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CD Voluntary Collection for Transient Occupancy TaxDocuSign Envelope ID: FE2CFF59-330D-4C89-8630-6EE8760F257A VOLUNTARY COLLECTION AGREEMENT FOR CITY OF SAN RAFAEL, CALIFORNIA, TRANSIENT OCCUPANCY TAX THIS VOLUNTARY COLLECTION AGREEMENT (the "Agreement") is dated 11/Z7/2019 2019 and is between AIRBNB, INC., a Delaware corporation ("Airbnb"), and the CITY OF SAN RAFAEL, 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 and/or activities ("Hosts") and third parties booking such accommodations and/or activities ("Guests") may communicate, negotiate and consummate a direct booking transaction for accommodations and/or activities to which Airbnb is not a party ("Booking Transactions"); 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 and applicable sales taxes ("Taxes") imposed under applicable City of San Rafael, California, law (the applicable "Code"), on behalf of certain Hosts for Booking Transactions completed by such Hosts and Guests on the Platform for accommodations transactions located in San Rafael, California (the "Taxable Booking Transactions"). NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS, PROMISES AND AGREEMENTS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS: (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 by Hosts other than those defined in Paragraphs (E) and (E-1) below, Airbnb agrees contractually to assume the duties of a Taxes collector as described in the Code solely for the collection and remittance of Taxes on behalf of such Hosts (hereinafter referred to as a "Collector"). (B) Starting on January 1, 2020 (the "Effective Date"), Airbnb agrees to commence collecting and remitting Taxes on behalf of certain Hosts, pursuant to the terms of this Agreement, at the applicable rate, on Taxable Booking Transactions. Except as set forth in Paragraph (L) below, Airbnb shall not assume any obligation or liability to collect Taxes for any period or for any transaction prior to the Effective Date or after termination of this Agreement. � _3 - 003 ORIGIN"AL DocuSign Envelope ID: FE2CFF59-330D-4C89-8830-6EE8760F257A (C) Except as set forth in Paragraph (E) below, Airbnb agrees to register as a Collector on behalf of Hosts for the sole purpose of reporting, collection and remittance of Taxes under this Agreement, and will be the registered Collector on behalf of any affiliate or subsidiary collecting Taxes. The assumption of such duties described in Paragraph (A) above and this Paragraph (C) shall not trigger any other registration requirements to which Airbnb is not otherwise subject. REMITTANCE OF TAXES (D) 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 Taxes that are subject to the provisions of this Agreement. Airbnb shall remit all Taxes collected from Guests in accordance with this Agreement and Airbnb's Terms of Service (www.airbnb.com) (tile "TOS") in the time and manner described in the Code or as otherwise agreed to in writing. REGISTERED HOSTS (E) Airbnb reserves the right to implement a software feature on the Platform whereby Airbnb collects Taxes based on tax information supplied by the Host, and remits such Taxes to Hosts for ultimate reporting and remittance by the Host to the Taxing Jurisdiction. In such cases, a Host must provide to Airbnb its (i) applicable Tax identification or registration number; (ii) applicable business identification number; and (iii) acknowledgement of its obligation to collect all Taxes owed on a Host's Taxable Booking Transactions and to remit and report any Taxes collected directly to the Taxing Jurisdiction (a "Registered 1Elost"). Upon request from the Taxing Jurisdiction, and not more than once per consecutive twelve-month period, Airbnb may provide the Taxing Jurisdiction with copies of documentation related to Registered Hosts. (E-1) Airbnb satisfies its obligations under this Agreement by remitting the full amount of Taxes collected on behalf of Hosts to the Taxing Jurisdiction, and in the case of Registered Hosts only, by remitting the Taxes collected on a Registered Host's Taxable Booking Transactions directly to the Registered Host. AIRBNB LIABILITY (F) Pursuant to the terms of this Agreement, Airbnb agrees contractually to assume ZD liability for any failure to report, collect and/or remit the correct amount of Taxes, including, but not limited to, penalties and interest, lawfully and properly imposed in compliance with the Code. Nothing contained herein nor any action taken pursuant to this Agreement shall impair, 2 DocuSign Envelope ID: FE2CFF59-330D-4C89-8B30-6EE8760F257A restrict or prevent Airbnb from asserting that any Taxes and or penalties, interest, fines or other amounts assessed against it were not due or are the subject of a claim for refund under applicable law, or otherwise bar it from enforcing any rights accorded by law. Notwithstanding the above and solely with respect to Registered Hosts, Airbnb does not assume any liability for the failure of a Registered Host to comply with any applicable collection, reporting or remittance obligations related to Taxable Booking Transactions. Further, Airbnb does not assume any liability for collection based on information supplied by the Registered Host. AUDIT (G) 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 Tax returns filed and supporting documentation. The Taxing Jurisdiction reserves the right to audit any individual Host for activity that has been brought to the attention of the Taxing Jurisdiction in the form of a complaint or other means independent of this Agreement or independent of data or information provided pursuant to this Agreement. (H) The Taxing Jurisdiction agrees to audit Airbnb on an anonymized transaction basis for 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 Taxable 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 parties agree to utilize appropriate sampling audit methodologies based on a standard sample period which may be projected against the remainder of any periods open under the applicable statute of limitations, unless Airbnb elects, at its sole discretion, to undergo further audit of such open periods by the Taxing Jurisdiction. GUEST AND HOST LIABILITY (I) During any period in which this Agreement is effective, and provided Airbnb is in compliance with its obligations herein, Hosts shall be relieved of any obligation to collect and remit Taxes on Taxable Booking Transactions, and shall be permitted but not required to register individually with the Taxing Jurisdiction to collect, remit and/or report