Contract for the implementation of design work, project stages and working documentation. Contract for the execution of design work

The construction of a capital facility is unthinkable without the availability of project documentation. As a rule, the developer entrusts the development of project documentation to a specialized design organization, concluding an appropriate contract with it. This article will consider some features of the contract for the performance of design work.

Essential terms of the contract

Due to the fact that the contract for the performance of design work is a kind of work contract, the legal regulation of such an agreement is carried out by the norms contained in § 4 Ch. 37 of the Civil Code of the Russian Federation, as well as the general rules on the contract (clause 2 of article 702 of the Civil Code of the Russian Federation). Consequently, the essential terms of the contract for the performance of design work are: - the subject of the contract (Article 758 of the Civil Code of the Russian Federation); - initial and final deadlines for the performance of work (clause 1, article 708 of the Civil Code of the Russian Federation). Judicial practice proceeds from the fact that the subject of the contract for the performance of design work is the performance of the relevant work (design assignment, as well as other initial data necessary for the preparation of technical documentation) and the transfer of their result - the project - to the customer. If the parties agree on these nuances, the contract is recognized as concluded (Resolutions of the FAS VVO of February 25, 2013 in case N A43-24001 / 2010 and of November 9, 2012 in case N A43-24897 / 2010).

Note. Project documentation (project) is documentation containing materials in text form and in the form of maps (diagrams) and defining architectural, functional-technological, structural and engineering solutions for the construction, reconstruction of capital construction facilities, their parts, overhaul ( article 48 of the Civil Code of the Russian Federation).

It should be noted that the design task must be approved by the customer and be a written annex to the contract, and the deadlines for the completion of work must comply with the requirements of Art. 190 of the Civil Code of the Russian Federation, for example, it is impossible to tie the deadline for the completion of work to the moment the advance is transferred (Determination of the Supreme Arbitration Court of the Russian Federation dated 07.06.2010 N VAC-7051/10 in case N A76-9817 / 2009-25-131) or the provision of initial data (Resolution of the FAS FEB dated 08.10.2012 N F03-3798/2012 in case N A37-1895/2011). In the latter case, the court noted: upon oral agreement, the designer prepared a task for the implementation of design work, but so far, due to the comments of the customer, it has not been approved. Consequently, the subject matter of the contract was not agreed between the parties. In addition, an indication in the contract of events (presentation of initial data and payment for work) cannot be recognized as events that must inevitably occur, since these events depend on the will of the parties. Under such circumstances, it should be recognized that the contract was not concluded, since the parties did not reach an agreement on all its essential terms.

Note. Recognition of the contract as not concluded is not an unconditional basis for exempting the customer from payment for the work performed (Determination of the Supreme Arbitration Court of the Russian Federation dated 07.06.2010 N VAC-7051/10 in case N A76-9817 / 2009-25-131).

Let us dwell on such an important condition of the contract as the price of the work performed. The price of the contract is best determined by an estimate (clause 3, article 709 of the Civil Code of the Russian Federation). At the same time, the designer<1>it should be remembered that if in the process of work there is a need to perform additional work that is not provided for in the estimate, the designer is obliged to warn the customer about this and not perform them without his consent (in writing). Otherwise, the designer will not be able to receive payment for the additional work performed, even referring to the unjust enrichment of the customer. In particular, the Decree of the Seventh Arbitration Court of Appeal dated July 24, 2012 in case N A45-10269/2012 states: - the designer did not prove the unjust enrichment of the customer, that is, the unjustified receipt of property or funds by him; - the works for which the claim is claimed are additional and were not provided for by the contract; - the designer did not take reasonable measures to notify the customer about the need to perform additional work that was not taken into account in the technical documentation, but performed them without the consent of the latter. The customer did not give his consent to these works.

The Civil Code of the Russian Federation states that the parties to the contract for the performance of design work are the customer and the contractor. For convenience of perception, the contractor in this article is replaced by the designer.

We add that the FAS ZSO supported the conclusions of the lower instance (Decree of November 28, 2012 in case N A45-10269 / 2012). A similar approach is demonstrated by BAC (Determination of December 25, 2012 N BAC-16435/12).

The content of any contract is the rights and obligations of the parties. The designer and the customer are subject to the rights and obligations of the parties to the contract with some features. For example, the customer is obliged to transfer to the designer a design assignment, as well as other initial data necessary for the preparation of technical documentation (clause 1, article 759 of the Civil Code of the Russian Federation).

Note! Paragraph 6 of Art. 48 of the Civil Code of the Russian Federation obliges the developer (technical customer) to transfer to the designer the town-planning plan of the land plot (the territory planning project and the land surveying project in the case of preparing design documentation for a linear facility), the results of engineering surveys (if they are not available, the contract should provide for an assignment for engineering surveys) , technical conditions (if the functioning of the designed facility cannot be ensured without connection (technological connection) to engineering networks).

In case of failure to provide the initial data by the customer, the designer, guided by Art. 719 of the Civil Code of the Russian Federation, must suspend the performance of work and notify the customer in writing, otherwise he is responsible for the performance of work of adequate quality and in due time (Resolution of the Federal Antimonopoly Service of the Supreme Court of Russia dated March 11, 2012 in case N A74-2016 / 2011<2>).

Upheld by the Determination of the Supreme Arbitration Court of the Russian Federation dated May 2, 2012 N VAC-4916/12.

It should be noted that the customer, who did not transfer the necessary data to the designer in time, cannot demand termination of the contract for failure to complete the design work within the time period established by the contract. In this case, the designer is recommended to notify the customer in writing of the need to provide the necessary initial data. For example, the Decree of the FAS PO dated 11/19/2012 in case N A12-14875 / 2011 states: from the conclusion of the forensic examination it follows that the reason for the designer’s failure to complete the design work in full was the customer’s failure to transfer the initial data for design, namely the urban planning plan. In addition, it is clear from the designer's letters that he asked to suspend the design work from January to March 2010. In this regard, it is reasonable to conclude that there are no grounds for the customer to refuse to fulfill the contract due to the designer's failure to complete the work within the time period established by the contract. A change in the initial data entails the obligation of the customer to reimburse the designer for additional costs not provided for by contractual relations and incurred by the latter as a result of a change in the initial data due to circumstances beyond the control of the designer (paragraph 6 of article 762 of the Civil Code of the Russian Federation). In such cases, you should pay attention to the fact that the performance of additional work caused by a change in the initial data must be agreed with the customer (Resolutions of the FAS MO dated 07/03/2013 in case N A40-58465 / 12-40-544, the Seventeenth Arbitration Court of Appeal dated 10.12.2012 N 17AP-12824/2012-GK in case N A60-27683/2012). The best option in this case is the conclusion of an additional agreement and the approval of a new terms of reference. The customer is also obliged to participate, together with the designer, in coordinating the finished technical documentation with the relevant state bodies and local governments (paragraph 5 of article 762 of the Civil Code of the Russian Federation). At the same time, judicial practice proceeds from the fact that the approval of project documentation can be entrusted to the designer on the basis of the order of the customer (Resolution of the FAS PO dated February 19, 2013 in case N A65-13555 / 2012).

Note. There are examples when the arbitrators recognize as a violation of the law the presence in the auction documentation of the condition on imposing on the designer the obligation to coordinate the project documentation with the competent state bodies and local governments without the condition that, if necessary, such coordination of the project documentation is carried out by the designer together with the customer (Decree FAS PO dated 06/11/2013 in case N A06-5269 / 2012).

