April 18, 2024
Sunayana Thomas
Community & Economic Development Director
303 W. Commonwealth Ave.
Fullerton, CA 92832
Dear Ms. Thomas,
Fox Harbor LLC is requesting an extension to the Schedule of Performance outlined in Exhibit C to the Disposition and Development Agreement (DDA) dated November 15, 2022.
Due to the inability of the parties to get the Fox Theatre Foundation to agree to the CC&R amendment prior to the close of Escrow, Section 1.1.26 of the DDA provided that the CC&R amendment would be executed post-closing.
Fox Harbor LLC provided a draft of the agreement to Fox Fullerton Theatre Foundation and faced various delays and hurdles in getting the agreement signed. The close of Escrow occurred on December 30, 2022 and the Amendment to the CC&R’s was not signed and recorded until December 19, 2023, a 354 day period. The City was aware of this delay and made multiple attempts to facilitate.
Due the design changes that would have been required had the amendment not be signed, Fox Harbor LLC had to stop work on the project plans without having this agreement in place. Thus, it asking that the dates in the DDA be pushed back accordingly. For simplicity in drafting, the proposed First Amendment to the Disposition and Development Agreement extends the Schedule of Performance dates by 12 months (365 days versus 354 days).
The project is still moving forward as proposed, but the current Schedule of Performance dates would now present a challenge with lenders on project financing if not modified to provide ample cushion.
We appreciate your help on this and remain excited about this special opportunity and project.
Thank you,
Dan Almquist
Manager
Fox Harbor LLC