Repeal Retail Delivery Fees

Second Regular Session
Seventy-fifth General Assembly
STATE OF COLORADO
INTRODUCED

LLS NO. 26-0778.01 Caroline Martin x5902 HOUSE BILL 26-1266
House Committees Senate Committees
Transportation, Housing & Local Government
A BILL FOR AN ACT
CONCERNING THE REPEAL OF RETAIL DELIVERY FEES.101
Bill Summary
(Note: This summary applies to this bill as introduced and does
not reflect any amendments that may be subsequently adopted. If this bill
passes third reading in the house of introduction, a bill summary that
applies to the reengrossed version of this bill will be available at
http://leg.colorado.gov.)
A retail delivery is a retail sale of tangible personal property that
is subject to state sales tax by a retailer for delivery by a motor vehicle to
the purchaser at any location in the state. As authorized by current law,
retail delivery fees are imposed on each retail delivery by the:
! State;
! Community access enterprise;
! Clean fleet enterprise;
! Statewide bridge and tunnel enterprise;
HOUSE SPONSORSHIP
Woog,
SENATE SPONSORSHIP
Pelton B.,
Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.
Capital letters or bold & italic numbers indicate new material to be added to existing law.
Dashes through the words or numbers indicate deletions from existing law.
! Clean transit enterprise; and
! Nonattainment area air pollution mitigation enterprise.
Effective 90 days after the final adjournment of the general
assembly in 2026, the bill eliminates the retail delivery fees.
Be it enacted by the General Assembly of the State of Colorado:1
SECTION 1. In Colorado Revised Statutes, 24-38.5-301, repeal2
(1)(a), (1)(b), (1)(c), (1)(d), and (2) as follows:3
24-38.5-301. Legislative declaration. (1) The general assembly4
hereby finds and declares that:5
(a) Retail deliveries are increasing and are expected to continue6
to increase in urban and rural communities;7
(b) The motor vehicles used to make retail deliveries are some of8
the most polluting vehicles on the road, which has resulted in additional9
and increasing air and greenhouse gas pollution at the local community10
level from idling delivery vehicles in neighborhoods;11
(c) The adverse environmental and health impacts of increased12
local emissions from motor vehicles used to make retail deliveries can be13
mitigated and offset by investing in the charging and fueling14
infrastructure needed to support widespread public adoption of electric15
motor vehicles and zero emission vehicles and by replacing the state's16
dirtiest passenger vehicles with zero emission vehicles;17
(d) Instead of reducing the impacts of retail deliveries by limiting18
retail delivery activity through regulation, it is more appropriate to19
continue to allow persons who receive retail deliveries to benefit from the20
convenience afforded by unfettered retail deliveries and instead impose21
a small fee on each retail delivery and use fee revenue to fund necessary22
mitigation activities;23
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(2) The general assembly further finds and declares that:1
(a) To incentivize, support, and accelerate the construction of2
electric motor vehicle charging and fueling infrastructure in communities3
throughout the state; incentivize, support, and accelerate the adoption of4
electric motor vehicles by businesses, including transportation network5
companies, governmental entities, and individuals; and thereby increase6
access to electric motor vehicl es, minimize a nd mitigat e the7
environmental and health impacts caused by transportation-related8
emissions of air pollutants and greenhouse gases, and allow the state and9
its citizens to reap the environmental, health, business and governmental10
operational efficiency, and personal motor vehicle total ownership cost11
savings benefits of widespread adoption of electric motor vehicles, it is12
necessary, appropriate, and in the best interest of the state to create a13
community access enterprise that can provide specialized business14
services, including impact remediation services, that help communities,15
businesses, and governmental entities construct the electric motor vehicle16
charging and fueling infrastructure needed to support widespread17
adoption of electric motor vehicles, including light-duty, medium-duty,18
and heavy-duty motor vehicles and motor vehicles used to make retail19
deliveries, and thereby assuage range anxiety concerns, supply chain20
disruption concerns, and any other concerns that currently disincentivize21
the widespread adoption of electric motor vehicles;22
(b) The specific focus of the enterprise is the equitable reduction23
and mitigation of the adverse environmental and health impacts of air24
pollution and greenhouse gas emissions at the community level through25
support of the adoption of electric motor vehicles and electric alternatives26
to motor vehicles at the community level, including but not limited to27
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within disproportionately impacted communities throughout the state;1
(c) The enterprise provides impact remediation services when, in2
exchange for the payment of community access retail delivery fees by or3
on behalf of purchasers of tangible personal property for retail delivery,4
it acts to mitigate the impacts of residential and commercial deliveries on5
the state's transportation infrastructure, air quality, and emissions by:6
(I) Funding the construction of electric motor vehicle charging7
infrastructure that supports the use of clean and quiet electric motor8
vehicles, including motor vehicles used to make retail deliveries;9
(II) Specifically supporting and incentivizing the retirement of old10
and inefficient motor vehicles powered by internal combustion engines11
and the adoption of electric motor vehicles, electric alternatives to motor12
vehicles, and transit use in communities, including but not limited to13
disproportionately impacted communities, that generally bear the greatest14
burden of the environmental and health impacts of transportation15
emissions due to disparities in transportation pollution exposure;16
(III) Providing outreach, education, planning funds, or training to17
support the successful applications for funding and the performance of18
entities receiving funds;19
(IV) Contributing to the comprehensive regulatory scheme20
required for the plan ning, funding, development, construction,21
maintenance, and supervision of a sustainable transportation system; and22
(V) Providing additional remediation services to offset impacts23
caused by fee payers as may be provided by law;24
(d) By providing remediation services as authorized by this25
section, the enterprise provides a benefit to fee payers when it remediates26
the impacts they cause and therefore operates as a business in accordance27
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with the determination of the Colorado supreme court in Colorado Union1
of Taxpayers Foundation v. City of Aspen, 2018 CO 36;2
(e) Consistent with the determination of the Colorado supreme3
court in Nicholl v. E-470 Public Highway Authority, 896 P.2d 859 (Colo.4
1995), that the power to impose taxes is inconsistent with enterprise status5
under section 20 of article X of the state constitution, it is the conclusion6
of the general assembly that the revenue collected by the enterprise is7
generated by fees, not taxes, because the community access retail delivery8
fee imposed by the enterprise as authorized by section 24-38.5-303 (7) is:9
(I) Imposed for the specific purpose of allowing the enterprise to10
defray the costs of providing the remediation services specified in this11
section, including mitigating impacts to air quality and greenhouse gas12
emissions caused by the activities on which the fee is assessed, and13
contributes to the implementation of the comprehensive regulatory14
scheme required for the planning, funding, development, construction,15
maintenance, and supervision of a sustainable transportation system; and16
(II) Collected at rates that are reasonably calculated based on the17
impacts caused by fee payers and the cost of remediating those impacts;18
and19
(f) So long as the enterprise qualifies as an enterprise for purposes20
of section 20 of article X of the state constitution, the revenue from the21
community access retail delivery fee collected by the enterprise is not22
state fiscal year spending, as defined in section 24-77-102 (17), or state23
revenues, as defined in section 24-77-103.6 (6)(c), and does not count24
against either the state fiscal year spending limit imposed by section 2025
of article X of the state constitution or the excess state revenues cap, as26
defined in section 24-77-103.6 (6)(b)(I)(D).27
