At any time during normal economic activity the organization may encounter the construction industry. In this area, the organization can act, as a rule, as a construction customer, contractor (general contractor, subcontractor). Contracting activities are also closely related to supplies for construction needs. A construction contract initially implies a turnover of large financial resources, which requires special attention to the content, compilation and design of all documents. Therefore, we propose to dwell in more detail on one of the main documents in the construction industry - the contract building contract.
The legal requirements for a construction contract are contained in paragraph 3 of Chapter 37 of the second part of the Civil Code. These rules are set out in the code in the general view, therefore, in practice, construction contracts often become the subject of judicial trial, and not only about the content of the contract, but also up to its original validity. In the whole array judicial practice"Construction" disputes occupy one of the first places in terms of number.
Concept and scope
The definition of a building contract is given in paragraph 1 of Article 740 of the Civil Code: according to it, the contractor undertakes to build a certain object on the instructions of the customer or perform other construction work within the period established by the contract, and the customer undertakes to create the necessary conditions for the contractor to perform the work, accept their result and pay the stipulated price.
The construction contract is concluded:
- for the construction of an enterprise, building, residential building, structure, other object;
- for reconstruction (renovation, restructuring, etc.) of an enterprise, building, residential building, structure, other facility;
- to perform installation, commissioning and other works inextricably linked with the facility under construction;
- for the performance of work on the overhaul of buildings and structures (in the contract it can be stipulated that the norms on construction contracts do not apply to such work).
| The city administration issued an order to reconstruct the dilapidated building with the subsequent transfer of the building to a company for rent to house a bank. According to the order, the foreman (contractor) is Stella (subject to the conclusion of a construction contract, the draft of which must be submitted within a month). However, a year has passed, and the draft treaty has not been presented. In this regard, the administration canceled the order and decided to place a store in the building and transfer it to another contractor. The legal dispute arose due to the fact that the Stella company began the reconstruction of the building only on the basis of an administrative act (order) and, accordingly, demanded payment for the work. The administration refused to accept and pay for the work, since the new purpose of the building (for a store) requires construction works of a different nature. The arbitrators refused the claims of the contractor and pointed out that the basis for the emergence of a legal relationship under a construction contract is an agreement (Article 740 of the Civil Code of the Russian Federation), which in this case was not concluded. Works performed without a contract on the basis of an administrative act and not accepted by the customer are not subject to payment (from the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 24, 2000 No. 51 “Overview of the practice of resolving disputes under a construction contract”). |
Risk distribution rule
When the construction of an object or construction work is completed, the moment from which the subject of the contract will pass to the customer of the construction is extremely important. Accordingly, the risk of financial losses also passes with it if something happens to the property. In this regard, paragraph 1 of Article 741 of the Civil Code establishes the rule of risk distribution between the customer and the contractor (contract parties): the contractor bears the risk of accidental loss or accidental damage to the construction object (subject of the construction contract) before it is accepted by the customer. Please note: we are talking about a random combination of circumstances (and not about intentional actions (inaction)), which led to the complete physical destruction or damage to the construction object or the result of the work performed. In the latter case, all costs are borne by the guilty party, and the rules on the risk of accidental death do not apply.
The parties in the contract have the right to provide for cases when, within the period specified in the contract after the customer has accepted the construction object, the contractor is obliged to ensure its operation (clause 2, article 740 of the Civil Code of the Russian Federation).
Paragraph 2 of Article 741 of the Civil Code specifically stipulates the situation when the construction object is destroyed or damaged before it is accepted by the customer:
- due to the poor quality of the material (parts, structures) or equipment provided by the customer;
- due to the execution of erroneous instructions of the customer.
In both cases, the contractor has the right to demand payment of the entire cost of work according to the estimate, but on condition that he immediately warned the customer (clause 1 of article 716 of the Civil Code of the Russian Federation):
- about the unsuitability or poor quality of the material, equipment, technical documentation provided by the customer or the thing transferred for processing (processing);
- about the possible adverse consequences for the customer of the fulfillment of his instructions on the method of performing the work;
- about other circumstances beyond the control of the contractor that threaten the suitability or strength of the results of the work performed or make it impossible to complete it on time.
The law does not oblige the customer or contractor to insure the risk of accidental loss or accidental damage to the construction object, material, equipment and other property used in construction, or liability for causing harm to others during construction. However, a construction contract may contain such a provision if it is in the interests of the parties (Article 742 of the Civil Code of the Russian Federation).
The party that is obliged under the contract to insure its risks must provide the other party with evidence of this - an insurance contract concluded under the terms of a construction contract (with data on the insurer, the amount of the sum insured and the risks insured).
Construction documentation
As a general rule, the price of construction work is determined by the estimate, and their volume, content and other requirements are determined by technical documentation (clause 1, article 743 of the Civil Code of the Russian Federation). In addition to the above, depending on the type of construction work, the parties to the contract must be guided by building codes and rules (SNiPs). Unless otherwise specified in the contract, it is assumed that the contractor is obliged to perform all the work specified in the technical documentation and in the estimate.
The building contract must specify:
a) the composition of the technical documentation;
b) the content of the technical documentation;
c) which of the parties and in what period must provide the relevant documentation.
An important conclusion about the relationship between the construction contract and construction documentation was made by the arbitrators in the decision of the Federal Antimonopoly Service of the Volga District dated April 29, 2010 in case No. A12-13650/2009. They indicated the following: the absence of duly approved technical documentation is not an unconditional basis for recognizing the contract as not concluded. It does not follow from the content of articles 709, 740 and 743 of the Civil Code that the estimate is an essential condition of the work contract, the absence of which in the contract entails its non-conclusion. The same applies to technical documentation. So, technical documentation for the construction (or an agreement on its provision) may be absent, but familiarization of the potential customer with the real type specimen buildings is recognized as the actual establishment of the subject of the construction contract.
Construction support
According to Article 745 of the Civil Code, materials, parts, structures, equipment for construction work are provided by the contractor. But by a building contract, this obligation can be assigned to the customer, and in whole or in a certain part. As a result, the party that provides construction is responsible for the possibility of using materials in construction and, as a result, for the quality of work (unless it proves otherwise).
The law gives the contractor the right to refuse to execute a construction contract and require the customer to pay for the completed part of the work under the contract (clause 3, article 745 of the Civil Code of the Russian Federation). This right arises when two conditions are met simultaneously:
1) it is impossible to use the materials or equipment of the customer without deteriorating the quality of the work performed;
2) the customer refused to replace materials, equipment.
Payment for work
The amount of payment for the work performed is determined by the estimate. The terms and procedure for payment may be established by law or by a construction contract. If not established, then the rules of Article 711 of the Civil Code apply. According to it, if the contract does not provide for advance payment for the work performed (its individual stages), the customer pays the agreed price after the final delivery of the results of the work (provided that it was completed properly and within the agreed time or with the consent of the customer ahead of schedule). Meanwhile, paragraph 2 of Article 746 of the Civil Code allows initially in the construction contract to provide for payment for work at a time and in full after acceptance of the object by the customer.
The contractor has the right to demand payment of an advance payment or a deposit. Their size and the basis for payment must be expressly provided for by law or the work contract.
Additional customer responsibilities
Large-scale construction works require appropriate territory and resources. Therefore, the law obliges the customer (Article 747 of the Civil Code of the Russian Federation):
- timely provide land for construction. Its area and condition must comply with the terms of the building contract. If such conditions are not prescribed, the characteristics of the site should ensure the timely start of work, their normal conduct and completion on time;
- in cases and in order, stipulated by the agreement construction contract, transfer to the contractor for use the buildings and structures necessary for the work, ensure the transportation of goods to his address, temporary connection of power supply networks, water and steam pipelines and provide other services.
