Consultation Paper Review of Construction Related Insurance for Public Works Contracts

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1 Consultation Paper Review of Construction Related Insurance for Public Works Contracts Purpose This paper is to seek your views on the improvement proposals to facilitate the procurement of Contractors All Risks and Third Party Liability ( CAR ) insurance policy for public works contracts. Background 2. The Government promulgated the guidelines on procuring CAR insurance and a specimen CAR policy ( specimen policy ) for the use of public works contracts via ETWB No. TC(W) 7/2005. Since then, there have been changes in the standard endorsements of the CAR policies in the insurance market. As a result, many CAR policies procured by contactors of public works contracts contain modified terms as compared with the specimen policy. Agreement on modified terms was always not smooth and sometimes protracted, consuming large amount of time of the contracting parties. 3. To improve the situation, we engaged the consultant, Aon Hong Kong Limited, in October 2012 to undertake a review study on the guidelines and the specimen policy set out in ETWB TC(W) No. 7/2005. During November 2012 to February 2013, the consultant interviewed the government departments and industry stakeholders with a view to stocktaking the latest situation and market condition for procurement of CAR insurance policy. Based on the feedback collected, the consultant has identified the key issues to be addressed and formulated the improvement proposals. The findings and proposals of the consultant are set out in the ensuing paragraphs. Key Issues Deviations from the specimen policy 4. Since the promulgation of the specimen policy in 2005, there have been changes in the CAR policy wordings offered by the insurance industry which deviate from the specimen policy mainly due to the followings

2 a continuously expanding list of new clauses imposed by the insurance industry such as those driven by reinsurance treaty requirements, e.g. Cyber/Electronic Data exclusions, Asbestos exclusions, or revised War and Terrorism exclusions and The Sanctions Clause; insurers seeking to impose special conditions for particular internationally accepted risk exposures such as flood, fire and collapse; insurers seeking to impose special conditions for perceived high risk classes of construction work such as tunneling, wet works and port works including reclamations, bridges and viaducts and for pipeline/trench limitations, which are quite normal in the international insurance market, and different forms of clauses that have the same or similar effect, for example various Cross Liability clauses. 5. There is a standard Special Conditions of Contract ( SCC ) in public works contracts which stipulate that (c) In the event that through no fault of the Contractor it becomes impractical for the Contractor to procure an insurance policy consistent with the terms of the specimen policy, the Employer may accept an insurance policy with modified terms as may be proposed by the Contractor subject to the adjustment as may be agreed between the Employer and the Contractor or determined by the Engineer in accordance sub-clause (1)(d) of this Clause. 6. According to the above SCC, the employer may accept a CAR insurance policy with modified terms, subject to a rate adjustment, in the event that through no fault of the contractor it is impractical for him to procure the CAR insurance policy consistent with the terms of the specimen policy. As mentioned, the process was always not smooth and sometimes protracted due to their lack of knowledge in insurance of the contracting parties. There were also concerns raised by contracting parties with regard to the application of the rate adjustment in case modified terms were accepted

3 Continually Evolving Insurance Market 7. A revised and updated specimen policy wording for use in public works contracts will not solve the problems faced by the industry perpetually, as the insurance market is continually evolving and subject to change. The specimen policy is promulgated as a one size fits all document, which is a challenging concept given the wide range of types and sizes of contracts and specialist provisions clauses that should be allowed to be applied to cater for the wide variety of specialist works. Third Party Liability Limits 8. ETWB TC(W) No. 7/2005 requires that for minor works or small value contracts and maintenance term contracts, a minimum Third Party Liability ( TPL ) of HK$10 million should be taken out by the contractor. From the perspective of industry accepted risk assessment procedures having regard to developed experience of court judgments, the consultant advised that this amount is insufficient considering the potential for loss, damage or injury to surrounding persons or property. The consultant also remarked that in the Hong Kong insurance market TPL coverage is typically available as an adjunct to a Construction Material Damage ( Construction ) policy up to a primary limit of HK$50 million per occurrence. Large and Specialist Works Contracts 9. As advised by the consultant, there exists a large strata of large individual contracts for relatively specialized works 1 requiring much wider coverage scope. Such works are generally undertaken by major contractors who mostly carry broadform policies arranged by specialist construction insurance brokers. These "broadform policies" are bespoke and specifically tailored for each contract to account for its specific risks and requirements, which generally provide much wider coverage scope than the specimen policy. At present, contractors undertaking these specialized works often need to resort to DIC coverage to protect themselves from perceived gaps in the basic coverage of specimen policy. 1 These specialized works include: Tunnels, Bridges, Viaducts, Reclamation, Wet works, Port works, Sewerage and drainage, etc

