Legal Document: Strike X LLC Plaintiff vs. Village At Gulfstream Park, LLC , et al Defendant

On August 24, 2021 a Response to Motion for Judgment - Party: Plaintiff Strike X LLC was filed involving a dispute between Strike C, Llc, Strike X Llc, and Gulfstream Park Racing Association Inc, Stronach, Belinda, Village At Gulfstream Park, Llc, for Contract and Indebtedness in the District Court of Broward County.

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Filing# 160147692 E-Filed 10/27/2022 11:39:10 PM

IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
COMPLEX BUSINESS DIVISION

CASE NO.: CACE-21-16240

STRIKE X LLC,

Plaintiff,
V

VILLAGE AT GULFSTREAM PARK,
UC, et al.

Defendant. i

PLAINTIFF'S OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY JUDGMENT

Strike X,
Plaintiff, LLC ("StrikeX" or "Plaintiff'),
by and through undersigned counsel,

hereby submits its Response in Oppositionto the Motion for Partial Summary Judgment ("Motion")

filed by Defendant, Villageat Gulfstream Park, LLC ("Gulfstream"or"Defendant") and in support

thereof states as follows:

INTRODUCTION

This case arises from Gulfstream's express repudiationof a written commercial lease for

over 41,000 square feet of retail and restaurant space located Space 1700 at The Village of

Gulfstream Park (the "Gulfstream Park") in complete disregardof its contractual obligations.

Strike X has been a tenant at Gulfstream Park since 2013 where it has operateda first-class bowling
on the success of that business, and with the
alleyand entertainment center. Wanting to capitalize

*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/27/2022 11:39:09 PM.****
complete encouragement of Gulfstream, Strike X worked with Gulfstream and identified Space

1700 to which it would relocate and exponentially
grow its business. Strike X contracted for a 20-

year lease term in a premier location with over 41,000 square feet of space uniquely situated for

its from Federal
intended use with direct visibility Highway where thousands of vehicles that

traverse each and every day.

In its Motion, Gulfstream maintains that summary judgment should be entered in its favor

findingthat: (1) Strike X is not entitled to specificperformance as a matter of law; and (2) Strike
X's damages are limited to reimbursement for its out-of-pocketdirect costs. Gulfstream's position

is misguided, and cannot be reconciled with the applicablelaw, the terms of the lease,or the

realities ofthis case. Not only did the partiesexpresslyagreed to specific
performance as a remedy

for Gulfstream's breach, but Florida law also upholds the enforcement oflease agreements through

The underpinning of
performance.Further,Strike X's injuryis demonstrably irreparable.
specific

specificperformance in the property context is the understanding that property is inherently

unique. Indeed, Space 1700 is unique not just within the Gulfstream Park, but also within the

area such that Strike
surroundingthe tri-county X cannot find a comparable space even if it were

awarded monetary damages. It cannot be overstated that Gulfstream Park is not just another

shopping center
- it is a renowned racetrack and, by Gulfstream's own admission,
66
an

entertainment,dining,retail, destination" which
and lifestyle is alignedwith Strike
particularly

X's business model. As a direct result of Gulfstream's breach, Strike X stands to suffer not just

the loss of an irreparable
space for a 20-year term, but also the concomitant loss of business

goodwill and competitivepositionsin the marketplace. Without specificperformance Strike X
could never be adequately compensated for its loss and complete justicebetween the partiescould

never be afforded.

2
Simply put, Strike X is not asking this Court to do anythingmore than compel Gulfstream
to do preciselywhat it ought to have done
- to perform under the contract that Gulfstream itself

drafted and agreed to. The relief Strike X seeks is supported by the Lease Agreement and the law.

Accordingly, for the reasons set forth below, Gulfstream is not entitled to Partial Summary

Judgment with respect to Count I and Count II (as to damages) of Plaintiff's Complaint, and its

Motion should be denied.

