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HomeMy WebLinkAboutordinance.council.067-94 ll_ L~1" , \1 '\"-:,, - ORDINANCE (Series NO. 0:::t--- of 1994) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING ORDINANCE NO. 13 (SERIES OF 1990) TO EXTEND THE EXPIRA- TION DATE OF THE AFFORDABLE HOUSING REAL ESTATE TRANSFER TAX FROM DECEMBER 31, 1994, TO DECEMBER 31, 2004; AND, TO AMEND THE ASPEN MUNICIPAL CODE BY THE ADDITION OF ARTICLE VI TO CHAPTER 21 TO CODIFY THE WHEELER OPERA HOUSE REAL ESTATE TRANSFER TAX ENACTED BY ORDINANCE NO. 20 ,(SERIES OF 1979) AND THE AFFORPABLE HOUSING REAL ESTATE TRANSFER TAX ENACTED BY ORDINANCE NO. 13 (SERIES OF 1990) AS AMENDED HEREIN. WHEREAS, the City Council imposed a Real Estate Transfer Tax by Ordinance No. 20 (Series of 1979) "to provide sufficient funds to make such renovation and reconstruction; to provide for the maintenance of the Wheeler Opera House; and subordinate, thereto, to provide for the support of the visual and performing arts"; ~ and '. ".' , ~ \1l,,-: WHEREAS, the city council imposed a Real Estate Transfer Tax by ordinance No. 13 (Series of 1990), the 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"; and WHEREAS, t~e affordable housing Real Estate Transfer Tax imposed by Ordinance No. 13 (Series of 1990) was scheduled to expire on December 31, 1994; and WHEREAS, the city council determined to ask the electors of the city of Aspen at the November 8, 1994, general election for fe, ~ '~, lA ., lA, ~. authorization, pursuant to Article X, section 20, of the Colorado Constitution, for an extension of the expiration date to December 31, 2004; and WHEREAS, at said general election the electors of the city of Aspen voted to authorize the extension of the affordable housing Real Estate Transfer Tax; and WHEREAS, the city Council desires to codify the Wheeler opera House and affordable housing Real Estate Transfer Tax by amending the Aspen Municipal Code by the addition of Article VI to Chapter 21. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That Chapter 21 of the Municipal Code of the city of Aspen, colorado, which chapter is entitled "Taxation", is hereby amended by the addition of Article VI which shall read as follows: ARTICLE VI REAL ESTATE TRANSFER TAX Sec. 21-120. Definitions. For the purposes of this Article, certain words are defined as follows: (a) Document. instrument within the "Document" means and includes any or writing by which real property City of Aspen is transferred. deed, located (b) Transfer. "Transfer" means and includes any conveyance of the ownership of a title to real property and is . evidenced by any deed or instrument or writing wherein or whereby title to real property situated in the city of Aspen is granted or conveyed, subject to the exclU- 2 1)'1, \\i, "~<... i~",;,'_,'" ~. ".", tA, ., sions provided in this Article. "Conveyance of owner- ship" for the purpose of this Article means and in- cludes the transfer of more than fifty percent of the authorized and issued shares of a corporation which has as its principal asset real property situated in the city of Aspen. (c) Real Propertv. "Real property" means and includes all lands or interests in lands within the city of Aspen to which title or the right to title has been acquired from or ratified by the government of the United states , or the state of Colorado. (d) Consideration. "Consideration" means and includes the actual cash paid and/or value of the property deliv- ered, 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 lien, mortgage, contract indebtedness, or other encumbrance, either given to secure the purchase price, or any part there- of, or 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 quasi-municipal governmental corporation or district for taxes, special benefits or improvements. Sec. 21-121. Lands Affected. When a document subject ,to this Article includes property located within the city of Aspen and property located within another city or in Pitkin County or other counties, the tax imposed under the authority of this Article shall be computed only with respect to property located within the city of Aspen and the tax shall be assessed on that part of the consideration fairly attributable to the part of such property located within this city. Sec. 21-122. Director of Finance to Enforce. (a) The Director of Finance of the city of Aspen is charged with the enforcement of the provisions of this Article and is hereby authorized and empowered to prescribe, adopt and promulgate and enforce rules and regulations pertaining thereto. (b) At the time of any transfer upon which