In addition, the customer is obliged (Article 762 of the Civil Code of the Russian Federation): - to use the technical documentation received from the designer only for the purposes stipulated by the contract, not to transfer it to third parties and not to disclose the data contained in it without the consent of the designer; - involve the designer to participate in the case on a claim brought against the customer by a third party in connection with the shortcomings of the drawn up technical documentation. The main responsibility of the designer is to transfer to the customer the finished technical documentation (clause 1, article 760 of the Civil Code of the Russian Federation), which must meet the requirements of the law (technical regulations, SNiP, etc.).

Note. The project documentation is approved by the developer or technical customer if there is a positive conclusion of the examination of the project documentation (clause 15, article 48 of the Civil Code of the Russian Federation).

The procedure for conducting state examination of project documentation is established by the Regulation approved by Decree of the Government of the Russian Federation N 145. According to clause 2 of this document, a technical customer, developer or a person authorized by any of them is entitled to apply for a state examination. Consequently, the obligation of the designer to send the result of the work performed by him for examination can be assigned to him only by the terms of the contract. At the same time, the designer's authority to submit an application to the appropriate body (institution) to conduct an examination of project documentation and obtain approval from the developer or customer must be confirmed by an appropriate document (power of attorney). Otherwise (if the obligation to obtain approvals and the conclusion of an examination is not assigned to the designer by the contract and the power of attorney was not issued to him), the customer is not entitled to demand the collection of penalties, referring to the absence of a positive conclusion of the examination (Resolution of the Federal Antimonopoly Service of the ZSO dated September 24, 2012 in case N A70-1179 / 2012. Resolution of the Government of the Russian Federation of 05.03.2007 N 145 "On the procedure for organizing and conducting state examination of project documentation and engineering survey results".

It must be understood that if shortcomings are identified in the design documentation during the state examination, the designer must eliminate the violations. Otherwise, the designer will face negative consequences, for example, the court may conclude that the result of the work has not been achieved, therefore the designer is obliged to return to the customer the amount of the previously received advance payment (Resolutions of the FAS PO dated 05/08/2013 in case No. 2012 in case N A12-18576/2011). Improper performance of work on the development of project documentation is also its non-compliance with the mandatory requirements established by Decree of the Government of the Russian Federation N 87<4>. Otherwise (if during the examination a discrepancy between the project was revealed both in terms of the composition of the sections of the design documentation and their content), the designer will have to not only return the advance payment, but also pay for the examination and transfer the state fee for consideration of the dispute by arbitrators (Resolution of the FAS PO dated 22.08. case N A12-18616/2012).

Decree of the Government of the Russian Federation of February 16, 2008 N 87 "On the composition of sections of project documentation and the requirements for their content."

Designer's responsibility

By virtue of paragraph 1 of Art. 761 of the Civil Code of the Russian Federation, the designer is responsible for the improper preparation of technical documentation, including deficiencies subsequently discovered during construction, as well as during the operation of the facility created on the basis of technical documentation. If deficiencies are found, the designer, at the request of the customer, is obliged to redo the technical documentation free of charge, as well as compensate the customer for the losses caused, unless otherwise provided by law or a contract for design and survey work (clause 2, article 761 of the Civil Code of the Russian Federation). Losses can be, in particular, the costs of paying for the work of another designer involved in eliminating comments in the project documentation (Determination of the Supreme Arbitration Court of the Russian Federation of March 21, 2011 N VAS-2679/11), as well as the costs of eliminating the consequences of the collapse of the constructed facility (Resolution of the FAS VVO dated 10/17/2012 N A79-3635 / 2011). In this case, the customer must prove the amount of losses incurred by him, the unlawfulness of the actions of the designer and his guilt, as well as the existence of a causal relationship between the actions of the designer and the losses incurred (as a rule, in such cases, an appropriate examination is appointed).

A.V. Mandryukov Master of Laws, expert of the journal "Construction: Accounting and Taxation" Signed for publication on 08.11.2013

CONSTRUCTION CONTRACT: GROUNDS FOR TERMINATION, AMENDMENT AND UNIFIED REFUSAL TO PERFORM

It's no secret that the main contract regulating the economic activity of a construction organization is a construction contract that mediates the construction (reconstruction) of an object or the performance of other construction work. However, in some cases, the purpose of the contract cannot be achieved due to non-performance or improper performance by the customer or contractor of the obligations assumed. This article will highlight some aspects of termination, modification and unilateral refusal to execute a construction contract in cases of improper execution.

General provisions of the Civil Code of the Russian Federation on termination, amendment and unilateral refusal to execute contracts

In accordance with Art. 310 of the Civil Code of the Russian Federation, a unilateral refusal to fulfill an obligation and a unilateral change in its conditions are not allowed, except as otherwise provided by law; unilateral refusal to fulfill an obligation related to the implementation by its parties of entrepreneurial activity, and a unilateral change in the terms of such an obligation are also allowed in cases provided for by the contract, unless otherwise follows from the law or the essence of the obligation.

According to paragraph 1 of Art. 450 of the Civil Code of the Russian Federation, amendment and termination of the contract are possible by agreement of the parties, unless otherwise provided by the Civil Code of the Russian Federation, other laws or the contract. By virtue of paragraph 2 of Art. 450 of the Civil Code of the Russian Federation, at the request of one of the parties, the contract can be changed or terminated by a court decision only: - in case of a material breach of the contract by the other party (clause 1); - in other cases provided for by the Civil Code of the Russian Federation, other laws or an agreement (clause 2). At the same time, a violation of the contract by one of the parties is recognized as significant, which entails such damage for the other party that it is largely deprived of what it was entitled to count on when concluding the contract.

Note! The fundamental difference between pp. 1 and 2, paragraph 2 of Art. 450 of the Civil Code of the Russian Federation is that, by virtue of paragraphs. 2 (in contrast to paragraph 1), a person applying to the court with a request to change or terminate a contract is not obliged to prove damage caused to him by the actions of the other party to the contract (Resolution of the FAS MO dated 11/18/2009 N KG-A40 / 11946-09).

In accordance with paragraph 3 of Art. 450 of the Civil Code of the Russian Federation in the event of a unilateral refusal to perform the contract in whole or in part, when such refusal is allowed by law or by agreement of the parties, the contract is considered terminated or amended accordingly.

Note. The law provides the right to change or terminate the contract or refuse to execute it unilaterally.

Thus, the Civil Code of the Russian Federation provides for the following groups of grounds for termination, amendment of contracts: - by agreement of the parties (not considered in this article, since it is practically not applied by the parties in case of improper performance of the contract); - judicially; - in case of unilateral refusal to perform the contract in whole or in part (the question of the relationship between the concepts of "unilateral refusal to perform the contract" and "termination of the contract" is debatable both in theory and in practice).

