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HomeMy WebLinkAboutHomeAway VCA TOT TBID.pdf VOLUNTARY COLLECTION AGREEMENT THIS VOLUNTARY COLLECTION AGREEMENT (“Agreement”) is dated August 31, 2026 and is between HOMEAWAY.COM, INC., a Delaware corporation (“HomeAway”), and the CITY OF GILROY, CALIFORNIA (the “City”). Each party may be referred to individually as a “Party” and collectively as the “Parties.” HomeAway and its subsidiaries operate an internet-based platform that allows homeowners (“Homeowners”) to advertise the availability of their properties to travelers (“Guests”) seeking accommodations through Vrbo.com and localized Vrbo websites operating worldwide (“HomeAway Platform”). HomeAway and the City enter into this Agreement voluntarily in order to facilitate the collection and remittance of the Transient Occupancy Tax under Chapter 25A of the Gilroy City Code (the “TOT”) and the Gilroy Tourism Business Improvement Development District under Gilroy City Council Resolution No. 2012-36 and extended by Gilroy City Council Resolution No. 2026-44 on June 15, 2026 (the “TBID” and together with the TOT, the “Tax”) from Homeowners and Guests on the HomeAway Platform for occupancy of accommodations located in the City of Gilroy in accordance with this Agreement as follows: 1. With respect to any transaction between a Homeowner and a Guest booked on and for which payment is completed on the HomeAway Platform for accommodations for which the Tax is due (“Booking Transaction”), and during the period in which this Agreement is in effect (as defined below), and solely pursuant to the terms and conditions of this Agreement, HomeAway agrees to collect and remit the Tax. 2. The Tax shall be collected and remitted at the applicable rates by HomeAway based upon the entire amount charged by the Homeowner in connection with the Booking Transaction, including but not limited to the following fees charged by a Homeowner: rental fee, booking fee, cleaning fee, property damage fee, and any other use-related fee; but excluding refundable damage deposits. HomeAway will not collect Tax on the Traveler Service Fee (“TSF”) charged by HomeAway to Guests. HomeAway is not an operator under Gilroy City Code § 25A.1. HomeAway shall file returns on the form and by the due dates described in the Tax or as agreed between the Parties in writing. For the avoidance of doubt, it is understood and agreed by the Parties, that HomeAway will file returns and remit any Tax collected, based on the date the stay commences and not the date of the booking transaction. 3. HomeAway agrees to commence collecting the Tax starting on November 1, 2026 (the “Effective Date”) and remitting any Tax collected in accordance with Paragraph 2. For the avoidance of doubt, this Agreement to collect shall not extend to any period or transaction booked prior to the Effective Date or after the termination of this Agreement, or to any user’s transaction completed through any means, method or platform other than the HomeAway Platform. 4. The City agrees to confirm its jurisdictional boundaries with HomeAway’s third-party tax content provider within ninety (90) days of the Effective Date and shall notify such provider within Docusign Envelope ID: 73389872-4112-8B4C-82DA-4CD1AC508AF0 2 ninety (90) days of any change to the City’s jurisdictional boundaries. The current content provider is Vertex and boundaries can be verified by emailing gis@vertexinc.com. HomeAway shall notify the City of any change in the third-party tax content provider. If the City fails to confirm the boundaries, the City agrees to accept the boundaries as determined by HomeAway. 5. On a prospective basis upon the Effective Date of this Agreement, and during any period in which this Agreement is in effect, in accordance with the terms of this Agreement, HomeAway agrees contractually to assume liability for any failure to report, collect, and/or remit the correct amount of the Tax for any Booking Transaction, including, but not limited to, penalties and interest, lawfully and properly imposed in compliance with law. Nothing contained herein nor any action taken pursuant to this Agreement, including but not limited to the collection or remittance of the Tax, shall impair, restrict, or prevent HomeAway from asserting that any Tax 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 from enforcing any and all rights accorded to it pursuant to law. Other than its obligation to facilitate the collection and remittance of the Tax and its agreement to contractually assume liability for any failure to report, collect, and/or remit the correct amount of the Tax for any Booking Transaction pursuant to the terms of this Agreement, HomeAway shall not be required to enforce any other obligations or requirements imposed by the City on the Homeowner and shall not assume any liability for any violations of any such obligations or requirements by any Homeowner. 