When constructing a Benihana Restaurant, is BNC responsible for acting as construction managers or supervising the design, construction, or build-out?
Benihana Franchise · 2024 FDDAnswer from 2024 FDD Document
the Location approved by BNC under its then-existing site selection processes, and Franchisee will not relocate the Restaurant without BNC's prior written consent.
- 2.2 If Franchisee has not secured an approved location as of the Effective Date, BNC may, at Franchisee's request and subject to BNC's availability, assist Franchisee in identifying a site for the Location and the Restaurant in accordance with BNC's then-existing site selection processes. Franchisee acknowledges, however, that Franchisee will make the final decision whether to construct the Restaurant at any specific site approved by BNC, or at the Location. Franchisee acknowledges that BNC's approval of the Location is not an assurance, representation, warranty, promise, or guarantee by BNC that the Restaurant operated at the Location will be profitable or otherwise successful.
- 2.3 BNC personnel will consult with Franchisee in the planning, design, construction, and build-out of the Restaurant. Unless otherwise agreed, all consultations will be at BNC's offices in Aventura, Florida (or other offices designated by BNC). If Franchisee requests, and BNC agrees, that any consultation under this Section 2.3 be held at a location other than BNC's offices, Franchisee will pay all travel, lodging, living, and other expenses incurred by BNC personnel as part of any consultation away from BNC's offices. Nothing contained in this Section 2.3 means that BNC or any of its employees are authorized to or will act as construction managers or will, in any other capacity, actually supervise the design, construction, or build-out of the Restaurant.
Source: Item 23 — Receipts (FDD pages 74–576)
What This Means (2024 FDD)
According to Benihana's 2024 Franchise Disclosure Document, Benihana personnel will consult with the franchisee in the planning, design, construction, and build-out of the restaurant. However, Benihana and its employees are not authorized to act as construction managers or supervise the design, construction, or build-out of the restaurant.
The franchisee is solely responsible for diligently designing, constructing, equipping, and opening the restaurant. This includes obtaining all necessary zoning classifications, permits, clearances, certificates of occupancy, and other required governmental approvals. Benihana is not responsible for any construction delays, equipping, or decoration of the restaurant, or any loss resulting from the restaurant design or construction.
The franchisee must use only licensed and qualified general contractors, designers, and architects for construction work. Benihana will provide its then-current prototypical plans for a typical Benihana Restaurant, and the franchisee must employ professionals to adapt or modify these plans at their own expense, submitting any modified plans to Benihana for review and approval. Benihana also disclaims any warranty of the quality or merchantability of any goods or services provided by architects, contractors, or other entities it may refer to the franchisee.
The franchisee must provide Benihana access to the restaurant during construction. If Benihana determines that the restaurant is not being built according to the final plans, it can require the franchisee to make necessary alterations or modifications. The franchisee cannot open the restaurant without Benihana's written authorization and acknowledgement that all construction requirements have been met. The franchisee is also responsible for acquiring or leasing the location at their own expense and must open the restaurant within eighteen months of the effective date of the franchise agreement.