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OPCMR CONTRACT FOR PROFESSIONAL SERVICES THIS AGREEMENT is made this ________ day of ______________, 20_, in the Territory of the Virgin Islands, by and between the Government of the Virgin Islands, Department of Property and Procurement, on behalf of the Department of Tourism (hereinafter referred to as ‘Government) and Wunderman Thompson. LLC formerly J. Walter Thompson. U.S.A., LLC (hereinafter referred to as “Contractor’). WITNESSETH: WHEREAS. the Government is in need of the services of a Contractor for media planning, buying and implementation and for earned and digital content strategy and creation, which duties and responsibilities are more particularly described in Addendum I (Scope of Services) attached hereto; and WHEREAS, Government and the contractor completed a Request for Proposal for Professional Services Number RFP-022-20 17 on July 19, 2017 and entered into contract number POO2DOTC 19 on October 5, 2017 and expired on September 30, 2019; and WHEREAS, Contract No. POO2DOTCI9 included a three (3) year renewal option, which the Government did not exercise, rather the Government desires to enter into a one (I ) year contract with the Contractor; and WHEREAS, the Contractor represents that it is willing and capable of providing such services; and NOV. THEREFORE, in consideration of the mutual covenants herein contained, and intending to be legally bound by this written instrument, the pailies hereto do covenant and agree as follows: I. SERVICES The Contractor will provide the services described in Addendum I (Scope of Services) attached hereto and made a part of this contract. 2. TERM AND EFFECTIVE DATE The term of this Contract shall be from October I, 2019 — September 30, 2020. Upon the date of execution of this Contract by the Governor of the U. S. Virgin Islands, this Contract shall become effective for the Tenr set out herein. The Government in its sole discretion, shall have the option to renew this Contract for a period of one additional year subject to the same terms noted herein, by providing the Contractor with sixty (60) days written notice of the Government’s election to renew. 3. COMPENSATION The Government, in consideration of the satisfactory performance of the services described in Addendum I (Scope of Services), agrees to pay Contractor a retainer fee of Two Million Two Hundred Fifteen Thousand Dollas and no cents (S2,2 15,000) and an out-of-pocket expense fee for the period May 1, 2020 to September 30, 2020 which shall not exceed One Million Nine Hundred Forty Thousand dollars and no cents (S1,930,000.) The sum of this contract shall not exceed Four Million One Hundred Fifty-Five Thousand Dollars and no cents (S4,I5S,000) per year in accordance with the provisions set forth in Addendum II (Compensation) attached hereto and made a part of this 1 29th September 20 P106DOTT20 OPCMR Contract. 4. TRAVEL EXPENSES included within the compensation for services as specified in Paragraph 3 (Compensation) above, the Government agrees to pay documented transportation, subsistence, lodging and other travel expenses, while in travel status, for trips which have been authorized in writing, in advance, by the Government. These costs shall be advanced or reimbursed on the same basis as is applicable to non-contract employees of the Government. or as agreed to by an addendum to this Contract, however, said costs and expenses shall not exceed twenty-five thousand dollars ($25,000). Travel shall be booked in the most economic class of service available. 5. PRODUCTION, PAID MEDIA, TALENT, BRAND HEALTH TRACKER, TOURISM OFFICE SUPPORT (Out of Pocket Expenses) Upon execution of the Contract by the Government of the Virgin Islands. the Contractor will develop creative concepts, produce and distribute creative material for the USVI on behalf of the Department of Tourism for the execution of the Department of Tourism’s marketing strategy. In addition to creative development, production and distribution, shall be costs associated with talent fees and the implementation of the Brand Health Tracker. Funds for Out of Pocket Expenses are not incorporated within tile Contractor’s retainer fee portion of this contract. The contractor must use commercially reasonable efforts to reduce vendor costs for these services between 10 and 15 percent due to the reduced budget restrictions. Therefore, the Government agrees to pay a cost which shall not exceed One Million Nine hundred forty thousand dollars and no cents (SI ,940,000) for tile period May I. 2020 to September 30, 2020 ill accordance with tile provisions set forth in Addendum II (Compensation) attached hereto. 6. RECORDS The Contractor when applicable, will present documented precise records of time and/or money expended under this Contract. 7. PROFESSIONAL STANDARDS The Contractor agrees to maintain the professional standards applicable to its profession and to consultants doing business in the United States Virgin Islands. 8. DOCUMENTS, PRINTOUTS, ETC. All documents, books. records, instructional materials, programs, printouts and memoranda of every description derived therefrom and pertaining to this Contract shall become the property of tile Government and shall be turned over to it at the termination of this Contract. The above described materials shall not be used by Contractor or by any other person or entity except upon the written permission of the Government. Any and all business records of the Contractor created and retained in the ordinary course of the Contractor’s business shall be excluded from this Section. 