HomeMy Public PortalAbout2018.11.12 Airbnb - McCall Final Agreements (fully executed) - RedactedDocuSign Envelope ID: 9D5F1 EB8-ABAB-46E8-A7E5-807A1 DE4CA12
AGREEMENT BETWEEN
AIRBNB, INC. AND THE CITY OF MCCALL, IDAHO
1. PARTIES. The parties ("Parties") to this Agreement ("Agreement") are Airbnb, Inc.
("Airbnb"), whose address is 888 Brannan Street, 4`h Floor, San Francisco, California
94103, and the City of McCall, Idaho ("City"), whose address is 216 East Park Street
McCall, Idaho 83638.
2. PURPOSE OF AGREEMENT.
A. Airbnb provides an Internet -based platform ("Platform") through which third
parties that offer accommodations ("Hosts") and third parties that book such
accommodations ("Guests"), may communicate, negotiate and consummate a
direct booking transaction for accommodations in the City of McCall ("Booking
Transactions").
B. The City and Airbnb enter into this Agreement in order to settle the payment of
certain nonproperty local option taxes ("LOT") under Idaho Code §§ 63-1803(5)
and 63-1804(3) ("State Law"), and the City Municipal Code Title 4, Chapters 11
and 12 ("City Code") for Booking Transactions completed by Hosts and Guests
on the Platform for lodging accommodations located in the City between January
1, 2018 and October 31, 2018 ("Lookback Period").
3. SPECIFIC PROVISIONS OF AGREEMENT BETWEEN PARTIES. In consideration of the
mutual covenants contained in this Agreement, the Parties agree as follows:
A. Airbnb agrees that, by October 31, 2018, it will pay the City the amount set forth
in Exhibit A.
B. The City agrees that the Lookback Period is forever closed to additional audits or
assessments against Airbnb. The City expressly releases, acquits, waives and
forever discharges Airbnb, its current or past affiliated parent or subsidiary
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 of
LOT, including but not limited to penalties, fines, interest or other payments
relating to LOT on any Booking Transactions prior to October 1, 2018.
C. The City 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 LOT or other tax indebtedness, including but not limited to
penalties, fines, interest or other payments relating to LOT on any Booking
Transactions prior to January 1, 2018. Nothing contained in this Paragraph of this
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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 Booking Transactions under this Agreement.
D. The City considers the amount designated in Exhibit A as confidential taxpayer
return information subject to the confidentiality restrictions provided for in State
Law, including but not limited to the restrictions contained within the City Code §
4.11.23 and 4.12.23.
4. GENERAL PROVISIONS.
A. 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 Idaho without regard to its conflict of law principles.
B. Modification. No modification, amendment, or waiver of any provision of this
Agreement shall be effective unless in writing and signed by both Parties.
C. 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.
D. 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.
E. 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.
F. Waiver and Cumuiative 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.
G. Force Majeure. Neither Party shall be liable for any failure or delay in
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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.
H. 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.
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.
J. No admission. Nothing in this Agreement shall be construed as an admission by
Airbnb that it is liable for the collection and remittance of any LOT for periods
prior to the Lookback Period.
K. Notices. A11 notices arising out of, or from, the provisions of this Agreement
shall be in writing either by regular mail or delivery in person at the address(es)
provided in Section 1 of this Agreement.
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The parties to this Agreement, either personally or through their duly authorized
representatives, have executed this Agreement on the dates set out below, and certify that they
have read, understood, and agreed to the terms and conditions of this Agreement.
AI 1EST:
11/12/2018
FOR AIRBNB, INC. this day of October 2018.
,-GocuSigned by:
By:
�.-.-EEE3CAgc7ECoa85... lobal Tax Director
Airbnb, Inc.