The construction contract must specify the procedure for payment for the services provided by the customer.
Control and supervision
The contractor during construction is obliged to follow the instructions of the customer, if they do not contradict the terms of the construction contract and do not interfere with the operational and economic activities of the contractor. Thus, the customer does not have the right to interfere in the internal affairs of the contractor. Meanwhile, he has the right to control (clause 1 of article 748 of the Civil Code of the Russian Federation):
- progress and quality of work performed;
- observance of terms of works (schedule);
- the quality of the materials provided by the contractor;
- the correct use of the customer's materials by the contractor.
Please note: Article 53 of the Town Planning Code obliges the developer, customer, other specially authorized person to carry out construction control in the process of construction, reconstruction, overhaul objects capital construction.
If a deviation from the terms of the construction contract is discovered, which may worsen the quality or lead to other shortcomings, the customer is obliged to immediately notify the contractor about this. If this is not done, then in the future the references of the customer to the shortcomings discovered by him will not have legal significance. The court will not take into account such information.
Delivery and acceptance of works
One of the most important stages in the execution of a construction contract is the handover and acceptance of work. Upon receipt from the contractor of a signal about readiness for delivery of the result of work (stage of work), the customer is obliged to immediately begin to accept it (clause 1, article 753 of the Civil Code of the Russian Federation). As a general rule, the customer organizes and carries out the acceptance at his own expense, although the contract may provide otherwise. In cases stipulated by law, representatives of state bodies and local self-government bodies participate in the acceptance of the result of work.
Paragraph 3 of Article 753 of the Civil Code states: if the customer first accepts the result of a separate stage of work, then he bears the risk of the consequences of loss or damage to the result of all work that occurred through no fault of the contractor.
Delivery and acceptance of the result of work are formalized by acts signed by both parties. In case of refusal to sign, a corresponding mark is made. Such acts confirm only the fact that the contractor has performed the work, and not the customer's consent to pay for them (including additional work that actually took place and is reflected in the act, but is not in the technical documentation). Even if the customer signed the work acceptance certificate without hesitation, in the future this does not prevent him from arguing in court about the volume, cost and quality of construction work.
Responsibility and quality assurance
The contractor is responsible to the customer (Article 754 of the Civil Code of the Russian Federation):
- for allowed deviations from the technical documentation and SNiPs binding on the parties;
- for failure to achieve the indicators of the construction object specified in the technical documentation (for example, productive capacity enterprises);
- for the reduction or loss of strength, stability, reliability of a building, structure or part thereof during reconstruction (renovation, restructuring, restoration, etc.).
Keep in mind: according to paragraph 2 of Article 754 of the Civil Code, the contractor is not responsible for minor deviations from the technical documentation made by him without the consent of the customer, if they did not affect the quality of the construction object.
Unless otherwise provided by the construction contract, the contractor guarantees the achievement of the indicators specified in the technical documentation and the possibility of operating the facility in accordance with the construction contract during the warranty period. The parties may, by mutual agreement, extend the statutory warranty period.
Unlike other types of contracts, the Civil Code (Article 756) establishes an extended warranty period for construction contracts. Thus, the deadline for detecting construction defects is five years.
The peculiarity of a construction contract is that, in addition to a purely legal component, it is tied to the technology and features of specific construction work. Therefore, special attention should be given to essential conditions agreements that guarantee its validity and conclusion.
V. Belkovets,
legal editor
In accordance with paragraph 1 of Art. 740 of the Civil Code, under a construction contract, the contractor undertakes to build a certain facility on the instructions of the customer or perform other construction work within the period established by the contract, and the customer undertakes to create the necessary conditions for the contractor to perform the work, accept their result and pay the stipulated price.
Regulation of this type of contracting relationship is carried out by the norms of § 3 Ch. 37 GK "Construction contract". General provisions on the contract, contained in § 1 of this Chapter, shall apply, unless otherwise provided for in the Civil Code of the rules on the construction contract.
The norms governing relations on a construction contract are contained in many other regulatory legal acts. These include, in particular:
In cases where, under a building contract, work is performed to meet the household or other personal needs of a citizen, the rules of § 2 Ch. 37 of the Civil Code "Household contract" (clause 3 of article 740 of the Civil Code).
In addition, acts of a recommendatory nature are used in regulating construction contract relations. Such an act, in particular, is the Guidelines for the preparation of construction contracts for construction in the Russian Federation adopted by the Ministry of Construction of Russia on June 10, 1992.
The parties to a construction contract are the customer and the contractor.
Investors who make capital investments in the Russian Federation using their own and (or) borrowed funds in accordance with the legislation of the Russian Federation, as well as individuals and legal entities authorized by investors who implement investment projects (clauses 2, 3) can act as customers article 4 of the Federal Law of "On investment activities in the Russian Federation, carried out in the form of capital investments").
Contractors may be construction, construction and installation, design and construction and other organizations operating in the field of construction production, as well as individual entrepreneurs. To perform the relevant types of work, they must have a license (clause 4, article 4 of the said Federal Law).
In the implementation of capital construction, the general contracting system is widely used, in which the customer enters into an agreement with one construction organization- a general contractor that engages specialized organizations as subcontractors to perform individual work packages. General contractors and subcontractors may also be citizens who carry out entrepreneurial activity without forming a legal entity.
With the consent of the contractor, the customer concludes contracts for the performance of certain installation and other special works on this construction object with other contract installation and other specialized organizations. Such concluded customer contracts are commonly called direct contracts.
The subject of a construction contract (subcontract) is the end result of the contractor's (subcontractor's) activities. Under a construction contract, this is a corresponding construction object (enterprise, building, structure) handed over by the contractor to the customer, and under a subcontract - a complete set of certain works (installation, sanitary, etc.), which are part of the work on the construction object as a whole and delivered by the subcontractor to the general contractor.
There are the following kinds construction contracts:
Unless otherwise provided by the contract, the rules on a construction contract also apply to major repairs of buildings and structures (clause 2, article 740 of the Civil Code).
The building contract must be concluded in writing. In this case, the form (sample) of the contract can be used, which is an annex to the above-mentioned Guidelines for drawing up construction contracts in the Russian Federation.
The essential terms of a building contract are the terms on the subject matter, price and term of the contract.
When determining the price of the contract, the parties may be guided by The procedure for determining the cost of construction and free (contractual) prices for construction products in the conditions of development of market relations(Appendix to the letter of the Gosstroy of Russia dated December 29, 1993 No. 12-349).
In accordance with par. 1 p. 1 art. 708 of the Civil Code, the term of a construction contract is determined by agreement of the parties by indicating in the contract the initial and final dates for the performance of work. By agreement of the parties, the contract may also establish deadlines for the completion of individual stages of work, if the contract provides for the delivery of the result of the work performed, first by stages, and then as a whole for the construction object.
As a rule, the construction contract provides for the contractor's warranty obligations for the constructed buildings and structures or for the completed work packages.
In order to enter into a building contract, prior receipt certain documents. For the customer, such a document is a construction permit issued by a federal executive body, an executive body of a constituent entity of the Russian Federation or a local government body in accordance with their competence (Article 51 of the Town Planning Code), and for a contractor, a license (permit) to carry out construction activities.
The main obligation of the contractor under a construction contract is to carry out the construction (expansion, reconstruction, technical re-equipment) of the enterprise, building, structure provided for by the contract. An important condition for the execution of the contract is that construction and installation and other work on the facility must be performed in accordance with the technical documentation that determines the scope, content of work and other requirements for them, and the estimate that determines the price of work (design and budget documentation).
