In June 2018, changes to SanPiN-134, approved by order of the Ministry of Construction of the Russian Federation dated December 26, 2017 No. 1718/pr, came into force. The changes concern the organization of places for installing telecommunications equipment in new buildings and in houses after major renovations. Let's talk about the main theses of the document and its significance for the educational institution.
Access to common property is provided by the owners, not the management company
Despite this, disputes between telecommunications equipment owners and home management companies often end up in courtrooms. Telecom operators are trying through the courts to gain access to the common property of apartment buildings to provide services to residents.
The Supreme Court of the Russian Federation, when considering a similar case, noted that the organization managing the apartment building is not considered in these legal relations. Consequently, the management entity cannot enter into agreements with telecom operators for the use of the common property of apartment buildings without the consent of the general meeting of owners.
Thus, the RF Supreme Court gave the CA the right to deny access to providers. This, according to Internet companies, slows down the development of communication services and cable television.
Amendments to the RF Housing Code on simplified access to common property were rejected
Changes to SanPiN on the organization of places for communication equipment
If there are technical conditions and access to equipment for its maintenance and repair, the communication infrastructure can be placed on the upper floors, roofs and other structural elements of the apartment building. In this case, the requirements for noise levels, climatic conditions, and fire safety standards must be met (clause 8.2.2 SP-134).
Note to management organizations
The changes made to SP-134 by order of the Ministry of Construction of the Russian Federation are relevant for organizations accepting new buildings for management. The innovations do not affect houses that are already in use until they undergo major repairs or reconstruction. In this case, the preparation of the infrastructure for placement is included in the work project modern equipment communications.
At the same time, management organizations must remember that the general property of apartment buildings will include all elements of the engineering infrastructure created in accordance with SP-134: electrical panels, meters, cables, cabinets, etc. The management entity will be responsible for their maintenance and repair, which should be taken into account when determining tariff for services.
At the same time, Order No. 1718/pr does not in any way change the legal side of the issue: access to the common property of apartment buildings is still regulated by the Housing Code of the Russian Federation and is approved by the OSS in the house. The owners establish fees under agreements for the use of the common property of apartment buildings or decide on the issue of free installation of communication equipment.
The issue of admission of telecom operators to MKD is closely monitored by the Federal Antimonopoly Service. Preventing the provider from accessing the common property of the house is considered a violation of the requirements of the Federal Law of July 26, 2006 No. 135-FZ “On the Protection of Competition.”
The department holds management organizations administratively liable for abuse of a dominant position under Part 1 of Art. 14.31 Code of Administrative Offenses of the Russian Federation. The article provides for punishment for organizations in the form of a fine from 300,000 to 1,000,000 rubles.
Hold a general meeting of owners of premises in the apartment building with the help of and establish fees under agreements for the use of the common property of the apartment building or decide on the issue of free installation of communication equipment.
The government of Moscow
DEPARTMENT OF INFORMATION TECHNOLOGY OF THE CITY OF MOSCOW
ORDER
On approval of the standard form of the placement agreement base station mobile radiotelephone communication
In accordance with paragraph 3 of the order of the Moscow Government dated November 29, 2012 N 752-RP “On approval of the List of state-owned objects of the city of Moscow for the priority placement of mobile radiotelephone communication facilities”, in order to use a uniform approach to regulating legal relations arising during the placement of base station equipment mobile radiotelephone communications at state-owned facilities in the city of Moscow:
1. Approve as methodological recommendation for copyright holders of city property objects of the city of Moscow, including those included in the List of state property objects of the city of Moscow for the priority placement of equipment for base stations of mobile radiotelephone communications (approved by order of the Department information technologies of the city of Moscow dated August 19, 2013 N 64-16-323/13), the recommended form of agreement for the placement of a mobile radiotelephone base station in accordance with the appendix to this order.
2. Head of the Communications Department Samarin A.V. ensure that this order is posted on the official website of the Moscow Department of Information Technologies.
3. Entrust control over the implementation of this order to the deputy head of the Department of Information Technologies of the city of Moscow Gorbatko A.V.