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SECTION 2. In Colorado Revised Statutes, 24-38.5-302, repeal1
(11), (17), and (18) as follows:2
24-38.5-302. Definitions. As used in this part 3, unless the3
context otherwise requires:4
(11) "Inflation" means the average annual percentage change in5
the United States department of labor, bureau of labor statistics, consumer6
price index for Denver-Aurora-Lakewood for all items and all urban7
consumers, or its applicable predecessor or successor index, for the five8
years ending on the last December 31 before the state fiscal year for9
which an inflation adjustment to be made to the community access retail10
delivery fee imposed pursuant to section 24-38.5-303 (7) begins.11
(17) "Retail delivery" has the same meaning as set forth in section12
43-4-218 (2)(e).13
(18) "Retailer" has the same meaning as set forth in section14
39-26-102 (8).15
SECTION 3. In Colorado Revised Statutes, 24-38.5-303, amend16
(5)(a) and (6)(f); and repeal (3)(a), (6)(g), and (7) as follows:17
24-38.5-303. Community access enterprise - creation - board18
- powers and duties - fund - transparency and reporting.19
(3) The business purpose of the enterprise is to support the20
widespread adoption of electric motor vehicles, including motor vehicles21
that originally were powered exclusively by internal combustion engines22
but have been converted into electric motor vehicles, in an equitable23
manner by directly investing in transportation infrastructure, making24
grants or providing rebates or other financing options to fund the25
construction of electric motor vehicle charging infrastructure throughout26
the state, and incentivizing the acquisition and use of electric motor27
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vehicles and electric alternatives to motor vehicles in communities,1
including but not limited to dispr oportionately impacted communities,2
and by owners of older, less fuel efficient, and higher polluting vehicles.3
To allow the enterprise to accomplish this business purpose and fully4
exercise its powers and duties through the board, the enterprise may:5
(a) Impose a community access retail delivery fee as authorized6
by subsection (7) of this section;7
(5) (a) The community access enterprise fund is hereby created in8
the state treasury. The fund consists of community access retail delivery9
fee revenue credited to the fund pursuant to subsection (7) of this section,10
any monetary gifts, grants, donations, or other payments received by the11
enterprise, any federal money that may be credited to the fund, and any12
other money that the general assembly may appropriate or transfer to the13
fund. The state treasurer shall credit all interest and income derived from14
the deposit and investment of money in the fund to the fund. Money in the15
fund is continuously appropriated to the enterprise and may be expended16
to provide grants and rebates, pay its reasonable and necessary operating17
expenses, including the repayment of any loan received pursuant to18
subsection (5)(b) of this section, and otherwise exercise its powers and19
perform its duties as authorized by this part 3.20
(6) In addition to any other powers and duties specified in this21
section, the board has the following general powers and duties:22
(f) To publish grant and similar program processes by which the23
enterprise accepts applications, the criteria used for evaluating24
applications, and a list of grantees pursuant to subsection (8) of this25
section; AND26
(g) To promulgate rules for the sole purpose of setting the amount27
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of the community access retail delivery fee at or below the maximum1
amount authorized in this section; and2
(7) (a) In furtherance of its business purpose, beginning in state3
fiscal year 2022-23, the enterprise shall impose, and the department of4
revenue shall collect on behalf of the enterprise, a community access5
retail delivery fee on each retail delivery. Each retailer who makes a retail6
delivery shall either collect and remit or elect to pay the community7
access retail delivery fee in the manner prescribed by the department in8
accordance with section 43-4-218 (6). For the purpose of minimizing9
compliance costs for retailers and administrative costs for the state, the10
department of revenue shall collect and administer the community access11
retail delivery fee on behalf of the enterprise in the same manner in which12
it collects and administers the retail delivery fee imposed by section13
43-4-218 (3).14
(b) For retail deliveries of tangible personal property purchased15
during state fiscal year 2022-23, the enterprise shall impose the16
community access retail delivery fee in a maximum amount of six and17
nine-tenths cents.18
(c) (I) Except as otherwise provided in subsection (7)(c)(II) of this19
section, for retail deliveries of tangible personal property purchased20
during state fiscal year 2023-24 or during any subsequent state fiscal year,21
the enterprise shall impose the community access retail delivery fee in a22
maximum amount that is the maximum amount for the prior state fiscal23
year adjusted for inflation. The enterprise shall notify the department of24
revenue of the amount of the community access retail delivery fee to be25
collected for retail deliveries of tangible personal property purchased26
during each state fiscal year no later than March 15 of the calendar year27
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in which the state fiscal year begins, and the department of revenue shall1
publish the amount no later than April15 of the calendar year in which the2
state fiscal year begins.3
(II) The enterprise is authorized to adjust the amount of the4
community access retail delivery fee for retail deliveries of tangible5
personal property purchased during a state fiscal year only if the6
department of revenue adjusts the amount of the retail delivery fee7
imposed by section 43-4-218 (3) for retail deliveries of tangible personal8
property purchased during the state fiscal year.9
SECTION 4. In Colorado Revised Statutes, 25-7.5-101, amend10
(2)(d); and repeal (1) and (2)(e) as follows:11
25-7.5-101. Legislative declaration.12
(1) The general assembly hereby finds and declares that:13
(a) An increasing number of fleet motor vehicles are on the road14
to meet increasing demands for retail deliveries and rides arranged15
through transportation network companies;16
(b) These fleet vehicles are some of the most polluting vehicles on17
the road, which has resulted in additional and increasing air and18
greenhouse gas pollution and related adverse environmental and health19
impacts across the state;20
(c) The adverse environmental and health impacts of increased21
emissions from fleet motor vehicles used to make retail deliveries and22
provide rides arranged through transportation network companies can be23
mitigated and offset by supporting the widespread adoption of electric24
motor vehicles for use in motor vehicle fleets;25
(d) Instead of reducing the impacts of retail deliveries and rides26
arranged through transportation network companies by limiting retail27
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delivery and transportation network company ride activity through1
regulation, it is more appropriate to continue to allow persons who2
receive retail deliveries and benefit from the convenience afforded by3
unfettered retail deliveries and to allow transportation network companies4
that arrange prearranged rides to continue to provide that service without5
undue restrictions and instead impose a small fee on each retail delivery6
and ride and use fee revenue to fund necessary mitigation activities; and7
(e) It is necessary, appropriate, and in the best interest of the state8
and all Coloradans to incentivize and support the use of electric motor9
vehicles and, to the extent temporarily necessitated by the limitations of10
current electric motor vehicle technology and availability for certain fleet11
uses, compressed natural gas motor vehicles that are fueled by recovered12
methane and that produce fewer emissions than gasoline or diesel13
powered motor vehicles, by businesses and governmental entities that use14
fleets of motor vehicles, including fleets composed of personal motor15
vehicles owned by individual contractors who provide prearranged rides16
for transportation network companies or make retail deliveries, and to17
enable the state to achieve its stated electric motor vehicle adoption goals18
because increased usage of electric motor vehicles in motor vehicle fleets:19
(I) Generally reduces emissions of air pollutants, including ozone20
