hereinafter called "672003") OF THE SECOND PART - and - PLAYERS BUSINESS P ARK LTD. ("Players") and WEST DIAMOND PROPERTIES INC. ("West Diamond") (hereinafter collectively called the "Owners") OF THE THIRD PART - and - 1613881 ONTARIO INC. (hereinafter called" 1613881") OF THE FOURTH PART WHEREAS: A. Principles of Understanding dated March 1, 2006 were made by the Owners, the Municipality and 1613881 ("Players/West Diamond Principles"). They were registered in the Land Registry Office for the Land Titles Division of Durham (No. 40) ("Land Registry Office") as Instrument No. DR495847 on the title to the lands identified by the following Property Identification Numbers ("PIN"). - 2 - I PIN No. Owner 26612-0113 Players 26612-0114 West Diamond 26612-0024 Players 26613-0102 1613881 B. The Players/West Diamond Principles were amended by the First Principles of Understanding Amendment Agreement dated June 25, 2007, made between the Municipality, Players, West Diamond, 1613881, Royal Bank and 672003 Ontario Inc. and registered in the Land Registry Office as Instrument No. . The Players/West Diamond Principles as so amended is hereinafter referred to as the "Players/West Diamond Principles as Amended. C. A Charge in favour of 672003 dated October 10, 2004 was registered in the Land Registry Offiee on the title to the land identified by PIN #26613-0102 owned by 1613881 as Instrument No. DR334853. D. 672003 has agreed with the Municipality to postpone its rights under the Charge referred to in Recital C to the rights of the Municipality under the Players/West Diamond Principles as Amended. E. 672003 has agreed to assume the covenants of the parties to the Players/West Diamond Principles As Amended on the terms set out below in this Assumption Agreement. F. 1613881 has agreed to the registration ofa Notice of this Assumption Agreement on the title to the lands owned by it as referred to in Recital A. G. The execution of this Assumption Agreement by the Mayor and the Municipal Clerk on behalf of the Municipality of Clarington is authorized by By-law 2007-145 passed by the Municipality's Council at its meeting on June 25, 2007. NOW THEREFORE in consideration of the premises herein contained and the sum of TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt whereof by each of the parties is hereby acknowledged) each of the parties covenants and agrees with the other parties as follows: - 3 - RECITALS 1. Each of Recitals D to F, inclusive, is hereby incorporated into the operative part of this Assumption Agreement and shall be construed and given effect as covenants contained in this Assumption Agreement. ASSUMPTIO:-; OF COVENANTS BY 672003 AS CHARGEE UNDER INSTRUMENT No. DR334853 2. Pursuant to and in accordance with paragraph 18(a) of the Players/West Diamond Principles As Amended, 672003 as Chargee under the Charge registered in the Land Registry Office as Instrument No. DR265437 hereby assumes each of Players/West Diamond's covenants contained in the Players/West Diamond Principles As Amended on the same basis and to the same extent as if 672003 had been a party to it, provided that 672003 shall not be bound by such covenants unless and until and to the extent that it takes possession or control of the land to which Instrument No. DR334853 applies. The provisions of paragraph 18(a) of the Players/West Diamond Principles As Amended apply to paragraph 2 of this Assumption Agreement with all necessary changes to it being assumed to have been made in order to give effect to the intent of paragraph 2 of this Assumption Agreement. The assumption by 672003 hereunder shall expire and terminate upon the discharge of Instrument No. DR334853. REGISTRATION OF ASSUMPTION AGREEMENT ON TITLE 3. 1613881 hereby consents to the registration ofa Notice of this Assumption Agreement on the title to the lands owned by it as referred to in Recital A. FURTIlER ASSVRANCES 4. The parties hereto covenant and agree, after a request in writing by any party to the other parties, to forthwith execute and provide all further documents, instruments and assurances as may be necessary or required in order to carry out and give efIect to the true intent of these presents, and to efIect the registration against and release from title to the lands subject to this Assumption Agreement of such notices or other instruments in accordance with the provisions of this Assumption Agreement. No DEROGATION FROM PLA YERS/WEST DIAMOND PRINCIPLES AS AMENDED 5. Nothing contained in this Assumption Agreement shall derogate or shall be deemed to dcrogatc in any way from thc provisions of thc Players/Wcst Diamond Principles As Amended and time shall continue to be of the essence of the Players/West Diamond Principles As Amended. - 4 - TIME OF ESSENCE 6. Time is of the essence of this Assumption Agreement. ENUREMENT 7. This Assumption Agreement shall enure to the benefit of and shall bind the parties hereto, their respective successors and assigns. LAWS OF ONTARIO ApPLY 8. The parties agree that this Assumption Agreement shall be interpreted, applied and enforced in accordance with the laws of the Province of Ontario and without limiting the generality of the foregoing, the laws of the Province of Ontario shall be applied to determine the rights and duties of the parties hereunder. NOTICE 9. If any notice or other document is required to be or may be given by the Municipality or by any official of the Municipality or by any of the other parties hereto by this Assumption Agreement, such notice shall be mailed by first class prepaid post, mailed by first class registered prepaid post, or delivered to: The Municipality: The Municipality of Clarington 40 Temperance Street Bowmanville, ON LIC 3A6 Attention: Director of Planning Services Fax: 905-623-0830 OR, Players: Players Business Park Ltd. 1700 Langstaff Road Suite 2003 Concord, ON L4K 3S3 Attention: Mr. Bruce Fischer AND: West Diamond: West Diamond Properties Inc. 30 Floral Parkway Concord, ON L4K 4R1 Attention: Mr. Robert DeGasperis AND: 1613881 1613881 Ontario Inc. 1700 Langstaff Road Suite 2003 Concorde, ON L4K 3S3 Attention: Mr. Bruce Fischer OR, - 5 - 672003 672003 Ontario Limited (Address) or such other address of which any party has notified the other parties in writing. Any such notice if mailed by first class prepaid post or delivered shall be deemed good and sufficient notice under the terms of this Assumption Agreement on the day on which it is received, if it is delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) otherwise such notice shall be deemed to be received on the next following business day (excluding Saturdays, Sundays and statutory holidays) after the day on which in fact it was delivered. If such notice is mailed by first class prepaid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the day on which it is mailed. Notwithstanding the foregoing, in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above, then such notice shall be sent by an alternate means of transportation which may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. FORCE MAJEURE 10. In this Assumption Agreement, the term "Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military authority, acts of public enemies, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water, earthquake or other casualty, or an Act of God and any act, omission or event whether of the kind herein enumerated or otherwise not within the control of any of the parties to this Assumption Agreement, none of which has been caused by the deliberate default or act or omission by such parties and none of which has been avoidable by the exercise of reasonable effort or foresight by such parties of the parties hereto, as the case may be, shall notify the other parties to this Assumption Agreement of the commencement, duration and consequence (so far as the same is within the knowledge of such party, as the case may be) of any Force Majeure affecting the performance of any of its obligations hereunder within thirty (30) days of gaining such knowledge. AUTHORITY OF TilE MUNICIPALITY 11. The parties hereto other than the Municipality acknowledge and agree that the Municipality has authority to enter into this Assumption Agreement, that every provision hereof is authorized by the law and is fully enforceable by any of the parties against any - 6 - of the other parties, and that this Assumption Agreement is executed by the Municipality in reliance on the aforesaid acknowledgement and agreement. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED In the presence of: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) THE CORPORATION OF THE MUNICIPALITY OF CLARlNGTON Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk We have authority to bind the Corporation. 672003 ONTARIO LIMITED Name: Title: Name: Title: I/We have authority to bind the Corporation. PLAYERS BUSINESS PARK LTD Name: Title: Name: Title: I1We have authority to bind the Corporation. WEST DIAMOND PROPETIES INC. Name: Title: Name: Title: 1613881 ONTARIO INC. Name: Title: Name: Title: I/We have authority to bind the Corporation. Attachment 7 To Report PSD-088-07 SUBDIVISION/CONSENT AGREEMENT THIS SUBDIVISION/CONSENT AGREEMENT made as of the 25th day of June, 2007. 8 E T WEE N: PLA YERS BUSINESS PARK LTD. and WEST DIAMOND PROPERTIES INC. (hereinafter collectively called "Players/West Diamond") OF THE FIRST PART - and - THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE SECOND PART - and - ROYAL BANK OF CANADA (hereinafter called the "Mortgagee") OF THE THIRD PART WHEREAS: A. Players/West Diamond, 1613881 Ontario Inc. and the Municipality entered into Principles of Understanding dated March I, 2006 which are registered as Instrument No. DR495847 in the Land Registry Office for the Land Titles Division of Durham (No. 40) ("Land Registry Office"). These were amended by the First Principles of Understanding Amendment Agreement dated June 25, 2007 and registered in the Land Registry Office as Instrument No. DR_. The Principles of Understanding as so amended are referred to in this Subdivision/Consent Agreement as the "Players/West Diamond Principles". B. The lands to which this Subdivision/Consent Agreement applies are more particularly described in Schedule "A" hereto ("Players/West Diamond Lands"). - 2 - C. Players/West Diamond represents and warrants that it is the registered owner in fee simple of the Players/West Diamond Lands subject to a mortgage or charge registered in favour of the Mortgagee as Instrument No. DR265437 ("Mortgage") in the Land Registry Office for the Land Titles Division of Durham (No. 40) ("Land Registry Office"). The Mortgagee has agreed to postpone its rights under the Mortgage to the right of the Municipality under the Players/West Diamond Principles, the Stevens Road Extension Agreement and this Subdivision/Consent Agreement. D. On , 2007, the Regional Municipality of Durham's Land Division Committee under File Numbers LD 124/2007, LD 125/2007, LD 126.2007, LD 127/2007, LD 128/2007, LD 129/2007, LD 130/2007 and LD 131/2007 gave its provisional consent ("Provisional Consent") under section 53 of the Planning Act, R.S.O. 1990, c.P.13, as amended, to among other consents to proposed transfers of portions of the Players/West Diamond Lands, the transfer by Players/West Diamond of the portion of the Players/West Diamond Lands which are more particularly described in Schedule "B" hereto as "Severed Lands-West Parcel" and "Severed Lands-East Parcel". The Provisional Consent is subject to certain conditions including the making of this Subdivision/Consent Agreement. A copy of the Provisional Consent is contained in Schedule "c" hereto. E. Following satisfaction of the conditions to the Provisional Consent and the issuance of a certificate that the consent has been given pursuant to subsection 53(42) of the Planning Act, Players/West Diamond intend to transfer the Severed Lands-West Parcel and the Severed Lands- East Parcel for development thereon of large format retail stores on each of them in accordance with the Municipality's Official Plan Amendment No. 44 and Zoning By-law Amendment 2006- 047. F. A copy of the concept plan for development of the Players/West Diamond Lands is contained in Schedule "C" of the Players/West Diamond Principles. It is referred to hereinafter in this Subdivision/Consent Agreement as the "Concept Plan for Development". The Concept Plan for Development was endorsed in principle by the Municipality's Council's Resolution #C- 113-06 passed at its special meeting on March 1, 2006. A copy of Resolution #C-113-06 is contained in Schedule "D" of the Players/West Diamond Principles. G. The Stevens Road Extension Agreement dated March 1, 2006 has been executed by the Municipality, Halloway Holdings Limited, Players Business Park Ltd. and West Diamond Properties Inc. A copy of it is contained in Schedule "H" of the Players/West Diamond Principles. - 3 - H. Players/West Diamond has agreed to transfer (I) Parts 18,25,26,27 and 45 on Reference Plan 40R-24933 to the Municipality for the purpose of widening Green Road; (2) Part 4 on Plan 40R-24933 for the purpose of Boswell Drive north of Durham Highway 2; (3) Blocks 96 and 97 on Plan 40M-1904 for the purpose of Boswell Drive south of Regional Highway 2; and (4) Part 5 on Plan 40R-24933 for the purpose of establishing a 0.3 metre reserve on the westerly side of the Boswell Drive right-of-way north of Regional Highway 2, all as provided below in this Subdivision/Consent Agreement. I. This Subdivision/Consent Agreement is made pursuant to subsection 53(12) of the Planning Act, R.S.O. 1990, c.P.13, as amended. J. The execution of this Subdivision/Consent Agreement by the Mayor and the Municipal Clerk on behalf of the Municipality of Clarington is authorized by By-law 2007-146 passed by the Municipality's Council at its meeting on June 25, 2007. NOW THEREFORE in consideration of the premises herein contained and the sum of TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt whereof by each of the Parties is hereby acknowledged) each of the Parties covenants and agrees with the other Parties as follows: RECITALS AND SCHEDlJLES 1. (a) Each of Recitals B, D to H and Schedules "A" to "K" are hereby incorporated into the operative part of this Subdivision/Consent Agreement and each shall be construed and given the same effect as covenants contained in this Subdivision/Consent Agreement. (b) In this Subdivision/Consent Agreement, unless otherwise provided the term "Director" means the Municipality's Director of Engineering Services. LANDS TO BE TRANSFERRED TO MUNICIPALITY FOR THE PORTION OF BOSWELL DRIVE, INTERSECTION IMPROVEMENTS A 0.3 METRE RESERVE ON BOSWELL DRIVE AND THE WIDENING OF GREEN ROAD 2. On or prior to the execution of this Subdivision/Consent Agreement by the Municipality, Players/West Diamond shall transfer or cause to be transferred to the Municipality for a nominal consideration the lands more particularly described as Parts 4, 5, 18, 25, 26, 27 and 45 on Reference Plan 40R-24933 in fee simple free and clear of encumbrances and restrictions, except that Players/West Diamond may reserve from Part 4 on Plan 40R- 24933 an easement or a right in the nature of an easement for access to and egress from the Players/West Diamond Lands, and Durham Highway 2 which easement or right shall - 4 - tenninate automatically when the Municipality establishes the section of Boswell Drive to be located on Part 4 on Plan 40R-24933 as a public highway pursuant to the Municipal Act, 200 I, as amended. On or prior to the execution of this Subdivision/Consent Agreement by the Municipality, Players/West Diamond also shall transfer to the Municipality for a nominal consideration Blocks 96 and 97 on registered Plan of Subdivision 40M-1904 free and clear of encumbrances and restrictions. The transfers shall be in a form satisfactory to the Municipality's Solicitor. They shall be registered on title at the cost of Players/West Diamond including the payment of any Land Transfer Tax and the payment to the Municipality of its reasonable legal costs. DRAINAGE, EROSION CONTROL, GRADING, LANDSCAPING AND SERVICING OF PLA YERSIWEST DIAMOND LANDS 3. Players/West Diamond at its cost shall undertake, complete and maintain the grading, construction and installation of the services, works and landscaping required to be implemented in accordance with the following plans and drawings as finally approved by and on file with the Director and the Municipality's Director of Planning Services: Drawing Title Drawing Dated Last Prepared By No. Revision Date General Notes G-101 October February 16, Sernas Associates 2006 2007 Overall Site Servicing SS-101 October February 16, Sernas Associates Plan 2006 2007 Legends and S-IOI January February 16, Sernas Associates Abbreviations 2004 2007 Easement: From Green S-106 November February 16, Sernas Associates Rd to 225 m west of 2006 2007 Green Rd Easement: From 225 m S-107 November February 16, Sernas Associates west of Green rd to 2006 2007 Boswell Dr Overall Sanitary G-102A October February 16, Sernas Associates Drainage Plan 2006 2007 Overall Storm Drainage G-I02B October February 16, Sernas Associates Plan 2006 2007 Temporary Erosion & ERS-IO 1 October February 16, Sernas Associates Sediment Control Plan 2006 2007 Site Grading Plan SG-IO I October February 16, Sernas Associates 2006 2007 Landscape Plan L-I March 21, TerraPlan Landscape 2005 Architects Landscape Plan L-2 March 21, TerraPlan Landscape 2005 Arch itects BOSWELL DRIVE WORKS 4. (a) Schedules "D" to "I" inclusive apply in respect of the Boswell Drive Works and the Security for the Maintenance Guarantee for the Boswell Drive Works. The Boswell Drive Works are more particularly described in Schedule "D" hereto. - 5 - (b) Players/West Diamond shall undertake, complete and maintain the Boswell Drive Works at its cost in accordance with Schedule "E" hereto. On or before the execution of this Subdivision/Consent Agreement by the Municipality, Players/West Diamond shall deposit cash or an irrevocable unconditional letter of credit with the Municipality in the amount shown in the "Boswell Drive Works Cost Estimate" contained in Schedule "J" hereto as the performance guarantee ("Boswell Drive Works Performance Guarantee") required by Schedule "F" hereto. (c) No large format retail store shall be occupied for the purpose of conducting retail sales on any portion of the Players/West Diamond Lands until the Director gives Players/West Diamond notice that the construction and installation of the Boswell Drive Works with the exception of the top course of asphalt and landscaping have been completed to his satisfaction. (d) None of the provisions of paragraph 4(c) shall be deemed to prohibit the occupation of a large format retail store on any portion of the Players/West Diamond Lands only for the purposes of stocking it with merchandise and the training of staff. DURHAM HIGHWAY 2 LANDSCAPING AND STREETSCAPING 5. On or prior to the execution of this Subdivision/Consent Agreement by the Municipality, Players/West Diamond shall pay to the Municipality the sum of Three Hundred and Five Thousand ($305,000.00) Dollars for use by the Municipality in constructing and installing landscaping and streetscaping works on Durham Highway 2 between Boswell Drive and Green Road. STEVENS ROAD EXTENSION 6. (a) Players/West Diamond agree with the Municipality that the Developer-Funded section of the Stevens Road Extension as defined and provided for in the Stevens Road Extension Agreement is a local service within the meaning of section 59 of the Development Charges Act, 1997, S.O. 1997, c.27, as amended. (b) Players/West Diamond acknowledge that the "Urban Profile Works" on the "Developer-Funded Section" of the Stevens Road Extension as both terms are described and defined in the Stevens Road Extension Agreement will be designed and constructed on the aforesaid Developer-Funded Section. The Municipality acknowledges that Players/West Diamond has deposited with the Municipality the "Performance Guarantee" (as defined in the Stevens Road Extension Agreement) to secure its obligation to pay for fifty (50%) per cent of the cost of the aforesaid Urban Profile Works as is required by and in accordance with the Stevens Road - 6 - Extension Agreement. The terms "Urban Profile Works" and "Developer-Funded Section" have the same meaning as they have in the Stevens Road Extension Agreement. PRIV ATE ROADS A, 81 AND 82 7. (a) Private Roads A, 8 I and 82 are shown on the Concept Plan for Development. The lands which comprise Private Road A are more particularly described as Parts 8, 9, II, 12, 13, 14, 29, 30, 32 and 33 on Plan 40R-24933 The lands which comprise Private Road 8 I are more particularly described as Parts 2, 34 and 40 on Plan 40R-24933_. The lands which comprise Private Road 82 are more particularly described as Parts 20, 23 and 38 on Plan 40R-24933. (b) Players/West Diamond shall construct at its cost the "Private Roads A, 81 and 82 Improvements" (as hereinafter defined) shown on the Concept Plan for Development in accordance with the construction drawings, specifications, cross- sections and streetscaping improvements including lighting all as contained in Schedule "F" of the Players/West Diamond Principles of Understanding As Amended ("Private Roads A, 8 I and 82 Improvements") in accordance with the applicable Private Roads A, 8 I and 82 Improvements, Construction, Completion Schedule contained in paragraph 7(f), to the satisfaction of the Director. The parties agree that any of the aforementioned drawings, cross-sections and specifications may be revised in an agreement between Players/West Diamond and the Municipality made pursuant to section 41 of the Planning Act without amendment being made to this Subdivision/Consent Agreement. (c) Players/West Diamond at its cost will keep the Private Roads A, 81 and 82 Improvements after they have been constructed in a proper state of repair and maintain it in a reasonable and proper manner, provided that Players/West Diamond's duty to do so shall terminate on the day on which the Municipality exercises its option to purchase Private Roads A, 8 I and 82 in accordance with paragraph 7(b) of the Players/West Diamond Principles, and provided further that Players/West Diamond shall remain responsible for the cost of the rectification of all deficiencies that have been identified prior to the day on which the aforesaid option to purchase is exercised in a written notice given by the Director to Players/West Diamond, pursuant to paragraph 7(e) of this Subdivision/Consent Agreement. Paragraph 7(e) shall apply with all necessary changes to it being assumed to have been made to give effect to this paragraph 7(c). (d) Players/West Diamond hereby permits the Municipality, its employees, contractors and agents to enter on and to inspect the state of repair and the maintenance of the Private Roads A, 8 I and 82 Improvements from time to time. - 7 - (e) I f any deficiency in the repair or maintenance of the Private Road A, 81 and 82 Improvements is identified by the Director, he shall forthwith give written notice of the same to Players/West Diamond requiring the rectification of such deficiency by a date specified in the written notice. If Players/West Diamond fail to rectify the deficiency on or before the date specified in the written notice, the Municipality, its employees, contractors and agents may enter on Private Roads A, 8 I and 82, as the case may be, and cause the deficiency identified in the aforesaid written notice to be rectified at the expense of Players/West Diamond. Forthwith after rectifying the deficiency, the Director shall give written notice to Players/West Diamond of the cost of rectifying it shall include an allowance of thirty (30%) per cent to be paid to the Municipality for its overhead expenses. Forthwith after being given written notice of the cost of rectifying the deficiency as aforesaid, Players/West Diamond shall pay the amount in question as a debt owed by Players/West Diamond to the Municipality. (f) The Private Roads A, 81 and 82 Improvements shall be constructed and completed by Players/West Diamond in accordance with the applicable Construction and Completion Schedule set out below: Private Roads A. 81 and 82 Improvements-Construction and Completion Schedule Private Road "A" Improvements Part Numbers on Phase 1 Works Final Construction Works Reference Plan 40R- 24933 8, 11,30, and 33 Full pavement width, final Not Applicable asphalt coat, full curbing, and landscaping and streetscaping all completed in accordance with Principles of Understanding in conjunction with the construction of a building on Part I on Plan 40R-24933 9, 12,29, and 32 Full pavement width, final All landscaping and asphalt coat, and full curbing streetscaping completed in all completed in accordance accordance with Principles of with Principles of Understanding in connection Understanding in with the construction of a conjunction with the building on Parts 21,39 and construction of a building on 44 on Plan 40R-24933 Part I on Plan 40R-24933 West Side of 13 and 14 Full pavement width, final All landscaping and asphalt coat, and full curbing streetscaping completed in all completed in accordance accordance with Principles of with Principles of Understanding as part of the Understanding in construction of Building "COO conjunction with the located within Part 10 of construction of a building on Reference Plan 40R-24933 Part I on Plan 40R-24933 - 8 - East Side of 13 and 14 Full pavement width, final All landscaping and asphalt coat, and full curbing streetscaping completed in all completed in accordance accordance with Principles of with Principles of Understanding as part of the Understanding in construction of Building "E" conj unction with the located within Part 15 of construction of a building on Reference Plan 40R-24933 Part I on Plan 40R-24933 Private Road Bl Improvements Part Numbers on Phase 1 Works Final Construction Works Reference Plan 40R- 24933 2, 34, and 40 Full pavement width, Not Applicable final asphalt coat, full curbing, and landscaping and streetscaping all completed in accordance with Principles of Understanding in conjunction with the construction of a building on Part I on Plan 40R- 24933 Private Road B2 Improvements Part Numbers on Phase 1 Works Final Construction Works Reference Plan 40R- 24933 20, 23, and 38 Base asphalt and full aisle Full pavement width, final width to a width of9 asphalt coat, full curbing, and metres in conjunction landscaping and streetscaping all with the construction of a completed in accordance with building on Part I on Plan Principles of Understanding in 40R-24933 conjunction with the construction of a building on Parts 21, 39 and 44 on Plan 40R-24933 The Phase I Works which comprise part of the Private Roads A, B I and B2 Improvements, subject to the provisions of subparagraph 7(g), shall be completed before any building located on the Players/West Diamond Lands is occupied for the purpose of conducting retail sales therein. (g) Where paragraph 7(f) provides that Private Roads A, B I and B2 Improvements are to be undertaken in conjunction with the construction of a building, such Private Roads A, B I and B2 Improvements shall be commenced and constructed in accordance with the conditions of Site Plan Approval and the Site Plan Agreement respecting such building, and shall be completed to the satisfaction of the Director of Planning Services prior to the occupancy of such building, except that any top course of asphalt and any landscaping shall be completed in - 9 - accordance with the timing provided for in the applicable conditions of Site Plan Approval and Site Plan Agreement. No such building shall be occupied for the purpose of conducting retail sales therein until the Private Roads A, B I and B2 Improvements required to be completed prior to its occupancy pursuant to paragraph 7(f) and this paragraph 7(g) have been completed to the satisfaction of the Director. (h) Players/West Diamond agree that they shall construct and maintain the Phase Works respecting Private Road B2 as set out in paragraph 7(f) to the satisfaction of the Director in order to provide a temporary road to service the Severed Lands until such time as a building permit is issued for a large format retail store to be constructed on Parts 2 I, 39 and 44 on Plan 40R-24933 in accordance with the Concept Plan for Development. Players/West Diamond shall commence the reconstruction of Private Road B2 in order to complete the applicable Private Road B2 Improvements set out as the Final Construction Works in paragraph 7(f) in accordance with the conditions of Site Plan Approval and the Site Plan Agreement for such large format retail store, and shall complete the same prior to the occupation of the large format retail store on Parts 2 1,39 and 44 on Plan 40R- 24933 for the purpose of conducting retail sales to members of the public, except that the top course of asphalt and landscaping shall be completed in accordance with the timing provided for in the applicable conditions of Site Plan Approval and Site Plan Agreement. The Municipality acknowledges and agrees that Private Road B2 may