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. or oxr<ltion of the CCJi'T?<l!ly' s f<lci'li tics located in, on, over, uncJc>r or acr~s the streets wrl public plilces 'of -the City, nnlc5s such injury or dillr.ac:e grONs out of the negligence of the City, its crrployees, or ;.J . aoe.lts, or results frOT! the p2rfOrm3J'!.~ 1J1 il proper m:rnner of acts r~2.SonablY deerred hazardous by the Crnpany, but such performance is nevertheless ordered or directed by the City after notice of the CGrT?ill1Y's detennination. In the event the suit shall be brought against the city unCer circlID'Stances where the above agreer.""'..Jlt to indemnify applies, the Cor.'pany at its sole cost and expense shall defend the City in such suit if written notice thereof is prorrptly given to the Carpany \.rithin a per"i.cx:l .\l.nerein the Carpany is not prejudiced by lack of such notices. If such . notice is not reasonably given as hereinbefore provided, the Co.L'pany shall have no duty to indemnify nor defend. If the COnpany is required to inde.rr:1i.fy and defend, it will thereafter have crnplete control of such litigation, but the Conpany l1\3.y not settle such litigation \-rithout the consent of the City, \-Ihich consent sha;tl not be unreasonably withheld. J It is agreed by the City arrl Carpany that the City JTlaY at any ti.rre during the term hereof inpose on the Cc::lrrpany, as full o::mpe.nsation for the rights hereby granted, a franchise fee of not r.ore than four percent (4%) of the Carpany's gross operating revenu......<=>s, as hereinafter defined, such fee to be payable not later than April 1 of eac., year and to be based upon the gross oferating reve.lues of the eonpa.lY for the pre- ceding calendar year or the p:1rt thereof after such fee becorres effective. Such fee shall be imposed. by ordinance duly adopted by the Council and shall not becare effective until at least sixty (60) days after \olritt_en notice thereof has been served upon the Ca!PaI1y by registered mail. 'lne percent fee may be changed by the Council by ordinance from tine to tirre, hal7ever, each change shall rreet the above notice requirerrents and the percent i..rrposed must rerrain firm for at least one (1) year, and the total fee shall not exceed four percent (4%). Such ordinance shall not prevent the CaTpa'1Y iran adjusting its charges in sue' Ir'arl...er as it deeIT'S appro- priate for the purIXJSe of reirrbursir.g the Carpa'1Y for the payrrents to be rrade to the City, and the Ccmpany II'E.Y indicate on its bills the custor.ers' portion of said fees. Such fee shall not exceed any arrount which the Co."7p3I1Y my legally recover prior to tl-.e payrrent to the City by in?osing a surcharge equivalent to such fee in its rates for gas service to custarers \l7ithin the City. The term "gross operating revenues" near's all SUrfS, excluding said surcharge, received by the Corr~ny fro,n the sale of gzs vrithin the corporate liIPits of the City. The foregoing ti..Ire a.,,:1 rrarm~ of collecting said surcharge is subject to the approval of the:- l-lin.'1e5ota Public Service Co."TTtlissicn \-.-hich the Co.lpany agrees to use its best efforts to obtain. SOCTION 11. Franchise Fee.. SECTION 12. O1ange in Form of GovcrP.r.cnt. Any chEmge of the foria of gove.rnl":'Cnt of the City of New Brighton authorized by t.'-!.e State of r-tir.ncsota shall not affect t.~c valicity of this franchise. /my Ifl'....1..'1icipal coIForatio:1 succeeding the City sh.all, \-:ithout the conse."1t of the Cc."'P"Jany, succeed to all the rig~1t5 ar..d roliCTiltio:1s of the City provided in this fr.nnchise. ...