a tax is imposed by this Article there shall be made a report to the Director of Finance on forms prescribed by him, setting 3 e. ~ ;" ~ ',It, ~,' ~~' ~ ~. a ~ forth the true, 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 he may require. (c) For the purpose of collection of the taxes imposed by this Article, the Office of the Pitkin County Clerk and Recorder, together with all banks, title companies, escrow companies, building and loan institutions and real estate agencies permitted as such to do business under the laws of the state of Colorado and maintaining offices within the city of Aspen for the collection of said tax. The Director of Finance is authorized to negotiate with such appointed agents to allow them to retain a reasonable amount of the sum collected to cover their expense in the collection and remittance of said tax. Sec. 21-123. Exemptions. The Real Estate Transfer Tax imposed by this Article shall not apply to: (a) Any document wherein the united states, or any agency or instrumentality thereof, the State of Colorado, any .county, city and county, municipality, district or other political subdivision of this State, is either the grantor or grantee. Any document wherein the grantee corporation, associa- tion or trust has been organized, operated and main- tained solely and exclusively for charitable or reli- gious purposes. (b) (c) Any document granting or conveying title to real pro- perty in consequence of a gift of such property, where no consideration other than love and affection, chari- table donation or 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 consideration of value is paid in connection with such termination, or a decree or agreement partitioning real property held under common ownership unless a consider- ation of value is paid in connection therewith. 4 ~es ~ ~ ~, (e) The transfer of title or change of interest in real property by reason of death, will or decree of distri- bution. (f) Transfers made pursuant to mergers or consolidations of corporations, or by a subsidiary to a parent corpora- tion for no consideration other than cancellation or surrender of the subsidiary's stock. (g) Any deed or conveyance made and delivered without consideration for the purpose of confirming, correct- ing, modifying, or supplementing a transfer previously recorded; making minor 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 resting title, including a final order awarding title pursuant to a condemnation proceeding. (i) Any deed granting or conveying title to cemetery lots. ~,- ~, '~ (j) Any lease of any real property (or assignment or trans- fer 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 upon the capitalization at 5% of the average annual rental over the entire term of the lease, inclUding any renew- al term, plus the actual consideration, other than rent, paid or to be paid. When the average annual rental cannot be determined, or at the election of the Director of Finance, the tax shall be based upon the assessed value of the property covered by the lease. (k) Any mineral deed or royalty deed. (l) Transfers to secure a debt or other obligation, or transfers or release of property which is security for a debt or other obligation. (m) Any executory contract for the sale of real property under which the vendee is entitled to or does take possession thereof without acquiring title thereto, or any assignment or cancellation of any such contract. (n) Any deed or conveyance under execution, sale, or fore- closure sale under a power sale or court decree of lien ie", ~ ~- 5 e I,e: ,~ \~ ~ ~l,.,_', ~. ,.,:,,,", foreclosure; sheriff's deed; public trustee deed or treasurer's deed. Sec. 21-124. Application for Exemption. In the event any document which is exempt from the Real Estate Transfer Tax herein imposed does not contain language clearly showing its exempt character, the grantor or grantee may apply for and obtain from the Director of Finance a certificate of Exemption, which may be affixed to such deed or instrument of transfer. The certificate of Exemption shall be in substantially the following form: EXEMPTION FROM REAL ESTATE TRANSFER TAX STATE OF County of The undersigned, as grantor or grantee of a deed or instru- ment of conveyance from (grantor) to (grantee) dated transferring the following described property situate in the State of Colorado, County of Pitkin, and city of Aspen: hereby does apply for an exemption from the payment of the Real Estate Transfer Tax imposed by Section of the Municipal Code of the City of Aspen. The basis of such exemption is as follows: (State briefly grounds