Grounds for termination and amendment of a construction contract in court

As practice shows, a significant violation of the construction contract takes place on the part of both customers and contractors. Thus, customers often violate the deadlines for payment for work performed or advance payments stipulated by the construction contract. As a rule, these violations are qualified by the courts as a material breach of the construction contract by the customer, which allows the court to satisfy the contractor's claim for termination of the contract and the customer's obligation to pay for the work performed (Resolution of the FAS SZO dated 12/25/2009 N A42-4935 / 2008). At the same time, not any violation by the customer of the terms of the construction contract on payment may be the basis for terminating or changing this contract in court. This is confirmed by judicial practice (Resolution of the FAS MO dated 02.07.2009 N KG-A40 / 5892-09). In the case under consideration, a contract was concluded between the customer and the general contractor for the construction of a residential building with non-residential premises, according to which the customer instructed, and the general contractor assumed obligations to perform a full set of works on the construction and commissioning of the facility, the customer undertook to accept from the general contractor results of work and pay for them. The general contractor completed, and the customer accepted the work, but did not pay for them in full, which prompted the general contractor to go to court to demand the termination of the work contract, an additional agreement to it and the recovery of the principal amount. The court of cassation recognized that a breach by the customer of obligations to pay for the work performed by the contractor, accepted by him without comment, is a material violation of the terms of the construction contract concluded between commercial organizations for the purpose of making a profit, and gives the contractor the right to demand termination of the contract. However, taking into account the specific circumstances of the case (at the time of consideration of the lawsuit, the facility was built and put into operation, the general contractor (plaintiff) was paid more than 92% of the amount payable under the contract and the supplementary agreement to it, the general contractor for a long time to collect debt from the customer in did not apply in accordance with the established procedure, and by the time the statement of claim was filed for termination of the work contract and an additional agreement to it, the limitation period (three years) had expired), the arbitrators refused to satisfy the general contractor's demands for termination of the work contract and an additional agreement to it.

Note! In cases of violation by the customer of the terms of payment under the construction contract, it is sometimes advisable for the contractor to demand a change in the contract in terms of postponing the deadlines for completing the work.

As an example, we can cite the Decree of the FAS DVO dated September 22, 2010 N F03-6946 / 2010. In the case under consideration, the developer and the investor concluded an investment agreement<1>, under the terms of which the developer undertook to build a group of residential block sections of variable number of storeys with built-in administrative premises, and the investor - to pay for the construction of this facility. Due to the fact that the investor fulfilled his obligation to pay the advance only partially, the developer repeatedly asked to change the construction completion date. Having received no response, the developer applied to the court with a request to change the terms of the contract on the start and completion of construction.

<1>In the litigation under consideration, the court qualified the existing legal relationship between the developer and the investor as regulated by the norms of § 3 Ch. 37 "Construction contract" of the Civil Code of the Russian Federation.

The court established the fact of a significant violation by the investor of the terms of the contract (violation of the advance payment terms), which resulted in the impossibility for the developer to make payments for the implementation of design work, the state examination of the project, and payments for other preparatory work, as a result of which the deadlines for the start of construction were violated. Taking into account that leaving the terms of the contract on the deadline for completion of construction in the previous wording can lead to significant losses for the developer (due to sanctions for delay), the court satisfied the requirements to change the terms of the contract regarding the timing of completion of construction and putting the object into operation. However, when stating a requirement to change the deadlines for the completion of work due to the customer's failure to fulfill the obligation to pay an advance, the contractor must correctly qualify the relations of the parties for their actual legal nature, and also be extremely careful in drawing up the terms of the contract (including payment of the advance) with point of view of legal certainty. A striking example of the contractor's lack of due attention to these circumstances is the Decree of the Fifteenth AAC dated February 16, 2010 N 15AP-12686/2009. As follows from the content of this Decree, due to the non-payment of the advance by the customer, the contractor applied to the court with a demand to oblige the customer to conclude an additional agreement to the state contract<2>in terms of extending the terms of its implementation. At the same time, the contractor based his claim simultaneously on the provisions of: - Clause 1, Art. 767 of the Civil Code of the Russian Federation, which provides for the obligation of the parties to agree on new terms, and, if necessary, other conditions for the performance of work in the event that the relevant state bodies or local governments, in the prescribed manner, reduce the funds of the relevant budget allocated to finance contract work; - paragraph 2 of Art. 450 of the Civil Code of the Russian Federation on the right of a party to an agreement to apply to the court with a request for unilateral termination, amendment of the agreement in the event of a material breach of the agreement by the other party.<2>Considering this case, the court of first instance qualified the state contract concluded between the parties as a work contract, which was upheld by the court of appeal.

However, the contractor did not take into account that, by virtue of Art. 431 of the Civil Code of the Russian Federation, when interpreting the terms of the contract, the court takes into account the literal meaning of the words and expressions contained in it. At the same time, one of the clauses of the disputed contract stated that the customer, at his discretion, pays an advance payment of up to 30% of the contract value, subject to the receipt of federal budget funds to his current account. In such circumstances, the court recognized that the payment of the advance payment was not the obligation of the customer, which excluded the contractor's argument that the customer had materially violated the terms of the contract. In a number of cases, the termination or amendment of a construction contract is due to the customer's failure to fulfill its obligations to assist the contractor in the performance of work, obligations to provide equipment, materials, and technical documentation. It is noteworthy that sometimes the courts, when making decisions on the termination or amendment of construction contracts in such cases, are based on different provisions of paragraph 2 of Art. 450 of the Civil Code of the Russian Federation. In particular, in the Decree of the FAS ZSO dated 13.10.2010 N A75-21 / 2010, the termination of the contract was recognized as lawful according to the rules of paragraphs. 1 p. 2 art. 450 of the Civil Code of the Russian Federation, since the customer did not fulfill its obligations to transfer the construction facility to the contractor within the agreed time frame, and did not provide assistance in completing the construction of the facility. Under such circumstances, the contractor has largely lost what he was entitled to expect when concluding the contract. At the same time, in Decree N KG-A40/11946-09 dated November 18, 2009, the Federal Antimonopoly Service of the Ministry of Defense indicated that the change in the deadline for the completion of work took place due to incorrect initial data contained in the project documentation, respectively, the customer did not provide the contractor with assistance in the manner and volume , provided for by the construction contract, - the contractor's requirements to change the terms of the contract on the deadline for the performance of work were found to be justified, but already on the basis of paragraphs. 2 p. 2 art. 450 of the Civil Code of the Russian Federation. As noted above, the termination of a construction contract is often caused by improper performance of this contract on the part of the contractor, which is often expressed in the latter's non-compliance with the terms of the contract on the start and end of work, the deadlines for the delivery of the object (work performed) to the customer. Thus, in Ruling No. 4977/08 of April 28, 2008, the Supreme Arbitration Court agreed with the conclusion of the appellate court that violation of the deadlines for the performance of work, failure to deliver the work performed to the customer are significant violations of the terms of the contract, and recognized the lawful termination of the contract on the basis of paragraphs. 1 p. 2 art. 450 of the Civil Code of the Russian Federation. It should be noted that cases of termination of construction contracts in case of violation by the contractor of the deadlines for performing work are very common in judicial practice (Resolutions of the FAS SKO dated July 25, 2012 N A32-683 / 2011, FAS ZSO dated December 25, 2007 N F04-154/2007 (176 A75-11)). At the same time, a formal approach to the issue of violation by the contractor of the deadlines for the performance of work under a construction contract is unacceptable - without assessing the reasons for their violation. For example, in the Decree of the FAS PO of December 8, 2011 N A65-24801 / 2010, the court stated that the establishment of only the fact of violation of the deadline for performing work under the contract without assessing the reasons that led to the violation cannot serve as an unconditional basis for terminating the contract. For example, if the customer delayed the delivery of building materials (including on a tolling basis) and equipment, the contractor could not complete the construction of the facility on time, but violation of the deadline in this case is not a basis for terminating the contract.