precursors, particulate matter pollutants, other hazardous air pollutants,21
and greenhouse gases, that contribute to adverse environmental effects22
such as climate change and adverse human health effects, including but23
not limited to asthma, reduced lung capacity, increased susceptibility to24
respiratory illnesses, chronic bronchitis, heart disease, and lung cancer,25
and helps the state meet its statewide greenhouse gas pollution reduction26
targets established in section 25-7-102 (2)(g), comply with air quality27
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attainment standards, and reduce adverse environmental and health1
impacts across the state and in communities, including but not limited to2
disproportionately impacted communities;3
(II) Specifically reduces higher localized emissions of such air4
pollutants in communities, including but not limited to disproportionately5
impacted communities, where:6
(A) Fleet yards, warehouses, distribution centers, refineries, fuel7
depots, waste facilities, and major interstate highways are located;8
(B) Usage of fleet motor vehicles is concentrated; and9
(C) Residents experience increased risks of air-pollution-related10
health impacts such as asthma, reduced lung capacity, increased11
susceptibility to respiratory illnesses, heart disease, and lung cancer; and12
(III) By reducing fuel and maintenance costs, helps businesses and13
governmental entities operate more efficiently over time, allowing the14
cost savings to be reinvested in business growth or used for beneficial15
public purposes.16
(2) The general assembly further finds and declares that:17
(d) By providing remediation services as authorized by this18
section, the enterprise provides a benefit to fee payers when it remediates19
the impacts they cause and therefore operates as a business in accordance20
with the determination of the Colorado supreme court in Colorado Union21
of Taxpayers Foundation v. City of Aspen, 2018 CO 36; AND22
(e) Consistent with the determination of the Colorado supreme23
court in Nicholl v. E-470 Public Highway Authority, 896 P.2d 859 (Colo.24
1995), that the power to impose taxes is inconsistent with enterprise status25
under section 20 of article X of the state constitution, it is the conclusion26
of the general assembly that the revenue collected by the enterprise is27
HB26-1266-11-
generated by fees, not taxes, because the fees imposed by the enterprise1
as authorized by section 25-7.5-103 (7) and (8) are:2
(I) Imposed for the specific purpose of allowing the enterprise to3
defray the costs of providing the remediation services specified in this4
section, including mitigating impacts to air quality and greenhouse gas5
emissions caused by the activities on which the fee is assessed, and6
contributes to the implementation of the comprehensive regulatory7
scheme required for the planning, funding, development, construction,8
maintenance, and supervision of a sustainable transportation system; and9
(II) Collected at rates that are reasonably calculated based on the10
impacts caused by fee payers and the cost of remediating those impacts;11
and12
SECTION 5. In Colorado Revised Statutes, 25-7.5-102, amend13
(13); and repeal (21) as follows: 14
25-7.5-102. Definitions.15
As used in this article 7.5, unless the context otherwise requires:16
(13) "Inflation" means the average annual percentage change in17
the United States department of labor, bureau of labor statistics, consumer18
price index for Denver-Aurora-Lakewood for all items and all urban19
consumers, or its applicable predecessor or successor index, for the five20
years ending on the last December 31 before a state fiscal year for which21
an inflation adjustment to be made to the clean fleet per ride fee imposed22
by section 25-7.5-103 (7) or the clean fleet retail delivery fee imposed by23
section 25-7.5-103 (8) begins.24
(21) "Retail delivery" has the same meaning as set forth in section25
43-4-218 (2)(e).26
SECTION 6. In Colorado Revised Statutes, 25-7.5-103, amend27
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(3)(a), (5)(a), and (6)(h); and repeal (8) as follows:1
25-7.5-103. Clean fleet enterprise - creation - board - powers2
and duties - fees - fund. (3) The business purpose of the enterprise is to3
incentivize and support the use of electric motor vehicles, including4
motor vehicles that originally were powered exclusively by internal5
combustion engines but have been converted into electric motor vehicles,6
and, to the extent temporarily necessitated by the limitations of current7
electric motor vehicle technology for certain fleet uses, compressed8
natural gas motor vehicles that are fueled by recovered methane, by9
businesses and governmental entities that own or operate fleets of motor10
vehicles, including fleets composed of personal motor vehicles owned or11
leased by individual contractors who provide prearranged rides for12
transportation network companies or deliver goods for a third-party13
delivery service. To allow the enterprise to accomplish this purpose and14
fully exercise its powers and duties through the board, the enterprise may:15
(a) Impose a clean fleet per ride fee and a clean fleet retail16
delivery fee as authorized by subsections (7) and (8) SUBSECTION (7) of17
this section;18
(5) (a) The clean fleet enterprise fund is hereby created in the state19
treasury. The fund consists of clean fleet per ride fee revenue and clean20
fleet retail delivery fee revenue credited to the fund pursuant to21
subsections (7) and (8) SUBSECTION (7) of this section, any monetary22
gifts, grants, donations, or other payments received by the enterprise, any23
federal money that may be credited to the fund, and any other money that24
the general assembly may appropriate or transfer to the fund. The state25
treasurer shall credit all interest and income derived from the deposit and26
investment of money in the fund to the fund. Money in the fund is27
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continuously appropriated to the enterprise for the purposes set forth in1
this article 7.5 and to pay the enterprise's reasonable and necessary2
operating expenses, including the repayment of any loan received3
pursuant to subsection (5)(b) of this section.4
(6) In addition to any other powers and duties specified in this5
section, the board has the following general powers and duties:6
(h) To promulgate ADOPT rules for the sole purpose of setting the7
amounts AMOUNT of the clean fleet per ride fee and the clean fleet retail8
delivery fee at or below the maximum amounts AMOUNT authorized in9
this section; and10
(8) (a) In furtherance of its business purpose, beginning in state11
fiscal year 2022-23, the enterprise shall impose, and the department of12
revenue shall collect on behalf of the enterprise, a clean fleet retail13
delivery fee on each retail delivery. Each retailer who makes a retail14
delivery shall either collect and remit or elect to pay the clean fleet retail15
delivery fee in the manner prescribed by the department in accordance16
with section 43-4-218 (6). For the purpose of minimizing compliance17
costs for retailers and administrative costs for the state, the department of18
revenue shall collect and administer the clean fleet retail delivery fee on19
behalf of the enterprise in the same manner in which it collects and20
administers the retail delivery fee imposed by section 43-4-218 (3).21
(b) For retail deliveries of tangible personal property purchased22
during state fiscal year 2022-23, the enterprise shall impose the clean fleet23
retail delivery fee in a maximum amount of five and three-tenths cents.24
(c) (I) Except as otherwise provided in subsection (8)(c)(II) of this25
section, for retail deliveries of tangible personal property purchased26
during state fiscal year 2023-24 or during any subsequent state fiscal year,27
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the enterprise shall impose the clean fleet retail delivery fee in a1
maximum amount that is the maximum amount for the prior state fiscal2
year adjusted for inflation. The enterprise shall notify the department of3
revenue of the amount of the clean fleet retail delivery fee to be collected4
for retail deliveries of tangible personal property purchased during each5
state fiscal year no later than March 15 of the calendar year in which the6
state fiscal year begins, and the department of revenue shall publish the7
amount no later than April15 of the calendar year in which the state fiscal8
year begins.9
(II) The enterprise is authorized to adjust the amount of the clean10
fleet retail delivery fee for retail deliveries of tangible personal property11
purchased during a state fiscal year only if the department of revenue12