Head of department
A.V. Ermolaev
Application. Agreement for placement of mobile radiotelephone base station equipment
Application
at the disposal of the Department
information technologies of the city of Moscow
dated December 2, 2015 N 64-16-473/15
Contract for placement of mobile radiotelephone base station equipment N _______________
"___"_____________ 201__ |
Hereinafter referred to as the "Lessor", represented by ___________________, acting on the basis of _______________, on the one hand, and ___________________, hereinafter referred to as the "Tenant", represented by ____________________, acting on the basis of _______________, on the other hand, collectively hereinafter referred to as the "Parties" , have entered into this Agreement as follows:
1. The Subject of the Agreement
1.1. The Lessor undertakes to provide the Tenant for temporary possession and use of _____________ (room/part of the roof/part of the wall, etc.) area ___ sq.m in the building located at the address: ______________ (hereinafter referred to as the Area) for the purpose of placing mobile radiotelephone communications base station equipment (hereinafter referred to as - communication equipment) in accordance with the Communication Equipment Layout Diagram (Appendix No. 1), and the Tenant undertakes to pay rent in the manner and within the terms established by this Agreement.
1.2. Until the Lessor is provided with a certificate of registration of the radio-electronic device and a sanitary-epidemiological conclusion for the operation of the transmitting radio-technical facility, the operation of a mobile radiotelephone communication base station is not permitted.
1.3. The area belongs to the Lessor by right ________________ (indicate the type of right under which the area transferred for use belongs to the Copyright Holder), which is confirmed by _______________ (indicate the details of the document confirming this right).
2. Duration of the Agreement
2.1. This Agreement comes into force from the date of its signing by the Parties and is valid until ______________.
2.2. If neither party, 3 (three) months before the expiration of the Agreement, notifies the other Party in writing of the refusal to renew (extend) it for a new term and, accordingly, terminate the Agreement by its validity period, then the Agreement is considered renewed for a new term for the same conditions.
2.3. The tenant has a priority right over other persons to conclude an agreement for a new term.
3. Procedure and terms of settlements
3.1. Settlements between the Parties are carried out monthly on the basis of the Certificate of Services Rendered. Every month, before the 5th (fifth) day of the month following the Reporting Period, the Lessor provides the Lessee with a Certificate of Services Rendered and an invoice.
The Reporting Period means the calendar month in which the ownership and use of the Area was carried out.
3.2. The price of this Agreement is calculated in the manner established by Decree of the Moscow Government dated December 25, 2012 N 809-PP “On the main directions of rental policy for the provision of non-residential premises located in the property treasury of the city of Moscow”, and is _______ rubles per month, including VAT (18% ).
3.2.1. The price of the Agreement includes compensation for the Lessor's expenses in connection with providing the Lessee with:
- the ability to carry out design, construction and installation work in the premises (including structural elements of the building, roof) necessary for connecting communication equipment;
- the ability to connect the Tenant’s Equipment to the power supply network and its uninterrupted operation;
- coordination of working documentation and detailed design for the Tenant to carry out the necessary work;
- unimpeded access to communication equipment installed in the building, to all elements of internal cable wiring, including floor-level cross-connection cabinets and embedded devices for external communication cables for the purpose of laying fiber-optic cable for the operation of communication equipment;
- interaction with internal departments of fire safety and security control of communication equipment;
- necessary utilities and operational services, including cleaning of the premises, fire alarms, as well as all other payments that may occur in relation to the provided Area (with the exception of electricity supply).
3.3. Additionally, the Tenant pays for the actual consumption Reporting period electricity, the cost of which is calculated based on meter readings installed by the Tenant at his own expense and the tariffs of the electricity supplier.
3.3.1. If an agreement is concluded with an energy supplying organization directly, the Tenant shall independently pay for the electricity consumed by him in accordance with the energy supply agreement, of which he notifies the Lessor in writing no later than 5 business days from the date of signing the relevant agreement with the energy supplying organization, attaching a copy of such agreement.
3.4. Payment under the Agreement begins to accrue from the date of placement of communication equipment in the location agreed upon by the Parties, which is confirmed by the signing by the Parties of the Acceptance and Transfer Certificate for the Area.
