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HomeMy WebLinkAboutVoluntary Service Agreement - AirbnbVOLUNTARY COLLECTION AGREEMENT FOR CITY OF SAN LUIS OBISPO TRANSIENT OCCUPANCY TAX AND APPLICABLE ASSESSMENTS THIS VOLUNTARY COLLECTION AGREEMENT (the "Agreement") is dated June 7, 2018 and is between AIRBNB, INC., a Delaware corporation ("Airbnb") and the FINANCE DEPARTMENT OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA (the "Taxing Jurisdiction-). Each party may be referred to individually as a "Party" and collectively as the "Parties." RECITALS: WHEREAS, Airbnb represents that it provides an Internet -based platform (the "Platform") through which third parties offering accommodations ("Hosts") and third parties booking such accommodations ("Guests") may communicate, negotiate and consummate a direct booking transaction for accommodations to which Airbnb is not a party ("Booking "Transaction"); and WHEREAS, the Taxing Jurisdiction and Airbnb enter into this Agreement voluntarily in order to facilitate the reporting, collection and remittance of applicable transient occupancy taxes ("TOT") imposed under applicable City of San Luis Obispo law (the applicable "Code"), applicable San Luis Obispo City Tourism Business Improvement District ("SLO TBID") assessments, and applicable San Luis Obispo County Tourism Marketing District ("TMD") assessments (hereinafter collectively referred to as "TBID") levied pursuant to the TBID and TMD Plans (collectively, the "TBID Plans") collected by the City, on behalf of Hosts, for Booking Transactions completed by I losts and Guests on the Platform for accommodations located in the City of San Luis Obispo (the "Taxable Booking Transactions"). NOW THEREFORE, ITS CONSIDERATION OF THE NIUTI.AI COVENANTS, PROMISLS AND AGREEMENTS CONTAINED HEREIN, THE PARTIES AGREE AS I OLLOWS: (A) Solely pursuant to the terms and conditions of this Agreement, including only for periods in which this Agreement is effective (defined below), and solely for Taxable Booking Transactions completed on the Platform, Airbnb agrees contractually to assume the duties ofa TOT collector as described in the Code solely for the collection and remittance of TOT (hereinafter referred to as a "TOT Collector") and assume the duties ofa TBID collector N .2.2017 pursuant to the 1131D Plans ("TBID Collector"). fhc assumption of such duties shall not trigger any other registration requirements to which Airbnb is not otherwise subject. (B) Starting on August 1, 2018 (the "Effective Date"). Airbnb agrees to commence collecting and remitting fOT and TBID on behalf of Hosts, pursuant to the terms of this Agreement, at the applicable rates, on Taxable Booking Transactions. Except as set forth in Paragraph (L) below, Airbnb shall not assume any obligation or liability to collect 101 or TBID for any period or for any transaction prior to the Effective Date or termination of this Agreement. REMITTANCE. OF TOT AND TBID (C) Airbnb agrees reasonably to report aggregate information on the tax return form prescribed by the Taxing Jurisdiction, including an aggregate of gross receipts, exemptions and adjustments, and taxable receipts of all TOT and TBID that is subject to the provisions ofthis Agreement. Airbnb shall remit all TOT and TBID collected from Guests in accordance with this Agreement and Airbnb's Terms of Scrvice (www.airbitb.co n) (the "TOS") in the time and manner described in the Code, the TBID Plans, or as otherwise agreed to in writing. The Parties hereby agree that, for the purposes of collecting TBID pursuant to this Agreement, all I axable Booking Transactions will be assessed at the aPpt. tt.atG r;,e, AIRBNB LIABILITY (D) Pursuant to the terms of this Agreement, Airbnb agrees contractually to assume liability for any failure to report, collect and'or remit the correct amount of TOT and TBID, including, but not limited to, penalties and interest, lawfully and properly imposed in compliance with the Code or the Plan (subject to the agreed upon TBID assessment calculation set forth in Paragraph (C)). Nothing contained herein nor any action taken pursuant to this Agreement shall impair, restrict or prevent Airbnb from asserting that any TOT. TBID and. or penaltieti, interest, lines or other amounts assessed against it were not due, are the subject of a claim for refund under applicable law or otherwise bar it from enforcing any rights accorded by law. (E) During any period for which Airbnb is not in breach of its obligations under this Agreement, the Taxing Jurisdiction agrees to audit Airbnb on the basis of TOT and TBID returns and supporting documentation, and agrees not to directly or indirectly audit any individual Guest or Host relating to Taxable Booking 1'ransactions unless and until an audit of ,Airbnb by the Taxing Jurisdiction has been exhausted with the matter unresolved. The Taxing Jurisdiction reserves the right to audit any individual Airbnb Host for activity that has been brought to