be closed to use for other than-construction access purposes during the construction of a large format retail store on Parts 2 I, 39 and 44 on Plan 40R- 24933 and/or during the aforesaid reconstruction of Private Road B2. INCORPORATION OF PLAYERSIWEST DIAMOND PRINCIPLES AND STEVENS ROAD EXTENSION AGREEMENT 8. The Players/West Diamond Principles and the Stevens Road Extension Agreement are incorporated by reference in their entirety in the operative part of this Subdivision/Consent Agreement. Each of the Municipality and Players/West Diamond covenants to observe and perform their respective obligations under the Players/West Diamond Principles and the Stevens Road Extension Agreement, as each may be amended, restated, modified, supplemented by them and/or assigned and assumed from time to time. Notwithstanding the foregoing, the Players/West Diamond Principles, and the Stevens Road Extension Agreement continue in force and effect and time continues to be of their essence. POSTPONEMENT OF MORTGAGE 9. The Mortgagee hereby postpones its rights under the Mortgage registered in the Land Registry Office as Instrument No. DR265437 to the rights of the Municipality under the - 10- Players/West Diamond Principles, the Stevens Road Extension Agreement and this Subdivision/Consent Agreement. The parties acknowledge that the Mortgagee has executed this Subdivision Agreement only for the purpose of effecting the aforesaid postponement. SOLICITOR'S CERTIFICATE REQlIIRED 10. On or prior to the execution of this Subdivision/Consent Agreement by the Municipality, Players/West Diamond shall provide the Municipality with a letter signed by an Ontario Solicitor and addressed to the Municipality certifying as to the title to the Players/West Diamond Lands and setting out the names of all persons having an interest in them and the nature of their interests. NOTICE II. If any notice or other document is required to be or may be given by the Municipality or by any official of the Municipality to Players/West Diamond by this Subdivision/Consent Agreement, such notice shall be transmitted by telefax, mailed by first class prepaid post or delivered to: Players/: West Diamond Players Business Park Ltd. 1700 Langstaff Road Suite 2003 Concord, ON L4K 3S3 Attention: Mr. Bruce Fischer West Diamond Properties Inc. 30 Floral Parkway Concord, ON L4K 4RI Attention: Mr. Robert DeGasperis OR, Municipality: The Municipality of CIa ring ton 40 Temperance Street Bowmanville, ON L I C 3A6 Attention: Director of Planning Services Fax: 905-623-0830 or such other telefax number or address of which any party has notified the other parties in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this Agreement and if telefaxed or delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) shall be deemed to have been received at the time of delivery or transmission and if mailed by pre-paid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the mailing thereof. Notwithstanding the foregoing, in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit - 11 - set out above, then such notice shall be sent by an alternate means of transportation which may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. FORCE MAJElJRE 12. In this Subdivision/Consent Agreement, the term "Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military authority, acts of public enemies, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water, earthquake or other casualty, or an Act of God and any act, omission or event whether of the kind herein enumerated or otherwise not within the control of Player/West Diamond, none of which has been caused by the deliberate default or act or omission by such party and none of which has been avoidable by the exercise of reasonable effort or foresight by such party. Player/West Diamond or the Municipality, as the case may be, shall notify the other parties to this Subdivision/Consent Agreement of the commencement, duration and consequence (so far as the same is within the knowledge of Player/West Diamond or the Municipality, as the case may be) of any Force Majeure affecting the performance of any of its obligations hereunder within thirty (30) days of gaining such knowledge. ACTING REASONABLY 13. All discretionary decisions by officials of the Municipality referred to in this Subdivision/Consent Agreement shall be deemed to be qualified by the words "acting reasonably". REIMBURSEMENT OF MlJNICIPALITY'S COSTS 14. Players/West Diamond shall pay to the Municipality its reasonable legal costs and disbursements incurred in preparing, settling and registering on titles the First Principles of Understanding Amendment Agreement dated June 25, 2007, the Servicing Agreement between the Municipality, Players/West Diamond, 1613881 Ontario Inc. and Royal Bank of Canada dated June 25, 2007, this Subdivision/Consent Agreement, the Assumption Agreement between the Municipality, Players/West Diamond, 1613881 and Royal Bank of Canada .dated June 25, 2007, the Assumption Agreement between the Municipality, Players/West Diamond, 1613881 Ontario Inc., and Royal Bank of Canada dated June 25, 2007, the Assumption Agreement between the Municipality, Players/West Diamond, 1613881 Ontario Inc., and 672003 Ontario Limited dated June 25, 2007, Conditions of Site Plan Approval issued by the Municipality for any development(s) on the Players/West Diamond Land and Site Plan Agreement(s) made as a condition of Site Plan Approval(s). - 12 - CHANGES IN NllMBER OR GENDER 15. This Subdivision/Consent Agreement shall be read with all changes of gender or number required by the context in which the words or figures in question appear. ENllREMENT 16. This Subdivision/Consent Agreement shall enure to the benefit of and be binding on the parties hereto, and their respective successors and assigns. STATlJS STATEMENT 17. Within ten (10) days of receiving a written request from Players/West Diamond, the Municipality shall provide a written statement either confirming that Players/West Diamond is in good standing and not in default of any provisions of this Subdivision/Consent Agreement, or setting out the manner and extent to which Players/West Diamond is in default. AUTHORITY OF MllNICIPALITY 18. Players/West Diamond acknowledges and agrees that the Municipality has authority to enter into this Subdivision/Consent Agreement, that every provision hereof is authorized by the law and fully enforceable by the parties, and that this Subdivision/Consent Agreement is executed by the Municipality in reliance on the acknowledgement and agreement of Players/West Diamond as aforesaid. REGISTRATION OF SlIBDIVISION/CONSENT AGREEMENT ON TITLE TO PLAYERS/WEST DIAMOND LANDS 19. Players/West Diamond hereby consents to the registration of a Notice of this Subdivision/Consent Agreement on the title to the Players/West Diamond Lands. TIME OF THE ESSENCE 20. Time is of the essence of this Subdivision/Consent Agreement. - 13 - IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED In the presence of: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk We have authority to bind the Corporation. PLAYERS BUSINESS PARK LTD. Name: Title: Name: Title: I/We have authority to bind the Corporation WEST DIAMOND PROPERTIES INC. Name: Title: Name: Title: I/We have authority to bind the Corporation ROYAL BANK OF CANADA Name: Title: Name: Title: I/We have authority to bind the Corporation SCHEDULE "A" THIS SCHEDULE IS SCHEDULE "A" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-]46 of The Corporation of the Municipality of Clarington enacted and passed the 25th day of June, 2007. DescriDtion of the Plavers/West Diamond Lands The lands and premises more particularly described as comprising Part of Lot ]7, Concession ], Part of Lot ] 7, Concession 2 and Part of the Road Allowance between Concessions] and 2 (closed by Instrument No. DNP2377, Geographic Township of Darlington, Municipality of Clarington, the Regional Municipality of Durham, now shown as Parts I to 48, inclusive, on a plan of survey of record deposited as Instrument No. 40R-24933 in the Land Registry Office for the Land Titles Division of Durham (No. 40). SCHEDULE "8" THIS SCHEDULE IS SCHEDULE "8" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-146 of The Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007. Severed Lands-West Parcel The lands and premises more particularly described as Parts 1,2,3,7,8, 11,30,31,33, 34, 35, 36, 40, 41 and 43 on Plan 40R-24933 registered in the Land Registry Office for the Land Titles Division of Durham (No. 40). Severed Lands-East Parcel The lands and premises more particularly described as Parts 9, 12, 17, 19, 20, 21, 22, 23, 24, 28, 29, 32, 37, 38, 39, 43, 44, 46, 47 and 48 on Plan 40R-34933 registered in the Land Registry Office for the Land Titles Division of Durham (No. 40). SCHEDULE "C" THIS SCHEDULE IS SCHEDULE "C" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-]46 of The Corporation of the Municipality of Cia ring ton, enacted and passed the 25th day of June, 2007. Provisional Consent of the Rel!:ion of Durham Land Division Committee (Insert Provisional Consent) SCHEDULE "D" THIS SCHEDULE IS SCHEDULE "D" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-]46 of The Corporation of the Municipality of Cia ring ton, enacted and passed the 25th day of June, 2007. Description of Boswell Drive Works The Boswell Drive Works are shown on the following drawings as finally approved by and on file with the Municipality's Director of Engineering Services: Drawing Title Drawing Dated Last Revision Prepared By No. Date General Notes G-]Ol October February ]6, Sernas Associates 2006 2007 Overall Site Servicing SS-lO ] October February] 6, Sernas Associates Plan 2006 2007 Legends and S-]Ol January February]6, Sernas Associates Abbreviations 2004 2007 Boswell Drive: From P-]Ol October February ]6, Sernas Associates ST A 0+932.066 to ST A 2006 2007 1+035.000 Boswell Drive: From P-102 October February] 6, Sernas Associates ST A 1+0.35.000 to ST A 2006 2007 1+210.000 Boswell Drive: From P-103 October February 16, Sernas Associates STA 1+210.00 to STA 2006 2007 1+366.219 Boswell Drive Pavement PM-lOI August February 16, Sernas Associates Marking Plan 2003 2007 Landscape Plan L-I March 21, June 15,2007 TerraPlan Landscape 2005 Architects Inc. For clarity, the Boswell Drive Works do not include a sidewalk on the westerly side of the Boswell Drive right-of-way. Schedule "E" Page 1 SCHEDULE "E" THIS SCHEDULE IS SCHEDULE "E" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-146 of The Corporation of the Municipality ofClarington, enacted and passed the 25th day of June, 2007. BOSWELL DRIVE WORKS 1. Works Required (1) Players/West Diamond at its expense shall construct, install, supervise and maintain the Boswell Drive Works including all connections, alterations, adjustments and transitions required to suit existing systems or lands in accordance with the Municipality's Design Criteria and Standard Drawings, and the Engineering Drawings, all to the approval ofthe Director: (a) A storm sewer system for the removal of upstream storm water and storm water originating within the Players/West Diamond Lands, including storm sewer mains and connections, manholes, service connections, catch- basins and rear yard catch-basins and leads, open channels, storm outfalls and structures and any other appurtenances and oversizing as may be required (the "Storm Sewer System"). (b) A stormwater management system consistent with the "Master Drainage Plan", complete with overland flow routes, detention and retention facilities, quality control devices, outlets, erosion and sedimentation control measures and any other necessary facilities as required (the "Stormwater Management System"). (c) A road system on the lands described as Part 4 on Plan 40R-24933 and Blocks 96 and 97 on Registered Plan of Subdivision 40M-1904 which accommodates the servicing of the Players/West Diamond Lands, providing for all vehicular and pedestrian traffic, including the removal or installation of turning circles, and the Works required within the road, including suitable subgrade, subbase and base granular materials, subdrains, base and top stage curbs and gutters, base and surface asphalt, traffic control and street name signs and sidewalks and all streetscape components including street trees, boulevard topsoil and sodding, street lighting, gravel driveway aprons, and where sidewalks exist, gravel driveway aprons with paved surfaces between curb and sidewalk (the "Road System"). Schedule "E" Page 2 (d) The above works shall include all urban roadwork components including sidewalks, curbs, granular material and asphalt pavement, and any necessary storm and sanitary sewer mains, watermains, connections, street lighting, street trees, utilities, including oversizing of works and any temporary or permanent works, transitions, tapers and connections, fencing, signage, topsoil and sodding and restoration, and any other related works deemed necessary by the Director. Such works shall be consistent with the Boswell Drive Works Drawings referred to in Schedule "D", including any revisions as finally approved by and on file with the Director. (e) A street lighting system which provides illumination of roads and walkways to serve the said Lands including all connections, energy and maintenance costs, appurtenant apparatus and equipment, in the locations as approved by the Director (the "Street Lighting System"). (t) Related Works including grading, landscaping, fencing, noise attenuation measures, walkways (including lighting) and other miscellaneous Works shown on the Engineering Drawings and Grading and Drainage Plan (the "Related Works"). PHASING OF THE WORKS The Works shall be divided into the following stages, unless approved by the Director: 1.(2) INITIAL WORKS Storm Sewer System including all appurtenances; initial roadworks including subgrade, subbase and base granular materials, subdrains, base curbs, base asphalt, traffic control and street name signs of the Road System; and grading (collectively called the "Initial Works"). 1.(3) STORMWATER MANAGEMENT SYSTEM 1.(4) STREET LIGHTING SYSTEM Schedule "E" Page 3 1.(5) FINAL WORKS final roadworks including top curbs and gutters, surface asphalt, sidewalks, street trees, boulevard topsoil and sodding and driveway aprons of the Road System; and landscaping works, walkways and any remaining works not outlined in paragraphs 1.(2), 1.(3) and 1.(4) above. 1.(6) From the date of issuance of an "Authorization to Commence Works" (as hereafter defined) until the date of issuance of a "Certificate of Acceptance" (also as hereafter defined) of them Players/West Diamond shall be fully responsible for the construction and maintenance of the Boswell Drive Works including the cost thereof in accordance with the provisions of this Subdivision/Consent Agreement. After the issuance of a Certificate of Acceptance, the Works referred to in such Certificate shall be the responsibility of the Municipality. Players/West Diamond shall apply for an Authorization to Commence Works no later than the day on which an application is made for the issuance of a building permit to construct a large format retail store on the Players/West Diamond Lands. 2. Plavers/West Diamond's Enl!:ineer At all times until this Subdivision/Consent Agreement is released, Players/West Diamond shall retain Players/West Diamond's Engineer who shall perform the duties set out in Schedule "H" to this Subdivision/Consent Agreement. On the execution of this Subdivision/Consent Agreement and on each occasion on which a new Players/West Diamond's Engineer is retained, forthwith after retaining Players/West Diamond's Engineer, Players/West Diamond shall give the Director written notice of the name, address and telefax number of Players/West Diamond's Engineer. No partnership, association of persons or corporation shall be retained as Players/West Diamond's Engineer without the prior written approval of the Director. All notices to be given to Players/West Diamond's Engineer are properly given if given by personal service, by telephonic facsimile communication, or first class prepaid post addressed to Players/West Diamond's Engineer at the address or telefax number provided to the Director pursuant to this paragraph. Forthwith after the Director gives Players/West Diamond written notice requiring it to do so, Players/West Diamond shall give the Director written notice advising him whether or not the approved Players/West Diamond's Engineer continues to be retained by Players/West Diamond. Schedule "E" Page 4 3. Desh!:n of Boswell Drive Works (I) Players/West Diamond covenants and agrees that the design of the Boswell Drive Works shall conform with all applicable legislation and the Municipality's Design Criteria and Standard Detail Drawings. In the event of any dispute as to such requirements or their interpretation, the dispute shall be resolved by the Director whose decision shall be final. (2) Players/West Diamond shall provide and submit to the Director all necessary Engineering Drawings for the Boswell Drive Works. Players/West Diamond shall obtain all approvals for the construction and installation of the Boswell Drive Works as required by this Subdivision/Consent Agreement. 4. Enl!:ineerinl!: Drawinl!:s (I) Prior to the issuance of any Authorization to Commence Works, Players/West Diamond shall obtain the written approval of the Director of the original copy of all drawings of the Boswell Drive Works (the "Engineering Drawings"). If construction and installation of the Boswell Drive Works has not commenced within two (2) years from the date of approval of the Engineering Drawings, the Engineering Drawings shall be resubmitted to the Director for his reconsideration and approval after any revisions required by the Director have been made to them (the "Reapproved Engineering Drawings"). From and after the approval by the Director of the Reapproved Engineering Drawings, they shall be deemed to be the Engineering Drawings for the purpose of this Subdivision/Consent Agreement, and thereafter all Boswell Drive Works shall be constructed and installed in accordance with them. Players/West Diamond hereby irrevocably assigns to the Municipality without cost to the Municipality the right to use and to reproduce the Engineering Drawings and all reports that relate in whole or in part to the Boswell Drive Works which have been prepared by or for Players/West Diamond in connection with the performance of Players/West Diamond's obligations under this Subdivision/Consent Agreement. Players/West Diamond acknowledges that approval of the Engineering Drawings or reports by the Director shall not relieve Players/West Diamond from its obligation to satisfy all requirements of or made pursuant to this Subdivision/Consent Agreement. (2) Prior to the issuance of any Authorization to Commence Works, Players/West Diamond shall provide the Director without cost to the Municipality Players/West Diamond's Engineer's (I) written acknowledgement that the Engineering Drawings may be used and/or reproduced by the Municipality without cost or prior approval or permission, (2) written permission for the Municipality's officers, employees, agents, contractors and supplier to use the specifications, Schedule "E" Page 5 data, drawings, records and reports whether completed or in progress of completion in satisfaction of Players/West Diamond's obligations under the provisions of this Subdivision/Consent Agreement without cost or prior approval or permission, and (3) written undertaking to deliver to the Director the original copy of the Engineering Drawings forthwith after being given written notice by the Director requiring Players/West Diamond's Engineer to do so, whether or not Players/West Diamond's Engineer's fees and disbursements in respect of any of them have been paid. Prior to each occasion on which a new Players/West Diamond's Engineer is retained by Players/West Diamond and approval of the Director is sought, Players/West Diamond shall provide the Director with a similar written acknowledgement and written permission of the new Players/West Diamond's Engineer, provided that if the new Players/West Diamond's Engineer is to be retained by the Director on behalf of Players/West Diamond, the Director shall obtain from the prospective Players/West Diamond's Engineer the aforesaid written acknowledgement and permission. Forthwith after the Director gives Players/West Diamond's Engineer written notice requiring them or it to do so, copies of the Engineering Drawings, computer disks, specifications, data, drawings, records and reports referred to in this paragraph shall be provided to the Director without cost to the Municipality. 5. Stal!:inl!: of Construction of Works Not used 6. Approval of Schedule of Works Prior to the issuance of any Authorization to Commence Works respecting any of the Boswell Drive Works, Players/West Diamond shall obtain the written approval of the Director of a draft schedule (the "Schedule of Works") which sets out the time at which, and the sequence in which, Players/West Diamond proposes to construct and install the Boswell Drive Works. 7. Approval of Boswell Drive Works Cost Estimates The Municipality acknowledges that the Director has approved the "Boswell Drive Works Cost Estimates" contained in Schedule "[". 8. Requirements for Authorization to Commence Works Players/West Diamond shall not commence the construction or installation of any of the Boswell Drive Works without the written permission of the Municipality (the "Authorization to Commence Works"). Players/West Diamond shall only commence the Schedule "E" Page 6 construction and installation of those Boswell Drive Works permitted by the Authorization to Commence Works. 9. Inspection and Stop Work Players/West Diamond shall ensure that every contract that may be made by Players/West Diamond with any contractor to construct or install any of the Boswell Drive Works shall provide that employees or representatives of the Municipality may, at any time, inspect the Boswell Drive Works undertaken by such contractor and shall require the contractor to comply with stop work orders given by the Director pursuant to this paragraph 9. The Director may give Players/West Diamond a written order to stop the construction or installation of any of the Boswell Drive Works that is being undertaken by giving written notice either to Players/West Diamond or to Players/West Diamond's Engineer to that effect if in the Director's opinion either (1) the Boswell Drive Works are not being undertaking such that a completed construction and installation of all the Boswell Drive Works satisfactory to the Municipality in accordance with this Subdivision/Consent Agreement will result, or (2) the Performance Guarantee and the Security for the Maintenance Guarantee required to be provided pursuant to this Subdivision/Consent Agreement in respect of the Boswell Drive Works has not been deposited or is not maintained in good standing. Players/West Diamond shall comply with the stop work order forthwith after it is given by the Director in accordance with this paragraph 9 by requiring Players/West Diamond's contractor and sub-contractors who are constructing and installing the Boswell Drive Works or components thereof in question and are referenced in the order to comply with it forthwith. A stop work order may be given to Players/West Diamond by giving to Players/West Diamond's Engineer by personal service on Players/West Diamond's Engineer or any representative of Players/West Diamond's Engineer, by prepaid first class post addressed to Players/West Diamond's Engineer, or by telefax to Players/West Diamond's Engineer at the address and telefax number referred to in paragraph 2 of this Schedule. 10. Construction in Accordance with ED!~ineerinl!: Drawinl!:s The Boswell Drive Works shall be constructed and installed in accordance with the Engineering Drawings as approved by the Director. No deviation from the Engineering Drawings is permitted unless such deviation is authorized in writing by the Director before it is undertaken. All construction and installation of the Boswell Drive Works shall be undertaken and carried out by Players/West Diamond or by Players/West Diamond's contractor, as the case may be, in accordance with the regulations for construction set out in Schedule "H" to this Subdivision/Consent Agreement. Schedule "E" Page 7 11. Sequence of Construction of Works Following the issuance of an Authorization to Commence Works, Players/West Diamond shall proceed in good faith to construct and install all of the Boswell Drive Works referred to in the Authorization to Commence Works continuously and in accordance with the timing and sequence therefore set out in the Schedule of Works. 12. Completion Time for Construction of Works Within twelve (] 2) months of the date of the issuance of an Authorization to Commence Works, Players/West Diamond shall complete the construction and installation of the Boswell Drive Works authorized in such Authorization to Commence Works. 13. Additional Work Until the conclusion of the Maintenance Guarantee Period referable thereto, if in the opinion of the Director, any incidental work is required to provide for the adequate operation, functioning and maintenance of any of the Boswell Drive Works, Players/West Diamond, at its cost, shall construct and install such additional facilities and perform such additional work as the Director may request from time to time by written notice given to Players/West Diamond. 