888 Brannan Street, 4th F1.
San Francisco, CA 94103
FOR THE CITY OF MCCALL IDAHO
this A5 day of October 2018
By:
BessieJo Winer, City C -r
J kie Ay , M or
ity of Mc all, Idaho
216 East Park Street
McCall, Idaho 83638
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os
EXHIBIT A
The City considers this Exhibit A as confidential taxpayer return information subject to the
confidentiality restrictions provided for in Idaho law, including but not limited to the restrictions
contained within the City Code § 4.12.23.
ri ii [irei Yasumatsu
kie Aymon
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TAX COLLECTION AGREEMENT
FOR
CITY OF MCCALL, IDAHO, LOCAL OPTION TAX
THIS TAX COLLECTION AGREEMENT (the "Agreement") is dated
660131...r C25 , 2018 and is between AIRBNB, INC., a Delaware corporation ("Airbnb")
and the CITY OF MCCALL, IDAHO, a municipal corporation of the State of Idaho (the
"City"). 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 ("Booking Transaction"); and
WHEREAS, the City of McCall has adopted certain nonproperty local option taxes under
McCall Municipal Code Title 4, Chapters 11 and 12, and pursuant to the City's authority under
Idaho Code §50-1044;
WHEREAS, Airbnb constitutes a short-term rental marketplace, as defined by Idaho
Code §63-1803(5), which shall collect, report, and pay certain taxes, as required by Idaho Code
§63-1804(3);
WHEREAS, Airbnb believes there may be ambiguity as to whether Idaho Code §§ 63-
1803(5) and 63-1804(3) apply to all Booking Transactions that may be consummated through the
Platform;
WHEREAS, notwithstanding the above, Airbnb and the City agree that Airbnb will
collect, report and pay the local option tax imposed by the City on all Booking Transactions
completed by Hosts and Guests on the Platform for accommodations located in the City of
McCall, Idaho (the "Taxable Booking Transactions"); and
WHEREAS, the City and Airbnb enter into this Agreement in order to facilitate the
reporting, collection and remittance of applicable local option taxes ("LOT") imposed under
applicable Idaho state law ("State Law") and the City Municipal Code ("City Code"), for
Taxable Booking Transactions.
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NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS, PROMISES
AND AGREEMENTS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:
(A) Pursuant to the requirements of State Law, City Code, and 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
contractually agrees to assume the duties for the collection and remittance of LOT (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 November 1, 2018 (the "Effective Date"), Airbnb will collect and remit
LOT on behalf of Hosts, pursuant to the terms of State Law, the City Code, and this Agreement,
at the applicable rate, on Taxable Booking Transactions. Except as set forth in Paragraph (K)
below, Airbnb shall not assume any obligation or liability to collect LOT for any period or for
any transaction prior to the Effective Date or after termination of this Agreement unless
otherwise required by law.
REMITTANCE OF LOT
(C) Airbnb agrees reasonably to report aggregate information on the tax return form
prescribed by the City, including an aggregate of gross receipts, exemptions, adjustments, and
taxable receipts of all LOT that is subject to the provisions of this Agreement. Airbnb shall remit
all LOT collected from Guests in accordance with this Agreement in the time and manner
described in the City Code or as otherwise agreed to in writing.
AIRBNB LIABILITY
(D) Pursuant to the terms of this Agreement, Airbnb agrees contractually to assume
Iiability for any failure to report, collect and/or remit the correct amount of LOT, including, but
not limited to, penalties and interest, lawfully and properly imposed in compliance with the City
Code. Nothing contained herein nor any action taken pursuant to this Agreement shall impair,
restrict or prevent Airbnb from asserting that any LOT 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) Airbnb understands that it may be subject to audit by the City. During any period for
which Airbnb is not in breach of its obligations under this Agreement, the City agrees to audit
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Airbnb on the basis of LOT 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 City has been completed with the matter unresolved. The
City reserves the right to audit any individual Host for activity that has been brought to the
attention of the City 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 City agrees to audit Airbnb on an anonymized transaction basis for Taxable
Booking Transactions. Except as otherwise required by State Law or City Code, Airbnb will 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. To the extent reasonable,
prior to pursuing binding legal process such as an administrative subpoena, the City will attempt
to resolve any audit of Airbnb with respect to Host or Guest.
(G) For the sole purpose of reporting, collection and remittance of LOT under this
Agreement, Airbnb agrees to obtain a nonproperty sales tax permit as required under the City
Code. Airbnb will be the registered permitee on behalf of any affiliate or subsidiary collecting
LOT.
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 LOT on Taxable Booking Transactions once
Airbnb has remitted LOT on such Taxable Booking Transactions to the City, and Hosts shall be
permitted but not required to register individually with the City to collect, remit and/or report
LOT. Nothing in this Agreement shall relieve Guests or Hosts from any responsibilities with
respect to LOT for transactions completed other than on the Platform, or to restrict the City from
investigating or enforcing any provision of applicable law against such users for such
transactions.
