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Delivery and operation of eco-accommodation and tour guidance for Thorsborne Trail; Cooloola Great Walk; and Whitsunday Island Trail

Issued by Department of Innovation Tourism Industry Development and the Commonwealth Games

Expression of Interest

Status: Current
Mega Category: Building construction and maintenance
Number: TCW
Released: Fri, 12 Oct 2018 at 12:00AM Brisbane, Queensland
Closing: Fri, 30 Nov 2018 at 2:00PM Brisbane, Queensland
UNSPSC: Building and Construction and Maintenance Services - (100%)
Region/s: Cairns & Far North Queensland
Mount Isa & North West Region
The Central West
South West & Darling Downs
Townsville
Mackay Whitsunday Region
Rockhampton
Gladstone
Wide Bay Burnett
South East Queensland
Interstate
International

Section 1

Tender Overview

The State of Queensland through the Department of Innovation, Tourism Industry Development and the Commonwealth Games is pleased to invite you to submit an expression of interest for adventure and nature based tourism experiences in three national parks.

The EOI Stage is the first of three stages of the market process. Proponents have the opportunity to develop and operate eco-accommodation and tour guidance on the Thorsborne Trail, Cooloola Great Walk and Whitsunday Island Trail (soon to be constructed). Additionally, Proponents have the option of providing complementary commercial ecotourism activities as part of their model. Proponents can express interest in any or all of the trails. It is not necessary to bid for all three.

The State is seeking a collaborative arrangement with the industry through this opportunity and is therefore prepared to provide the Successful Proponent(s):

  • State-owned national park land for private eco-accommodation development;
  • exclusive ground leases for a term of up to 30 years plus one up to 30 year option to operate the private eco-accommodation;
  • assistance during the approvals process;
  • a coordinated “one government” approach to comply with other government requirements; and
  • a contribution of up to $5 million for eco-accommodation built along the Whitsunday Island Trail.

NB. All parties who access the Expression of Interest document are taken to have accepted the Disclaimer set out below.

 

DISCLAIMER

1. Definitions and Interpretations

1.1 Definitions

In this Disclaimer the following definitions apply unless the context requires otherwise:

Term

Definition

Associate

a. In the case of any Proponent, means its Related Entities, officers, employees, advisers, contractors, consultants and agents (inclusive of any member entity of that Proponent); and

b. in the case of the State, means the State’s Advisers, the Queensland Government (including acting through any department), its Ministers, Queensland Government Agencies, and any of their representative officers, employees, advisers, contractors, consultants and agents.

Cooloola Site

The site for Successful Proponent development adjacent to the Cooloola Great Walk.

Closing Date

2:00 p.m. (AEST), 30 November 2018 or as otherwise notified by the State.

Disclaimer

The disclaimer for the EOI Process appearing on the QTenders website which Proponents accept by accessing the EOI Document.

Department

Department of Innovation, Tourism Industry Development and the Commonwealth Games.

EOI

Expression of Interest.

EOI Document

The Expression of Interest document (including the Terms and Conditions, appendices, Site Context Reports and all other attachments to this document) and any addenda issued or to be issued by the State in connection with the EOI Process.

EOI Process

The process to be undertaken for the selection of each Shortlisted Proponent under the EOI Process Documents, including:

a. the issue of each EOI Proposal Request;

b. the process for the preparation and submission of each EOI Proposal;

c. evaluation of the EOI Proposals; and

d. selection of the Shortlisted Proponents.

EOI Process Documents

Each of:

a. the EOI Document;

b. each other EOI Proposal Request;

c. the Disclaimer; and

d. any other document that the State issues to Proponents which is stated to be an EOI Process Document.

EOI Proposal

Any proposal or information to be lodged or lodged in connection with any EOI Proposal Request.

EOI Proposal Request

The EOI Document and any request by the State stated to be in connection with the EOI Document and that requires the lodgement of any further proposal or information.

EOI Stage

Each stage of the EOI Process described in section 5.2 (Selection Process Overview) of the EOI Document or otherwise commenced by the State issuing an EOI Proposal Request.

Evaluation Criteria

The evaluation criteria for any EOI Proposal as set out or referred to in section 7 (EOI Evaluation) and Appendix 2 (Returnable Schedules) of the EOI Document.

Further Selection Process

The process to be undertaken for the selection of a Successful Proponent, following the completion of the EOI Process including the RFDP.

Governmental Agency

Any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority (including statutory authority), tribunal, agency or entity and includes local authorities, the State and the Commonwealth of Australia.

Preferred Proponent

The Proponent(s) selected to proceed to the completion stage on the Selection Process and enter into binding Transaction Documents.

Probity Adviser

The probity adviser referred to in section 6.2 (Probity) of the EOI Document. 

Projects

The projects described in section 3 of the EOI Document, as it may be varied by the State in any subsequent EOI Process Document.

Project Stakeholder

Any entity which the State notifies Proponents is to be a Project Stakeholder for the purposes of the EOI Process.

Proponent

Any entity who accesses or to whom the EOI Document is issued or who proposes to lodge or lodges an EOI Proposal.

Proponent’s Representative

In relation to any Proponent, the person nominated as its authorised representative in Returnable Schedule 8 of the EOI Document notified to the State by the Proponent to be its authorised representative. 

