Who is building? Developer, general contractor? Are these equivalent definitions of the person carrying out the construction? We will analyze this further. We will also consider the legislative regulation of such a status, the rights and obligations of such persons, their responsibilities, and main functions.
Definition
The person carrying out the construction is either the developer, or the person who was involved by the developer or the customer on the basis of the relevant agreement. Can it be physical, or is only legal status allowed? The answer is unequivocal: it must necessarily meet the requirements for persons carrying out construction. They are detailed in Part 2 of Art. 52 GrK FZ No. 190 (2004). In turn, this federal law was updated, edited in the latest version - Federal Law No. 148 (2008).
A person carrying out construction is also a subject engaged in reconstruction, overhaul in relation to capitalconstruction. It produces those types of work that affect the safety, the general condition of capital construction projects. Hence, this activity can only be carried out by individual entrepreneurs or legal entities that have certificates of the possibility of admission to such work, issued by self-regulatory organizations.
As for other types of construction, overhaul or reconstruction work, they can be carried out by legal entities and individual entrepreneurs, as well as ordinary citizens - individuals.
The person carrying out the construction is either the developer himself, or an individual / legal entity that was involved by the developer, customer on the basis of an agreement. It must necessarily comply with the requirements of Russian legislation for companies and individual entrepreneurs engaged in construction.
Similar concepts
We have decided who is the person carrying out the construction. The following concepts are close to this:
- Designer - prepares project documentation.
- Firms or individual entrepreneurs carrying out the reconstruction of capital facilities.
- Entity carrying out overhaul of construction projects.
Who are developers?
Let's compare these seemingly similar definitions: developers and persons carrying out construction. Are these concepts equivalent or not?
The Urban Planning Code of the Russian Federation defines a developer as an individual or legal entity that provides foron the land plot belonging to him (or on the land plot of another right holder) various construction activities, overhaul, reconstruction in relation to capital construction projects. Also, it is the developer who performs such procedures as engineering surveys, preparation of design papers for the construction, overhaul or reconstruction of the building.
The developer can act not only according to his own interests, but also for the benefit of customers, which can be various legal entities, individual entrepreneurs, Russian, foreign citizens, and so on. Separate categories of developers' clients are:
- State bodies of the Russian Federation.
- Administration bodies of off-budget state funds.
- The structure of local self-government of the constituent entities of the Russian Federation.
Connection of concepts
How are the customer, the developer, the person carrying out the construction connected? Here are some examples:
- The customer can act as a client of both the developer and the person who carries out the construction.
- The developer can act as both the person carrying out the construction and the customer if he entrusts the construction work to a third party - an individual or a legal entity.
- The entity carrying out the construction is the party that is directly involved in the work (construction, repair, reconstruction). Accordingly, it cannot be a customer, but can be both the developer himself and the party he has entrustedcertain works in relation to capital development facilities.
General provisions
Let's touch on the general provisions of the documentation that regulates the responsibility of persons involved in construction, their rights, functions, and obligations. Here is the important thing to highlight here:
- Party carrying out the construction - a legal or natural person organizing, coordinating construction work, as well as the reconstruction and / or overhaul of a capital development object. Also, it is it that must ensure compliance with all points of project documents, technical regulations, safety precautions during the entire construction work.
- The person carrying out the construction, who performed the work, is fully responsible for their quality, compliance with the entire range of requirements of project documents.
- In its activities, this person is guided by the following legislative acts: the Town Planning Code of the Russian Federation, the Civil Code, regulatory documents governing the procedures for both concluding and executing construction contracts.
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- Persons carrying out construction are required to have a certificate ofpermit for construction work issued by an authorized organization.
Main Functions
This is the most common clause of the provisions. It is included in all orders for the appointment of a person carrying out construction. The functions highlighted here are as follows:
- Organization and / or coordination of construction, overhaul, reconstruction of capital construction projects.
- Performance of work on the construction, installation of building structures, engineering and technical systems of the facility in accordance with the design and working documents. It is carried out both on its own and with the involvement of third parties.
- Ensuring the development of the necessary organizational and technological documents, construction projects.
- Drafting and further approval of work schedules, supply of necessary building materials, structures, products, equipment for construction work, reconstruction, overhaul.
- Acceptance of completed works from subcontractors, payment in accordance with the concluded subcontract.
- Determining the responsibilities of subcontractors for the supply of building materials, structures, products, equipment necessary for work.
- Implementation of comprehensive construction control, including compliance with the building materials used, products, compliance with the requirements of technological regulations, work and design papers.