the 2 v.2.2017 attention of the I axing Jurisdiction in the form of a complaint or other means independent of this Agreement or independent otdata or information provided pursuant to this Agreement. (F) The Taxing Jurisdiction agrees to audit Airbnb on an anonymized transaction basis f'or Taxable Booking Transactions. Except as otherwise agreed herein, Airbnb shall not be required to produce any personally identifiable information relating to any Host or Guest or relating to any Booking Transaction without binding legal process served only after completion of an audit by the Taxing Jurisdiction of Airbnb with respect to such users. The Taxing Jurisdiction agrees that it will not audit or issue an assessment against Airbnb more than once per any consecutive forty-eight month period and that such audit or assessment will be limited to a consecutive twelve-month period within the forty-eight month period. (G) Airbnb, Inc. agrees to register as a TOT Collector Cor the sole purpose of reporting, collection and remittance of TOT under this Agreement and will be the registered TOT Collector on behalf of any of d iate or subsidiary collecting TOT. Airbnb, Inc. agrees to register as a TBID Collector for the reporting, collection and remittance of TBID under this Agreement and will be the registered TBiD Collector on behalf of any affiliate or subsidiary collecting TBID. GUEST AND HOST LIABILITY (H) During any period in which this Agreement is effective relating to Taxable Booking Transactions, provided Airbnb is in compliance with its obligations herein, Hosts shall be relieved of any obligation to collect and reinit'I OI' and/or [BID on Taxable Booking Transactions, and shall be permitted but not required to register individually with the Taxing Jurisdiction to collect, remit and. or report TOT an&or TBiD. Nothing in this Agreement shall relieve Guests or Hosts from any responsibilities with respect to TOT andlor TBID for transactions completed other than on the Platform, or restrict the I axing Jurisdiction from investigating or enforcing any provision of applicable law against such users for such transactions. WAIVER OF LOOK -BACK (I) The Jurisdiction expressly releases, acquits, waives and forever discharges Airbnb, its current or past affiliated parent or subsidiar) companies, directors, shareholders investors, employees and other agents. and'or Hosts or Guests from any and all actions, causes of action. indebtedness, suits, damages or claims arising out of or relating to payment of and or collection oFTOT and'or TBID or other tax indebtedness. including but not limited to penalties, fines, v.2.2017 interest or other payments relating to TOT and'or TBID on any Taxable Booking Transactions prior to the Effective Date. Nothing contained in this Paragraph of this Agreement will constitute a release or waiver of any clairn, cause of action or indebtedness that the Jurisdiction may have or claim to have against any Host or Guest unrelated to Taxable Booking Transactions under this Agreement. NOTIFICATION TO GUESTS AND 11OS1'S (1) Airbnb agrees, for the purposes of facilitating this Agreement, and as required by its TOS, that it will notify (i) I losts that 101 and I BID will be collected and remitted to the Taxing Jurisdiction as of the I;llective Date pursuant to the terms of this Agreement; and (ii) Guests and Hosts of the amount ofTOT and TBID collected and remitted on each Taxable Booking Transaction. TBID PARTICIPATION (J-1) Solely for the purposes ofsatistying any listing or reporting requirements under the Plan. Airbnb shall be listed as the "lodging business" tier the purposes of any disclosure under the TBID Plans. Airbnb expressly waives the right to vote or otherwise participate or take any action relating to the TBID except for acting as a TBID Collector and remitting TBID to the City pursuant to the TBID Plans. Any I lost shall be entitled to vote, participate or otherwise take any action that could be taken by a "lodging business" that collects and rernits 'TBID directly to the City. I he City shall accept transactional records produced by a Host from the Platform as sufficient evidence to substantiate the amount of TBID paid by any Host. The City shall post any notices required to be delivered to any `lodging business" on the City's website. LIMITATION OF APPLICATION (K) This Agreement is solely for the purpose of facilitating the administration and collection of the TOT and TBID with respect to Taxable Booking Transactions and, except with respect to the rights and liabilities set forth herein, the execution of or actions taken under this Agreement shall not be considered an admission of law or fact or constitute evidence thereof' under the Code or any other provisions of' the laws of the United States of America. of any State or subdivision or municipality thereof. Neither Party waives, and expressly preserves, any, and all arguments, contentions, claims, causes of action, defenses or assertions