for exemption, including applicable section and subdivision of Municipal Code.) (Siqnaturel Subscribed and sworn to before me this , 19 day of (Siqnaturel Notary Public My commission expires: CERTIFICATE OF EXEMPTION I hereby certify that the above-described transfer of real property is exempt from the payment of a Real Estate Trans- fer Tax under Section of the Aspen Municipal Code. (Siqnaturel 6 'Il "" ~ e ~e' , ~ Any person whose claim of exemption duly applied for under the provisions of this section is denied by the Director of Finance may immediately appeal to the city council fora determi- nation 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 the city council favorable to said grantor, any amount previously deposited, or so much thereof as may be allowed by the Council, shall be promptly refunded to said grantor. Sec. 21-125. Wheeler Opera House Real Estate Transfer Tax (a) Tax imposed. The~e is hereby imposed a Real Estate Transfer Tax on every document in writing, wherein or whereby title to real property situated in the City of Aspen is transferred, which tax shall be measured by the consideration paid or to be paid for such grantor conveyance and shall be due and payable by the grantee at the time of transfer and contemporaneously there- with. No document shall be recorded whereby or wherein title to real property situated in the city of Aspen is transferred until the real estate transfer tax has been paid. (b) Amount of tax. The amount of Real Estate Transfer Tax payable shall be computed at the rate of one-half of one percent (1/2 of 1%) of the consideration paid in return for the transfer of ownership or title. (c) Application of funds. All funds received by the city of Aspen pursuant to this section 21-125 shall be deposited in the Real Estate Transfer Tax fund, which fund is hereby created. The fund shall be subject to appropriation by the City council of the City of Aspen only for the purpose of renovation, reconstruction and maintenance of the Wheeler Opera House or for the payment of principal and interest on bonds issued for such purposes and for the purpose of supporting the visual and performing arts. However, the city council cannot appropriate in exceSs of $100,000.00 in any single calendar year for the purpose of supporting the visual and performing arts without obtaining the approval of sixty percent (60%) of the electors voting at a regular or special election on the same. The city council, pursuant to ordinance, and without an election, may borrow money, issue bonds, or otherwise extend the credit of the city for renovation and recon- 7 $1_' $, "'", (d) (e) , struction of the Wheeler Opera House provided that the bonds or other obligations shall be made payable from the funds derived from this ordinance. Effective date. The provisions of this section 21-125 shall be effective on the 1st day of January, 1980. Duration of ordinance. This section 21-125 shall continue effective insofar as the levy of the Real Es- tate Transfer Tax is concerned through December 31, 1999; and insofar as the collection of the tax levied in the aforesaid period and actions or proceedings for collecting any tax so levied, including interest and penalties thereon, and enforcing any of the provisions of this Article are concerned, this Article shall continue effective until all of said taxes levied in the aforesaid period are fully paid and any and all suits and prosecutions for the collection of said taxes and for the punishment of violations of this Article shall have been fully terminated. (f) provisions irreplaceable or unamendable. Subsections (b) and (c) of this section 21-125 providing for the amount of the tax and the application of funds shall be and remain irrepealable and unamendable without the approval of the electorate for the repeal or amendment pursuant to the requirements of section 12.1 of the Charter of the City of Aspen, Colorado. ._" 14 \1 \< Sec. 21-126. Affordable Housing Real Estate Transfer Tax. (a) (b) ~- \\\ ~: -\:" Tax imposed. There is hereby imposed a Real Estate Transfer Tax on every document in writing, whereby title to real property situated in the city of Aspen is transferred, which tax shall be measured by the consid- eration paid or to be paid for such grant or conveyance and shall be due and payable by the grantee at the time of transfer contemporaneously therewith. The document shall not be recorded whereby or wherein title to real property situated in the City of Aspen is transferred until the real estate transfer tax has been paid or exempted. Amount of tax. The amount of Real Estate Transfer Tax payable shall be computed at the rate of one percent (1%) of the consideration paid in return for the trans- fer of ownership or title. 