Does the Aplus franchise agreement require the franchisee to indemnify Sunoco for losses related to the discharge or spill of petroleum products, and are there any exceptions?
Aplus Franchise · 2024 FDDAnswer from 2024 FDD Document
stem during periods when the building's furnace is not in use. There should be no change in the liquid level of the UST when the furnace is not in use. If monitoring detects a change over time, begin necessary suspected release procedure.
- (9) If Sunoco makes a maintenance service call for a leak or alleged Product loss, the following procedure must be employed:
- (a) You (or an authorized employee) may observe the petroleum dispensing equipment being checked by Sunoco maintenance representatives.
- (b) Upon conclusion of the service call, Sunoco maintenance representatives will summarize findings and action taken, if any, on a "Receipt of Services Performed" which will then be signed by you (or an authorized employee), with a copy left on Premises.
- (10) You shall be solely liable for all related Product losses, claims, fines, penalties, consent orders, regulatory notice of violations, customer complaints, and damage to personal and real property should you fail to comply with these provisions. Additionally, if after written notice from Sunoco, any inventory control, monitoring leak monitors, leak detection reports and records and/or any other compliance records are not provided within the time period set forth in the notice, Sunoco may immediately suspend deliveries of Product to you until such reports and records are received by Sunoco.
Source: Item 23 — RECEIPT (FDD pages 68–302)
What This Means (2024 FDD)
According to Aplus's 2024 Franchise Disclosure Document, franchisees are required to indemnify Sunoco. Specifically, the franchisee must defend, indemnify, and hold harmless Sunoco and its affiliates from all liabilities, damages, and expenses, including attorney's fees, arising from the franchisee's ownership or operation of the Aplus store.
This indemnification extends to various potential issues, including property damage, personal injury, or death, related to the operation of the Aplus store. It also covers any violation of laws, ordinances, or regulations. This means that if a customer is injured at the Aplus location due to the franchisee's negligence, or if the franchisee violates a local health code, the franchisee is responsible for covering Sunoco's legal costs and any damages awarded.
Furthermore, the franchisee is solely liable for all product losses, claims, fines, penalties, consent orders, regulatory notices of violations, customer complaints, and damage to personal and real property if they fail to comply with specific provisions outlined in the franchise agreement. These provisions include developing a Release Response Plan for the premises and adhering to procedures for monitoring potential leaks from underground storage tanks (USTs). Failure to comply with these requirements constitutes a material default under the lease terms, potentially leading to further liabilities for the Aplus franchisee.