HomeMy WebLinkAbout2014-649 Resolution Agreement between Orbitz, LLC; Trip Network, Inc.; Travelocity.com LP; Expedia, Inc.; Hotels.com L.P.; and Hotwire, Inc. and Orange County and the towns of Chapel Hill and Carrboro —Please return this copy to the Clerk to the Board's—
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Resolution Agreement Page 1 of 7
RESOLUTION AGREEMENT
This Resolution Agreement("Agreement") is entered into by and between Orbitz, LLC,
Trip Network, Inc., Travelocity.com LP, Expedia, Inc., Hotels.com L.P., and Hotwire, Inc.
(individually"OTC"and collectively"OTCs"), and the County of Orange and towns of Chapel
Hill, Hillsborough and Carrboro (collectively"the Taxing Jurisdictions"), effective the 1 st day of
January 2015.
WHEREAS,the OTCs contend that amendments to N.C. Gen. Stat. §§ 105-164.4(a)(3),
153A-155(c), and 160A-215(c)enacted by Session Law 2010-31, § 31.6 ("the Amendments")are
unconstitutional under the United States Constitution and the North Carolina Constitution and in
violation of the federal Internet Tax Freedom Act, as amended;
WHEREAS,the Taxing Jurisdictions contend that the Amendments are lawful and that
they have the right to collect occupancy taxes under the terms of the Amendments;
WHEREAS, the parties desire to resolve their dispute without litigation;
WHEREAS,the parties further desire to resolve all past potential occupancy tax liability of
the OTCs since 1 January 2011 to the Taxing Jurisdictions and to adopt a mutually agreeable
reporting and remittance methodology on a prospective basis; and
WHEREAS, the parties desire to enter into this Agreement to accomplish the above.
NOW IT IS HEREBY DETERMINED AND AGREED:
1. This Agreement will resolve the OTCs' dispute with the Taxing Jurisdictions regarding the
Amendments and all past potential occupancy tax liability to the Taxing Jurisdictions for
occupancy of accommodations facilitated by any OTC commencing between 1 January
2011 and 31 December 2014 and for occupancy of accommodations facilitated by any
OTC commencing thereafter pursuant to reservations made between 1 January 2011 and
31 December 2014.
2 The Taxing Jurisdictions acknowledge that this Agreement contains Tax Information, as
defined in N.C. Gen. Stat. § 105-259, and its provisions are therefore subject to the
disclosure prohibitions of N.C. Gen. Stat. § 105-259,N.C. Gen. Stat. § 153A-148.1, and
N.C. Gen. Stat. § 132-1.1.
3. Registering for occupancy tax purposes or payment of occupancy tax does not constitute a
concession that the OTCs are engaging in business within any locality in North Carolina or
a concession that the OTCs are subject to any other tax or license in North Carolina.
4. For occupancy of accommodations facilitated by any OTC pursuant to reservations made
on or after January 1, 2015 that are subject to the occupancy tax of any of the Taxing
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Jurisdictions ("Orange County/City Occupancy Taxes"), as last amended prior to the date
of this Agreement, each OTC will remit Orange County/City Occupancy Taxes on the
gross receipts derived from such rentals,as defined in N.C. Gen. Stat. § 105-164.4(a)(3),as
last amended. Each OTC will report and remit all such Orange County/City Occupancy
Taxes through the following methods, at the option of each OTC:
(i)Accommodation Provider Remit: All Orange County/City Occupancy Taxes
will be reported and remitted to the providers of the accommodations in accordance
with N.C. Gen. Stat. § 153A-155(c) and N.C. Gen. Stat. § 105-164.4(a)(3), as last
amended.
(ii)Partial Direct Remit: All Orange County/City Occupancy Taxes will be
partially reported and remitted to the providers of the accommodations for further
remittance to the Taxing Jurisdictions and partially reported and remitted directly
to the Taxing Jurisdictions. Specifically,the portion of the Orange County/City
Occupancy Taxes not reported and remitted to the providers of the
accommodations in accordance with N.C. Gen. Stat. § 153A-155(c) and N.C. Gen.
Stat. § 105-164.4(a)(3), as last amended prior to the date of this Agreement,must
be reported and remitted directly by the OTC to the Taxing Jurisdictions.
(iii)Full Direct Remit:All Orange County/City Occupancy Taxes not reported and
remitted to the providers of the accommodations in accordance with N.C. Gen.
Stat. § 153A-155(c)and N.C. Gen. Stat. § 105-164.4(a)(3),as last amended prior to
the date of this Agreement, will be directly remitted by the OTC to the Taxing
Jurisdictions.
(iv)Each OTC will give advance notice to the Taxing Jurisdictions of its selected
option(s)in each instance.
(v)If registering for occupancy tax purposes or paying occupancy tax, each OTC
will use its best efforts to do so by February 20, 2015.
5 N.C. Sess. Laws 2013-414, § 9 applies to the reporting and remittance obligations for
Orange County/City Occupancy Taxes and governs all amounts required to be reported
and remitted under this Agreement until and unless amended.
