Delta State Investments Development Agency Law 2016(1)

DELTA STATE INVESTMENTS DEVELOPMENT AGENCY LAW 2016

1. Short Title and Commencement. This Law may be cited as the Delta State Investments Development Agency Law 2016 and shall come into force on this 24th day of November, 2016.

2. Interpretation. In this Law: "Agency" means the Delta State Investments Development Agency (DIDA); "Affordable" in relation to an agreement, means that the contracting authority shall meet any financial commitment likely to be incurred in relation to that agreement, from its inception to future budgetary funds; "agreement" means a Public Private Partnership Agreement or any other investment agreements or contracts entered into in pursuance of this Law; "Approved Service" means services qualifying for participation in the Contributory Pension Scheme in accordance with the provisions of the Delta State Pension Reform Law; "Asset" includes an existing asset of a relevant contracting authority or a new asset to be acquired for the purpose of entering into an agreement; "Authorized Office" means an officer of the Agency empowered to effect compliance under thus law; "Board" means the Delta State Investments Development Agency Governing Board; "Book" includes any register, document or other records Of information and any account or accounting records however compiled, recorded, or stored, whether in written or printed form or micro-film, digital, magnetic or electronic form or otherwise; "Chairman" means the Chairman of the Board established for the Agency; "Code of Conduct" means the code of proper conduct as prescribed under the Delta State Public Service Rules. "Contracting Authority" means any Ministry, Government Department, Local Authority or Statutory Corporation; "Contingent Liability" includes Government guarantee for loan and foreign currency transfer and step-in function in the event of default by the relevant contracting authority; "Concession" means a contractual arrangement whereby the Private Partner in a Public Private Partnership arrangement is given the right to exercise the powers of the Contracting Party in respect of the construction, financing, operation and maintenance of any infrastructure in the scope of the agreement, and the provision of any services thereof; "Concession Agreement" includes any agreement between the Government and any person, firm, company or limited liability partnership for the construction, maintenance, operation or management of public infrastructure, assets and facilities over an agreed period of time including but not limited to the following types of agreements- : (i) Design, Build, Operate and Transfer (DBOT) (ii) Build, Own, Operate and Transfer (BOOT) (iii) Rehabilitate, Operate and Transfer (ROT) (iv) Joint Development Agreement (JDA) (v) Operate and Maintenance (OM) "Government" means the Government of Delta State of Nigeria; "Governor" means the Governor of Delta State; "House" means the Delta State House of Assembly; "Local Government Authorities" shall have the meaning ascribed to it under the Local Government Law of Delta State; "Member" means a member of the Board and the Chairman; "Officer" means any person employed in the Agency; "Person" includes a company or body corporate and any unincorporated body of persons, Local and State Government, and government agencies; "Private Party? in relation to an agreement, means a party to the agreement other than a contracting authority; "Project" means a project to be implemented under this Law; "Private Sector" means a Sector other than a public sector; "Public Sector" means the State Government, or Local Authorities where applicable and any other person acting on behalf of the State Government or Local Government Authorities where applicable; "Public Asset" includes the right to use any of the property or economic opportunity of a public nature or arising from the use of public property; "Public Private Partnership" or "PPP" means investment through private sector participation in a project undertaken in pursuance of this law; "Public Private Partnership Agreement" means a contractual arrangement between a contracting authority and a private party over the assets of the State entered into in pursuance of this Law; "Public Infrastructure" means State owned public facilities and amenities for public use and includes roads, bridges, highways. water transportation facilities. public water works, housing, electric power stations, motor parks, waste disposal facilities, amusement centers and any other State owned infrastructure or amenities for public use; "Rehabilitation" means major repairs or maintenance requiring some changes in design or a form of reconstruction of infrastructure or asset to add strength, thus renewing or extending the life span; "Request for Proposal" means the specific terms of the project requirements, the procedures for submission of bids, criteria for the evaluation of bids and includes a model agreement; (1)"Road" include: Roads the subject of project agreement; (2) The roadways, water table, bridges and fording on the line of the road; (3) The land on each side of the roadway and water table up to the boundary of the road; (4) All traffic lanes, acceleration lanes, interchanges, strips, overseas, underpasses, interchanges approaches, entrance and exit, ramps, service areas, maintenance; (5) Any other areas on or adjacent to any public main road or parochial road, waterway, railway or main road or parochial road. waterway, railway or other routes used for public passenger transport and; (6) Any private road designed as a toll under this Law or otherwise developed or conceded pursuant to a concession agreement. "Service charge, User fee or Toll" means any fee, charge, levy, due or compensation payable in relation to the use of a public infrastructure or asset by any person. "State" means Delta State of Nigeria.