STATEMENT OF FACTS

Strike X is in the business of operating entertainment centers offeringbowling, arcades,

and events. See Declaration ofMarco Jafif ("JafifDecl.")
games, parties,
dining,billiards, attached

hereto as Exhibit A at 74. Strike X is a unique concept which reenergizesthe traditional bowling
Id atll5.Strike
experience,blending it with additional entertainment options,dining and nightlife.

X has been successfullyoperatingits business at the Villageof Gulfstream Park, located at 901 S.

Federal Highway in Hallandale Beach, Florida ("GulfstreamPark") since 2015. U. Specifically,

Strike X entered into a lease dated July 22, 2013 with Gulfstream to lease Space 1505 (the"1505

Id., See also Decl.
Lease Agreement") for a term often years, with two automatic renewal options.

of Colin Chapin, Ex. 1.
1
The space includes a first-class bowling alleyand entertainment center

that includes 11 bowling lanes with the
professional latest touch-screen technology(includingtwo

small "Highway 66" bowling lanes 30 largeHD TVs,
for younger children),
designedspecifically

1
The 1505 Lease Agreement contains a restrictive covenant which prohibitsStrike X, or its

principals, from "directly or indirectlyoperat[ing],manag[ing], or have any interest in any
business which is similar or in competition with the permitted use of the Premises set forth in
Article I ("Competing Store")within a radius of twenty-five(25) miles of the perimeter of the

Shopping Center ("RestrictedArea"). As such, it bears noting that Strike X faces significant
restrictions in expanding its business to other locations within the surrounding areas. Upon
execution of the Lease Agreement for the 1700 Space, the radius of the restrictive covenant was
reduced to 13.5 Miles. See Amended Complaint ("Am. Compl."), Ex. A, Lease Agreement, §24.

3
hookah lounge,pool tables,air hockey, an arcade room, restaurant, and a 50-foot bar,among other

things.See Amended Complaint ("Am. Compl.") at p. 2.

Gulfstream Park is uniquely aligned with Strike X's business model in that it attracts

customers lookingfor entertainment venues. It is walkable, has ample parking,and is a recognized

entertainment complex in South Florida. Id. at 76. Indeed, Gulfstream acknowledge that

Gulfstream Park is not just another shopping center - rather,it is an "entertainment and lifestyle

destination." See Motion, p. 1. There are few, if any, comparable centers to the Gulfstream Park

in the tri-countyarea. Further,the demographics ofthe area surrounding Gulfstream Park support

Strike X's business model which is easilyseen by the success of Strike X in Space 1505. Jafif

Decl. at ll7.

In approximately 2019, Strike X began negotiatingwith Gulfstream for its potential

relocation to the 1700 building of Gulfstream Park which was previously occupied by

Frankey's/Adena Grill ("Space 1700").Id at 78. Gulfstream encouraged Strike X to relocate its
additional space to accommodate Strike X's
operationsto Space 1700 because of the significant

Id
growing operations. at 99. Gulfstream touted it as a "once in a lifetime opportunity."
Id.

Indeed, Space 1700 presentedan ideal opportunityfor Strike X to significantly
expand its existing

operationsbecause of its unique features,size,location,available parking,and layout.U. at 710.

Space 1700 was more than double the size of Space 1505, comprisingof41,628 square
Critically,

feet interior improvements. The considerable increase in space meant
complete with significant

that Strike X could accommodate its current demand and ameliorate the long customer wait times
for bowling. Id.

Further, Space 1700 is located in a standalone building,with direct visibility
off Federal

Highway, and has both indoor and outdoor usable space. Id The structure of Space 1700 was

4
ideal to accommodate Strike X's business plan,which included an indoor ice-skatingrink that

most retail spaces cannot accommodate due to size/layout
restrictions and condensation issues. Id.