4 Self Employed Workers in Public Works Contracts 10. During the interview, some representatives of the contractor and subcontractor bodies remarked that self-employed workers were not common in public works contracts for various reasons, and contractors and subcontractors often select to employ them under temporary employment contracts. The remark is supported by the wage and labour returns of the works departments that self-employed workers only account for a minimal portion of the workforce in public works contracts. Improvement Proposals Specimen policy-cum-library of Approved Clauses 11. The specimen policy has to be updated to keep pace with the market practices. Besides, more flexibility shall be needed to build in for adapting the wide range of types and sizes of contracts and specialist provisions clauses for the wide variety of specialist major works. For this purpose, along with the updating of the specimen policy, it is proposed to establish a Library of Approved Clauses ( Library ), which will be split into two sections, viz : Section I: Section II: Optional Specialist Clauses Approved Alternative Clauses 12. Section I will contain the Optional Specialist Clauses. These are clauses to increase the flexibility of specimen policy for adapting the wide range of types and sizes of contracts and specialist provisions clauses for the wide variety of specialist major works. 13. Section II will contain the Approved Alternative Clauses. These are clauses which are parallel equivalents of the basic clauses in the specimen policy but where individual insurers, either because of treaty or head office dictates, are required to use a clause with the same meaning but different wording to the specimen policy clauses. Thus these approved Alternative Clauses can be immediately accepted by contract administrative staff without further reference. 14. The Library is intended to be a living document for reference. The - 4 -

5 approval process for additional Optional Specialist and Approved Alternative Clauses is discussed in paragraphs 18 to 20 below. The Library is proposed to be accessible via the website of the Development Bureau (Works Branch). 15. The provisional proposed updated version of the specimen policy is at Annex 1. The provisional proposed lists of Optional Specialist Clauses and Approved Alternative Clauses are at Annex 2. These will be subject to further discussion and agreement with the insurance market. Insurance Advisor 16. The one issue which has received common pronouncement by all stakeholders is the perceived lack of knowledge of insurance by the contracting parties. The filling of this knowledge gap will bring significant improvement to the insurance procurement process for public works contracts. 17. We have considered the potential appointment of an insurance officer within government to address the knowledge gap, however the downside to this is that the person employed in the position would not remain up to speed with the market changes. As a preferred alternative, it is proposed to appoint a firm or firms of insurance brokers 2 experienced in the field of CAR insurance under a term consultancy to provide advice on demand to all works departments. The scope of services provided is proposed as follows: - advise the Architect/Engineer/Maintenance Surveyor and his staff on matters in relation to the acceptance of modified terms as compared with the specimen policy and not covered by the Library; advise the Architect/Engineer/Maintenance Surveyor on the rate adjustment for acceptance of modified terms as compared with the specimen policy comprising approved clauses in the Library; advise the Architect/Engineer/Maintenance Surveyor on whether a broadform policy proposed by the contractor could at least cover the risks stipulated in the specimen policy (see paragraphs 25 to 27 2 It is an accepted role of the professional insurance broker to provide verifications of acceptability of coverage by review of policy wordings for banks and financial institutions under Lenders Advisory Consultancies. It is also an accepted role of the professional insurance broker to provide professional insurance advice to public organizations in Hong Kong. It is therefore considered appropriate to engage a professional insurance broker as the proposed insurance advisor