3. Objectives of the Agency. The Principal objectives of this Law are to: (a) Promote and coordinate increased private sector investment and participation in the economic development of the State; (b) Create an enabling and conducive environment for the collaboration of the private sector and the Government of the State for the full exploitation of investment opportunities within the State; (c) Combine public assets with private sector resources from Local and International markets, to foster investments in public infrastructure and services in the State; (d) Identify projects, invite and provide support to investors who are interested in participating in the development of the State; (e) Develop and establish mechanisms for the protection of public- private investments within the State; (f) Establish a body charged with the responsibility of regulating, administering and protecting of concessions and other forms of private investments within the State.

4. Establishment of the Agency. (1) There is hereby established for the State a body to be known as the Delta Establishment State Investments Development Agency, in this Law referred to as "(DIDA)" (2) The Agency Shall be a body corporate with perpetual Succession and a common seal; may sue and be sued from time to time in its corporate name, may acquire, hold and dispose of any property or invest in property, movable or immovable. (3) The headquarters of the Agency shall be located in the State Capital Territory.

5. Establishment of the Agency. (1) There is hereby established for the Agency, a Governing Board (here in the Law referred to as the "Board") (2) The general affairs of the Agency shall be administered by the Board. (3) The Board shall consist of the following members: (a) A chairman who shall be a person of impeccable character; (b) A representative of the Ministry of Justice; (c) A representative of the Ministry of Finance; (d) A representative of the Ministry of Economic Planning; (e) A representative of the Ministry of Commerce and Industry; (f) Three (3) persons of Delta State origin with impeccable character and integrity; one from each of the three (3) Senatorial Districts of the State, (g) Two representatives of the organized private sector to be recommended by the Council of Chambers of Commerce and Industry, Mines and Agriculture, Delta State branch. (h) The Director- General of the Agency, who shall be a person of proven integrity, must possess appropriate qualifications of a university degree or its equivalent with not less than ten (10) years cognate post qualification experience; and (i) The Secretary to the Agency shall be the Secretary of the Board. (4) The Chairman, Director-General and Members of the Board other than the ex-officio members shall be appointed by the Governor subject to the confirmation of the House. (5) Each member of the Board shall hold office on such terms and conditions as may be specified in their letters of Appointment and shall be paid such emoluments, allowances and benefits as the Governor may from time to time approve.

6. Tenure, Removal of members and Cessation of Membership. (1) The Chairman, the Director-General and Members of the Board other than the ex- officio members shall hold office for a term of four (4) years and may be re- appointed for another term of four (4) years only. (2) A member of the Board shall cease to hold office if: (a) He resigns his appointment as member of the Board either by notice or under his hand addressed to the Governor, or (b) He becomes of unsound mind; or (c) He becomes incapable of carrying out on the functions of his office either arising from an infirmity of mind or body; or (d) He is convicted of a felony or of any offence Involving dishonesty or corruption; or (e) He becomes bankrupt or makes a compromise with his creditors; or (f) He has been found guilty of a material breach or serious misconduct as prescribed under the State Public Service Rules; or (g) In the case of a person who becomes a member by virtue of the office be occupies, he ceases to hold that office.

7. Appointment of Secretary to the Agency. (1) There shall be appointed a Secretary for the Agency who shall keep the records, conduct the correspondence of the Board and perform such other duties as the Director- General may from time to time direct. (2) The Secretary, who shall be appointed by the Governor Shall be a legal practitioner of not less than ten (10) years post call experience. (3) The Secretary shall be appointed for a term of four (4) years in the first instance and may be re-appointed for another term of four (4) years only. (4) The Secretary to the Agency shall also be the head of the department of Legal and Regulatory Compliance of the Agency.

