18-249 AirBNB, Inc., Voluntary Collection AgreementVO LUNT ARY COLLECTION AGREEMENT
FOR
CITY OF CUPERTINO, CALIFORNIA, TRANSIENT OCCUPANCY TAX
THIS VOLUNTARY COLLECTION AGREEMENT (the "Agreement") is dated
June 29, 2018 and is between AIRBNB, INC., a Delaware corporation ("Airbnb") and the
CITY OF CUPERTINO, 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 paity ("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 Cupertino law (the applicable "Code"), on behalf of
Hosts for Booking Transactions completed by Hosts and Guests on the Platfom1 for
accommodations located in the City of Cupertino (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 "Collector"). The 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 TOT on behalf of Hosts, pursuant to the tenns 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 TOT for any period or for any
transaction prior to the Effective Date or termination of this Agreement.
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REMITTANCE OF TOT
(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 that is subject to the provisions of this Agreement.
Airbnb shall remit all TOT collected from Guests in accordance with this Agreement and
Airbnb's Terms of Service (www .a ir bnb.co m) (the "TOS") in the time and manner described in
the Code or as otherwise agreed to in writing.
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, 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,
restrict or prevent Airbnb from asserting that any TOT 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 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 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 thirty-six month period and that such audit or assessment will be limited to a
consecutive twelve-month period within th e thirty-six month period .
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(G) Airbnb, Inc. agrees to register as a Collec tor for the sole purpose of reporting ,
collection and remittance of TOT tmder this Agreement and will be the registered Collector on
behalf of any affiliate or subsidiary collecting TOT .
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 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. Nothing in this Agreement shall relieve Guests or Hosts from any
responsibilities with respect to TOT 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 . Nothing herein shall relieve any Host from any other
obligations or requirements under applicable law.
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,
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 TOT or other tax
indebtedness, including but not limited to penalties, fines, interest or other payments relating to
TOT 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 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 collected and remitted on each Taxable Booking Transaction.
LIMITATION OF APPLICATION
(K) This Agreement is solely for the purpose of facilitating the administration and
collection of the TOT with respect to Taxable Booking Transactions and , except with respect to
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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 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 tennination 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 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.
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
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.
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(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) 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 .
(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
occmTing without that Party's fault or negligence, including, but not limited to, acts of God, acts
of government, flood, fire, civil unrest, acts of te1TOr, 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 mrreasonably 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.
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 confinnation of receipt. Notices shall be addressed to the attention of the following ·
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persons, provided each Party may modify the authorized recipients by providing written notice to
the other Party:
To Airbnb:
Airbnb, Inc.
Attn: General Counsel
888 Brannan Street, 4th Fl.
SF, CA 94103
le gal @ airbnb .com
Airbnb, Inc.
Attn: Global Head of Tax
888 Brannan Street, 4th Fl.
SF, CA 94103
ta x@airbnb .com
To the Taxing Jurisdiction:
City of Cupertino
Attn: Zach Korach, Finance Director
10300 Torre Avenue
Cupertino, CA 95014
zachk@ cupe rtino .org
Fax: (408) 777-3109
(Signatures follow on next page)
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IN WITNESS WHEREOF, AirbAb and the Taxing Jurisdiction have executed
this Ag ~cemcnl effective on the date sci fortl11 ii.1 the introductory clause .
By:
AIRBNB, INC., a Delaware corporation
Mirei Yasumatsu, Global Tax Director
1'lamc and I t·tlc of Authorized Representative
APPROVED AS TO FORM:
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R-oeie,-fterro l-\ e."'-th€. r m . l'V' ·~"' \II e. -.r
AGti-Hg City Attorney
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