Note! The presence of individual shortcomings in the work performed by the contractor also does not always indicate the admissibility of terminating the construction contract, because the customer is obliged to prove the significance of these shortcomings (the impossibility of using the results of the work).

As stated in the Decree of the FAS UO dated March 11, 2012 N F09-77 / 12, the customer, demanding the termination of the municipal contract for the repair of the road, referred to the fact that the device of the leveling layer of the asphalt concrete pavement was produced in violation of the technology, the device of the lower layer of the pavement, sidewalks, the installation of curb stones was of poor quality, the base of crushed stone in front of the leveling layer of the coating was not compacted, dirty. The court found that the work was completed by the contractor, the road is operational, which indicates the actual acceptance by the institution of the work performed on laying the asphalt pavement and the presence of consumer value of the result of the contract work for the customer. As a result, the court dismissed the customer's claim, stating that the poor-quality performance of work, taking into account the provisions of Art. Art. 723, 450 of the Civil Code of the Russian Federation, as well as the circumstances of the case established by the courts, in itself do not entail the termination of the contract in court. Thus, the assessment of the violation of the construction contract for the materiality of the violation will be made by the court at its discretion in each specific case (based on the actual circumstances of the case).

Mandatory pre-trial dispute resolution procedure

As established by paragraph 2 of Art. 452 of the Civil Code of the Russian Federation, a demand to amend or terminate an agreement may be filed by a party to the court only after receiving a refusal from the other party to the proposal to change or terminate the agreement or failure to receive a response within the time period specified in the proposal or established by law or the agreement, and in its absence - in thirty days period. In accordance with paragraph 60 of the Decree of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation N 6/8<3>a dispute about changing or terminating the contract can be considered by the court on the merits only if the plaintiff presents evidence confirming that he has taken measures to resolve the dispute with the defendant, provided for in paragraph 2 of Art. 452 of the Civil Code of the Russian Federation.

<3>Decree of the Plenum of the Armed Forces of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 07/01/1996 N 6/8 "On some issues related to the application of the first part of the Civil Code of the Russian Federation".

Thus, the Civil Code of the Russian Federation establishes a mandatory pre-trial procedure for resolving a dispute on termination, amendment of the contract. Failure to comply with this procedure entails leaving the claim without consideration (Resolution of the FAS PO dated 06/14/2011 N A12-15581 / 2010). Therefore, the party intending to change or terminate the construction contract must send the counterparty a proposal (claim) in which it is necessary to propose to consider the issue of terminating or changing the contract. The text of such a proposal might look like this:

Alfa LLC and Omega LLC signed contracts for the installation and commissioning of power supply systems at the construction of residential buildings No. 5 and No. 7 (building numbers), located at the address: Moscow, st. Ivanova, 60 (hereinafter referred to as the Agreement). As of September 5, 2012, Omega LLC performs electrical work with a significant lag behind the schedules provided for by the above agreements: 1) residential building No. 5: - storey and apartment electrical panels were not installed and completed; - junction boxes have not been fully installed to date; - electrical boxes for the installation of electrical fittings are not fixed; - not delivered to the facility in full and not equipped with electrical panels in the switchboard; - signal lights on the roof were not delivered to the object and not mounted; - as a result, there is no preparation for the examination of completed electrical installations of a residential building; - executive documentation was not presented to technical supervision; - the completed works were not presented to the general contractor with the preparation of the appropriate documents in the forms KS-2 and KS-3. 2) Residential building No. 7: - the installation of the cable in the floors has not been completed, respectively, the premises for pouring the floors have not been transferred, which hinders the performance of general construction works and the work of other subcontractors. The general contractor was fined for downtime due to lack of construction readiness; - comments of technical supervision are not eliminated. Taking into account the above circumstances, in accordance with paragraph. 2 Article. 452 of the Civil Code of the Russian Federation, we invite you to terminate (terminate) the Agreement.

However, it seems that the customer may well use the right provided for in paragraph 2 of Art. 715 of the Civil Code of the Russian Federation (refuse to perform the contract). The exercise of this right is possible out of court (clause 3 of article 450 of the Civil Code of the Russian Federation), the situation will be discussed in detail below.

Note! Deciding the question of the obligation provided for by paragraph 2 of Art. 452 of the Civil Code of the Russian Federation of the pre-trial procedure for settling disputes, it is necessary to distinguish between disputes directly about changing, terminating contracts and disputes about the application of special measures of responsibility for violation of a work contract (the latter category of disputes does not provide for a mandatory pre-trial settlement procedure).

So, by virtue of Art. 723 of the Civil Code of the Russian Federation in cases where the work was performed by the contractor with deviations from the work contract that worsened the result of the work, or with other shortcomings that make it unsuitable for the use provided for in the contract, or in the absence of an appropriate condition for unsuitability for normal use in the contract, the customer has the right, if otherwise not established by law or contract, at his option to demand from the contractor: - gratuitous elimination of deficiencies within a reasonable time; - a commensurate reduction in the price set for the work; - reimbursement of their expenses for the elimination of deficiencies, when the right of the customer to eliminate them is provided for in the work contract (Article 397 of the Civil Code of the Russian Federation). Declared by the customer in accordance with Art. 723 of the Civil Code of the Russian Federation, the requirement for a commensurate reduction in the price set for the work is not a dispute about changing the terms of the contract. Therefore, the customer is not obliged to comply with the claim or other pre-trial procedure for resolving the dispute (Resolution of the FAS MO dated May 17, 2012 N A40-114714 / 11-52-976).

Unilateral refusal to execute a construction contract

Termination of the contract in court (including a construction contract) is a very difficult process (the need to prove the fact of the materiality of the breach of the contract by the counterparty, the mandatory pre-trial procedure for settling the dispute). The application of the procedure for refusing to perform a contract (Clause 3, Article 450 of the Civil Code of the Russian Federation) often makes it possible to overcome these difficulties, because renunciation of a contract does not need the consent of the counterparty and does not require going to court, while termination of the contract (in the absence of the consent of the counterparty) can be carried out only in court. Accordingly, the institution of refusal to perform the contract due to the possibility of its operational use is a very effective means of legal influence on the counterparty that violates the terms of the contract. Judicial practice proceeds from the fact that for a unilateral cancellation of a contract, it is sufficient to provide the law or the contract with the opportunity to make it: neither Art. 310, nor paragraph 3 of Art. 450 of the Civil Code of the Russian Federation do not link the right to unilateral refusal to perform the contract with the presence of any grounds for such refusal provided for by law or by agreement of the parties. For a unilateral refusal to execute an agreement related to the implementation of entrepreneurial activities by its parties, the very fact that the law or agreement of the parties indicates the possibility of unilateral refusal is sufficient (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09.09.2008 N 5782/08). However, the provisions of Art. 450 of the Civil Code of the Russian Federation, it seems, are not formulated clearly enough, because from the content of this article it is impossible to unambiguously establish what, in essence, is the refusal to perform the contract: N 14 "On certain issues of the practice of resolving disputes related to challenging bank guarantees"<4>); - the type of its termination (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of February 16, 2010 N 13057/09); - a consequence of a unilateral refusal to fulfill the contract (Determination of the Supreme Arbitration Court of the Russian Federation of 06.27.2012 N VAC-5761/12, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 09.09.2008 N 5782/08).