8. Appointment of Other Staff of the Agency. (1) Subject to the approval of the Governor, the Governing Board of the Agency shall approve the appointment of any number of employees such as contract or permanent employees and/or civil servants on secondment from the civil service, whether professional or non professional, as may be expedient for the proper and efficient running of the Agency. (2) The Agency shall put in place an operational structure that complies with the tenets of Good Governance and engenders transparency. This structure shall guide all the offices; it shall create the profile of those appointed or employed to those offices. (3) The terms and conditions of service of the employees of the Agency shall be contained in the letters of appointment. Service in the Agency shall be deemed to be the approved service for the purposes of the Pensions Law. (4) Subject to the provisions of this Law, the Agency may make regulations relating generally to the conditions of service of the staff and in particular such regulations may provide for: (a) the appointment, promotion, termination, dismissal and disciplinary control of staff or employees of the Agency; and (b) appeals by staff or employees against dismissal or other disciplinary measures, and until such regulations are made, any instrument relating to conditions of service in the public service of the State shall be applicable, with such modification as may be necessary, to the employees of the Agency. (5) The Staff regulations made under subsection (4) of this section shall not have effect until approved by the Governor, and when so approved they shall be published in the State Gazette. The Agency shall cause a notice of the staff regulations to be issued to all affected staff in such manner as the Agency may from time to time determine. (6) Employment in the Agency shall be subject to the provisions of the pension legislation for the time being in force in the State and accordingly, officers and employees of the Agency shall be entitled to pensions and other retirement benefits as are prescribed under relevant Law. (7) Subject to the approval of the Governor, the terms and conditions of service including remuneration, allowances, grading, benefits and pensions of the employees of the Agency shall be determined by the Board. (8) Notwithstanding the provisions of subsection 4 of this section, the Board shall approve such remuneration, allowances and benefits of the Director-General or any other employees of the Agency.

9. Functions of the Agency. The functions of the Agency shall include to: (1) coordinate all State Government investments With the private sector for the advancement and development of the State by means of Public- Private Partnerships or any other investment model as directed by the Governor; (2) initiate, develop and sustain measures which shall enhance the investment process in the State by both Nigerian and non-Nigerian investors; (3) promote foreign and local investments through effective promotional measures; (4) collate, coordinate, evaluate and disseminate information on investment opportunities available in the State; (5) liaise between private investors and Ministries, Government Development and Agencies, industrial lenders and other authorities involved in the investment process; (6) advise the State Government on fiscal and other policy matters aimed at promoting economic development and wealth creation relating to Public Private Partnership relationships; (7) determine the framework for the engagement of consultant specialists and advisers for PPP and all forms of private sector investments within the State; (8) negotiate, verify and monitor performance of the terms and conditions of concession agreements for the State; (9) organize and participate in marketing events and activities including exhibitions, conferences, trade fairs and seminars for the promotion of investments in the State.

10. Duties and powers of the Agency. (1) The Agency shall have powers to: (a) make policy guidelines, rules and regulations for carrying out the functions of the Agency subject to the approval of the Board; (b) manage and administer the policies of the Agency; (c) negotiate with prospective investors; (d) obtain from any government agency or private institutions statistical or other information relevant to the functions of the Agency; (e) make concession to private investors interested in Public Private Partnerships for design, construction, operation, management, control, maintenance, rehabilitation and financing of public infrastructure or public asset in accordance, with the State Public Procurement Law; (f) inspect and monitor Concessionaries to ensure compliance with the terms of any concession agreement; (g) with the prior Consent of the Governor obtained in writing, designate a public infrastructure or public asset as a service charge user fee or toll paying public infrastructure or public asset and specify the conditions for the use of such infrastructure or asset; (h) liaise and cooperate with all government agencies and parastatals with respect to private investors participation in the provision and development of public infrastructure or public assets; (i) further to the provision of this Law, make recommendations as to the amount of money that may be charged by any private or public operator with respect to any public infrastructure, public assets or amenities as toll or user fees, subject to the approval of the Governor; (j) set up, manage and regularly update a database containing all public infrastructure assets and projects of the State under Public Private Partnerships; (k) perform any other function under this Law as may be assigned to it by the Governor. (2) The Agency shall not give letters of Procurement Comfort or Undertakings in respect of any Public Private Partnership or concession agreement without prior approval of the Governor.