Strike X worked earnestlywith Gulfstream to negotiateand finalize the deal for Space 1700. Id.

at 711. At no point during the negotiationsdid Gulfstream inform Strike X that it was

contemplatinga potentialredesignof Gulfstream Park which may affect Strike X's relocation to

Space 1700. U. at 711.

A. The Lease Agreement for the Space 1700

On August 5,2020, Gulfstream and Strike X entered into a definitive lease (the "Lease

Agreement") in which Strike X as Tenant leased Space 1700 of the Shopping Center for a Term

of 10 years, plus two 5-year renewal options.See Ex. A to Am. Compl. (LeaseAgreement), §1.0

and 1.1 (d).The Premises leased to Strike X is depictedon Exhibit B ofthe Lease as follows:

EXHIBIT B

SITE PLAN OF THE PREMISES

EXIST, CONC.
PADS W; ELEC.
TRANSFORMER

SOUTH PATIO (2,983 SF) NEW BLDG. ADDITION 11.+
L
<
ali
r

iBD.I-
(3.012 S,F.)
LEASE LINE - LEASE LINE

,.. ..

it-ii '..&
-

--i-=J
,=-,444--rl
,

1
EXIST.
,
?

''.. I
.J
>
'EL.C

ROR' J , :&1::I::MOVED-/i Ji.
:*:ad
ROOM
tf
.H '-1; I
,YM8 3
LIlli ':.i
1700
LINE (38616.F -EXIST BLDG.)
/.'SF NEWADDITIO. l'
4?/ .
41.628 SF
-*-

-nE?-E-D. / NORTH
?LEA?1'Nil-=-f]--L -- 4.,-F +
-,NS,-,-332.-
GYAEJBE,EZPT.S/A.?
...,4
,-

PATIC (1.128 SF)
-
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'. VIA DA FOR TUNA

ir 1",ITMFU?P/l Il? . r>.I.l/OPI AI i*I/A,IT .*

5
Pursuant to Section 1.0 (1)of the Lease Agreement, Strike X had the rightto use the

Premises for "the operationof a first-class bowling alley,restaurant, arcade (which may include

bar, lounge, hookah
redemption and other entertainment or amusement devices ancillarythereto),

lounge,ice skatingrink and related uses to any of the foregoingunder the trade name "Strike X".

In accordance with the Lease, Gulfstream agreed to expand the Premises and build a new building

addition at its own expense to accommodate Strike X's bowling lanes. Specifically,
Section 6.1

(a)through (d) of the Lease states in relevant part:

Gulfstream's Responsibilities.

(a)Gulfstream shall expand the buildingto accommodate the Tenant's bowling
lanes,as depictedon Exhibit B as the "New Bldg. Addition" and such expanded
portion(i)shall be a water-tight shall not include any interior finishes
shell,(ii)
such as flooring,insulation,sprinklersystem or HVAC, and (iii) shall include the

roofing,walls, exterior site work and doors to the extent necessary ("Gulfstream's
Work", --

(b)....Theportionof the Premises identified on Exhibit B as the "New Bldg.
Addition" shall not be deemed delivered until Gulfstream's Work is Substantially
Complete. The terms "SubstantiallyCompleted", "Substantially Complete" or
"Substantial Completion", as used throughout this Lease, shall mean that the work
being referenced is complete in accordance with the relevant approved plans to
such a degree that only minor punch list items remain to be completed by the
responsibleparty, and as it relates to Gulfstream's Work, Tenant may safely
commence and diligently
pursue the completion of Initial Tenant's Work and

open for business without material interference from Gulfstream in the
completion of punch list items of Gulfstream's Work.

(c) Gulfstream's Work and Tenant's Work may progress simultaneously, and
Gulfstream and Tenant shall cooperate with each other and use good faith diligent
efforts to avoid or at least minimize any material interference with the

performance of work by either party...

See Lease Agreement, §6.1.

Gulfstream further agreed "to deliver possessionofthe entire Premises [to Strike X] within

six (6) months after full execution and delivery ofth[e] Lease and Gulfstream's receiptof all

6
permits and approvals required for Gulfstream's Work (the "Initial Delivery Deadline").