<4>In this Resolution, the unilateral refusal to perform the contract and termination of the contract are separated by commas, which allows us to conclude that these concepts are different.

We believe that the approach according to which the unilateral refusal to perform the contract is considered as an independent basis for terminating the contract (as opposed to terminating the contract) is correct. As follows from the content of paragraphs 1, 2 of Art. 450 of the Civil Code of the Russian Federation, termination of the contract is a way to terminate the contract, which is allowed either by agreement of the parties (clause 1 of article 450 of the Civil Code of the Russian Federation), or by a court decision (clause 2 of article 450 of the Civil Code of the Russian Federation). At the same time, the refusal of the contract is another way of terminating the contract (carried out through a unilateral declaration of will). So, in paragraph 3 of Art. 450 of the Civil Code of the Russian Federation, it is established that in the event of a unilateral refusal to perform the contract in whole or in part, when such refusal is allowed by law or by agreement of the parties, the contract is considered terminated or amended accordingly (the use of the word “considered” in this context indicates that the unilateral refusal to perform contract entails the same consequences as its termination - termination of the contract).

Order

In order to exercise its right to unilateral refusal to perform the contract, the party to the contract must send the counterparty a notice of unilateral refusal to perform the contract. Refusal to execute the contract will have legal consequences in the form of termination of the contract only from the moment the counterparty receives such notification 3878/07, FAS MO of 04.08.2011 N KG-A40/7815-11). It should be noted that a unilateral refusal to perform a contract is a transaction in the sense of Art. 153 of the Civil Code of the Russian Federation, respectively, the provisions of the Civil Code of the Russian Federation on the form of transactions apply to it. So, in the case of the conclusion of a construction contract between legal entities or a legal entity and a citizen, a notice of unilateral refusal of such an agreement in accordance with paragraphs. 1 p. 1 art. 161 of the Civil Code of the Russian Federation must be drawn up in writing. The notice of unilateral refusal to perform the contract may be stated as follows:

Alfa LLC and Omega LLC signed contracts for the installation of outdoor storm sewers and outdoor domestic sewers at the construction of residential buildings N N 5, 7 and 8 (building numbers), located at the address: Moscow, st. . Ivanova, 60. As of September 21, 2012, Omega LLC did not fully fulfill its obligations under the contracts: - installation of external storm sewers was not carried out; - installation of external household sewerage was not carried out. At the same time, by virtue of clause 3.1 of the contracts, the completion date for the said contracts expires on 23.09.2012. By virtue of paragraph 2 of Art. 715 of the Civil Code of the Russian Federation, if the contractor performs the work so slowly that it becomes clearly impossible to complete it by the deadline, the customer has the right to refuse to perform the contract. We hereby inform you of our refusal to perform the contracts. Based on paragraph 3 of Art. 450 of the Civil Code of the Russian Federation, contracts are considered terminated from the moment your organization receives this notice. By __ ______ 2012, we demand that the construction site be vacated.

When sending a notice of unilateral withdrawal from the contract, the issue of determining the address of the counterparty is very problematic. In order to eliminate possible abuses regarding the recognition of a notification as improper (due to non-receipt by the addressee), it is very advisable to provide for the following condition in the contract:

For the purposes of unilateral refusal to execute this agreement (unilateral refusal of this agreement), the corresponding notice of the party to this agreement shall be sent to the address of the other party specified in this agreement (section 15 "Addresses and details of the parties"). At the same time, the actual absence of the addressee at this address may be the basis for recognizing such a notification as improper only if the other party is notified in advance in writing about the change in the actual location.

Grounds for unilateral refusal of the customer to perform the contract

1. According to paragraph 3 of Art. 708 of the Civil Code of the Russian Federation in case of violation of the deadline for the performance of work, as well as other terms established by the contract, the consequences determined by paragraph 2 of Art. 405 of the Civil Code of the Russian Federation: the customer may refuse to accept the performance of the obligation and demand compensation for losses. For example, in the Decree of 26.04.2012 N A56-4681 / 2011 FAS SZO recognized as legitimate the customer’s refusal to execute the contract for the production of design and estimate documentation (the contractor violated the deadline for the performance of work, in connection with which the customer lost interest in executing the contract and obtaining the result of work ) and obliged the contractor to return the previously received advance payment. 2. By virtue of paragraph 5 of Art. 709 of the Civil Code of the Russian Federation, if there is a need for additional work and for this reason in a significant excess of the approximate price of work, the contractor is obliged to warn the customer in a timely manner. The customer, who did not agree to exceed the price of work specified in the work contract, has the right to withdraw from the contract. 3. Paragraph 2 of Art. 715 of the Civil Code of the Russian Federation establishes that if the contractor does not start the execution of the work contract in a timely manner or performs the work so slowly that it becomes clearly impossible to complete it by the deadline, the customer has the right to refuse to perform the contract and demand compensation for losses. As a rule, in such cases, the customer requires the payment of the previously paid advance and interest for the use of other people's funds on the basis of Art. 395 of the Civil Code of the Russian Federation (Resolution of the FAS VVO dated February 20, 2012 N A79-1348 / 2011). 4. As indicated in paragraph 3 of Art. 715 of the Civil Code of the Russian Federation, if during the performance of the work it becomes obvious that it will not be performed properly, the customer has the right to appoint the contractor a reasonable time to eliminate the deficiencies and, if the contractor fails to fulfill this requirement within the appointed time, to refuse the work contract or entrust the correction of work to another person at the expense of contractor, as well as to demand compensation for losses (Resolution of the Federal Antimonopoly Service of the ZSO dated March 25, 2011 N A46-3884 / 2010). 5. Cancellation of a building contract on the basis of paragraph 3 of Art. 715 of the Civil Code of the Russian Federation is often stated with reference to paragraph 3 of Art. 723 of the Civil Code of the Russian Federation, according to which, if deviations in work from the terms of the work contract or other shortcomings in the result of work have not been eliminated within the reasonable time period set by the customer or are significant and irreparable, the customer has the right to refuse to perform the contract and demand compensation for the damages caused (Resolution of the Federal Antimonopoly Service TSB dated July 27, 2009 N A82-1733 / 2008-1). 6. Article 717 of the Civil Code of the Russian Federation establishes that, unless otherwise provided by the work contract, the customer may at any time prior to the delivery of the result of work to him refuse to perform the contract by paying the contractor a part of the established price in proportion to the part of the work performed before receiving a notice of the customer's refusal to perform contracts. The customer is also obliged to compensate the contractor for losses caused by the termination of the work contract, within the difference between the price determined for the entire work and part of the price paid for the work performed (Resolution of the FAS ZSO dated 04/22/2011 N A45-15681 / 2010).