adjusts the amount of the retail delivery fee imposed by section 43-4-21813
(3) for retail deliveries of tangible personal property purchased during the14
state fiscal year.15
SECTION 7. In Colorado Revised Statutes, 39-21-119.5, amend16
(2)(s) and (2)(t); and repeal (2)(u) as follows:17
39-21-119.5. Mandatory electronic filing of returns -18
mandatory electronic payment - penalty - waiver - definitions.19
(2) Except as provided in subsection (6) of this section, the20
executive director may, as specified in subsection (3) of this section,21
require the electronic filing of returns and require the payment of any tax22
or fee due by electronic funds transfer for the following:23
(s) Any prepaid wireless 911 charge report required to be filed and24
payment required to be made pursuant to section 29-11-102.5 (3); AND25
(t) Any prepaid telephone disability access charge report required26
to be filed and payment required to be made pursuant to section27
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40-17-104. and1
(u) Any retail delivery fee or enterprise retail delivery fees return2
required to be filed pursuant to section 43-4-218 (6).3
SECTION 8. In Colorado Revised Statutes, 39-26-102, amend4
(7)(a) introductory portion as follows:5
39-26-102. Definitions. As used in this article 26, unless the6
context otherwise requires:7
(7) (a) "Purchase price" means the price to the consumer,8
exclusive of any direct tax imposed by the federal government or by this9
article 26, exclusive of any retail delivery fee and enterprise retail10
delivery fees imposed or collected as specified in section 43-4-218, and,11
in the case of all retail sales involving the exchange of property, also12
exclusive of the fair market value of the property exchanged at the time13
and place of the exchange, if:14
SECTION 9. In Colorado Revised Statutes, 39-37-103, repeal15
(15)(a)(IV) as follows:16
39-37-103. Definitions.17
As used in this article 37, unless the context otherwise requires:18
(15) (a) "Purchase price" means the aggregate consideration19
valued in money paid or delivered or promised to be paid or delivered by20
the user or consumer in consummation of a sale, exclusive of:21
(IV) Any retail delivery fee and enterprise retail delivery fees22
imposed or collected as specified in section 43-4-218;23
SECTION 10. In Colorado Revised Statutes, 43-4-205, repeal24
(6.8)(b) as follows:25
43-4-205. Allocation of fund - repeal.26
(6.8) (b) (I) Revenue from the retail delivery fee imposed pursuant27
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to section 43-4-218 (3) that is credited to the highway users tax fund as1
required by section 43-4-218 (5)(a)(I) must be allocated and expended as2
follows:3
(A) Forty percent must be paid to the state highway fund and4
expended as provided in section 43-4-206;5
(B) Thirty-three percent must be paid to the county treasurers of6
the respective counties, subject to annual appropriation by the general7
assembly, and allocated and expended as provided in section 43-4-207;8
and9
(C) Twenty-seven percent must be paid to the cities and10
incorporated towns, subject to annual appropriation by the general11
assembly, and must be allocated and expended as provided in section12
43-4-208 (2)(b) and (6)(a).13
(II) Revenue from the retail delivery fee may be expended for the14
purposes specified in subsection (6)(b) of this section and may also be15
expended for transit-related projects needed to integrate different16
transportation modes within a multimodal transportation system.17
SECTION 11. In Colorado Revised Statutes, repeal 43-4-218 as18
follows:19
43-4-218. Additional funding - retail delivery fee - fund20
created - simultaneous collection of enterprise fees - rules - legislative21
declaration - definitions.22
(1) The general assembly hereby finds and declares that:23
(a) In recent years, the number of retail deliveries of tangible24
personal property, including restaurant food, has rapidly increased, and25
this rapid growth is expected to continue;26
(b) The world economic forum estimates that by 2030 there will27
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be over thirty percent more delivery vehicles on roads to deliver1
seventy-eight percent more packages, which will increase usage of the2
highways, roads, and streets of the state by motor vehicles used to make3
retail deliveries, traffic congestion, and retail-delivery-related emissions;4
(c) This additional usage has accelerated and is expected to5
continue to accelerate deterioration of surface transportation system6
infrastructure, and has required and is expected to continue to require the7
state, counties, and municipalities to perform more maintenance and8
reconstruction of state highways, county roads, and city streets;9
(d) This additional usage has also increased and is expected to10
continue to increase motor-vehicle-related emissions of air pollutants,11
including ozone precursors, particulate matter pollutants, other hazardous12
air pollutants, and greenhouse gases, that contribute to adverse13
environmental effects, including but not limited to climate change, and14
adverse human health effects;15
(d.3) There are administrative costs for a retailer when the state16
imposes a fee on retail deliveries, and the benefits from the fee revenue17
need to be balanced with the potential economic impacts on the retailers;18
(d.7) Fees on retail deliveries should only be imposed on retailers19
that are large enough to absorb these administrative costs without20
significant economic harm;21
(e) It is therefore necessary and appropriate:22
(I) To impose a retail delivery fee as specified in this section and23
to credit the proceeds of the fee to the highway users tax fund created in24
section 43-4-201 for allocation to the state, counties, and municipalities25
and to the multimodal transportation and mitigation options fund created26
in section 43-4-1103 (1)(a);27
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(II) To authorize the community access enterprise created in1
section 24-38.5-303 (1) to impose a community access retail delivery fee2
as specified in section 24-38.5-303 (7), authorize the clean fleet enterprise3
created in section 25-7.5-103 (1)(a) to impose a clean fleet retail delivery4
fee as specified in section 25-7.5-103 (8), authorize the statewide bridge5
and tunnel enterprise created in section 43-4-805 (2)(a)(I) to impose a6
bridge and tunnel retail delivery fee as specified in section 43-4-8057
(5)(g.7), authorize the clean transit enterprise created in section8
43-4-1203 (1)(a) to impose a clean transit retail delivery fee as specified9
in section 43-4-1203 (7), and authorize the nonattainment area air10
pollution mitigation enterprise created in section 43-4-1303 (1)(a) to11
impose an air pollution mitigation retail delivery fee as specified in12
section 43-1-1303 (8) to help fund the enterprises' pursuit of their13
respective business purposes;14
(III) For the purpose of minimizing compliance costs for fee15
payers and administrative costs for the state, to require the department of16
revenue to collect the retail delivery fees imposed by the enterprises on17
behalf of the enterprises when it collects the retail delivery fee imposed18
by subsection (3) of this section and to distribute the enterprise fee19
revenue to the enterprises; and20
(IV) To create an exemption from the retail delivery fees for21
retailers with retail sales of five hundred thousand dollars or less.22
(2) As used in this section, unless the context otherwise requires:23
(a) "Enterprise retail delivery fees" means:24
(I) The community access retail delivery fee imposed by the25
community access enterprise created in section 24-38.5-303 (1), as26
specified in section 24-38.5-303 (7);27
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(II) The clean fleet retail delivery fee imposed by the clean fleet1
enterprise created in section 25-7.5-103 (1)(a), as specified in section2
25-7.5-103 (8);3
(III) The bridge and tunnel retail delivery fee imposed by the4
statewide bridge and tunnel enterprise created in section 43-4-8055
(2)(a)(I), as specified in section 43-4-805 (5)(g.7);6
(IV) The clean transit retail delivery fee imposed by the clean7
transit enterprise created in section 43-4-1203 (1)(a) as specified in8
section 43-4-1203 (7); and9
(V) The air pollution mitigation retail delivery fee imposed by the10
nonattainment area air pollution mitigation enterprise created in section11
43-4-1303 (1)(a) as specified in section 43-1-1303 (8).12
(b) "Inflation" means the average annual percentage change in the13
United States department of labor, bureau of labor statistics, consumer14
price index for Denver-Aurora-Lakewood for all items and all urban15