Lease Agreement, § 1.0 (e).

In the event Gulfstream defaulted,the Lease Agreement provides Strike X with an express
contractual rightto specific
performance,to wit:

Gulfstream Default.

Gulfstream shall in no event be in default in the performance of any of its
obligationsin this Lease unless and until Gulfstream has failed to perform any
such obligation within thirty(30)days (orsuch additional time as is reasonably
requiredto correct any such default as long as Gulfstream shall commence to cure
the same within said thirty(30) day period and shall continue to diligently pursue
the same to completion)after notice by Tenant to Gulfstream specifyingwherein
Gulfstream has failed to perform any such obligation. In the event of a default by
Gulfstream under this Lease which remains uncured, Tenant shall be permitted
monetary damages and
to seek specific performance, equitablerelief,
relief concerning that default in
declaratory court.

Lease Agreement § 23.5 (emphasis supplied).

Since the execution of the Lease Agreement, Strike X and its have worked
principals

to prepare for
tirelessly its relocation to Space 1700. Strike X performed all ofits obligationsunder
the Lease Agreement, including,but not limited to, engaging consultants for the design and

implementation of the ice-skating for the design of
rink, engaging designprofessionals/architects

the space, preparingbusiness development plans,seeking and acquiringnecessary equipment and

furniture,and securingthe necessary financing.
Id. at 716. Strike X has been, and remains, ready,

willing,and able to perform under the Lease Agreement and take possessionof Space 1700.

B. Gulfstream's Repudiation of the Lease Agreement

On April 13, 2021, without any warning to Strike X, Marie Long, Gulfstream's in-house

counsel, sent Strike X a letter advisingit that Gulfstream cannot proceed with the agreed buildout

because the Gulfstream "has come to the realization that the New Lease with Strike X for Space

7
No. 1700 could materiallyinterfere with the vision for the Village."See Am. Compl., Ex. B. The

April 13, 2021 letter constituted Gulfstream's express repudiationand breach of the Lease. As

"compensation" for Strike X agreeing to ignore and relinquishits lawful rightsand walk away

from the Lease, and perhaps in an apparent attempt to demonstrate the benevolence of Gulfstream,

Ms. Long arrogantlyinforms Strike X that Gulfstream "will of course compensate you for your

documented out of pocket costs as requiredunder the New Lease." U.

Ms. Long's letter was the first that Strike X was informed of any purported"new vision' ..

for Gulfstream Park affectingStrike X's tenancy at Space 1700. Jafif Decl. at 717. In fact,prior

to receivingMs. Long's letter,
Gulfstream encouraged Strike X to continue its work in preparation
for its relocation, including obtaining the necessary permits for the interior build-out. Id.

However, as Strike X would later come to learn,Gulfstream had different plans in mind and wanted

to usurp Strike X's contractual rightsfor the benefit of the existingcasino at the Shopping Center

operatedby Canadian heiress and horse racingmogul, Belinda Stronach. See, e.g., Am. Compl.

Importantly,as of approximately February 2021, Gulfstream had already obtained the

permits for the construction of the new buildingaddition. Jafif Decl. at 717. Therefore, pursuant

to the Lease Agreement, Gulfstream was requiredto complete its buildout and tender possession

to Strike X by August 2021 - justa few months after Ms. Long's letter. However, Gulfstream's

refused
principals to stall the progress of the work. U.
pick up the permitsin order to intentionally

At the same time, Gulfstream repeatedlymisrepresented to Strike X that the permits had not yet
issued. Id. However, in reality, slowed the construction work"
Gulfstream had "intentionally

while Strike X "stood by waiting" as confirmed in an internal email from Gulfstream's Senior

Vice-President,Alan Shaw, on February 19, 2021 who writes:

8
Date: Friday, February 19 2021 05:06 PM
Subject: Re: Strike 10
From: Shaw, Alan
To: Stronach, Belinda ,

CC: Chapin, Colin ; Daniil, Matina ;

Hi Belinda:
Please let me know ifyou ve had a chance to review the documents 1 sent and if you'd like to discuss them.
Marcos Jafif is standing by waiting for me to give him a day/time that is best for you to meet. So please let me
know' what is convenient and ifyou have any further questions.