3.5. The Tenant pays the Payment under the Agreement monthly during the first 10 (Ten) banking days of the billing month.
3.5. The Tenant pays the Payment under the Agreement by bank transfer to the bank account specified in clause 9 of the Agreement.
3.6. In the event of impossibility of performance due to the fault of the Tenant, payment for the Reporting Period is made by the Tenant in full.
3.7. Changing the amount of the Fee under the Agreement may be carried out with the written consent of the Parties, except for the case provided for in clause 3.7.1 of this Agreement.
3.7.1. The amount of the Payment under the Agreement may be changed by the Lessor unilaterally by sending to the Tenant a preliminary (30 days in advance) written notice of a change in the payment under the Agreement in the event of a change in the rental policy of the Moscow Government in relation to non-residential premises located in the property treasury of the city of Moscow and a corresponding change in regulatory legal acts of the city of Moscow.
3.8. In case of early termination of this Agreement, the Parties shall make mutual settlements on the date of termination of the Agreement.
3.9. As necessary, but at least once a year, the Parties carry out reconciliation of mutual settlements.
4. Rights and obligations of the Parties
4.1. The lessor is obliged:
4.1.1. No later than 3 (three) days from the date of signing this Agreement, provide the Tenant with an area for placing communication equipment.
4.1.2. Ensure that third parties (except for authorized employees of the Lessor and the Lessee) have no access to the location of the communication equipment.
4.1.3. Provide the ability to connect communication equipment to electricity.
4.1.4. Provide other services to ensure (create conditions) for proper installation and connection of communication equipment, as well as the necessary conditions for its operation and repair, including, but not limited to:
- identify your representatives who provide the necessary assistance in the installation/repair of communication equipment;
- agree on the working documentation and working design for the Tenant to carry out work on installing communication equipment within ___ working days from the date of their submission by the Tenant;
- agree on the regime of unimpeded access for the Tenant’s representatives to the Area and technological equipment that ensures the operability of communication equipment (electrical cables, ducts, racks, etc.).
4.1.5. When the Lessor carries out major repairs of the Area, notify the Tenant about the upcoming repairs at least 3 (three) months before the start of the repair work.
4.1.6. Upon receipt of a written request from the Tenant (clause 4.2.4), he is obliged to recalculate the payment under the Agreement by excluding the amount for the period of time during which it was actually impossible to use the communication equipment installed on the Area for its intended purpose or such equipment was inoperable.
4.1.7. At your own expense and on your own, eliminate the consequences of accidents and damage that occurred through no fault of the Tenant.
4.1.8. Provide access to the Tenant for dismantling and removal of communication equipment within 30 (thirty) calendar days from the date of termination of this Agreement.
4.2. The lessor has the right:
4.2.1. Receive Payment under the Agreement.
4.2.2. Monitor compliance by the Tenant with the intended use of the Space, as well as compliance with other conditions of this Agreement.
4.2.3. Open in the absence of the Tenant The area in case of activation of security and/or fire alarm, as well as when it is necessary to eliminate or prevent accidents and fire. Each fact of opening must be documented in an act signed by the responsible persons of the Lessor and the Lessee, one copy of which must be given to the Lessee.
4.2.4. If, due to ongoing capital and/or repair work on the Area or other objective reasons, it is impossible to use the communication equipment installed on the Area for its intended purpose and/or its inoperability occurs, the Tenant has the right to demand from the Lessor an exception from the payment due in the relevant Reporting Period payments under the Agreement for the amount for the actual period of time during which the use of the communication equipment installed on the Area for its intended purpose was impossible or such equipment was inoperable.
4.3. The tenant is obliged:
4.3.1. Promptly transfer the fee in the amount and terms established by this Agreement.
4.3.2. Place communication equipment in accordance with the working documentation and working design agreed with the Lessor. On your own and at your own expense, carry out the necessary design, construction and installation work in connection with the installation of communication equipment.
4.3.3. Install an electricity meter(s) at your own expense to calculate the electricity consumed by communication equipment.