6 below); recommend inclusion of Optional Specialist Clauses and Approved Alternative Clauses into the Library, and review the need and update the specimen policy as necessary. 18. The Insurance Advisor shall be engaged by means of term consultancy. To safeguard the case that the Insurance Advisor is also the broker for the concerned policy, it is proposed to engage two Insurance Advisors in parallel to avoid the potential conflict of interest. The term of the consultancies is proposed each to be three years. Brokers will be invited to tender following a strict prequalification process to ensure that only brokers with a high degree of professional experience in technical policy drafting, risk and liability consultancy and lenders advisory consultancies based in Hong Kong will be eligible for the roles. This is to ensure that an adequate level of consultancy advice is able to be provided to ensure the veracity of recommendations of additional clauses to the Library and as to the acceptability of broadform policy wordings. 19. As regards the arrangement for engagement of Insurance Advisors, it is proposed to adopt a centralized approach to ensure consistent advices are given to the works departments on similar cases. It is proposed that DEVB will centrally oversee the engagement and management of the Insurance Advisors and works departments shall take turn in providing the secretariat assistance. The Insurance Advisors and DEVB Works Branch shall meet regularly to review and endorse all proposals for inclusion of additional clauses (Optional Specialist Clauses and Approved Alternative Clauses) into the Library. This meeting shall also review the specimen policy on annual basis to determine whether any amendments to the specimen policy is warranted or desirable given the circumstances in the insurance market at that time. Additions to the Library shall be posted on the website of the DEVB Works Branch. Considerations for TPL Limit and Related Premium Increases 20. For TPL, the unpredictability and uncertainties mentioned above mean that the most realistic approach to establishing the required limit of - 6 -

7 indemnity is to estimate, based on previous general experience and professional predictions, what would be the likely highest cost of injury or damage and attendant fee and other costs in a worst circumstances accident and insure for that amount. 21. The pattern of claim costs arising out of accidents shows the majority at a relatively low average figure within the HK$1 million to HK$5 million range. The need for higher limits of indemnity is not because the costs of all claims will rise but rather because of the possibility that one or very few claims may exceed that lower range which continues to be adequate to cover virtually all claims which arise. 22. This theory is recognized by the insurance industry in the practice of layering polices to achieve high aggregate liability limits and where the premium costs for each layer reduce as the limit rises so that the top layer will pay only a fraction of the premium paid on the primary or bottom layer. This recognizes that the majority of claims will be paid in full by the primary layer policy with very few claims ever penetrating up into the upper layers and with the top layer only involved in the event of the unthinkable yet possible major catastrophe loss. 23. Applying this theory to the limits for Government contracts and recognizing that probably 80% of them are relatively small and straightforward, the current levels of premium should continue to be sufficient to pay for most of the average lower level claims and we consider that the premium increase to cover such relatively infrequent and remote larger losses should not be significant, particularly if past claims experience indicates that average run-of-the-mill claims are probably contained in a range up to HK$5 million. 24. It is proposed to increase the minimum TPL limit for minor works or small value contracts and maintenance term contracts from the current HK$10 million to HK$50 million as suggested by the consultant. The consultant advised that with the proposed increase in TPL limit, it would be sufficient to pay for most of the claims in these contracts. The consultant considered that the premium increase to cover such additional relatively remote losses should not be significant