6. During any period in which this Agreement is in effect, and without waiving any audit rights provided to the City, with respect to any transaction for which the Tax is due and paid pursuant to this Agreement, the City agrees that during any audit of HomeAway that: (a) HomeAway will not be required on the basis of this Agreement to disclose the Homeowner or Guest name at issue; (b) the City shall not, directly or indirectly, audit any individual Guest or Homeowner relating to such transactions; and (c) if there are errors in the jurisdictional boundaries, HomeAway will provide the URL of the property listing after the City updates the boundaries with HomeAway’s third-party content provider in accordance with Paragraph 4. HomeAway will provide the property address associated with each Booking Transaction in response to a valid information document request formally issued by the City under Gilroy City Code § 25A.8 as part of an audit of HomeAway’s books and records. The City shall complete any audit of HomeAway’s books and records within the time period permitted under the applicable statute of limitations, including any waivers mutually agreed to by HomeAway and the City. Nothing in this paragraph prevents the City from auditing an individual who (or entity that) happens to be a Homeowner based upon transactions that the City learns of independently. 7. Upon the City’s request in connection with an audit, HomeAway shall submit all applicable transaction data based on reservation ID, or other type of transaction ID, as maintained by HomeAway in its ordinary course of business. The Parties agree that HomeAway is not required, on the basis of this Agreement, to produce any Homeowner or Guest name relating to any transaction in connection with an audit or otherwise, except pursuant to a lawfully issued subpoena. 8. During any period in which this Agreement is in effect, and on the condition that HomeAway is in compliance with its obligations under this Agreement, and solely with respect to Booking Transactions, said Homeowner shall not be required to individually register with the City Docusign Envelope ID: 73389872-4112-8B4C-82DA-4CD1AC508AF0 3 to collect, remit and report the Tax. However, nothing in this Agreement shall relieve Guests or Homeowners from any responsibilities with respect to the Tax, including, without limitation, any obligation to register with the City or to collect, remit, and report the Tax for transactions completed through any other means, method, device, or platform, or restrict the City from investigating or enforcing any provision of applicable law against any such person or entity for any occupancy arranged directly or indirectly through any other means. 9. The City agrees, for the purpose of facilitating this Agreement, that it shall not make any assessment, supplemental assessment, or claim for the Tax as to HomeAway for any period prior to the Effective Date of this Agreement; and it releases and discharges any claims against HomeAway (and its present or former: successors, direct or indirect members, parents, subsidiaries, affiliates, agents, legal representatives, insurers, employees, officers, directors and shareholders) from any and all past, present, or future assessments, causes of action, claims, demands, expenses, damages, or losses, of whatever kind or nature, known or unknown, asserted or unasserted, in law or equity, whether statutory or common law, which existed, accrued, or arose related to the Tax for the period preceding the Effective Date of this Agreement. 10. Any and all tax returns, data, records, documents or information, including property address information, provided to the City in connection with this Agreement, including but not limited to any audit, shall be deemed confidential and shall not be shared with any third party, including but not limited to any other governmental agency or any other jurisdiction and shall not be used for any purpose other than for enforcement of the Tax. 11. This Agreement is solely for the purpose of facilitating the administration and collection of the Tax due for Booking Transactions. It is expressly understood and agreed by the Parties that neither Party has made any concessions regarding the merits of its respective positions nor the merits of the other Party’s positions with respect to the collection of the Tax addressed in this Agreement. 