When carrying out construction, the contractor is obliged to comply with construction norms and rules (SNiPs), other technical norms and rules, as well as the requirements of the law and other legal acts on environmental protection and on the safety of construction work (Article 751 of the Civil Code).
The contractor is obliged to provide the construction site with the necessary materials, including parts and structures, as well as equipment, unless the construction contract provides that the construction in general or in a certain part is ensured by the customer (Article 745 of the Civil Code).
The obligation of the contractor is also the erection of a building, structure or other construction object or the performance of other construction works and the delivery to the customer of the result of the work performed under the construction contract within the time period established by the contract.
The law provides for some specific obligations of the customer under a construction contract. Thus, the customer is obliged to provide a land plot for construction in a timely manner. Area and condition of the provided land plot must comply with the conditions contained in the contract, and in the absence of such conditions - ensure the timely start of work, their normal conduct and completion on time.
The customer is obliged, in the cases and in the manner prescribed by the construction contract, to transfer to the contractor for use the buildings and structures necessary for the performance of work, to ensure the transportation of goods to his address, temporary connection of power supply networks, water and steam pipelines, and provide other services.
Payment for the above services is made in the cases and on the terms stipulated by the construction contract (Article 747 of the Civil Code).
The customer is also required to transfer to the contractor documents confirming the permission of the relevant authorities to carry out work in places where underground utilities pass, in the area of overhead power lines and communication lines.
In accordance with Art. 748 of the Civil Code, the customer has the right to exercise control and supervision over the progress and quality of the work performed, compliance with the deadlines for their implementation (schedule), the quality of the materials provided by the contractor, as well as the correct use of the customer's materials by the contractor, without interfering with the operational and economic activities of the contractor.
The customer, who discovered in the course of control and supervision over the performance of work, deviations from the terms of the construction contract, which may worsen the quality of work, or other shortcomings thereof, is obliged to immediately notify the contractor about this. The customer who has not made such a declaration loses the right to refer to the shortcomings discovered by him in the future.
A characteristic feature of a construction contract is the cooperation of the parties (Article 750 of the Civil Code).
In view of the specific and complex nature of the object of the construction contract, the delivery and acceptance of work performed under this contract is especially regulated (Article 753 of the Civil Code). In the cases provided for by law or other legal acts, representatives of state bodies and local self-government bodies must participate in the acceptance of the result of work.
The delivery of the result of work by the contractor and its acceptance by the customer are formalized by an act signed by both parties. If one of the parties refuses to sign the act, a note is made in it and the act is signed by the other party. A unilateral act of delivery or acceptance of the result of work may be declared invalid by the court only if the motives for refusing to sign the act are recognized by him as justified. The customer has the right to refuse to accept the result of the work in case of detection of defects that exclude the possibility of its use for the purpose specified in the construction contract and cannot be eliminated by the contractor or customer.
Acceptance of completed construction objects is carried out by the customer or another person authorized by the investor. The customer may involve the user of the facility (operating organization), developers of technical documentation, specialized organizations and other legal and individuals, creating, if necessary, a selection committee.
In cases where this is provided for by law or a building contract, or follows from the nature of the work performed under the contract, acceptance of the result of the work must be preceded by preliminary tests. Accordingly, acceptance is carried out only with a positive result of such tests (clause 5, article 753 of the Civil Code).
Acceptance of the completed construction object is documented by the act of acceptance.
The Contractor is obliged to timely eliminate the shortcomings and defects identified in the process of acceptance of construction and installation works. The deadline for eliminating these shortcomings is specifically stipulated in the acceptance certificate.
Payment for the work performed by the contractor is made by the customer in the amount provided for by the estimate, on time and in the manner established by law or the building contract. In the absence of relevant instructions in the law or contract, payment for work is made after the final delivery of the result of work (clause 1 of article 711 of the Civil Code). At the same time, the significant cost and duration of capital construction require advance payments for the contractor's activities. However, he has the right to demand the payment of an advance or a deposit only in the cases and in the amount specified in the law or the contract (clause 2 of article 711 of the Civil Code).
The responsibility of the contractor for the quality of work has its own specifics. According to Art. 754 of the Civil Code, the contractor is liable to the customer for deviations from the requirements provided for in the technical documentation and in the building codes and regulations binding on the parties, as well as for the failure to achieve the indicators of the construction object specified in the technical documentation, including such as the production capacity of the enterprise.
Unless otherwise provided by the construction contract, the contractor guarantees the achievement by the construction object of the indicators specified in the technical documentation and the possibility of operating the object in accordance with the contract during the warranty period. The warranty period established by law may be extended by agreement of the parties (Article 755 of the Civil Code).
Upon presentation of requirements related to inadequate quality of work, the rules of paragraphs 1-5 of Art. 724 GK. At the same time, the deadline for detecting deficiencies in accordance with paragraph 2.4 of this article is five years (Article 756 of the Civil Code).
If the construction contract provides for the recovery of a penalty (fine, penalty) for its non-performance or improper performance, the losses shall be recovered net of its deduction (set-off penalty). However, the contract may provide otherwise: the recovery of only the penalty, the recovery of losses in the full amount in excess of the penalty, the recovery of either the penalty or damages.
In accordance with paragraph 1 of Art. 740 of the Civil Code, under a construction contract, the contractor undertakes to build a certain facility on the instructions of the customer or perform other construction work within the period established by the contract, and the customer undertakes to create the necessary conditions for the contractor to perform the work, accept their result and pay the stipulated price.
The regulation of this type of contracting relationship is carried out by the norms of § 3, chapter 37 of the Civil Code "Construction contract". The norms regulating relations on a construction contract are also contained in many other regulatory legal acts, in particular: the Town Planning Code, the Federal Law “On Investment Activity”; "On architectural activity"; "About competitions", etc.
In cases where, under a building contract, work is performed to meet the household or other needs of a citizen, the rules of § 2 Ch. 37 GK "Household contract".
Parties building contracts are the customer and the contractor.
As customers may speak investors, as well as individuals and legal entities authorized by investors,
Contractors there may be construction, construction and installation, design and construction and other organizations operating in the field of construction production, as well as individual entrepreneurs. In order to perform the respective types of work, they must have license.
In the implementation of capital construction is widely used general contracting system, in which the customer enters into an agreement with one construction organization - general contractor, attracting specialized organizations to perform certain work packages as subcontractors.
With the consent of the contractor, the customer may conclude contracts for the performance of certain works with other contractors. Such contracts concluded by the customer are called direct contracts.
There are the following types of contractconstruction contract:
Contracts for the performance of construction and installation and other works on the facility generally;
Performance contracts individual complexes installation and other special construction works;
Performance contracts commissioning works.
Contract formwritten.
Essential conditions are the terms of subject, price and term of the contract.
Subject a construction contract (subcontract) is the end result of the contractor's (subcontractor's) activity. Under a construction contract, this is a corresponding construction object (enterprise, building, structure) handed over by the contractor to the customer, and under a subcontract - a complete set of certain works (installation, sanitary, etc.), which are part of the work on the construction object as a whole and delivered by the subcontractor to the general contractor.
Term The construction contract is determined by agreement of the parties by specifying in the contract the initial and final dates for the performance of work. By agreement of the parties, the contract may also establish deadlines for completion individual stages of work.
To conclude a construction contract, you must first obtain certain documents. For the customer such a document is building permit, issued by a federal executive body, an executive body of a constituent entity of the Russian Federation or a local government body in accordance with their competence (Article 51 of the Town Planning Code). For contractor – license (permission) for construction activities.