While we Iiave started the re-roof. C'olin had asked us to slow the consti uetion until all of your questionsare
answered and satisfied. However. (pleasedo nottake this as my pushing. Ijust want you to know) now that our
construction permit for the addition has been issued by the City and is ready for pickup, per the lease, we have a
'
certain number of days to coinplete tlie work. So our "clock is ticking for us to deliver the space to the tenant

Delaying our start date for the addition actuallynow penalizes us ifwe are unable to deliver per the deadlines
in the lease.

See Exhibit B.

In the months leadingup to Ms. Long's letter,
Gulfstream intentionally
misrepresentedto

Strike X that it was diligently
working to complete its requiredconstruction of the premises under

the Lease Agreement, includingconstructingthe new Building Addition. Id. However, as shown

above, this representationwas demonstrably false as Gulfstream was lying in wait and

stringingStrike
intentionally X along.Id atlll8.

Conveniently now, to support its Motion, Gulfstream claims that "at the time the April 13,

2021 letter was send, the build-out of Space No. 1700 had not begun in earnest." See Declaration

however, Gulfstream had
o f Colin Chapin. In reality, commenced work in November o f 2020, but

slowed the progress for months before
intentionally its repudiation.As of April 2021, Gulfstream

construction work pursuant
had performed significant to the Lease Agreement includingstripping

all ofthe electrical in preparationfor the demolition, performing the necessary excavation,building

of the perimeterwalls, and installing
the roofinginsulation/modification. Jafif Decl. at 719. Its

intentional delay in constructing
the New BuildingAddition was occasioned by nothing else than

its bad faith,which it now seeks to use to its advantage.

9
In response to the April 13 letter,
Strike X demanded that Gulfstream retract its repudiation
of the Lease. See Am. Compl., Ex. C. Gulfstream refused to do so. As a result,on August 24,

2021, Strike X filed a three-count complaint against Gulfstream for: (1) Breach of

Performance; (2)Breach o f Implied Covenant of Good Faith and Fair Dealing;
Contract/Specific

and (3)Violation of Florida Deceptive and Unfair Trade Practices Act.

C. Gulfstream's Bad Faith

Through the course of Strike X's investigation,
Strike X information
discovered startling

regardingthe real motivation behind Gulfstream's breach ofthe Lease Agreement which promoted

Strike X to file an Amended Complaint. Gulfstream Park Racing Association,LLC
Specifically,

..,

("GulfstreamRacing"),a company controlled by Belinda Stronach, owns and operates the casino

at the Shopping Center which is currentlylocated inside the clubhouse. See Am. Compl. at 734.

Due to the limited space, the casino is comprised o f only electronic table games and slot machines

and thus is,in all respects, a "sleepy"casino. Id. Gulfstream Racing and Belinda Stronach believed

that if the casino were moved from its existingclubhouse location to the 1700 Space it would

generate more revenue for Gulfstream Racing, in part, because of its visibility
and the additional

space to accommodate further gaming options.U. at 735. Accordingly,Belinda Stronach viewed

the Lease between Gulfstream and Strike X as an impediment to her plan to move the casino to

the 1700 building.As such, she, individually
and through Gulfstream Racing,orchestrated a plan

to cause Gulfstream to breach its obligationsunder the Lease Agreement and refuse to deliver

possessionof the Premises to Strike X. Id at 1136.Ms. Stronach directed personnelto find a way

to default Strike X under the Lease Agreement and not to pick up the permitsthat were ready from
the City of Hallandale so as to delay Gulfstream's work and make it appear that Gulfstream still

10
intended to perform.Id at 942. This was all a plan to oust Strike X for Ms. Stronach's own

pecuniarygain.

