Sr. Vice Commander and Quartermaster’s Conference Contracts, Post Property and PII John Muckelbauer, General Counsel April 6, 2019

Contracts

Contract Drafting Four Corners Rule Focus on the Big Picture Clear and unambiguous – contract speaks for itself Other agreements/discussions do not matter Most litigation arises because contracts are unclear

Contracts Your negotiations begin once you’ve made initial contact with the other party. Communicate your expectations up front. Read the contract and understand the commitment you are making; do not sign without full understanding of how this commitment could affect you if what is agreed to is not realized in the end.

Hotel and Events Contracts Key Provisions Rooms and Room rates Clearly list room block size and room rate Rates – Lowest rate available Include dates/deadlines for room block adjustment–flow down to attrition Warranty of Condition Hotel should promise quality

Hotel and Events Contracts Key Provisions, cont. Sample Warranty Provision: “Should the Hotel or its surrounding area suffer a substantial deterioration in the quality of its facilities or services, (VFW) shall notify the General Manager of its concerns in writing. Should the Hotel be unable to correct the deficiencies of the facilities or services to (VFW’s) reasonable expectations, (VFW) may cancel this Agreement without liability upon written notice to the Hotel and seek appropriate penalties from the Hotel.”

Hotel and Events Contracts Key Provisions, cont. Guaranteed Minimum and Attrition: Understand the Hotel’s needs Negotiate as much time as possible for the “Cut Off” date Updates before Cut Off date don’t create liability Negotiation the lowest Attrition allowance Up to 20% is standard Ensure there is a re-sale clause

Hotel and Events Contracts Key Provisions, cont. Cancellation-Calculation of Damages: Tiered cancellation tied to notice date Key consideration is whether Hotel has time to fill the rooms Know exactly what is included in calculating lost revenue Ensure you get credit for rooms used during your planned event Should not be a windfall for the Hotel

Hotel and Events Contracts Key Provisions, cont. Force Majeure: Standard clauses usually aren’t enough Need to tie force majeure to occurrences preventing a substantial number of attendees from participating and/or getting to the meeting site Prefer capturing this in the contract rather than leaving to chance

Hotel and Events Contracts Key Provisions, cont. Sample Force Majeure: “The performance of this Agreement by either party is subject to acts of nature (Acts of God), war, government regulation, acts of terrorism, disaster, fire, strikes, civil disorder, curtailment of transportation facilities preventing or unreasonably delaying at least 25% of event attendees and guests from appearing at the event, or other similar cause beyond the control of the parties making it inadvisable, illegal, or commercially impracticable to hold the event or provide the facility. This agreement may be terminated or performance excused by either party without penalty for any one or more reasons by written notice from one party to the other.”

Contracts Key Provisions, Cont. Penalties: What is on the line? Cancellation clauses (liquidated damages/made whole) Do not accept clause that requires payment before scheduled date of event Ensure to negotiate an audit/verification May require NDA Indemnification (“Hold Harmless”) Must be mutual

Contracts Key Provisions, Cont. Contract addendum Addends specific clauses in contract Make sure you incorporate Addendum by reference Preference is to change language in the actual agreement If it isn’t in writing, it’s called begging.

Post Property

We Revoked Their Charter, Post Property We Revoked Their Charter, Now They Are Mad

Inventory Assets Post Property Obtain Access to all Accounts Create List of Creditors/Determine Debts Notify Bank of the Status of the Post Inventory Property, Real and Personal Consider a Title Search Photograph other property Make a good faith attempt to identify all assets

Inventory Liabilities Post Property Inventory Liabilities  Liens Mortgage---Voluntary liens Involuntary liens---contractor/state/federal Best to use a service Assets go to the Department, and so may the Debts Notify Creditors IRS “not likely to pursue” tax debt Employment Taxes (usually pursued) Identify outstanding Contracts Review termination clause

Fiduciary Duties Still Exist Seek Legal Counsel for Local Requirements Post Property Fiduciary Duties Still Exist Remind Officers of Obligation of Office Seek Legal Counsel for Local Requirements State laws vary regarding voluntary and involuntary dissolution of nonprofits Notify relevant state agencies Inform IRS via 990, 990-EZ, or 990-N See IRS Publication 4779 for details There are deadlines

Personally Identifiable Information (PII)

Personally Identifiable Information (PII) What is Personally Identifiable Information (PII)? Information, used alone or in combination, that identifies a particular person. Examples include: Name Address Phone Number Social Security Number Birth Date

Personally Identifiable Information (PII) Personally Identifiable Information must be protected from disclosure to a third party. How is it disclosed? Via email Unsecured WiFi networks Computers or phones without passwords Paperwork not stored securely

Personally Identifiable Information (PII) How is Personally Identifiable Information used in the VFW? DD214s for Membership Verification Unmet Needs applications

Personally Identifiable Information (PII) How to protect Personally Identifiable Information Redact (black out) PPI on documents before they are shared Encrypt or password protect documents Beware of uploading to a cloud Password protect your computer, laptop and phone Don’t leave paperwork out – lock it up Shred documents when you are done with them

QUESTIONS? John Muckelbauer, General Counsel (816) 968-1140 jmuckelbauer@vfw.org Monica Levy, Paralegal (816) 968-2783 mlevy@vfw.org