14. Incomplete or Faultv Works and Liens (] ) Without derogating from the other provisions of this Subdivision/Consent Agreement, it: in the opinion of the Director, (I) Players/West Diamond is not constructing and installing or causing to be constructed or installed any of the Boswell Drive Works required by this Subdivision/Consent Agreement so that it or they will be completed within the time specified for such completion in the Schedule of Works, or (2) the Boswell Drive Works or any component(s) thereof are being improperly constructed or installed, or (3) Players/West Diamond neglects or abandons the said Boswell Drive Works or any part of them before completion, or (4) unreasonable delay occurs in the construction or installation of the Boswell Drive Works, or (5) for any other reason the Boswell Drive Works are not being constructed or installed properly and promptly and in full compliance with the provisions of this Subdivision/Consent Agreement, or (6) Players/West Diamond neglects or refuses to reconstruct or reinstall any of the Boswell Drive Works or component(s) thereof which may be rejected by the Director as being defective, deficient or unsuitable, or (7) Players/West Diamond otherwise defaults in performance of this Subdivision/Consent Agreement, the Director may give Players/West Diamond notice in writing of his opinion Schedule "E" Page 8 respecting any such matter. Following the later to occur of the expiry of ten (10) business days, excluding Saturdays and Sundays and statutory holidays following the giving of such notice plus the expiry of any additional period as may be specified in the notice given to Players/West Diamond by the Director, the Municipality, at the cost and expense of Players/West Diamond, may engage a contractor, supplier of services or materials and such workmen, and purchase such services, supplies and/or services as in the opinion of the Director are required for the completion of the construction and installation of the Boswell Drive Works and all components thereof and the performance of all covenants of Players/West Diamond relating to the Boswell Drive Works as provided by this Subdivision/Consent Agreement. In cases of emergency or urgency, or in order to preserve the integrity of the Boswell Drive Works or any component thereof as determined by the Director in his absolute discretion, any deficiency(s) or defect(s) in the Boswell Drive Works, and any failure to complete the Boswell Drive Works and all components thereof in accordance with this Subdivision/Consent Agreement may be corrected, remedied or completed by the Municipality, its contractors, suppliers and employees at the cost of Players/West Diamond without prior notice to Players/West Diamond, provided that forthwith after the Municipality so acts, the Director shall give written notice to Players/West Diamond of his determination as aforesaid, describing the action taken by the Director, and the cost of correcting or remedying the deficiency or default in question or the cost of completing the Boswell Drive Works and the components thereof, as the case may be. For the purposes of this paragraph 14(1) the cost of any work which the Municipality undertakes under this paragraph 14( I) shall be determined by the Director in his absolute discretion. It is understood and agreed by the Parties that the costs for which Players/West Diamond is responsible under this paragraph 14( I) shall include a management fee payable to the Municipality either of thirty (30%) percent of the contractor's charges to the Municipality (including any charges for overhead and profit) or, if such work is undertaken by the Municipality, thirty (30%) percent of all costs incurred by the Municipality to correct or remedy the deficiencies or defect or to complete the Boswell Drive Works and all components thereof as the case may be. Players/West Diamond shall pay the Municipality an amount equal to the cost of all Boswell Drive Works and components thereof: and the cost of correcting or remedying all deficiencies and defects referred to in this paragraph 14( I) which have been incurred by the Municipality or are estimated in the Director's absolute discretion to be likely to be incurred by the Municipality forthwith after the Director gives Players/West Diamond written demand for payment of such cost. If the amount paid is based on the Director's estimate as aforesaid, forthwith after actual costs are known the Director shall give Players/West Diamond written notice thereof. If the actual costs are more than the estimated costs, Players/West Schedule "E" Page 9 Diamond shall forthwith pay the Municipality an amount equal to the difference between them. If the actual costs are less than the estimated costs, the Municipality shall forthwith refund the difference between them to Players/West Diamond. (2) In the event (1) a claim for a lien in respect of the Boswell Drive Works or any component thereof is registered against the title to any land vested in or which should have been vested in the Municipality or is filed with the Municipality, or (2) the Municipality receives written notice of a claim of an alleged beneficiary of a statutory trust under the Construction Lien Act, such registration, filing or notice shall constitute a default in performance by Players/West Diamond of this Subdivision/Consent Agreement. In any such case, the Director may notify Players/West Diamond in writing of such default. If Players/West Diamond fails to discharge the lien or the claim as the case may be within ten (10) business days, excluding Saturdays, Sundays and statutory holidays, after the giving of such notice plus any further period of time as may be specified in the notice, then the Municipality in its absolute discretion may (1) pay the full amount of the claim and security for costs into a court of competent jurisdiction in order to obtain an order vacating such claim for lien, (2) discharge the claim in full by paying the amount claimed or in part by paying a portion thereof, or (3) draw the full amount of the claim in cash from a letter of credit deposited with the Municipality as the security for the Boswell Drive Performance Guarantee and hold the cash in a deposit account of the Municipality as the security for the Boswell Drive Performance Guarantee in respect of the claim in question. The Municipality may draw on and appropriate the whole or any portion(s) of the Performance Guarantee and the Security for the Maintenance Guarantee for the purpose of making payment under this paragraph 14(2). Players/West Diamond shall indemnify the Municipality against the costs and expense incurred by the Municipality in making a payment pursuant to this paragraph 14(2) forthwith after the Director gives Players/West Diamond written notice requiring him to do so. In the event that the Municipality draws on and appropriate any portion of the Boswell Drive Performance Guarantee or the Security for the Maintenance Guarantee for any of the aforesaid purposes, forthwith after the Director gives written notice to Players/West Diamond requiring it to do so, Players/West Diamond shall reinstate the Boswell Drive Performance Guarantee and/or the Security for the Maintenance Guarantee, as the case may be, to the full amount(s) required under the provisions of this Subdivision/Consent Agreement. Schedule "E" Page 1 0 15. Acknowledl!:ement Respectinl!: Emerl!:encv, etc. Repairs Players/West Diamond acknowledges that if in cases of emergency or urgency or in order to protect the integrity of the Boswell Drive Works or any component thereof, the Director acts to correct, remedy or repair any deficiency(s) or defect(s) in the Boswell Drive Works, neither on entry on the Boswell Drive Works or any portion of them nor any such action by the Director or any person authorized to undertake the same by the Director shall be deemed to be an acceptance of any of the Boswell Drive Works by the Municipality, nor an assumption by the Municipality of any responsibility or liability in connection therewith, or a release by the Municipality of Players/West Diamond from any of its obligations under this Subdivision/Consent Agreement. 16. Damal!:e to Existinl!: Services Forthwith after written demand therefore is given by the Director to Players/West Diamond, Players/West Diamond shall pay to or to the direction of the Municipality, the cost of repairing any damage to any property or services of the Municipality, the Region, Hydro One or any utility authority or company or (the "Damaged Services") including without limiting the generality of the foregoing, any road(s), water, electrical, gas, telephone, cable television and sewer systems, and the cost of relocating any Damaged Services, caused by or resulting from the construction or installation of any of the Boswell Drive Works, provided that all such repairs and or relocation(s) are completed to the satisfaction of the Director, the Region and Hydro One or the relevant utility authority or company which owns or is responsible for the Boswell Drive Works, property or services in question. 17. Use of Boswell Drive Works bv Municipalitv The parties hereto acknowledge and agree that any of the Boswell Drive Works once constructed may be used by The Municipality and such other person(s) who is (are) authorized by the Municipality for any of the purposes for which the Boswell Drive Works are designed, without interference by Players/West Diamond, and without the payment of any fee or compensation to Players/West Diamond, and for such purposes the Municipality and other person(s) authorized by the Municipality may enter upon the portion of Players/West Diamond Lands on which any of the Boswell Drive Works are located. The parties hereto also acknowledge and agree that the Boswell Drive Works may be used by Players/West Diamond for construction access to any portion of the Players/West Diamond Lands. Schedule "E" Page 11 18. Requirements for Certificate of Completion Players/West Diamond acknowledges and agrees that the construction and installation of any of the Boswell Drive Works authorized in an Authorization to Commence Works shall not be deemed to be completed for the purposes of this Subdivision/Consent Agreement until the Director has provided Players/West Diamond with written certificate that such is the case (the "Certificate of Completion"). In addition to satisfying the other requirements of this Subdivision/Consent Agreement respecting its issuance, a Certificate of Completion shall not be issued until such of the Boswell Drive Works authorized by the Authorization to Commence Works for which a Certificate of Completion is required, have been inspected by the Director, and he is satisfied such Boswell Drive Works have been constructed and installed in accordance with the Engineering Drawings and has received all certificates and confirmations from Players/West Diamond's Engineer as provided for in this Subdivision/Consent Agreement. 19. Requirements for Certificate of Acceptance Players/West Diamond acknowledges and agrees that the none of the Boswell Drive Works covered by a Certificate of Completion shall be accepted, nor deemed to be accepted for the purpose of this Subdivision/Consent Agreement until the Director has provided Players/West Diamond with written certificate that the Boswell Drive Works in question have been accepted (the "Certificate of Acceptance"). If the Director is of the opinion that the Boswell Drive Works in question have been properly maintained and all deficiencies and defects in such Boswell Drive Works have been remedied and corrected by Players/West Diamond on behalf of the Municipality, the Director shall provide Players/West Diamond with a Certificate of Acceptance of the relevant Boswell Drive Works. 20. Ownership of Boswell Drive Works bv Municipalitv For greater certainty, Players/West Diamond acknowledges and agrees that the Municipality is the owner of all of the Boswell Drive Works covered by a Certificate of Acceptance. Players/West Diamond shall have no right or claim thereto, other than as specifically agreed to between Players/West Diamond and the Municipality in writing. 21. Property Damal!e Guarantee Prior to the issuance of an Authorization to Commence Works by the Director for the construction and installation of the Boswell Drive Works, Players/West Diamond shall deposit Five Thousand ($5,000.00) Dollars with the Municipality which may be drawn upon by the Municipality to indemnify itself against any cost that the Municipality Schedule "E" Page 12 Incurs in repairing damage caused by Players/West Diamond to any property of the Municipality in constructing and installing any of the Boswell Drive Works. The deposit or so much of it as is not drawn upon for the aforesaid purpose shall be repaid by the Municipality to Players/West Diamond without interest when the Security for the Maintenance Guarantee of the Boswell Drive Works is repaid by the Municipality to Players/West Diamond. Schedule "F " Page 1 SCHEDULE "F" THIS SCHEDULE IS SCHEDULE "F" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-146 of The Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007. BOSWELL DRIVE WORKS PERFORMANCE GUARANTEE 1. Boswell Drive Works Performance Guarantee Reauired (a) On or prior to the execution of this Subdivision/Consent Agreement by the Municipality, Players/West Diamond shall deposit with the Municipality, cash or an irrevocable and unconditional letter of credit issued by a bank listed in Schedule "I" or "II" of the Bank Act, acceptable to the Municipality's Director of Finance/Treasurer, and in a form and containing terms and conditions satisfactory to the Municipality's Director of Finance/Treasurer ("Boswell Drive Works Performance Guarantee"). The Boswell Drive Works Performance Guarantee shall be in the amount determined by the Director to be the amount required to secure to the Municipality the performance by Players/West Diamond of its covenants contained in this Subdivision/Consent Agreement to construct and install the Boswell Drive Works. (b) Without limiting the generality of the foregoing, in making his determination, the Director shall have regard for the "Boswell Drive Works Cost Estimate" or the "Revised Boswell Drive Works Cost Estimate" (both terms as hereafter defined) whichever is applicable, for the construction and installation of the Boswell Drive Works which either application has been made by Players/West Diamond to the Director for the issuance of an Authorization to Commence Works or an Authorization to Commence Works has been issued by the Director. (c) If from time to time following the issuance of any Authorization to Commence Works the Director is of the opinion that the amount of the Boswell Drive Works Performance Guarantee should be increased in order to protect the Municipality's interests under this Subdivision/Consent Agreement, the Director shall consider and, acting reasonably, approve a Boswell Drive Revised Works Cost Estimate which on his approval shall be deemed to be the Boswell Drive Works Cost Estimate for the purposes of this Subdivision/Consent Agreement. Forthwith after the Director approves a Boswell Drive Revised Works Cost Estimate, he shall give to Players/West Diamond written notice of his decision and a copy of the Schedule "F " Page 2 Boswell Drive Revised Works Cost Estimate. Players/West Diamond shall deposit with the Municipality cash or an unconditional and irrevocable letter of credit in such amount issued by a bank listed in Schedule "I" of the Bank Act that is acceptable to the Municipality's Director of Finance/Treasurer and which contains terms satisfactory to the Municipality's Director of Finance/Treasurer. (d) In the event that Players/West Diamond does not increase the amount of the Boswell Drive Works Performance Guarantee for a period of thirty (30) days following the giving of written notice by the Director to Players/West Diamond requiring an increase in the amount of the Boswell Drive Works Performance Guarantee, any Authorization to Commence Work that has been issued shall terminate. (e) The Director shall give Players/West Diamond written notice that the Boswell Drive Works have been completed. No later than the expiry of the ten (10) day period following the date on which this written notice is given to Players/West Diamond of the as-constructed costs of the Boswell Drive Works. If the as-constructed costs of these Boswell Drive Works as determined by the Director ("As-Constructed Costs") exceeds the then current Boswell Drive Work Cost Estimate, forthwith after written demand is given to it by the Director, Players/West Diamond shall pay to the Municipality any amount by which such As-Constructed Costs exceeds the then current Boswell Drive Works Cost Estimate of the As- Constructed Costs of the Boswell Drive Works. 2. Use of Boswell Drive Works Performance Guarantee (a) From time to time the Municipality may appropriate the whole or anyone or more portions of the Boswell Drive Works Performance Guarantee up to an amount(s) determined by the Director, which in aggregate shall not exceed the amount(s) which in the opinion of the Director is required to remedy Players/West Diamond's breach(es) or default(s) of or under the provisions of the Subdivision/Consent Agreement. Forthwith after making each such appropriation, the Director shall give Players/West Diamond written notice thereof and Players/West Diamond shall forthwith reinstate the Boswell Drive Works Performance Guarantee to the full amount required by this Subdivision/Consent Agreement. (b) If the whole or any portion of the Boswell Drive Works Performance Guarantee is appropriated by the Municipality as aforesaid and is not fully expended by the Municipality, Players/West Diamond agrees with the Schedule "F " Page 3 Municipality that Players/West Diamond will not require the Municipality to pay interest on any portion of it for the period in which it is held by the Municipality and deposited by the Municipality in an interest bearing account in the name of the Municipality, in the event that an amount equal to the appropriate or any part of it is paid by the Municipality either to Players/West Diamond, to the bank which issued the letter of credit for deposit as the Boswell Drive Works Performance Guarantee, as directed by Players/West Diamond or the bank, as the case may be. 3. Indemnification of Municipalitv Players/West Diamond shall defend, indemnify and save the Municipality harmless from and against all actions, claims, liabilities, losses, damages and expenses including reasonable legal fees which arise by reason of or are caused in whole or in part by the making and/or the implementation of this Subdivision/Consent Agreement, or the design, construction and installation, supervision of construction and installation, inspection, and/or maintenance of the Boswell Drive Works by Players/West Diamond, its employees, contractors, suppliers of services or materials, Players/West Diamond's Engineer, Players/West Diamond's Engineer's employees, and Players/West Diamond's licensees. 4. Insurance Players/West Diamond shall obtain and maintain insurance and deposit the proof thereof as required by and in accordance with Schedule "I" of this Subdivision/Consent Agreement. 5. Maintenance Guarantee Required (1) From the date of issuance of an Authorization to Commence the Boswell Drive Works until the date of issuance of a Certificate of Acceptance of the Boswell Drive Works or particular component(s) of the Boswell Drive Works, Players/West Diamond agrees with the Municipality to promptly correct, remedy, repair or replace any portion or component of the Boswell Drive Works in question that the Director determines to be defective or deficient having regard to the provisions of this Subdivision/Consent Agreement at Players/West Diamond's cost (the "Maintenance Guarantee"). The amount of the required Maintenance Guarantee shall be determined in accordance with paragraph 5(1) of this Schedule. Players/West Diamond shall be given written notice of any such deficiency or defect by the Director forthwith after he identifies the same. Players/West Diamond shall deposit or leave on deposit with the Municipality, cash or an irrevocable and unconditional letter of credit by a bank listed in Schedule "I" of the Bank Act acceptable to the Municipality's Director of Schedule "F " Page 4 Finance/Treasurer and containing terms satisfactory to the Municipality's Director of Finance/Treasurer, as security for the Maintenance Guarantee (the "Security for the Maintenance Guarantee"). (2) The Maintenance Guarantee expires on the later to occur of (I) the date of issuance of the Certificate of Acceptance of the Boswell Drive Works, and (2) the day which commences on the date of the issuance of the Certificate of Completion of the Boswell Drive Works and is two (2) years following the date of its commencement. 6. Use of Maintenance Guarantee From time to time, the Municipality may appropriate the whole or any part of the Security for the Maintenance Guarantee if Players/West Diamond fails to pay any cost(s) payable by Players/West Diamond to the Municipality under this Subdivision/Consent Agreement. The amount(s) of such appropriation shall not exceed the amount(s) which in the opinion of the Director are required to remedy Players/West Diamond's breach(es) or default(s) as determined by the Director of correcting or remedying a deficiency(s) or defect(s) in the Boswell Drive Works or a portion or component thereof, which is covered by the Maintenance Guarantee and is in question. Forthwith after the Municipality makes any such appropriation, the Director shall give Players/West Diamond written notice thereof. Forthwith, after the giving of such notices, Players/West Diamond shall restore the Security for the Maintenance Guarantee to the full amount required by this Subdivision/Consent Agreement. 7. Reduction and Release of Boswell Drive Works Performance Guarantee (a) Prior to the release of the Boswell Drive Works Performance Guarantee, in the discretion of the Director, the amount of the Boswell Drive Works Performance Guarantee may be reduced, from time to time, to reflect the progress of completion of the Boswell Drive Works and other facilities and improvements which are required to be constructed and installed by Players/West Diamond after taking into account any outstanding claims the satisfaction of which is provided for in this Subdivision/Consent Agreement. The maximum reduction that may be permitted to be made by the Director is such that will leave on deposit with the Municipality as the Boswell Drive Works Performance Guarantee is the amount equal to the sum of (1) the value of the uncompleted Boswell Drive Works as determined by the Director having regard for the Boswell Drive Works Cost Estimate then in force plus any amount determined by the Director but not to exceed twenty (20%) percent of such value as a completion allowance payable to the Municipality, and (2) as the Maintenance Schedule "F " Page 5 Guarantee fitleen (15%) percent of the value of the completed Boswell Drive Works, also determined by the Director atler considering the material, if any, submitted to the Director by Players/West Diamond's Engineer in support of an application for reduction of the Boswell Drive Works Performance Guarantee in respect of the Boswell Drive Works that have been completed by Players/West Diamond as well as the contract documents, sub-contracts and supply contracts pertaining to the Boswell Drive Works and the provisions of the Construction Lien Act. (b) Players/West Diamond will not require the Municipality to release to Players/West Diamond any unused portion of the Boswell Drive Works Performance Guarantee until each of the following conditions is satisfied: (i) A Certificate of Completion has been issued for the Boswell Drive Works for which the Boswell Drive Works Performance Guarantee was initially required to be deposited with the Municipality. (ii) Players/West Diamond has deposited or has left on deposit with the Municipality the Maintenance Guarantee applying to the Boswell Drive Works for which the Boswell Drive Works Performance Guarantee initially was required to be deposited with the Municipality. (iii) The Director is satisfied that in respect of the construction and installation of the Boswell Drive Works for which such Boswell Drive Works Performance Guarantee was initially required to be deposited with the Municipality, there are no outstanding claims relating to the Boswell Drive Works. (iv) The Municipality is satisfied that there are no outstanding claims relating to the Boswell Drive Works which the Municipality is required or may be permitted to pay either under the provisions of the Construction Lien Act or otherwise. (v) The Municipality is satisfied that Players/West Diamond is not in breach of any of its covenants contained in this Subdivision/Consent Agreement. Schedule "F " Page 6 8. Reduction and Release of Maintenance Guarantee Players/West Diamond will not require the Municipality to release to Players/West Diamond the Security for the Maintenance Guarantee until each of the following conditions is satisfied: (a) A Certificate of Acceptance has been issued for the Boswell Drive Works for which such Maintenance Guarantee is required under this Subdivision/Consent Agreement. (b) The Municipality is satisfied that there are not outstanding claims relating to such Boswell Drive Works which the Municipality is required or may be permitted to pay either under the provisions of the Construction Lien Act or otherwise. (c) The Municipality is satisfied that Players/West Diamond is not in breach of any of its covenants contained in this Subdivision/Consent Agreement. (d) The Director has received the as-constructed drawings for such Boswell Drive Works from Players/West Diamond as well as the computer disks, if any, have been prepared by Players/West Diamond's Engineer. 9. Unpaid Monies Except as otherwise provided in this Subdivision/Consent Agreement, the due date of any money payable under it, unless a different due date is specified in this Subdivision/Consent Agreement, shall be thirty (30) days after the date of the giving of the written invoice to Players/West Diamond. Interest shall be calculated and be paid by Players/West Diamond to the Municipality on all sums of money of which Players/West Diamond is in default at the same rate, and in the same manner, and at the same time as is the case with Municipality taxes which are in arrears at the date on which the default in question commences. Schedule "0" Page I SCHEDULE"G" THIS SCHEDULE IS SCHEDULE "G" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-] 46 of The Corporation of the Municipality of CIa ring ton, enacted and passed the 25th day of June, 2007. DUTIES OF PLA YERSIWEST DIAMOND'S ENGINEER 1. RESPONSIBILITY FOR DESIGN ETe. In addition to the other requirements of this Subdivision/Consent Agreement, Players/West Diamond's Engineer shall prepare all drawings, plans, studies, reports, estimates, calculations and documentation for the consideration and approval of the Director. The approval of the Director shall not absolve or release Players/West Diamond or Players/West Diamond's Engineer of the responsibility and liability for any errors or omissions in the above drawings, plans, reports, stages or documentation or from liability for any damage or loss caused or resulting directly or indirectly by Players/West Diamond's Engineer. 2. REPRESENT PLA YERSIWEST DIAMOND AND OBTAIN MUNICIPALITY APPROVALS Players/West Diamond's Engineer is hereby authorized by Players/West Diamond to act as Players/West Diamond's representative in all matters pertaining to the design, construction and installation of the Boswell Drive Works and the overall management of the development, and shall co-operate with the Municipality and the Director to protect the interests of the Municipality and the general public in all matters relating to the design, construction and installation of the Boswell Drive Works. 3. PROVIDE RESIDENT SUPERVISION Players/West Diamond's Engineer shall provide fully qualified, experienced supervisory layout and inspection staff, acceptable to the Director, to provide continuous inspection service during all phases of the construction and installation of the Boswell Drive Works. Without limiting the generality of the foregoing, Players/West Diamond's Engineer shall be responsible for the following: (a) To carry out or arrange for the carrying out by qualified personnel of field layout including the provision of line and grade to the contractors and, where required, restaking. Schedule "G" Page 2 (b) To thoroughly inspect the construction, installation, and supply of materials to ensure that all work is being performed in accordance with the Engineering Drawings, the Municipality's Design Criteria and Standard Drawings, and applicable plans of survey, as the case may be, and all applicable law. Players/West Diamond's Engineer shall have the authority and responsibility to immediately stop and/or reject any work, procedure, or material which in his opinion does not comply with the Engineering Drawings, the Municipality's Design Criteria and Standard Drawings, the applicable plans of survey and/or the applicable law. (c) To provide co-ordination and scheduling of the construction and installation of the Boswell Drive Works in accordance with the timing provisions contained in this Subdivision/Consent Agreement and the requirements of the Director. (d) To investigate and immediately report to the Director any unusual circumstances, potential problems, conflicts, errors, defective work or material which may arise during the construction and installation of the Boswell Drive Works. (e) To obtain field information during and upon completion of the construction and installation of the Boswell Drive Works required to modify the Engineering Drawings to produce the as-constructed drawings of the Boswell Drive Works. 4. MAINTAIN RECORDS Players/West Diamond's Engineer shall maintain all records, data, reports, approvals and orders pertaining to the construction and installation including all contract documents, sub-contracts and supply contracts, payment certificates, payment records and receipts, certificates of substantial performance, the names and addresses of all contractors, sub-contractors and suppliers of materials and services, certificates of completion of sub-contracts and proof of service and publication thereof in accordance with the provisions of applicable legislation and make all of the foregoing available for examination by the Director as required by the Director without cost. If any change is made in the terms of a contract, sub- contract or supply contract or in the name or address of a contractor, sub- contractor and supplier from information that may not have been provided to the Director by Players/West Diamond or Players/West Diamond's Engineer pursuant to this Subdivision/Consent Agreement, Players/West Diamond's Engineer Schedule "0" Page 3 immediately after becoming apprised of each change shall give the Director written notice of it. 5. PROVIDE PROGRESS REPORTS Players/West Diamond's Engineer shall provide the Director with reports on the progress of the construction and installation of the Boswell Drive Works on a monthly basis, or at such other interval as approved by the Director. 6. PREPARE AS-CONSTRUCTED DRAWINGS Players/West Diamond's Engineer shall prepare and submit the as-constructed drawings of the Boswell Drive Works together with the computer disks, if any have been prepared, to the Director provided that the as-constructed drawings shall be prepared to the satisfaction of the Director. Schedule "H" Page 1 SCHEDULE"H" THIS SCHEDULE IS SCHEDULE "H" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-146 of The Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007. REGULA TlONS FOR CONSTRUCTION 1. RESPONSIBILITY FOR DESIGN All work pursuant to and associated with this Subdivision/Consent Agreement shall be carried out in strict conformity with all approved Engineering Drawings, the Municipality's Design Criteria, Standard Drawings and Specifications or any revisions thereof and all applicable legislation, in addition to any requirements set out in this Subdivision/Consent Agreement. 2. SAFETY Players/West Diamond shall ensure that all construction pursuant to and associated with this Subdivision/Consent Agreement is carried out in conformance with the Occupational Health and Safety Act, and other applicable legislation. 3. PERMITS AND APPROVALS Players/West Diamond shall ensure that any and all permits and approvals required to install or construct or prepare to install or construct any of the Boswell Drive Works pursuant to or associated with any part of this Subdivision/Consent Agreement have in fact obtained and are valid and in good standing. 