Main contractor's duty under a construction contract carry out the construction(expansion, reconstruction, technical re-equipment) of the enterprise, building, structure provided for by the agreement.
important condition execution of the contract is that construction and installation work and other work on the facility must be performed in accordance with the technical documentation and design and estimate documentation (which determines the price of work).
During construction, the contractor must observe SNiPs, as well as the requirements of the law on environmental protection and on the safety of construction work.
The contractor is responsible provide construction necessary materials, parts, structures, equipment, unless the contract provides that the construction is ensured by the customer (Article 745 of the Civil Code).
It is also the contractor's responsibility to erection of a building, a structure or another construction object or the performance of other construction works and delivering results to the client executed works on time, established by the agreement.
The law provides for some specific duties.
So, the customer is obliged in a timely manner provide for construction land plot.
The customer is obliged, in the cases and in the manner provided for in the construction contract, hand over to the contractor necessary for the implementation of work buildings and structures, ensure the transportation of goods to his address, temporary connection of power supply networks, water and steam pipelines, and provide other services.
The customer is also required submit the documents to the contractor, confirming the permission of the relevant authorities to carry out work in places where underground utilities pass, in the area of overhead power lines and communication lines.
In accordance with Art. 748 GK the customer has the right to exercise control and supervision over the progress and quality of the work performed, compliance with the deadlines for their implementation (schedule), the quality of the materials provided by the contractor, as well as the correct use of the customer's materials by the contractor, without interfering with the operational and economic activities of the contractor.
The customer, who has discovered deviations from the terms of the contract, which may worsen the quality of work, is obliged immediately notify the contractor. The customer who has not made such a declaration loses the right to refer to the shortcomings discovered by him in the future.
A characteristic feature of the construction contract is the cooperation of the parties(Article 750 of the Civil Code).
Particularly regulated delivery and acceptance of works. In the cases provided for by law, representatives of state bodies and local governments must participate in the acceptance.
Delivery of the result of work by the contractor and its acceptance by the customer are drawn up by an act, signed by both parties.
If one of the parties refuses to sign the act, a note is made in it and the act is signed by the other party. A unilateral act of delivery or acceptance of the result of work may be declared invalid by the court only if the motives for refusing to sign the act are recognized by him as justified.
Acceptance of completed construction objects is carried out by the customer or another person authorized by the investor. The customer may involve the user of the facility (operating organization), developers of technical documentation, specialized organizations and other legal entities and individuals in the acceptance, creating, if necessary, admission committee.
In cases where this is provided for by law or a building contract, or follows from the nature of the work, the acceptance of the result of the work must be preceded by preliminary tests. Acceptance is carried out only with a positive result of such tests (clause 5 of article 753 of the Civil Code).
The contractor is obliged timely eliminate deficiencies and defects identified in the process of acceptance of construction and installation works. The deadline for eliminating these shortcomings is specifically stipulated in the acceptance certificate.
Payment in work performed by the contractor is carried out by the customer in the amount budgeted, within the time limits and in the manner established by law or the construction contract.
Has its own specifics contractor's responsibility for the quality of work. According to Art. 754 of the Civil Code, the contractor is responsible to the customer for allowed deviations from the requirements stipulated in the technical documentation, as well as failure to achieve indicators of the construction object specified in the technical documentation, including such as production capacity of the enterprise.
Unless otherwise provided by the construction contract, the contractor guarantees the achievement by the construction object of the indicators specified in the technical documentation and the possibility of operating the object in accordance with the contract for warranty period. The warranty period established by law may be extended by agreement of the parties (Article 755 of the Civil Code).
When making claims related to poor quality of work, the rules of clause 1–5 of article 724 of the Civil Code are applied. Wherein deadline detection of deficiencies in accordance with paragraphs 2, 4 of this article is five years(Article 756 of the Civil Code).
If the construction contract provides for the collection of a penalty (fine, penalty) for its non-performance or improper performance, the losses shall be recovered minus it (setting penalty). However, the contract may provide otherwise: the recovery of only the penalty, the recovery of losses in the full amount in excess of the penalty, the recovery of either the penalty or damages.
ALEXANDER CHERTOVSKOY, member of NP "Legal Bureau" FELIX ", lawyer
Contractual relations in construction may include not only organizational, survey, design, construction and installation, commissioning works, but also work on the creation, modification or demolition of an object, as well as interaction with the competent authorities regarding the production of such work.
Construction refers to the erection of buildings and structures, as well as their major and current repairs, reconstruction, restoration and renovation.
The final result of the construction is the erected building (structure) with interior decoration, existing engineering and technological systems and a full set of documentation required by law.
Principles of contractual relations in construction and sources legal regulation
Contractual relations in the field of construction are based on the recognition of the principles: equality of participants, inviolability of property, freedom of contract, inadmissibility of arbitrary interference in private affairs, the need for the unhindered exercise of civil rights, ensuring the restoration of violated rights, their judicial protection, i.e. on the provisions Art. 1 of the Civil Code of the Russian Federation.
The source of law is understood as a form of expression of legal norms that are generally binding. The establishment or recognition by the state of one or another source (form) of law has an important legal, including law enforcement, significance. Only the norms expressed in the source of law can be applied to regulate the relevant relations. A formally unrecognized source of law, as well as the rules of conduct contained in it, has no legal (obligatory) value.
At present, the following sources are distinguished in the Russian Federation civil law:
Norms international law and international treaties of the Russian Federation (Article 7 of the Civil Code of the Russian Federation);
the Constitution of the Russian Federation;
Civil legislation - the Civil Code of the Russian Federation and other federal laws adopted in accordance with it, regulating civil law relations (clause 2 of article ZGKRF);
Other legal acts containing norms of civil law - decrees of the President of the Russian Federation (clause 3 of article 3 of the Civil Code of the Russian Federation) and Decrees of the Government of the Russian Federation (clause 4 of article 3 of the Civil Code of the Russian Federation). An important place among them is occupied by Decree of the Government of the Russian Federation dated June 21, 2010 No. 468 “On the procedure for conducting building control in the course of construction, reconstruction and overhaul of capital construction objects” (together with the “Regulations on construction control in the course of construction, reconstruction and overhaul of capital construction objects”);
Regulations of ministries and other federal bodies executive power (clause 7, article 3 of the Civil Code of the Russian Federation). An example of such acts, in particular, can serve as " Guidelines for insurance civil liability members of self-regulatory organizations based on membership of persons engaged in construction” (approved at a meeting of the Ministry of Regional Development of the Russian Federation, protocol dated February 27, 2010), Rosstat Order No. 335 dated July 29, 2011 “On approval of statistical tools for organizing federal statistical monitoring of construction” (together with “Instructions for filling out the form of federal statistical observation No. UVR-S “Information on the consolidated types of work performed on their own by the type of activity“ Construction ”);
Business practices (Article 5 of the Civil Code of the Russian Federation).
The rules governing relations arising from a work contract are currently contained in the Civil Code of the Russian Federation, however, the regulation of certain types of work contract is carried out through other regulatory legal acts. For example, the rules governing construction contract relations are contained in Urban Planning Code Russian Federation, Land Code, etc.
Among the uncodified federal laws, an important place is also occupied by:
Federal Law of the Russian Federation "On investment activities carried out in the form of capital investments" dated February 25, 1999 No. 39-FZ (with amendments and additions);
Federal Law of the Russian Federation "On Participation in shared construction apartment buildings and other real estate objects and on amendments to certain legislative acts of the Russian Federation” dated December 30, 2004 No. 214-FZ (with amendments and additions);
Federal Law "On placing orders for the supply of goods, performance of work, provision of services for public needs";
Federal Law "On Protection of Consumer Rights" and many others.