Taxes. Notwithstanding the above, Registered Hosts will be solely responsible for directly remitting Taxes collected on Taxable Booking Transactions to the Taxing Jurisdiction. Nothing in this Agreement shall relieve Guests or Hosts from any responsibilities with respect to Taxes for transactions 3 DocuSign Envelope ID: FE2CFF59-330D-4C89-8B30-6EE8760F257A completed other than on the Platform, or restrict the Taxing Jurisdiction from investigating or enforcing any provision of applicable law against such users for such transactions. WAIVER OF LOOK -BACK (J) The Taxing Jurisdiction expressly releases, acquits, waives and forever discharges Airbnb, its current or past affiliated parent or subsidiary companies, directors, shareholders, investors, employees and other agents from any and all actions, causes of action, indebtedness, suits, damages or claims arising out of or relating to payment of and/or collection of Taxes or other tax indebtedness, including but not limited to penalties, fines, interest or other payments relating to Taxes 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 claim, cause of action or indebtedness that the Taxing Jurisdiction may have or claim to have against any Host or Guest unrelated to Taxable Booking Transactions under this Agreement. NOTIFICATION TO GUESTS AND HOSTS (K) Airbnb agrees, for the purposes of facilitating this Agreement, and as required by its TOS, that, except with respect to Registered Hosts, it will notify (i) Hosts that Taxes will be collected and remitted to the Taxing Jurisdiction as of the Effective Date pursuant to the terms of this Agreement; and (ii) Guests and Hosts of the amount of Taxes collected and remitted on each Taxable Booking Transaction. LIMITATION OF APPLICATION (L) This Agreement is solely for the purpose of facilitating the administration and collection of the Taxes 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 or of any State or subdivision or municipality thereof. Neither Party waives, and each Party expressly preserves, any and all arguments, contentions, claims, causes of action, defenses or assertions relating to the validity or interpretation or applicability of the Code, regulations or application of law. (L -l) If Airbnb expands the types of transactions that may be completed by Hosts and Guests on the Platform to include additional taxable services or products located in San Rafael, California, and Airbnb decides in its sole discretion to collect and remit any applicable taxes with respect to such transactions on behalf of Hosts and/or Guests, Airbnb agrees to provide 4 DocuSign Envelope ID: FE2CFF59-330D-4C89-8830-6EE8760F257A reasonable notice to the Taxing Jurisdiction regarding the collection and remittance of such taxes. DURATION/TERMINATION (M) This 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 of the calendar month following 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 Taxes 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 effective date of termination. MISCELLANEOUS (N) CHOICE 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. (0) MODIFICATION. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties. (P) MERGER AND INTEGRATION. 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. (Q) COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of 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. (R) RELATIONSHIP OF THE PARTIES. Tile Parties are entering into an arm's-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 DocuSign Envelope ID: FE2CFF59-330D-4C89-8B30-6EE8760F257A employment relationship between the Parties. There are no third -party beneficiaries to this Agreement. (S) WAIVER AND CUMULATIVE 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. (T) FORCE MAJEURE. 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. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused. (U) 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. (V) MISCELLANEOUS. 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 (W) All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the third business day after first class mailing postage 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: 6 DocuSign Envelope ID: FE2CFF59-330D-4C89-8B30-6EE8760F257A To Airbnb: Airbnb, Inc. Airbnb, Inc. Attn: General Counsel Attn: Global Head of Tax 888 Brannan Street, 4°i Fl. 888 Brannan Street, 4"' Fl. SF, CA 94103 SF, CA 94103 legal@airbnb.com tax a,airbnb.com To the Taxing Jurisdiction: City of San Rafael Finance Department 1400 5th Ave San Rafael, CA 94901 AR@cityofsanrafael.org (Signatures follow on next page) DocuSign Envelope ID: FE2CFF59-330D-4C89-8830-6EE8760F257A IN WITNESS WHEREOF, Airbnb and the Taxing Jurisdiction have executed this Agreement effective on the date set forth in the introductory clause. AIRBNS, INC., a Delaware corporation By:PDocuSlgned by: 1Lln. VG�OsHx. A F28r22GA9G?-rG@4Bfi Signature of Authorized Representative Mirei Yasumatsu Global Head of Tax Name and Title of Authorized Representative CITY OF SAN RAFAEL, CALIFORNIA By: Si at re Jim Schutz City Mana er Name and Title 8 �p,� RAP 1 a 2 �, yo 'TY WITH PV' CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT Contracting Department: Community Development Project Manager: Ethan Guy Extension: x2392 Contractor Name: AirBnB Contractor's Contact: Allison Peck Contact's Email: allison.peck@airbnb.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT a. Email PINS Introductory Notice to Contractor DATE Check/Initial 1 Project Manager N/A ❑x 11/15/2019 EBG b. Email contract (in Word) & attachments to City Atty c/o Laraine.Gittens@cityofsanrafael.org ❑X EBG 2 City Attorney a. Review, revise, and comment on draft agreement 11/14/2019 and return to Project Manager N/A ❑X LG b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor ❑ 3 Project Manager Forward three (3) originals of final agreement to 11/27/2019 ❑X EBG contractor for their signature 4 Project Manager When necessary, * contractor -signed agreement ❑X N/A agendized for Council approval *PSA > $75,000; or Purchase > $75,000; or Or ❑ Public Works Contract > $175,000 N/A Date of Council approval PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City City Attorney Attorney with printed copy of this routing form 6 Review and approve hard copy of signed y ( N�-- agreement 7 City Attorney Review and approve insurance in PINS , and bonds / (for Public Works Contracts)�%� 8 City Manager/ Mayor Agreement executed by Council authorized official 9 City Clerk Attest signatures, retains original agreement and N� forwards copies to Project Manager