Demand Letter - Contract Performance (Florida)

DEMAND FOR CONTRACT PERFORMANCE (FLORIDA)

Pre-suit demand letter for specific performance or equivalent cure of a material breach, drafted under Florida contract and UCC law, preserving remedies including specific performance (UCC Art. 2/2A), demand for adequate assurance (§ 672.609), and proposal for settlement (§ 768.79).

[LAW FIRM LETTERHEAD]
[Attorney Name, Florida Bar No. ________________]
[Street Address]
[City, Florida, ZIP]
Telephone: [(___) ___-____]
Email: [________________________________]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED AND EMAIL

[__/__/____]

[Counterparty Company Name]
Attn: [Contact Name & Title]
[Street Address]
[City, State ZIP]

Re: FORMAL DEMAND FOR CONTRACT PERFORMANCE / DEMAND FOR ADEQUATE ASSURANCE
"[AGREEMENT TITLE]" dated [__/__/____] (the "Agreement")

Dear [________________________________]:

This firm represents [CLIENT LEGAL NAME] ("Client") in connection with the above-referenced Agreement with [COUNTERPARTY LEGAL NAME] ("Counterparty"). This letter is a formal demand under Florida law for (i) immediate performance of the Agreement and cure of the material breaches described herein; and, where applicable, (ii) adequate assurance of due performance pursuant to Fla. Stat. § 672.609.

I. THE AGREEMENT AND CLIENT'S PERFORMANCE

1. The Agreement. On [__/__/____], Client and Counterparty entered into the Agreement, pursuant to which Counterparty committed to [describe core obligations with specificity]. The Agreement is governed by Florida law pursuant to Section [____] thereof and is enforceable as a written contract subject to Florida's five-year statute of limitations under Fla. Stat. § 95.11(2)(b).

2. Client's Full Performance. Client has fully performed its obligations under the Agreement, including:

☐ Tender of payment in the amount of $[____________] on [__/__/____]
☐ Delivery of [________________________________] on [__/__/____]
☐ Provision of access, approvals, and specifications required under Section [____]
☐ Satisfaction of all conditions precedent to Counterparty's obligation to perform
☐ [Other: ________________________________]

3. Counterparty's Obligations. Counterparty's outstanding obligations include:

• [Obligation 1, with Agreement section reference and due date]
• [Obligation 2]
• [Obligation 3]

II. MATERIAL BREACHES BY COUNTERPARTY

Counterparty has materially breached the Agreement as follows:

A. Specific Breaches

1. Failure to Perform. Counterparty has failed to [describe specific non-performance], in violation of Section [____] of the Agreement. The deadline for such performance was [__/__/____], and [____] days have now elapsed.

2. Defective Performance. Counterparty's purported performance is deficient in the following respects: [describe defects with specificity, attach exhibits].

3. Repudiation / Indication of Inability to Perform. [Describe any conduct, statements, or circumstances suggesting Counterparty cannot or will not perform, giving rise to "reasonable grounds for insecurity" under Fla. Stat. § 672.609(1) (if a goods contract).]

4. Breach of Covenants. Counterparty has breached the covenants in Sections [____] of the Agreement, including [____].

B. Materiality

Each of the above breaches is material. Under Florida common law, a material breach is one that "goes to the essence of the contract" and "deprive[s] the injured party of the benefit reasonably expected from the contract." Covelli Family, L.P. v. ABG5, L.L.C., 977 So. 2d 749 (Fla. 4th DCA 2008). The cumulative and individual effect of Counterparty's breaches has deprived Client of the principal benefit of its bargain.

C. No Waiver

Client has not waived any right or remedy. To the extent Client has communicated patience or offered informal accommodations, such conduct does not constitute a waiver under Florida law. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707 (Fla. 2005).