4. REOUlREMENTS FOR BLASTING Not Used. 5. REMOVAL OF TOPSOIL Not Used. Schedule "H" Page 2 6. DUMPING OF FILL OR DEBRIS Players/West Diamond agrees to neither dump, nor permit to be dumped, any fill or debris, on nor to remove, or permit to be removed any till from any part of the Players/West Diamond Lands to be dedicated to the Municipality other than the roads within the limits of the Players/West Diamond Lands, without the written consent of the Director. 7. DISPOSAL OF CONSTRUCTION GARBAGE Players/West Diamond shall remove and dispose of all construction garbage and debris from the Players/West Diamond Lands in an orderly and sanitary fashion in a dump site off the Players/West Diamond Lands and approved by the Director. The Municipality shall not be responsible for the removal or disposal of garbage and debris. Without derogating from the foregoing provisions of this paragraph, if Players/West Diamond fails to remove construction garbage or debris from the Property for a period of three (3) consecutive days following the giving of written notice by the Director to Players/West Diamond requiring it to do so, the Director may cause the construction garbage or debris to be removed to and disposed of in the aforesaid dumping site at the expense of Players/West Diamond. Forthwith after the Director gives written notice to Players/West Diamond requiring it to pay for the costs incurred in removing and disposing of the construction garbage or debris, Players/West Diamond shall pay the Municipality the amount of money for it is invoiced. 8. OUALIT A TIVE AND OUANTIT A TIVE TESTS Not used. 9. WEED AND RAT CONTROL After the commencement of construction Players/West Diamond shall institute upon the Players/West Diamond Lands a program of weed and rat control to the satisfaction of the Director. Schedule "I" Page 1 SCHEDULE "I" THIS SCHEDULE IS SCHEDULE "I" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-146 of The Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007. INSURANCE REQUIRED I. TYPES OF COVERAGE REQUIRED Players/West Diamond shall obtain and maintain insurance of the character commonly referred to as public liability and property damage with an insurance company approved by the Municipality's Director of Finance/Treasurer and licensed in Ontario to underwrite such insurance and containing terms and conditions which are acceptable to the Municipality's Director of Finance/Treasurer. Such policy or policies of insurance shall indemnify the Municipality against all damage or claims for damage for: (a) Any loss or damage that shall or may happen to any of the Works or any of the Utilities or to any part or parts thereof respectively; (b) Any loss or damage that shall or may happen to any of the materials or any of the equipment or any other things used to construct or install any of the Works or any part or parts thereof respectively; (c) Any injury to any person or persons including workmen employed on the Players/West Diamond Lands (unless covered by Workers Safety & Insurance Board) and the public; (d) Any loss or damage that shall or may result from the drainage of surface water on or from the Players/West Diamond Lands; (e) Any loss or damage that shall or may result from the disposal of effluent from any sewage disposal works; and (t) Any loss or damage that shall or may happen to any public road or to any other property of the Municipality or to the property of any other person either directly or indirectly by reason of the Players/West Diamond undertaking any or all of the Works. 2. AMOUNTS OF COVERAGE REQUIRED Policy or policies of insurance shall be issued jointly in the names of Players/West Diamond and the Municipality and shall provide the following minimum coverages for five million ($5,000,000) dollars for all damage arising out of one (1) accident or occurrence or series of accidents or occurrences. Schedule "I" Page 2 The issuance of such policy or policies of insurance or the acceptance of it or them by the Municipality shall not be construed to relieve Players/West Diamond from responsibility for other or larger claims for which it may be held responsible. 3. TERM OF INSURANCE The term of the required insurance shall commence no later than the day on which the first Authorization to Commence Works is issued and shall terminate no earlier than the last day on which all Certificates of Acceptance have been issued for each of the Works for all of the Works contemplated by this Subdivision/Consent Agreement. SCHEDULE "J" THIS SCHEDULE IS SCHEDULE "J" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-146 of The Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007. Boswell Drive Works Cost Estimate Attachment 8 To Report PSD-088-07 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2007-142 being a by-law to authorize the Mayor and the Municipal Clerk to execute a Servicing Agreement for certain services to be constructed on Green Road and Stevens Road on behalf of the Municipality of Clarington WHEREAS Council has approved the recommendations contained in Report #PSD- 088-07 at its meeting on June 25, 2007; and, NOW THEREFORE the Council of The Corporation of the Municipality of Clarington hereby enacts as follows: 1. THAT the Mayor and the Municipal Clerk are authorized to execute on behalf of the Municipality of Clarington the Servicing Agreement between Players Business Park Ltd., West Diamond Properties Inc., and Royal Bank of Canada substantially in the form of the Servicing Agreement contained in Attachment 3 to Report #PSD-088-07. By-Law read a first time this 25th day of June 2007 By-Law read a second time this 25th day of June 2007 By-Law read a third time and finally passed this 25th day of June 2007 Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk Attachment 9 To Report PSD-088-07 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2007-143 being a by-law to authorize the Mayor and the Municipal Clerk on behalf of the Municipality of Clarington to execute a First Principles of Understanding Amendment Agreement to the Principles of Understanding between the Municipality, Players Business Park Ltd., West Diamond Properties Inc. and 1613881 Ontario Inc. WHEREAS Council has approved the recommendations contained in Report #PSD- 088-07 at its meeting on June 25, 2007; and, NOW THEREFORE BE IT RESOLVED the Council of The Corporation of the Municipality of Clarington hereby enacts as follows: 1. THAT the Mayor and the Municipal Clerk are authorized on behalf of the Municipality of Clarington to execute the First Principles of Understanding Amendment Agreement between the Municipality, Players Business Park Ltd., West Diamond Properties Inc., 1613881 Ontario Inc., Royal Bank of Canada and 672003 Ontario Inc. substantially in the form of the draft Agreement contained in Attachment 4 to Report #PSD-088-07. By-Law read a first time this 25th day of June 2007 By-Law read a second time this 25th day of June 2007 By-Law read a third time and finally passed this 25th day of June 2007 Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk Attachment 10 To Report PSD-088-07 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2007-145 being a by-law to authorize the Mayor and the Municipal Clerk on behalf of the Municipality of Clarington to execute an Assumption Agreement between the Municipality, Royal Bank of Canada, Players Business Park Ltd., West Diamond Properties Inc. and 1613881 Ontario Inc. WHEREAS Council has approved the recommendations contained in Report #PSD- 088-07 at its meeting on June 25, 2007; NOW THEREFORE the Council of The Corporation of the Municipality of Clarington hereby enacts as follows: 1. THAT the Mayor and the Municipal Clerk are authorized on behalf of the Municipality of Clarington to execute an Assumption Agreement between the Municipality, Royal Bank of Canada, Players Business Park Ltd., West Diamond Properties Inc. and 1613881 Ontario Inc. substantially in the form of the draft Agreement contained in Attachment 5 to Report #PSD-088-07. By-Law read a first time this 25th day of June 2007 By-Law read a second time this 25th day of June 2007 By-Law read a third time and finally passed this 25th day of June 2007 Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk Attachment 11 To Report PSD-088-07 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2007-144 being a by-law to authorize the Mayor and the Municipal Clerk on behalf of the Municipality of Clarington to execute an Assumption Agreement between the Municipality, 672003 Ontario Inc., Players Business Park Ltd., West Diamond Properties Inc. and 1613881 Ontario Inc. WHEREAS Council has approved the recommendations contained in Report #PSD- 088-07 at its meeting on June 25, 2007; NOW THEREFORE the Council of The Corporation of the Municipality of Clarington hereby enacts as follows: 1. THAT the Mayor and the Municipal Clerk are authorized on behalf of the Municipality of Clarington to execute an Assumption Agreement between the Municipality, 672003 Ontario Inc., Players Business Park Ltd., West Diamond Properties Inc. and 1613881 Ontario Inc. substantially in the form of the draft Agreement contained in Attachment 6 to Report #PSD-088-07. By-Law read a first time this 25th day of June 2007 By-Law read a second time this 25th day of June 2007 By-Law read a third time and finally passed this 25th day of June 2007 Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk Attachment 12 To Report PSD-088-07 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2007-146 being a by-law to authorize the Mayor and the Municipal Clerk on behalf of the Municipality of Clarington to execute a Subdivision/Consent Agreement between the Municipality, Players Business Park Ltd., West Diamond Properties Inc. and the Royal Bank of Canada WHEREAS Council has approved the recommendations contained in Report #PSD- 088-07 at its meeting on June 25, 2007; and, NOW THEREFORE the Council of The Corporation of the Municipality of Clarington hereby enacts as follows: 1. THAT the Mayor and the Municipal Clerk are authorized on behalf of the Municipality of Clarington to execute a Subdivision/Consent Agreement between the Municipality, Players Business Park Ltd., West Diamond Properties Inc. and the Royal Bank of Canada substantially in the form of the draft Subdivision/Consent Agreement contained in Attachment 7 to Report #PSD-088- 07. By-Law read a first time this 25th day of June 2007 By-Law read a second time this 25th day of June 2007 By-Law read a third time and finally passed this 25th day of June 2007 Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk SERVICING AGREEMENT THIS SERVICING AGREEMENT made as of the 25th day of June, 2007. BETWEEN: PLAYERS BUSINESS PARK LTD. ("Players") and WEST DIAMOND PROPERTIES INC. ("West Diamond") (hereinafter collectively called the "Owners") OF THE FIRST PART - and - THE CORPORATION OF THE MUNICIP ALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE SECOND PART - and - ROYAL BANK OF CANADA (hereinafter called "Royal Bank") OF THE THIRD PART WHEREAS: A. Principles of Understanding dated March 1, 2006 ("Principles") were made by the Owners, the Municipality and 1613881 Ontario Inc. ("1613881"). They were registered in the Land Registry Office for the Land Titles Division of Durham (No. 40) as Instrument No. DR495847 on the title to the lands identified by the following Property Identification Numbers ("PIN"). PIN # 26612-0113 26612-0114 26612-0024 26613-0102 Owner Players West Diamond Players 1613881 Ontario Inc. B. The Principles were amended by the First Principles of Understanding Amendment Agreement ("First Amendment Agreement") dated June 25, 2007 made between the Owners, the Municipality, 1613881, Royal Bank of Canada and 672003 Ontario Inc. The First Amendment 2 Agreement was registered on title to the land referred to in Recital A as Instrument No. . The Principles as amended by the First Amendment Agreement are hereinafter referred to hereinafter as the "Principles As Amended". C. A Charge in favour of Royal Bank dated April 6, 2004 was registered in the Land Registry Office on the title to the lands identified by the following PINs as Instrument No. DR265437. PIN # 26612-0113 26612-0114 26612-0024 Owner Players West Diamond Players D. Royal Bank has agreed with the Municipality to postpone its rights under the Charge referred to in Recital C to the rights of the Municipality under the Principles As Amended and under the Stevens Road Extension Agreement dated March l, 2006 between Players, West Diamond, Halloway Holdings Limited and the Municipality. A copy of the Stevens Road Extension Agreement is contained in Schedule "H" to the Principles. E. The Municipality intends to call for tenders and award a construction contract(s) for the following works: 1. The "Green Road Reconstruction Works" between the Stevens Road Extension and the Region of Durham ("Region") Highway No.2. The Green Road Reconstruction Works are described in Schedule "A" hereto. 2. The Stevens Road Construction Works between Clarington Boulevard and Green Road. The Stevens Road Construction Works are described in Schedule "B" hereto. F. In order to facilitate the development of the "Owners' Commercial Lands" (as defined in the Principles As Amended) and in order and to satisfy requirements of the Region respecting the construction and installation of a sanitary sewer main and water main and the requirement of the Municipality respecting the construction and installation of a storm sewer main at the Owners' request, the Owners and the Municipality have agreed that these Works may be constructed and installed in sections of the road allowances of Green Road and Stevens Road at the cost of the Owners. The sanitary sewer, storm sewer and water main works are described in Schedule "c" hereto. These works referred to hereinafter as the "Sanitary, Storm and Water Works". G. The execution of this Servicing Agreement by the Mayor and the Municipal Clerk on behalf of the Municipality of Clarington is authorized by By-law No. 2007-142 passed by the Municipality's Council at its meeting on June 25th 2007. 3 NOW THEREFORE in consideration of the premises herein contained and the sum of TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt whereof by each of the Parties is hereby acknowledged) each of the Parties covenants and agrees with the other Parties as follows: Recitals and Schedules 1. Each of Recitals D to F, inclusive, and the Schedules hereto are hereby incorporated into the operative part of this Servicing Agreement and shall be construed and given the effect of covenants contained in it. If there is an inconsistency between any of the Recitals and of the following paragraphs, the text of the paragraph shall prevail to resolve the inconsistency. Financine: and Construction of Sanitary. Storm and Water Works 2. (a) The Owners shall pay to the Municipality the cost of construction and installation of the Sanitary, Storm and Water Works as provided in this Servicing Agreement. Conditional on the Performance Guarantee required by paragraph 3 as security for the Owners' obligations to make the aforesaid payment being deposited with the Municipality on or prior to June 25, 2007, the Municipality shall include the construction and installation of the Sanitary, Storm and Water Works as components of the Green Road Reconstruction Works and the Stevens Road Construction Works tender package. Subject to the provisions of this Servicing Agreement, the Sanitary, Storm and Water Works are intended to be included as works to be constructed in a contract(s) with the successful bidder(s) in response to the aforesaid tender call made by the Municipality. (b) The Parties acknowledge that the Municipality' present intention is to call for tenders for the Green Road Reconstruction Works and the Stevens Road Construction Works on or prior to June 25, 2007 and to enter into a construction contract or contracts with the contractor(s) to which the construction contract(s) is (are) awarded on or before July 31, 2007. (c) If the Owners do not make the payment referred to in paragraph 2( a) to the Municipality on or before June 25, 2007, this Servicing Agreement shall terminate. For clarity, on termination of this Servicing Agreement the Municipality shall have the unfettered right to delete from the tender package and/or the construction contract(s) referred to in paragraph 2(a) all reference to the construction and installation of the Sanitary, Storm and Water Works. The Owners shall indemnify the Municipality against all costs, losses and damages including without limitation its reasonable legal fees and disbursements that may be incurred by the Municipality resulting from the aforesaid deletion. 4 Owners' Payment to be Secured by Performance Guarantee 3. The performance guarantee ("Performance Guarantee") referred to in the Servicing Agreement to be provided by the Owners to the Municipality to secure their obligations to the Municipality hereunder shall either be cash (which shall be deposited in a segregated reserve account by the Municipality) or an irrevocable and unconditional letter of credit issued by a bank listed in Schedule I or II of the Bank Act in a form and containing terms and conditions that are acceptable to the Municipality's Director of Finance. The amount of the Performance Guarantee shall be as provided for in the "Sanitary, Storm and Water Works Cost Estimate" contained in Schedule "D" hereto and shall be adjusted from time to time as provided in this Servicing Agreement. Revised Sanitary. Storm and Water Works Cost Estimates and Additional Payments 4. (a) Prior to the Owners payment to the Municipality of the as-constructed costs of the Sanitary, Storm and Water Works, the Municipality's Director of Engineering Services ("Director") may from time to time give written notice to the Owner of his revised cost estimate of the cost of such Works ("Revised Sanitary, Storm and Water Works Cost Estimate"), together with an explanation of the reason for the revised cost estimate. The amount to be paid by the Owners to the Municipality for the construction and installation of the Sanitary, Storm and Water Works shall be deemed to be the amount of the latest of the Sanitary, Storm and Water Works Cost Estimate and the Revised Sanitary, Storm and Water Works Cost Estimate of which written notice is given to the Owners by the Director. Following the giving of notice pursuant to this paragraph, the latest Revised Sanitary, Storm and Water Works Cost Estimate shall be deemed to be the Sanitary, Storm and Water Works Cost Estimate for the purposes of this Servicing Agreement. (b) If the Director gives written notice to the Owners of the Revised Sanitary, Storm and Water Works Cost Estimate subsequent to the Owners having deposited the Performance Guarantee with the Municipality pursuant to paragraph 3, the Owners shall deposit with the Municipality an additional Performance Guarantee in the amount of the increase in the Sanitary, Storm and Water Works Cost Estimate within thirty (30) days of such notice being given. As-Constructed Costs 5. Upon completion of the Sanitary, Storm and Water Works, the Director shall give the Owners written notice that the Sanitary, Storm and Water Works have been completed. No later than ten (10) days following the date on which this written notice is given to the Owners, the Director shall give the Owners written notice of the as-constructed costs thereof. If the as-constructed costs exceed the Sanitary, Storm and Water Works Cost 5 Estimate then in force, forthwith after written demand is given them, the Owners shall pay the Municipality any amount by which such as-constructed costs exceed such Sanitary, Storm and Water Works Cost Estimate ("As-Constructed Payment"). If the Director determines that the as-constructed costs are less than the Sanitary, Storm and Water Works Cost Estimate then in force, the Municipality shall return any Performance Guarantee not required for the payment of the cost of the Sanitary, Storm and Water Works without interest to the Owners within thirty (30) days after the aforesaid written notice is given to the Owners by the Director. Use of Funds bv the Municipality 6. (a) The Municipality shall use the Performance Guarantee and the As-Constructed Payment only for costs actually incurred in respect of the Sanitary, Storm and W ater Works. (b) During regular business hours of the Municipality at a time to be arranged in advance with the Director, the Owners may inspect copies of such documents a may be reasonably required to verify the costs incurred by the Municipality respecting the Sanitary, Storm and Water Works (including copies of invoices, approved purchase orders, and/or certified progress certificates in respect of such costs). Conseauences of Default 7. In the event that the Owners fail to provide any Performance Guarantee or make any payments to the Municipality required pursuant to this Agreement within the time periods required herein, the Owners in default shall not apply for or require the issuance of any permit for the construction of or occupancy by or occupy any Large Format Retail Store on any portion of the "Owners' Commercial Lands" (as defined in the Principles As Amended) pursuant to the Ontario Building Code Act until such Performance Guarantee or payments (including the payment of any interest that has accrued pursuant to paragraph 8) have been fully deposited or made. Unpaid Monies 8. Except as otherwise provided in this Servicing Agreement, the due date of any money payable under it, unless a different due date is specified in this Agreement, shall be ten (10) days after the date of the giving of written notice by the Municipality to the Owners, as the case may be. Where the Owners are in default in respect of such payment, interest shall be calculated and be paid to the Municipality by the Owners on all sums in default at the same rate, and in the same manner, and at the same time as is the case with municipal taxes which are in arrears at the date on which the default in question commences. 6 All Actions at Risk of Owners 9. All actions taken by the Municipality in respect of the Sanitary, Storm and Sewer Works provided for in the Servicing Agreement are entirely at the risk of the Owners who shall have no recourse against the Municipality except where loss or damage is caused by the negligence of the Municipality, its officials, employees, agents, or contractors. Ownershio of Sanitary. Storm and Water Works 10. The Owners agree that when the construction and installation of the Sanitary, Storm and Water Works are completed, the sanitary, sewer and water main shall be deemed to be owned by the Region and the storm sewer shall be deemed to be owned by the Municipality without compensation therefore being paid to the Owners either by the Region or by the Municipality. Actine: Reasonablv 11. All discretionary decisions of officials of the Municipality and the Municipality which are referred to in this Agreement shall be deemed to be qualified by the words "acting reasonably". Notice 12. If any notice or other document is required to be or may be given to or by the Municipality or by any official of the Municipality to a party to this Servicing Agreement, such notice shall be transmitted by telefax, mailed by first class prepaid post or delivered to: Players/ : West Diamond Players Business Park Ltd. 1700 Langstaff Road Suite 2003 Concord, ON L4K 3S3 Attention: Mr. Bruce Fisher West Diamond Properties Inc. 30 Floral Parkway Concord, ON L4K 4Rl Attention: Mr. Robert DeGasperis And: Royal Bank Royal Bank of Canada 180 Wellington Street West 5th Floor Toronto, ON M5J 112 7 Or, Municipality: The Municipality of Clarington 40 Temperance Street Bowmanville, ON L I C 3A6 Attention: Director of Planning Services Fax: 905-623-0830 or such other telefax number or address of which any party has notified the other parties in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this Agreement and if telefaxed or delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) shall be deemed to have been received at the time of delivery or transmission and if mailed by pre-paid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the mailing thereof. Notwithstanding the foregoing, in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above, then such notice shall be sent by an alternate means of transportation which may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. Force Maieure 13. In this Servicing Agreement, the term "Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military authority, acts of public enemies, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water, earthquake or other casualty, or an Act of God and any act, omission or event whether of the kind herein enumerated or otherwise not within the control of a party to this Agreement, none of which has been caused by the deliberate default or act or omission by such party and none of which has been avoidable by the exercise of reasonable effort or foresight by such party. The Municipality or other party to this Agreement, as the case may be, shall notify the other parties to this Agreement of the commencement, duration and consequence (so far as the same is within the knowledge of the Municipality or such other party, as the case may be) of any Force Majeure affecting the performance of any of its obligations hereunder within thirty (30) days of gaining such knowledge. Postponement of Char2es 14. Royal Bank hereby postpones its rights under the Charge registered in the Land Registry Office as Instruments No. DR 265437 to the rights of the Municipality under this Agreement. 8 Re2istration 15. The parties hereto other than the Municipality consent to the registration of a Notice of this Agreement as a charge against the title to the "Owners' Commercial Lands" (as defined in the Principles). Forthwith after the Owners have satisfied their obligations to the Municipality under this Servicing Agreement, the Municipality shall execute at the Owners' written request, such documents prepared by the Owners as are necessary to remove the registration of the Notice of this Agreement from title. Time is of the Essence 16. Time is of the essence of the Servicing Agreement. Authority of the Municipality 17. The parties hereto acknowledge and agree that the Municipality has authority to enter into this Security Agreement, that every provision hereto is authorized by the law and enforceable and that this Servicing Agreement is executed by the Municipality in reliance on such acknowledgement and agreement. Further Assurances 18. The parties hereby covenant and agree to forthwith execute and provide all further documents, instruments and assurances as may be necessary or required in order to carry out (and give effect to) the true intent of this Agreement, and to effect the registration against and release from title to the lands subject to this Agreement of such notices or other instruments in accordance with the provisions of this Agreement. Enurement 19. This Agreement shall enure to the benefit of and be binding on the Parties hereto, and their respective successors and assigns. Counterpart Executions 20. This Agreement may be executed in counterparts. 