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Wangetti Trail Registration of Interest

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

Expression of Interest

Status: Closed
Mega Category: Building construction and maintenance
Number: WTROI
Released: Thu, 27 Jun 2019 at 12:00AM Brisbane, Queensland
Closed: Thu, 25 Jul 2019 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 register your interest in adventure and nature based tourism experiences along the Wangetti Trail (soon to be constructed).

The Registration of Interest (ROI) stage is the first of four stages of the market process. Interested Proponents have the opportunity to develop and operate eco-accommodation and tour guidance in Tropical North Queensland. Additionally, Interested Proponents have the option of providing complementary commercial ecotourism activities as part of their model.

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

  • national park land for eco-accommodation development;
  • 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; and
  • a coordinated “one government” approach to comply with other government requirements.

NB. All parties who access the Registration of Interest documentation 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 Interested Proponent, means its Related Entities, officers, employees, advisers, contractors, consultants and agents (including any member entity of that Interested 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.

Department

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

Disclaimer

The disclaimer for the ROI Process appearing on the QTenders website which Proponents accept by accessing the ROI Invitation.

EOI

Expression of Interest.

EOI Invitation

Any request by the State stated to be in connection with this ROI Invitation and that invites the lodgement of an EOI proposal.

EOI Process

The process to be undertaken for the selection of each Shortlisted Proponent for the Project, including:

a. the issue of each EOI Invitation;

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.

Evaluation Criteria

The evaluation criteria for any ROI Response as set out or referred to in section 4.6 (Evaluation).

Further Selection Process

The process to be undertaken for the selection of a Successful Proponent, following the completion of the ROI Process (including any EOI Process).

Further Selection Process Proposal

Any proposal or information to be lodged or lodged in connection with any Further Selection Process Proposal Request.

Further Selection Process Proposal Request

The formal document issued or to be issued by the State in connection with the commencement of a Further Selection Process.

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.

Interested Proponent

Any entity who proposes to lodge or lodges an ROI Response registering interest in participating as a Proponent in the EOI Process for the delivery of the Project.

Interested Proponent's Representative

In relation to any Interested Proponent, the person nominated as its authorised representative in its ROI Response or such other person notified in writing to the Transaction Manager by the Interested Proponent to be its authorised representative. 

Preferred Proponent

The Proponent(s) selected to proceed to the completion stage of the Selection Process.

Probity Adviser

The probity adviser referred to in section 4.4 (Probity).

Project

The Wangetti Trail project described in section 1 (Introduction), section 2 (Vision and Objectives) and section 3 (Project), as it may be varied by the State in any subsequent ROI Process Document.

Project Stakeholder

Any stakeholder or entity which the State notifies Interested Proponents is deemed a Project Stakeholder for the purposes of the ROI Process.

Proponent

Any entity who is invited by the State to participate in the EOI Process for the delivery of the Project.

QTenders

The QTenders website for Queensland Government tender processes 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 and any entity that would be a Related Entity of that trustee; or

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

RFDP

Request for Detailed Proposal.

ROI

Registration of Interest.

ROI Invitation

This document (including the Terms and Conditions and all other schedules and attachments) and any addenda issued by the State in connection with the ROI Process.

ROI Process

The process to be undertaken for the selection of Proponents for the EOI Process for delivery of the Project.

ROI Process Documents

Each of:

a. this ROI Invitation;

b. the signed ROI Response form;

c. the Disclaimer; and

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

ROI Response

The ROI Response to be completed by an Interested Proponent in the form set out in Appendix B (ROI Response).

ROI Response Lodgement Deadline

2:00 p.m. (AEST) 25 July 2019.

Selection Process

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

Shortlisted Proponent

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

Site

The site for the Project described in section 3.2 (if applicable).

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 Interested Proponent or any Interested Proponent's Associate by or on behalf of the State in connection with the ROI Process (including via QTenders, at an information session or during a Site visit, if any); or

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

State's Adviser

Each of the entities set out in section 4.5.2 (State's Advisers), the Probity Adviser and any other professional adviser engaged by the State in connection with the ROI Process which the State notifies Interested Proponents is to be a State's Adviser.

