If Sunoco's facilities, Loaned Equipment, or the Premises are damaged, what are the Aplus franchisee's responsibilities according to the FDD?
Aplus Franchise · 2024 FDDAnswer from 2024 FDD Document
(A) (1) You are responsible for any and all damage to Sunoco's facilities, Loaned Equipment, and the Premises, including damage caused by third parties. You must repair or replace any damaged facilities, Loaned Equipment, or Premises.
- (2) You will submit to Sunoco a completed Damage Report in the event of any damage to Sunoco's facilities, Loaned Equipment, or Premises. The Damage Report must include the names of all persons involved, the date and time of the incident, the names of all witnesses, the names of insurance companies, and the nature and extent of the damages. Additionally, you shall provide a copy of a police report regarding the incident if the damage occurred during a period when the Premises was closed or in those instances where the individual(s) responsible for the damage flee(s).
- (3) Sunoco will make diligent efforts to recover costs of repair or replacement from persons liable for damages to its property, and will reimburse you for any costs so recovered, but you retain primary responsibility.
- (4) Sunoco shall make all necessary repairs and replacements to the Premises and Loaned Equipment resulting from each such incidence of accidental or malicious physical damage. You agree to execute and deliver any instruments and papers and to do whatever else is necessary or required for Sunoco to pursue its legal remedies in collecting all expenses resulting from any repairs or replacement to equipment or Premises from the individual(s) responsible for such accident or physical damage.
- (5) Notification by you to Sunoco of a need for repair and the assumption by Sunoco for repair shall not relieve you of any liability incurred by or to third parties, including your employees, customers, invitees, and the general public, because of a state of disrepair.
- (6) If the Premises or Loaned Equipment is damaged by fire or other casualty caused directly, or indirectly by your negligence or willful misconduct or that of your agents, employees, or contractors or by your default under any provision of this Lease, at your sole expense, you shall repair such damage or rebuild the Premises in accordance with plans and specifications approved by Sunoco; or, at Sunoco's option, Sunoco may repair or rebuild and you shall reimburse Sunoco for all costs thereof. If you are responsible for such damage in accordance with this subsection, the fees prescribed in Sections 1.03 and 1.04 shall be payable in accordance with the terms thereof.
Sunoco's Responsibility - Partial Destruction
(B) (1) Except as provided in Section 2.14(A), if the Premises or Loaned Equipment are damaged by fire or other casualty, but not to an extent to render the Premises unfit for the conduct of business at determined solely by Sunoco, Sunoco shall repair such damage. During such period of repair, you shall pay the Monthly Fees as set forth in Sections 1.03, 1.04, and 2.05, except that the Monthly Fees set forth in Sections 1.03, 1.04, 2.05(A), and 2.05(D) shall abate to the extent such damage renders the Premises not usable for their normal functions.
Sunoco's Responsibility – Total Destruction
(2) Except as provided in Section 2.14(A), if the Premises are destroyed to an extent that the conduct of business is no longer practicable, either party may, by giving written notice to the other within thirty (30) days after the occurrence of such damage, terminate this Lease effective as of the date of such damage.
If this Lease is not so terminated, Sunoco may elect to repair the Premises conditioned upon your timely execution of an agreement to pay Sunoco's estimated increased Rent
Source: Item 23 — RECEIPT (FDD pages 68–302)
What This Means (2024 FDD)
According to Aplus's 2024 Franchise Disclosure Document, the franchisee is responsible for any and all damage to Sunoco's facilities, Loaned Equipment, and the Premises, including damage caused by third parties. The Aplus franchisee must repair or replace any Equipment, buildings, and fixtures at the Premises so damaged. The franchisee must also submit a completed Damage Report to Sunoco in the event of any damage to Sunoco's facilities, Loaned Equipment, or Premises. The Damage Report must include the names of all persons involved, the date and time of the incident, the names of all witnesses, the names of insurance companies, and the nature and extent of the damages. Additionally, the franchisee shall provide a copy of a police report regarding the incident if the damage occurred during a period when the Premises was closed or in those instances where the individual(s) responsible for the damage flee(s).
Sunoco reserves the right to determine how best to repair or replace damaged Equipment or Premises and may require the Aplus franchisee to follow its directions as to proper repair and/or replacement. Should the franchisee not comply with Sunoco's directions, Sunoco or its agents may repair or replace damaged property to its standards, costs of which will be billed to and paid by the franchisee. Sunoco will make diligent efforts to recover costs of repair or replacement from persons liable for damages to its property, and will reimburse the franchisee for any costs so recovered, but the franchisee retains primary responsibility.
However, if the Premises or Loaned Equipment is damaged by fire or other casualty, but not to an extent to render the Premises unfit for the conduct of business at determined solely by Sunoco, Sunoco shall repair such damage. During such period of repair, the franchisee shall pay the Monthly Fees as set forth in Sections 1.03, 1.04, and 2.05, except that the Monthly Fees set forth in Sections 1.03, 1.04, 2.05(A), and 2.05(D) shall abate to the extent such damage renders the Premises not usable for their normal functions. If the Premises are destroyed to an extent that the conduct of business is no longer practicable, either party may, by giving written notice to the other within thirty (30) days after the occurrence of such damage, terminate this Lease effective as of the date of such damage. If the lease is not terminated, Sunoco may elect to repair the Premises conditioned upon the franchisee's timely execution of an agreement to pay Sunoco's estimated increased Rent applicable to the Premises upon completion of the restoration and to comply with such other terms and conditions as Sunoco deems necessary. During any restoration of the Premises, Rent, Royalty and fees payable under Sections 1.03, 1.04, and 2.05 will be abated.
If the Premises or Loaned Equipment is damaged by fire or other casualty caused directly, or indirectly by the franchisee's negligence or willful misconduct or that of their agents, employees, or contractors or by the franchisee's default under any provision of this Lease, at the franchisee's sole expense, the franchisee shall repair such damage or rebuild the Premises in accordance with plans and specifications approved by Sunoco; or, at Sunoco's option, Sunoco may repair or rebuild and the franchisee shall reimburse Sunoco for all costs thereof. If the franchisee is responsible for such damage in accordance with this subsection, the fees prescribed in Sections 1.03 and 1.04 shall be payable in accordance with the terms thereof.