Although Gulfstream represents that "after executing the 1700 Lease" it developed a plan

to "re-design"Gulfstream Park (Motion, p. 2),Gulfstream knew about this re-designlong before

it ever entered into the Lease Agreement. Gulfstream, however, chose to conceal this fact from

Strike X and negotiatedthe Lease Agreement in bad faith and without the appropriatedisclosures.
In fact,as of September 2019, Gulfstream was evaluatingthe relocation of the casino to the 1700

Building and had engaged in a site plan review. Based on Gulfstream's internal communications,

the deal with Strike X was at all times contingentupon the relocation of the casino;however the

Lease Agreement does not reflect this fact. See Exhibit C (September 25, 2019 email

correspondence from Alan Shaw to Colin Chapin indicatingthat the "Strike 10 new location deal"

is subjectto the "Casino Location.")See also Ex. D (email communication dated September 27,

2020, one month after the lease execution, confirming that relocation of the casino was "number

one priority").

D. Status of the Litigation

On August 17, 2022, Strike X filed an Amended Complaint adding Gulfstream Racing

Park Association, Inc. and Belinda Stronach as party defendants. Nearly two months later,on

October 12, 2022, Defendants filed a Motion to Dismiss the Amended Complaint. Discovery in

of Defendants' counsel.
the case has not progressed very far due, in largepart, to the unavailability

On August 25,2022, from August 25,2022
Defendants' counsel filed a notice of unavailability

through October 2,2022. Due to defense counsel's have been unable to
the parties
unavailability,

take depositionsor have motions heard from a period of August 25,2022 through October 12,

11
2022, includingStrike X's Motion to Compel which was filed on July 5,2022 and still has not

been heard by the Court.

Moreover, there are significantoutstanding discovery issues arisingfrom Defendant's

inappropriatewithholding of documents on the basis of privilegeand refusal to turn over the

Alan Shaw, as directed by this Court in
documents in the possessionofthird-party, its October 17,

2022 Order. As such, on October 24,2022, Strike X filed a Motion for Entry of an Order to Show
Case and a Motion to Compel Production of Improperly Withheld Documents and for an In

Camera Review. Both motions remain pending as of the date of this filingand Strike X has been
unable to coordinate a date for hearing due to Defendant's On October 17,2022,
unavailability.2

this Court entered an Order ResettingTrial and Pre-Trial Deadlines settingthis matter for the trial

docket commencing on April 3,2023.

LEGAL ARGUMENT
A. Summary Judgment Standard

Summary judgment is only appropriate when the record evidence, inclusive of

stored information, affidavits or declaration,stipulations
documents, electronically
"depositions,

answers, or other materials," shows
..., admissions, interrogatory that "there is no genuine

disputeas to any material fact and the movant." See Fla. R. Civ. P. 1.510; In re Amends. to Fla.

Rule ofCiv.Proc. 1.510,309 So. 3d 192, 194 (Fla.2020) (adoptingthe federal summaryjudgment

standard and amending Fla. R. Civ. P. 1.510 accordingly).

2
Strike X has requestedthat this Court postpone hearing on Defendant's Motion for Partial
Summary Judgment as permittedby Florida Rule of Civil Procedure 1.510(d). See Plaintiff's
Motion to Entry of Rule to Show Cause filed on October 24,2022.

12
In making this determination,a court "must view the movant's evidence and all factual

inferences arisingfrom it in the lightmost favorable to the non-moving party."Allen v.
Tyson

Foods, Inc., 121 F.3d 642, 646 (llth Cir. 1997)."All reasonable doubts about the facts should be

resolved in favor of the non-movant." Burton v City of Belle Glade, 17% F .3d 1175, 1187 (llth

Cir. 1999).Summary judgment will not lie if the disputeabout a material fact is genuine,"that

is,if the evidence is such that a reasonable jury could return a verdict for the non-moving party."