11. Powers to Regulations. The Board may make regulations for giving effect to the provisions of this Law and for the due administration of its provisions.

12. Establishment of Departments. (1) There shall be established for the Agency the following Departments; (a) Legal and Regulatory Compliance (b) Administrative and Human Resources (c) Finance and Funds Management (d) Planning, Research and Statistics (e) Public Private Partnership (2) Each of the departments listed in sub-section 1(b) - (e) of this section shall be headed by the Directors appointed under the provisions of this Law. (3) In pursuance of subsection (2) of this Section, the Directors shall be appointed in accordance with the State Public Service Rules and shall be persons not below the rank of a Director in the State Civil Service. (4) The Agency may, with the approval of the Board, increase and/or adjust the number of departments as may deem necessary to enhance the performance of its functions. (5) The Agency shall have the power to establish and maintain such offices; subsidiary divisions, units and sections and make all other administrative arrangements as may, in its opinion, be necessary or expedient the performance of its functions.

13. Establishment of a Management Committee. (1) There shall be established a Management Committee of the Agency consisting of: (a) The Director-General of the Agency who shall head the Management Committee; (b) Directors of the various departments listed in Section 12 (1) herein; and (c) The Secretary of the Agency. (2) The Management Committee shall be responsible for performing the functions and exercising the powers of the Agency as provided in Part IV herein.

14. Functions of the Managing Director-General. (1) The Director-General shall be responsible for the day to day running of the Agency, and shall also: ensure that the accounting records of the Agency are adequate, in line with the extant financial regulation in respect of public procurement and fiscal responsibility in the State; and (2) prepare an annual report, including financial statements, in accordance with generally accepted accounting principles and practices.

15. Registration under the Company and Allied Matters Act. The Agency shall not enter into a Public Private Partnership Agreement or any investment Contracts with any company unless the Company is registered under the Company and Allied Matters Act and verified by the State Ministry of Justice.

16. Funds of Agency. The Agency shall establish and maintain a fund which shall consist of: (1) an initial take off grant from the State Government; (2) all subventions and budgetary allocations from the State Government; (3) endowments, loans, grants, or aid from the State Government or any agency, institution, bilateral and multinational organizations or any government, including the Federal Government of Nigeria provided such grants are not intended for purposes contrary to the objects and functions of the Agency; (4) all other monies which may, from time to time, accrue to the Agency for other services including the disposal, lease or hire of or any other dealing with, any property vested in or acquired by the Agency; (5) all sums of money accruing to the Agency by way of grants-in-aid, gifts, testamentary dispositions and endowments and contributions from any source whatsoever; and (6) all other such monies as may from time to time become payable to or vested in the Agency in respect of any matter incidental to its functions. (7) the Commission shall not be exempted from the payment of tax on any income accruing to it and shall remit to the Revenue Account of the State such percentage of its Internally Generated Revenue as may be determined by the State Ministry of Economic Planning.

17. Expenditure of the Agency. The Agency shall defray from the fund established pursuant to the provisions of this Law, all the amounts payable under or in pursuance of this Law being sums representing: (1) Cost of administration; (2) reimbursements to members of the Board or any committee set up by the Agency for such expenses as may be expressly authorized by the Board or Agency; (3) all remunerations, allowances or other costs of employment of the staff of the Agency; (4) pensions and other retirement benefits payable under or pursuant to this Law or any other enactment; (5) cost of acquisition and upkeep of premises belonging to or-occupied by the Agency end any other capital expenditure of the Agency; (6) investments, maintenance of utilities, staff promotion, training, research and similar activities; (7) all other costs that may be necessary for the day to day operations of the Agency; and (8) any other payment for anything incidental to the foregoing provisions or in connection with or incidental to any other function of the Agency.

18. Bank Accounts. The Agency shall maintain and operate Bank accounts for its funds with a reputable bank (s) in line with the provisions of existing financial Laws and regulations of the State.

19. Annual Estimate and Account. The Agency shall cause to be prepared, not later than the 90 days at the anniversary of the date of the Commencement Of this Law an estimate of its income and expenditure for the succeeding year.