QTenders

The QTenders website found at https://www.hpw.qld.gov.au/qtenders/.

Related Entity

In relation to an entity (the first entity):

a. a Subsidiary of the first entity;

b. an entity of which the first entity is a Subsidiary;

c. a Subsidiary of another entity of which the first entity is also a Subsidiary;

d. a party related to that entity (as defined in Part 2E.2 of the Corporations Act 2001 (Cth), assuming the entity were a public company); or

e. if the first entity is a trust:

    i. the trustee of that trust;

    ii. any entity that under paragraphs (a), (b), (c) or (d) of this definition would be a Related Entity of that trustee; or

   iii. any entity that owns all or a majority of the beneficial interests in (or controls) that trust.

RFDP

Request for Detailed Proposals.

RFDP Process

The process to be undertaken for the selection of each Shortlisted Proponent for the RFDP.

Selection Process

The process to be undertaken for the selection of a Successful Proponent for the Project, including the EOI Process and the Further Selection Process.

Shortlisted Proponent

Each Proponent who is shortlisted to participate in the Further Selection Process for the Project.

Sites

The Thorsborne Site, Cooloola Site and Whitsunday Site.

State

The State of Queensland.

State Supplied Information

Any information, data or document (including designs, drawings and reports):

a. issued, disclosed or made available to any Proponent or any Proponent’s Associate by or on behalf of the State in connection with the EOI Process (including via QTenders, and/or at an information session, if any); or

b. referred to, or incorporated by reference into, the EOI Process Documents or any State Supplied Information, irrespective of when that information, data or document is issued, disclosed or made available.

State’s Adviser

Each of the advisers referred to in section 6.1 (State’s Representatives) of the EOI Document, the Probity Adviser, and any other professional adviser engaged by the State in connection with the EOI Process which the State notifies Proponents is to be a State’s Adviser.

State's Requirements

The requirements for the Project(s), the EOI Process, any EOI Proposal, the Transaction, as stated in the EOI Document or notified by the State in any other EOI Process Document.

Subsidiary

Has the meaning given to that term in the Corporations Act 2001 (Cth).

Successful Proponent

The Proponent or Proponents ultimately selected to proceed with the Project at the conclusion of the Selection Process for the Project.

Terms and Conditions

The terms and conditions set out below the Disclaimer and in Appendix 1 of the EOI Document.

Thorsborne Site

The site for Successful Proponent development being adjacent to the Thorsborne Trail.

Transaction

The transactions and processes giving effect to the Project as described in the EOI Document.

Transaction Documents

The transaction documents which will be provided by the State as part of the RFDP Process.

Transaction Manager

The individual referred to in section 6.1(a) (State’s Representatives) of the EOI Document (or such other person notified to Proponents by the State).

Whitsunday Site

The site for Successful Proponent development being adjacent to the Whitsunday Island Trail.

1.2 Interpretation

a. Unless this Disclaimer or the context requires otherwise:

i. the meaning of terms is not limited by specific examples introduced by ‘including’, or ‘for example’, or similar expressions;

ii. a reference to a document is a reference to that document as amended, supplemented or replaced from time to time (including by any addenda issued by the State);

iii. a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, and a regulation, code or other statutory instrument issued under it;

iv. a reference to ‘$’ or ‘AUD’ is a reference to Australian dollars;

v. all references to time are to Australian Eastern Standard Time;

vi. the singular includes the plural and vice versa;

vii. where a word or phrase is defined, its other grammatical forms have a corresponding meaning; and

viii. a reference to a person, corporation, organisation, consortium, trust, partnership, unincorporated body or other entity includes any of them.

b. If any part of any EOI Process Document is invalid or unenforceable, that part will (if possible) be read down to the extent necessary to avoid the invalidity or unenforceability, or alternatively will be deemed deleted and that EOI Process Document will remain otherwise in full force.

c. The provisions of the Terms and Conditions of the EOI Document (seen below the Disclaimer) prevail over any other provision of the EOI Document, any other EOI Process Document and any State Supplied Information to the extent of any inconsistency.

1.3 Priorities

The Proponent acknowledges that this Disclaimer:

a. applies to the EOI Process and any act, matter or thing arising from or connected with the EOI Process;

b. will be given full force and effect despite any prior agreement or representation by the State; and

c. is without prejudice to the rights and discretions given to the State under, and the terms of, the EOI Document.

2 Acknowledgement and Undertaking

a.The Proponent acknowledges and agrees that it has now had the opportunity to satisfy itself in all respects as to the Terms and Conditions (including all requirements) of the EOI Document.

b. The Proponent:

i. agrees to be bound by; and

ii. undertakes to strictly comply, and ensure that its Associates comply, with,

this Disclaimer and all Terms and Conditions and other provisions of the EOI Document, including without limitation the obligations relating to confidentiality and probity set out in the EOI Document.

c. Without limiting clause 2(b), if requested by the State, the Proponent must promptly ensure that it and its Associates execute a Deed Poll giving effect to clause 2(b)(ii).