NOTIFICATION TO GUESTS AND HOSTS
(I) Airbnb agrees, for the purposes of facilitating this Agreement, and as required by its
Terms of Service, that it will notify (i) Hosts that LOT will be collected and remitted to the City
as of the Effective Date pursuant to the terms of this Agreement; and (ii) Guests and Hosts of the
amount of LOT collected and remitted on each Taxable Booking Transaction.
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LIMITATION OF APPLICATION
(J) This Agreement is solely for the purpose of facilitating the administration and
collection of the LOT 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 City
Code or any other provisions of the laws of the United States of America, of any State or
subdivision or municipality thereof. This Agreement does not supersede or waive any relevant
provisions of State Law or City Code. 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 City Code, regulations or application of law.
DURATION/TERMINATION
(K) This Agreement may be terminated by Airbnb or the City for convenience on thirty
(30) day written notification to the other Party. Such termination will be effective on the first
day of the calendar month following the thirty (30) day written notification to the other Party.
Any termination under this Paragraph shall not affect the duty of Airbnb to remit to the City any
LOT collected from Guests up through and including the effective date of termination of this
Agreement, even if not remitted by Airbnb to the City as of the date of termination. Termination
does not relieve Airbnb from its obligations related to collection and remittance of LOT pursuant
to State Law and City Code.
MISCELLANEOUS
(L) 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
Idaho without regard to its conflict of law principles.
(M) MODIFICATION. No modification, amendment, or waiver of any provision of this
Agreement shall be effective unless in writing and signed by both Parties.
(N) 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.
(0) 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,
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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.
(P) 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.
(Q) 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.
(R) FORCE MAJEURE. Neither Party shall be liable for any failure or delay in
performance under this Agreement for emergency 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 reasonably be
extended for a period of time equal to the time lost due to any delay so caused.
(S) 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 upon notice without consent of the other Party in connection
with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
(T) 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
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permitted by law, and the remaining provisions of this Agreement shall remain in effect.
NOTICES
(U) 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.
Attn: General Counsel
888 Brannan Street, 4th Fl.
SF, CA 94103
legal@airbnb.com
To the City:
City of McCall
Attn: City Manager
216 East Park Street
McCall, Idaho 83638
Fax: (208) 634-3038
Airbnb, Inc.
Attn: Global Head of Tax
888 Brannan Street, 4th Fl.
SF, CA 94103
tax@airbnb.com
(Signatures follow on next page)
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IN WITNESS WHEREOF, Airbnb and the City have executed this Agreement
effective on the date set forth in the introductory clause.
ATTEST:
By:
AIRBNB, INC., a Delaware corporation
�DocuSigned by:
1411:"&e.4: *V4.zsws+-3w-
�ESE3CA9C7EC0485...
Mirei Yasumatsu, Global Tax Director
CITY OF MCCALL, IDAHO
By: epek
ackie Aymon, Mayor
BessieJo agner, C'Clerk
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airbnb
Airbnb, Inc.
Transient Occupancy Tax
Execution/Signature Control Form
To: Mirei Yasumatsu
Global Tax Director
From: Leslie Lao
Tax Manager
Date: November 12, 2018
Re: McCall, Idaho — December 1 Launch
Background:
Effective 1/1/18, a new marketplace facilitator law in Idaho requires platforms, such as
Airbnb, to collect and remit local taxes. Airbnb is already collecting at the state law
pursuant to a VCA.
Airbnb and the City of McCall have now agreed to enter into a prospective Tax Collection
Agreement to collect the McCall local occupancy tax and sales tax. Additionally, the
parties have settled back taxes for the period of 1/1/18 — 10/31/18 in the amount of
Tax Collection Agreement Deviations:
• Recitals — Clarified ambiguity under state law regarding taxable listings.
• Paragraph (E) — Deleted audit limitations (per agreement with other Idaho locals).
Settlement Agreement:
• Settlement Amount --
• Period at Issue — 1/1/18 — 10/31 /18*
• Waiver — Applicable to Airbnb and Hosts/Guests
After approving, please:
0 Return VCA and Control Form to Leslie