8 Specimen CAR Policy as Minimum Requirement 25. According to the current contract provision, public works contractors shall procure CAR insurance consistent with the terms in the specimen policy and shall at least cover the risks stipulated therein. Therefore, the concept of a specimen policy is to ensure that contractors purchased an adequate scope of coverage and that a level playing field for tendering was established. With the passage of time, however, the specimen policy has been observed occasionally acting as the absolute document to be matched and precluding appropriate broader scope of coverage being procured where it is needed. 26. It is proposed that the specimen policy shall in future be treated not as an absolute document but rather as a minimum standard scope of coverage requirement. Thus the specimen policy could be accepted including any approved clauses approved in the Library. 27. Alternatively a broader scope of policy wording could be accepted provided that the coverage thereby was no less than the coverage as stated in the specimen policy. Verification that such broadform policies were in fact broader than and contained no restrictions to the specimen policy is proposed to be amongst the scope of services to be provided by the Insurance Advisors. Extension of Coverage to Self-employed Workers 28. While the self-employed workers are not common in public works, the consultant advised that at present there are some insurers in the market prepared to provide coverage for liability to self-employed workers in their CAR policies although the number of insurers providing such coverage is only limited. It is proposed to include the coverage of self-employed workers in the updated specimen policy. Consultations 29. During the period from November 2012 to February The consultant interviewed the government departments and industry stakeholders. The list of industry stakeholders interviewed and the summary of issues raised during these interviews are at Annex

9 Implementation 30. Upon consultation with industry stakeholders and subsequent revision of the amended proposals if and where necessary, we aim to promulgate the amended proposals in end Comments on Proposals 31. Comments on the amended proposals as depicted above should be sent to us by to by Fax to or by post to Works Policy 1 Section, Works Branch, Development Bureau (Attn.: CAS(W)4) at 15/F, West Wing, Central Government Offices, 2 Tim Mei Avenue, Tamar, Hong Kong, on or before 30 May For enquiries relating to these proposals, please contact our Mr. Roger Wong, Assistant Secretary (Works Policies)3, at Tel Works Branch Development Bureau April

10 SCHEDULE POLICY NO: INSURERS: THE INSURED: Contractors: Employer: INSURED CONTRACT: SITE: TERRITORIAL LIMITS: JURISDICTION: Worldwide excluding USA/Canada/Australia ESTIMATED CONTRACT SUM: PERIOD OF INSURANCE: Construction Period: From To Including Testing and Commissioning Period: Plus Maintenance/Defects Liability Period: (Estimated) weeks months PREMIUM: subject to adjustment in accordance with condition 5.6 1

11 INSURED PROPERTY: Section 1 Item 1. Item 2. Item 3. The permanent and temporary Works constructed erected or in the course of construction or erection in performance of the Contract and all other property including temporary buildings for which the insured Contractor is responsible under the Contract whilst on the Site and subject to its value being included in the Sum Insured however excluding Constructional Plant and temporary buildings. Professional fees : costs and expenses in respect of architects', surveyors' and consulting engineers' fees necessarily incurred in the reinstatement of the Insured Property consequent upon its loss or damage but not for preparing any claim it being understood that the amount payable hereunder shall not exceed the scale charges of the appropriate professional body. Removal of debris : costs and expenses necessarily incurred by the Insured with the consent of the Insurers in dismantling and removing debris of the portion or portions of the property insured under Item 1 destroyed or damaged by any peril hereby insured against. SUM INSURED: Section 1 Item 1 HK$ Sub-limits: Item 2 HK$ Item 3 HK$ Inland Transit HK$ Offsite Storage HK$ Sub-limits apply in addition to the Sum Insured Section 2 Limit of indemnity HK$ any one occurrence unlimited for the Period of Insurance 2

12 EXCESS : Section 1 In respect of each and every occurrence of loss or damage indemnifiable under this Section the Insurers shall not be liable for the first: HK$... HK$... HK$... HK$... loss of or damage to the Works caused by fire, rain, storm, typhoon, flood, earthquake, subsidence or collapse loss of or damage to the Works due to fault or defect in material or workmanship; fault, defect, error or omission in or failure of any design plan or specification loss of or damage to scaffolding, shuttering, formwork, timbering, screens, fencing and hoardings loss of or damage to the Works caused by any other occurrence Section 2 In respect of each and every occurrence of loss of or damage indemnifiable under this Section the Insurers shall not be liable for the first: HK$... HK$... HK$... loss of or damage to property belonging to third parties caused by vibration removal or weakening of support loss of or damage to property belonging to third parties in respect of death, bodily injury, illness or disease suffered by third parties Subject to the following: Optional Specialist Clauses Alternative Clauses 3

