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HomeMy WebLinkAboutAirbnb Inc; 2018-06-11;VOLUNTARY COLLECTION AGREEMENT FOR CITY OF CARLSBAD, CALIFORNIA TRANSIENT OCCUPANCY TAX AND APPLICABLE ASSESSMENTS THIS VOLUNTARY COLLECTION AGREEMENT (the "Agreement") is dated ..J';, ,vt? (/ , 2018 and is between AIRBNB, INC., a Delaware corporation ("Airbnb") and CITY OF CARLSBAD, 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 Carlsbad (the "City") law (the applicable "Code"), and applicable Carlsbad Tourism Business Improvement District ("CTBID") assessments levied pursuant to Resolution No. 2005-281 and Chapter 3.37.050 of the Code (collectively, the "CTBID Plan") and collected by the City, on behalf of Hosts for Booking Transactions completed by Hosts and Guests on the Platform for accommodations located in City of Carlsbad (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, Airbnb agrees contractually to assume the duties of a 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 of a CTBID assessment collector pursuant to the CTBID Plan ("CTBID Collector"). The assumption of such duties shall not trigger any other registration requirements to which Airbnb is not otherwise subject. v.2.2017 (B) Starting on August 1, 2018 (the "Effective Date"), Airbnb agrees to commence collecting and remitting TOT and CTBID assessments 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 TOT or CTBID assessments for any period or for any transaction prior to the Effective Date or termination of this Agreement. REMITTANCE OF TOT AND CTBID ASSESSMENTS (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 CTBID assessments that is subject to the provisions of this Agreement. Airbnb shall remit all TOT and CTBID assessments collected from Guests in accordance with this Agreement and Airbnb's Terms of Service (www .airbnb.com) (the "TOS") in the time and manner described in the Code, the CTBID Plan, or as otherwise agreed to in writing. The Parties hereby agree that, for the purposes of collecting CTBID assessments pursuant to this Agreement, all Taxable Booking Transactions will be assessed at the rate of one dollar per occupied room per night for all transient occupancies. 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 CTBID assessments, 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 CTBID 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, CTBID assessment and/or penalties, interest, fines 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 CTBID assessment returns and supporting documentation, and agrees not to directly or indirectly audit any individual Guest or Host relating to Taxable Booking Transactions unless and until an audit of Airbnb by the Taxing Jurisdiction has been exhausted with the matter unresolved. The Taxing 2 v.2.2017 Jurisdiction reserves the right to audit any individual Airbnb 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. (F) 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 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 for the sole purpose of reporting, collection and remittance of TOT under this Agreement and will be the registered TOT Collector on behalf of any affiliate or subsidiary collecting TOT. Airbnb, Inc. agrees to register as a CTBID assessment Collector for the reporting, collection and remittance of CTBTD assessments under this Agreement and will be the registered CTBID assessment Collector on behalf of any affiliate or subsidiary collecting CTBID assessments. 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 remit TOT and/or CTBID assessments 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 and/or CTBID assessments. Nothing in this Agreement shall relieve Guests or Hosts from any responsibilities with respect to TOT and/or CTBID assessments for transactions 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. W AIYER OF LOOK-BACK (I) The Jurisdiction expressly releases, acquits, waives and forever discharges Airbnb, its current or past affiliated parent or subsidiary companies, directors, shareholders investors, 3 v.2.2017 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 of TOT and/or CTBID assessments or other tax indebtedness, including but not limited to penalties, fines, interest or other payments relating to TOT and/or CTBID assessments 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 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 (J) Airbnb agrees, for the purposes of facilitating this Agreement, and as required by its TOS, that it will notify (i) Hosts that TOT and CTBID assessments 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 TOT and CTBID assessments collected and remitted on each Taxable Booking Transaction. CTBID PARTICIPATION (J-1) Solely for the purposes of satisfying any listing or reporting requirements under the Plan, Airbnb shall be listed as the "lodging business" for the purposes of any disclosure under the CTBID Plan. Airbnb expressly waives the right to vote or otherwise participate or take any action relating to the CTBID assessments except for acting as a CTBID assessment Collector and remitting CTBID assessments to the City pursuant to the CTBID Plan. Any Host shall be entitled to vote, participate or otherwise take any action that could be taken by a "lodging business" that collects and remits CTBID assessments directly to the City. The City shall accept transactional records produced by a Host from the Platform as sufficient evidence to substantiate the amount of CTBID assessment 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 CTBID assessments 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 4 v.2.2017 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 of the Code, regulations or application of law. DURATION/TERMINATION (L) 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 TOT and/or CTBID assessments 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 CTBID assessment pursuant to this Agreement for convenience on 30 days written notice to the other Party. Any termination of CTBID assessments under this Paragraph shall not affect the duty of Airbnb to remit to the Tax Department any CTBID assessments collected from Guests up through and including the effective date of termination of this collection of CTBID assessment pursuant to this Agreement, even if not remitted by Airbnb to the Tax Department as of the date of termination. MISCELLANEOUS (M) 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. (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 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. (P) 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 5 v.2.2017 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. (Q) RELATIONSHIP OF THE PARTIES. The 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 employment relationship between the Parties. There are no third-party beneficiaries to this Agreement. (R) W AIYER 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. (S) 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. (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) 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. 6 v.2.2017 NOTICES (V) 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: To Airbnb: Airbnb, Inc. Airbnb, Inc. Attn: General Counsel 888 Brannan Street, 4th Fl. SF, CA 94103 lcgal(cz)airbnb.com Attn: Global Head of Tax 888 Brannan Street, 4th Fl. SF, CA 94103 tax@airbnb.com To the Taxing Jurisdiction: City of Carlsbad Attn: Tax Administrator 1635 Faraday Avenue Carlsbad, CA 92008 Fax: (760) 602-8553 E-mail: finance@carlsbadca.gov (Signatures follow on next page) 7 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. AIRBNB, INC., a Delaware corporation Mirei Yasumatsu, Global Tax Director Name and Title of Authonzed Representative THE CITY OF CARLSBAD, CALIFORNIA By Sig/0 TC/L· G~ furber10 ~K~a:wford, City Manag~r OR Scott Chadwick, Chief Operations Officer 8 v.2.2017