8 \~, \~. (c) Additional exemptions from tax. In addition to the exemptions set forth at section 21-123, the real estate transfer tax imposed by this section 21-126 shall not apply to: (i) All deed-restricted employee housing subject to the Aspen/Pitkin County Housing Authority Guide- lines, as amended from time to time; and (ii) The first $100,000.00 of all transactions. e. ~\ 'Q; <- (d) Application of funds. (i) All funds received by the City of Aspen pursuant to this section 21-126 shall be deposited in a separate fund. The funds shall be subject to appropriate by City council of the city of Aspen, or its designee, only for the purpose of acquiring vacant land, acquiring buildings for the purpose of employee housing, for the construction, recon- struction, of employee hOUSing, maintenance of employee housing buildings and property, for the operation of employee/community housing projects, for the payment of principal and interest on the bonds issued 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 acquisitions converted to employee housing purposes and for payment of all costs, including, without limitation, legal fees associated therewith. (ii) The city Council, pursuant to ordinance, and with- out an election, may borrow money, issue bonds, or otherwise extend the credit of the city for the acquisition of vacant land, acquisition of existing buildings for employee housing, construction and reconstruction of employee housing, maintenance of employee housing repayment to the Land Fund for open space acquisitions converted to employee housing purposes, and operation of employee hous- ing projects, providing that such bonds or other community obligations shall be made payable from the funds derived from this section. (e) Effective date. The provisions of this section 21-126 shall be effective upon the last day of April, 1990. ,It. '\i:. ,~~ 9 tA (~. (f) Duration of tax. This section 21-126 shall continue effective insofar as the levy of the real estate trans- fer tax is concerned through December 31, 2004, and insofar as the collection of the tax levied in the aforesaid period and actions for proceedings for col- lecting any tax so levied, including interest and penalties thereon, and enforcing any of the provisions in this section 21-126 are concerned, this section shall continue effective until all of said taxes levied in the aforesaid period are fully paid and any and all suits or prosecutions for the collection of said tax and for the punishment of violations of this ordinance shall have been fully terminated. (g) provisions irrepealable or unamendable. Subsections (b) and (d) of this section 21-126 providing for the amount of the tax and the application of the funds shall be and remain irrepealable and unamendable with- out the approval of the el~ctorate of the repeal or the amendment pursuant to the requirements of section 12 .,1 of the Charter of the city of Aspen, Colorado. Sec. 21-127. Penalties and liens. ,-, ,., (a) All taxes imposed by this article, if not paid when due, shall bear interest at the rate of eighteen per- cent (18%) per annum until so paid. The amount of the real estate transfer tax imposed by this article and interest due thereon is hereby assessed against the property upon the transfer of which said tax is im- posed, 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 is paid or until it is discharged of record by foreclosure or otherwise. (b) Any person who shall fail 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 imprisonment. (c) Any remedies provided for herein shall be cumulative, not exclusive and shall be in addition to any other remedies provided by law. ~,.,-',',,', ~.. ''';< 10 I.", \\. Ie""" ~. ~~ ,a ~. Section 2 This ordinance shall not have any effect on existing litiga- tion and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section '3 If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 4 A public hearing on !tJ!{!/.Jl/./JUUJU the ordinance shall be held on the /~ day of , 1994, in the city council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the city Council of ~ the city of Aspen on the c:::J!{ day of , 1994. ~S" (J.~-- John . Bennett, Mayor ATTEST: / /~~0 Kathryn Sf Koch, city Clerk 11 e",'" \' \j. ""< er ;t "<"... e' , \\" ,>, FINALLY adopted, passed &e/X-~/ ATTEST: jw1117 ;1 Clerk and approved this /.;;::;L day of , 1994. ~ 7. (5~~- Johtl S. Bennett, Mayor 12 .";_,,,",_,,,,-'.c __,.._O'.~'"'_ _.._..'.",~~ "-'-..,_~-~o'i