13 CONTRACTORS ALL RISKS AND THIRD PARTY LIABILITY POLICY 1. NOW THIS POLICY WITNESSETH that in consideration of the Insured having paid or agreed to pay to the Insurers the premium stated in the said Schedule; 1.1 THE INSURERS HEREBY AGREE subject to the terms, exceptions and conditions contained herein or attached hereto or endorsed hereon that if during the Period of Insurance stated in the said Schedule or during any further period in respect of which the Insured shall have paid and the Insurers shall have accepted premium the Insured shall sustain loss or damage or shall incur liability in the circumstances provided for by this Policy and defined herein the Insurers shall indemnify the Insured in the manner hereinafter described. 2. GENERAL EXCEPTIONS 2.1 The Insurers shall not indemnify the Insured in respect of loss, damage or liability directly or indirectly caused by or arising out of : war, invasion, act of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, mutiny, military or usurped power or persons acting on behalf of or in connection with any political organisation with activities directed towards the overthrow or influencing of a government, de jure or de facto, by force, confiscation, nationalisation, commandeering, requisition or destruction or damage by order of any government, de jure or de facto, or by any public authority; Notwithstanding the provisions of this exception it is understood and agreed that this Policy shall cover loss, damage or liability caused by missiles and/or land mines and/or bombs and/or other explosives not discovered at the moment of commencement of the particular Insured Contract, so long as no state of war is declared or exists in respect of the country where the insured Contract will be or is being undertaken strike, riot, lock out, civil commotion or persons taking part in labour disturbances; any act of terrorism regardless of any other cause or event contributing concurrently or in any other sequence to the loss. For the purpose of this exception an act of terrorism means an act, including but not limited to the use of force or violence and/or the threat thereof, of any person or group(s) of persons, whether acting alone or on behalf of or in connection with any organization(s) or government(s), committed for political, religious, ideological or similar purposes including the intention to influence any government and/or to put the public, or any section of the public, in fear. This exception also excludes loss, damage or liability of whatsoever nature directly or indirectly caused by, resulting from or in connection with any action taken in controlling, preventing, suppressing or in any way relating to any act of terrorism. In the event any portion of this exception is found to be invalid or unenforceable, the remainder shall remain in full force and effect nuclear weapons and material, ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste, from the combustion of nuclear fuel and for the purposes of this exception combustion shall include any self-sustaining process of nuclear fission. 4

14 2.2 In any action, suit or other proceeding where the Insurers allege that by reason of the provisions of exceptions 2.1.1, 2.1.2, and above any loss, damage or liability is not covered by this Policy the burden of proving that such loss, damage or liability is covered shall be upon the Insured. 2.3 Notwithstanding any provision to the contrary within the Policy or any endorsement thereto, it is understood and agreed as follows: Electronic Data Exception This Policy does not insure loss, damage, destruction, distortion, erasure, corruption or alteration of ELECTRONIC DATA from any cause whatsoever (including but not limited to COMPUTER VIRUS) or loss of use, reduction in functionality, cost, expense of whatsoever nature resulting therefrom, regardless of any other cause or event contributing concurrently or in any other sequence to the loss. ELECTRONIC DATA means facts, concepts and information converted to a form useable for communications, interpretations or processing by electronic and electromechanical data processing or electronically controlled equipment and includes programmes, software and other coded instructions for the processing and manipulation of data or the direction and manipulation of such equipment. COMPUTER VIRUS means a set of corrupting, harmful or otherwise unauthorised instructions or code including a set of maliciously introduced unauthorised instructions or code, programme or otherwise, that propagate themselves through a computer system or network of whatsoever nature. COMPUTER VIRUS includes but is not limited to 'Trojan Horses', 'worms' and 'time or logic bombs' However, in the event that a peril listed below results from any of the matters described in paragraph above, this Policy, subject to all its terms, conditions and exclusions, will cover physical damage occurring during the Period of Insurance to the Insured Property directly caused by such listed peril. Listed Perils: Fire Explosion Electronic Data Processing Media Valuation Should electronic data processing media insured by this Policy suffer physical loss or damage insured by this Policy, then the basis of valuation shall be the cost to replace, repair or restore such media to the condition that existed immediately prior to such loss or damage, including the cost of reproducing any ELECTRONIC DATA contained thereon, providing such media is repaired, replaced or restored. Such cost of reproduction shall include all reasonable and necessary amounts, not to exceed HKD 1,000,000 any one occurrence, incurred by the Insured in recreating, gathering and assembling such ELECTRONIC DATA. If the media is not repaired, replaced or restored the basis of valuation shall be the cost of the blank media. However this Policy does not insure any amount pertaining to the value of such ELECTRONIC DATA to the Insured or any other party, even if such ELECTRONIC DATA cannot be recreated, gathered or assembled. 5