State's Objectives

The objectives referred to in Section 2.2 (State’s Objectives) or which the State notifies Interested Proponents is a State's Objective in any ROI Process Document.

State's Requirements

The State's requirements for the Project, the ROI Process, any ROI Response, the Selection Process, the Transaction or the Transaction Documents as described in this ROI Invitation or notified by the State in any ROI Process Document.

State’s Vision

The vision referred to in Section 2.1 (State’s Vision) or which the State notifies Interested Proponents is a State's Objective in any ROI Process Document.

Subsidiary

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

Successful Proponent

The Preferred Proponent(s) ultimately selected to proceed with the Project at the conclusion of the Selection Process.

Terms and Conditions

The terms and conditions set out in Appendix A.

Transaction

The transactions and processes to be prescribed by the State giving effect to the Project.

Transaction Documents

The documents to be issued and approved by the State documenting the Transaction.

Transaction Manager

The individual referred to in section 4.5.1 (Transaction Manager) as the Transaction Manager (or such other person notified to Interested Proponents by the State).

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 ROI 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 ROI Process Document will remain otherwise in full force.

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

1.3 Priorities

The Interested Proponent acknowledges that this Disclaimer:

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

2 Acknowledgement and Undertaking

a.The Interested Proponent acknowledges and agrees that it has now had the opportunity to satisfy itself in all respects as to the Terms and Conditions (seen below the Disclaimer) of the ROI Invitation.

b. The Interested 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 of the ROI Invitation, including without limitation the obligations relating to confidentiality and probity.

c. Without limiting clause 2(b), if requested by the State, the Interested 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 Interested Proponent acknowledges that:

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

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

b. Where the Interested 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 Interested Proponent.

5 Duration

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

6 Further assurances

The Interested 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 Interested Proponent submits to the non-exclusive jurisdiction of the courts exercising jurisdiction there.

 

TERMS AND CONDITIONS (using the same defined terms as those set out in the Disclaimer)

1. Interpretation

(a) Unless the context requires otherwise, in the ROI 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 ROI 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 ROI Process Document will remain otherwise in full force.

(c) The provisions of this Appendix A (Terms and Conditions) of this ROI Invitation prevail over any other provision of this ROI Invitation, any other ROI Process Document and any State Supplied Information to the extent of any inconsistency.

2. Warranty of Authority

Where an Interested 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 Interested Proponent (including each entity comprising the Interested Proponent where there is more than one).

3. No Legal Relationship

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

(b) None of:

(i) any ROI Process Document;

(ii) any State Supplied Information;

(iii) the provision of any other information; or

(iv) lodgement of an ROI Response,

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

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

(i) are limited to only those obligations expressly set out in this ROI Invitation; 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 Interested Proponent, any Interested Proponent's Associates or any other person arising out of the ROI Process or any act or omission of the State or State's Associate under or in connection with the ROI Process, the Transaction or the Project (including the exercise of any right or discretion of the State or the State not acting in accordance with any ROI 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 ROI Process Document or State Supplied Information, the State may conduct the ROI 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 ROI Process;

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

(iii) take into account in its evaluation of any ROI Response 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 and/or Conditions applying to the ROI Process (including adding or removing terms and/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 Interested Proponent, without doing or requiring the same from all or any of the other Interested Proponents;

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

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

(ix) request any Interested Proponent to renew, improve, enhance or amend any part of any of its ROI Response;

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

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

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

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

(C) there has been any change in the composition of any Interested Proponent at any time;

(xii) refuse to allow any entity entry to the ROI Process;

(xiii) allow any entity to participate in any stage of the ROI Process or any other part of the Selection Process, whether or not they have submitted an ROI Response or previously been excluded from or not selected for progression in the ROI Process;

(xiv) re-evaluate any Interested Proponent's ROI Response (including where there is any change in the circumstances or composition of any Interested Proponent);

(xv) terminate, suspend or reinstate the ROI Process;

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

(xvii) not proceed with the Selection Process or the Project, either at all or in the manner outlined in the ROI Process Documents;

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

(xix) nominate another location for the Site or amend the size or boundaries of the Site described in this ROI Invitation (if any);