These normative acts regulate relations between business entities, although they do not coincide with contractors, but are closely related to them. important place in regulatory framework occupy federal legal acts that are issued to regulate certain specific types of work or related obligations.
There are the following types of work contracts: household contract; building contract; contract for the implementation of design and survey work; contract work for state and municipal needs. There is a peculiarity of legal regulation of certain types of contract. So, for the regulation of a construction contract, a feature is the simultaneous mandatory presence of two types of regulations: regulatory legal and regulatory and technical. Among such normative and technical acts, one can single out Building Norms and Rules (SNiPs) and State Standards (GOSTs). The content of these documents determines the organizational, methodological, technical and other requirements for construction work. For example, in order to consolidate the rules for the safety of production, construction work, SNiP Sh-4-80 "Safety in construction" was developed.
Among the sources of legal regulation of the contract for the implementation of design and survey work, in addition to the norms of the Civil Code of the Russian Federation, it is worth noting, first of all, Decree of the Government of the Russian Federation dated 19.01.06 No. 20 “On engineering surveys for the preparation project documentation, construction, reconstruction, capital construction projects”, which approves the List engineering surveys and the Regulation governing the procedure for their implementation.
The regulation of a contract for state or municipal needs is characterized by a wide range of legal acts. In addition to the norms of civil law, they are subject to the norms of budget legislation, which establish the features of payment, work, terms, the procedure for changing the terms of the contract, etc. Also regulates these relations Federal Law of July 21, 2005 No. 94-ФЗ “On placing orders for the supply of goods , performance of work, provision of services for state and municipal needs.
When drawing up a work contract, it may be appropriate, and sometimes necessary, to refer to international practice. This refers, for example, to the “International Terms of the Construction Contract”, however, it should be noted that the developed contract terms cannot be fully applicable in the Russian Federation, since some of their provisions may contradict the norms of the Civil Code of the Russian Federation.
Thus, after analyzing the sources of legal regulation of the work contract, we can conclude that the main source of legal regulation of relations under the work contract is the Civil Code of the Russian Federation, however, certain types of work contract are regulated, in addition to the Civil Code of the Russian Federation, by other regulatory legal acts: federal laws, decrees President, government decrees, regulations ministries and departments, etc.
Elements and content of construction contracts
By its nature, the contract is paid, consensual and bilaterally binding. Its main area of application is entrepreneurial activity.
Partiescontracts are the customer and the contractor. Under a construction contract, the contractor undertakes to build a certain object on the instructions of the customer or perform other construction work within the period established by the contract, and the customer undertakes to create the necessary conditions for the contractor to perform the work, accept their result and pay the stipulated price (clause 1, article 740 of the Civil Code of the Russian Federation) .
If the obligation of the contractor to perform the work provided for in the contract does not follow from the law or the work contract, the contractor has the right to involve other persons in the performance of his obligations. In this case, he plays the role general contractor, and the persons involved in the performance of work act as subcontractors (clause 1 of article 706 of the Civil Code of the Russian Federation). The relationship between the general contractor and the subcontractor is formalized by a subcontract agreement.
Contractual relations in the field of construction contracting are very closely related to the preparation of certain documents. The contractor carries out construction and related work in accordance with the technical documentation - a set of documents used in the design (construction), creation (manufacturing) and use (operation) of any technical objects: buildings, structures, industrial products, software and hardware , as well as with an estimate that determines the price of work - a document that is a calculation (plan) of future income and expenses for the implementation of any activity. Unless otherwise specified in the contract, it is assumed that the contractor is obliged to perform all the work specified in the technical documentation and estimate.
The subject of the contract construction contract is the action of the contractor for the implementation of construction and related work in accordance with the technical documentation that determines the scope, content of work and other requirements. The subject of the contract, as a rule, is determined by the parties in the technical documentation.
objectof the contract are specific buildings and structures that must be created in the process of fulfilling the contractor's obligations under the construction contract.
An important point in the contract is the terms of contract terms, It must be emphasized that according to Art. 740 of the Civil Code of the Russian Federation, under a construction contract, the contractor undertakes to build a certain object or perform other construction work on the instructions of the customer within the prescribed period. The condition on the deadline for completion of work is an essential condition of the contract.
The construction contract must provide for the start and end of work, the duration of the construction contract.
It is important to note that, unless otherwise provided by the contract, the contractor is responsible risk of accidental death or accidental damage to the construction object that is the subject of the construction contract, before the acceptance of this object by the customer. If the construction object, prior to its acceptance by the customer, is lost or damaged due to the poor quality of the material (parts, structures) or equipment provided by the customer or the execution of erroneous instructions from the customer, the contractor has the right to demand payment of the entire estimated cost of the work, provided that he has fulfilled the stipulated clauses. 1 st. 716 of the Civil Code of the Russian Federation obligations, namely - if the contractor has discovered: unsuitability or poor quality of materials, equipment, technical documentation provided by the customer; possible adverse consequences for the customer of the fulfillment of his instructions on the method of performing the work; other circumstances beyond the control of the contractor that threaten the suitability or strength of the results of the work performed or make it impossible to complete it on time, and immediately warned the customer about this and suspended work until he received instructions from him. The construction contract may provide for the obligation of the party, which bears the risk of accidental loss or accidental damage to the construction object, material, equipment and other property used in construction, to insure the corresponding risks, or liability for causing damage to other persons during construction.
Changeresults of work by the contractor and acceptance by its customer are drawn up by an act signed by both parties. If one of the parties refuses to sign the act, then a note about this is made in the act, and it is signed by the other party. A unilateral act of delivery or acceptance of the result of work may be declared invalid by the court only if the motives for refusing to sign the act are recognized by him as justified.
According to paragraph 1 of Art. 743 of the Civil Code of the Russian Federation, the contractor is obliged to carry out construction and related work in accordance with the technical documentation that determines the scope, content of work and other requirements for them, and with an estimate that determines the price of the work. Unless otherwise specified in the construction contract, it is assumed that the contractor is obliged to perform all the work specified in the technical documentation and in the estimate. The price of the contract consists of compensation for the costs incurred by the contractor in the performance of work, and the remuneration due to him (clause 2 of article 709 of the Civil Code of the Russian Federation). As a rule, it is expressed in a monetary amount, but it can also consist in other consideration, for example, in the transfer of property or the provision of a service.
Paymentof work performed by the contractor is carried out by the customer in the amount provided for by the estimate, on time and in the manner established by law or a building contract.
Responsibility of the parties under the construction contract
For improper performance of the obligations assumed under the contract, the parties are liable in accordance with the terms of the contract and the norms of the current legislation. In addition to the Civil Code of the Russian Federation, liability for violations that occurred during the execution of a construction contract is provided for by the Code of Administrative Offenses, the Law of the Russian Federation of December 17, 1992 “On the Administrative Responsibility of Enterprises, Institutions, Organizations and Associations for Offenses in the Field of Construction”, Resolution of the Council of Ministers - Government of the Russian Federation of July 27. 93 No. 729 "On approval of the Regulations on the procedure for imposing fines for violations in the field of construction", as well as the norms of land and environmental legislation.
The main participants in the construction contract
Customer- a person authorized by the investor who implements investment projects. Investors themselves can be customers. The customer here can be both an individual and entity, as well as the relevant public legal entity represented by its authorized body.
According to the law, the customer, who is not an investor, is endowed with the rights of possession, use and disposal capital investments for the period and within the limits of authority established by the agreement and (or) the state contract.
Contractor- a person who performs work under a contractor agreement (direct contractor), or an intermediary who concludes a subcontract agreement with subcontractors (Federal Law No. 39-F3 of February 25, 1999 "On investment activities in the Russian Federation carried out in the form of capital investments" ).