15 3. SECTION 1 - MATERIAL DAMAGE 3.1 The Insurers shall indemnify the Insured in respect of loss of or damage to the Insured Property described in the Schedule whilst at the Site during the Period of Insurance arising from any cause whatsoever not hereinafter excluded. 3.2 The Insurers shall not indemnify the Insured in respect of that part of the Works : which has been taken into use or occupation by the Employer from the time of such taking into use or occupation or for which a certificate of completion has been issued from the expiry of 28 days from the date of completion certified therein; whichever of or is the earlier unless such loss or damage be occasioned during the Maintenance Period stated in the Schedule and was caused by an occurrence during the Construction Period stated in the Schedule, or was caused by an insured contractor in the course of complying with his obligations under the maintenance and defects liability clauses of the Contract. 3.3 Provided that the total liability of the Insurers under this Section shall not exceed the Sum Insured shown in the Schedule for each item of the Insured Property. EXCEPTIONS TO SECTION The Insurers shall not indemnify the Insured in respect of : loss or damage due to any fault, defect, error or omission in or failure of any design plan or specification; loss or damage due to defect in material or workmanship but this exception shall be limited to that part of the Insured Property directly affected and shall not exclude loss or damage to other parts of the Insured Property resulting from an accident due to such defect; loss of or damage to any item of machinery forming part of the Works or Constructional Plant due to its own explosion, mechanical or electrical breakdown or derangement but this exception shall not be deemed to exclude damage to other parts of the Works or Constructional Plant arising as a consequence of such explosion, breakdown or derangement; loss of the Insured Property due to it being stolen or otherwise missing from the Site unless such loss is identifiable by the Insured with a specific occurrence; loss of or damage to cash, bank notes, treasury notes, cheques, postal orders, money orders, stamps, deeds, bonds, bills of exchange, promissory notes and securities; loss of use, liquidated damages, penalties, performance guarantees or other consequential losses; 6

16 3.4.7 loss or damage due to wear and tear, rust, mildew or other deterioration due to gradually operating causes; the cost of maintenance; loss of or damage to any locomotive, waterborne vessel, aircraft or vehicle other than any land vehicle which is used solely on the Site and which is not used on any public road or public highway to which any road traffic legislation applies; damage to tyres whilst attached to a vehicle or plant unless the vehicle or plant is damaged at the same time; loss or damage due to cessation of work whether total or partial. 7