3 The State’s Rights

3.1 The State’s Rights

The Proponent acknowledges that:

a. if the Proponent fails to comply with its obligations under this Disclaimer, the State may, in its absolute discretion, exclude the Proponent from any further involvement in the EOI Process or the Projects by written notice to the Proponent; and

b. the State’s rights under this clause are without prejudice to any other rights or remedies of the State.

3.2 Disclaimer for benefit of the State

a. This Disclaimer is for the benefit of the State and of any of its Associates.

b. The State may enforce this Disclaimer on behalf of any of its Associates.

3.3 No waiver

a. No failure to exercise and no delay in exercising any right, power or remedy under this Disclaimer will operate as a waiver.

b. Any single or partial exercise of any right, power or remedy will not preclude any other or further exercise of that or any other right, power or remedy.

4 Multiple entities comprising the Proponent

a. This Disclaimer binds any two or more persons comprising the Proponent jointly and severally.

b. Where the Proponent comprises two or more persons, if a person accepting the Disclaimer for or on behalf of itself and any other person, that person warrants that it has authority to bind itself and each other person, and the Proponent.

5 Duration

The obligations and undertakings by the Proponent under this Disclaimer are continuing and will survive the end of the EOI Process.

6 Further assurances

The Proponent must take all steps, execute all documents and do everything reasonably required by the State to give effect to anything contemplated by this Disclaimer.

7 Amendment

This Disclaimer cannot be revoked or otherwise modified without the prior written consent of the State.

8 Governing law

This Disclaimer will be governed by the laws of Queensland and the Proponent submits to the non-exclusive jurisdiction of the courts exercising jurisdiction there.


 

TERMS AND CONDITIONS

1. Interpretation

a. Unless the context requires otherwise, in the EOI Process Documents:

i. the meaning of terms is not limited by specific examples introduced by ‘including’, or ‘for example’, or similar expressions;

ii. a reference to a document is a reference to that document as amended, supplemented or replaced from time to time (including by any addenda issued by the State);

iii. a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, and a regulation, code or other statutory instrument issued under it;

iv. a reference to ‘$’ or ‘AUD’ is a reference to Australian dollars;

v. all references to time are to Australian Eastern Standard Time;

vi. the singular includes the plural and vice versa;

vii. where a word or phrase is defined, its other grammatical forms have a corresponding meaning; and

viii. a reference to a person, corporation, organisation, consortium, trust, partnership, unincorporated body or other entity includes any of them.

b. If any part of any EOI Process Document is invalid or unenforceable, that part will (if possible) be read down to the extent necessary to avoid the invalidity or unenforceability, or alternatively will be deemed deleted and that EOI Process Document will remain otherwise in full force.

c. The provisions of these Terms and Conditions prevail over any other provision of the EOI Document, any other EOI Process Document and any State Supplied Information to the extent of any inconsistency.

2 Warranty of Authority

Where a Proponent is required to sign or submit any document or make any statement or representation, the person signing or submitting the document or making the statement or representation warrants that it has authority to do so from the Proponent (including each entity comprising the Proponent where there is more than one).

3 No Legal Relationship

a. No EOI Process Document is an offer or an invitation to treat in respect of the Project(s) or the Transaction.

b. None of:

i. any EOI Process Document;

ii. any State Supplied Information;

iii. the provision of any other information; or

iv. lodgement of an EOI Proposal,

will give rise to any contractual or other legal relationship between the State, the State's Associates, any Proponent or any other person in respect of the Project(s) or the Transaction.

c. The State's obligations to any Proponent (including as to any aspect of the EOI Process):

i. are limited to only those obligations expressly set out in the EOI Document; and

ii. exclude (to the maximum extent permitted by law) any obligations which may otherwise be implied or imposed on the State under contract, in equity, tort (including negligence), by statute or otherwise.

d. Neither the State nor any of its Associates will be liable to any Proponent, any Proponent's Associates or any other person arising out of the EOI Process or any act or omission of the State or State's Associate under or in connection with the EOI Process, the Transaction or the Project(s) (including the exercise of any right or discretion of the State or the State not acting in accordance with any EOI Process Document or State Supplied Information), whether in contract, equity, tort (including negligence), under statute or otherwise.

4 Reservation of Rights

a. Despite any provision of any EOI Process Document or State Supplied Information, the State may conduct the EOI Process in such manner as it thinks fit and without limitation, the State reserves the right, in its absolute discretion, at any time and without giving reasons, to:

i. change the structure, procedures, scope, nature or timing of the EOI Process (including adding or removing EOI Stages);

ii. change, add to or delete any one or more of the Evaluation Criteria without notification to any Proponent;

iii. take into account in its evaluation of any EOI Proposal any information from its own and other sources (including any conflicts or potential conflicts of interest);

iv. give preference (or different weighting) to any one or more of the Evaluation Criteria compared to other Evaluation Criteria;

v. change the Terms or Conditions applying to the EOI Process (including adding or removing terms or conditions);

vi. seek clarifications or additional information from, or provide clarifications or additional information to, negotiate or deal with, or seek presentations or interviews from, any Proponent, without doing or requiring the same from all or any of the other Proponents;

vii. determine the content, extent and form of any interactions with any Proponents (including the provision of feedback by the State);

viii. conduct due diligence investigations in respect of any Proponent, including to satisfy itself that there are no conflicts of interest or potential conflicts of interest;

ix. request any Proponent to renew, improve or enhance any part of any of its EOI;

x. consult with, or seek assistance from, any of the State's Associates or Project Stakeholders for any purpose; 

xi. terminate any Proponent's (or, where the Proponent is comprised of any two or more entities, any one or more of those entities') further participation in the EOI Process, including where:

