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. . , reasonable Non.Bettennent Costs of such relocation and the loss and expense resulting therefrom are paid to Company when available to the City, but the City has no obligation to pay those portions for which reimbursement to it is not available. 4.4 No Waiver. The provisions of Section 4 apply only to Electric Facilities constructed in reliance on a franchise from City and Company does not waive its rights under an casement or prescriptive right or State or County permit. SECTION 5. TREE TRIMMING. Unless otherwise provided in any permit or other reasonable regulation required by the City under separate ordinance, Company may trim all trees and shrubs in the Public Ways and Public Grounds of City to the extent Company ftnds necessary to avoid interference with the proper construction, operation, repair and maintenance of any Electric Facilities installed hereunder, provided that Company shall save the City harmless from any liability arising therefrom. SECTION 6. INDEMNIFICATION. 6.1 Indemnity of City. Company shall indemnify and hold harmless the City from any and all liability on account of injury to persons or damage to property occasioned by the construction, maintenance, repair, inspection, the issuance of permits, or the operation of the Electric Facilities located in the Public Ways and Public Grounds. The City shall not be indemnifted for losses or claims occasioned through its own negligence except for losses or claims arising ~ut of or alleging the City's negligence as to the issuance of permits for, or inspection of, Company's plans or work. 6.2 Defense of City. In the event a suit is brought against the City under circumstances where this agreement to indemnify applies, Company at its sole cost and expense shall defend the City in such suit if written notice thereof is promptly given to Company within a period wherein Company is not prejudiced by lack of such notice. If Company is required to indemnify and defend, it will thereafter have control of such litigation, but Company may not settle such litigation without the consent of the City, which consent shall not be unreasonably withheld. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the City, and Company, in defending any action on behalf of the City, shall be entitled to assert in any action every defense or immunity that the City could assert in its own behalf. This franchise agreement shall not be interpreted to constitute a waiver by the City of any of its defenses of immunity or limitations on liability under Minnesota Statutes, Chapter 466. SECTION 7. VACATION OF PUBLIC WAYS. The City shall give Company at least two weeks prior written notice of a proposed vacation of a Public Way. Except where required solely for a City improvement project, the vacation of any Public Way, after the installation of Electric Facilities, shall not operate to deprive Company of its rights to operate and maintain such Electric Facilities, until the reasonable cost of relocating the same and the loss and expense resulting from such relocation are ftrst paid to Company. In no case, however, shall the City be liable to Company for failure to speciftcally preserve a right.of.way, under Minnesota Statutes, Section 160.29. In accordance with Minnesota Rules, Part 7819.3200, if the JMS-223420v3 NE136-154 5