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<br />NOW THEREFORE, in consideration of the mutual and respective promises, and
<br />subject to the terms and conditions hereinafter set forth, the parties agree as follows:
<br />
<br />I. The parties to this Third Amendment hereby acknowledge and hereto expressly
<br />agree that the Work is an "audiovisual work" as that term is defined by 17 U.S.c. section
<br />101 (hereafter "the Copyright Act"), and that it shall be deemed and considered a "work
<br />made for hire" within the meaning of that term under section 101 of the Copyright Act.
<br />Said parties further hereby acknowledge and hereto expressly agree that the City
<br />exclusively owns the copyright in the Work and all rights incident to such ownership,
<br />(including all electronic and derivative rights) in all mediums of expression now existing
<br />or devised in the future, and may utilize those exclusive rights both in the United States
<br />and throughout the world and Universe.
<br />
<br />2. Expressly excepting the music on the sound recording which is a part of the
<br />Work, Consultant warrants and represents that the Work is original and has not before
<br />been published; that he or she is the sole author ofthe Work and has full power, free of
<br />any prior contract, lien or rights of any nature in anyone which might interfere therewith,
<br />to enter into this Third Amendment and to grant the rights hereby conveyed to City; that
<br />the Work contains no matter which is libelous or otherwise unlawful, infringes no right of
<br />privacy, proprietary right or copyright (whether statutory or common law); that he or she
<br />has not heretofore and will not hereafter enter into any agreement or understanding with
<br />any person, firm or corporation other than City for the rights in the Work granted
<br />hereunder. Consultant further agrees that he or she will hold City, its distributors,
<br />employees, licensees, partners, agents, advertisers, and any retailer harmless against any
<br />suit, claim, demand, proceeding, prosecution, recovery or penalty and any expense,
<br />including attorneys' fees and litigation expenses arising out of same, by reason of any
<br />claim or violation of any of the foregoing warranties or representations.
<br />
<br />3. Consultant acknowledges. agrees and warrants that it has no right to reprint the
<br />Work or to create derivative works based on the Work, unless it first seeks and receives
<br />written approval of the City Manager of the City or designee, which approval may be
<br />granted or withheld in the sole and absolute discretion of said officer of the City;
<br />provided, however, that Consultant does, and is hereby granted the right, to show the
<br />Work to third parties, for promotional purposes only, without music or with music other
<br />than "Beautiful Day, the use of which music Consultant has or will obtain pennission,
<br />right or license, as applicable, to use with the Work.
<br />
<br />4. Provided Consultant is not in breach of this Agreement as amended, the City shall
<br />indemnify and defend at its expense and hold harmless in any infringement claim,
<br />demand, proceeding, suit or action ("Infringement Action") against Consultant, its
<br />officers, employees, representative and agents for any infringement or violation, actual or
<br />alleged, direct or contributory, intentional or otherwise, of any intellectual property
<br />rights, including license, copyrights, ideas, concepts, themes, and other proprietary
<br />information or rights (collectively "Intellectual Property Rights"), (I) on or in the use of
<br />the Work; or (2) as a result of the City's actual or intended use of the Work. The city
<br />also shall indemnify Consultant, its officers, employees, representatives and agents
<br />
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