A. the Proponent fails to comply with any obligation under any EOI Process Document, including clauses 12 (No Canvassing), 13 (No Collusion), 14 (Conflict of Interest), 16 (State May Rely on Information in Proposals) and 19 (Acceptance) of these Terms and Conditions;

B. there are any conflicts or potential conflicts of interest arising in connection with the Proponent (including any entity comprising the Proponent) or its Associates and the EOI Process, the Transaction or the Project(s)); or

C. there has been any change in the composition of any Proponent at any time;

xii. refuse to allow any entity entry to the EOI Process;

xiii. allow any entity to participate in any EOI Stage or any other part of the Selection Process, whether or not they have submitted an EOI Proposal or previously been excluded from or not selected for progression in the EOI Process;

xiv. re-evaluate any Proponent's EOI Proposal (including where there is any change in the circumstances or composition of any Proponent);

xv. terminate, suspend or reinstate the EOI Process;

xvi. extend any time period for anything to be done under the EOI Process (including the deadline for lodgement of any EOI Proposal);

xvii. not proceed with the Project(s), either at all or in the manner outlined in the EOI Process Documents;

xviii. amend the nature, scope or timing of the Project(s) or Transaction (including the State's Requirements for or Terms and Conditions applying to the Project(s) or Transaction); 

xix. amend the size or boundaries of one or more Sites (if any);

xx. allow the withdrawal, substitution or addition of any Proponent (or any entity comprising a Proponent);

xxi. conduct negotiations with any one or more Proponents after any EOI Proposal has been lodged;

xxii. agree to terms for the implementation of the Project(s) that are different from those contained or proposed in any EOI Process Document;

xxiii. require any additional, amended or replacement EOI Proposal from all or any Proponents;

xxiv. accept an additional, amended or replacement EOI Proposal from any Proponent (whether requested by the State or not), without reference to any other Proponents;

xxv. issue any addenda to any EOI Process Document;

xxvi. consider or accept or refuse to consider or accept any EOI Proposal which:

A. is lodged other than in accordance with the EOI Process Documents;

B. is lodged after the relevant Closing Date for lodgement;

C. does not conform with the EOI Process Documents in any respect;

D. has been lodged by a Proponent who has not complied with the EOI Process Documents; or

E. is otherwise non-conforming in any respect;

xxvii. refuse to consider or reject any or all EOI Proposals;

xxviii. determine or change the existence, nature, scope and timing of any EOI Stages (including the evaluation criteria for any further stage of the Selection Process, which may (but is not required to) include the same Evaluation Criteria as the EOI Document);

xxix. replace, change, add to or delete any part of any EOI Process Document or State Supplied Information;

xxx. publish or otherwise disclose to any person the names of any Proponent, Shortlisted Proponent or Successful Proponent;

xxxi. require Proponents to provide a bid bond or other security including as a condition of becoming a Shortlisted Proponent or continuing participation in the Selection Process;

xxxii. determine the number and identities of Shortlisted Proponents and Successful Proponents at any stage of the Selection Process;

xxxiii. not provide any Proponent with any reason for any actions or decisions it may take, including in respect of the exercise by the State of any or all of its rights or discretions;

xxxiv. require any or all Proponents to enter into a deed in favour of the State in a form acceptable to the State as a condition of becoming a Shortlisted Proponent or continuing participation in the Selection Process;

xxxv. publicly disclose information regarding any EOI Proposal after all EOI Proposals are lodged but before Proponents are shortlisted as Shortlisted Proponents unless the information is marked by the Proponent as, and is reasonably accepted by the State to be, confidential information of the Proponent.

xxxvi. respond or refuse to respond to any question, request for clarification or request for further information by any Proponent;

xxxvii. provide or not provide debriefings to any or all Proponents who are not successful in the EOI Process;

xxxviii. waive any requirement of or obligation under any EOI Process Document, for the benefit of any or all Proponents; and/or

xxxix. take such other action as it considers in its absolute discretion appropriate in relation to the EOI Process, the Selection Process, the Transaction or the Project(s).

b. The State has no obligation to exercise any of its rights or discretions, including under this clause 4 (Reservation of Rights) in any circumstances.

