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Attachment 2 229 Company may not settle such litigation without the consent of the City, which consent shall 230 not be unreasonably withheld. This section is not, as to third parties, a waiver of any defense 231 or immunity otherwise available to the City. The Company, in defending any action on behalf 232 of the City, shall be entitled to assert in any action every defense or immunity that the City 233 could assert on its own behalf. This franchise agreement shall not be interpreted to constitute 234 a waiver by the City of any of its defenses of immunity or limitations on liability under 235 Minnesota Statutes, Chapter 466. 236 237 SECTION 6. VACATION OF PUBLIC WAYS. 238 239 The City shall give the Company at least two weeks prior written notice of a proposed vacation 240 of a Public Way. The City and the Company shall comply with Minnesota Rules, part 241 7819.3200 and applicable ordinances consistent with law. Except where required for a City 242 improvement project, the vacation of any Public Way, after the installation of Gas Facilities, 243 shall not operate to deprive Company of its rights to operate and maintain such Gas Facilities, 244 until the reasonable cost of relocating the same and the loss and expense resulting from such 245 relocation are first paid to Company. 246 247 SECTION 7. CHANGE IN FORM OF GOVERNMENT. 248 249 Any change in the form of government of the City shall not affect the validity of this 250 Ordinance. Any governmental unit succeeding the City shall, without the consent of 251 Company, succeed to all of the rights and obligations of the City provided in this Ordinance. 252 253 SECTION 8. FRANCHISE FEE. 254 255 8.1. Form. During the term of the franchise hereby granted, and in lieu of any permit or 256 other fees being imposed or that the City has a right to impose on Company , the City may 257 charge the Company a franchise fee by collecting the amounts the parties have agreed to as 258 indicated in a Fee Schedule set forth in a separate franchise fee ordinance from each customer 259 in the designated Company Customer Class. The fee may be (i) a percentage of gross revenues 260 received by the Company for its operations within the City, or (ii) a flat fee per customer, or 261 (iii) a fee based some other basis as agreed by the parties. The method of imposing the 262 franchise fee, the percentage of revenue rate, or the flat rate may differ for each customer class 263 or combine the methods described in (i) – (iii) above in assessing the fee. The City shall seek 264 to use a formula that provides a stable and predictable amount of fees. If the Company claims 265 that the City-required fee formula is discriminatory or otherwise places the Company at a 266 competitive disadvantage, the Company shall proposea formula that will produce a 267 substantially similar fee amount to the City. 268 269 8.2. Separate Ordinance.The franchise fee shall be imposed by a separate franchise fee 270 ordinance duly adopted by the City Council, which ordinance shall not be adopted until at 271 least ninety (90) days after written notice enclosing such proposed ordinance has been served 272 upon the Company by certified mail. The fee shall not become effective until the beginning 273 of a Company billing month at least ninety (90) days after written notice enclosing such 274 adopted ordinance has been served upon the Company by certified mail. Section 2.5 shall 6 Qbhf!227!pg!384