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

(xxi) conduct negotiations with any one or more Interested Proponents after any ROI Response has been lodged;

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

(xxiii) require any additional, amended or replacement ROI Response from all or any Interested Proponents;

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

(xxv) issue any addenda to any ROI Process Document;

(xxvi) consider or accept or refuse to consider or accept any ROI Response which:

(A) is lodged other than in accordance with the ROI Process Documents;

(B) is lodged after the ROI Response Lodgement Deadline;

(C) does not conform with the ROI Process Documents in any respect;

(D) has been lodged by an Interested Proponent who has not complied with the ROI Process Documents; or

(E) is otherwise non-conforming in any respect;

(xxvii) refuse to consider or reject any or all ROI Responses;

(xxviii) determine or change the existence, nature, scope and timing of any stage of the Selection Process (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 this ROI Invitation;

(xxix) replace, change, add to or delete any part of any ROI Process Document or State Supplied Information;

(xxx) publish or otherwise disclose to any person the names of any Interested Proponent, or 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 Interested 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 Interested Proponents to enter into a deed in favour of the State in a form acceptable to the State as a condition of becoming a Proponent or continuing participation in the Selection Process;

(xxxv) publicly disclose information regarding any ROI Response after all ROI Responses are lodged but before Interested Proponents are shortlisted as Proponents unless the information is marked by the Interested Proponent as, and is reasonably accepted by the State to be, confidential information of the Interested Proponent;

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

(xxxvii) provide or not provide debriefings to any or all Interested Proponents who are not successful in the ROI Process;

(xxxviii) waive any requirement of or obligation under any ROI Process Document, for the benefit of any or all Interested Proponents; or

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

(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 Interested Proponent acknowledges that nothing in this ROI Invitation, any other ROI Process Document, any State Supplied Information or any act or omission of the State or its Associates in connection with the ROI 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) in the case of Interested Proponents, the Interested Proponent will at any time be entitled to continue in the ROI 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;

(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 ROI Process Document or any State Supplied Information;

(iv) they have any responsibility to inform any Interested Proponent or any Interested 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 ROI 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 an Interested Proponent in any ROI Response; or

(vii) confirms the feasibility or adequacy of any aspect of any ROI Response.

(b) Information contained or referred to in an ROI Process Document or State Supplied Information:

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

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

6. Interested Proponent's Fundamental Obligations

Each Interested Proponent must:

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

(b) participate in the Selection Process entirely at its own cost and risk;

(c) comply with the requirements of the ROI Invitation and the provisions of this Appendix A (Terms and Conditions); and

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

7. Confidentiality

7.1 Interested Proponent's Confidentiality

(a) In this clause 7 (Confidentiality), “Confidential Information” means:

(i) any information regarding or contained in this ROI Invitation;

(ii) the Interested Proponent being invited to participate in, and/or participating in, the ROI Process;

(iii) any information provided by the State or its Associates to the Interested Proponent or its Associates in connection with the ROI Process;

(iv) any ROI Process Document and any matter referred to in an ROI Process Document;

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

(vi) details of any ROI Response;

(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 ROI Process, the Project or the Transaction (including any information provided via 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 Interested Proponent, the Interested Proponent's Associates or someone on their behalf whether before, on or after the date of this ROI Invitation.

(b) In this clause 7 (Confidentiality), “Purpose” means preparation of an ROI Response and participating in the ROI Process.

(c) Each Interested 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 this ROI Invitation;

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

(v) subject to clause 7.1(d), to its Associates.

(d) Each Interested 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 this ROI Invitation.

(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 Interested Proponent, its Associates or a person receiving that information from the Interested Proponent or its Associates, or a breach by the Interested Proponent of this ROI Invitation; or

(ii) is required by law, any applicable stock exchange 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 an Interested Proponent becomes aware that it may be required to disclose Confidential Information, and before the Confidential Information is disclosed, the Interested 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 an Interested Proponent in connection with the Selection Process and it includes confidential information of an entity other than the State, each Interested 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 Interested Proponent.