20. Accounts and Audits. The Agency shall cause proper accounts and records to be kept and such accounts shall, not later than six months after the end of each year, be audited by Auditors appointed by the Board from the list and in accordance with the guidelines supplied by the Auditor- General of the State.

22. Annual Reports. The Agency may, upon the recommendation of the Board with the approval of the Governor, confirmed by the State House of Assembly, borrow by way overdraft or otherwise from any source such sums as it may require for the performance of its function and meeting its obligation under this Law.

23. Non Issuance of Financial Guarantee. A Public Private Partnership Agreement must not without the express approval of the State Executive Council contain provisions for any financial guarantee from the State, any Ministry, Department or Agency for the Public Private Partnership.

24. Pre Existing Concession. The provisions of this Law shall apply to Public Private Partnerships or Concessions entered into before the commencement of this Law and shall preserve and protect all rights, properties, interest and obligations existing under that contract and any Law applicable when the Public Private Partnerships was entered into or the concession was awarded.

25. User Fee and Toll Regulations. (1) The Agency may subject to the prior approval of the Governor enact Regulations to specify the: (a) Service charge, user fees or tolls payable in respect of designated public infrastructure or public asset; and (b) conditions under which a member of the public will access the use of public infrastructure of public assets; (2) A Concessionaire shall propose for the approval of the Agency service charge, user fees, or tolls or any review of same in relation to the use of Public infrastructure of public assets by reference to such circumstances or combination of circumstances or classification as the Agency may, after consultation with the concessionaire specify. (3) The Agency may provide for service charge user fees or tolls to be charged for a period specified in or determined in accordance with the regulations, which may provide for a period when payment of service charge, user fees, or tolls shall end: (a) on a date, or at the end of a period specified in the Regulations; or (b) on a date determined by reference to: (i) the achievement of a specified financial objective; or (ii) such other factors or combination of factors as may be specified in the Regulations, (4) Where a concession agreement has been executed in accordance with this Law, the terms of the concession agreement shall be deemed to constitute a valid service charge, user fee or tolls regulations for the purpose of this Section. (5) Notwithstanding the provisions of any Law, the Board may in the relevant concession or other agreement, authorize any person, in return for undertaking such obligations as may be specified in the concession or project agreement with respect to the design, construction, maintenance, operation, improvement or financing of public infrastructure or public assets.

26. Designation of Public Infrastructure. (1) Notwithstanding the provisions of any Law, the Board may designate any State owned public infrastructure or public asset, any road, bridge or highway as public infrastructure or public assets, with respect to which user fee charge, user fee or toll shall be payable for the purpose of this Law subject to the approval of the Governor. (2) The Board shall also have authority to establish fair and general conditions in the time and manner by which designated public infrastructure or public asset may be used and from whom service charge, user fee or toll may be collected. (3) In accordance with the regulations of the Agency and where there are no such regulations, in line with the agreed terms of the relevant concession agreement, the concessionaire shall be paid any set and appropriate service charge user fees or toll. Such set service charge, user fees or. tolls shall be adjustable from time to time depending on the provisions of the registration or terms of the relevant concession agreement. (4) Any service charge, user fee or toll that fails to comply with the regulations of the Agency, or terms of the relevant concession agreement shall be invalid.

27. Offences and Penalties. (1) It shall be an offence for any person to fail or refuse to pay service charge, user fee, or toll made pursuant to this Law, or any regulations enacted under this Law, within the terms of the relevant concession agreement. The punishment of this offence shall be 30 days imprisonment or a fine of N50,000(Fifty Thousand Naira) or any non-custodial sentence provided by this Law. (2) If a person employed with collecting a service charge, user toll finds that a person has either refused or failed to pay the user fee or toll the person so employed may: (a) deny the defaulter use of or access to the Public infrastructure or Public assets in relation to which the Service charge, user fee or toll is payable; and (b) compel him to leave the public infrastructure or Public asset or where it is deemed necessary call for the assistance of Law enforcement agents. (3) A person who refuses a service charge, user fee or toll for any Public infrastructure or Public asset may be arrested. If the Public infrastructure or asset is a road or a bridge whatever vehicle or form of mobility used by the defaulters may be impounded by an authorized person and taken to a designated place where it shall remain until the service charge, user fee or toll and any accruing fine and other demurrage is paid by the defaulter. Where the defaulter is tried for this offence, the vehicle shall remain impounded for the duration of such a trial.