relating to the validity or interpretation or applicability ofthe Code, regulations or application of law. 4 v.2.2017 DURATION/TERMINATION (L)'l his Agreement may be terminated by Airbnb or the Taxing Jurisdiction for convenience on 30 day written notification to the other Party. Such termination will be effective on the first day ofthe calendar month fallowing the 30 day written notification to the other Party. Any termination under this Paragraph shall not affect the duty of Airbnb to remit to the Taxing Jurisdiction any TOT and'or TBID collected from Guests up through and including the effective date of termination of this Agreement, even if not remitted by Airbnb to the Taxing Jurisdiction as of the date of termination. Either Airbnb or the Tax Department may terminate collection of TBID pursuant to this Agreement for convenience on 30 days ,N.ritten notice to the other Party. Any termination of TBID under this Paragraph shall not affect the duty of Airbnb to remit to the Tax Department any TBID collected from Guests up through and including the effective date of tenmination of this collection of TBID pursuant to this Agreement, even if not remitted by Airbnb to the Tax Department as of the date of termination. MISCELLANEOUS (M) C1 IOICE OF LAW. This Agreement, its construction and any and all disputes arising out of or relating to it, shall be interpreted in accordance with the substantive laws of the State of California without regard to its conflict of law principles. (N) MODIFICATION. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties. (0) MERGER AND IN fL-GRATION. This Agreement contains the entire agreement of the Parties with respect to the subject matter of this Agreement, and supersedes all prior negotiations, agreements and understandings with respect thereto. (P) COUNTF,RPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all ot'which, when taken together, shall constitute one and the same instrument. The Agreement shall become effective when a counterpart has been signed by each Party and delivered to the other Party, in its original form or by electronic mail, facsimile or other electronic means. The Parties hereby consent to the use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures to this Agreement shall be legally binding with the same force and effect as manually executed signatures. v.2.2017 (Q) RELA I'IONSHlP OF l liL PAR I IES. The Parties are entering into an arms- length transaction and do not have any relationship, employment or otherwise. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, or employment relationship between the Parties. There are no third -party beneficiaries to this Agreement. (R) WAIVER AND CUMULA I IVE REMEDIES. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. (S) FORCE MAJEURF. Neither Party shall be liable for any failure or delay in performance under this Agreement for causes beyond that Party's reasonable control and occurring without that Party's fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire. civil unrest, acts of terror, strikes or other labor problems (other than those involving Airbnb employees), computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Date', by which performance obligations are scheduled to be met will be extended tier a period of time equal to the time lost due to any delay so caused. (T) ASSIGNMENT. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, Airbnb may, assign this Agreement in its entirety without consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. (U) MISCULANEOUS. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. NOTICES (V) All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (1) personal delivery; (ii) the third business day after first class mailing postage v.2.2017 prepaid: or (iii) the second business day after sending by overnight mail or by facsimile with telephonic confirmation of receipt. Notices shall be addressed to the attention of the following persons, provided each Party may modify the authorized recipients by providing written notice to the other Party: l o Airbnb: Airbnb, Inc. Attn: General Counsel 888 Brannan Street, 4'' FI SF, CA 94103 legal(c4airbnb.com Airbnb, Inc. Attn: Global Head of Tax 888 Brannan Street, 4"' Fl SF, CA 94103 t"Ix'cairhnh.coin To the Taxing Jurisdiction: City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 9340 t Fax: 8(L4-781-7401 E-mail: bt@slocity.org (Signatures follow on next page) v.2.2017 IN WITNESS WHEREOF, Airbnb and the Taxing Jurisdiction have executed this Agreement effective on the date set forth in the introductory clause. X Jon nsolabeherc City Attorney for Christine Dietrick AIRBNB, INC., a Delaware corporation r By. - - Signature of Authorised Representative Nlirei Yasumatsu, Global Tax Director amc an -Title oFXutF0—rizeRepresentative THE FINANCE DEPARTMENT OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA By: Signature Bm,1T [`r-- �Li/ tz_ 1t�1TCz�11U IN�WGY��t ���C� Name and Title z v.2.2017