Grounds for unilateral refusal of the contractor to perform the contract

1. According to paragraph 3 of Art. 716 of the Civil Code of the Russian Federation, if the customer, despite a timely and reasonable warning from the contractor, within a reasonable time does not replace unsuitable or substandard materials, equipment, technical documentation provided for the performance of work, or does not change instructions on the method of performing work, or does not accept other necessary measures to eliminate the circumstances threatening its suitability, the contractor has the right to refuse to perform the work contract and demand compensation for the losses caused by its termination. In this case, the unilateral refusal of the contractor entails the termination of the contract by virtue of clause 3 of Art. 450 of the Civil Code of the Russian Federation (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 24, 2012 N 5761/12). However, if the contractor has entered into an agreement in accordance with Federal Law N 94-FZ<5>, then he cannot exercise his right to withdraw from the contract with reference to paragraph 3 of Art. 716 of the Civil Code of the Russian Federation. The fact is that the said Law does not provide for the possibility of amending the terms of the concluded contract (part 5 of article 9) and does not give the performer the right to unilaterally refuse to perform the contract (part 8 of article 9). In this case, the contractor can only apply to the court to terminate the contract. This conclusion was made by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 5761/12 of July 24, 2012.<5>Federal Law No. 94-FZ of July 21, 2005 “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs”.

2. Paragraph 1 of Art. 719 of the Civil Code of the Russian Federation, it is established that the contractor has the right not to start work, but to suspend the work begun in cases where the customer’s violation of his obligations under the work contract (failure to provide material, equipment, technical documentation) prevents the contractor from fulfilling the contract, and also in the presence of circumstances that clearly indicate that the fulfillment of these obligations will not be carried out within the prescribed period. At the same time, by virtue of paragraph 2 of Art. 719 of the Civil Code of the Russian Federation, unless otherwise provided by the work contract, the contractor, in the presence of the circumstances specified in clause 1 of this article, has the right to refuse to perform the contract and demand compensation for losses. Most often, the cost of work performed and not paid for by the customer is recovered as losses (Resolution of the FAS MO dated September 16, 2009 N KG-A40 / 8187-09). 3. In accordance with paragraph 3 of Art. 745 of the Civil Code of the Russian Federation, in the event of the impossibility of using the materials or equipment provided by the customer without deteriorating the quality of the work performed and the customer's refusal to replace them, the contractor has the right to refuse the construction contract and require the customer to pay the price of the contract in proportion to the part of the work performed. In conclusion, it should be noted that a unilateral refusal to execute a construction contract is a more efficient and effective measure to protect the interests of the parties to this contract than termination or amendment of the contract, because it does not require the consent of the counterparty, observance of the mandatory pre-trial procedure for resolving the dispute, going to court. Moreover, regarding the main possible violations by the parties of the terms of the construction contract, the Civil Code of the Russian Federation contains grounds for unilateral refusal to perform it (six and three grounds for the customer and contractor, respectively), while by virtue of clause 3 of Art. 450 of the Civil Code of the Russian Federation, the parties have the right to expand the list of these grounds directly in the contract.

Hereinafter referred to as Executor, represented by Director General Davydova E.S., acting on the basis of the Charter, on the one hand, and _____________________ , represented by _____________________ . , hereinafter referred to as Customer, on the other hand, have concluded this Agreement as follows:

1. Subject of the contract.

1.1 The Customer instructs, and the Contractor assumes the obligation to develop project documentation on the basis of the Customer's assignment for the design work on the internal engineering networks of premises with a total area of ​​_________, hereinafter referred to as An object, located by the address: ________________________________-

1.2. The Customer instructs, and the Contractor assumes the development of project documentation for the following sections: ventilation and air conditioning.

1.3. Project documentation, which is the subject of the contract, must be completed in the following sections: explanatory note, drawings, isometric diagrams, technical characteristics of systems and equipment specifications.

  1. Price, procedure and terms of mutual settlements of the parties.

2.1. The total cost of work under this Agreement will be _______________________ , including VAT 18% in the amount____________________________________

2.2. Payment under this Agreement is made by the Customer in the following order

2.2.1 Within 3 days from the date of signing this Agreement, the Customer pays an advance payment in the amount of ____________________________, including VAT 18% in the amount_________________________________________________-

2.3. The date of payment is the day of receipt of funds to the settlement account of the Contractor.

2.4. Payment for the Agreement in accordance with the terms of p.p. 4.1., 4.2, is made according to the invoices issued by the Contractor.

3. Duration of the Agreement

3.1. This Agreement comes into force from the moment of its signing by the parties and is valid until the full fulfillment of the obligations assumed.

3.2. The term for the performance of work under this Agreement is 5 (five) working days from the date of receipt of funds to the account of the Contractor.

4. Order of delivery and acceptance of works.

4.1. Scientific and technical products (design documentation) are sent to the Customer as they are ready, but no later than the deadlines specified in paragraphs 3.1, 3.2 with the Contractor's accompanying document.

4.2. Upon completion of the work, the Contractor shall transfer to the Customer the Certificate of acceptance of scientific and technical products.

4.3. Based on the results of consideration of the documentation, the Customer signs the Product Acceptance Certificate or sends a reasoned refusal to accept it.

4.4. After a 5-day period, the work is considered accepted in full and of proper quality, if the Customer has not presented a reasoned refusal to sign the acceptance certificate for the work performed.

  1. Special conditions.

5.1. Coordination of project documentation with the relevant state supervision bodies and interested organizations is carried out by the Customer. Payment under the accounts of the coordinating organizations is carried out by the Customer.

5.2. The Contractor undertakes to correct the work in a timely manner and at its own expense based on the justified comments of the Customer, coordinating and / or expert bodies. Within 5 (five) working days from the date of submission of comments.

  1. Responsibility of the parties.

6.1. All disputes and disagreements that may arise under this Agreement or in connection with its execution. Subject to negotiation between the parties.

6.2. If it is impossible to resolve disputes, they are referred to the Arbitration Court of Moscow.

7. Force majeure.

7.1. Neither party will be liable for the total or partial failure to perform any of its obligations if such failure is the result of force majeure circumstances such as flood, fire, earthquake or other acts of God, war or hostilities, as well as having binding force for at least one of the parties of the decision or order of the government (government bodies) that arose after the conclusion of the Treaty.

7.2. If it is impossible to fulfill its obligations for the above reasons within 3 (Three) months. The contract can be terminated by agreement of the parties with a refund depending on the payments made and the work performed.

8. Other terms.

8.1. All changes and additions to this Agreement are valid only if they are made in writing and signed by the contracting parties.

8.2. The rights and obligations of the parties under this Agreement may be transferred by their written consent to third parties. Neither party has the right to transfer to third parties the execution of its rights and obligations under this Agreement without the prior written consent of the other party, unless otherwise provided by the terms of this Agreement.

8.3. This Agreement is signed in duplicate, one copy for each party, and both copies have the same legal force.

8.4 The following is attached to this agreement:

8.4.1 Appendix No. 1 "Terms of Reference for Design"

9. DETAILS AND SIGNATURES

for design work in a person acting on the basis of , hereinafter referred to as " Designer”, on the one hand, and gr. , passport: series , number , issued by , residing at the address: , hereinafter referred to as " Customer”, on the other hand, hereinafter referred to as the “Parties”, have concluded this agreement, hereinafter “ Treaty" about the following:

1. THE SUBJECT OF THE AGREEMENT

1.1. The Customer instructs the Designer to prepare a task for the implementation of design work and technical documentation, and the Designer undertakes to prepare a task for the implementation of design work and, in accordance with the task, develop technical documentation (project) for a house of individual development for construction at the address:.

1.2. The task prepared by the Designer becomes binding on the parties from the moment it is approved by the Customer.

1.3. The designer is obliged to comply with the requirements contained in the task and other initial data for the performance of design and survey work, and has the right to deviate from them only with the consent of the customer.