5 Acknowledgement

a. Each Proponent acknowledges that nothing in the EOI Document, any other EOI Process Document, any State Supplied Information or any act or omission of the State or its Associates in connection with the EOI Process will be construed as a guarantee, representation or statement from the State or any of its Associates or create any obligation on the State or any of its Associates, to the effect that:

i. the Proponent will at any time be entitled to continue in the EOI Process or participate in the Further Selection Process or any future processes or procurement activities forming part of the Selection Process or associated with the Project(s);

ii. there has been or will be no material change in the affairs, the operations or status of the State or its Associates; 

iii. there will not be errors, inaccuracy in or omissions from any EOI Process Document or any State Supplied Information;

iv. they have any responsibility to inform any Proponent or any Proponent's Associate of any matter or information coming to their attention which:

A. may affect any matter or information contained or referred to in any EOI Process Document or any State Supplied Information; or

B. means that information is no longer current, accurate or reflects the current intention of the State or its Associates;

v. any diagrams or plans will be accurate or complete or other than only indicative in nature;

vi. the State, any Project Stakeholder or Governmental Agency accepts, endorses or supports the positions put by a Proponent in any EOI Proposal; or

vii. confirms the feasibility or adequacy of any aspect of any EOI Proposal.

b. Information contained or referred to in an EOI Process Document or State Supplied Information:

i. may include reference to another source, and each Proponent must refer to, and interpret the information in the context of, that source; and

ii. may be based on assumptions, and each Proponent must interpret the information subject to those assumptions.

6 Proponent's Fundamental Obligations

Each Proponent must:

a. ensure it has the necessary skills, knowledge, experience and financial capability to deliver the Project(s);

b. fully inform itself of all facts, risks, matters and things relating to its participation in the Selection Process or the delivery of the Project(s); and

c. participate in the Selection Process entirely at its own cost and risk.

7 Confidentiality

7.1 Proponent's Confidentiality

a. In this clause 7 (Confidentiality), ‘Confidential Information’ means:

i. any information regarding or contained in the EOI Document;

ii. the Proponent being invited to participate in, and/or participating in, the EOI Process;

iii. any information provided by the State or its Associates to the Proponent or its Associates in connection with the EOI Process;

iv. any EOI Process Document and any matter referred to in an EOI Process Document;

v. any State Supplied Information and any matter referred to in the State Supplied Information;

vi. details of any EOI Proposal;

vii. the existence, nature or terms of the Selection Process;

viii. the status of the Selection Process (including details of discussions or negotiations with the State or its Associates) at any time; and

ix. all other information (regardless of its form, the medium in which it is stored or whether it is an original, reproduction or an extract) which:

A. relates, directly or indirectly to the EOI Process, the Project(s) or the Transaction (including any information provided in QTenders or at any presentation, information or interactive session, if any); and

B. is disclosed or communicated by or on behalf of the State or its Associates to the Proponent, the Proponent's Associates or someone on their behalf whether before, on or after the date of the EOI Document.

b. In this clause 7 (Confidentiality), ‘Purpose’ means preparation of any EOI Proposal and participating in the EOI Process.

c. Each Proponent receives the Confidential Information in strict confidence and must maintain strict secrecy about the Confidential Information and must not, and must ensure none of its Associates:

i. disclose any Confidential Information to any person; or

ii. copy, use or otherwise deal with such information for any purpose,

except:

iii. in accordance with the EOI Document;

iv. as otherwise permitted or directed in writing by the State; or

v. subject to paragraph (d), to its Associates.

d. Each Proponent must limit access to the Confidential Information to its Associates who have a specific need to know or have access to the Confidential Information for the Purpose and who have been made aware of and are obliged to treat the Confidential Information as confidential to the same extent as provided in the EOI Document.

e. This clause 7 (Confidentiality) will not apply to any part of the Confidential Information which:

i. is or becomes generally available to the public other than as a result of disclosure by the Proponent, its Associates or a person receiving that information from the Proponent or its Associates, or a breach by the Proponent of the EOI Document; or

ii. is required by law, any applicable listing rules or accounting standards or the order of any court, to be disclosed to a third party (provided that, as soon as possible after a Proponent becomes aware that it may be required to disclose Confidential Information, and before the Confidential Information is disclosed, the Proponent consults with the State as to the nature of the requirement to disclose, and the extent of disclosure of, Confidential Information).

f. To the extent that any information is to be disclosed to a Proponent in connection with the Selection Process and it includes confidential information of an entity other than the State, each Proponent must enter into a separate confidentiality deed in respect of that confidential information before the relevant information is issued, disclosed or made available to the Proponent.

7.2 No Public Statements

Each Proponent must not, and must ensure its Associates do not, make any public statement about or in connection with the Projects, the Transaction, the Selection Process or any matter the subject of the Confidential Information, without the State's consent. 

7.3 State's Confidentiality

a. The Proponent acknowledges that each EOI Proposal submitted by a Proponent may be disclosed by the State to its Associates and Project Stakeholders.

b. Subject to the terms of the EOI Document, all documents and information provided in connection with the EOI Process by a Proponent which is marked as, and reasonably accepted by the State to be, confidential information will be stored securely and held in confidence, except to the extent that:

i. disclosure is permitted by paragraph (a);

ii. disclosure is required:

A. for audit or legal purposes;

B. by law; or

C. by established government policies, procedures or protocols;

iii. disclosure is required or envisaged by the EOI Document; or

iv. the information is already in the public domain.

7.4 Proponent's Queries

Despite any other provision in the EOI Document:

a. questions, requests for clarification or requests for further information by any Proponent and the relevant responses may be provided by the State to all or any other Proponents;

b. a Proponent may request that any question, request for clarification or request for further information not be disclosed to other Proponents, but the State has absolute discretion in determining whether it will disclose that question, request for clarification or request for further information and the relevant response to all or any other Proponents;

c. if a Proponent has requested that any question, request for clarification or request for further information not be disclosed to other Proponents and the State decides it will disclose that question, request for clarification or request for further information and the relevant response to other Proponents, the Proponent will first be given the opportunity to withdraw the question, request for clarification or request for further information, and the State may only circulate it and the response if the Proponent continues to request a response to that question, request for clarification or request for further information; and

d. nothing in this clause 7 (Confidentiality) will be taken to limit the State's rights or discretions under the EOI Document (including as to the issue of any addendum).