28. Discharge of Interest. (1) Any member of the Management Committee, the Board or any official of the contracting entity or agency having a personal interest, whether pecuniary or otherwise, direct or indirect in, any matter to be considered by the approving authority, Agency or Contracting Entity shall disclose the fact of such interest and the nature thereof, and such disclosure shall be recorded in the minutes of the approval authority. (2) A person who makes such disclosure, shall not take part in any deliberation or discussion or voting of the Committee relating to such matter.

29. Official Screening and Confidentiality. (1) Every person having any official duty or being employed in this Agency shall regard and deal with all documents and information of any person as asset and confidential. (2) Every person having, possession of or control over any document or information of any person, who at any time communicate or attempts to communicate such information or anything contained in such documents or information to any other person: (a) Other than a person to whom he is authorized by the Director-General to communicate it, or (b) Otherwise than for the purpose of this Law or of any other enactment, commits an offence under this Law. (3) No person appointed or employed by the Agency shall be required to produce any document or to divulge or communicate any information that comes into his possession in the of his duties except as may be necessary in order to institute a prosecution, or in the course of a prosecution for any offence committed.

30. Limitation of Suits Against the Agency etc. Subject to the provisions of this Law, the provisions of the Public Officers Protection Law shall apply in relation to any suit instituted against any member, officer or employee of the Agency.

31. Power to direct Litigation and Preparation of Legal Instruments to Ministry of Justice. The Agency Shall through the Secretary direct all litigations and contract agreements which the Agency is involved to the State Ministry of Justice.

32. Service of Documents. (1) A notice, summons or other document required or authorized to be served on the Agency under the provisions of this Law or any other Law may be served by delivering it to the Agency or by sending it by registered post addressed to the Director-General at the Headquarters of the Agency. (2) No Suit shall be commenced against the Agency, a member Of the Board, the Director-General, officer or employee of the Agency before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the Agency by the intending Claimant or his agent(s). (3) The notice referred to in subsection (2) of this Section shall clearly and explicitly State the cause of action, the particulars of the claims, the name and place of abode of the intended claimant and the relief which he claims.

33. Restriction on Executive against Property. (1) In any action or suit against the Agency, no execution or attachment of process in the nature thereof shall be issued against the Agency unless not less than three months' notice of the intention to execute or attach has been given to the Agency. (2) Any sum of money which by the judgment of any court has been awarded against the Agency shall, subject to any direction given by the court, where no notice of appeal against the judgment has been given, shall be paid from the fund of the Agency.

34. Indemnity. A member of the Board, the Chairman or any officer or employee of the Agency shall be indemnified out of the assets of the Agency against any liability incurred by him in defending any proceeding, whether civil or criminal, if the proceeding is brought against him in his capacity as a Chairman or member of the Board or officer or other employee of the Agency.

35. Enforcement of Powers. The Agency may obtain the assistance and co-operation of any Law enforcement agency in the discharge of its duties under this Law.

36. Repeal and Savings. (1) The Delta State Integrated Development Agency Law 2008 is hereby repealed. (2) The provision of sub-section (1) of this section, shall not affect anything previously done or purported to have been done under the repealed Law. Schedule 1 DELTA STATE INVESTMENTS DEVELOPMENT AGENCY LAW 2016 Schedule 1 Proceedings of the Board (l) The Board shall meet for the conduct of its business at such times, place and on such days as the Chairman may appoint but shall meet, not less than once every quarter. (2) The Chairman may at anytime, and shall at the request summon a meeting. (3) Particulars of the business to be transacted at any meeting shall be circulated to members with notice of the meeting of the Board. (4) Every question put before the Board at a meeting shall be decided by a majority of the votes of the members present and voting. (5) Three members shall form a quorum at any meeting of the Board. (6) The Chairman shall, preside at every meeting of the Board but in his absence, the members present shall elect one of their member present to preside at the meeting. (7) Subject to the provisions of this Law, the Boards may make standing orders with respect to the holding of meetings, the nature of notice to be given, the proceedings thereat, the keeping for inspection of such minutes.