ADVOKS GLOBAL · KENYA
The Capital Markets (Real Estate Investment Trusts) (Collective Investment Schemes) Regulations
63. Appointment and role of project manager certifier
Edition: 2023-10-06 · In force
63. Appointment and role of project manager certifier
(1)The trustee of a D-REIT shall, in consultation with the REIT manager, appoint a project manager certifier prior to entering into any binding contract or a contract that can only be terminated on the payment of a penalty and which is relates to the development and construction.(2)The trustee of an I-REIT shall, in consultation with the REIT manager, where any construction or development activity specified under regulation 65 or 70 forms part of the activities of an I-REIT, appoint a project manager certifier prior to entering into any binding contracts or a contract that can only be terminated on the payment of a penalty which relate to or are connected with development and construction.(3)The project manager certifier appointed under paragraph (1) shall report to the trustee and provide copies of all reports to the REIT manager.(4)The project manager certifier shall be—(a)a company incorporated in Kenya; or(b)a person residing in Kenya; and(c)have in place an appropriate level of professional indemnity insurance.(5)The trustee shall not appoint a person or company as a project manager certifier unless that person, or if a company, its key personnel one of whom shall be nominated as the person responsible to the trustee for the work undertaken is a member of—(i)the Institution of Surveyors of Kenya;(ii)the Architectural Association of Kenya;(iii)the Institute of Quantity Surveyors of Kenya;(iv)the Institution of Construction and Project Managers of Kenya; or(v)an international body recognised by an institution under subparagraph (i) to (iv).(6)The project manager certifier shall, in the performance of his or its duties under this Regulation, be independent of, and not subject to the direction or control of—(i)the REIT manager and any property manager;(ii)the structural engineer;(iv)any valuer appointed to conduct a valuation in respect of a specific property; and(v)any person from whom the l-REIT may acquire real estate assets.(7)The project manager certifier shall have the requisite project management and quantity surveying skills and expertise to enable the project manager certifier to—(a)monitor and report to the trustee and the REIT manager on the progress of the development or construction work being planned or undertaken;(b)report on the cost of work undertaken or to be undertaken to complete the development or construction;(c)monitor and report on the cost of scheduled plant and equipment to be acquired; and(d)ensure that the costs under subparagraph (c) are included in the development or construction works budget.(8)The trustee may, with the consent of the lender to the REIT, appoint, as a project manager certifier, a person who is qualified to be appointed as such despite the fact that the person is also acting in a similar role for the lender to the REIT or in respect of the financing of development and construction works being undertaken by the REIT:Provided that such person shall report directly to the trustee and the REIT manager and shall not be subject to any obligation or duty of confidentiality to the other party that has not been waived as could result in a conflict.(9)The project manager certifier shall monitor and submit a report to the trustee and the REIT manager on a monthly basis on—(a)whether or not the work has been completed in accordance with the budget, project plan and payment schedule or any variations prepared by the REIT manager and approved by the trustee;(b)whether scheduled payments should be disbursed by the trustee to meet the work undertaken, costs of or connected with the development or construction;(c)the costs of any proposed variation of scheduled works or proposed acquisition of plant and equipment, and(d)the estimate of the cost and time required to complete the development and construction work relative to the budget and project plan.(10)The trustee shall disburse funds as requested by the RElT manager and recommended by the project manager certifier—(a)where such payments—(i)are in accordance with the budget, project plan and payment schedule approved by the trustee; or(ii)are varied and approved by a meeting of the REIT securities holders where the total cost of variation is more than fifteen percent of the budgeted costs; or(b)where the trustee is—(i)of the opinion that disbursement is necessary to protect the assets of the fund and the interests of REIT securities holders; and(ii)satisfied with the action which the REIT manager proposes to implement to rectify any problem.