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• -6 • or operation of the Company's facilities located in, on, over, under or across the streets and public places of the City, unless such injury or damage grows out of the negligence of the City, its employees, or agents, or results from the performance in a proper manner of acts reasonably deemed hazardous by the Company, but such performance is nevertheless ordered or directed by the City after notice of the Company's determination. In the event the suit shall be brought against the City under circumstances where the above agreement to indemnify applies, the Company at its sole cost and expense shall defend the City in such suit if written notice thereof is promptly given to the Company within a period wherein the Company is not prejudiced by lack of such notices. If such notice is not reasonably given as hereinbefore provided, the Company shall have no duty to indemnify nor defend. If the Company is required to indemnify and defend, it will thereafter have complete control of such litigation, but the Company may not settle such litigation without the consent of the City, which consent shall not be unreasonably withheld. SECTION 11. Franchise Fee. It is agreed by the City and Company that the City may at any time during the term hereof impose on the Company, as full compensation for the rights hereby granted, a franchise fee of not more than four percent (4%) of the Company's gross operating revenues, as hereinafter defined, such fee to be payable not later than April 1 of each-'year and to be based upon the gross operating revenues of the Company for the pre- ceding calendar year or the part thereof after such fee becomes effective. Such fee shall be imposed by ordinance duly adopted by the Council and shall not become effective until at least sixty (60) days after written notice thereof has been served upon the Company by registered mail. The percent fee may be changed by the Council by ordinance from time to time, however, each change shall meet the above notice requirements and the percent imposed must remain firm for at least one (1) year, and the total fee shall not exceed four percent (4%) . Such ordinance shall not prevent the Company fran adjusting its charges in such manner as it deems appro- priate for the purpose of reimbursing the Company for the payments to be made to the City, and the Company may indicate on its bills the custorers' portion of said fees. Such fee shall not exceed any amount which the Company may legally recover prior to the payment to the City by imposing a surcharge equivalent to such fee in its rates for gas service to customers within the City. The term "gross operating revenues" means all sums, excluding said surcharge, received by the Company from the sale of gas within the corporate limits of the City. The foregoing time and manner of collecting said surcharge is subject to the approval of the Minnesota Public Service Commission which the Company agrees to use its best efforts to obtain. SECTION 12. Change in Form of Government. Any change of the form of government of the City of Roseville authorized by the State of Minnesota shall not affect the validity of this franchise. Any municipal corporation succeeding the City shall, without the consent of the Company, succeed to all the rights and obligations of the City provided in this franchise.