III. APPLICABLE FLORIDA LEGAL FRAMEWORK

A. Contract Law Remedies

Under Florida common law, Client has the right, upon material breach, to:

1. Terminate the Agreement and sue for damages;
2. Treat the Agreement as continuing and sue for damages as each breach occurs;
3. Seek specific performance where damages are inadequate and the subject matter is unique (including land and unique goods);
4. Seek declaratory judgment under Fla. Stat. Ch. 86;
5. Seek injunctive relief under Fla. R. Civ. P. 1.610; and
6. Recover consequential and incidental damages within the Hadley v. Baxendale foreseeability rule as adopted by Florida courts.

B. UCC Article 2 (If Goods Contract)

If the Agreement is a contract for the sale of goods under Fla. Stat. Ch. 672 (Florida UCC Article 2), Client invokes the following provisions:

• § 672.609 - Right to Adequate Assurance of Due Performance. When reasonable grounds for insecurity arise, Client may demand in writing adequate assurance of due performance and may suspend its own performance. Failure to provide assurance within thirty (30) days constitutes repudiation.
• § 672.610 - Anticipatory Repudiation. If Counterparty has repudiated, Client may (a) await performance for a commercially reasonable time; (b) resort to any remedy for breach; or (c) suspend its own performance.
• § 672.711 - Buyer's Remedies. Cancel the contract and recover payments, "cover" by purchasing substitute goods (§ 672.712), recover damages for non-delivery (§ 672.713), and obtain specific performance (§ 672.716).
• § 672.714 - Buyer's Damages for Breach in Regard to Accepted Goods. Difference between value of goods accepted and value as warranted, plus incidental and consequential damages.
• § 672.715 - Incidental and Consequential Damages. Includes lost profits that could not be prevented by cover.
• § 672.716 - Buyer's Right to Specific Performance or Replevin. Available where goods are "unique or in other proper circumstances."

C. UCC Article 2A (If Lease of Goods)

If the Agreement is an equipment or goods lease governed by Fla. Stat. Ch. 680, Client invokes lessor's or lessee's remedies under §§ 680.5021-680.5281 (including the right to reject, revoke acceptance, cover, and obtain specific performance).

D. Restrictive Covenant Breaches

To the extent Counterparty's breach involves violation of non-compete, non-solicitation, or confidentiality covenants governed by Fla. Stat. § 542.335, Client will seek the presumption of irreparable harm under § 542.335(1)(j) and mandatory injunctive relief. Florida courts are required to blue-pencil overbroad restrictions rather than void them. § 542.335(1)(c).

E. Fla. Stat. § 95.11 - Limitations

Client's claim is well within the applicable limitations period.

IV. FORMAL DEMAND

Pursuant to Section [____] of the Agreement (notice and cure provision) and Fla. Stat. § 672.609, Client hereby formally demands that Counterparty, on or before [__/__/____] (the "Cure Deadline," which is [____] days from receipt of this letter and consistent with the cure period set forth in the Agreement):

1. Cure all breaches identified in Section II above by fully and timely performing all outstanding obligations;

2. Provide written assurance of due performance under Fla. Stat. § 672.609(1), including [delivery schedules, proof of inventory/capacity, financial statements, performance bonds, or other assurance];

3. Commit in writing to complete performance of all remaining obligations on or before [__/__/____];

4. Reimburse Client for all costs and expenses incurred to date as a result of the breach, totaling $[____________]; and

5. Confirm in writing that no further breaches will occur.

V. CONSEQUENCES OF NON-CURE

If Counterparty fails to cure by the Cure Deadline, Client will treat the Agreement as having been repudiated and/or materially breached, and will (without further notice) pursue any or all of the following remedies in the Circuit Court in and for [________________________________] County, Florida, or in federal court sitting in Florida:

1. Termination of the Agreement under Section [____] and Florida common law;

2. Specific performance of Counterparty's obligations, to the extent the subject matter is unique or money damages are inadequate. Specific performance is an equitable remedy available in Florida where (a) the parties entered into a valid contract, (b) the contract terms are clear and definite, (c) the plaintiff has performed its obligations, and (d) legal remedies are inadequate. Castigliano v. O'Connor, 911 So. 2d 145 (Fla. 3d DCA 2005);

