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4.4 No Waiver. The provisions of this franchise apply only to facilities constructed in relia.nce <br /> on a ftanchise from the City and shall not be consmxed to waive ox modify anp rights obtained by the <br /> Company for installations within a Company right-of-way acquired by easement or presarprive right <br /> befoYe the applicable Public Ground or Public Way was established,or the Company's rights under state <br /> or county permit <br /> SECTION 5. TREE TRIMMING. <br /> The Company is also granted the per�russion and authority to trim a11 shrubs and trees,including <br /> roots,in the Public Ways of the City to the extent the Company finds necessary to avoid interference <br /> with the proper construction, operation, repait and ma.intena.nce of Gas Facilities, provided that the <br /> Company shall save the City ha,rmless from any lia,bility arising therefYom,and subject to permit or other <br /> reasona.ble xegulation bp the City. <br /> SECTION 6.INDEMNIFICATION. <br /> 6.1 Indemnity of Cit�. The Company shall indemnify,keep,save,and hold the City free and <br /> harmless from any and all lia,bility on account of injuxy to persons or da.mage to property occasioned bp <br /> the construction,ma.intenance,repa.ir,inspection,reloca.tion,the issuance of permits,or the operation of <br /> the Gas Facilities located in the Public Grounds and Public Waps. The City shall not be indemnified for <br /> losses or claims occasioned through its own negligence except for losses or claims arising out of or alleging <br /> the City's negligence as to the issuance of permits for, or inspection of, the Companp's plans or work. <br /> The City shall not be indemnified if the injury or da.mage results feom the perforrnance in a proper manner <br /> of acts reasonably deemed hazardous by Company, and such performance is nevertheless ordered or <br /> diYected by City after notice of Company's deterinination. <br /> 6.2 Defense of Citv. In the event a suit is bxought aga.inst the City under circumstances where <br /> this agreement to indemnify applies, the Company at its sole cost and expense shall defend the City in <br /> such suit if wxitten notice theYeof is promptly given to the Company within a period wherein the Company <br /> is not prejudiced by la.ck of such notice. If the Companp is requited to indemnify and defend,it will <br /> thereafter have control of such lirigation, but the Company may not settle such litigarion without the <br /> consent of the City,which consent shall not be unteasonably withheld This section is not, as to t�urd <br /> parties,a waiver of any defense or immunity othexwise available to the City.The Companp,in defending <br /> any action on behalf of the City, shall be entided to assert in any action every defense or immunity that <br /> the City could assert in its own behalf. This franchise agteement shall not be interpreted to constitute a <br /> waiver by the City of any of its defenses of immunitp or limita.tions on liability undex Minnesota Statutes, <br /> Chapter 466. <br /> SECTION 7. VACATION OF PUBLIC WAYS. <br /> The City shall give Company at least two weeks prior written notice of a proposed vacation of a <br /> Public Wap. The City and the Company shall comply with Minnesota Ru1es, part 7819.3240 and <br /> applicable ordina.nces consistent with law applicable to right-of-way vacation. Except where requiYed foY <br /> a City project,the vacation of any Public Way,after the installation of Gas Facilities,shall not opexate to <br /> deprive Company of its rights to operate and ma.intain such Gas Facilities, until the reasona,ble cost of <br /> reloca,ting the same ate first paid to Company by the nongovernmental entity in favor of whom the <br /> vacation was granted. In no ca,se, however, shall City be liable to Company for failure to specifically <br /> preserve a right-of-way under Minnesota Sta.tutes,Section 160.29. <br /> 5 <br />