8 Privacy

a. In this clause 8 (Privacy), ‘Personal Information’ has the meaning given to that term in the Information Privacy Act 2009 (Qld).

b. Personal Information provided by Proponents may, in the course and for the purposes of the EOI Process, be disclosed to the State's Associates or Project Stakeholders.

c. If any Proponent collects or has access to any Personal Information in connection with the Selection Process or the Project(s), the Proponent must comply, in relation to that Personal Information:

i. (as if it were the State) with the Information Privacy Principles in the Information Privacy Act 2009 (Qld); and

ii. with all reasonable directions of the State.

9 Costs to be borne by Proponents

Without limiting clause 3(c) (No Legal Relationship) of these Terms and Conditions but despite any other provision of any EOI Process Document or State Supplied Information, no Proponent or its Associates shall have any claim of any kind whatsoever against the State or its Associates for any costs, expenses, losses or liabilities suffered or incurred by the Proponent (or its Associates) in preparing and submitting any EOI Proposal (including any amendments, requests for further information by the State, attendance at meetings or involvement in discussion) or otherwise in connection with any EOI Proposal, the Selection Process or the Project(s) despite any act or omission of the State under or in connection with the EOI Process, the Transaction or the Project(s) (including the exercise of any right or discretion of the State or the State not acting in accordance with any EOI Process Document).

10 No Warranties

a. Any information contained or referred to in any EOI Process Document or any State Supplied Information:

i. has been or will be provided for each Proponent's convenience only;

ii. does not, and does not purport to, comprehensively describe the scope of the Project(s) or contain all of the information that Proponents may require in reaching decisions in relation to whether or not to submit an EOI Proposal;

iii. may not be up-to-date or otherwise reflect the intentions of the State.

b. Neither the State nor the State's Associates:

i. assume any responsibility or duty of care in respect of; or

ii. warrant, guarantee or make any representation as to,

any information contained or referred to in any EOI Process Document or any State Supplied Information (including information made available in QTenders, information or interactive session), including its accuracy, completeness, currency, suitability or adequacy for the purpose of any EOI Proposal, the Transaction or the Project(s).

c. Each Proponent must:

i. not, and must ensure its Associates do not, rely upon or use (or allow any other person to rely upon or use) any information contained or referred to in any EOI Process Document or State Supplied Information for any purpose;

ii. undertake its own independent investigations into, appraisal of, and obtain its own independent legal, financial, taxation and other advice in relation to, any information contained or referred to in any EOI Process Document or any State Supplied Information, the opportunity to participate in the Project(s), the risks associated with the Project(s) and any other information made available to it in connection with the EOI Process, Transaction or Project(s).

d. No Proponent nor Proponent's Associate will have any claim arising from or in connection with, and neither the State nor the State's Associates will have any liability whether in contract, equity, tort (including negligence), under statute or otherwise arising from or in connection with:

i. any omission from, inaccuracy in, non-suitability or other inadequacy of any information contained or referred to in any EOI Process Document or any State Supplied Information;

ii. any reliance by a Proponent or a Proponent's Associate on:

A. the contents of, or representations (express or implied) or information (including forecasts, estimates or projections) contained or referred to in, any EOI Process Document or any State Supplied Information or any other information or documents which may be made available to a Proponent in connection with the EOI Process or the Project(s); or

B. any other written or oral communications made or provided by (or not made or provided by) the State or its Associates; or

iii. any information or documents in the knowledge or possession of the State or its Associates which are relevant to the Project(s), the Transaction, an EOI Proposal or the Selection Process but are not disclosed by the State or its Associates.

11 Ownership of EOI Proposals

a. Subject to paragraph (b), each EOI Proposal becomes the property of the State on submission to the State, and will not be returned to Proponents.

b. As between the State and the Proponent, any intellectual property rights that may exist in any EOI Proposal will remain the property of the relevant Proponent.

c. Where:

i. the Proponent clearly identifies the elements which contain intellectual property rights; and

ii. the State accepts (acting reasonably), that those identified elements are subject to intellectual property rights,

the State will only use those elements in accordance with the licence granted pursuant to paragraph (d), but may use any other part of the EOI Proposal for any purpose.

d. By providing an EOI Proposal, the Proponent, for itself and as agent for the other relevant parties, grants to the State and its Associates a non-exclusive, fully paid up and royalty free, perpetual, assignable licence to copy, adapt, modify, disclose or do anything else to (and to the extent) the State determines necessary in its absolute discretion, all material that contains any intellectual property rights of the Proponent or any other person contained in the EOI Proposal, for any purposes in connection with the Selection Process, including the State evaluating and clarifying EOI Proposals and Further Selection Process Proposals and the carrying out of the Project(s) by the Proponent.