4.3.4. Use the Area for the intended purpose specified in clause 1.1 of this Agreement.
4.3.5. Do not carry out any redevelopment or re-equipment of the Area without the prior written consent of the Lessor.
4.3.7. In the event of damage caused by the Tenant of the Space and/or other property of the Lessor, the Tenant undertakes to carry out repair and restoration work at his own expense. The fact of damage is established by a commission, which includes representatives of the Lessor and the Lessee, and is documented by drawing up an act of causing the corresponding damage.
4.3.8. Return the Area to the Lessor upon expiration of this Agreement, as well as upon its early termination. The return of the Area is formalized by an Act, which is signed by both parties.
4.4. The tenant has the right:
4.4.1. Freely use the Area subject to compliance with this Agreement.
5. Responsibility of the Parties
5.1. In case of delay in payments under this Agreement, the Tenant, at the request of the Lessor, is obliged to pay the latter a penalty in the amount of 0.1% of the overdue payment amount for each day of delay.
5.1.2. The request for payment of the penalty must be made in writing and signed by an authorized representative of the Party.
5.2. Payment of the penalty does not relieve the Parties from fulfilling their obligations under this Agreement.
5.3. The Lessor does not have the right to restrict the access of the Tenant's employees to the Area/Equipment for disrespectful/biased reasons, disconnect the Equipment from power supply systems without warning (except for emergencies and other emergency circumstances), independently dismantle the Equipment or otherwise disrupt the normal operation and operation of the Equipment.
5.4. The tenant is responsible for violation of sanitary and fire safety standards, technical operation rules and fire safety rules established by the current legislation of the Russian Federation.
5.5. In case of non-fulfillment or improper fulfillment of obligations under this Agreement, the guilty Party shall compensate the other Party for losses in accordance with the current legislation of the Russian Federation.
6. Conditions for termination of the Agreement
6.1. The Agreement may be terminated in the manner prescribed by the current legislation of the Russian Federation and the Agreement.
6.2. Early termination of this Agreement is possible by agreement of the Parties. A Party wishing to terminate this Agreement must notify the other Party in writing at least 3 (three) months before the planned date of termination of the Agreement.
7. Force majeure circumstances
7.1. The parties are released from liability for non-fulfillment or improper fulfillment of their obligations under this Agreement if they prove that proper fulfillment was impossible due to force majeure circumstances, that is, extraordinary, unforeseen and unavoidable circumstances under the given conditions.
7.2. The Party subjected to force majeure circumstances is obliged to notify the other Party within 3 (three) calendar days of the nature, type, and expected duration of the force majeure circumstances, as well as the performance of which obligations under the Agreement they interfere with, and provide evidence of the occurrence of such circumstances. circumstances. In the absence of notification, the Party subjected to force majeure circumstances may not subsequently refer to the force majeure circumstances as a basis releasing it from liability.
7.3. The presence of force majeure circumstances extends the period for the Parties to fulfill their obligations under the Agreement in proportion to their duration. If force majeure circumstances last more than 30 (thirty) calendar days, the Parties are obliged, at the proposal of one of the Parties, to agree on further terms of action and/or the possibility of terminating the Agreement.
8. Final provisions of the Agreement
8.1. The terms of this Agreement may be changed and supplemented only by mutual agreement signed by both Parties.
8.2. Disputes arising during the validity period of this Agreement are resolved by mutual agreement of the Parties. If agreement is not reached within 30 (Thirty) days, disputes are considered in the Arbitration Court of the city of Moscow.
8.3. In cases not provided for in this Agreement, the Parties are guided by the legislation of the Russian Federation.
8.4. This Agreement is drawn up in two copies having equal legal force, one for each Party.
8.5. All annexes to this Agreement are an integral part of it.
8.6. If, within the framework of this Agreement, for the purpose of its execution, one Party transfers personal data of employees to the other Party, then the transferring Party guarantees the consent of the employee to such transfer and processing of personal data by the other Party, and the receiving Party guarantees the processing, confidentiality and protection of personal data in accordance with with the requirements of the Federal Law of the Russian Federation "On Personal Data".