consumers, or its applicable predecessor or successor index, for the five16
years ending on the last December 31 before the calendar year in which17
a state fiscal year for which an inflation adjustment to the retail delivery18
fee imposed by subsection (3) of this section is to be made begins.19
(c) "Motor vehicle" has the same meaning as set forth in section20
42-1-102 (58). The term does not include a personal delivery device.21
(d) "Personal delivery device" means an autonomously operated22
robot that is:23
(I) Designed and manufactured for the purpose of transporting24
tangible personal property primarily on sidewalks, crosswalks, and other25
public rights-of-way that are typically used by pedestrians;26
(II) Weighs no more than fi ve hundred fifty pounds, ex cluding27
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any tangible personal property being transported; and1
(III) Operates at speeds of less than ten miles per hour when on2
sidewalks, crosswalks, and other public rights-of-way that are typically3
used by pedestrians.4
(e) "Retail delivery" means a retail sale of tangible personal5
property by a retailer for delivery by a motor vehicle owned or operated6
by the retailer or any other person to the purchaser at a location in this7
state, which sale includes at least one item of tangible personal property8
that is subject to taxation under article 26 of title 39. Each such retail sale9
is a single retail delivery regardless of the number of shipments necessary10
to deliver the items of tangible personal property purchased.11
(f) "Retailer" has the same meaning as set forth in section12
39-26-102 (8).13
(g) "Retail sale" has the same meaning as set forth in section14
39-26-102 (9).15
(h) "Tangible personal property" has the same meaning as set16
forth in section 39-26-102 (15).17
(3) (a) A retail delivery fee in an amount set forth in this18
subsection (3)(a) and subsection (3)(b) of this section is imposed on each19
retail delivery. Except as otherwise provided in subsection (6)(b)(II) of20
this section, for retail deliveries of tangible personal property purchased21
during state fiscal year 2022-23, each retailer who makes a retail delivery22
shall add to the price of the retail delivery, collect from the purchaser, and23
pay to the department of revenue at the time and in the manner prescribed24
by the department in accordance with subsection (6) of this section a25
retail delivery fee in the amount of eight and four-tenths cents.26
(b) (I) Except as otherwise provided in subsection (6)(b)(II) of this27
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section, for retail deliveries of tangible personal property purchased1
during state fiscal year 2023-24 or during any subsequent state fiscal year,2
each retailer who makes a retail delivery shall add to the price of the retail3
delivery, collect from the purchaser, and pay to the department of revenue4
at the time and in the manner prescribed by the department in accordance5
with subsection (6) of this section a retail delivery fee equal to the amount6
of the retail delivery fee for retail deliveries of tangible personal property7
purchased during the prior state fiscal year adjusted for inflation. The8
department of revenue shall annually calculate the inflation adjusted9
amount of the retail delivery fee to be imposed on retail deliveries of10
tangible personal property purchased during each state fiscal year and11
shall publish the amount no later than April 15 of the calendar year in12
which the state fiscal year begins.13
(II) The department of revenue shall adjust the amount of the14
retail delivery fee for retail deliveries of tangible personal property15
purchased during a state fiscal year only if inflation is positive and16
cumulative inflation from the time of the last adjustment in the amount of17
the retail delivery fee, when applied to the sum of the current retail18
delivery fee and all current enterprise retail delivery fees and rounded to19
the nearest whole cent, will result in an increase of at least one whole cent20
in the total amount of the retail delivery fee and all enterprise retail21
delivery fees imposed on each retail delivery. The amount of cumulative22
inflation to be applied to the sum of the current retail delivery fee and all23
current enterprise retail delivery fees and rounded to the nearest whole24
cent is the lesser of actual cumulative inflation or five percent.25
(c) A retail delivery that includes only tangible personal property,26
the sale of which is exempt from state sales tax under article 26 of title27
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39, is exempt from the retail delivery fee and from the enterprise retail1
delivery fees. A retail delivery made to a purchaser who is exempt from2
paying state sales tax under article 26 of title 39 is exempt from the retail3
delivery fee and from the enterprise retail delivery fees.4
(d) (I) Notwithstanding any other provision of law, a retail5
delivery by a qualified business made on or after July 1, 2022, is exempt6
from the retail delivery fee imposed by this subsection (3) and the7
enterprise retail delivery fees.8
(II) Ther e are no refunds under section 39-26-703 of any retail9
delivery fees for a retail delivery made on or after July 1, 2022, but before10
July 1, 2023, on the basis of the exemption set forth in subsection11
(3)(d)(I) of this section.12
(III) As used in this subsection (3)(d), "qualified business" means13
a retailer that in the previous calendar year made retail sales of tangible14
personal property, commodities, or services in the state totaling five15
hundred thousand dollars or less. If the retailer had no retail sales in the16
state in the previous calendar year, then the retailer is deemed to be a17
"qualified business" for the current calendar year, until the first day of the18
month after the ninetieth day after the retailer has made retail sales of19
tangible personal property, commodities, or services in the state that total20
more than five hundred thousand dollars.21
(4) (a) For the purpose of minimizing compliance costs for22
retailers and administrative costs for the state, the department of revenue23
shall, when it collects the retail delivery fee imposed by subsection (3) of24
this section, also collect on behalf of the community access enterprise25
created in section 24-38.5-303 (1), the clean fleet enterprise created in26
section 25-7.5-103 (1)(a), the statewide bridge and tunnel enterprise27
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created in section 43-4-805 (2)(a)(I), the clean transit enterprise created1
in section 43-1-1203 (1)(a), and the nonattainment area air pollution2
mitigation enterprise created in section 43-4-1303 (1)(a), the enterprise3
retail delivery fees.4
(b) When collecting the retail delivery fee and, in accordance with5
subsection (4)(a) of this section, the enterprise retail delivery fees, the6
department of revenue shall retain an amount that does not exceed the7
total cost of collecting, administering, and enforcing the retail delivery fee8
and the enterprise retail delivery fees and shall transmit the amount9
retained to the state treasurer, who shall credit it to the retail delivery fees10
fund, which is hereby created in the state treasury. All money in the retail11
delivery fees fund is continuously appropriated to the department of12
revenue to defray the costs incurred by the department in collecting,13
enforcing, and administering the retail delivery fee and the enterprise14
retail delivery fees.15
(5) (a) The department of revenue shall transmit all net revenue16
collected from the retail delivery fee imposed by subsection (3) of this17
section to the state treasurer, who shall credit the net revenue as follows:18
(I) Seventy-one and one-tenth percent shall be credited to the19
highway users tax fund created in section 43-4-201 and allocated from the20
highway users tax fund to the state, counties, and municipalities as21
required by section 43-4-205 (6.8); and22
(II) Twenty-eight and nine-tenths percent shall be credited to the23
multimodal transportation and mitigation options fund created in section24
43-4-1103 (1)(a);25
(b) The department of revenue shall transmit all net revenue26
collected from enterprise retail delivery fees to the state treasurer who27
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shall credit the net revenue as follows:1
(I) All net community access retail delivery fee revenue shall be2
credited to the community access enterprise fund created in section3
24-38.5-303 (5);4
(II) All net clean fleet retail delivery fee revenue shall be credited5
to the clean fleet enterprise fund created in section 25-7.5-103 (5);6