9 IN WITNESS WHEREOF the parties hereto have hereunto have set their hands and seals the day and year first above written and the parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED In the presence of: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) THE CORPORATION OF THE MUNICIP ALITY OF CLARINGTON Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk I/We have authority to bind the Corporation PLAYERS BUSINESS PARK LTD. Name: Title: I/We have authority to bind the Corporation Name: Title: I/We have authority to bind the Corporation WEST DIAMOND PROPERTIES INC. Name: Title: I/We have authority to bind the Corporation Name: Title: I1We have authority to bind the Corporation ROYAL BANK OF CANADA Name: Title: Name: Title: I/We have authority to bind the Corporation SCHEDULE "A" THIS SCHEDULE IS SCHEDULE "A" to this Servicing Agreement which has been authorized and approved by By-Law 2007-141 of the Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007 Description of Green Road Reconstruction Works The Works shown on the following drawings prepared by D.G. Biddle & Associates Limited as finally approved by and on file with the Municipality's Director of Engineering Services: . Underground Services and Roadworks - Green Road North, Drawing No. C1, March 2007 . Underground Services and Roadworks - Green Road North, Drawing No. C2, March 2007 SCHEDULE "B" THIS SCHEDULE IS SCHEDULE "B" to this Servicing Agreement which has been authorized and approved by By-Law 2007-141 of the Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007 Description of Stevens Road Construction Works The Works shown on the following drawings prepared by D.G. Biddle & Associates Limits as finally approved by and on file with the Director of Engineering Services: . Underground Services and Roadworks -Stevens Road, Drawing No. C3, March 2007 . Underground Services and Roadworks - Stevens Road, Drawing No. C4, March 2007 SCHEDULE"C" THIS SCHEDULE IS SCHEDULE "C" to this Servicing Agreement which has been authorized and approved by By-Law 2007-141 of the Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007 Descriution of Sanitary. Storm and Water Works Storm Supply and install storm sewer pipe, cone. Cl.65-d (unless otherwise noted) up to 825mm dia. bedding as specified on drawings Supply and install storm sewer manholes, concrete precast unless otherwise specified up to 1800mm dia. Break into existing manhole, connect, parge and rebench Camera inspection (incl. CB leads) Sanitary Supply and install sanitary sewer pipe, PVC SDR-35 (unless otherwise noted) up to 425mm dia. bedding as specified on drawings Supply and install sanitary sewer manholes, 1200mm dia. (OPSD 701.010) precast (unless otherwise specified) (incl. water tight locking cover OPSD 401.030) Camera Inspection Watermain Supply and install400mm CPP watermain including all appurtenances, Le. temporary blow-offs, bends, swabbing, pressure-testing at operating pressure Supply and install hydrants along 400mm dia. CPP watermain including temp. flushing hydrant General All servicing requirements for the Sanitary, Storm and Water Works shown on the Drawings referred to in Schedules "A" and "B" are not described above in this Schedule "C". Schedule "D" THIS SCHEDULE IS SCHEDULE "D" to this Servicing Agreement which has been authorized and approved by By-Law 2007-141 of the Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007 Sanitary. Storm and Water Works Cost Estimate Estimated Value 1 2 3 Storm Sewers Sanitary Sewers Water Distribution System $ 160,209.50 $ 200,952.20 $ 108,595.45 Sub- Total $ 469,757.16 10% Contingency Sub- Total $ 46,975.72 $ 516,732.88 20% Engineering Sub- Total $ 103,346.58 $ 620,079.46 6% G.S.T. 37,204.77 $ 657,284.23 Total Estimated Cost of Services Total Performance Guarantee Required $ 657,284.23 FIRST PRINCIPLES OF UNDERSTANDING AMENDMENT AGREEMENT THIS FIRST PRINCIPLES OF UNDERSTANDING AMENDMENT AGREEMENT made as ofthe 25th day of June, 2007. BETWEEN: PLAYERS BUSINESS PARK LTD. ("Players") and WEST DIAMOND PROPERTIES INC. ("West Diamond") (hereinafter collectively called the "Owners") OF THE FIRST PART - and - THE CORPORATION OF THE MUNICIP ALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE SECOND PART - and - 1613881 ONTARIO INC. (hereinafter called "1613881") OF THE THIRD PART - and - ROYAL BANK OF CANADA (hereinafter called "Royal Bank") OF THE FOURTH PART - and - 672003 ONTARIO INC. (hereinafter called "672003") OF THE FIFTH PART 2 WHEREAS: A. Principles of Understanding dated March 1,2006 were made by the Owners, the Municipality and 1613881 ("Principles"). They were registered in the Land Registry Office for the Land Titles Division of Durham (No. 40) ("Land Registry Office") as Instrument No. DR495847 on the title to the lands identified by the following Property Identification Numbers ("PIN"). PIN # Owner 26612-0113 Players 26612-0114 West Diamond 26612-0024 Players 26613-0102 1613881 B. A Charge in favour of Royal Bank dated April 6, 2004 was registered in the Land Registry Office on the title to the lands identified by the following PINs as Instrument No. DR265437. PIN # Owner 26612-0114 West Diamond 26612-0113 Players 26612-0024 Players C. A Charge in favour of 672003 dated November 3, 2004 was registered in the Land Registry Office on the title to the lands identified by PIN# 26613-102 owned by 1613881 as Instrument No. DR334853. D. A Charge in favour of Royal Bank dated April 3, 2004 was registered in the Land Registry Office in the title to the lands identified by PIN #26613-102 owned by 1613881 as Instrument No. DR334854. E. Royal Bank and 672003 have agreed with the Municipality to postpone their rights under the Charges referred to in Recitals B, C and D to the rights of the Municipality under the Principles as amended by this Agreement. Royal Bank has also agreed with the Municipality to postpone its rights under Charge No. DR334854 to the rights of the Municipality under the Stevens Road Extension Agreement. A copy of the Stevens Road Extension Agreement is contained in Schedule "H" to the Principles. F. Paragraphs 8, 9 and Schedule "G" of the Principles refer to Private Roads A, Bl and B2. Plan 40R-24933, deposited in the Land Registry Office on June 15,2007, among other things, more particularly describes the lands within Private Roads A, Bland B2. 3 G. The Owner, the Municipality and 1613881 have agreed to amend the Principles to incorporate descriptions of Private Roads A, Bl and B2 as Parts as follows: Private Road Parts A 8,9, 11, 12, 13, 14, 29,30,32,33 Bl 2,34,40 B2 20,23,27,38 H. The execution of this First Principles of Understanding Amendment Agreement on behalf of the Municipality by the Mayor and the Municipal Clerk was authorized by By-law No. 2007-143 passed by the Municipality's Council at its meeting on the 25th day of June, 2007. NOW THEREFORE in consideration of the premises herein contained and the sum of TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt whereof by each of the parties is hereby acknowledged) each of the parties hereto covenants and agrees with the other parties as follows: Recitals 1. Each of Recitals E to G, inclusive, is hereby incorporated into the operative part of this Agreement and shall be construed and given the effect of covenants contained in this Agreement. If there is an inconsistency between any of them and any of the following paragraphs, the text of the paragraphs shall prevail to the extent of the inconsistency. Postponement of Chan?:es 2. (a) Royal Bank hereby postpones its rights under the Charges registered in the Land Registry Office as Instruments No. DR 265437 and DR 334854 to the rights of the Municipality under the Principles as amended by this First Principles of Understanding Amendment Agreement and under the Stevens Road Extension Agreement; and (b) 672003 hereby postpones its rights under the Charge registered in the Land Registry Office as Instrument No. DR 334853 to the rights of the Municipality under the Principles as amended by this First Principles of Understanding Amendment Agreement. Private Roads A. Bl and B2 3. The Principles are amended as follows: 4 (a) by deleting paragraph 8(b) and replacing it with a new paragraph 8(b) as follows: "8(b) For the purposes ofthese Principles: (i) Private Road A comprises the lands more particularly described as Parts 8, 9, 11, 12, 13, 14, 29, 30, 32 and 33 on Plan 40R-24933 deposited in the Land Registry Office; (ii) Private Road B 1 is the land more particularly described as Parts 2, 34 and 40 on Plan 40R-24933 deposited in the Land Registry Office; and (iii) Private Road B2 is the lands more particularly described as Parts 20, 23, 27 and 38 on Plan 40R- 24933 deposited in the Land Registry Office."; (b) by amending paragraph 9(a) by deleting from the second and third lines thereof the following words, numbers and blank spaces "described as Parts _, _, and on Plan "; (c) by amending paragraph 9(b) by deleting the words and blanks "of any portion of Parts _, _, and on Plan " and replacing them with the words and numbers "of any of the Parts on Plan 40R-24933 by which they are described for the purposes of these Principles,"; and (d) deleting from paragraph 22 of the Principles the number "9" and replacing it with the number and letter "8(b)". Princivles as Amended to Continue to Bind 4. Except as otherwise provided in this First Principles of Understanding Amendment Agreement, the Principles continue to bind the Owners, the Municipality and 1613881 and are enforceable by and against each of them. Time of Essence 5. Time is of the essence of this First Principles of Understanding Amendment Agreement. Time continues to be of the essence of the Principles. Enurement 6. This First Principles of Understanding Amendment Agreement shall enure to the benefit of and bind the parties hereto and their respective successors and assigns. 5 Authority of Municipality 7. Players, West Diamond and 1613881 acknowledge and agree that the Municipality has authority to enter into this First Principles of Understanding Amendment Agreement, that every provision hereof is authorized by the law and is fully enforceable by Players, West Diamond, 1613881 and the Municipality, and that this Agreement is executed by the Municipality in reliance on the aforesaid acknowledgement and agreement. Reeistration of Aereement on Title 8. Players and West Diamond hereby consent to the registration of a Notice of this First Principles of Understanding Amendment Agreement as a charge against the title to their respective lands identified under PINs 26612-0113, 26612-0114 and 26612-0024. 1613881 hereby consents to the registration of a Notice of this Agreement as a charge against the title to its lands identified under PIN 26613-0102. Further Assurances 9. The parties hereby covenant and agree, after a request in writing by one party to the other parties, to forthwith execute and provide all further documents, instruments and assurances as may be necessary or required in order to carry out (and give effect to) the true intent of this Agreement, and to effect the registration against and release from title to the lands subject to this Agreement of such notices or other instruments in accordance with the provisions of this Agreement. Notice 10. If any notice or other document is required to be or may be given by the Municipality or by any official of the Municipality to any of the other parties to this First Principles of Understanding Amendment Agreement, such notice shall be transmitted by telefax, mailed by first class prepaid post or delivered to: Players/ : West Diamond Players Business Park Ltd. 1700 Langstaff Road Suite 2003 Concord, ON L4K 3S3 Attention: Mr. Bruce Fisher West Diamond Properties Inc. 30 Floral Parkway Concord, ON L4K 4R1 Attention: Mr. Robert DeGasperis 613881 : 613881 Ontario Inc. 1700 Langstaff Road Suite 2003 Concord, ON L4K 3S3 6 Attention: Mr. Bruce Fischer And: Royal Banle Royal Bank of Canada 180 Wellington Street West 5th Floor Toronto, ON M5J 112 And: 672003: 672003 Ontario Inc. [address] Or, Municipality: The Municipality of Clarington 40 Temperance Street Bowmanville, ON LIC 3A6 Attention: Director of Planning Services Fax: 905-623-0830 or such other telefax number or address of which any party has notified the other parties in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this Agreement and if telefaxed or delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) shall be deemed to have been received at the time of delivery or transmission and if mailed by pre-paid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the mailing thereof. Notwithstanding the foregoing, in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above, then such notice shall be sent by an alternate means of transportation which may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. Force Maieure 11. In this First Principles of Understanding Amendment Agreement, the term "Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military authority, acts of public enemies, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water, earthquake or other casualty, or an Act of God and any act, omission or event whether of the kind herein enumerated or otherwise not within the control of the Owners, 1613881, Royal Bank or 672003, none of which has been caused by the deliberate default or act or omission by such party and none of which has been avoidable by the exercise of reasonable effort or foresight by such party. the Owners, 1613881, Royal Bank or 672003 or the Municipality, as the case 7 may be, shall notify the other parties to this First Principles of Understanding Amendment Agreement of the commencement, duration and consequence (so far as the same is within the knowledge of the Owners, 1613881, Royal Bank or 672003 or the Municipality, as the case may be) of any Force Majeure affecting the performance of any of its obligations hereunder within thirty (30) days of gaining such knowledge. 8 IN WITNESS WHEREOF the parties hereto have hereunto have set their hands and seals the day and year first above written and the parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED In the presence of: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk J/We have authority to bind the Corporation PLAYERS BUSINESS PARK LTD. Name: Title: J/W e have authority to bind the Corporation Name: Title: J/We have authority to bind the Corporation WEST DIAMOND PROPERTIES INC. Name: Title: J/We have authority to bind the Corporation Name: Title: J/We have authority to bind the Corporation 1613881 ONTARIO INC. Name: Title: J/We have authority to bind the Corporation Name: Title: I/We have authority to bind the Corporation ROYAL BANK OF CANADA Name: Title: Name: Title: J/We have authority to bind the Corporation 9 ) 672003 ONTARIO INC. ) ) ) ) ) ) ) Title: Name: Name: Title: I/We have authority to bind the Corporation ASSUMPTION AGREEMENT PRINCIPLES OF UNDERSTANDING AS AMENDED THIS ASSUMPTION AGREEMENT made as of the 25th day of June, 2007. BETWEEN: THE CORPORATION OF THE MUNICIP ALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE FIRST PART - and - ROYAL BANK OF CANADA (hereinafter called "Royal Bank") OF THE SECOND PART - and - PLAYERS BUSINESS PARK LTD. ("Players") and WEST DIAMOND PROPERTIES INC. ("West Diamond") (hereinafter collectively called the "Owners") OF THE THIRD PART - and - 1613881 ONTARIO INC. (hereinafter called "1613881") OF THE FOURTH PART WHEREAS: A. Principles of Understanding dated March 1, 2006 were made by the Owners, the Municipality and 1613 881 ("Players/West Diamond Principles"). They were registered in the Land Registry Office for the Land Titles Division of Durham (No. 40) ("Land Registry Office") as Instrument No. DR495847 on the title to the lands identified by the following Property Identification Numbers ("PIN"). - 2 - PIN No. Owner 26612-0113 Players 26612-0114 West Diamond 26612-0024 Players 26613-0102 1613881 B. The Players/West Diamond Principles were amended by the First Principles of Understanding Amendment Agreement dated June 25, 2007, made between the Municipality, Players, West Diamond, 1613881, Royal Bank and 672003 Ontario Inc. and registered in the Land Registry Office as Instrument No. . The Players/West Diamond Principles as so amended is hereinafter referred to as the "Players/West Diamond Principles as Amended. C. A Charge in favour of Royal Bank dated April 6, 2004 was registered in the Land Registry Office on the title to the lands identified by the following PINs as Instrument No. DR265437. PIN No. Owner 26612-0114 West Diamond 26612-0113 Players 26612-0024 Players D. A Charge in favour of Royal Bank dated April 3, 2004 was registered in the Land Registry Office on the title to the lands identified by PIN #26613-102 owned by 1613881 as Instrument No. DR334854. E. Royal Bank has agreed with the Municipality to postpone its rights under the Charges referred to in Recitals B, C and D to the rights of the Municipality under the Players/West Diamond Principles As Amended and under the Stevens Road Extension Agreement. A copy of the Stevens Road Extension Agreement is contained in Schedule "H" to the Principles. F. Royal Bank has agreed to assume the covenants of the parties to the Players/West Diamond Principles As Amended and the covenants of certain of the parties to the Stevens Road Extension Agreement on the terms set out below in this Assumption Agreement. G. The parties hereto other than the Municipality have consented to the registration of a Notice of this Assumption Agreement on the title to the lands owned by them as referred to in Recital A. - 3 - H. The execution of this Assumption Agreement by the Mayor and the Municipal Clerk on behalf of the Municipality of Clarington is authorized by By-law 2007-144 passed by the Municipality's Council at its meeting on June 25, 2007. NOW THEREFORE in consideration of the premises herein contained and the sum of TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt whereof by each of the parties is hereby acknowledged) each of the parties covenants and agrees with the other parties as follows: RECIT ALS 1. Each of Recitals C to G, inclusive, is hereby incorporated into the operative part of this Assumption Agreement and shall be construed and given effect as covenants contained in this Assumption Agreement. ASSUMPTION OF COVENANTS BY ROYAL BANK AS CHARGEE UNDER INSTRUMENT No. DR265437 2. Pursuant to and in accordance with paragraph 18(a) of the Players/West Diamond Principles As Amended as Chargee under the Charge registered in the Land Registry Office as Instrument No. DR265437 hereby assumes each of Players/West Diamond's covenants contained in the Players/West Diamond Principles As Amended on the same basis and to the same extent as if Royal Bank had been a party to it, provided that Royal Bank shall not be bound by such covenants unless and until and to the extent that it takes possession or control of the land to which Instrument No. DR265437 applies. The provisions of paragraph 18(a) of the Players/West Diamond Principles As Amended apply to paragraph 2 of this Assumption Agreement with all necessary changes to it being assumed to have been made in order to give effect to the intent of paragraph 2 of this Assumption Agreement. The assumption by Royal Bank hereunder shall expire and terminate upon the discharge ofInstrument No. DR265437. ASSUMPTION OF COVENANTS BY ROYAL BANK AS CHARGEE UNDER INSTRUMENT No. DR334854 3. Pursuant to and in accordance with paragraph 18(a) of the Players/West Diamond Principles As Amended, Royal Bank hereby assumes each of 1613881's covenants contained in the Players/West Diamond Principles As Amended on the same basis and to the same extent as if Royal Bank had been a party to it, provided that Royal Bank shall not be bound by such covenants unless and until and to the extent that it takes possession or control of the land to which Instrument No. DR334854 applies. The provisions of paragraph 18(a) of the Players/West Diamond Principles As Amended apply to paragraph - 4 - 3 of this Assumption Agreement with all necessary changes to it being assumed to have been made in order to give effect to the intent of paragraph 3 of this Assumption Agreement. The assumption by Royal Bank hereunder shall expire and terminate upon the discharge of Instrument No. DR334854. REGISTRATION OF ASSUMPTION AGREEMENT ON TITLE 4. Players, West Diamond and 1613881 consent to the registration of a Notice of this Assumption Agreement on the title to the lands owned by them as referred to in Recital A. FURTHER ASSURANCES 5. The parties hereto covenant and agree, after a request in writing by any party to the other parties, to forthwith execute and provide all further documents, instruments and assurances as may be necessary or required in order to carry out and give effect to the true intent of these presents, and to effect the registration against and release from title to the lands subject to this Assumption Agreement of such notices or other instruments in accordance with the provisions of this Assumption Agreement. No DEROGATION FROM PLAYERSIWEST DIAMOND PRINCIPLES AS AMENDED 6. Nothing contained in this Assumption Agreement shall derogate or shall be deemed to derogate in any way from the provisions of either the Players/West Diamond Principles As Amended or the Stevens Road Extension Agreement and time shall continue to be of their essence. TIME OF ESSENCE 7. Time is of the essence of this Assumption Agreement. ENUREMENT 8. This Assumption Agreement shall enure to the benefit of and be bind the parties hereto, their respective successors and assigns. LAWS OF ONTARIO ApPLY 9. The parties agree that this Assumption Agreement shall be interpreted, applied and enforced in accordance with the laws of the Province of Ontario and without limiting the - 5 - generality of the foregoing, the laws of the Province of Ontario shall be applied to determine the rights and duties of the parties hereunder. NOTICE 10. If any notice or other document is required to be or may be given by the Municipality or by any official of the Municipality or by any of the other parties hereto by this Assumption Agreement, such notice shall be mailed by first class prepaid post, mailed by first class registered prepaid post, or delivered to: The Municipality: The Municipality of Clarington 40 Temperance Street Bowmanville, ON L 1 C 3A6 Attention: Director of Planning Services Fax: 905-623-0830 OR, Players: Players Business Park Ltd. 1700 Langstaff Road Suite 2003 Concord, ON L4K 3S3 Attention: Mr. Bruce Fischer AND: West Diamond: West Diamond Properties Inc. 30 Floral Parkway Concord, ON L4K 4Rl Attention: Mr. Robert DeGasperis AND: 1613881 1613881 Ontario Inc. 1700 Langstaff Road Suite 2003 Concorde, ON L4K 3S3 Attention: Mr. Bruce Fischer OR, Royal Bank Royal Bank of Canada 180 Wellington Street West 5th Floor Toronto, ON M5J 112 or such other address of which any party has notified the other parties in writing. Any such notice if mailed by first class prepaid post or delivered shall be deemed good and sufficient notice under the terms of this Assumption Agreement on the day on which it is received, if it is delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) otherwise such notice shall be deemed to be received on the next following business day (excluding Saturdays, Sundays and statutory holidays) after the day on which in fact it was delivered. If such notice is mailed by first class prepaid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the day on which it is mailed. Notwithstanding the foregoing, in the event that it may be reasonably - 6 - anticipated that due to Force Majeure any notice will not be received within the time limit set out above, then such notice shall be sent by an alternate means of transportation which may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. FORCE MAJEURE 11. In this Assumption Agreement, the term "Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military authority, acts of public enemies, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water, earthquake or other casualty, or an Act of God and any act, omission or event whether of the kind herein enumerated or otherwise not within the control of any of the parties to this Assumption Agreement, none of which has been caused by the deliberate default or act or omission by such parties and none of which has been avoidable by the exercise of reasonable effort or foresight by such parties of the parties hereto, as the case may be, shall notify the other parties to this Assumption Agreement of the commencement, duration and consequence (so far as the same is within the knowledge of such party, as the case may be) of any Force Majeure affecting the performance of any of its obligations hereunder within thirty (30) days of gaining such knowledge. AUTHORITY OF THE MUNICIPALITY 12. The parties hereto other than the Municipality acknowledge and agree that the Municipality has authority to enter into this Assumption Agreement, that every provision hereof is authorized by the law and is fully enforceable by any of the parties against any of the other parties, and that this Assumption Agreement is executed by the Municipality in reliance on the aforesaid acknowledgement and agreement. - 7 - IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED In the presence of: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) THE CORPORATION OF THE MUNICIPALITY OF CLARlNGTON Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk We have authority to bind the Corporation. ROYAL BANK OF CANADA Name: Title: Name: Title: I/We have authority to bind the Corporation. PLAYERS BUSINESS PARK L TD Name: Title: Name: Title: I/We have authority to bind the Corporation. WEST DIAMOND PROPETIES INC. Name: Title: Name: Title: 1613881 ONTARIO INC. Name: Title: Name: Title: I/We have authority to bind the Corporation. ASSUMPTION AGREEMENT PRINCIPLES OF UNDERSTANDING AS AMENDED THIS ASSUMPTION AGREEMENT made as of the 25th day of June, 2007. BET WEE N: THE CORPORATION OF THE MUNICIP ALITY OF CLARlNGTON (hereinafter called the "Municipality") OF THE FIRST PART - and - 672003 ONTARIO LIMITED (hereinafter called "672003") OF THE SECOND PART - and - PLAYERS BUSINESS PARK LTD. ("Players") and WEST DIAMOND PROPERTIES INC. ("West Diamond") (hereinafter collectively called the "Owners") OF THE THIRD PART - and - 1613881 ONTARIO INC. (hereinafter called "1613881") OF THE FOURTH PART WHEREAS: A. Principles of Understanding dated March 1, 2006 were made by the Owners, the Municipality and 1613881 ("Players/West Diamond Principles"). They were registered in the Land Registry Office for the Land Titles Division of Durham (No. 40) ("Land Registry Office") as Instrument No. DR495847 on the title to the lands identified by the following Property Identification Numbers ("PIN"). - 2 - PIN No. Owner 26612-0113 Players 26612-0114 West Diamond 26612-0024 Players 26613-0102 1613881 B. The Players/West Diamond Principles were amended by the First Principles of Understanding Amendment Agreement dated June 25, 2007, made between the Municipality, Players, West Diamond, 1613881, Royal Bank and 672003 Ontario Inc. and registered in the Land Registry Office as Instrument No. . The Players/West Diamond Principles as so amended is hereinafter referred to as the "Players/West Diamond Principles as Amended. C. A Charge in favour of 672003 dated October 10, 2004 was registered in the Land Registry Office on the title to the land identified by PIN #26613-0102 owned by 1613881 as Instrument No. DR334853. D. 672003 has agreed with the Municipality to postpone its rights under the Charge referred to in Recital C to the rights of the Municipality under the Players/West Diamond Principles as Amended. E. 672003 has agreed to assume the covenants of the parties to the Players/West Diamond Principles As Amended on the terms set out below in this Assumption Agreement. F. 1613881 has agreed to the registration ofa Notice of this Assumption Agreement on the title to the lands owned by it as referred to in Recital A. G. The execution of this Assumption Agreement by the Mayor and the Municipal Clerk on behalf of the Municipality of Clarington is authorized by By-law 2007-145 passed by the Municipality's Council at its meeting on June 25, 2007. NOW THEREFORE in consideration of the premises herein contained and the sum of TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt whereof by each of the parties is hereby acknowledged) each of the parties covenants and agrees with the other parties as follows: - 3 - RECITALS 1. Each of Recitals D to F, inclusive, is hereby incorporated into the operative part of this Assumption Agreement and shall be construed and given effect as covenants contained in this Assumption Agreement. ASSUMPTION OF COVENANTS BY 672003 AS CHARGEE UNDER INSTRUMENT No. DR334853 2. Pursuant to and in accordance with paragraph 18(a) of the Players/West Diamond Principles As Amended, 672003 as Chargee under the Charge registered in the Land Registry Office as Instrument No. DR265437 hereby assumes each of Players/West Diamond's covenants contained in the Players/West Diamond Principles As Amended on the same basis and to the same extent as if 672003 had been a party to it, provided that 672003 shall not be bound by such covenants unless and until and to the extent that it takes possession or control of the land to which Instrument No. DR334853 applies. The provisions of paragraph 18(a) of the Players/West Diamond Principles As Amended apply to paragraph 2 of this Assumption Agreement with all necessary changes to it being assumed to have been made in order to give effect to the intent of paragraph 2 of this Assumption Agreement. The assumption by 672003 hereunder shall expire and terminate upon the discharge of Instrument No. DR,334853. REGISTRATION OF ASSUMPTION AGREEMENT ON TITLE 3. 