17 CONDITIONS TO SECTION In the event of loss of or damage to the Insured Property the insurance hereunder shall be maintained in force during the Period of Insurance for the Sum Insured the Insured undertakes to pay an additional premium at the agreed rate on the amount of any loss exceeding HK$1,000,000, pro rata from the date of such loss or damage to the expiry of the Period of Insurance but this additional premium shall be disregarded for the purpose of any adjustment of premium under General Condition 5.6 of this Policy. 4. SECTION 2 - LIABILITY TO THIRD PARTY 4.1 The Insurers shall indemnify the Insured in respect of all sums which the Insured shall become legally liable to pay in respect of: accidental death, bodily injury, illness or disease suffered by any person arising out of the performance of the Insured Contract described in the Schedule; accidental loss of or damage to physical property arising out of the performance of the Insured Contract described in the Schedule. 4.2 The liability of the Insurers under this section of this Policy for all compensation payable to any claimant or number of claimants in respect of or arising out of all occurrences of a series consequent on or attributable to one original cause shall not exceed the limit of indemnity specified in the Schedule. 4.3 In respect of any claim covered by this Section of this Policy the Insurers shall in addition be liable for : all costs and expenses of litigation recovered by any claimant against the Insured; all costs and expenses of litigation incurred by the Insured with the written consent of the Insurers in resisting any claim; 4.4 Where more than one party comprises "The Insured" each of the parties comprising the Insured shall for the purpose of this Policy be considered as a separate and distinct party and the words "The Insured" shall be considered as applying to each party in the same manner as if a separate Policy had been issued to each of the parties and the Insurers hereby agree to waive all rights of subrogation against each of the aforesaid parties arising out of any occurrence in respect of which any claim is made hereunder provided nevertheless that: notwithstanding the foregoing, this Policy shall not respond in respect of claims arising out of death of or bodily injury (including illness) to any person who is, or could have been, insured under employees compensation insurance(s) and/or employer's liability insurance(s); nothing in this Clause shall be deemed to increase the Limit of Indemnity in respect of any one occurrence or series of occurrences as stated in the Schedule. 4.5 Provided always that the aggregate liability of the Insurers shall not be increased beyond the limit of indemnity specified in the Schedule. 8

18 EXCEPTIONS TO SECTION The Insurers shall not indemnify the Insured in respect of : liability for death, bodily injury, illness or disease arising out of or in the course of undertaking any activity in connection with an iinsured Contract in respect of: any person employed directly or independently by the Employer or any contractor and/or sub-contractor of any tier and any person to whom any part of the insured Contract has been sub-contracted including but not limited to self-employed person(s) and/or sole proprietor. but this exception shall not apply to self-employed person(s) and/or sole proprietor(s) under Insured Contracts where the Employer is the Government of the Hong Kong Special Administrative Region liability in respect of compensation claimed from the Insured by an injured person or dependent under any Employees Compensation Legislation; liability resulting from or attributable to or caused by the ownership or possession or use by or on behalf of the Insured of any locomotive, waterborne vessel, aircraft or vehicle other than any land vehicle whilst being used as a tool of trade; liability compulsorily insurable under any legislation governing the use of motor vehicles; liability in respect of loss of or damage to any building, property or structure caused by or resulting from vibration or by the removal or weakening of support; liability in respect of loss of or damage to property belonging to or in the care, custody or control of the Insured; liability in respect of loss of or damage to permanent or temporary Works or materials forming part of the Insured Contract or Contracts insured under this Policy; liability consequent upon any agreement by the Insured to pay any sum by way of indemnity or otherwise or predetermined penalties or liquidated damages imposed under any contract entered into by the Insured unless such liability would have attached also in the absence of such agreement, contractual penalty or liquidated damages; actual or alleged liability whatsoever for any claim or claims in respect of loss or losses directly or indirectly arising out of, resulting from or in consequence of, or in any way involving asbestos, or any materials containing asbestos in whatever form or quantity; liability in respect of claims arising out of the rendering of or failure to render professional advice or service or any error or omission connected therewith or any error in advice design formula or specification or 9