12 No Canvassing

Except as expressly permitted by an EOI Process Document, each Proponent and its Associates must not contact the State, its Associates, any Governmental Agency or any of their advisers, with a view to providing or obtaining information in respect of any part of the Selection Process, any EOI Proposal, the Transaction or the Project(s) or attempting to support or enhance their prospect of being selected as a Shortlisted Proponent or Successful Proponent.

13 No Collusion

Each Proponent and its Associates must not engage in any collusive tendering, anti-competitive conduct or any other similar conduct with (including accepting any commission or offer of any commission to or from) any other Proponent, any other Proponent's Associates or any other person in relation to the preparation or lodgement of an EOI Proposal.

14 Conflict of Interest

a. Each Proponent must declare, and submit with the Proponent's initial EOI Proposal, any conflict of interest or potential conflict of interest it or any of its Associates has in connection with the EOI Process or its potential involvement in the Project(s). 

b. Each Proponent must also immediately inform the State of any actual or potential conflicts (including as they affect an Associate) that arise after lodgement of the initial EOI Proposal.

c. Each Proponent confirms that it, its Associates and any other person who participates in any EOI Stage consent to:

i. security, probity and financial checks being conducted;

ii. investigations into commercial structure, business and credit history, prior contract compliance and any criminal records or pending charges;

iii. reference checks (whether or not with nominated referees); and

iv. site visits at the Proponent's or any Proponent's Associates current operations or construction sites. 

d. Each Proponent will, if requested by the State, obtain such consents from individuals as are required by law to be obtained to the activities referred in paragraph (b).

15 Return or Destruction of Information

a. The State reserves the right, in its absolute discretion, at any stage, to require that any or all EOI Process Documents and State Supplied Information (and all copies or reproductions of them) be either destroyed by all recipients of them or returned to the State as the State may direct (unless otherwise required by law).

b. The State may at any time require that a Proponent provide evidence (in a form satisfactory to the State) that it has fully complied with its obligations under this clause 15 (Return or Destruction of Information).

16 State May Rely on Information in Proposals

a. By submitting an EOI Proposal, each Proponent:

i. warrants to the State and its Associates that the information contained in each EOI Proposal lodged by it:

A. is accurate and complete as at the date on which it is submitted and may be relied on by the State in determining whether or not to shortlist the Proponent or select the Proponent as a Successful Proponent; and

B. complies with the State's Requirements and is not based on any assumptions, except to the extent clearly marked as a departure from the State's Requirements or an assumption (as applicable) in the EOI Proposal;

ii. undertakes to immediately advise the State in writing if it becomes aware of any change in circumstances which causes the information contained in any EOI Proposal lodged by it to become inaccurate or incomplete in a material respect;

iii. acknowledges that the State will rely on the above warranty and undertaking when evaluating any EOI Proposal lodged by it; and

iv. acknowledges that the State may suffer loss or damage if the Proponent breaches the warranty and undertaking.

b. Without limiting paragraph (a), if the Proponent’s composition changes at any time after submission of the EOI Proposal:

i. the Proponent must immediately notify the State in writing of this change; and

ii. the State may require the Proponent, or, if the Proponent is comprised of a consortium of one or more entities, any entities forming part of the consortium, to duly execute a Deed Poll giving effect to clause 2(b)(ii) of the Disclaimer.

c. Except to the extent expressly permitted by the State in writing, each Proponent must ensure that each EOI Proposal submitted by it is complete and includes all relevant information for the State's consideration of that proposal without reference to any prior EOI Proposal.

17 No Appeal

No Proponent will have a right to appeal to the State against any decisions made or rights exercised arising in connection with the Selection Process or the Project(s).

18 Variations to EOI Proposals

A Proponent must not replace, amend or supplement any EOI Proposal lodged by it unless invited to do so by the State.

19 Acceptance

Each Proponent (including where a Proponent is comprised of one or more entities, each of those entities) acknowledges and accepts the Disclaimer and each of the Terms and Conditions of the EOI Document (which appear in full following the Disclaimer) by downloading the EOI Document from QTenders.

20 State's Discretion and Powers Not Fettered

Each Proponent acknowledges:

a. neither the State nor any of its Associates gives any warranty or makes any representation as to the way the State, its Associates or any other Governmental Agency may exercise any discretion relevant to any aspect of the Selection Process, the Transaction or the Project(s);

b. nothing in any EOI Process Document or State Supplied Information fetters the:

i. exercise by the State, its Associates or any other Governmental Agency of any discretion whether to grant, grant subject to conditions, or refuse:

A. any approval or authorisation; or

B. any licence, lease, or tenure; or

ii. exercise by the State, its Associates or any other Governmental Agency of any executive or statutory right, discretion or other power whatsoever; and

c. wherever the State, its Associate or any other Governmental Agency has a discretion or their consent or approval is required for anything, such decision, consent or approval may be given or withheld or delayed in the State's or its Associate's or any Governmental Agency's (as applicable) absolute discretion without giving any reason and may be given subject to such conditions as the State, its Associates or any Governmental Agency may determine.