1613881 hereby consents to the registration of a Notice of this Assumption Agreement on the title to the lands owned by it as referred to in Recital A. FURTHER ASSURANCES 4. The parties hereto covenant and agree, after a request in writing by any party to the other parties, to forthwith execute and provide all further documents, instruments and assurances as may be necessary or required in order to carry out and give effect to the true intent of these presents, and to effect the registration against and release from title to the lands subject to this Assumption Agreement of such notices or other instruments in accordance with the provisions of this Assumption Agreement. No DEROGATION FROM PLAYERSIWEST DIAMOND PRINCIPLES AS AMENDED 5. Nothing contained in this Assumption Agreement shall derogate or shall be deemed to derogate in any way from the provisions of the Players/West Diamond Principles As Amended and time shall continue to be of the essence of the Players/West Diamond Principles As Amended. - 4 - TIME OF ESSENCE 6. Time is of the essence of this Assumption Agreement. ENUREMENT 7. This Assumption Agreement shall enure to the benefit of and shall bind the parties hereto, their respective successors and assigns. LAWS OF ONT ARlO ApPLY 8. The parties agree that this Assumption Agreement shall be interpreted, applied and enforced in accordance with the laws of the Province of Ontario and without limiting the generality of the foregoing, the laws of the Province of Ontario shall be applied to determine the rights and duties of the parties hereunder. NOTICE 9. If any notice or other document is required to be or may be given by the Municipality or by any official of the Municipality or by any of the other parties hereto by this Assumption Agreement, such notice shall be mailed by first class prepaid post, mailed by first class registered prepaid post, or delivered to: The Municipality: The Municipality of Clarington 40 Temperance Street Bowmanville, ON L I C 3A6 Attention: Director of Planning Services Fax: 905-623-0830 OR, Players: Players Business Park Ltd. 1700 Langstaff Road Suite 2003 Concord, ON L4K 3S3 Attention: Mr. Bruce Fischer AND: West Diamond: West Diamond Properties Inc. 30 Floral Parkway Concord, ON L4K 4Rl Attention: Mr. Robert DeGasperis AND: 1613881 1613881 Ontario Inc. 1700 Langstaff Road Suite 2003 Concorde, ON L4K 3S3 Attention: Mr. Bruce Fischer OR, - 5 - 672003 672003 Ontario Limited (Address) or such other address of which any party has notified the other parties in writing. Any such notice if mailed by first class prepaid post or delivered shall be deemed good and sufficient notice under the terms of this Assumption Agreement on the day on which it is received, if it is delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) otherwise such notice shall be deemed to be received on the next following business day (excluding Saturdays, Sundays and statutory holidays) after the day on which in fact it was delivered. If such notice is mailed by first class prepaid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the day on which it is mailed. Notwithstanding the foregoing, in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above, then such notice shall be sent by an alternate means of transportation which may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. FORCE MAJEURE lO. In this Assumption Agreement, the term "Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military authority, acts of public enemies, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water, earthquake or other casualty, or an Act of God and any act, omission or event whether of the kind herein enumerated or otherwise not within the control of any of the parties to this Assumption Agreement, none of which has been caused by the deliberate default or act or omission by such parties and none of which has been avoidable by the exercise of reasonable effort or foresight by such parties of the parties hereto, as the case may be, shall notify the other parties to this Assumption Agreement of the commencement, duration and consequence (so far as the same is within the knowledge of such party, as the case may be) of any Force Maj eure affecting the performance of any of its obligations hereunder within thirty (30) days of gaining such knowledge. AUTHORITY OF THE MUNICIPALITY 11. The parties hereto other than the Municipality acknowledge and agree that the Municipality has authority to enter into this Assumption Agreement, that every provision hereof is authorized by the law and is fully enforceable by any of the parties against any - 6 - of the other parties, and that this Assumption Agreement is executed by the Municipality in reliance on the aforesaid acknowledgement and agreement. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED In the presence of: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) THE CORPORATION OF THE MUNICIPALITY OF CLARlNGTON Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk We have authority to bind the Corporation. 672003 ONTARIO LIMITED Name: Title: Name: Title: I1We have authority to bind the Corporation. PLAYERS BUSINESS PARK L TD Name: Title: Name: Title: I1We have authority to bind the Corporation. WEST DIAMOND PROPETIES INC. Name: Title: Name: Title: 1613881 ONTARIO INC. Name: Title: Name: Title: I1We have authority to bind the Corporation. SUBDIVISION/CONSENT AGREEMENT THIS SUBDIVISION/CONSENT AGREEMENT made as of the 25th day of June, 2007. BETWEEN: PLAYERS BUSINESS PARK LTD. and WEST DIAMOND PROPERTIES INC. (hereinafter collectively called "Players/West Diamond") OF THE FIRST PART - and - THE CORPORATION OF THE MUNICIP ALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE SECOND PART - and - ROYAL BANK OF CANADA (hereinafter called the "Mortgagee") OF THE THIRD PART WHEREAS: A. Players/West Diamond, 1613881 Ontario Inc. and the Municipality entered into Principles of Understanding dated March 1, 2006 which are registered as Instrument No. DR495847 in the Land Registry Office for the Land Titles Division of Durham (No. 40) ("Land Registry Office"). These were amended by the First Principles of Understanding Amendment Agreement dated June 25, 2007 and registered in the Land Registry Office as Instrument No. DR . The Principles of Understanding as so amended are referred to in this Subdivision/Consent Agreement as the "Players/West Diamond Principles". B. The lands to which this Subdivision/Consent Agreement applies are more particularly described in Schedule "A" hereto ("Players/West Diamond Lands"). - 2 - c. Players/West Diamond represents and warrants that it is the registered owner in fee simple of the Players/West Diamond Lands subject to a mortgage or charge registered in favour of the Mortgagee as Instrument No. DR265437 ("Mortgage") in the Land Registry Office for the Land Titles Division of Durham (No. 40) ("Land Registry Office"). The Mortgagee has agreed to postpone its rights under the Mortgage to the right of the Municipality under the Players/West Diamond Principles, the Stevens Road Extension Agreement and this Subdivision/Consent Agreement. D. On , 2007, the Regional Municipality of Durham's Land Division Committee under File Numbers LD 124/2007, LD 125/2007, LD 126.2007, LD 127/2007, LD 128/2007, LD 129/2007, LD 130/2007 and LD 131/2007 gave its provisional consent ("Provisional Consent") under section 53 of the Planning Act, R.S.O. 1990, c.P.13, as amended, to among other consents to proposed transfers of portions of the Players/West Diamond Lands, the transfer by Players/West Diamond of the portion of the Players/West Diamond Lands which are more particularly described in Schedule "B" hereto as "Severed Lands-West Parcel" and "Severed Lands-East Parcel". The Provisional Consent is subject to certain conditions including the making of this Subdivision/Consent Agreement. A copy of the Provisional Consent is contained in Schedule "c" hereto. E. Following satisfaction of the conditions to the Provisional Consent and the issuance of a certificate that the consent has been given pursuant to subsection 53(42) of the Planning Act, Players/West Diamond intend to transfer the Severed Lands- West Parcel and the Severed Lands- East Parcel for development thereon of large format retail stores on each of them in accordance with the Municipality's Official Plan Amendment No. 44 and Zoning By-law Amendment 2006- 047. F. A copy of the concept plan for development of the Players/West Diamond Lands is contained in Schedule "c" of the Players/West Diamond Principles. It is referred to hereinafter in this Subdivision/Consent Agreement as the "Concept Plan for Development". The Concept Plan for Development was endorsed in principle by the Municipality's Council's Resolution #C- 113-06 passed at its special meeting on March 1, 2006. A copy of Resolution #C-113-06 is contained in Schedule "D" of the Players/West Diamond Principles. G. The Stevens Road Extension Agreement dated March 1, 2006 has been executed by the Municipality, Halloway Holdings Limited, Players Business Park Ltd. and West Diamond Properties Inc. A copy of it is contained in Schedule "H" of the Players/West Diamond Principles. - 3 - H. Players/West Diamond has agreed to transfer (1) Parts 18,25,26,27 and 45 on Reference Plan 40R-24933 to the Municipality for the purpose of widening Green Road; (2) Part 4 on Plan 40R-24933 for the purpose of Boswell Drive north of Durham Highway 2; (3) Blocks 96 and 97 on Plan 40M-1904 for the purpose of Boswell Drive south of Regional Highway 2; and (4) Part 5 on Plan 40R-24933 for the purpose of establishing a 0.3 metre reserve on the westerly side of the Boswell Drive right-of-way north of Regional Highway 2, all as provided below in this Subdivision/Consent Agreement. I. This Subdivision/Consent Agreement is made pursuant to subsection 53(12) of the Planning Act, RS.O. 1990, c.P.13, as amended. 1. The execution of this Subdivision/Consent Agreement by the Mayor and the Municipal Clerk on behalf of the Municipality of Clarington is authorized by By-law 2007-146 passed by the Municipality's Council at its meeting on June 25, 2007. NOW THEREFORE in consideration of the premises herein contained and the sum of TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt whereof by each of the Parties is hereby acknowledged) each of the Parties covenants and agrees with the other Parties as follows: RECITALS AND SCHEDULES 1. (a) Each of Recitals B, D to H and Schedules "A" to "K" are hereby incorporated into the operative part of this Subdivision/Consent Agreement and each shall be construed and given the same effect as covenants contained in this Subdivision/Consent Agreement. (b) In this Subdivision/Consent Agreement, unless otherwise provided the term "Director" means the Municipality's Director of Engineering Services. LANDS TO BE TRANSFERRED TO MUNICIPALITY FOR THE PORTION OF BOSWELL DRIVE. INTERSECTION IMPROVEMENTS A 0.3 METRE RESERVE ON BOSWELL DRIVE AND THE WIDENING OF GREEN ROAD 2. On or prior to the execution of this Subdivision/Consent Agreement by the Municipality, Players/West Diamond shall transfer or cause to be transferred to the Municipality for a nominal consideration the lands more particularly described as Parts 4, 5, 18, 25, 26, 27 and 45 on Reference Plan 40R-24933 in fee simple free and clear of encumbrances and restrictions, except that Players/West Diamond may reserve from Part 4 on Plan 40R- 24933 an easement or a right in the nature of an easement for access to and egress from the Players/West Diamond Lands, and Durham Highway 2 which easement or right shall - 4 - terminate automatically when the Municipality establishes the section of Boswell Drive to be located on Part 4 on Plan 40R-24933 as a public highway pursuant to the Municipal Act, 2001, as amended. On or prior to the execution of this Subdivision/Consent Agreement by the Municipality, Players/West Diamond also shall transfer to the Municipality for a nominal consideration Blocks 96 and 97 on registered Plan of Subdivision 40M-1904 free and clear of encumbrances and restrictions. The transfers shall be in a form satisfactory to the Municipality's Solicitor. They shall be registered on title at the cost of Players/West Diamond including the payment of any Land Transfer Tax and the payment to the Municipality of its reasonable legal costs. DRAINAGE. EROSION CONTROL. GRADING. LANDSCAPING AND SERVICING OF PLA YERS/WEST DIAMOND LANDS 3. Players/West Diamond at its cost shall undertake, complete and maintain the grading, construction and installation of the services, works and landscaping required to be implemented in accordance with the following plans and drawings as finally approved by and on file with the Director and the Municipality's Director of Planning Services: Drawing Title Drawing Dated Last Prepared By No. Revision Date General Notes G-1 0 1 October February 16, Sernas Associates 2006 2007 Overall Site Servicing SS-101 October February 16, Sernas Associates Plan 2006 2007 Legends and S-101 January February 16, Sernas Associates Abbreviations 2004 2007 Easement: From Green S-106 November February 16, Sernas Associates Rd to 225 m west of 2006 2007 Green Rd Easement: From 225 m S-107 November February 16, Sernas Associates west of Green rd to 2006 2007 Boswell Dr Overall Sanitary G-I02A October February 16, Sernas Associates Drainage Plan 2006 2007 Overall Storm Drainage G-I02B October February 16, Sernas Associates Plan 2006 2007 Temporary Erosion & ERS-101 October February 16, Sernas Associates Sediment Control Plan 2006 2007 Site Grading Plan SG-1 0 1 October February 16, Sernas Associates 2006 2007 Landscape Plan L-1 March 21, TerraPlan Landscape 2005 Architects Landscape Plan L-2 March 21, TerraPlan Landscape 2005 Architects BOSWELL DRIVE WORKS 4. (a) Schedules "D" to "I" inclusive apply in respect of the Boswell Drive Works and the Security for the Maintenance Guarantee for the Boswell Drive Works. The Boswell Drive Works are more particularly described in Schedule "D" hereto. - 5 - (b) Players/West Diamond shall undertake, complete and maintain the Boswell Drive Works at its cost in accordance with Schedule "E" hereto. On or before the execution of this Subdivision/Consent Agreement by the Municipality, Players/West Diamond shall deposit cash or an irrevocable unconditional letter of credit with the Municipality in the amount shown in the "Boswell Drive Works Cost Estimate" contained in Schedule "J" hereto as the performance guarantee ("Boswell Drive Works Performance Guarantee") required by Schedule "F" hereto. (c) No large format retail store shall be occupied for the purpose of conducting retail sales on any portion of the Players/West Diamond Lands until the Director gives Players/West Diamond notice that the construction and installation of the Boswell Drive Works with the exception of the top course of asphalt and landscaping have been completed to his satisfaction. (d) None of the provisions of paragraph 4(c) shall be deemed to prohibit the occupation of a large format retail store on any portion of the Players/West Diamond Lands only for the purposes of stocking it with merchandise and the training of staff. DURHAM HIGHWAY 2 LANDSCAPING AND STREETSCAPING 5. On or prior to the execution of this Subdivision/Consent Agreement by the Municipality, Players/West Diamond shall pay to the Municipality the sum of Three Hundred and Five Thousand ($305,000.00) Dollars for use by the Municipality in constructing and installing landscaping and streetscaping works on Durham Highway 2 between Boswell Drive and Green Road. STEVENS ROAD EXTENSION 6. (a) Players/West Diamond agree with the Municipality that the Developer-Funded section of the Stevens Road Extension as defined and provided for in the Stevens Road Extension Agreement is a local service within the meaning of section 59 of the Development Charges Act, 1997, S.D. 1997, c.27, as amended. (b) Players/West Diamond acknowledge that the "Urban Profile Works" on the "Developer- Funded Section" of the Stevens Road Extension as both terms are described and defined in the Stevens Road Extension Agreement will be designed and constructed on the aforesaid Developer-Funded Section. The Municipality acknowledges that Players/West Diamond has deposited with the Municipality the "Performance Guarantee" (as defined in the Stevens Road Extension Agreement) to secure its obligation to pay for fifty (50%) per cent of the cost of the aforesaid Urban Profile Works as is required by and in accordance with the Stevens Road - 6 - Extension Agreement. The terms "Urban Profile Works" and "Developer-Funded Section" have the same meaning as they have in the Stevens Road Extension Agreement. PRIVATE ROADS A. Bl AND B2 7. (a) Private Roads A, B 1 and B2 are shown on the Concept Plan for Development. The lands which comprise Private Road A are more particularly described as Parts 8, 9, 11, 12, 13, 14, 29, 30, 32 and 33 on Plan 40R-24933 The lands which comprise Private Road B 1 are more particularly described as Parts 2, 34 and 40 on Plan 40R-24933 _. The lands which comprise Private Road B2 are more particularly described as Parts 20, 23 and 38 on Plan 40R-24933. (b) Players/West Diamond shall construct at its cost the "Private Roads A, B 1 and B2 Improvements" (as hereinafter defined) shown on the Concept Plan for Development in accordance with the construction drawings, specifications, cross- sections and streetscaping improvements including lighting all as contained in Schedule "F" of the Players/West Diamond Principles of Understanding As Amended ("Private Roads A, B 1 and B2 Improvements") in accordance with the applicable Private Roads A, B 1 and B2 Improvements, Construction, Completion Schedule contained in paragraph 7(t), to the satisfaction of the Director. The parties agree that any of the aforementioned drawings, cross-sections and specifications may be revised in an agreement between Players/West Diamond and the Municipality made pursuant to section 41 of the Planning Act without amendment being made to this Subdivision/Consent Agreement. (c ) Players/West Diamond at its cost will keep the Private Roads A, B 1 and B2 Improvements after they have been constructed in a proper state of repair and maintain it in a reasonable and proper manner, provided that Players/West Diamond's duty to do so shall terminate on the day on which the Municipality exercises its option to purchase Private Roads A, B 1 and B2 in accordance with paragraph 7 (b) of the Players/West Diamond Principles, and provided further that Players/West Diamond shall remain responsible for the cost of the rectification of all deficiencies that have been identified prior to the day on which the aforesaid option to purchase is exercised in a written notice given by the Director to Players/West Diamond, pursuant to paragraph 7(e) of this Subdivision/Consent Agreement. Paragraph 7(e) shall apply with all necessary changes to it being assumed to have been made to give effect to this paragraph 7( c). ( d) Players/West Diamond hereby permits the Municipality, its employees, contractors and agents to enter on and to inspect the state of repair and the maintenance of the Private Roads A, Bl and B2 Improvements from time to time. - 7 - (e) If any deficiency in the repair or maintenance of the Private Road A, Bland B2 Improvements is identified by the Director, he shall forthwith give written notice of the same to Players/West Diamond requiring the rectification of such deficiency by a date specified in the written notice. If Players/West Diamond fail to rectify the deficiency on or before the date specified in the written notice, the Municipality, its employees, contractors and agents may enter on Private Roads A, Bland B2, as the case may be, and cause the deficiency identified in the aforesaid written notice to be rectified at the expense of Players/West Diamond. Forthwith after rectifying the deficiency, the Director shall give written notice to Players/West Diamond of the cost of rectifying it shall include an allowance of thirty (30%) per cent to be paid to the Municipality for its overhead expenses. Forthwith after being given written notice of the cost of rectifying the deficiency as aforesaid, Players/West Diamond shall pay the amount in question as a debt owed by Players/West Diamond to the Municipality. (f) The Private Roads A, BI and B2 Improvements shall be constructed and completed by Players/West Diamond in accordance with the applicable Construction and Completion Schedule set out below: Private Roads A. Bl and B2 Improvements-Construction and Completion Schedule Private Road "A" Improvements Part Numbers on Phase 1 Works Final Construction Works Reference Plan 40R- 24933 8, 11,30, and 33 Full pavement width, final Not Applicable asphalt coat, full curbing, and landscaping and streetscaping all completed in accordance with Principles of Understanding in conjunction with the construction of a building on Part 1 on Plan 40R-24933 9, 12,29, and 32 Full pavement width, final All landscaping and asphalt coat, and full curbing streetscaping completed in all completed in accordance accordance with Principles of with Principles of Understanding in connection Understanding in with the construction of a conjunction with the building on Parts 21,39 and construction of a building on 44 on Plan 40R-4933 Part 1 on Plan 40R-24933 West Side of 13 and 14 Full pavement width, final All landscaping and asphalt coat, and full curbing streetscaping completed in all completed in accordance accordance with Principles of with Principles of Understanding as part of the Understanding in construction of Building "COO conjunction with the located within Part 10 of construction of a building on Reference Plan 40R-24933 Part 1 on Plan 40R-24933 - 8 - East Side of 13 and 14 Full pavement width, final All landscaping and asphalt coat, and full curbing streetscaping completed in all completed in accordance accordance with Principles of with Principles of Understanding as part of the Understanding in construction of Building "E" conjunction with the located within Part I 5 of construction of a building on Reference Plan 40R-24933 Part I on Plan 40R-24933 Private Road Bl Improvements Part Numbers on Phase 1 Works Final Construction Works Reference Plan 40R- 24933 2, 34, and 40 Full pavement width, Not Applicable final asphalt coat, full curbing, and landscaping and streetscaping all completed in accordance with Principles of Understanding in conjunction with the construction of a building on Part I on Plan 40R- 24933 Private Road B2 Improvements Part Numbers on Phase 1 Works Final Construction Works Reference Plan 40R- 24933 20,23, and 38 Base asphalt and full aisle Full pavement width, final width to a width of 9 asphalt coat, full curbing, and metres in conjunction landscaping and streetscaping all with the construction of a completed in accordance with building on Part I on Plan Principles of Understanding in 40R-24933 conjunction with the construction of a building on Parts 21,39 and 44 on Plan 40R-24933 The Phase I Works which compnse part of the Private Roads A, Bl and B2 Improvements, subject to the provisions of subparagraph 7(g), shall be completed before any building located on the Players/West Diamond Lands is occupied for the purpose of conducting retail sales therein. (g) Where paragraph 7(f) provides that Private Roads A, Bl and B2 Improvements are to be undertaken in conjunction with the construction of a building, such Private Roads A, Bland B2 Improvements shall be commenced and constructed in accordance with the conditions of Site Plan Approval and the Site Plan Agreement respecting such building, and shall be completed to the satisfaction of the Director of Planning Services prior to the occupancy of such building, except that any top course of asphalt and any landscaping shall be completed in - 9 - accordance with the timing provided for in the applicable conditions of Site Plan Approval and Site Plan Agreement. No such building shall be occupied for the purpose of conducting retail sales therein until the Private Roads A, Bland B2 Improvements required to be completed prior to its occupancy pursuant to paragraph 7(t) and this paragraph 7(g) have been completed to the satisfaction of the Director. (h) Players/West Diamond agree that they shall construct and maintain the Phase 1 Works respecting Private Road B2 as set out in paragraph 7(t) to the satisfaction of the Director in order to provide a temporary road to service the Severed Lands until such time as a building permit is issued for a large format retail store to be constructed on Parts 21, 39 and 44 on Plan 40R-24933 in accordance with the Concept Plan for Development. Players/West Diamond shall commence the reconstruction of Private Road B2 in order to complete the applicable Private Road B2 Improvements set out as the Final Construction Works in paragraph 7(t) in accordance with the conditions of Site Plan Approval and the Site Plan Agreement for such large format retail store, and shall complete the same prior to the occupation of the large format retail store on Parts 21,39 and 44 on Plan 40R- 24933 for the purpose of conducting retail sales to members of the public, except that the top course of asphalt and landscaping shall be completed in accordance with the timing provided for in the applicable conditions of Site Plan Approval and Site Plan Agreement. The Municipality acknowledges and agrees that Private Road B2 may be closed to use for other than-construction access purposes during the construction of a large format retail store on Parts 21, 39 and 44 on Plan 40R- 24933 and/or during the aforesaid reconstruction of Private Road B2. INCORPORATION OF PLAYERSIWEST DIAMOND PRINCIPLES AND STEVENS ROAD EXTENSION AGREEMENT 8. The Players/West Diamond Principles and the Stevens Road Extension Agreement are incorporated by reference in their entirety in the operative part of this Subdivision/Consent Agreement. Each of the Municipality and Players/West Diamond covenants to observe and perform their respective obligations under the Players/West Diamond Principles and the Stevens Road Extension Agreement, as each may be amended, restated, modified, supplemented by them and/or assigned and assumed from time to time. Notwithstanding the foregoing, the Players/West Diamond Principles, and the Stevens Road Extension Agreement continue in force and effect and time continues to be of their essence. POSTPONEMENT OF MORTGAGE 9. The Mortgagee hereby postpones its rights under the Mortgage registered in the Land Registry Office as Instrument No. DR265437 to the rights of the Municipality under the - 10- Players/West Diamond Principles, the Stevens Road Extension Agreement and this Subdivision/Consent Agreement. The parties acknowledge that the Mortgagee has executed this Subdivision Agreement only for the purpose of effecting the aforesaid postponement. SOLICITOR'S CERTIFICATE REQUIRED 10. On or prior to the execution of this Subdivision/Consent Agreement by the Municipality, Players/West Diamond shall provide the Municipality with a letter signed by an Ontario Solicitor and addressed to the Municipality certifying as to the title to the Players/West Diamond Lands and setting out the names of all persons having an interest in them and the nature of their interests. NOTICE 11. If any notice or other document is required to be or may be given by the Municipality or by any official of the Municipality to Players/West Diamond by this Subdivision/Consent Agreement, such notice shall be transmitted by telefax, mailed by first class prepaid post or delivered to: Players/ : West Diamond Players Business Park Ltd. 1700 Langstaff Road Suite 2003 Concord, ON L4K 3S3 Attention: Mr. Bruce Fischer West Diamond Properties Inc. 30 Floral Parkway Concord, ON L4K 4Rl Attention: Mr. Robert DeGasperis OR, Municipality: The Municipality of Clarington 40 Temperance Street Bowmanville, ON LIC 3A6 Attention: Director of Planning Services Fax: 905-623-0830 or such other telefax number or address of which any party has notified the other parties in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this Agreement and if telefaxed or delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) shall be deemed to have been received at the time of delivery or transmission and if mailed by pre-paid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the mailing thereof. Notwithstanding the foregoing, in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit - 11 - set out above, then such notice shall be sent by an alternate means of transportation which may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. FORCE MAJEURE 12. In this Subdivision/Consent Agreement, the term "Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military authority, acts of public enemies, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water, earthquake or other casualty, or an Act of God and any act, omission or event whether of the kind herein enumerated or otherwise not within the control of Player/West Diamond, none of which has been caused by the deliberate default or act or omission by such party and none of which has been avoidable by the exercise of reasonable effort or foresight by such party. Player/West Diamond or the Municipality, as the case may be, shall notify the other parties to this Subdivision/Consent Agreement of the commencement, duration and consequence (so far as the same is within the knowledge of Player/West Diamond or the Municipality, as the case may be) of any Force Majeure affecting the performance of any of its obligations hereunder within thirty (30) days of gaining such knowledge. ACTING REASONABLY 13. All discretionary decisions by officials of the Municipality referred to in this Subdivision/Consent Agreement shall be deemed to be qualified by the words "acting reasonably" . REIMBURSEMENT OF MUNICIPALITY'S COSTS 14. Players/West Diamond shall pay to the Municipality its reasonable legal costs and disbursements incurred in preparing, settling and registering on titles the First Principles of Understanding Amendment Agreement dated June 25, 2007, the Servicing Agreement between the Municipality, Players/West Diamond, 1613881 Ontario Inc. and Royal Bank of Canada dated June 25, 2007, this