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HomeMy WebLinkAboutordinance.council.013-90 (Series of 1990) AN ORDINANCE REPEALING ORDINANCE NO. 14 (SERIES OF 1989) EFFEC- TIVE APRIL 1, 1990; IMPOSING AN ADDITIONAL ONE PERCENT REAL ESTATE TRANSFER TAX UPON THE TRANSFER OF INTERESTS IN ALL REAL PROPERTY AND PAYABLE BY THE GRANTEE; REQUIRING THE COLLECTION OF SUCH TAX BY THE DIRECTOR OF FINANCE OR HER AGENTS; EXEMPTING CERTAIN TRANSACTIONS FROM THE TAX IMPOSED AND ESTABLISHING PROCEDURES FOR ACQUIRING A CERTIFICATE OF EXEMPTION; PROVIDING FOR THE APPLICATION OF FUNDS TO LIMITED USES; ESTABLISHING PENALTIES FOR VIOLATIONS OF THIS ORDINANCE; PROVIDING FOR THE CREATION OF A L~EN ON THE PROPERTY TRANSFERRED FOR THE AMOUNT OF THE TAX UNPAID; AND MAKING THIS ORDINANCE EFFECTIVE ON APRIL 1, 1990 WHEREAS, the electorate, at a special municipal election held February 13, 1990, did authorize the Aspen City Councll to repeal Ordinance 14, Series of 1989 (which ordinance established the graduated real estate transfer tax), effective April 1, 1990; and~ further, effective April 1, 1990, to establish by ordinance an additional one (1%) percent real estate transfer tax~ proceeds of which shall be earmarked and used exclusively for acquiring buildings and land for employee housing, for maintenance of the same, for the operation of employee/community housing projects, for payment of debt related thereto, and the repayment to the Land Fund for open space acquisitions converted to employee housing purposes, which tax ordinance would expire on Decem- ber 31~ 1994, and %~ould exempt the first $100,000 of every transfer and all deed-restrIcted employee housing un~ts. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 - Repea~ That Ordinance 14~ Series of 1989, be and hereby is repealed effective April 1, 1990. Section 2 - An Additional Real Estate Transfer Tax C~ty Council hereby enacts an additional real estate transfer tax on every document in wrltlng~ whereby title to real property situated in the City of Aspen is transferred~ which tax shall be measured by the consideration pald or to be pa~d for such grant or conveyance and shall be due and payable by ~he grantee at the t~me of transfer contemporaneously therewith. The document shall not be recorded whereby or wherein tltle to real property s~tuated in the City of Aspen is transferred untll the real estate transfer tax has been paid or exempted~ Section 3 - Definitions For the purposes of th~s ordinance, certain words are defined as follows: (a) Document. "Document means and includes any deed, instrument or writing by which real property located in the City of Aspen ~s transferred. (b) Transfer. "Transfer" means and includes any conveyance of ownership or title to real property as evidenced by any deed or ~nstrument or writing wherein or whereby title to real property sztuated in the C~ty of Aspen is granted or conveyed, subject to the exclusions provided in this ordinance. "Convey- ance of ownership" for the purposes of this ordinance means and 02/SD1 -2- includes the transfer of more than fifty percent (50%) of the authorized and issued shares of a corporation which has a prlnclpal asset of real property situated in the City of Aspen. (c) Real Property. "Real property" means and includes all lands or interest in land %~lthin the City of Aspen to which title or the r~ght to t~tle has been acquired or ratified by the government of the Unlted States or the State of Colorado. (d) Consideration. "Consideration" means and includes the actual cash pa~d and/or value of the property del~vered, or contracted to be paid or delivered, in return for the transfer of ownership or title to real property and shall include the amount of any l~ens, mortgage, contract ~ndebtedness, or other encum- brance~ either g~ven to secure the purchase price, or any part thereof, remaining unpaid on the property at the time of sale. The term does not include the amount of any outstanding lien or encumbrance in favor of the United States, the State of Colorado, or of a municipal or quash-municipal governmental corporation or district for taxes~ special benefits or improvements. Section 4 - Amount of Tax The amount of Real Estate Transfer Tax payable shall be computed at the rate of one percent (1%) of the consideration pa~d ~n return for the transfer of ownership or title. Section 5 Lands Affected When a document subject to the ordinance includes property partly located w~thln the City of Aspen and property partly 02/SD1 -3- located within another city or in Pltkln County or other countles~ the tax imposed under the authority of this ordinance shall be computed only with respect to property located within the C~ty of Aspen and the tax shall be assessed on that part of the consideration fairly attributable to the part of such property located within the City. Section 6 D~rector of Finance to Enforce (a) The Director of Finance of the City of Aspen is charged with the enforcement of the provisions of this ordinance and is hereby authorized and empowered to prescribe, adopt and enforce rules and regulations pertaining thereto. (b) At the t~me of any transfer upon which a tax is ~mposed by this ordinance there shall be made a report to the Dlrector of Flnance On forms prescribed by her, setting forth the truer complete and actual consideration for the transfer, the