List of Annexes to the Agreement:
1. Layout of communication equipment.
2. Certificate of acceptance and transfer of the Area.
9. Addresses and details of the Parties
Signatures of the parties:
Landlord | Tenant | |||||||
Appendix No. 1. Layout of communication equipment
Appendix No. 1
to Agreement No. ______
from "___"_________201__
Landlord | Tenant | |||||||
Appendix No. 2. Acceptance and transfer certificate of the Area to the Agreement
Appendix No. 2
to Agreement No. ______
from "__"___________201_
Form
Acceptance and transfer certificate for the area
to Agreement No. _______dated "___"____________201_
"___"______________ 201__ |
Hereinafter referred to as the "Lessor", represented by ______________________, acting on the basis of __________, on the one hand, and _______________, hereinafter referred to as the "Tenant", represented by _____________, acting on the basis of __________, on the other hand, referred to as the "Parties", each in individually - “Party”, have drawn up this Act on the following:
1. Pursuant to the terms of Agreement No. _____ dated ________, the Lessor provided, and the Tenant received, temporary possession and use of ____________ (room/part of the roof/part of the wall or other) with an area of ____ sq.m in the building located at: __________________ for the purpose of placing equipment mobile radiotelephone communication base station in accordance with the Communication Equipment Layout Diagram (Appendix 1 to the Agreement).
2. The Tenant confirms that the location of the communication equipment meets all the Tenant’s requirements at the time of signing this Acceptance and Transfer Certificate for the Area.
3. The date of commencement of the provision of services under Agreement No. _____ dated _______ is the date of signing of this Acceptance and Transfer Certificate for the Area.
4. This Act is an integral part of the Agreement, signed in two copies having equal legal force, one copy for each of the Parties.
Landlord | Tenant | |||||||
Electronic document text
prepared by Kodeks JSC and verified against:
official website of the Department
information technologies
dit.mos.ru (scanner copy)
as of 03/14/2016
" caused a great response, many interested responses and questions were received. Today we continue this topic and bring to your attention the form of the placement agreement, and also consider the features of regulating these legal relations.
So, as you and I found out last time - accommodation - not rental area. The subject of the placement agreement is not the rental of several square meters (one meter), but “the right to place equipment on a paid basis” - this is the main essence, without understanding which, you will not see the differences in the contractual forms. In this way, an accommodation agreement is similar, for example, to an installation agreement (service agreement), where the subject of the agreement is also not rent, but the creation of a service in the form of hot drinks.
Under a placement agreement (or placement agreement), one party (let's call it the Contractor) grants the User (Vending Operator) the right to place vending machines on a reimbursable basis in premises owned by the Contractor on a lease (ownership basis) at the address indicated below (or in the annex to the agreement).
In general, the content of the agreement will not differ much from the traditional form of lease you use. The only thing is that it is important not to use the concepts “lease”, “lease”, “tenant” and “lessor” in the agreement. There is also no need to indicate the size of the occupied space for placement (this is not important for our agreement), but it is important to indicate the location of the vending machine. To make the agreement have even less to do with a lease, we can indicate in it that “by agreement with the Vending Operator, the location of the vending machine can be changed.” In order to completely distance yourself from the lease, in the final clauses of the accommodation agreement you can also indicate that the provisions on the lease (Chapter 34 of the Civil Code of the Russian Federation) are not applicable to this agreement, but the provisions on the paid provision of services (Chapter 39 of the Civil Code of the Russian Federation) are applicable.
Other main provisions of the placement agreement are the obligation of the Vending operator to pay the Contractor a monthly remuneration in the agreed amount. The contract may provide for the Contractor's obligation to monitor the safety of vending machines at installation sites; bear financial responsibility for loss or superficial damage to vending machines; inform the Vending operator about malfunctions or damage to vending machines, etc.
Let us pay attention to the advantages and disadvantages of legal placement relations.
Advantages of "Placement":
The owners of the area where the vending machines will be located do not bear an additional tax burden (in some cases, the transfer of property for rent entails the obligation to calculate and pay UTII, and we are talking about considerable amounts), as a result, in such cases the cost of placement can be significantly lower than rent;
An accommodation agreement concluded for a period of one year or more does not need to be registered with the authorized bodies (as is known, a lease agreement for non-residential premises concluded for 1 year or more, as well as for an indefinite period, is subject to mandatory state registration);
Points may be more willing to accommodate, even in cases where they are not the owners of the territory, since the conclusion of a placement agreement does not require the consent of the owner (according to current legislation, the consent of the owner is required for transactions aimed at disposing of property, and leasing is not suitable here ).
