HomeMy WebLinkAboutCD 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.
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ORIGIN"AL
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(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,
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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
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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
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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:
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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
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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