(III) All net bridge and tunnel retail delivery fee revenue shall be7
credited to the statewide bridge and tunnel enterprise special revenue8
fund created in section 43-4-805 (3)(a);9
(IV) All net clean transit retail delivery fee revenue shall be10
credited to the clean transit enterprise fund created in section 43-4-120311
(5); and12
(V) All net air pollution mitigation retail delivery fee revenue13
shall be credited to the nonattainment area air pollution mitigation14
enterprise fund created in section 43-4-1303 (5).15
(6) (a) Except as otherwise provided in this subsection (6), the16
collection, administration, and enforcement of the retail delivery fee17
imposed by subsection (3) of this section and the enterprise retail delivery18
fees shall be performed by the executive director of the department of19
revenue in the same manner as the collection, administration, and20
enforcement of state sales tax pursuant to article 26 of title 39.21
(b) (I) Except as otherwise provided in subsection (6)(b)(II) of this22
section, every retailer who makes a retail delivery shall add the retail23
delivery fee imposed by subsection (3) of this section and the enterprise24
retail delivery fees to the price or charge for the retail delivery showing25
the total of the fees as one item called "retail delivery fees" that is26
separate and distinct from the price and any other taxes or fees imposed27
HB26-1266-25-
on the retail delivery. If added, the fees constitute a part of the retail1
delivery price or charge, are a debt from the purchaser to the retailer until2
paid, and are recoverable at law in the same manner as other debts.3
(II) A retailer may elect to pay the retail delivery fee imposed by4
subsection (3) of this section and the enterprise retail delivery fees for a5
retail delivery on behalf of a purchaser. If a retailer elects to pay these6
fees, then:7
(A) The retailer shall not add the fees to the price or charge for the8
retail delivery showing the total of the fees as one item called "retail9
delivery fees" that is separate and distinct from the price and any other10
taxes or fees imposed on the retail delivery;11
(B) The purchaser is neither liable nor responsible for the payment12
of the fees; and13
(C) The purchaser is not entitled to a refund for fees that are paid14
for a retail delivery that is exempt under subsection (3)(c) or (3)(d) of this15
section. A retailer may claim a re fund under section 39-26-703 for the16
exempt fees paid; except that section 39-26-703 (2.5)(b)(I)(B) shall not17
apply in this circumstance.18
(c) Every retailer who makes a retail delivery is liable and19
responsible for the payment of an amount equivalent to the total amount20
of the retail delivery fee imposed by subsection (3) of this section and the21
enterprise retail delivery fees for each retail delivery made irrespective of22
the requirements of subsection (6)(b) of this section. The burden of23
proving that a retailer is exempt from collecting or electing to pay the fees24
on any retail delivery and paying the fees to the executive director of the25
department of revenue is on the retailer under such reasonable26
requirements of proof as the executive director may prescribe. The retailer27
HB26-1266-26-
is entitled, as collecting agent for the state, to apply and credit the amount1
of the retailer's collections, if any, against the amount to be paid pursuant2
to this subsection (6)(c).3
(d) (I) A retailer who collects the retail delivery fee imposed by4
subsection (3) of this section and the enterprise retail delivery fees shall5
remit the fees to the department of revenue at the same time and in the6
same manner as the retailer remits sales tax revenue collected to the7
department as required by article 26 of title 39 unless the department8
requires or authorizes the fees to be remitted at another time or in another9
manner.10
(II) A retailer who elects to pay the retail delivery fee imposed by11
subsection (3) of this section and the enterprise retail delivery fees on12
behalf of a purchaser in accordance with subsection (6)(b)(II) of this13
section shall remit the fees to the department of revenue as if the fees had14
been collected from the purchaser on the date of the retail delivery, as15
specified in subsection (6)(d)(I) of this section.16
(e) All money paid to a retailer as a retail delivery fee imposed by17
subsection (3) of this section, or as one or more of the enterprise retail18
delivery fees, shall be and remains public money, the property of the state19
of Colorado, in the hands of the retailer, and the retailer shall hold the20
money in trust for the sole use and benefit of the state of Colorado until21
paid to the executive director of the department of revenue, and, for22
failure to pay the money to the executive director, a retailer shall be23
punished as provided by law. If any retailer collects fees in excess of the24
amount imposed by this section and sections 24-38.5-303 (7), 25-7.5-10325
(8), 43-4-1203 (7), and 43-4-1303 (8), the retailer shall remit to the26
executive director of the department of revenue the full amount of the27
HB26-1266-27-
fees and also the full amount of the excess.1
(f) The department of revenue shall waive any processing costs,2
as defined in section 39-21-119.5 (7)(d)(II), for electronic payment of the3
retail delivery fee imposed by subsection (3) of this section and the4
enterprise retail delivery fees if:5
(I) The processing costs would exceed the amount of the retail6
delivery fees the retailer is remitting; and7
(II) The electronic payment is by automated clearing house (ACH)8
debit.9
(7) The department of revenue may promulgate rules to implement10
this section.11
SECTION 12. In Colorado Revised Statutes, 43-4-805, amend 12
(2)(b)(I), (2)(c), (3)(a), (5)(r)(I), and (5)(r)(III)(A); and repeal (1)(b) and13
(5)(g.7) as follows:14
43-4-805. Statewide bridge ent erprise - creation - board -15
funds - powers and duties - legislative declaration - definitions.16
(1) The general assembly hereby finds and declares that:17
(b) Due to the limited availability of state and federal funding and18
the need to accomplish the financing, repair, reconstruction, and19
replacement of designated bridges; the completion of preventative20
maintenance bridge projects; and the completion of tunnel projects as21
promptly and efficiently as possible, it is necessary to create a statewide22
bridge and tunnel enterprise and to authorize the enterprise to:23
(I) Enter into agreements with the commission or the department24
to finance, repair, reconstruct, and replace designated bridges, complete25
preventative maintenance bridge projects, and complete tunnel projects26
in the state; and27
HB26-1266-28-
(II) Impose a bridge safety surcharge, a bridge and tunnel impact1
fee and a bridge and tunnel retail delivery fee at rates reasonably2
calculated to defray the costs of completing designated bridge projects,3
preventative maintenance bridge projects, and tunnel projects and4
distribute the burden of defraying the costs in a manner based on the5
benefits received by persons paying the fees and using designated bridges6
and tunnels, and receiving retail deliveries, receive and expend revenue7
generated by the surcharge and fees and other money, issue revenue8
bonds and other obligations, contract with the state, if required approvals9
are obtained, to receive one or more loans of money received by the state10
under the terms of one or more financed purchase of an asset or certificate11
of participation agreements authorized by this part 8, expend revenue12
generated by the surcharge to repay any such loan or loans received, and13
exercise other powers necessary and appropriate to carry out its purposes;14
and15
(2) (b) The business purpose of the bridge enterprise is to finance,16
repair, reconstruct, and replace any designated bridge in the state,17
complete preventative maintenance bridge projects, and complete tunnel18
projects and, as agreed upon by the enterprise and the commission, or the19
department to the extent authorized by the commission, to maintain the20
bridges it finances, repairs, reconstructs, and replaces. To allow the21
bridge enterprise to accomplish this purpose and fully exercise its powers22
and duties through the bridge enterprise board, the bridge enterprise may:23
(I) Impose a bridge safety surcharge AND a bridge and tunnel24
impact fee and a bridge and tunnel retail delivery fee as authorized by25
subsections (5)(g) AND (5)(g.5) and (5)(g.7) of this section;26
(c) The bridge enterprise constitutes an enterprise for purposes of27
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section 20 of article X of the state constitution so long as it retains the1
