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

2. Contracts

3. 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

4. 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.

5. 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

6. 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.”

7. 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

8. 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

9. 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

10. 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.”

11. 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

12. 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.

13. Post Property

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

15. 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

16. 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

17. 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

18. Personally Identifiable Information (PII)

19. 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

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

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

22. 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

23. QUESTIONS? John Muckelbauer, General Counsel (816) 968-1140
Monica Levy, Paralegal
(816)