names of the parties thereto, the location of the real estate transferred, and such other information as she may require. (c) For the purpose of collection of taxes imposed by this office, the office of the P~tkin County Clerk and Recordert together with all banks~ title companles~ escrow companies, building and loan lnstltutlons~ private mortgage companies, and real estate agents permitted as such to do business under the laws of the State of Colorado maintaining offices within the C~ty of Aspen are hereby authorized and directed to adopt procedures for the collection of said tax. The Dlrector of Finance ~s d~rected to negotiate with such appointed agents to allow them to 02/SD1 -4- retain a reasonable amount of the sum collected to cover their expenses in the collection and remittance of said tax. Section 7 - Exemptions The real estate transfer tax imposed by this ordinance shall not apply to: (a) Any document wherein the United State~, or any agency or instrumentality thereof, the State of Colorado~ any county, city and county, municipality, district or other political subdivision of the state, is elthe~ the grantor or grantee. (b) Any document wherein the grantee corporations asso- ciation or trust has been organ]zed, operated and maintained solely and exclusively for charitable or religious purposes. (c) Any document granting or conveying t~tle to real property in consequence of a g~ft of such property, where no consideration other than love and affection, charitable donation or a nominal compensation is evidenced by the terms of the instrument of transfer. (d) Any document terminating or evidencIng termination of a Joint tenancy in real property except where additional consid- eratIon of value is paid in connection with such termination, or a decree or agreement partitioning real property held under common ownership unless consideration of value is paid in connection therewith. (e) Transfer of t~tle or change of interest in real property by reason of death, will or decree of distribution. (f) Transfers made pursuant to mergers or consolidation of corporation or by a subsidiary to a parent corporation for no 02/SD1 -5- consideration other than cancellation or surrender of the subsldlary's stock. (g) Any deed or conveyance made and delivered without consideration for the purposes of conf~rm~ng, correcting, modify- lng or supplementing a transfer previously recorded; making mmnor boundary adjustments, removing clouds on titles; or granting easements, rights-of-way or licenses. (h) Any decree or order of a court of record determining or vesting title, including the final awarding tmtle pursuant to a condemnation proceeding. (m) Any deed granting or conveying title to cemetery lots. (j) Any lease of real property (or assignment or transfer of any interest in any such lease}, provided such lease by its terms does not constitute a de facto conveyance of the subject property. In the latter event, the real estate transfer tax shall be based on the capltalmzat~on at f~ve percent (5%) of the average annual rental over the entire term of the lease, includ- ing any renewal term, plus actual consmderatlon, other than rent, paid or to be pa~d. When the average annual rental cannot be determined, or at the election of the Director of Finance, the tax shall be based on the assessed value of the property covered by the lease. (k) Any mmneral deed or royalty deed. (1) Transfers to secure a debt or other obligation, or transfers or releases of property which is security for a debt or other obligation. 02/SD1 -6- (m) Any executory contract for the sale of real property under which the vendee is entitled to or does take possession %hereof without acquiring title thereto, or any assignment or cancellation of any such contract. (n) Any deed or conveyance under execut~on, sale, foreclo- sure sale under a power sale or court decree of lien foreclosure; sheriff's deed; public trustee's deed or treasurer's deed. (o) All deed-restricted employee housing sub3ect to the Aspen/Pltkin County Housing Authority Guidelines as amended from t~me to time. (p) The first $100,000.00 of all transactions. Section 8 - Application for Exemption. In the event any document which is exempt from the real estate transfer tax here~n imposed does not contain language clearly showing ~ts intent and character, the grantor or grantee may apply for and obtain from the Director of Finance a certlf~- cate of exemption, which may be affixed to such deed or ~nstrument of transfer. Any person whose claim of exemption duly applied for under the provlslons of th~s section Ks denied by the Director of Finance may immediately appeal to the City Council for a determination of such exemption and such appeal shall be considered by the City Council at its next regular meeting. In the event of a determination by City Council favorable to said grantor, any amount previously depos!ted or so much thereof as may be allowed by the Council shall be promptly refunded to sa~d 02/SD1 -7- grantor. A certificate of exempt[on shall be in substantially the following form: EXEMPTION FROM REAL ESTATE TRANSFER TAX STATE OF ) COUNTY OF ) The underslgnedt as grantor or grantee of the deed or instrument of conveyance for (grantor) to (grantee) dated , transferring the following described property, situate in the State of Colorador County of Pltk!n, City