12. The City shall notify HomeAway, in writing, of any properly enacted changes to the Tax that, as required by applicable law, have consequences for the collection and remittance of the Tax. Such notice shall be sent pursuant to the notice provisions set forth below. If the City does not notify HomeAway of the foregoing, HomeAway will continue to determine the amount of Tax due as if the changes had not taken effect. With respect to any notice provided pursuant to this paragraph, HomeAway shall provide the City with a good faith time estimate for implementation of any changes, as required by law, and shall use commercially reasonable efforts to ensure that it implements such changes within the time estimate provided. HomeAway shall not be liable for any Tax (including any penalties and interest) not collected and remitted due to the City being in breach of this paragraph. 13. Unless otherwise agreed in writing by the Parties, this Agreement does not cover any taxes or fees (including any tax or information return filings) (i) not in effect and required by law as of the Effective Date (including, but not limited to taxes and fees adopted by the City after the Effective Date of this Agreement); or (ii) not otherwise explicitly stated herein. 14. The City agrees to work with HomeAway to answer any questions received from Homeowners and the public about HomeAway’s tax collection and remittance process under this Docusign Envelope ID: 73389872-4112-8B4C-82DA-4CD1AC508AF0 4 Agreement. If requested by the City, HomeAway will provide information to the City to be used by the City to answer questions from Homeowners, travelers and others. 15. No modification of this Agreement shall be effective unless in writing and signed by both Parties. 16. This Agreement may be terminated by HomeAway or the City upon thirty (30) days’ written notification to the other Party. Any termination under this Paragraph shall not affect the duty of HomeAway to remit to the City any Tax collected from Guests up through and including the effective date of termination of this Agreement, even if not remitted by HomeAway to the City as of the date of termination. 17. 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. 18. 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. 19. This Agreement is not binding until executed by HomeAway and the City. The Parties represent and warrant that they each have the legal authority to enter this Agreement, that the person executing the Agreement on behalf of either Party is authorized to do so, and that the Agreement shall be binding and enforceable when duly executed and delivered by each Party. 20. This Agreement is executed in two (2) counterparts, each of which shall be deemed an original, and all counterparts individually or together shall constitute one and the same Agreement. Further, the reproduction of an original signature by electronic means shall be deemed to be an original signature. 21. This Agreement has been jointly prepared by the Parties hereto, and shall not be construed more strictly against either Party. 22. The Parties agree that each shall treat as confidential all information furnished to it by the other Party under this Agreement, including but not limited to the existence and terms of this Agreement; provided, however, that a Party may disclose the confidential information of the other Party to those of its employees, consultants (including professional advisers) and affiliates that require access to such confidential information in order to permit such Party to exercise its rights and perform its obligations hereunder. Nothing in this Agreement shall prevent the disclosure by a Party or its employees, contractors, or affiliates of an item of confidential information that is made public by the disclosing party or released from confidential treatment by written consent of the disclosing Party. 23. 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, HomeAway may assign this Agreement in its entirety without the City’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be Docusign Envelope ID: 73389872-4112-8B4C-82DA-4CD1AC508AF0 5 bound by all of the terms of this Agreement and all Tax and all other sums due at the time of the attempted assignment have been paid in full. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors, and permitted assigns. 24. 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, by facsimile with telephonic confirmation of receipt, or by email. Notices shall be addressed to the attention of the following persons or departments, provided each Party may modify the authorized recipients by providing written notice to the other Party: To HomeAway: HomeAway.com, Inc. Attn: Legal Department 1111 Expedia Group Way West Seattle, WA 98119 Email: Vrbo_VCA_Contact@expediagroup.com To the City: City of Gilroy, California Attn: Finance Department 7351 Rosanna St. Gilroy, CA 95020 Email: cindy.murphy@cityofgilroy.org and katty.alvarez@cityofgilroy.org CITY OF GILROY, CALIFORNIA By: ___________ day of _________________, 2026 HOMEAWAY.COM, INC., a Delaware corporation By: Stephanie Gilfeather __________ day of __________________, 2026 Docusign Envelope ID: 73389872-4112-8B4C-82DA-4CD1AC508AF0 August31 August31