The main part of the rights and obligations of the customer and the contractor is determined in the contract: when and by whom the technical documentation should be provided, the composition and content of the technical documentation, who is responsible for providing the construction with materials, parts and structures. The obligation to provide construction with materials, including parts and structures, or equipment shall be borne by the contractor, unless the construction contract provides that the provision of construction in whole or in a certain part is carried out by the customer.
Rights and obligations of the customer and contractor
The customer has the right:
Transfer to the contractor a task that meets the requirements of the law, the terms of the concluded contract and the wishes of the customer himself;
Make changes to the technical documentation, provided that the cost of additional work does not exceed 10% of the total construction cost indicated in the estimate and the nature of the work under the contract remains unchanged. On making changes in the amount of more than 10% of the cost of construction according to the estimate, the parties must draw up an additional estimate;
Control the progress and quality of work performed, compliance with deadlines, the quality of materials provided by the contractor, as well as the correct use of the customer's materials by the contractor, without interfering in the contractor's operational and economic activities;
Without the consent of the contractor, involve an engineer (engineering organization) to control and supervise the construction and make decisions on behalf of the customer in relations with the contractor. The functions of such an engineer, related to the consequences of his actions for the contractor, should be defined in the building contract.
The customer is obliged:
Timely create the conditions necessary for the contractor to perform the work, as well as provide the land plot for construction in a timely manner, the area and condition of which must comply with the terms of the contract, ensure the timely start of work, their normal conduct and completion on time (clause 1, article 747 of the Civil Code of the Russian Federation). The use of the provided land plot must be targeted and carried out in accordance with the requirements of the current legislation;
Transfer to the contractor for use the buildings and structures necessary for the performance of work under the contract, ensure the transportation of goods, temporary supply of power supply networks, water and steam pipelines and provide other services in cases and in the manner prescribed by the agreement of the parties (clause 2, Zet. 747 of the Civil Code of the Russian Federation) ;
Accept the result of the work and pay the price provided for by the estimate within the time and manner specified in the contract and the law, or, in the absence of relevant instructions, in accordance with Art. 711 of the Civil Code of the Russian Federation. The obligation of the customer to pay for the work of the contractor remains even in the event of conservation of construction (Article 752 of the Civil Code of the Russian Federation). In this case, the customer pays for the work completed up to the moment of conservation in full, and also reimburses the costs caused by the need to stop work, taking into account the benefits that the contractor received or could receive as a result of the stoppage of work. If the customer has not fulfilled the obligation established by the contract to transfer the goods to the contractor as payment for the work, the customer shall pay for the result of the work;
Notify the contractor about the deviations from the terms of the contract and other shortcomings that he has discovered that may worsen the quality of work (“Information duty of the customer”), otherwise he loses the right to refer to the shortcomings discovered by him in the future. The customer can eliminate the marriage in the contract work on his own or entrust it to third parties, if such a condition is expressly provided for in the building contract.
Rights and obligations of the contractor:
Construct a certain facility or perform other construction work that meets the requirements of the customer and the conditions established by law in accordance with the technical documentation that determines the scope, content of work and other requirements, and with an estimate that determines the price of work;
Fulfill the requirements of the customer received in the course of the work, if such instructions do not contradict the terms of the contract and do not interfere with the contractor's operational and economic activities;
In the cases stipulated by the contract, ensure the operation of the object after its acceptance by the customer within the period specified in the contract;
Comply with the requirements of the law and other regulatory legal acts on environmental protection and safety of construction work. The contractor is not entitled to use materials and equipment or follow the instructions of the customer, if this may lead to a violation of the requirements binding on the parties for environmental protection and safety of construction work;
Require according to Art. 450 of the Civil Code of the Russian Federation to revise the estimate, if, for reasons beyond his control, the cost of the work exceeded the estimate by at least 10%. The contractor, who has not informed the customer about the need to perform additional work not included in the technical documentation, is not entitled to demand payment for these works, even if these works were included in the acceptance certificate signed by the customer's representative;
Bear the risk of accidental loss or accidental damage to the construction object until it is accepted by the customer. The signing of interim work acceptance certificates does not mean the transfer to the customer of the risk of the destruction of the facility. In cases where the construction object, prior to its acceptance by the customer, died or was damaged due to the fault of the customer (substandard material, equipment was provided, erroneous instructions were given), the contractor has the right to demand payment for the entire estimated cost of work, subject to paragraph 1 of Art. 716 of the Civil Code of the Russian Federation. The contract may provide for the obligation of the contractor to eliminate, at the request of the customer and at his expense, defects for which the contractor is not responsible (clause 1, article 757 of the Civil Code of the Russian Federation);
Waive the obligation imposed on him by the contract to eliminate, at the request of the customer, defects for which the contractor is not responsible, if this is not directly related to the subject of the contract or cannot be carried out by the contractor for reasons beyond his control. The contractor also has the right to refuse to perform additional work if they are not within the scope of his professional activities or cannot be performed by him for reasons beyond his control (clause 5 of article 743, clause 2 of article 757 of the Civil Code of the Russian Federation).
Cancel the contract and demand payment of the contract price in proportion to the part of the work performed, if it is found impossible to use the materials or equipment provided by the customer without deteriorating the quality of the work performed and the customer refusing to replace them.
The contractor's information obligation is the obligation to immediately notify the customer upon discovery of poor quality or unsuitability of materials or technical documentation provided by the customer; possible adverse consequences of fulfilling the customer's instructions on the method of performing work; other circumstances beyond the control of the contractor that impede the proper fulfillment of the terms of the contract (Article 716 of the Civil Code of the Russian Federation). The contractor is also obliged to inform the customer about the discovery during construction that are not taken into account in the technical documentation necessary work and an increase in connection with this estimated cost construction.
If a response is not received from the customer within 10 days (unless a different period is established by law or contract), the contractor is obliged to suspend the relevant work with the attribution of losses from downtime to the customer's account. In the event that defects in the technical documentation are identified and eliminated, the contractor has the right to demand compensation for reasonable expenses incurred in connection with this (clause 3 of article 743 of the Civil Code of the Russian Federation, clause 4 of article 744 of the Civil Code of the Russian Federation).
Subcontractor
Very often in practice there are cases when other persons (subcontractors) are involved on the part of the contractor to fulfill their obligations, provided that the obligation of the contractor to perform the work provided for in the contract does not follow from the law or the work contract. In this case, the contractor acts as a general contractor. The contractor who engaged a subcontractor in the performance of a work contract in violation of the provisions of the current legislation or the contract shall be liable to the customer for losses caused by the participation of the subcontractor in the performance of the contract (clause 2 of article 706 of the Civil Code of the Russian Federation). The general contractor is liable to the customer for the consequences of non-fulfillment or improper fulfillment of obligations by the subcontractor in accordance with the rules of paragraph 1 of Art. 313 and Art. 403 of the Civil Code of the Russian Federation, and before the subcontractor - liability for non-fulfillment or improper fulfillment by the customer of obligations under the work contract.
Unless otherwise provided by law or the contract, the customer and the subcontractor are not entitled to present claims to each other related to the violation of the contracts concluded by each of them with the general contractor.
With the consent of the general contractor, the customer has the right to conclude contracts for the performance of certain works with other persons. In this case, these persons are responsible for non-performance or improper performance of work directly to the customer.
Approximate structure of a construction contract
When concluding a construction contract, all essential conditions must be met, otherwise, in the absence of at least one of these conditions, the contract may be recognized as not concluded (Article 432 of the Civil Code of the Russian Federation).