Anderson v. LibertyLobby, Inc., 477 lj.S. 141 (1986).The Court does not weigh conflicting

evidence. See Skop v.
Cio' of Atlanta, 485 F.3d 1130, 1140 (llth Cir. 2007). Thus, upon

discoveringa genuine disputeof material fact,the Court must deny summary judgment. See id;

see also ABC Salvage, Inc. v. Bank of AM., N.A.,305 So. 3d 725,728 Cfla.3dDCA 2020)

("Summary judgment is not intended to weigh and resolve genuine issues of material fact,but

only identifywhether such issues exist. If there is disputedevidence on a material issue of fact,

summary judgment must be denied and the issue submitted to the trier of fact." (emphasis

added)).

For the reasons set forth below, Gulfstream is not entitled to Partial Summary Judgement

with respect to Count I and Count II (asto damages), and its Motion should be denied.

B. The Lease Agreement Does Not Limit Strike X's Recovery to Direct Damages Only

of the Lease Agreement bars Strike
Gulfstream argues that Section 26.14(b)(ii) X from

recovering consequential, incidental and special damages, including lost future profits.

Gulfstream's broad reading of Section 26.14(b)(ii)
is inconsistent with its limited purpose and

and other applicablesections ofthe Lease
of contract interpretation
ignoreswell-settled principals

Agreement.

13
Despite Gulfstream's argument, Section 26.14(b) of the Lease Agreement addresses

in the case ofa casualtyinvolvingthe loss,damage or other insurable disaster
Gulfstream's liability

to the Leased Premises that would cause Strike X to suffer damages, and nothing more. Reviewing
Section 26.14(b)supports this interpretation:

Notwithstandinganythingto the contrary in this Lease, (i)Gu(Atream shall not
be liable to Tenant for any !oss or damage to property which is either covered
by insurance or which Tenant is required to insure under this Lease, and (ji)
to Tenant under
any liability this Lease shall be limited to direct damages and
shall not include indirect, consequential,
incidental, or punitive damages,
including any liability of business.
to Tenant for lost profitor interruption
Tenant shall !ook to its property damage or business interruptioninsurance
policies,and not to and Gu!fstream, its agents or employees for any toss
incurred as a result of damage to its property or interruptionof its business,
except as otherwise expresslyprovided in this Lease.3

A reading of this section also demonstrates that the limitation of liability
contained in

relates to an event of casualtydescribed in the immediately preceding sub-
Section 26.14(b)(ii)

section. Specifically, is connected
Section 26.14(b)(ii) to Section by the conjunction
26.14(b)(i)

"and" that evidences a logicalconnection and relationshipbetween the two clauses. Read in

conjunctionwith each other, Section 26.14(b)(ii) of Gulfstream to
providing that "any liability

Tenant under this Lease shall be limited to direct damages and shall not include indirect,

to Tenant for
consequential,incidental,or punitivedamages, includingany liability lost profitsor

refers to "any loss or damage to property which is
ofbusiness" logically
interruption either covered

by insurance or which Tenant is requiredto insure under this Lease,..." provided for in Section

3
'The fact that Section 26.14 only to Gulfstream's liability
is relates arisingfrom an event of
causalityand not its intentional repudiationof the Lease is found throughout Section 26.14,
includingthe last sentence ofthat section that reads: "Tenant shall look to its property damage or
business interruption insurance policies, and not to and landlord,its agents or employees for any
loss incurred as a result of damage to its property or interruption
ofits business,except as otherwise

expresslyprovided in this Lease." Lease, Section 26.14(b).