19 a breach of the duty owed in a professional capacity by the Insured. however this exception shall not apply to physical loss or damage caused as a consequence of to above. 4.7 This Policy does not cover any liability for: Personal injury or bodily injury or loss of, damage to, or loss of use of property directly or indirectly caused by seepage, pollution or contamination, provided always that this paragraph shall not apply to liability for personal injury or bodily injury or loss of or physical damage to or destruction of tangible property, or loss of use of such property damaged or destroyed, where such seepage, pollution or contamination is caused by a sudden, unintended and unexpected happening during the Period of Insurance The cost of removing, nullifying or cleaning-up seeping, polluting or contaminating substances unless the seepage, pollution or contamination is caused by a sudden, unintended and unexpected happening during the Period of Insurance Fines, penalties, punitive or exemplary damages. This Clause shall not extend this Policy to cover any liability which would not have been covered under this Policy had this Clause not been attached. 5. GENERAL CONDITIONS 5.1 This Policy shall be construed according to the laws of Hong Kong. 5.2 This Policy and the Schedule shall be read together as one contract and any word or expression to which a specific meaning has been attached in any part of this Policy or of the Schedule shall bear such meaning wherever it may appear. 5.3 All the terms, exceptions and conditions contained herein or endorsed hereon are incorporated in and form part of this Policy and are deemed to be conditions precedent to any liability on the part of the Insurers so far as they relate to anything to be done by the Insured. 5.4 The expressions "Certificate of Completion", "Contract", "Contractor", "Contract Sum", "Final 1 Contract Sum", "Hong Kong", "Maintenance Period", Defects Liability Period "Site", "Specification" and "Works" shall bear the meaning ascribed to them in the General and Special Conditions of the Insured Contract and any sub-contracts thereunder. 5.5 If any change shall occur materially varying any of the facts upon which this Policy is based the Insured shall immediately give notice in writing to the Insurers and the premium shall be adjusted in accordance with any agreed rate. 5.6 The Insured shall within three months of the expiration of the Period of Insurance furnish to the Insurers a declaration of the Final Contract Sum and if such sum shall differ from the Contract Sum the premium shall be adjusted accordingly subject to any minimum retained premium previously agreed. 10

20 5.7 The Insured shall also take and cause to be taken all reasonable precautions to prevent loss damage or accident and shall comply with the "Construction Sites (Safety) Regulations" and any ordinance or regulation which might apply in respect of the insured Contract. 5.8 In the event of any occurrence which might give rise to a claim under this Policy the Insured shall: notify the Insurers as soon as possible and in writing give an indication as to the nature and extent of the damage; at the expense of the Insurers take such immediate action as is necessary to minimise the loss provided that such expense shall not increase the Insurers ultimate loss; keep parts affected and make them available for inspection by a representative or surveyor of the Insurers for a reasonable period of time but the Insured shall not in any case be entitled to abandon any property to the Insurers whether taken possession of by the Insurers or not; submit a formal claim and furnish all such information and documentary evidence as the Insurers may require within such reasonable time as the information becomes available or such further time as the Insurers may in writing agree, such agreement not to be unreasonably withheld; inform and assist the police authorities in case of loss or damage due to theft or burglary or malicious action; immediately send to the Insurers upon receipt any writ summons or other proceedings which may be commenced against the Insured; give to the Insurers all information and assistance to enable the Insurers to settle or resist any claim or institute proceedings. 5.9 In the event of a claim or claims arising for which the Insurers could be liable under this Policy the Insurers shall be entitled : to undertake in the name and on behalf of the Insured the absolute conduct and control of any proceedings and the settlement of the same; to take proceedings at their own expense and for their own benefit but in the name of the Insured to recover compensation or secure an indemnity from any third party in respect of anything covered by this Policy; to pay to the Insured in respect of any claim or claims the maximum liability of the Insurers under Section 2 of this Policy as stated in the Schedule or such lesser sum for which the said claim or claims can be settled (subject to deduction in either case of any sum or sums already paid on account for such claim or claims) and thereafter the Insurers shall be under no further liability in respect of said claim or claims except for payment of costs and expenses incurred prior to the date of such payment and for which the Insurers may be liable hereunder The Insured shall not negotiate, pay, settle, admit or repudiate any claim under this Policy without the written consent of the Insurers. 11

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