Subdivision/Consent Agreement, the Assumption Agreement between the Municipality, Players/West Diamond, 1613881 and Royal Bank of Canada .dated June 25, 2007, the Assumption Agreement between the Municipality, Players/West Diamond, 1613881 Ontario Inc., and Royal Bank of Canada dated June 25, 2007, the Assumption Agreement between the Municipality, Players/West Diamond, 1613881 Ontario Inc., and 672003 Ontario Limited dated June 25, 2007, Conditions of Site Plan Approval issued by the Municipality for any development(s) on the Players/West Diamond Land and Site Plan Agreement(s) made as a condition of Site Plan Approval(s). - 12 - CHANGES IN NUMBER OR GENDER 15. This Subdivision/Consent Agreement shall be read with all changes of gender or number required by the context in which the words or figures in question appear. ENUREMENT 16. This Subdivision/Consent Agreement shall enure to the benefit of and be binding on the parties hereto, and their respective successors and assigns. STATUS STATEMENT 17. Within ten (10) days of receiving a written request from Players/West Diamond, the Municipality shall provide a written statement either confirming that Players/West Diamond is in good standing and not in default of any provisions of this Subdivision/Consent Agreement, or setting out the manner and extent to which Players/West Diamond is in default. AUTHORITY OF MUNICIPALITY 18. Players/West Diamond acknowledges and agrees that the Municipality has authority to enter into this Subdivision/Consent Agreement, that every provision hereof is authorized by the law and fully enforceable by the parties, and that this Subdivision/Consent Agreement is executed by the Municipality in reliance on the acknowledgement and agreement of Players/West Diamond as aforesaid. REGISTRATION OF SUBDIVISION/CONSENT AGREEMENT ON TITLE TO PLAYERSIWEST DIAMOND LANDS 19. Players/West Diamond hereby consents to the registration of a Notice of this Subdivision/Consent Agreement on the title to the Players/West Diamond Lands. TIME OF THE ESSENCE 20. Time is of the essence of this Subdivision/Consent Agreement. - 13 - IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED In the presence of: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Jim Abernethy, Mayor Patti 1. Barrie, Municipal Clerk We have authority to bind the Corporation. PLAYERS BUSINESS PARK LTD. Name: Title: Name: Title: I/We have authority to bind the Corporation WEST DIAMOND PROPERTIES INC. Name: Title: Name: Title: I/We have authority to bind the Corporation ROYAL BANK OF CANADA Name: Title: Name: Title: I/We have authority to bind the Corporation SCHEDULE "A" THIS SCHEDULE IS SCHEDULE "A" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-146 of The Corporation of the Municipality of Clarington enacted and passed the 25th day of June, 2007. Description of the PlaverslW est Diamond Lands The lands and premIses more particularly described as compnsmg Part of Lot 17, Concession 1, Part of Lot 17, Concession 2 and Part of the Road Allowance between Concessions 1 and 2 (closed by Instrument No. DNP2377, Geographic Township of Darlington, Municipality of Clarington, the Regional Municipality of Durham, now shown as Parts 1 to 48, inclusive, on a plan of survey of record deposited as Instrument No. 40R-24933 in the Land Registry Office for the Land Titles Division of Durham (No. 40). SCHEDULE "B" THIS SCHEDULE IS SCHEDULE "B" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-146 of The Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007. Severed Lands-West Parcel The lands and premises more particularly described as Parts 1,2,3,7,8, 11,30,31,33, 34,35,36,40,41 and 43 on Plan 40R-24933 registered in the Land Registry Office for the Land Titles Division of Durham (No. 40). Severed Lands-East Parcel The lands and premises more particularly described as Parts 9,12,17,19,20,21,22,23, 24, 28, 29, 32, 37, 38, 39, 43, 44, 46, 47 and 48 on Plan 40R-34933 registered in the Land Registry Office for the Land Titles Division of Durham (No. 40). SCHEDULE"C" THIS SCHEDULE IS SCHEDULE "C" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-146 of The Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007. Provisional Consent of the Re2ion of Durham Land Division Committee (Insert Provisional Consent) SCHEDULE "D" THIS SCHEDULE IS SCHEDULE "D" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-146 of The Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007. Description of Boswell Drive Works The Boswell Drive Works are shown on the following drawings as finally approved by and on file with the Municipality's Director of Engineering Services: Drawing Title Drawing Dated Last Revision Prepared By No. Date General Notes G-IOl October February 16, Semas Associates 2006 2007 Overall Site Servicing SS-101 October February 16, Semas Associates Plan 2006 2007 Legends and S-101 January February 16, Semas Associates Abbreviations 2004 2007 Boswell Drive: From P-I 0 I October February 16, Semas Associates STA 0+932.066 to STA 2006 2007 1+035.000 Boswell Drive: From P-I02 October February 16, Semas Associates STA 1+0.35.000 to STA 2006 2007 1+210.000 Boswell Drive: From P-I03 October February 16, Semas Associates STA 1+210.00 to STA 2006 2007 1+366.219 Boswell Drive Pavement PM-IOI August February 16, Semas Associates Marking Plan 2003 2007 Landscape Plan L-I March 21, June 15,2007 TerraPlan Landscape 2005 Architects Inc. For clarity, the Boswell Drive Works do not include a sidewalk on the westerly side of the Boswell Drive right-of-way. (Note: Reference to landscape/Streetscape drawing to be added to Chart when available.) SCHEDULE "J" THIS SCHEDULE IS SCHEDULE "J" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-146 of The Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007. Boswell Drive Works Cost Estimate Schedule "E" Page 1 SCHEDULE "E" THIS SCHEDULE IS SCHEDULE "E" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-146 of The Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007. BOSWELL DRIVE WORKS 1. Works Required (1) Players/West Diamond at its expense shall construct, install, supervlse and maintain the Boswell Drive Works including all connections, alterations, adjustments and transitions required to suit existing systems or lands in accordance with the Municipality's Design Criteria and Standard Drawings, and the Engineering Drawings, all to the approval of the Director: (a) A storm sewer system for the removal of upstream storm water and storm water originating within the Players/West Diamond Lands, including storm sewer mains and connections, manholes, service connections, catch- basins and rear yard catch-basins and leads, open channels, storm outfalls and structures and any other appurtenances and oversizing as may be required (the "Storm Sewer System"). (b) A stormwater management system consistent with the "Master Drainage Plan", complete with overland flow routes, detention and retention facilities, quality control devices, outlets, erosion and sedimentation control measures and any other necessary facilities as required (the "Stormwater Management System"). (c) A road system on the lands described as Part 4 on Plan 40R-24933 and Blocks 96 and 97 on Registered Plan of Subdivision 40M-1904 which accommodates the servicing of the Players/West Diamond Lands, providing for all vehicular and pedestrian traffic, including the removal or installation of turning circles, and the Works required within the road, including suitable sub grade, subbase and base granular materials, subdrains, base and top stage curbs and gutters, base and surface asphalt, traffic control and street name signs and sidewalks and all streetscape components including street trees, boulevard topsoil and sodding, street lighting, gravel driveway aprons, and where sidewalks exist, gravel driveway aprons with paved surfaces between curb and sidewalk (the "Road System"). Schedule "E" Page 2 (d) The above works shall include all urban roadwork components including sidewalks, curbs, granular material and asphalt pavement, and any necessary storm and sanitary sewer mains, watermains, connections, street lighting, street trees, utilities, including oversizing of works and any temporary or permanent works, transitions, tapers and connections, fencing, signage, topsoil and sodding and restoration, and any other related works deemed necessary by the Director. Such works shall be consistent with the Boswell Drive Works Drawings referred to in Schedule "D", including any revisions as finally approved by and on file with the Director. (e) A street lighting system which provides illumination of roads and walkways to serve the said Lands including all connections, energy and maintenance costs, appurtenant apparatus and equipment, in the locations as approved by the Director (the "Street Lighting System"). (f) Related Works including grading, landscaping, fencing, noise attenuation measures, walkways (including lighting) and other miscellaneous Works shown on the Engineering Drawings and Grading and Drainage Plan (the "Related Works"). PHASING OF THE WORKS The Works shall be divided into the following stages, unless approved by the Director: 1.(2) INITIAL WORKS Storm Sewer System including all appurtenances; initial roadworks including sub grade, subbase and base granular materials, subdrains, base curbs, base asphalt, traffic control and street name signs of the Road System; and grading (collectively called the "Initial Works"). 1.(3) STORMW A TER MANAGEMENT SYSTEM 1.(4) STREET LIGHTING SYSTEM Schedule "E" Page 3 1.(5) FINAL WORKS final roadworks including top curbs and gutters, surface asphalt, sidewalks, street trees, boulevard topsoil and sodding and driveway aprons of the Road System; and landscaping works, walkways and any remaining works not outlined in paragraphs 1.(2), 1.(3) and 1.(4) above. 1.(6) From the date of issuance of an "Authorization to Commence Works" (as hereafter defined) until the date of issuance of a "Certificate of Acceptance" (also as hereafter defined) of them Players/West Diamond shall be fully responsible for the construction and maintenance of the Boswell Drive Works including the cost thereof in accordance with the provisions of this Subdivision/Consent Agreement. After the issuance of a Certificate of Acceptance, the Works referred to in such Certificate shall be the responsibility of the Municipality. Players/West Diamond shall apply for an Authorization to Commence Works no later than the day on which an application is made for the issuance of a building permit to construct a large format retail store on the Players/West Diamond Lands. 2. Plavers/West Diamond's Em!:ineer At all times until this Subdivision/Consent Agreement is released, Players/West Diamond shall retain Players/West Diamond's Engineer who shall perform the duties set out in Schedule "H" to this Subdivision/Consent Agreement. On the execution of this Subdivision/Consent Agreement and on each occasion on which a new Players/West Diamond's Engineer is retained, forthwith after retaining Players/West Diamond's Engineer, Players/West Diamond shall give the Director written notice of the name, address and telefax number of Players/West Diamond's Engineer. No partnership, association of persons or corporation shall be retained as Players/West Diamond's Engineer without the prior written approval of the Director. All notices to be given to Players/West Diamond's Engineer are properly given if given by personal service, by telephonic facsimile communication, or first class prepaid post addressed to Players/West Diamond's Engineer at the address or telefax number provided to the Director pursuant to this paragraph. Forthwith after the Director gives Players/West Diamond written notice requiring it to do so, Players/West Diamond shall give the Director written notice advising him whether or not the approved Players/West Diamond's Engineer continues to be retained by Players/West Diamond. Schedule "E" Page 4 3. Desien of Boswell Drive Works (1 ) Players/West Diamond covenants and agrees that the design of the Boswell Drive Works shall conform with all applicable legislation and the Municipality's Design Criteria and Standard Detail Drawings. In the event of any dispute as to such requirements or their interpretation, the dispute shall be resolved by the Director whose decision shall be final. (2) Players/West Diamond shall provide and submit to the Director all necessary Engineering Drawings for the Boswell Drive Works. Players/West Diamond shall obtain all approvals for the construction and installation of the Boswell Drive Works as required by this Subdivision/Consent Agreement. 4. Eneineerine Drawines (1) Prior to the issuance of any Authorization to Commence Works, Players/West Diamond shall obtain the written approval of the Director of the original copy of all drawings of the Boswell Drive Works (the "Engineering Drawings"). If construction and installation of the Boswell Drive Works has not commenced within two (2) years from the date of approval of the Engineering Drawings, the Engineering Drawings shall be resubmitted to the Director for his reconsideration and approval after any revisions required by the Director have been made to them (the "Reapproved Engineering Drawings"). From and after the approval by the Director of the Reapproved Engineering Drawings, they shall be deemed to be the Engineering Drawings for the purpose of this Subdivision/Consent Agreement, and thereafter all Boswell Drive Works shall be constructed and installed in accordance with them. Players/West Diamond hereby irrevocably assigns to the Municipality without cost to the Municipality the right to use and to reproduce the Engineering Drawings and all reports that relate in whole or in part to the Boswell Drive Works which have been prepared by or for Players/West Diamond in connection with the performance of Players/West Diamond's obligations under this Subdivision/Consent Agreement. Players/West Diamond acknowledges that approval of the Engineering Drawings or reports by the Director shall not relieve Players/West Diamond from its obligation to satisfy all requirements of or made pursuant to this Subdivision/Consent Agreement. (2) Prior to the issuance of any Authorization to Commence Works, Players/West Diamond shall provide the Director without cost to the Municipality Players/West Diamond's Engineer's (1) written acknowledgement that the Engineering Drawings may be used and/or reproduced by the Municipality without cost or prior approval or permission, (2) written permission for the Municipality's officers, employees, agents, contractors and supplier to use the specifications, Schedule "E" Page 5 data, drawings, records and reports whether completed or in progress of completion in satisfaction of Players/West Diamond's obligations under the provisions of this Subdivision/Consent Agreement without cost or prior approval or permission, and (3) written undertaking to deliver to the Director the original copy of the Engineering Drawings forthwith after being given written notice by the Director requiring Players/West Diamond's Engineer to do so, whether or not Players/West Diamond's Engineer's fees and disbursements in respect of any of them have been paid. Prior to each occasion on which a new Players/West Diamond's Engineer is retained by Players/West Diamond and approval of the Director is sought, Players/West Diamond shall provide the Director with a similar written acknowledgement and written permission of the new Players/West Diamond's Engineer, provided that if the new Players/West Diamond's Engineer is to be retained by the Director on behalf of Players/West Diamond, the Director shall obtain from the prospective Players/West Diamond's Engineer the aforesaid written acknowledgement and permission. Forthwith after the Director gives Players/West Diamond's Engineer written notice requiring them or it to do so, copies of the Engineering Drawings, computer disks, specifications, data, drawings, records and reports referred to in this paragraph shall be provided to the Director without cost to the Municipality. 5. Stae:ine: of Construction of Works Not used 6. Approval of Schedule of Works Prior to the issuance of any Authorization to Commence Works respecting any of the Boswell Drive Works, Players/West Diamond shall obtain the written approval of the Director of a draft schedule (the "Schedule of Works") which sets out the time at which, and the sequence in which, Players/West Diamond proposes to construct and install the Boswell Drive Works. 7. Approval of Boswell Drive Works Cost Estimates The Municipality acknowledges that the Director has approved the "Boswell Drive Works Cost Estimates" contained in Schedule "I". 8. Requirements for Authorization to Commence Works Players/West Diamond shall not commence the construction or installation of any of the Boswell Drive Works without the written permission of the Municipality (the "Authorization to Commence Works"). Players/West Diamond shall only commence the Schedule "E" Page 6 construction and installation of those Boswell Drive Works permitted by the Authorization to Commence Works. 9. Inspection and Stop Work Players/West Diamond shall ensure that every contract that may be made by Players/West Diamond with any contractor to construct or install any of the Boswell Drive Works shall provide that employees or representatives of the Municipality may, at any time, inspect the Boswell Drive Works undertaken by such contractor and shall require the contractor to comply with stop work orders given by the Director pursuant to this paragraph 9. The Director may give Players/West Diamond a written order to stop the construction or installation of any of the Boswell Drive Works that is being undertaken by giving written notice either to Players/West Diamond or to Players/West Diamond's Engineer to that effect if in the Director's opinion either (1) the Boswell Drive Works are not being undertaking such that a completed construction and installation of all the Boswell Drive Works satisfactory to the Municipality in accordance with this Subdivision/Consent Agreement will result, or (2) the Performance Guarantee and the Security for the Maintenance Guarantee required to be provided pursuant to this Subdivision/Consent Agreement in respect of the Boswell Drive Works has not been deposited or is not maintained in good standing. Players/West Diamond shall comply with the stop work order forthwith after it is given by the Director in accordance with this paragraph 9 by requiring Players/West Diamond's contractor and sub-contractors who are constructing and installing the Boswell Drive Works or components thereof in question and are referenced in the order to comply with it forthwith. A stop work order may be given to Players/West Diamond by giving to Players/West Diamond's Engineer by personal service on Players/West Diamond's Engineer or any representative of Players/West Diamond's Engineer, by prepaid first class post addressed to Players/West Diamond's Engineer, or by telefax to Players/West Diamond's Engineer at the address and telefax number referred to in paragraph 2 of this Schedule. 10. Construction in Accordance with Emdneerine: Drawine:s The Boswell Drive Works shall be constructed and installed in accordance with the Engineering Drawings as approved by the Director. No deviation from the Engineering Drawings is permitted unless such deviation is authorized in writing by the Director before it is undertaken. All construction and installation of the Boswell Drive Works shall be undertaken and carried out by Players/West Diamond or by Players/West Diamond's contractor, as the case may be, in accordance with the regulations for construction set out in Schedule "H" to this Subdivision/Consent Agreement. Schedule "E" Page 7 11. Sequence of Construction of Works Following the issuance of an Authorization to Commence Works, Players/West Diamond shall proceed in good faith to construct and install all of the Boswell Drive Works referred to in the Authorization to Commence Works continuously and III accordance with the timing and sequence therefore set out in the Schedule of Works. 12. Completion Time for Construction of Works Within twelve (12) months of the date of the issuance of an Authorization to Commence Works, Players/West Diamond shall complete the construction and installation of the Boswell Drive Works authorized in such Authorization to Commence Works. 13. Additional Work Until the conclusion of the Maintenance Guarantee Period referable thereto, if in the opinion of the Director, any incidental work is required to provide for the adequate operation, functioning and maintenance of any of the Boswell Drive Works, Players/West Diamond, at its cost, shall construct and install such additional facilities and perform such additional work as the Director may request from time to time by written notice given to Players/West Diamond. 14. Incomplete or Faulty Works and Liens (1) Without derogating from the other provisions of this Subdivision/Consent Agreement, if, in the opinion of the Director, (1) Players/West Diamond is not constructing and installing or causing to be constructed or installed any of the Boswell Drive Works required by this Subdivision/Consent Agreement so that it or they will be completed within the time specified for such completion in the Schedule of Works, or (2) the Boswell Drive Works or any component(s) thereof are being improperly constructed or installed, or (3) Players/West Diamond neglects or abandons the said Boswell Drive Works or any part of them before completion, or (4) unreasonable delay occurs in the construction or installation of the Boswell Drive Works, or (5) for any other reason the Boswell Drive Works are not being constructed or installed properly and promptly and in full compliance with the provisions of this Subdivision/Consent Agreement, or (6) Players/West Diamond neglects or refuses to reconstruct or reinstall any of the Boswell Drive Works or component(s) thereof which may be rejected by the Director as being defective, deficient or unsuitable, or (7) Players/West Diamond otherwise defaults in performance of this Subdivision/Consent Agreement, the Director may give Players/West Diamond notice in writing of his opinion Schedule "E" Page 8 respecting any such matter. Following the later to occur of the expiry of ten (10) business days, excluding Saturdays and Sundays and statutory holidays following the giving of such notice plus the expiry of any additional period as may be specified in the notice given to Players/West Diamond by the Director, the Municipality, at the cost and expense of Players/West Diamond, may engage a contractor, supplier of services or materials and such workmen, and purchase such services, supplies and/or services as in the opinion of the Director are required for the completion of the construction and installation of the Boswell Drive Works and all components thereof and the performance of all covenants of Players/West Diamond relating to the Boswell Drive Works as provided by this Subdivision/Consent Agreement. In cases of emergency or urgency, or in order to preserve the integrity of the Boswell Drive Works or any component thereof as determined by the Director in his absolute discretion, any deficiency(s) or defect(s) in the Boswell Drive Works, and any failure to complete the Boswell Drive Works and all components thereof in accordance with this Subdivision/Consent Agreement may be corrected, remedied or completed by the Municipality, its contractors, suppliers and employees at the cost of Players/West Diamond without prior notice to Players/West Diamond, provided that forthwith after the Municipality so acts, the Director shall give written notice to Players/West Diamond of his determination as aforesaid, describing the action taken by the Director, and the cost of correcting or remedying the deficiency or default in question or the cost of completing the Boswell Drive Works and the components thereof, as the case may be. For the purposes of this paragraph 14(1) the cost of any work which the Municipality undertakes under this paragraph 14(1) shall be determined by the Director in his absolute discretion. It is understood and agreed by the Parties that the costs for which Players/West Diamond is responsible under this paragraph 14(1) shall include a management fee payable to the Municipality either of thirty (30%) percent of the contractor's charges to the Municipality (including any charges for overhead and profit) or, if such work is undertaken by the Municipality, thirty (30%) percent of all costs incurred by the Municipality to correct or remedy the deficiencies or defect or to complete the Boswell Drive Works and all components thereof as the case may be. Players/West Diamond shall pay the Municipality an amount equal to the cost of all Boswell Drive Works and components thereof, and the cost of correcting or remedying all deficiencies and defects referred to in this paragraph 14(1) which have been incurred by the Municipality or are estimated in the Director's absolute discretion to be likely to be incurred by the Municipality forthwith after the Director gives Players/West Diamond written demand for payment of such cost. If the amount paid is based on the Director's estimate as aforesaid, forthwith after actual costs are known the Director shall give Players/West Diamond written notice thereof. If the actual costs are more than the estimated costs, Players/West Schedule "E" Page 9 Diamond shall forthwith pay the Municipality an amount equal to the difference between them. If the actual costs are less than the estimated costs, the Municipality shall forthwith refund the difference between them to Players/West Diamond. (2) In the event (1) a claim for a lien in respect of the Boswell Drive Works or any component thereof is registered against the title to any land vested in or which should have been vested in the Municipality or is filed with the Municipality, or (2) the Municipality receives written notice of a claim of an alleged beneficiary of a statutory trust under the Construction Lien Act, such registration, filing or notice shall constitute a default in performance by Players/West Diamond of this Subdivision/Consent Agreement. In any such case, the Director may notify Players/West Diamond in writing of such default. If Players/West Diamond fails to discharge the lien or the claim as the case may be within ten (10) business days, excluding Saturdays, Sundays and statutory holidays, after the giving of such notice plus any further period of time as may be specified in the notice, then the Municipality in its absolute discretion may (1) pay the full amount of the claim and security for costs into a court of competent jurisdiction in order to obtain an order vacating such claim for lien, (2) discharge the claim in full by paying the amount claimed or in part by paying a portion thereof, or (3) draw the full amount of the claim in cash from a letter of credit deposited with the Municipality as the security for the Boswell Drive Performance Guarantee and hold the cash in a deposit account of the Municipality as the security for the Boswell Drive Performance Guarantee in respect of the claim in question. The Municipality may draw on and appropriate the whole or any portiones) of the Performance Guarantee and the Security for the Maintenance Guarantee for the purpose of making payment under this paragraph 14(2). Players/West Diamond shall indemnify the Municipality against the costs and expense incurred by the Municipality in making a payment pursuant to this paragraph 14(2) forthwith after the Director gives Players/West Diamond written notice requiring him to do so. In the event that the Municipality draws on and appropriate any portion of the Boswell Drive Performance Guarantee or the Security for the Maintenance Guarantee for any of the aforesaid purposes, forthwith after the Director gives written notice to Players/West Diamond requiring it to do so, Players/West Diamond shall reinstate the Boswell Drive Performance Guarantee and/or the Security for the Maintenance Guarantee, as the case may be, to the full amount(s)crequired under the provisions of this Subdivision/Consent Agreement. Schedule "E" Page 1 0 15. Acknowled2ement Respectin2 Emer2encv. etc. Repairs Players/West Diamond acknowledges that if in cases of emergency or urgency or in order to protect the integrity of the Boswell Drive Works or any component thereof, the Director acts to correct, remedy or repair any deficiency(s) or defect(s) in the Boswell Drive Works, neither on entry on the Boswell Drive Works or any portion of them nor any such action by the Director or any person authorized to undertake the same by the Director shall be deemed to be an acceptance of any of the Boswell Drive Works by the Municipality, nor an assumption by the Municipality of any responsibility or liability in connection therewith, or a release by the Municipality of Players/West Diamond from any of its obligations under this Subdivision/Consent Agreement. 