authority to issue revenue bonds and receives less than ten percent of its2
total revenues in grants from all Colorado state and local governments3
combined. So long as it constitutes an enterprise pursuant to this4
subsection (2)(c), the bridge enterprise shall not be subject to any5
provisions of section 20 of article X of the state constitution. Consistent6
with the determination of the Colorado supreme court in Nicholl v. E-4707
Public Highway Authority, 896 P.2d 859 (Colo. 1995), that the power to8
impose taxes is inconsistent with "enterprise" status under section 20 of9
article X of the state constitution, the general assembly finds and declares10
that a bridge safety surcharge OR a bridge and tunnel impact fee or a11
bridge and tunnel retail delivery fee imposed by the bridge enterprise as12
authorized by subsection (5)(g) OR (5)(g.5) or (5)(g.7) of this section is13
not a tax but is instead a fee imposed by the bridge enterprise to defray14
the cost of completing designated bridge projects, preventative15
maintenance bridge projects, and tunnel projects that the enterprise16
provides as a specific service to the persons upon whom the fee is17
imposed and at rates reasonably calculated based on the benefits received18
by such persons.19
(3) (a) The statewide bridge and tunnel enterprise special revenue20
fund, referred to in this part 8 as the "bridge special fund", is hereby21
created in the state treasury. All revenue received by the bridge enterprise,22
including, but not limited to, revenue from a bridge safety surcharge23
imposed as authorized by subsection (5)(g) of this section, revenue from24
a bridge and tunnel impact fee imposed as authorized by subsection25
(5)(g.5) of this section, revenue from a bridge and tunnel retail delivery26
fee imposed as authorized by subsection (5)(g.7) of this section, and any27
HB26-1266-30-
money loaned to the enterprise by the state pursuant to subsection (5)(r)1
of this section, shall be deposited into the bridge special fund. The bridge2
enterprise board may establish separate accounts within the bridge special3
fund as needed in connection with any specific designated bridge project,4
preventative maintenance bridge project, or tunnel project. The bridge5
enterprise also may deposit or permit others to deposit other money into6
the bridge special fund, but in no event may revenue from any tax7
otherwise available for general purposes be deposited into the bridge8
special fund. The state treasurer, after consulting with the bridge9
enterprise board, shall invest any money in the bridge special fund,10
including any surplus or reserves, but excluding any proceeds from the11
sale of bonds or earnings on such proceeds invested pursuant to section12
43-4-807 (2), that are not needed for immediate use. Such money may be13
invested in the types of investments authorized in sections 24-36-109,14
24-36-112, and 24-36-113.15
(5) In addition to any other powers and duties specified in this16
section, the bridge enterprise board has the following powers and duties:17
(g.7) (I) In furtherance of its business purpose, beginning in state18
fiscal year 2022-23, the bridge enterprise shall impose, and the19
department of revenue shall collect on behalf of the bridge enterprise, a20
bridge and tunnel retail delivery fee on each retail delivery. Each retailer21
who makes a retail delivery shall either collect and remit or elect to pay22
the bridge and tunnel retail delivery fee in the manner prescribed by the23
department in accordance with section 43-4-218 (6). For the purpose of24
minimizing compliance costs for retailers and administrative costs for the25
state, the department of revenue shall collect and administer the bridge26
and tunnel retail delivery fee on behalf of the bridge enterprise in the27
HB26-1266-31-
same manner in which it collects and administers the retail delivery fee1
imposed by section 43-4-218 (3).2
(II) For retail deliveries of tangible personal property purchased3
during state fiscal year 2022-23, the bridge enterprise shall impose the4
bridge and tunnel retail delivery fee in a maximum amount of two and5
seven-tenths cents.6
(III) (A) Except as otherwise provided in subsection7
(5)(g.7)(III)(B) of this section, for retail deliveries of tangible personal8
property purchased during state fiscal year 2023-24 or during any9
subsequent state fiscal year, the bridge enterprise shall impose the bridge10
and tunnel retail delivery fee in a maximum amount that is the maximum11
amount for the prior state fiscal year adjusted for inflation. The bridge12
enterprise shall notify the department of revenue of the amount of the13
bridge and tunnel retail delivery fee to be collected for retail deliveries of14
tangible personal property purchased during each state fiscal year no later15
than March 15 of the calendar year in which the state fiscal year begins,16
and the department of revenue shall publish the amount no later than17
April15 of the calendar year in which the state fiscal year begins.18
(B) The bridge enterprise is authorized to adjust the amount of the19
bridge and tunnel retail delivery fee for retail deliveries of tangible20
personal property purchased during a state fiscal year only if the21
department of revenue adjusts the amount of the retail delivery fee22
imposed by section 43-4-218 (3) for retail deliveries of tangible personal23
property purchased during the state fiscal year.24
(IV) As used in this subsection (5)(g.7):25
(A) "Inflation" means the average annual percentage change in the26
United States department of labor, bureau of labor statistics, consumer27
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price index for Denver-Aurora-Lakewood for all items and all urban1
consumers, or its applicable predecessor or successor index, for the five2
years ending on the last December 31 before a state fiscal year for which3
an inflation adjustment to be made to the bridge and tunnel retail delivery4
fee imposed pursuant to this subsection (5)(g.7) begins.5
(B) "Retail delivery" has the same meaning as set forth in section6
43-4-218 (2)(e).7
(C) "Retailer" has the same meaning as set forth in section8
39-26-102 (8).9
(r) (I) To contract with the state to borrow money under the terms10
of one or more loan contracts entered into by the state and the bridge11
enterprise pursuant to subsection (5)(r)(III) of this section, to expend any12
money borrowed from the state for the purpose of completing designated13
bridge projects, preventative maintenance bridge projects, and tunnel14
projects and for any other authorized purpose that constitutes the15
construction, supervision, and maintenance of the public highways of this16
state for purposes of section 18 of article X of the state constitution, and17
to use revenue generated by any bridge safety surcharge OR bridge and18
tunnel impact fee or bridge and tunnel retail delivery fee imposed19
pursuant to subsection (5)(g) OR (5)(g.5) or (5)(g.7) of this section and20
any other legally available money of the bridge enterprise to repay the21
money borrowed and any other amounts payable under the terms of the22
loan contract.23
(III) (A) If the state treasurer receives a list from the governor24
pursuant to subsection (5)(r)(II) of this section, the state, acting by and25
through the state treasurer, may enter into a loan contract with the bridge26
enterprise and may raise the money needed to make a loan pursuant to the27
HB26-1266-33-
terms of the loan contract by selling or leasing one or more of the state1
buildings or other state capital facilities on the list. The state treasurer2
shall have sole discretion to enter into a loan contract on behalf of the3
state and to determine the amount of a loan; except that the principal4
amount of a loan shall not exceed the maximum amount specified by the5
governor pursuant to subsection (5 )(r)(II) of this section. The state6
treasurer shall also have sole discretion to determine the timing of the7
entry of the state into any loan contract or the sale or lease of one or more8
state buildings or other state capital facilities. The loan contract shall9
require the bridge enterprise to pledge to the state all or a portion of the10
revenues of any bridge safety surcharge OR bridge and tunnel impact fee11
or bridge and tunnel retail delivery fee imposed pursuant to subsection12
(5)(g) OR (5)(g.5) or (5)(g.7) of this section for the repayment of the loan13
and may also require the bridge enterprise to pledge to the state any other14
legally available revenue of the bridge enterprise. Any loan contract15
entered into by the state, acting by and through the state treasurer, and the16
bridge enterprise pursuant to this subsection (5)(r)(III)(A) and any pledge17