7.2 No Public Statements

Each Interested Proponent must not, and must ensure its Associates do not, make any public statement about or in connection with the Project, 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) Each Interested Proponent acknowledges that each ROI Response submitted by it may be disclosed by the State to its Associates and Project Stakeholders.

(b) Subject to the terms of this ROI Invitation, all documents and information provided in connection with the ROI Process by an Interested 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 clause 7.3(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 this ROI Invitation; or

(iv) the information is already in the public domain.

7.4 Interested Proponent's Queries

Despite any other provision in this ROI Invitation:

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

(b) an Interested Proponent may request that any question, request for clarification or request for further information not be disclosed to other Interested 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 Interested Proponents;

(c) if an Interested Proponent has requested that any question, request for clarification or request for further information not be disclosed to other Interested Proponents and the State decides it will disclose that question, request for clarification or request for further information and the relevant response to other Interested Proponents, the Interested 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 Interested 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 this ROI Invitation (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 Interested Proponents may, in the course and for the purposes of the ROI Process, be disclosed to the State's Associates or Project Stakeholders.

(c) If any Interested Proponent collects or has access to any Personal Information in connection with the Selection Process or the Project, the Interested 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 Interested Proponents

Without limiting clause 3 (No Legal Relationship) of these Terms and Conditions but despite any other provision of any ROI Process Document or State Supplied Information, no Interested 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 Interested Proponent (or its Associates) in preparing and submitting any ROI Response (including any amendments, requests for further information by the State, attendance at meetings or involvement in discussion) or otherwise in connection with any ROI Response, the Selection Process or the Project despite any act or omission of the State under or in connection with the ROI Process, the Selection Process, the Transaction or the Project (including the exercise of any right or discretion of the State or the State not acting in accordance with any ROI Process Document).

10. No Warranties

(a) Any information contained or referred to in any ROI Process Document or any State Supplied Information:

(i) has been or will be provided for each Interested Proponent's convenience only;

(ii) does not, and does not purport to, comprehensively describe the scope of the Selection Process or the Project or contain all of the information that Interested Proponents may require in reaching decisions in relation to whether or not to submit an ROI Response; and

(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 in any ROI Process Document or any State Supplied Information (including information made available via QTenders, information or interactive session or during a Site visit, if any), including its accuracy, completeness, currency, suitability or adequacy for the purpose of any ROI Response, the Transaction or the Project.

(c) Each Interested 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 ROI Process Document or State Supplied Information for any purpose; and

(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 ROI Process Document or any State Supplied Information, the opportunity to participate in the Project, the risks associated with the Project and any other information made available to it in connection with the ROI Process, Transaction or Project.

(d) No Interested Proponent nor Interested 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 ROI Process Document or any State Supplied Information;

(ii) any reliance by an Interested Proponent or an Interested 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 ROI Process Document or any State Supplied Information or any other information or documents which may be made available to an Interested Proponent in connection with the ROI Process, Selection Process more generally, the Project; 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, the Transaction, an ROI Response or the Selection Process but are not disclosed by the State or its Associates.

11. Ownership of ROI Responses

(a) Subject to clause 11(b), each ROI Response becomes the property of the State on submission to the State, and will not be returned to Interested Proponents.

(b) As between the State and the Interested Proponent, any intellectual property rights that may exist in any ROI Response will remain the property of the relevant Interested Proponent.

(c) Where:

(i) the Interested 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 clause 11(d), but may use any other part of the ROI Response for any purpose.

(d) By providing an ROI Response, the Interested Proponent, for itself and as agent for the other relevant parties, grants to the State and its Associates a non-exclusive, worldwide, fully paid up and royalty free, perpetual, assignable licence to sublicense, copy, adapt, modify, disclose or do anything else to (and to the extent) the State determines necessary in its absolute discretion, all intellectual property rights of the Interested Proponent or any other person which exist in the ROI Response, for any purpose in connection with the Selection Process, including the State evaluating and clarifying ROI Responses and Further Selection Process Proposals.

12. No Canvassing

Except as expressly permitted by an ROI Process Document, each Interested 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 ROI Response, the Transaction or the Project or attempting to support or enhance their prospect of being selected as a Proponent, Shortlisted Proponent or Preferred Proponent.