Thus, using the placement agreement form allows you to reduce costs for both the vending operator and the retail outlet, and bypass a number of legislative restrictions.
Of course, placement has its downsides, let’s look at them.
Disadvantages of "Placement":
Many space owners will not understand the accommodation agreement and will agree to work only “on lease” (even if you explain all the nuances of the illegality of using the rental agreement form - the answer can only be complete misunderstanding). Of course, a skilled negotiator can use the advantages we listed above as an argument “FOR” placement. With a high probability, placement will not work in large shopping centers, as well as in organizations that use their own standard rental agreements;
The legal structure of the placement agreement is very vulnerable. This is due to the fact that the current civil legislation does not contain an accommodation agreement (accommodation agreement). Thus, many controversial issues in the contract may remain unresolved, and in the event of a conflict, they can be resolved based only on general provisions about obligations and contracts, as well as the terms of the contract itself, is very difficult. Of course, you can try to provide for all controversial issues and potential conflicts in the contract, and also extend the provisions of the Civil Code of the Russian Federation on the provision of paid services to the regulation of the contract; however, the practice of these controversial issues and conflicts has not yet been developed;
Due to the specific nature of the relationship for the temporary use of property, as well as unsuccessful contractual wording, the accommodation agreement can be qualified (in the event of litigation) as a lease agreement and declared invalid due to the uncertainty of the leased object. An indicative example is from judicial practice (Resolution of the Federal Arbitration Court of the Moscow District dated December 11, 2009, Case No. KG-A40/12815-09).
Let's consider this example in detail: an agreement was concluded between the bank and the closed joint-stock company to provide the right to place equipment (payment acceptance terminals) on a reimbursable basis. The parties formulated the subject of the agreement as follows: the contractor (CJSC) grants the user (bank) the right, on a reimbursable basis, to place terminals in premises owned by the contractor on a lease basis, at the addresses specified in the annex to the agreement. In the annex to the agreement, the parties established a list of places provided for the installation of terminals.
The Bank filed a claim with the Moscow Arbitration Court against the CJSC to declare the agreement for granting the right to place equipment on a reimbursable basis invalid (void). The claims were filed on the basis of Articles 12, 168, 209, 606, 607 of the Civil Code of the Russian Federation and are motivated by the fact that the disputed agreement is invalid (void), since the CJSC is not the owner of the premises and it does not have the right to sublease them. The defendant insisted that the contract disputed by the plaintiff is an agreement for the provision of services for a fee, which is not regulated by the rules of the Civil Code relating to the lease agreement; that the lower courts erroneously concluded that it was a rental relationship that arose between the parties, without taking into account that the subject of the lease is the transfer of real rights, while the right to place equipment transferred under the disputed agreement does not apply to real rights.
Having considered the case in turn, the courts of all three instances came to the conclusion that the agreement concluded by the parties, by its legal nature, relates to a sublease agreement for non-residential premises, the subject of which is non-residential premises transferred on a reimbursable basis for temporary possession and use for the placement of reception terminals by the Bank payments. The courts rejected as untenable the defendant’s argument that the disputed agreement is a contract for the provision of services for a fee, noting that by virtue of Article 779 of the Civil Code of the Russian Federation, the subject of a contract for the provision of services for a fee is the commission by the customer of certain actions or certain activities, while the provision of the right to place terminals for acceptance of payments cannot be associated with the defendant’s performance of the specified actions (activities). The contract was declared invalid.
So, to summarize: the placement agreement (location agreement) is still “raw”, although in practice it has been used for quite a long time (both in the vending and terminal business). These legal relations have their advantages and disadvantages, which are associated mainly with the novelty of the form and its poor elaboration.
As we have already emphasized, vending operators do not need to rush to switch to this contractual form. However, it doesn’t hurt to know about the existence of a “placement agreement” in any case, and in a constantly developing business this form can be quite useful.
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