3. Injunctive relief under Fla. R. Civ. P. 1.610, including temporary and permanent injunctions, with the presumption of irreparable harm under § 542.335(1)(j) where applicable;

4. Compensatory damages, including direct damages, incidental damages, consequential damages, and lost profits, subject to Florida's Hadley v. Baxendale foreseeability standard;

5. Liquidated damages under Section [____] of the Agreement (if valid under Florida's penalty analysis: Lefemine v. Baron, 573 So. 2d 326 (Fla. 1991));

6. Prejudgment interest from the date of breach, calculated at the contractual rate or the statutory rate under Fla. Stat. § 55.03;

7. Attorney's fees and costs under the Agreement's fee provision, made reciprocal by Fla. Stat. § 57.105(7), and under Fla. Stat. § 542.335(1)(k) (if restrictive covenant claims apply);

8. Proposal for Settlement under Fla. Stat. § 768.79 and Fla. R. Civ. P. 1.442, triggering fee-shifting from the date of the proposal if Client obtains a judgment at least 25% more favorable than rejected proposal;

9. Declaratory relief under Fla. Stat. Ch. 86; and

10. All other relief available in law or equity.

VI. LITIGATION HOLD NOTICE

Counterparty is hereby directed to preserve all documents, ESI, emails, text messages, chat communications, meeting notes, accounting records, project files, and tangible evidence relating to the Agreement and the subject matter of this letter. Spoliation of evidence in anticipation of litigation is actionable under Florida law and will be met with sanctions motions. Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005).

VII. SETTLEMENT AND GOOD FAITH

Client remains willing to discuss a negotiated resolution, but not at the expense of its legitimate business interests. Client will entertain reasonable proposals received before the Cure Deadline. Nothing in this letter constitutes a settlement offer by Client, a waiver of any right, or an election of remedies.

This letter is a confidential settlement communication under Fla. Stat. § 90.408 and is inadmissible except as permitted by that statute.

VIII. GOVERNING LAW AND VENUE

The Agreement is governed by Florida law and disputes are subject to venue in [________________________________] County, Florida. Any assertion of inconvenient forum is waived by the Agreement's venue provision.

If Counterparty is represented by counsel, please forward this letter immediately and have counsel contact the undersigned before the Cure Deadline.

Sincerely,

[________________________________]
[Attorney Name]
Florida Bar No. [________________]
Attorney for [CLIENT NAME]

Enclosures:
- Copy of Agreement (with relevant provisions highlighted)
- Documentation of Client's Performance
- Evidence of Counterparty's Breaches

Sources and References

• Fla. Stat. § 95.11(2)(b) - 5-year SOL, written contracts
• Fla. Stat. § 672.601 et seq. - Florida UCC Article 2
• Fla. Stat. § 672.609 - Adequate assurance of due performance
• Fla. Stat. § 672.610 - Anticipatory repudiation
• Fla. Stat. § 672.716 - Specific performance
• Fla. Stat. Ch. 680 - Florida UCC Article 2A
• Fla. Stat. § 542.335 - Restrictive covenants
• Fla. Stat. § 55.03 - Statutory interest
• Fla. Stat. § 57.105(7) - Reciprocal fees
• Fla. Stat. § 768.79 - Proposal for settlement
• Fla. Stat. § 90.408 - Compromise and offers to compromise
• Fla. Stat. Ch. 86 - Declaratory judgments
• Fla. R. Civ. P. 1.442, 1.610
• Covelli Family, L.P. v. ABG5, L.L.C., 977 So. 2d 749 (Fla. 4th DCA 2008)
• Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707 (Fla. 2005)
• Castigliano v. O'Connor, 911 So. 2d 145 (Fla. 3d DCA 2005)
• Lefemine v. Baron, 573 So. 2d 326 (Fla. 1991)
• Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005)