1.4. The right of the Designer to carry out the work provided for by this Agreement is confirmed by the following documents:

  • License No. dated "" 2019, issued by .

1.5. The designer undertakes to prepare the following documents: .

2. COST OF WORKS AND PROCEDURE OF PAYMENTS

2.1. The cost of design work is RUB VAT RUB and is determined by the table "Calculation of scope and cost of work" (Appendix No.).

2.2. The cost of design work is determined in accordance with the scope of project documentation. In the event of a significant increase in the scope of work, the cost may be changed by agreement of the parties.

2.3. Within days after the conclusion of this Agreement, the Customer transfers the amount specified in clause 2.1 to the Designer's settlement account.

3. TERM OF PROJECT WORKS

3.1. The designer undertakes to carry out the design work in full within the period from the date of conclusion of this contract.

4. OBLIGATIONS OF THE PARTIES

4.1. The designer is obliged:

  • Perform work in accordance with the assignment and other initial data for the design and the contract;
  • Coordinate the finished technical (project) documentation with the Customer, and, if necessary, together with the Customer - with the competent state bodies and local governments;
  • Transfer to the Customer the finished technical (project) documentation and the results of survey work.

4.2. The Designer is not entitled to transfer technical documentation to third parties without the consent of the Customer.

4.3. The Designer guarantees the Customer that third parties do not have the right to prevent or restrict the performance of work on the basis of the technical documentation prepared by the contractor.

4.4. The customer is obliged:

  • Pay the Designer the price established by this Agreement;
  • Use the technical (project) documentation received from the Designer only for the purposes stipulated by the Agreement, not transfer the technical documentation to third parties and not disclose the data contained in it without the consent of the Designer;
  • Provide necessary assistance to the Designer in the performance of design work;
  • Participate, together with the Designer, in coordinating the finished technical documentation with the relevant state bodies and local governments;
  • In the event of a significant change in the initial data, as well as due to other circumstances beyond the control of the Designer, which entailed a significant increase in the cost of design work, reimburse the Designer for the additional costs incurred in connection with this;
  • In the event of a litigation related to the presentation of a claim against the Customer by a third party in connection with the shortcomings of the drawn up technical documentation, involve the Designer in the case.

5. RESPONSIBILITIES OF THE PARTIES

5.1. The designer is responsible for improper preparation of technical (project) documentation, including shortcomings subsequently discovered during construction, as well as during the operation of the facility created on the basis of technical documentation.

5.2. If defects are found in the technical documentation, the Designer, at the request of the Customer, is obliged to redo the technical documentation free of charge, as well as compensate the customer for the losses caused.

5.3. In case of violation of the deadlines for the design work, the Designer pays the Customer a penalty in the amount of % for each day of delay, but not more than % of the total cost of the work, unless he proves that the delay was due to the fault of the Customer.

6. RESOLUTION OF DISPUTES BETWEEN THE PARTIES. SCOPE OF DISPUTES FROM THE CONTRACT

6.1. Disputable issues arising in the course of the execution of this Agreement are resolved by the parties through negotiations, and the agreements that have arisen are necessarily fixed by an additional agreement of the parties (or protocol), which becomes an integral part of the Agreement from the moment of its signing.

6.2. If a dispute arises between the Customer and the Designer regarding the shortcomings of the work performed or their causes and the impossibility of resolving this dispute by negotiations, an examination may be appointed at the request of either party. Expenses for the examination shall be borne by the Designer, except for cases when the examination establishes the absence of violations by the Designer of the terms of this Agreement and technical documentation. In these cases, the expenses for the examination shall be borne by the party that requested the appointment of the examination, and if it was appointed by agreement between the parties, both parties equally.

6.3. In case of failure to reach an agreement on controversial issues, the dispute arising from this Agreement is subject to consideration in a court of general jurisdiction on the territory of the Russian Federation, on the basis of the law of the Russian Federation and in the manner established by the legislation of the Russian Federation. In accordance with Articles 118 and 120 of the Code of Civil Procedure of the RSFSR, a claim is brought at the place of permanent residence of the Customer.

6.4. The applicable law of the parties recognize the legislation of the Russian Federation.

6.5. On issues not regulated by the Agreement, the laws and other legal acts of the Russian Federation, including the relevant legal acts adopted by the constituent entities of the Federation and local governments, are subject to application. In the event of a conflict between the terms of the Agreement and the provisions of laws and other legal acts, the law or other legal act shall be applied.

7. OTHER TERMS

7.1. Correspondence between the parties is carried out by exchanging facsimile messages, e-mail messages, registered letters. Messages are sent to the addresses specified in the Agreement. The date of the relevant notification is the day the facsimile message or e-mail message is sent, as well as the day after the letter is sent by mail.

7.2. This agreement is made in two copies - one for each party. In case of translation of the text of the Agreement and any annex to it into a foreign language, the text in Russian shall prevail.

8. LEGAL ADDRESSES AND PAYMENT DETAILS OF THE PARTIES

Designer Jur. address: Postal address: TIN: KPP: Bank: Settlement/account: Corr./account: BIC:

Customer Registration: Postal address: Passport series: Number: Issued by: By: Phone:

9. SIGNATURES OF THE PARTIES

Designer _________________

Customer _________________

Moscow "___" _____________ 201_

..., hereinafter referred to as the "Customer", represented by ..., acting on the basis of ..., on the one hand,

and Open Joint Stock Company "_____________________________" (abbreviated name - JSC "___________"), hereinafter referred to as the "Contractor", represented by the General Director ______________, acting on the basis of the Charter, on the other hand, jointly referred to as the "Parties", have concluded this (hereinafter referred to as the text "Agreement") on the following:

1. The Subject of the Agreement
1.1. The Customer instructs, and the Contractor assumes obligations to develop project documentation for ... (hereinafter referred to as the "Works").
1.2. Design stages: Design and Working documentation.
1.3. The Contractor grants the Customer the right to use the project documentation developed under this Agreement for the performance of Works at the facility specified in clause 1.1. work contracts.
1.4. Technical, economic and other requirements for design products that are the subject of this work contract must comply with the requirements of SNiP and other applicable regulations of the Russian Federation.
1.5. The Contractor performs the Works specified in p.p. 1.1. work contracts in accordance with the Terms of Reference (Appendix No. 1).

2. Cost of work and payment procedure
2.1. The cost of work under the Contract is established by the Contractual Price Agreement Protocol (Appendix No. 4) and amounts to … rub. ... cop. (…) rubles 00 kop., including VAT 18% - … (…) ruble … kop.
including:
2.1.1. stage "Project" - ... (...) rubles, including VAT - 18%;
2.1.2. stage "Detailed documentation" - ... (...) rubles, including VAT - 18%.
2.2. Payment for work under the Contract is made in stages, in accordance with the calendar plan (Appendix No. 2) in the following order:
2.2.1. The Customer, within 15 (fifteen) banking days from the date of conclusion of the contract for the performance of work, transfers an advance payment in the amount of ... % of the total cost of the Works, which amounts to ... (...) rubles, including VAT 18% - ... (...) rubles ... cop.
2.2.2. Payment for the Works fully completed at each stage is carried out by the Customer on the basis of the Works acceptance certificate for the relevant stage, within 5 (five) business days from the date of its signing by the Parties, with a proportional deduction of the paid advance.
2.3. The obligation to pay is considered fulfilled from the moment the funds are received on the Contractor's settlement account.
2.4. Acceptance of Works for each stage and the procedure for signing the acceptance certificate of Works is carried out in accordance with paragraphs. 4.2.-4.4. work contracts.
2.5. When changing the Terms of Reference (Appendix No. 1) by agreement of the Parties, resulting in a change in the volume and cost of the Works, the Parties sign an additional agreement to this Agreement, which indicates the changed volumes and the new cost of the Works.

