(A) Commercial general liability insurance. PNM shall procure and maintain for the duration of this franchise insurance against all claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges and authority granted hereunder to PNM, its agents, representatives or employees.
(B) Proof of insurance; policy limits. PNM shall provide evidence of an insurance certificate, together with an endorsement naming the city, its elected and appointed officers and employees as additional insureds, to the city for its inspection prior to the commencement of any work or installation of any facilities pursuant to §§ 13-4-2-1 et seq. or not later than ten business days after approval of this franchise ordinance by the City Council, whichever comes sooner, and such insurance certificate shall evidence the following minimum coverages:
(1) Commercial General Liability Insurance:
(a) Bodily Injury/Property Damage in the minimum amount of One Million Dollars ($1,000,000.00) for each occurrence and Two Million Dollars ($2,000,000.00) general aggregate; and
(b) Property Damage Liability Insurance shall not exclude Explosion -Collapse - Underground Coverage (XCU).
(2) Workers' Compensation Insurance:
(a) Part I. Workers' Compensation - in accordance with statutory requirements; and
(b) Part II. Employers' Liability - in the minimum amount of One Million Dollars ($1,000,000.00); and
(c) PNM shall comply with the provisions of the Workers' Compensation Act of the State of New Mexico (the "Act"). lf PNM has determined that it is not subject to the Act, it will certify, in a signed statement, that it is not subject to the Act. PNM will notify the city and comply with the Act should it employ three or more persons during the term of this franchise. If PNM fails to comply with the Act and applicable rules, this ordinance may be terminated.
(3) Products and Completed Operations in the minimum amount of One Million Dollars ($1,000,000.00) for each occurrence and Two Million Dollars ($2,000,000.00) general aggregate.
(4) Pollution Legal Liability in the minimum amount of One Million Dollars ($1,000,000.00) for each occurrence (if applicable).
(5) Business Automobile Liability in the minimum amount of combined single limit of One Million Dollars ($1,000,000.00) for each occurrence; and Pollution Liability (form MCS90) for transportation exposure of One Million Dollars ($1,000,000.00) for each occurrence. Business Automobile Liability Insurance shall include coverage for the use of all owned, non-owned and hired automobiles and vehicles.
(6) Coverage for independent contractors and their work on behalf of PNM in public rights-of-way and any contractual liability must be included in all policies that PNM obtains pursuant to § 13-4-2-7.
(7) Professional Liability in the minimum amount of One Million Dollars ($1,000,000.00) for each occurrence and Two Million Dollars ($2,000,000.00) general aggregate.
If such limits are higher than the minimum limits required by the city, such limits shall apply to the coverage afforded the city under the terms and conditions of §§ 13-4-2-1 et seq. PNM shall furnish to the city copies of any insurance policy endorsements that are subsequently issued amending coverage or limits.
PNM or its contractor(s) shall not begin work under this franchise ordinance until the required insurance has been obtained and the proper insurance certificates have been provided to the city, adding the city as an additional insured, as applicable. Neither the city's approval nor failure to approve any insurance certificates shall relieve PNM or its contractors of their full responsibility to maintain the required insurance policies in full force.
(C) Single primary; excess policy. The minimum limits may be provided for through a single primary insurance policy providing such coverage or through the addition of an excess liability policy written in excess of the primary general liability and automobile liability policies.
(D) Insurance certificate requirements. Any insurance certificate required by § 13-4-2-7 shall provide that the described policies and coverages will not be canceled or modified before the expiration date thereof, without the issuing company giving 30 days written notice to the certificate holder and those named as additional insureds. In the event of any cancellation, modification or intent not to renew, PNM shall obtain and furnish to the city evidence of replacement insurance policies meeting the requirements of this section by the cancellation or modification date.
(E) Insurance rating. Any commercial insurance carrier providing any required coverage must have an A.M. Best rating of A-VII or higher.
(F) Indemnification, Defend and Hold Harmless. PNM, for itself and its agents, employees, subcontractors, and the agents and employees of any subcontractors, shall, at its own expense and throughout the term of Ord. 2020-015, indemnify, defend, and hold harmless the city and any of its elected or appointed officers and employees, from any and all claims, demands, actions, proceedings (formal or informal) or suits (including on and through any final non-appealable order or judgment) which the city, or such elected or appointed officers or employees, may suffer, or which may be recovered from, or obtainable against the city, or such elected or appointed officers or employees, to the extent arising: (1) as a result of the installation, use, or maintenance by PNM of its facilities in the right-of-way; (2) as a result of the exercise by PNM of any or all of the rights, privileges, permission, and authority conferred under this ordinance; or (3) as a result of any alleged act or omission on the part of PNM in performing or failing to perform any of its obligations under §§ 13-4-2-1 et seq. PNM is not, however, liable and is not required to indemnify or hold harmless the city for any damages caused by the negligence of any agents, servants and/or employees of the city. Notwithstanding any other provisions in §§ 13-4-2-1 et seq., PNM’s obligation to provide indemnification to the city shall be limited to PNM's proportionate share of fault, as determined by judgment or by agreement with city, with respect to any claim for which indemnity is applicable.
(G) Risks associated with operation of PNM's facilities; liability limits. By entering into Ord. 2020-015, the city is not assuming any risks for the operations of PNM's facilities and PNM shall be responsible and answerable for any and all injuries to persons or property to the extent arising out of its negligent operations pursuant to Ord. 2020-015. The amounts and types of required insurance coverages, as set forth in Ord. 2020-015, shall in no way be construed as limiting the scope of indemnity or liability set forth in this section.
(H) PNM recourse for loss. PNM acknowledges that its recourse against the city for any loss, cost, expense, or damage caused by the acts or omissions of the city are subject to and may be limited by the New Mexico Tort Claims Act, NMSA 1978, §§ 41-1-1 to 41-1-30.