14
Stated differently,
26.14(b)(i). to Tenant under
the "liability this Lease" referred to in Section

to which damages are intended
26.14(b)(i) to be limited is arisingfrom "any loss or
the liability

damage to property which is either covered by insurance or which Tenant is required to insure

under this Lease" stated in the preceding sub-section. See Beach Towing Services, Inc. v. Sunset

Landkssociates, LLC, 278 So. 3d 857, 860-61 (Fla.3d DCA 2019)(singlecontractual terms must
not be read in isolation,as "the goal is to arrive at of the entire
a reasonable interpretation

agreement.").

Moreover, Florida follows the whole agreement rule when interpreting
contracts, requiring

a court to read provisionsof a contract harmoniously in order to give effect to all portions

thereof. Cio' of Homestead v. Johnson, 760 So.2d 80, 84 (Fla.2000), citingSee Sugar Cane

Growers Cooperative of Flmda, Inc., v. Pinnock,735 So.2d 530, 535 (Fla. 4th DCA

1999)(holdingcontracts should be interpreted
to give effect to all provisions) and others.

of Section 26.14(b)(ii)
Gulfstream's interpretation violates this rule. Further still,
given the express

language stated in the limited section 26.14 regarding losses covered by insurance,Gulfstream, as

the drafter of the Lease Agreement, could have also included such specificlanguage in other

purported general limitations on remedies. See,
sections,identifying e.g., NILAC Intern. Mktg

Group v. Ameritech Services, Inc., 362 F.3d 354,359 (6th Cir. 2004) ("Moreover, [Gulfstream]

chose this languagein drafting
the agreement. [Gulfstrearn] party and admits that
is a sophisticated

this document was drafted by a member of its legalstaff,presumably under the supervisionof its

in-house counsel. If [Gulfstream] had intended to limit the scope of the []agreement . .
.,

[Gulfstrearnlcould have used more specificlanguage in draftingthe document.").Courts should

15
refrain from reading terms into instruments when these terms do not otherwise exist. It is

4
Z

that Gulfstream did not add any generallimitation of remedies to the Lease.
indisputable

Gulfstream expressly agreed, in the event of its default of the Lease, Strike X "to seek

specificperformance,equitablerelief,monetary damages and declaratoryrelief concerning" the

default. Lease, Section 23.5. Gulfstream further agreed under the Lease Agreement to: (i)

"indemnify and hold [StrikeXI harmless from and againstall actual losses and damages .as
-I a

direct result of a breach or default by [Gulfstream] under the Ground Lease" [Lease Agreement, §

1.1(h)];(ii)pay Strike X liquidateddamages in the form a discount on all payments Strike X is

requiredto make under the Lease for Gulfstream's breach ofthe Exclusive Use provisionstated in

§ 8.7(a)[Lease Agreement, § 8.7(b)]; provide Strike
(iii) X with a Rent Credit upon Gulfstream's
breach ofthe Regulation Rink Restriction in §8.7(c)of the Lease [Lease Agreement, §8.7(c)];
and

(iv)the abatement of Strike X's rent in the event of Gulfstream's

Case Info

Judge

Tuter, Jack Track Judge’s New Case

Case No.

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Document Filed Date

October 27, 2022

Case Filing Date

August 24, 2021

County

Parties

Conforti, Colby Grossman Attorney for the Plaintiff
Gulfstream Park Racing Association Inc Defendant
Kreitzer, Michael N Attorney for the Defendant
Strike C, LLC Plaintiff
Strike X LLC Plaintiff
Stronach, Belinda Defendant
Village At Gulfstream Park, LLC Defendant
Zarco, Roberto Attorney for the Plaintiff
Robert Salkowski Attorney
Merema Nikezic Attorney
Robert Zarco Attorney
Jennifer Junger Attorneys for Defendants
Jordanna Ishmael Attorneys for Defendants
Diana Albite Attorney
Jude Cooper Attorney
Jon Polenberg Attorney
Gavin Banta Attorney
Steven Berman Attorney

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Document for Strike X LLC Plaintiff vs. Village At Gulfstream Park, LLC , et al Defendant

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