13. No Collusion

Save for communications between Interested Proponents relating to the formation of consortia undertaken strictly in accordance with the requirements of the ROI Invitation and the provisions of this Appendix A (Terms and Conditions), each Interested 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 Interested Proponent, any other Interested Proponent's Associates or any other person in relation to the preparation or lodgement of an ROI Response.

14. Conflict of Interest

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

(b) Each Interested 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 ROI Response.

(c) Each Interested Proponent confirms that it, its Associates and any other person who participates in any stage of the ROI Process 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 Interested Proponent's or any Interested Proponent's Associates current operations or construction sites. 

(d) Each Interested 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 clause 14(c).

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 ROI 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 an Interested 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 ROI Responses

(a) By submitting an ROI Response, each Interested Proponent:

(i) warrants to the State and its Associates that the information contained in each ROI Response 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 an Interested Proponent as an accepted Proponent for the EOI Process; 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 ROI Response;

(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 ROI Response 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 ROI Response lodged by it; and

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

(b) Without limiting clause 16(a), if the Interested Proponent’s composition changes at any time after submission of the ROI Response:

(i) the Interested Proponent must immediately notify the State in writing of this change; and

(ii) the State may require the Interested Proponent, or, if the Interested Proponent is comprised of a consortium of one or more entities, any entities forming part of the consortium, to give notice of its or their acceptance of the Disclaimer and/or Terms and Conditions and/or duly execute a further ROI Response.

(c) Except to the extent expressly permitted by the State in writing, each Interested Proponent must ensure that each ROI Response submitted by it is complete and includes all relevant information for the State's consideration of that response.

17. No Appeal

No Interested 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.

18. Variations to ROI Responses

An Interested Proponent must not replace, amend or supplement any ROI Response lodged by it unless invited to do so by the State.

19. Acceptance

Each Interested Proponent (including where an Interested Proponent is comprised of one or more entities) acknowledges and accepts the Disclaimer and each of the Terms and Conditions of this ROI Invitation (which appear in full following the Disclaimer) by accessing this ROI Invitation from QTenders.

20. State's Discretion and Powers Not Fettered

Each Interested 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;

(b) nothing in any ROI 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 this ROI Invitation

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

22. Interested Proponent's Legal and Ethical Obligations

Each Interested Proponent must:

(a) in preparing and lodging any ROI Response, comply with all applicable laws and legal requirements applying to its participation in the Selection Process and acceptable probity standards; and

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

(i) not disclose any part of any ROI Response to any other Interested Proponent or their Associates;

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

(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 ROI Response 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 Selection Process or Project;

(v) not solicit public support for their bid, or attempt to influence public opinion in respect of the Selection Process, another Interested Proponent or their ROI Response 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 Interested 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 this ROI Invitation, the State assumes no responsibility for, and makes no representation in relation to:

(i) the grant of; or

(ii) process the Interested 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 Interested 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 ROI Process, any Further Selection Process or the Project on behalf of the State (unless it is done by the Transaction Manager in accordance with this ROI Invitation); or

(B) do anything that binds, or imposes any obligation on, the State in relation to the ROI Process, any Further Selection Process or the Project;

(ii) each Interested 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;

(iii) except as expressly stated in this ROI Invitation, each Interested 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, at its own cost and risk; and

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

(b) Each Interested Proponent is taken to have authorised its Interested 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 ROI Process, on the Interested Proponent’s behalf.

(c) All notices and other communication from an Interested Proponent or an Interested Proponent's Associate in connection with the ROI Process must be in writing, in English and delivered to the Transaction Manager at the address identified in this ROI Invitation or any alternate address otherwise notified by the State.

25. Site

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

(b) Each Interested Proponent must, and must ensure its Associates:

(i) only access the Site or any premises or facilities on the Site to the extent permitted by law and in accordance with the State's or the State's Associates' directions in connection with the Site (including in connection with access to or use of the Site);

(ii) not enter upon any place notified by the State to the Interested Proponent in writing as a place to which the Interested 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 Site at its own risk.

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

26. Governing Law

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

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