16. Dama2e to Existin2 Services Forthwith after written demand therefore is given by the Director to Players/West Diamond, Players/West Diamond shall pay to or to the direction of the Municipality, the cost of repairing any damage to any property or services of the Municipality, the Region, Hydro One or any utility authority or company or (the "Damaged Services") including without limiting the generality of the foregoing, any road(s), water, electrical, gas, telephone, cable television and sewer systems, and the cost of relocating any Damaged Services, caused by or resulting from the construction or installation of any of the Boswell Drive Works, provided that all such repairs and or relocation(s) are completed to the satisfaction ofthe Director, the Region and Hydro One or the relevant utility authority or company which owns or is responsible for the Boswell Drive Works, property or services in question. 17. Use of Boswell Drive Works bv Municipality The parties hereto acknowledge and agree that any of the Boswell Drive Works once constructed may be used by The Municipality and such other person(s) who is (are) authorized by the Municipality for any of the purposes for which the Boswell Drive Works are designed, without interference by Players/West Diamond, and without the payment of any fee or compensation to Players/West Diamond, and for such purposes the Municipality and other person(s) authorized by the Municipality may enter upon the portion of Players/West Diamond Lands on which any of the Boswell Drive Works are located. The parties hereto also acknowledge and agree that the Boswell Drive Works may be used by Players/West Diamond for construction access to any portion of the Players/West Diamond Lands. Schedule "E" Page 11 18. Requirements for Certificate of Completion Players/West Diamond acknowledges and agrees that the construction and installation of any of the Boswell Drive Works authorized in an Authorization to Commence Works shall not be deemed to be completed for the purposes of this Subdivision/Consent Agreement until the Director has provided Players/West Diamond with written certificate that such is the case (the "Certificate of Completion"). In addition to satisfying the other requirements of this Subdivision/Consent Agreement respecting its issuance, a Certificate of Completion shall not be issued until such of the Boswell Drive Works authorized by the Authorization to Commence Works for which a Certificate of Completion is required, have been inspected by the Director, and he is satisfied such Boswell Drive Works have been constructed and installed in accordance with the Engineering Drawings and has received all certificates and confirmations from Players/West Diamond's Engineer as provided for in this Subdivision/Consent Agreement. 19. Requirements for Certificate of Acceptance Players/West Diamond acknowledges and agrees that the none of the Boswell Drive Works covered by a Certificate of Completion shall be accepted, nor deemed to be accepted for the purpose of this Subdivision/Consent Agreement until the Director has provided Players/West Diamond with written certificate that the Boswell Drive Works in question have been accepted (the "Certificate of Acceptance"). If the Director is of the opinion that the Boswell Drive Works in question have been properly maintained and all deficiencies and defects in such Boswell Drive Works have been remedied and corrected by Players/West Diamond on behalf of the Municipality, the Director shall provide Players/West Diamond with a Certificate of Acceptance of the relevant Boswell Drive Works. 20. Ownership of Boswell Drive Works bv Municipality For greater certainty, Players/West Diamond acknowledges and agrees that the Municipality is the owner of all of the Boswell Drive Works covered by a Certificate of Acceptance. Players/West Diamond shall have no right or claim thereto, other than as specifically agreed to between Players/West Diamond and the Municipality in writing. 21. Property Damae:e Guarantee Prior to the issuance of an Authorization to Commence Works by the Director for the construction and installation of the Boswell Drive Works, Players/West Diamond shall deposit Five Thousand ($5,000.00) Dollars with the Municipality which may be drawn upon by the Municipality to indemnify itself against any cost that the Municipality Schedule "E" Page 12 Incurs in repairing damage caused by Players/West Diamond to any property of the Municipality in constructing and installing any of the Boswell Drive Works. The deposit or so much of it as is not drawn upon for the aforesaid purpose shall be repaid by the Municipality to Players/West Diamond without interest when the Security for the Maintenance Guarantee of the Boswell Drive Works is repaid by the Municipality to Players/West Diamond. Schedule "F " Page I SCHEDULE "F" THIS SCHEDULE IS SCHEDULE "F" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-146 of The Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007. BOSWELL DRIVE WORKS PERFORMANCE GUARANTEE 1. Boswell Drive Works Performance Guarantee Required (a) On or prior to the execution of this Subdivision/Consent Agreement by the Municipality, Players/West Diamond shall deposit with the Municipality, cash or an irrevocable and unconditional letter of credit issued by a bank listed in Schedule "I" or "II" of the Bank Act, acceptable to the Municipality's Director of Finance/Treasurer, and in a form and containing terms and conditions satisfactory to the Municipality's Director of Finance/Treasurer ("Boswell Drive Works Performance Guarantee"). The Boswell Drive Works Performance Guarantee shall be in the amount determined by the Director to be the amount required to secure to the Municipality the performance by Players/West Diamond of its covenants contained in this Subdivision/Consent Agreement to construct and install the Boswell Drive Works. (b) Without limiting the generality of the foregoing, III making his determination, the Director shall have regard for the "Boswell Drive Works Cost Estimate" or the "Revised Boswell Drive Works Cost Estimate" (both terms as hereafter defined) whichever is applicable, for the construction and installation of the Boswell Drive Works which either application has been made by Players/West Diamond to the Director for the issuance of an Authorization to Commence Works or an Authorization to Commence Works has been issued by the Director. (c) If from time to time following the issuance of any Authorization to Commence Works the Director is of the opinion that the amount of the Boswell Drive Works Performance Guarantee should be increased in order to protect the Municipality's interests under this Subdivision/Consent Agreement, the Director shall consider and, acting reasonably, approve a Boswell Drive Revised Works Cost Estimate which on his approval shall be deemed to be the Boswell Drive Works Cost Estimate for the purposes of this Subdivision/Consent Agreement. Forthwith after the Director approves a Boswell Drive Revised Works Cost Estimate, he shall give to Players/West Diamond written notice of his decision and a copy of the Schedule "F " Page 2 Boswell Drive Revised Works Cost Estimate. Players/West Diamond shall deposit with the Municipality cash or an unconditional and irrevocable letter of credit in such amount issued by a bank listed in Schedule "I" of the Bank Act that is acceptable to the Municipality's Director of Finance/Treasurer and which contains terms satisfactory to the Municipality's Director of Finance/Treasurer. (d) In the event that Players/West Diamond does not increase the amount of the Boswell Drive Works Performance Guarantee for a period of thirty (30) days following the giving of written notice by the Director to Players/West Diamond requiring an increase in the amount of the Boswell Drive Works Performance Guarantee, any Authorization to Commence Work that has been issued shall terminate. (e) The Director shall gIve Players/West Diamond written notice that the Boswell Drive Works have been completed. No later than the expiry of the ten (10) day period following the date on which this written notice is given to Players/West Diamond of the as-constructed costs of the Boswell Drive Works. If the as-constructed costs of these Boswell Drive Works as determined by the Director ("As-Constructed Costs") exceeds the then current Boswell Drive Work Cost Estimate, forthwith after written demand is given to it by the Director, Players/West Diamond shall pay to the Municipality any amount by which such As-Constructed Costs exceeds the then current Boswell Drive Works Cost Estimate of the As- Constructed Costs of the Boswell Drive Works. 2. Use of Boswell Drive Works Performance Guarantee (a) From time to time the Municipality may appropriate the whole or anyone or more portions of the Boswell Drive Works Performance Guarantee up to an amount(s) determined by the Director, which in aggregate shall not exceed the amount(s) which in the opinion of the Director is required to remedy Players/West Diamond's breach(es) or default(s) of or under the provisions of the Subdivision/Consent Agreement. Forthwith after making each such appropriation, the Director shall give Players/West Diamond written notice thereof and Players/West Diamond shall forthwith reinstate the Boswell Drive Works Performance Guarantee to the full amount required by this Subdivision/Consent Agreement. (b) If the whole or any portion of the Boswell Drive Works Performance Guarantee is appropriated by the Municipality as aforesaid and is not fully expended by the Municipality, Players/West Diamond agrees with the Schedule "F " Page 3 Municipality that Players/West Diamond will not require the Municipality to pay interest on any portion of it for the period in which it is held by the Municipality and deposited by the Municipality in an interest bearing account in the name of the Municipality, in the event that an amount equal to the appropriate or any part of it is paid by the Municipality either to Players/West Diamond, to the bank which issued the letter of credit for deposit as the Boswell Drive Works Performance Guarantee, as directed by Players/West Diamond or the bank, as the case may be. 3. Indemnification of Municipalitv Players/West Diamond shall defend, indemnify and save the Municipality harmless from and against all actions, claims, liabilities, losses, damages and expenses including reasonable legal fees which arise by reason of or are caused in whole or in part by the making and/or the implementation of this Subdivision/Consent Agreement, or the design, construction and installation, supervision of construction and installation, inspection, and/or maintenance of the Boswell Drive Works by Players/West Diamond, its employees, contractors, suppliers of services or materials, Players/West Diamond's Engineer, Players/West Diamond's Engineer's employees, and Players/West Diamond's licensees. 4. Insurance Players/West Diamond shall obtain and maintain insurance and deposit the proof thereof as required by and in accordance with Schedule "I" of this Subdivision/Consent Agreement. 5. Maintenance Guarantee Reauired (1) From the date of issuance of an Authorization to Commence the Boswell Drive Works until the date of issuance of a Certificate of Acceptance of the Boswell Drive Works or particular component(s) of the Boswell Drive Works, Players/West Diamond agrees with the Municipality to promptly correct, remedy, repair or replace any portion or component of the Boswell Drive Works in question that the Director determines to be defective or deficient having regard to the provisions of this Subdivision/Consent Agreement at Players/West Diamond's cost (the "Maintenance Guarantee"). The amount of the required Maintenance Guarantee shall be determined in accordance with paragraph 5(1) of this Schedule. Players/West Diamond shall be given written notice of any such deficiency or defect by the Director forthwith after he identifies the same. Players/West Diamond shall deposit or leave on deposit with the Municipality, cash or an irrevocable and unconditional letter of credit by a bank listed in Schedule "I" of the Bank Act acceptable to the Municipality's Director of Schedule "F " Page 4 Finance/Treasurer and containing terms satisfactory to the Municipality's Director of Finance/Treasurer, as security for the Maintenance Guarantee (the "Security for the Maintenance Guarantee"). (2) The Maintenance Guarantee expires on the later to occur of (1) the date of issuance of the Certificate of Acceptance of the Boswell Drive Works, and (2) the day which commences on the date of the issuance of the Certificate of Completion of the Boswell Drive Works and is two (2) years following the date of its commencement. 6. Use of Maintenance Guarantee From time to time, the Municipality may appropriate the whole or any part of the Security for the Maintenance Guarantee if Players/West Diamond fails to pay any cost( s) payable by Players/West Diamond to the Municipality under this Subdivision/Consent Agreement. The amount(s) of such appropriation shall not exceed the amount(s) which in the opinion of the Director are required to remedy Players/West Diamond's breach(es) or default(s) as determined by the Director of correcting or remedying a deficiency(s) or defect(s) in the Boswell Drive Works or a portion or component thereof, which is covered by the Maintenance Guarantee and is in question. Forthwith after the Municipality makes any such appropriation, the Director shall give Players/West Diamond written notice thereof. Forthwith, after the giving of such notices, Players/West Diamond shall restore the Security for the Maintenance Guarantee to the full amount required by this Subdivision/Consent Agreement. 7. Reduction and Release of Boswell Drive Works Performance Guarantee (a) Prior to the release of the Boswell Drive Works Performance Guarantee, in the discretion of the Director, the amount of the Boswell Drive Works Performance Guarantee may be reduced, from time to time, to reflect the progress of completion of the Boswell Drive Works and other facilities and improvements which are required to be constructed and installed by Players/West Diamond after taking into account any outstanding claims the satisfaction of which is provided for in this Subdivision/Consent Agreement. The maximum reduction that may be permitted to be made by the Director is such that will leave on deposit with the Municipality as the Boswell Drive Works Performance Guarantee is the amount equal to the sum of (1) the value of the uncompleted Boswell Drive Works as determined by the Director having regard for the Boswell Drive Works Cost Estimate then in force plus any amount determined by the Director but not to exceed twenty (20%) percent of such value as a completion allowance payable to the Municipality, and (2) as the Maintenance Schedule "F " Page 5 Guarantee fifteen (15%) percent of the value of the completed Boswell Drive Works, also determined by the Director after considering the material, if any, submitted to the Director by Players/West Diamond's Engineer in support of an application for reduction of the Boswell Drive Works Performance Guarantee in respect of the Boswell Drive Works that have been completed by Players/West Diamond as well as the contract documents, sub-contracts and supply contracts pertaining to the Boswell Drive Works and the provisions of the Construction Lien Act. (b) Players/West Diamond will not require the Municipality to release to Players/West Diamond any unused portion of the Boswell Drive Works Performance Guarantee until each of the following conditions is satisfied: (i) A Certificate of Completion has been issued for the Boswell Drive Works for which the Boswell Drive Works Performance Guarantee was initially required to be deposited with the Municipality. (ii) Players/West Diamond has deposited or has left on deposit with the Municipality the Maintenance Guarantee applying to the Boswell Drive Works for which the Boswell Drive Works Performance Guarantee initially was required to be deposited with the Municipality. (iii) The Director is satisfied that in respect of the construction and installation of the Boswell Drive Works for which such Boswell Drive Works Performance Guarantee was initially required to be deposited with the Municipality, there are no outstanding claims relating to the Boswell Drive Works. (iv) The Municipality is satisfied that there are no outstanding claims relating to the Boswell Drive Works which the Municipality is required or may be permitted to pay either under the provisions of the Construction Lien Act or otherwise. (v) The Municipality is satisfied that Players/West Diamond is not in breach of any of its covenants contained In this Subdivision/Consent Agreement. Schedule "F " Page 6 8. Reduction and Release of Maintenance Guarantee Players/West Diamond will not require the Municipality to release to Players/West Diamond the Security for the Maintenance Guarantee until each of the following conditions is satisfied: (a) A Certificate of Acceptance has been issued for the Boswell Drive Works for which such Maintenance Guarantee is required under this Subdivision/Consent Agreement. (b) The Municipality is satisfied that there are not outstanding claims relating to such Boswell Drive Works which the Municipality is required or may be permitted to pay either under the provisions of the Construction Lien Act or otherwise. (c) The Municipality is satisfied that Players/West Diamond is not in breach of any of its covenants contained in this Subdivision/Consent Agreement. (d) The Director has received the as-constructed drawings for such Boswell Drive Works from Players/West Diamond as well as the computer disks, if any, have been prepared by Players/West Diamond's Engineer. 9. Unpaid Monies Except as otherwise provided in this Subdivision/Consent Agreement, the due date of any money payable under it, unless a different due date is specified in this Subdivision/Consent Agreement, shall be thirty (30) days after the date of the giving of the written invoice to Players/West Diamond. Interest shall be calculated and be paid by Players/West Diamond to the Municipality on all sums of money of which Players/West Diamond is in default at the same rate, and in the same manner, and at the same time as is the case with Municipality taxes which are in arrears at the date on which the default in question commences. Schedule "G" Page 1 SCHEDULE "G" THIS SCHEDULE IS SCHEDULE "G" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-146 of The Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007. DUTIES OF PLA YERSIWEST DIAMOND'S ENGINEER 1. RESPONSIBILITY FOR DESIGN ETC. In addition to the other requirements of this Subdivision/Consent Agreement, Players/West Diamond's Engineer shall prepare all drawings, plans, studies, reports, estimates, calculations and documentation for the consideration and approval of the Director. The approval of the Director shall not absolve or release Players/West Diamond or Players/West Diamond's Engineer of the responsibility and liability for any errors or omissions in the above drawings, plans, reports, stages or documentation or from liability for any damage or loss caused or resulting directly or indirectly by Players/West Diamond's Engineer. 2. REPRESENT PLA YERSIWEST DIAMOND AND OBTAIN MUNICIPALITY APPROVALS Players/West Diamond's Engineer is hereby authorized by Players/West Diamond to act as Players/West Diamond's representative in all matters pertaining to the design, construction and installation of the Boswell Drive Works and the overall management of the development, and shall co-operate with the Municipality and the Director to protect the interests of the Municipality and the general public in all matters relating to the design, construction and installation of the Boswell Drive Works. 3. PROVIDE RESIDENT SUPERVISION Players/West Diamond's Engineer shall provide fully qualified, experienced supervisory layout and inspection staff, acceptable to the Director, to provide continuous inspection service during all phases of the construction and installation of the Boswell Drive Works. Without limiting the generality of the foregoing, Players/West Diamond's Engineer shall be responsible for the following: (a) To carry out or arrange for the carrying out by qualified personnel of field layout including the provision of line and grade to the contractors and, where required, restaking. Schedule "G" Page 2 (b) To thoroughly inspect the construction, installation, and supply of materials to ensure that all work is being performed in accordance with the Engineering Drawings, the Municipality's Design Criteria and Standard Drawings, and applicable plans of survey, as the case may be, and all applicable law. Players/West Diamond's Engineer shall have the authority and responsibility to immediately stop and/or reject any work, procedure, or material which in his opinion does not comply with the Engineering Drawings, the Municipality's Design Criteria and Standard Drawings, the applicable plans of survey and/or the applicable law. (c) To provide co-ordination and scheduling of the construction and installation of the Boswell Drive Works in accordance with the timing provisions contained in this Subdivision/Consent Agreement and the requirements of the Director. (d) To investigate and immediately report to the Director any unusual circumstances, potential problems, conflicts, errors, defective work or material which may arise during the construction and installation of the Boswell Drive Works. (e) To obtain field information during and upon completion of the construction and installation of the Boswell Drive Works required to modify the Engineering Drawings to produce the as-constructed drawings of the Boswell Drive Works. 4. MAINT AIN RECORDS Players/West Diamond's Engineer shall maintain all records, data, reports, approvals and orders pertaining to the construction and installation including all contract documents, sub-contracts and supply contracts, payment certificates, payment records and receipts, certificates of substantial performance, the names and addresses of all contractors, sub-contractors and suppliers of materials and services, certificates of completion of sub-contracts and proof of service and publication thereof in accordance with the provisions of applicable legislation and make all of the foregoing available for examination by the Director as required by the Director without cost. If any change is made in the terms of a contract, sub- contract or supply contract or in the name or address of a contractor, sub- contractor and supplier from information that may not have been provided to the Director by Players/West Diamond or Players/West Diamond's Engineer pursuant to this Subdivision/Consent Agreement, Players/West Diamond's Engineer Schedule "G" Page 3 immediately after becoming apprised of each change shall give the Director written notice of it. 5. PROVIDE PROGRESS REPORTS Players/West Diamond's Engineer shall provide the Director with reports on the progress of the construction and installation of the Boswell Drive Works on a monthly basis, or at such other interval as approved by the Director. 6. PREPARE AS-CONSTRUCTED DRAWINGS Players/West Diamond's Engineer shall prepare and submit the as-constructed drawings of the Boswell Drive Works together with the computer disks, if any have been prepared, to the Director provided that the as-constructed drawings shall be prepared to the satisfaction ofthe Director. Schedule "H" Page 1 SCHEDULE"H" THIS SCHEDULE IS SCHEDULE "H" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-146 of The Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007. REGULATIONS FOR CONSTRUCTION 1. RESPONSIBILITY FOR DESIGN All work pursuant to and associated with this Subdivision/Consent Agreement shall be carried out in strict conformity with all approved Engineering Drawings, the Municipality's Design Criteria, Standard Drawings and Specifications or any revisions thereof and all applicable legislation, in addition to any requirements set out in this Subdivision/Consent Agreement. 2. SAFETY Players/West Diamond shall ensure that all construction pursuant to and associated with this Subdivision/Consent Agreement is carried out in conformance with the Occupational Health and Safety Act, and other applicable legislation. 3. PERMITS AND APPROVALS Players/West Diamond shall ensure that any and all permits and approvals required to install or construct or prepare to install or construct any of the Boswell Drive Works pursuant to or associated with any part of this Subdivision/Consent Agreement have in fact obtained and are valid and in good standing. 4. REQUIREMENTS FOR BLASTING Not Used. 5. REMOVAL OF TOPSOIL Not Used. Schedule "H" Page 2 6. DUMPING OF FILL OR DEBRIS Players/West Diamond agrees to neither dump, nor permit to be dumped, any fill or debris, on nor to remove, or permit to be removed any fill from any part of the Players/West Diamond Lands to be dedicated to the Municipality other than the roads within the limits of the Players/West Diamond Lands, without the written consent of the Director. 7. DISPOSAL OF CONSTRUCTION GARBAGE Players/West Diamond shall remove and dispose of all construction garbage and debris from the Players/West Diamond Lands in an orderly and sanitary fashion in a dump site off the Players/West Diamond Lands and approved by the Director. The Municipality shall not be responsible for the removal or disposal of garbage and debris. Without derogating from the foregoing provisions of this paragraph, if Players/West Diamond fails to remove construction garbage or debris from the Property for a period of three (3) consecutive days following the giving of written notice by the Director to Players/West Diamond requiring it to do so, the Director may cause the construction garbage or debris to be removed to and disposed of in the aforesaid dumping site at the expense of Players/West Diamond. Forthwith after the Director gives written notice to Players/West Diamond requiring it to pay for the costs incurred in removing and disposing of the construction garbage or debris, Players/West Diamond shall pay the Municipality the amount of money for it is invoiced. 8. QUALITATIVE AND QUANTITATIVE TESTS Not used. 9. WEED AND RAT CONTROL After the commencement of construction Players/West Diamond shall institute upon the Players/West Diamond Lands a program of weed and rat control to the satisfaction of the Director. Schedule "I" Page 1 SCHEDULE "I" THIS SCHEDULE IS SCHEDULE "I" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-146 of The Corporation of the Municipality of Clarington, enacted and passed the 25th day of June, 2007. INSURANCE REQUIRED 1. TYPES OF COVERAGE REQUIRED Players/West Diamond shall obtain and maintain insurance of the character commonly referred to as public liability and property damage with an insurance company approved by the Municipality's Director of Finance/Treasurer and licensed in Ontario to underwrite such insurance and containing terms and conditions which are acceptable to the Municipality's Director of Finance/Treasurer. Such policy or policies of insurance shall indemnify the Municipality against all damage or claims for damage for: (a) Any loss or damage that shall or may happen to any of the Works or any of the Utilities or to any part or parts thereof respectively; (b) Any loss or damage that shall or may happen to any of the materials or any of the equipment or any other things used to construct or install any of the Works or any part or parts thereof respectively; (c) Any injury to any person or persons including workmen employed on the Players/West Diamond Lands (unless covered by Workers Safety & Insurance Board) and the public; (d) Any loss or damage that shall or may result from the drainage of surface water on or from the Players/West Diamond Lands; (e) Any loss or damage that shall or may result from the disposal of effluent from any sewage disposal works; and (f) Any loss or damage that shall or may happen to any public road or to any other property of the Municipality or to the property of any other person either directly or indirectly by reason of the Players/West Diamond undertaking any or all of the Works. 2. AMOUNTS OF COVERAGE REQUIRED Policy or policies of insurance shall be issued jointly in the names of Players/West Diamond and the Municipality and shall provide the following minimum coverages for five million ($5,000,000) dollars for all damage arising out of one (1) accident or occurrence or series of accidents or occurrences. Schedule "I" Page 2 The issuance of such policy or policies of insurance or the acceptance of it or them by the Municipality shall not be construed to relieve Players/West Diamond from responsibility for other or larger claims for which it may be held responsible. 3. TERM OF INSURANCE The term of the required insurance shall commence no later than the day on which the first Authorization to Commence Works is issued and shall terminate no earlier than the last day on which all Certificates of Acceptance have been issued for each of the Works for all of the Works contemplated by this Subdivision/Consent Agreement.