21 Application of the EOI Document

Except to the extent the State expressly agrees or notifies otherwise in writing, these Terms and Conditions and the other provisions of the EOI Document, each EOI Process Document and the Disclaimer shall continue to apply to any process that the State may undertake (including following the close of the EOI Stages or completion or termination of the EOI Process) in connection with the selection of a Shortlisted Proponent or Successful Proponent or the entering into of any agreement relating to the Project(s) (including any further selection process or any negotiation or dealings with any person (including the Proponent)) and for the purposes of applying these Terms and Conditions and the other provisions of the EOI Document, any EOI Process Document or the Disclaimer, any such process will be taken to form part of the EOI Process.

22 Proponent's Legal and Ethical Obligations

Each Proponent must:

a. satisfy itself, by its own enquiries and at its own cost and risk, as to any requirements for or in connection with the Sites (if any), including in respect of any lawful requirements to complete the Project(s);

b. prior to lodging any EOI Proposal, obtain or satisfy itself as to its ability to obtain any approval, qualification, registration or licence required to be held by the Proponent to enable it to lawfully:

i. perform and satisfy the commitments set out in its EOI Proposal;

ii. undertake the Transaction; and

iii. carry out the Project(s);

c. in preparing and lodging any EOI Proposal, comply with all applicable laws and legal requirements applying to its participation in the Selection Process and acceptable probity standards; and

d. without limiting paragraphs (b) or (c) or clauses 12 (No Canvassing) or 13 (No Collusion) of these Terms and Conditions:

i. not disclose any part of any EOI Proposal to any other Proponent or their Associates;

ii. not enter any contract, arrangement or understanding with any other Proponent or their Associates or any trade, industry or other association to the effect that the Proponent, if successful, will confer any benefit on any other party except as specifically set out in its EOI Proposal;

iii. not offer any incentives, gifts or other favours to any person who is in any way:

A. involved with;

B. capable of providing technical or other advice to those who are involved in any way with; or

C. in a position to influence,

the evaluation of any EOI Proposal or Further Selection Process Proposal (including any person closely related or associated with those persons or entities);

iv. not enter any anticompetitive contract, arrangement or understanding with any other party in connection with the Proponent's proposal;

v. not solicit public support for their bid, or attempt to influence public opinion in respect of the Selection Process, another Proponent or their EOI Proposals or Further Selection Process Proposals (whether directly or indirectly); and

vi. not do anything that may bring the State, its Associates, the Selection Process or any aspect of it into disrepute.

23 Approvals

a. Each Proponent is fully responsible for ensuring that all necessary approvals are obtained and applicable legislation, approvals and policies are complied with.

b. Except to the extent expressly provided in the EOI Document, the State assumes no responsibility for, and makes no representation in relation to:

i. the grant of; or

ii. process the Proponent may be required to follow in relation to,

any approval, including the timing or conditions of any approval.

24 Communication and Stakeholders

a. Each Proponent accepts that:

i. no Project Stakeholder, Governmental Agency or Associate of the State is authorised by the State to:

A. make any statement or representation or provide any information under or in connection with the EOI Process or the Project(s) on behalf of the State (unless it is done by the Transaction Manager in accordance with the EOI Document); or

B. do anything that binds, or imposes any obligation on, the State in relation to the EOI Process or the Project(s);

ii. each Proponent must satisfy itself by its own enquiries as to any requirements of any Governmental Agency, Project Stakeholder and other stakeholder for or in connection with the Project(s);

iii. except as expressly stated in the EOI Document, each Proponent must assume responsibility for satisfying all lawful requirements (including in relation to any approvals or other authorisations) of any Governmental Agency, Project Stakeholder and other stakeholder for or in connection with the Project(s), at its own cost and risk; and

iv. the role of any Governmental Agency and Project Stakeholder in the EOI Process is strictly limited to the role expressly provided for by the EOI Process Documents.

b. Each Proponent will be taken to have authorised its Proponent's Representative to:

i. receive any directions or notices;

ii. give any notices or lodge any information or materials;

iii. negotiate and agree any matter or thing; and

iv. exercise any discretions or make any determinations to be exercised or made,

under or in connection with the EOI Process, on the Proponent’s behalf.

c. All notices and other communication from a Proponent or a Proponent's Associate in connection with the EOI Process must be in writing, in English and delivered to the Transaction Manager at the address identified in the EOI Document or any alternate address otherwise notified by the State.

25 Sites

a. This clause 25 (Sites) applies to the extent a Proponent or any of its Associates are required or elect to be on, or near the vicinity of, the Sites in connection with the EOI Process.

b. Each Proponent must, and must ensure its Associates:

i. only access the Sites or any premises or facilities on the Sites in accordance with the State's or the State's Associates' directions (including those on the Sites) in connection with the Sites (including in connection with access to or use of the Sites);

ii. not enter upon any place notified by the State to the Proponent in writing as a place to which the Proponent or its Associates is not to have access;

iii. wear adequate personal protective equipment and complete any required site induction, if applicable; and

iv. access the Sites at its own risk.

c. The State may, in its absolute discretion, impose conditions on a Proponent's right to access the Sites, including that the Proponent and its Associates sign a separate site access agreement on terms satisfactory to the State.

26 Governing Law

The EOI Process Documents are governed by the laws of Queensland.

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Section 2

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users Mr David Cameron
Type Technical
email TCWProcurement@ditid.qld.gov.au

Section 3

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Section 4

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Section 5

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