2 P106DOTT20 OPCMR 9. LIABILITY OF OTHERS Nothing in this Contract shall be construed to impose any liability upon the Government to persons, firms, associations, or corporations engaged by Contractor as servants, agents, or independent contractors, or in any other capacity whatsoever, or make Government liable to any such persons. firms, associations, or corporations for the acts, omissions, liabilities, obligations and taxes of Contractor of whatsoever nature, including but not limited to unemployment insurance, gross receipt, excise, and social security taxes for Contractor, its servants, agents or independent contractors. 10. ASSIGNMENT The Contractor shall not subcontract or assign any part of the services under this Contract without the prior written consent of the Government. II. INDEMNIFICATION Except as otherwise provided for herein, it will be the responsibility of Contractor to make certain that the necessary contracts or releases have been obtained with or from those whose names, likenesses, testimonials, scripts, musical compositions. or other third party material or rights are used in the Government’s advertising or other materials prepared under this agreement, and Contractor agrees to indemnify the Government against any liabilities and expenses (including reasonable attorneys’ fees) the Government may incur as a result of claims resulting therefrom and/or proceedings relating to libel, slander, defamation, invasion of privacy, plagiarism, idea misappropriation, infringement of copyright, property right, title or slogan (other than trademark and trademark related causes of action in connection with any trademarks owned by or developed for the Government. patents. or for materials used in advertising or other marketing materials which the Government provided or took responsibility for obtaining necessary rights). It will be the responsibility of the Government to review materials prepared under this agreement and presented by Contractor to the Government to confirm the accuracy and legality of the descriptions and depictions of the Government’s products and services as well as any competitive products and services described or depicted in advertising or marketing materials prepared pursuant to this agreement. and, to the extent permitted by applicable law, the Government agrees to indemnify Contractor against any’ liabilities and expenses (including reasonable attorneys’ fees) Contractor may incur as a result of claims resulting therefrom and/or proceedings relating to such advertising or other marketing materials relating to false, deceptive, or misleading description. depiction. or comparison of the Government’s products or services, and/or competitive products or services, provided that the materials were reviewed and approved by the Government prior to their use. In any instances when the Government has provided materials for use or taken responsibility for obtaining rights for the use of materials in advertising or marketing. to the extent permitted by applicable law, the Government will indemnify Contractor with respect to any claims relating to use of such materials. The Government understands that Contractor is a signatory to collective bargaining agreements with the Screen Actors Guild. the American Federation of Television and Radio Artists. and the American Federation of Musicians, and that the use of talent by the Contractor on the Government’s behalf in commercials covered by such agreements will he subject to the terms of such agreements. The Government further recognizes that the terms of such agreements may at times be subject to differing interpretations, and that Contractor will take the position most favorable to the Government. For the avoidance of doubt, the Government shall be solely responsible for any fees associated with the use of talent in Government commercials covered by any union collective bargaining 3 P106DOTT20 OPCMR agreements (“Talent Fees”), including, but not limited to, any union wages, fees, residuals and/or pension and health contributions that may be required, and shall reimburse Contractor for any Talent Fees paid on the Government’s behalf. To the extent permitted by applicable law, the Government therefore agrees to indemnify Contractor against any such claims from talent and/or labor organizations relating to the interpretation of any of such collective bargaining agreements for work under this agreement covered by such agreements whether such claims are asserted during or after the term. For clarity, notwithstanding anything to the contrary herein, to the extent that the Government is legally unable to fulfill its indemnification obligations herein due to an applicable legal prohibition of law, it is expressly understood and agreed that Contractor shall not be responsible for indemnifying the Government in respect of any such claims falling under the Government’s indemnification obligations hereunder. Further, it is expressly understood and agreed that the Government’s indemnification obligations hereunder shall not otherwise be limited for any reason other than an applicable legal prohibition that would cause the Government’s fulfillment of its indemnification obligations hereunder to violate an applicable law. 12. INDEPENDENT CONTRACTOR The Contractor shall perform this Contract as an independent contractor and except as otherwise specified herein, nothing herein contained shall be construed to be inconsistent with this relationship or status. Notwithstanding anything to the contrary herein, for the sole and limited purpose of making authorized third party purchases and licensing of third party materials, for work under this agreement as approved in writing by the Government. Contractor shall act as agent for the Government with sequential liability so that Contractor shall not be liable to applicable third party until after full payment for such charges by the Government. 