The essential terms in a construction contract are:
Subject of the contract;
Obligations of the customer to create the conditions necessary for the performance of work by the contractor;
Deadline for the completion of work (start and end of work);
The price stipulated by the contract.
The form of the construction contract is only written.
The contract must specify:
Parties (legal form) and persons acting on behalf of the customer and contractor, as well as their powers;
Subject of the contract: construction on the instructions of the customer of a certain object or performance of other construction works;
Cost of works (contract price). The price of work includes remuneration, the cost of the material provided by the contractor; compensation for wear and tear of equipment, tools, instruments, etc.;
Dates of commencement and completion of work: imperative norm of the contract. In the absence of deadlines, the work contract may be recognized as not concluded;
The procedure and terms of settlements (payment) under a construction contract. According to Art. 746 of the Civil Code of the Russian Federation, the parties independently determine the procedure for settlements. The payment procedure may be provided in the form of an advance payment, or upon completion of work, or by paying intermediate payments. Both cash and non-cash payment are possible;
The obligations of the parties. It is necessary to indicate who, what, in what time frame should be completed, which documents should be provided, etc.;
Acceptance of works. Delivery and acceptance of works is regulated by Art. 753 of the Civil Code of the Russian Federation and the agreement. Upon receipt from the contractor of a notice of readiness for the delivery of the result of the work performed, the customer is obliged to immediately begin to accept it. Unless otherwise stipulated by the contract, the acceptance of work is carried out at the expense of the customer. Acceptance of the completed object is formalized by a special act, which is signed by both parties;
The quality of work. In accordance with Art. 721 of the Civil Code of the Russian Federation, the quality of the work performed must comply with the terms of the contract, in the absence or incompleteness of the terms of the contract - with the requirements usually imposed on work of this kind. The construction contract must contain an accurate description of the final result, the timing of the detection of inadequate quality of work. The customer has the right to make claims to the contractor about the inadequate quality of work during the warranty period;
Responsibility for violation of obligations. For non-fulfillment or improper fulfillment of obligations under a construction contract, property liability of the parties is established in accordance with applicable law and the contract. In particular, Art. 393 of the Civil Code of the Russian Federation - compensation for losses, which are determined in accordance with Art. 15 of the Civil Code of the Russian Federation (real damage or lost profit);
Suspension of work and termination of the construction contract. The parties must provide for the grounds and procedure for suspension of work and termination of the work contract;
Dispute resolution procedure. The parties can apply the pre-trial (claim) procedure for resolving the dispute, or apply directly to the court for protection of the violated right;
Addresses and Bank details sides. At the stage of concluding an agreement, it is important to verify the accuracy of the information provided by the counterparty under the agreement about the address and bank details.
for construction work in a person acting on the basis of , hereinafter referred to as " Customer”, on the one hand, and in the person acting on the basis of , hereinafter referred to as “ Contractor”, on the other hand, hereinafter referred to as the “Parties”, have concluded this agreement, hereinafter “ Treaty" about the following:1.1. The terms used in this Agreement mean the following:
1.1.1. Parties- Customer and Contractor.
1.1.2. An object- Customer's premises.
1.1.3. Contract Agreement, hereinafter referred to as the "Agreement"- this document, including all the guarantees contained therein, annexes signed by the Customer and the Contractor, additions and changes to it, which may be signed by the Parties, incl. during the period of work.
1.1.4. Construction site- the territory or premises necessary for the performance of construction work under this Agreement, located at: .
1.1.5. Works- complex repair work to be performed by the Contractor in accordance with the terms of the Contract and handed over under the Certificate of Acceptance of Works Performed under the Contract.
1.1.6. OK– confirmation in writing made by the Employer (or Contractor).
1.1.7. Certificate of acceptance of work performed under the Contract– a document confirming the performance (delivery-acceptance) by the Contractor of the Works and acceptance of the Facility (or part thereof) by the Customer.
2.1. The Customer instructs, and the Contractor assumes the obligation to perform construction work at the Customer's site in accordance with the developed design, technical and cost estimate documentation approved by the Customer.
2.2. Specific types and volumes of work performed are determined by the Annexes (Estimates) to this Agreement.
2.3. The work must be carried out in accordance with building codes and regulations, compliance with the Safety Rules for construction and installation works and the requirements of the Lessor.
3.1. The total cost of work on the object is indicated in the Annexes (Estimates), which is an integral part of this Agreement.
3.2. The total cost of work may be changed by agreement of the Parties in the following cases:
3.3. If such changes affect the cost or completion time of the work, then the Contractor proceeds to their implementation only after the Parties sign the relevant Addendum to this Agreement, which becomes an integral part of this Agreement from the moment of signing.
4.1. The contractor undertakes:
4.1.1. Perform the Works with delivery to the Customer within the time limits stipulated by this Agreement.
4.1.2. Be responsible for safe conditions labor, implementation of fire prevention measures at the facility and methods of work at the facility. For damage caused to third parties in the course of work, the Contractor shall be liable if the damage was caused through his fault.
4.1.3. Treat the information provided to him by the Customer as confidential.
4.1.4. Fulfill the Customer's instructions received in the course of work, if they do not contradict the terms of the Agreement.
4.1.5. Within days from the date of signing this Agreement, appoint an authorized representative of the Contractor and inform the Customer in writing about this, indicating the full scope of the powers granted to him.
4.1.6. At its own expense, with its own forces and means, to carry out acceptance, unloading, storage of construction machinery, equipment for the performance of works by the Contractor.
4.1.7. Clean up daily during work and at the end of work construction site from construction debris.
4.1.8. Before handing over the facility for installation of equipment, remove materials, tools and equipment belonging to the Contractor, remove construction debris.
4.2. The Contractor has the right, upon agreement with the Customer, to involve third parties to perform work under the Contract. At the same time, the Contractor bears all responsibility to the Customer for the fulfillment by third parties of the terms of the Agreement.
4.3. The Contractor is obliged to immediately notify the Customer and, until receiving instructions from him, suspend work if it detects: unsuitability or poor quality of materials, equipment or technical documentation provided by the Customer; other circumstances beyond the control of the Contractor that threaten the suitability, strength, reliability or quality of the results of the work performed, or make it impossible to complete it on time.
4.4. The contractor is obliged to conclude a contract for insurance of his professional liability for the period of construction work.
5.1. The customer undertakes:
5.1.1. Transfer to the Contractor the premises suitable for construction work, according to the Act.
5.1.2. The Customer is obliged, in cases, to the extent and in the manner provided for by this Agreement, to assist the Contractor in the performance of work.
5.1.3. Make payments and acceptance of the work performed in the manner and within the time limits stipulated by this Agreement.
5.2. The Customer has the right to check the progress and quality of the work performed by the Contractor at any time, without interfering with operational activities. If significant deficiencies are found, the Customer has the right to stop work until they are eliminated. This fact is recorded in the work log.
5.3. The Customer has the right, in agreement with the Contractor, to purchase the necessary equipment and materials on account of the cost of work. At the same time, the price of work payable to the Contractor shall be reduced by the cost of the purchased equipment and materials provided for in the Estimate.
5.4. During the validity period of this Agreement, the Customer has the right to involve other persons, except for the Contractor, to perform the work provided for in this Agreement, if the Contractor performs work with inadequate quality or delays, with the assignment of all costs associated with the involvement of third parties, on the Contractor.
5.5. In the case specified in clause 5.4 of this Agreement, the Customer, within working days from the date of conclusion of the Agreement with another contractor, sends the Contractor a written request and an invoice for payment of all costs associated with the involvement of third parties. The invoice must be paid by the Contractor within a day from the date of its receipt.
6.1. The Contractor starts to perform the work within working days after the Customer transfers the advance payment to his current account.