6. The Taxing Jurisdictions will not issue any assessments to any OTC for Orange
County/City Occupancy Taxes for occupancy of accommodations facilitated by any OTC
commencing between 1 January 2011 and 31 December 2014 or for occupancy of
accommodations facilitated by any OTC commencing thereafter pursuant to reservations
made between 1 January 2011 and 31 December 2014.
7. The OTCs agree that the Taxing Jurisdictions have the authority and jurisdiction to audit
for purposes of Orange County/City Occupancy Taxes. Upon request, each OTC will
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provide to the Taxing Jurisdictions data and documents, or reasonable access to records,
for audit purposes.
8. The parties acknowledge that each side takes a different view of the facts and law related to
the matters encompassed by this Agreement. The parties agree that this Agreement is
based on the parties' desire to compromise their disputes and is not an indication that either
side has expressed agreement with the other side's view of the facts or law. This
Agreement does not constitute a concession, agreement or admission by any of the parties
as to the correctness or applicability of any legal or factual contention by any other party.
9. The parties agree that the Agreement is for the benefit of, and an agreement expressly
between,the parties hereto. This Agreement may only be amended by written agreement
by all parties hereto. Any such amendment shall be attached hereto. This Agreement may
be executed in any number of counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same instrument.
10 This Agreement shall be governed by the laws of North Carolina. Each party has
cooperated in the drafting and preparation of this Agreement, and it shall be construed
according to the plain meaning of its language and not for or against any party.
11. By signing this Agreement,all parties certify that they have read and agreed to all the terms
hereof and that they have authority to enter into this Agreement.
12. This Agreement(including each of the rights and obligations set forth herein) shall be
binding upon,and inure to the benefit of,the respective present or former,successor,direct
or indirect family members,parents, subsidiaries, affiliates, agents, representatives,
officials, insurers, employees, officers, directors and shareholders of the undersigned
parties. Additionally, any reference in this Agreement to any of the parties shall be a
reference to the present or former, successor, direct or indirect, family members,parents,
subsidiaries, affiliates, agents, legal representatives, insurers, employees,officers,
directors, and shareholders of those entities.
13. Each of the Taxing Jurisdictions and each OTC acknowledge that they: (a)have consulted
with legal counsel about the Agreement; (b)they are entering into the Agreement
voluntarily and with an understanding that each of the Taxing Jurisdictions is releasing all
of its claims for Orange County/City Occupancy Taxes against the OTCs for occupancy of
accommodations commencing between 1 January 2011 and 31 December 2014 and for
occupancy of accommodations commencing thereafter pursuant to reservations made
between 1 January 2011 and 31 December 2014; (c)they have the authority to enter into
this Agreement; (d)no other persons or entities have or have had any interest in any claims
that are now being released;and(e)they have not sold,transferred,or assigned their claims
to any other person or entity prior to entering into this Agreement.
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ORBITZ, LLC
By:
Print name:
Title:
Date:
TRIP NETWORK, INC.
By:
Print name:
Title:
Date:
TRAVELOCITY.COM, LP
By: General Partner, Travelocity.com LLC
By:
Print name:
Title:
Date:
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EXPEDIA, INC.
By:
Print name:
Title:
Date:
HOTELS.COM L.P.
By:
Print name:
Title:
Date:
HOTWIRE, INC.
By:
Print name:
Title:
Date:
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Resolution Agreement Page 6 of 7
ORANGE COUNT
By:
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Title: .
Date: I
TOWN OF CHAPEL HILL
By:
Print name:
Title:
Date:
TOWN OF HILLSBOROUGH
By:
Print name:
Title:
Date:
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TOWN OF CARRBORO
By:
Print name:
Title:
Date:
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Resolution Agreement Page 4 of 7
ORBITZ,LLC
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TRIP NETWORK, INC.
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TRAVELOCITY.COM, LP
By: General Partner,Travelocity.com LLC
By
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Title:
Date:
Orange County execution copy.docx—(range County
Resolution Agreement Page 4 of 7
ORBITZ, LLC
By:
Print name:
Title:
Date:
TRIP NETWORK, INC.
By:
Print name:
Title:
Date:
TRAVELOCITY.COM LP
By: General Partner,Travelocity.com LLC
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Title: � SCE W. .IS? -� =?'i C)
Date:
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EXPEDIA,INC.
By: 4.1--
Robert J.Dzlelek
Print name:
Title:
Date:
HOTELS.COM L.P.
By:
Print name: dMd,Jd,DW@letk
Title: Exec' M VIM President&Gen"WMl
Date:
HOTWIRE,INC.
By:
Print name: Robert J.Dzlelak
ExeCUWO VIw President&General aiW
Title:
Date:
26399409_l.doLx—(range County
ORANGE COUNTY
By:
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Title:
Date:
TOWN OF CHAPEL H
By: �¢,
Print name: 1 `n i ' 1 6
Title:
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TOWN OF HILLSBOROUGH
By:
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Title:
Date:
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ORANGE COUNTY
By:
Print name:
Title:
Date:
TOWN OF CHAPEL HILL
By:
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Title:
Date:
TOWN OF HILLSBO OUG
By:
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Title: &14Z
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263994091—Orange County