13, GOVERNING LAW l’his Contract shall be governed by the laws of the United States Virgin Islands and jurisdiction shall remain in the United States Virgin Islands, 14. WAIVERS AND AMENDMENTS No waiver, modification or amendment of any term, condition, or provision of this Contract shall be valid or of any force or effect unless made in writing, signed by the parties hereto or their duly authorized representatives, and specifying with particularity the nature and extent of such waiver, modification or amendment. Any such waiver. modification or amendment in any instance or instances shall in no event be construed to be a general waiver, modification or amendment of any of the terms, conditions or provisions ofthis Contract, but the same shall be strictly limited and restricted to the extent and occasion specified in such signed writing or writings. 15. ENTIRE AGREEMENT This agreement constitutes the entire agreement of the parties relating to the subject matter addressed in this Agreement. This agreement supersedes all prior communications, contracts, or agreements between the parties with respect to the subject matter addressed in this agreement. whether written or oral. 16. RIGHT TO WITHHOLD 4 P106DOTT20 -‘ OPCMR If work under this Contract is not performed in accordance with the terms hereof, Government will have the right to withhold out of any payment due to Contractor, such sums as Government may deem ample to protect it against loss or to assure payment ofclaims arising therefrom, and, at its option, Government may apply such sums in such manner as Government may deem proper to secure itself or to satisfy such claims. Government will immediately notify the Contractor in writing in the event that it elects to exercise its right to withhold. No such withholding or application shall be made by Government ifand while Contractor gives satisfactory assurance to Government that such claims will be paid by Contractor or its insurance carrier, if applicable in the event that such contest is not successful. 17. CONDITION PRECEDENT This Contract shall be subject to the availability and appropriation of funds and to the approval of the Governor. 18. TERMINATION Either party’ will have the right to terminate this Contract with or without cause on [30)] days written notice to the other party specifying the date of termination. The Contractor shall be entitled to receive payment for services provided to the date of termination, including payment for the period of the thirty [30] day notice. 19. PARTIAL TERMINATION The performance of work under this Contract may be terminated by the Government, in part, whenever the Government shall deem such termination advisable by providing thirty days [(30)] written notice to the Contractor. This partial termination shall be effected by delivering to the Contractor a Notice of Partial Termination specifying the extent to which the term and/or duties under this Contract are terminated and the date upon which such termination becomes effective. The Contractor shall be entitled to receive payment for services provided to the date of termination, including payment for the period of the thirty days [(30] day notice. 20. NON-DISCRIMINATiON No person shall be excluded from participating in, be denied the proceeds of or be subject to discrimination in the performance of this Contract on account of race, creed, color, sex. religion, disability’ or national origin. 21. CONFLICT OF INTEREST (a) Contractor covenants that it has no interest and will not acquire any interest direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Contract. (b) Contractor further covenants that it is: (1) not a territorial officer or employee (i.e.. the Governor. Lieutenant Governor, member of the Legislature, or any’ other elected territorial official; or an officer or employee of the legislative, executive or judicial branch of the Government or any agency. board, commission or independent instrumentality of the Government, whether compensated on a salary, fee or contractual basis); or (2) a territorial officer or employee and, as such. has: 5 P106DOTT20 OPCMR (i) familiarized itself vith the provisions of Title 3. Chapter 37 of the Virgin Islands Code. pertaining to conflicts of interest, including the penalties provision set forth in section 1108 thereof; (ii) not made, negotiated or influenced this Contract. in its official capacity; and (iii) no financial interest in the Contract as that term is defined in section 1101(l) of said Code chapter. 22. NOTICE Any notice required to be given by the Terms of this Contract shall be deemed to have been given when the same is sent by certified mail, postage prepaid or personally delivered, addressed to the parties as follows: GOVERNMENT Anthony D. Thomas Corn in i ssione r Department of Property and Procurement 8201 Sub Base. Suite 4 St. Thomas Virgin Islands 00802 Joseph Boschultc Corn in i ss i oner Department of Tourism 23 1 8 Kronprindsens Gade P.O. Box 6400 St. Thomas. USVI 00802 CONTRACTOR Keith Berard Senior Vice President, North America Wunderman Thompson LLC 466 Lexington Ave. New York. New York 10017 23. LICENSURE The Contractor covenants that it has: (a) obtained all of the applicable licenses or permits, permanent, temporary or otherwise as required by Title 27 of the Virgin Islands Code; and (b) familiarized itself with the applicable provisions of Title 27 of the Virgin Islands Code pertaining to professions and occupations. 