6.2. The deadline for the completion and completion of work on the Annexes (Estimates) is determined by the Calendar Schedule.
6.3. In the event of a stoppage of work or downtime through no fault of the Contractor, a bilateral Act is drawn up and the timing of the work is adjusted by the Parties in proportion to the downtime.
7.1. Payments for Applications (Estimates) are made in the following order:
7.1.1. The Customer pays the Contractor an advance payment for the purchase and delivery of materials in the amount of % of the total cost of work according to the Annexes (Estimates) no later than banking days from the moment of receipt of the invoice issued by the Contractor.
7.1.2. The following stages of payment (in case of work performed for more than one month): are made in accordance with the acts of work performed according to the Applications (Estimates) with the offset of the paid % of the advance.
7.1.3. The final payment remaining from the cost of work under the Annexes (Estimates) is paid by the Customer within banking days from the date of signing by the Parties of the Certificate of acceptance of the premises for operation.
7.2. The Customer's payment obligations are considered fulfilled from the date of debiting Money from the customer's account.
7.3. In case of early performance of works by the Contractor, the Customer may accept and pay for the work ahead of schedule.
8.1. Before starting work, the Contractor accepts from the Customer the premises according to the Certificate indicating (if any) the work performed or the installed engineering equipment by another contractor.
8.2. The Contractor, together with the Customer, arranges the admission of its working personnel to the facility in accordance with the requirements of the Lessor and its technical services.
8.3. The Customer appoints his representative at the facility, who, on behalf of the Customer, together with the Contractor, draws up Acts for the completed hidden work and resolves issues that arise during the performance of work. The representative authorized by the Customer has the right of unrestricted access to all types of work during the entire period of their implementation and at any time during their production.
8.4. The Contractor independently organizes the production of work at the facility in accordance with the deadlines determined by the Schedule to the Annexes (Estimates).
8.5. From the moment of commencement of work until its completion, the Contractor shall keep a log of work performance, in which facts and circumstances related to the performance of work and relevant to the relationship between the Parties are recorded (date of commencement and completion of work, reports on inspection and acceptance of work (including . and hidden) and coordination of design and technical solutions with the Customer). If the Customer is not satisfied with the progress and quality of work or the records of the Contractor, then he sets out his opinion in the work log. The Contractor undertakes to take measures within three days to eliminate the shortcomings indicated by the Customer in the work log.
8.6. During the production and closing of hidden work, the Contractor is obliged to notify the Customer and invite his representative for inspection and acceptance. The customer inspects and accepts the work performed with fixation in the work log.
8.7. Delivery of the completed works according to the Applications (Estimates) is carried out in the following order:
8.7.1. The Customer accepts the work within working days from the date of receipt from the Contractor of a written notification of the completion of work under the Annexes (Estimates) and the readiness of the premises for the installation of process equipment.
8.7.2. Together with the notice of the readiness of the premises for the installation of technological equipment, the Contractor shall transfer to the Customer a set of as-built design and technical documentation.
8.7.3. Within the specified period, the Customer shall accept the premises and, in the presence of identified shortcomings and defects, fix them in the Act. A copy of the Act is sent to the Contractor to take measures to eliminate the identified shortcomings and defects.
8.7.4. After the installation of the technological equipment, the Customer accepts the premises for operation with the drawing up of the Act or sends the Contractor a reasoned refusal indicating the reasons preventing the acceptance of the premises for operation.
8.7.5. If there is a need for additional work and, in connection with this, a significant increase in the price at a certain stage of the execution of work according to the Annexes (Estimates), the Contractor is obliged to notify the Customer in a timely manner.
8.7.6. Additional work is carried out after the Parties sign the Supplementary Agreement and agree on the cost of work.
9.1. The Parties are released from liability for partial or complete failure to fulfill obligations under this Agreement, if it was the result of natural phenomena, military operations, prohibitive acts of state authorities of the Russian Federation, if these circumstances arose after the signing of the Agreement and directly affected the execution of this Agreement. The deadline for the fulfillment of obligations under the Annexes (Estimates) is postponed in proportion to the time during which force majeure circumstances were in force, as well as the consequences caused by these circumstances.
9.2. The Party, for which it became impossible to fulfill obligations under this Agreement due to force majeure circumstances, is obliged immediately from the moment of their occurrence to notify the other Party in writing of the occurrence and termination of these circumstances. Untimely notification of force majeure circumstances deprives the respective Party of the right to refer to them in the future.
9.3. If force majeure circumstances or their consequences last for more than a month, the Parties will discuss within working days what measures should be taken to continue work under the Agreement. If the Parties fail to agree within months, then each of the Parties has the right to demand termination of the Agreement.
10.1. This Agreement may be terminated by agreement of the Parties.
10.2. The Customer has the right to demand termination of the Agreement in the following cases:
10.3. The Contractor has the right to demand termination of the Contract in the following cases:
10.4. Upon termination of the Contract at a facility with work in progress, the Parties draw up Certificates of acceptance of work performed in the form of KS-2 and KS-3, on the basis of which the Customer pays the Contractor the cost of actually performed work according to the Appendix (Estimate) at the time of termination of the Contract.
10.5. The Party that decides to terminate the Agreement in accordance with the provisions of this Section shall send a written notice to the other Party no later than calendar days before the proposed date of termination of this Agreement.
11.1. In the event of an unreasonable delay established by the Contract and the Schedule to the Annexes (Estimates) of the terms for transferring payment for the work performed, the Customer shall pay the Contractor a penalty in the amount of % of the amount payable for each day of delay, but not more than % of the cost of work under the Annex (Estimate).
11.2. In cases of failure to meet the deadlines established by the Calendar Plan for the completion of work due to the fault of the Contractor, they are paid a penalty in the amount of % of the cost of work, for each day of delay, but not more than % of the cost of work under the Appendix (Estimate).
11.3. Payment of penalties for delay or other improper performance of obligations under the Agreement, as well as compensation for losses caused by improper performance of obligations, does not relieve the Parties from the performance of their obligations.
11.4. Payment of penalties is made within banking days from the date of receipt of a written notification from the other Party on the collection of penalties to the settlement account of the Parties.
11.5. The Contractor is not responsible for damage to existing communications discovered as a result of work and not specified in the project.
12.1. After signing this Agreement, all previous written and oral agreements, correspondence, negotiations between the Parties relating to this Agreement shall become invalid if they contradict this Agreement.
12.2. Damage caused to a third party as a result of work at the facility through the fault of the Contractor shall be compensated by the Contractor.
12.3. All changes and additions to this Agreement are considered valid if they are made in writing and signed by the Parties.
12.4. Any agreement between the Parties that entails new obligations that are not included in this Agreement must be confirmed in writing by the Parties in the form of additions and changes to it.
12.5. In all other respects that are not provided for by this Agreement, the current legislation of the Russian Federation shall apply.
12.6. All Annexes (Estimates) and Calendar plans for the production of works to the Contract are its integral part.
12.7. Disputable issues arising in the course of the execution of this Agreement are resolved through negotiations, if no agreement is reached, disputes are resolved Arbitration Court.
12.8. This Agreement is made in two copies, having equal legal force, one for each of the Parties.
13.1. The Contractor shall, in the performance of its obligations under this Agreement, comply with the highest ethical and professional standards and shall comply with all applicable laws and regulations.
13.2. The Contractor agrees to the following:
Please note that the contract was drawn up and checked by lawyers and is exemplary; it can be finalized taking into account the specific terms of the transaction. The Site Administration is not responsible for the validity of this agreement, as well as for its compliance with the requirements of the legislation of the Russian Federation.