- Maintaining all necessary construction documentation.
- Provision forconstruction sites, labor safety, as well as the general safety of construction work for the population of nearby areas, the environmental situation of the area.
- Construction site management. This also means ensuring the protection of the object until it is accepted by customers.
- Fulfillment in full of the requirements of local government structures to maintain order in the territory adjacent to the construction site.
Construction control concept
The representative of the person carrying out the construction is obliged to exercise construction control. Let's analyze specifically what it is:
- Incoming control of design documents for the construction site, which are provided by the developer or customer.
- Checking the quality of used building materials, structures, products, equipment that are supplied for the construction, repair, reconstruction of the facility.
- Checking compliance in its entirety with the established norms, rules for warehousing and storage of used construction products.
- Checking compliance with the sequence and composition of various technological operations during the implementation of the event: construction, overhaul, reconstruction.
- Joint examination with the customer of works that are called hidden.
- Interim acceptance of already erected building structures that may affect the safety of the facility under construction.
- Intermediate acceptance of networks related to engineeringtechnical support.
- Acceptance of completed stages and completed types of work.
- Jointly with customers checking the compliance of a fully constructed object with the requirements of design and working documents prepared on their basis, the results of engineering surveys, the requirements of urban planning plans for a given land allotment, current technical regulations.
Rights
The rights of the representative of the person carrying out the construction, as well as the contractor himself, are expressed as follows:
- Select subcontractors to perform certain types of construction work, both in agreement with the customer, and completely independently. This right is secured by orders to the person carrying out the construction.
- Conclude subcontracts and contractors in the manner approved by Russian law.
Responsibilities
The representative of the person carrying out the construction is, accordingly, the subject representing the interests of the construction work contractor. Most often, it is he who concludes construction contracts with the customer or developer.
As for the obligations of persons who carry out reconstruction / construction / overhaul, the following stands out here:
- Such a person is obliged to carry out this construction activity in accordance with the task that was provided to him or the customer or the developer company. This refers to various design documents, requirements for urban planningplanning of land plots, the requirements of the current technological regulations. At the same time, the contractor is obliged to ensure the safety of third parties at the construction site (to comply with labor safety requirements), to take care of the environment (to comply with environmental legislation), to worry about the safety of cultural heritage.
- The person who carries out the construction is obliged to keep a general log of the work performed, the executive documentation required by law. It must notify its customer (or developer), as well as state supervision authorities, of the deadlines for completing those works and processes that are subject to mandatory verification. If errors or shortcomings are detected, the performer must completely eliminate the shortcomings identified by the inspectors. He proceeds to continue work according to the plan only when the competent authorities draw up an act on the complete elimination of the deficiencies found. The person carrying out the construction fully controls the quality of the building materials used for the work.
- Organizations and individual entrepreneurs engaged in construction are obliged to strictly follow the instructions of customers received already during the construction of the facility, but on the condition that these instructions do not contradict the initial requirements, the terms of the contract for the construction contract, do not constitute interference into the operational and economic activities of the contractor.
- In case of detection in the course of construction work, overhaul or reconstruction of a cultural heritage object, a person carrying outconstruction, must immediately stop fulfilling the terms of the contract. Then it notifies the state bodies of the Russian Federation that are involved in the preservation of such objects valuable for culture and future generations about the find.
Responsibility
The membership of persons involved in construction under contracts with customers and developers also bears a certain responsibility. Consider the standard provisions of contracts dedicated to her:
- An individual entrepreneur or an organization carrying out construction is fully responsible to its customer for the fulfillment of all contractual obligations to carry out all the work required at all stages. In particular, this is the provision of high-quality and timely execution of construction and installation tasks, special types and cycles of work, the completion of the construction site with the necessary engineering and technological equipment, building materials and working structures.
- Persons who carried out the construction are fully responsible to their customers for the consequences of non-performance or improper performance of obligations by their designated subcontractors.
- To the subcontractors themselves, organizations and individual entrepreneurs carrying out construction are liable for improper performance or non-performance by the customer of the terms of the subcontract contract (for example, in terms of payment for services provided or work performed).
- Both the types and the amount of responsibility of persons engaged in construction forfailure to fulfill one's obligations or their improper fulfillment are established by a local contract (subcontract) and generally applicable civil law on the territory of the Russian Federation.
So, the persons carrying out the construction can be both legal entities and individuals (IP) who have permission to carry out construction work. Their rights, duties and responsibilities are necessarily fixed in the contract (subcontract). The performers themselves and their representatives are required to act within the framework of the GK and the Civil Code of the Russian Federation.