of Aspen: hereby does apply for an exemption from the payment of the real estate transfer tax imposed by Ordinance No. (Series of 1990) of the C~ty of Aspen. The basis for such exemption is as follows~ (ssate briefly the grounds for exemption, including applicable sectlon and subdlvlslon of Ordinance No. (Series of 1990). (Signature) STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) Subscribed and sworn to before me th~s day of ~ 19__, by Witness my hand and official seal. My commission explres~ Notary Public 02/SD1 -8- CERTIFICATION OF EXEMPTION I hereby certmfy that the above-described transfer of real property ms exempt from the payment of the real estate transfer tax under Ordinance No. (Series of 1990)t Sectmon ). Signature Section 9 - Application of Funds (a) Ail funds received by the City of Aspen pursuant to this ordinance shall be deposmted %n a separate fund. The funds shall be subject to appropriation by City Council of the City of Aspen, or its desmgnee, only for the purpose of acquiring vacant land, acquiring buildings for the purposes of employee housmng, for the construction, reconstruction of employee housing~ mamnte- nance of employee housing bumldlngs and property, for the opera- tmon of employee/community housing projects, for the payment of principal and interest on the bonds mssued for such purposes and incidental costs of issuing the bonds and the funding of any reserve therefor, and for repayment to the Land Fund for open space acqulsmtlons converted to employee housing purposes and for payment of all costs~ including, without limitation, legal fees associated therewith. (b) The City Councll, pursuant to ordinance, and without an election, may borrow money, issue bonds~ or otherwise extend the credit of the City for the acqums~tlon of vacant land, acquisi- tion of existing buildings for employee housing, construction and reconstructzon of employee housing, maintenance of employee 02/SD1 -9- housing, repayment to the Land Fund for open space acquisitions converted to employee housing purposes, and operation of employee housing projects, providing that such bonds or other community obligations shall be made payable from the funds derived from this ordinance. Section 10 - Penalties and L~ens (a) Ail taxes imposed by thls ordinance, if not paid when due, shall bear interest at the rate of eighteen percent (18%) per annum until so pa~d. The amount of the real estate transfer tax imposed by this ordinance and interest due thereon is hereby assessed against the property upon the transfer of which said tax · s lmposedt and if not paid when due, such tax and interest, if any, shall constitute a lien on the property for the amount thereof, which lien shall continue until the amount thereof Ks paid or until ~t is discharged of record by foreclosure or otherwise. (b) Any person who shall fall or refuse to pay any tax due thereunder shall be punished by a fine not exceeding Three Hundred Dollars ($300.00) or Imprisonment for a period of not more than ninety (90) days, or both such fine and lmprlsonmentw (c) Any remedies provided for hereln shall be cumulative, not exclusive and shall be in addition to any other remedies provided by law. Section 11 - Effective Date The provisions of this ordinance shall be effective upon the 1st day of Aprll, 1990. 02/SD1 -104 Section 12 - Duration of Ordinance This ordinance shall continue effective insofar as the levy of the real estate transfer tax is concerned through December 31~ 1994; and insofar as the collection of the tax levied in the aforesaid period and actions for proceedings for collecting any tax so levled, including interest and penalties thereon, and enforcing any of the provisions in this ordinance are concerned, this ordinance shall continue effective until all of said taxes levied in the aforesaid perlod are fully pa~d and any and all suits or prosecutions for the collection of said tax and for the punishment of violations of th~s o£dlnance shall have been fully terminated. Section 13 Provisions Irrepealable or Unamendable Sections 4 and 9(a) providing for the amount of the tax and the application of the funds shall be and remain irrepealable an~ unamendable without the approval of the electorate of the repeal or the amendment pursuant to the requirements of Section 12.1 of the Charter of the City of Aspen, Colorado. Sectlon 14 - Severabillty If any section, subsection, sentence, clause, phrase or portion of th~s ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separatef distinct and independent provision and shall not affect the validity of the remaining portions thereof. 02/SD1 -11-- Section 15 - No Retroactive Application Nothing in this ordInance shall be construed to affect any right, duty or llabil!ty under any ordinances in effect prior to the effective date of th~s ordinance, and the same shall be continued and concluded under such prior ordinances. Section 16 - Public Hearing A publlc hearing on the ordinance shall be held on the day of /~t~[~ , 1990, in the City Council Chambers, Aspen C~ty Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City Council of the City of Aspen on the ~.~%z~__ day of W~!liam L. Starting, Mayor ~ATTEST: Kathryn ~. Koch, City Clerk FINALLY adopted, passed and approved this /~-~ay of William L. St~rllng, Mayor ATTEST: Kathryn SjKoch, City Cl~k 02/SD1 -12-