24. INTELLECTUAL PROPERTY As a material condition to which Contractor agrees in exchange for the opportunity to provide the Services, Contractor expressly acknowledges and agrees that all reports, documents. improvements, discoveries, inventions. processes, designs, plans. and trade secrets, whether of a technical nature or not, made or developed by Contractor 6 P106DOTT20 OPCMR alone or in conjunction with any other person or entity in connection with providing the Services, which relate to or affect the business of the Department of Tourism and are set forth in the Scope of Services (“Intellectual Property”), shall be the sole and exclusive property of Government of the Virgin Islands. Contractor expressly agrees to disclose and reveal to the Department of Tourism all Intellectual Property, and all information regarding Intellectual Property, concurrent with the discovery or development of the Intellectual Property. Contractor hereby assigns to the Department of Tourism all rights, title, and interests in all Intellectual Property belonging to the Government of the Virgin Islands. Contractor agrees not to use or disclose any Intellectual Property owned by the Department of Tourism to benefit a competitor, customer, individual, or other entity without the express written permission of the Commissioner of Tourism. The Government agrees that this Section 24 does not affect or apply to the following: i. Contractor’s pre-existing processes, approaches, trade secrets, improvements, discoveries, inventions, designs, plans, and the like which are used and useable in the Contractor’s business; ii. such items of intangible propert’ whose use is widespread in the marketing and advertising industiy iii. any similar or like item of intangible property developed at any time for projects not arising from this Contract. Notwithstanding anything to the contrary herein, to the extent any third—party materials (“Third Party Materials”) are incorporated in any materials created pursuant to this Contract with the Government’s prior written permission, such Third Party Materials shall be owned by the applicable third parties and shall be subject to applicable third party rights and the terms of the applicable license agreement. 25. OTHER PROVISIONS Addenda I and II attached hereto are a part of this Contract and are incorporated herein by reference. 26. DEBARMENT CERTIFICATION By execution of this contract, the contractor certifies that it is eligible to receive contract awards using federally appropriated funds and that it has not been suspended or debarred from entering into contracts with any federal agency. The Contractor shall include this provision in each of its subcontracts hereunder and shall furnish its subcontractors with the current “LIST OF PARTIES EXCLUDED FROM FEDERAL PROCUREMENT OR NON PROCUREMENT”. In the event the Contractor or any subcontractor misrepresents its eligibility to receive contract awards using federal funds, the Contractor or subcontractor agrees that it shall not be entitled to payment for any work performed under this contract or any subcontract and that the Contractor or subcontractor shall promptly reimburse the Government of the Virgin Islands for any progress payments heretofore made. 27. FALSE CLAIMS Contractor warrants that it shall not, with respect to this Contract, make or present any claim upon or against the Government of the Virgin Islands. or any officer department, board, commission. or other agency thereof, knowing such claims to be false, fictitious or fraudulent. Contractor acknowledges that making such a false, fictitious or fraudulent claim is an offence under Virgin Islands law. 7 P106DOTT20 A OMR 28. INSURANCE Contractor shall maintain the following insurance coverages during the term of this Contract (a) COMMERCIAL GENERAL LIABILITY: Commercial general liability insurance, in a form acceptable to the Government, on a “Pa occurrence” basis with a minimum limit of not less than one million dollars ($1,000,000.00) for any one person per occurrence for death or personal injuiy and one million dollars ($1,000,000.00) for any one occurrence for property damage. Insurance policy(ies) shall name the Government of the Virgin Islands as the certificate holder and additional insured via an endorsement. (b) PROFESSIONAL LIABILITY: Professional liability insurance, in a form acceptable to the Government. which covers the services being performed under this Contract, with policy limits of not less than one million dollars ($1,000,000.00) per claim. The Government shall be listed thereon as a certificate holder. (c) WORKERS’ COMPENSATION: Contractor shall supply current coverage under the Government Insurance Fund or other form of coverage. IN WITNESS WHEREOF, the parties have hereunto set their hands on the day and year first above written. O Date1 ___________________ ________________________ 9/17/2020 Anthony Thomas, Commissioner Date _______________________ Department of Property and Procurement CONTRACTOR Keith r&d, Senior VP, NA Director of Finance Date Wunderman Thompson LLC. (Corporate seal, if Contractor is a corporation) OF TILE VIRGII ISLANDS P106DOTT20 APPROVED: Date: OPCMR Honorable Albert Bryan Jr. GOVERNOR OF THE U.S. VIRGIN ISLANDS APPROVED AS TO LEGAL DEPARTMENT OF JUSTICE BY: _________________________ 9/18/2020 PURCHASE ORDER NO.________ Anthony D. Thomas, Commissioner Department of Property and Procurement 9 P106DOTT20 9-29-20