3. Deadlines for the completion of the Works
3.1. The deadlines for the completion of the Works are specified in the work schedule (Appendix No. 2), which is an integral part of the Contract.
3.2. In case of violation by the Customer of the terms stipulated by the Agreement for:
a) payment of an advance;
b) payment for accepted work results;
the deadlines for the performance of the Works are postponed for the period of delay in the fulfillment by the Customer of the above obligations under the Contract, but not later than the validity period of the contract for the performance of works as a whole.

4. Order of delivery and acceptance of Works
4.1. Acceptance by the Customer of the results of the Works that meet the requirements specified in clause 1.5. Contracts are carried out in the manner specified in paragraphs. 4.2, 4.3. work contracts.
4.2. Upon completion of the Works by stages, the Contractor shall transfer to the Customer the documentation developed for the relevant stage in five copies on paper and one copy in electronic form in the following formats:
- explanatory note and other text documentation in Microsoft Word, Excel formats;
- drawings in AutoCAD format;
- and the act of acceptance of the Works for the stage in two copies.
4.2.1. The Customer, within 5 (five) business days from the date of receipt, considers the submitted documentation and signs the acceptance certificate for the Works by stage or submits a reasoned refusal to accept.
4.3. If the Customer refuses to sign the acceptance certificate for the Works at the relevant stage, the Customer sends the Contractor a written reasoned refusal to accept the Works with a list of necessary improvements and deadlines for their implementation.
4.4. The Contractor has the right to send to the Customer at the address specified in clause 7.7.2. The agreements listed in clause 4.2. contracts for the performance of work documents by mail. Within 5 (five) working days from the date of receipt by the Customer of the above acts, he is obliged to sign them and send one of the copies to the Contractor or send a reasoned refusal to the Contractor. If, after the expiration of the specified period, the Customer does not send the signed act of acceptance of the completed Works or a reasoned refusal to the Contractor, the Works are considered accepted in full, of proper quality and payable in accordance with the terms of the Agreement.
4.5. If in the process of performing the Works the inevitability of obtaining a negative result or the inexpediency of further carrying out the Works is revealed, the Contractor suspends it and informs the Customer about this within three days after the suspension of the Works.
In this case, the parties, within 10 days from the date of notification of the Customer about the suspension of the Works, the Parties consider the possibility of continuing the Works and draw up a decision in a bilateral document.

5. Rights and obligations of the Parties
5.1. The contractor is obliged:
5.1.1. Complete the Works in full scope and content in accordance with clause 1.5. contracts for the performance of work that fully comply with the current SNiP, RF SN and transfer the results of the work to the Customer.
5.1.2. Together with the Customer, take part in the coordination of project documentation in the coordinating authorities.
5.1.3. On behalf of the Customer, if necessary, make changes and additions to the work performed within the time agreed with the Customer. If it is necessary to make changes to the work at the request of the Customer, related to the adjustment or additions to the Terms of Reference (Appendix No. 1), payment to the Contractor for the specified Works will be made under an additional agreement.
5.2. The customer is obliged:
5.2.1. Accept and pay for the Work performed by the Contractor, specified in clause 1.1 of the Agreement, in accordance with the terms of the Agreement.
5.2.2. In case of unilateral refusal of the Customer from the work contract, pay the Contractor the amount of actually performed Works.
5.3. The performer has the right:
5.3.1. Engage subcontractors to develop individual sections of project documentation (clause 1.1. of the Agreement), while the Contractor is responsible to the Customer for the results of their Work in accordance with the terms of the Agreement and the requirements of the current legislation of the Russian Federation.
5.4. The Contractor shall not be liable for failure to fulfill obligations under this Agreement, if it is caused by the action or inaction of the Customer, resulting in the failure to fulfill his own obligations under this agreement for the performance of work to the Contractor.
5.5. The Customer is also not liable to the Contractor for non-fulfillment of obligations under the work contract, if it is caused by the actions (inaction) of the Contractor, which entailed the failure to fulfill his own obligations under this Agreement to the Customer.

6. Liability of the parties
6.1. In case of violation by the Customer of the procedure and terms of payment for the performed Works established by the contract for the performance of work, the Contractor has the right to demand from the Customer payment of a penalty in the amount of 0.1% (zero point, one tenth of a percent) of the cost of unpaid Works on time for each day of delay.
6.2. In case of violation by the Contractor of the deadlines for the completion of the Works, the Customer has the right to require the Contractor to pay a penalty in the amount of 0.1% (zero point one percent) of the cost of the Works not completed on time for each day of delay.
6.3. The Parties are released from liability for partial or complete failure to fulfill obligations under the Agreement if it was the result of force majeure circumstances in accordance with the current legislation of the Russian Federation and if these circumstances directly affected the performance of the Agreement. If such circumstances last for more than three months, the Parties must negotiate the future of this Agreement. If the above events are not reported to the other Party within 10 (ten) calendar days from the date of occurrence of these events, the Party affected by force majeure cannot refer to it as grounds for exemption from liability for non-performance or improper performance of the contract for performance works.

etc…

The entire standard form and sample contract for the development of design and working documentation is offered for free download in the form of an attached document form.

In the event of a need for construction, design issues occupy one of the central places. Who, how and when, how well will cope with the design task - all this determines the overall success of the entire enterprise. In this case, a design contract is used to formalize the relationship between the customer and the contractor. A contract for design work can be drawn up either on the basis of a sample downloaded from the Internet or prepared with the help of lawyers who will prepare a draft agreement for a fee as part of the provision of legal services. The contract for the design should reflect the specifics of the relationship between the parties, and have a clearly defined subject of the contract, as well as determine the mutual rights and obligations of the parties. The conditions on the subject should determine the specific scope of work, as well as their name and deadlines. To minimize the risk of disputes, these terms and conditions should be described as exhaustively and punctually as possible. Often the design includes several stages, determined by the specifics of the object being designed. The stages of work should also be reflected - in the text of the contract and in the annex. Permits (a copy thereof), allowing the contractor to carry out the design, should also be attached to the document. In addition, attention should be paid in the text of the agreement to such aspects as who prepares the design assignment, whether the customer has the right to disclose the results of design work, dispose of them at his own discretion, or will be obliged to coordinate all this with the contractor. All these aspects will not be easy to take into account if a sample contract for design work is downloaded from the Internet, and will only partially fit the emerging relationship.

Contract for the execution of design work

When concluding a contract for design work, special attention should be paid to the person who will carry out the design. The fact is that since the design of, for example, a residential building will differ from the design of a real estate object for industrial purposes, it is necessary to check whether the designer has the necessary powers, whether he has licenses. A contract for design work with an individual can be concluded if he participates on the part of the customer, i.e. does not carry out the design work itself, but will implement the results of this activity, for example, when erecting a country house according to the project.

This pattern is often used with:

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