of revenue by the bridge enterprise pursuant to such a loan contract shall18
be only for the benefit of, and enforceable only by, the state and the19
bridge enterprise. Specifically, but without limiting the generality of said20
limitation, no such loan contract or pledge shall be for the benefit of, or21
enforceable by, a seller under a financed purchase of an asset or22
certificate of participation agreement entered into pursuant to this23
subsection (5)(r)(III), an owner of any instrument evidencing rights to24
receive rentals or other payments made and to be made under such a25
financed purchase of an asset or certificate of participation agreement as26
authorized by subsection (5)(r)(IV)(B) of this section, a party to any27
HB26-1266-34-
ancillary agreement or instrument entered into pursuant to subsection1
(5)(r)(V) of this section, or a party to any interest rate exchange2
agreement entered into pursuant to subsection (5)(r)(VII)(A) of this3
section.4
SECTION 13. In Colorado Revised Statutes, 43-4-1101, amend5
(1) introductory portion as follows:6
43-4-1101. Legislative declaration.7
(1) The general assembly hereby finds and declares that it is8
necessary, appropriate, and in the best interest of the state to use a portion9
of the general fund money that is dedicated for transportation purposes10
pursuant to section 24-75-219 to fund multimodal transportation projects11
and operations throughout the state and to use a portion of the money that12
is generated by the retail delivery fee imposed on the delivery of retail13
goods transported to the delivery site by motor vehicle pursuant to section14
43-4-218 (3) to fund transportation-related greenhouse gas mitigation15
expenses throughout the state as authorized by this part 11 because, in16
addition to the general benefits that it provides to all Coloradans, a17
complete and integrated multimodal transportation system that includes18
greenhouse gas mitigation projects and services:19
SECTION 14. In Colorado Revised Statutes, 43-4-1201, amend20
(2)(g); and repeal (1)(a), (1)(b), (1)(c), (1)(d), (1)(f), (2)(e) and (2)(f) as21
follows:22
43-4-1201. Legislative declaration. (1) The general assembly23
hereby finds and declares that:24
(a) Retail deliveries are increasing and are expected to continue25
to increase in communities across the state;26
(b) The motor vehicles used to make retail deliveries are some of27
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the most polluting vehicles on the road, which has resulted in additional1
and increasing air and greenhouse gas pollution;2
(c) The adverse environmental and health impacts of increased3
emissions from motor vehicles used to make retail deliveries can be4
mitigated and offset by supporting the widespread adoption of electric5
buses for transit fleets and reducing vehicle miles traveled by encouraging6
people to choose clean, efficient, public transit options instead of personal7
motor vehicle travel;8
(d) Instead of reducing the impacts of retail deliveries by limiting9
retail delivery activity through regula tion, it is more appropriate to10
continue to allow persons who receive retail deliveries to benefit from the11
convenience afforded by unfettered retail deliveries and instead impose12
a small fee on each retail delivery and use fee revenue to fund necessary13
mitigation activities;14
(f) By reducing motor vehicle emissions, transit fleet15
electrification effectively remediates some of the impacts of retail16
deliveries by offsetting a portion of the increased motor vehicle emissions17
resulting from such deliveries.18
(2) The general assembly further finds and declares that:19
(e) Consistent with the determination of the Colorado supreme20
court in Nicholl v. E-470 Public Highway Authority, 896 P.2d 859 (Colo.21
1995), that the power to impose taxes is inconsistent with enterprise status22
under section 20 of article X of the state constitution, it is the conclusion23
of the general assembly that the revenue collected by the enterprise is24
generated by fees, not taxes, because the clean transit retail delivery fee25
imposed by the enterprise as authorized by section 43-4-1203 (7) and the26
production fee for clean transit are:27
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(I) Imposed for the specific purpose of allowing the enterprise to1
defray the costs of providing the remediation services specified in this2
section, including mitigating impacts to air quality and greenhouse gas3
emissions caused by the activities on which the fee is assessed, and4
contributes to the implementation of the comprehensive regulatory5
scheme required for the planning, funding, development, construction,6
maintenance, and supervision of a sustainable transportation system7
specified in this section; and8
(II) Collected at rates that are reasonably calculated based on the9
impacts caused by fee payers and the cost of remediating those impacts;10
(f) So long as the enterprise qualifies as an enterprise for purposes11
of section 20 of article X of the state constitution, the revenue from the12
clean transit retail delivery fee collected by the enterprise is not state13
fiscal year spending, as defined in section 24-77-102 (17), or state14
revenues, as defined in section 24-77-103.6 (6)(c), and does not count15
against either the state fiscal year spending limit imposed by section 2016
of article X of the state constitution or the excess state revenues cap, as17
defined in section 24-77-103.6 (6)(b)(I)(D); and18
(g) The addition of the production fee for clean transit continues19
to serve the enterprise's primary business purposes set forth in section20
43-4-1203 (3)(a). If the addition COLLECTION of the production fee for21
clean transit combined with the clean transit retail delivery fee THAT WAS22
COLLECTED BY THE ENTERPRISE PRIOR TO THE REPEAL OF THAT FEE BY23
THIS HOUSE BILL 26-____, ENACTED IN 2026, is estimated to result in the24
collection of fees and surcharges that exceed one hundred million dollars25
in the enterprise's first five fiscal years, the board shall adjust the fees26
PRODUCTION FEE, lower the fees FEE, or stop collecting the fees FEE in27
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order to not collect fees or surcharges that exceed one hundred million1
dollars in the enterprise's first five fiscal years, which five-year period, for2
the purpose of section 24-77-108, ends on June 30, 2026. Therefore, the3
enterprise, originally created in section 43-4-1203, is in compliance with4
section 24-77-108.5
SECTION 15. In Colorado Revised Statutes, 43-4-1202, repeal6
(11), (15), and (16), as follows:7
43-4-1202. Definitions. As used in this part 12, unless the context8
otherwise requires:9
(11) "Inflation" means the average annual percentage change in10
the United States department of labor, bureau of labor statistics, consumer11
price index for Denver-Aurora-Lakewood for all items and all urban12
consumers, or its applicable predecessor or successor index, for the five13
years ending on the last December 31 before a state fiscal year for which14
an inflation adjustment to be made to the clean transit retail delivery fee15
imposed pursuant to section 43-4-1203 (7) begins.16
(15) "Retail delivery" has the same meaning as set forth in section17
43-4-218 (2)(e).18
(16) "Retailer" has the same meaning as set forth in section19
39-26-102 (8).20
SECTION 16. In Colorado Revised Statutes, 43-4-1203, amend21
(3)(a)(I), (5)(a), and (6)(g); and repeal (3)(b)(I) and (7) as follows:22
43-4-1203. Clean transit enterprise - creation - board - powers23
and duties - rules - fees - fund.24
(3) (a) The primary business purposes of the enterprise are to:25
(I) Reduce and mitigate the adverse environmental and health26
impacts of air pollution and greenhouse gas emissions produced by motor27
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vehicles used to make retail deliveries by supporting the replacement of1
existing gasoline and diesel transit vehicles with electric motor vehicles,2
including motor vehicles that originally were powered exclusively by3
internal combustion engines but have been converted into electric motor4
vehicles; providing the associated charging infrastructure for electric5
transit fleet motor vehicles; supporting facility modifications that allow6
for the safe operation and maintenance of electric transit motor vehicles;7
and funding planning studies that enable transit agencies to plan for8
transit vehicle electrification; and9
(b) To allow the enterprise to accomplish the business purposes10
described in subsection (3)(a) of this section and fully exercise its powers11
and duties through the board, the enterprise may:12
(I) Impose a clean transit retail delivery fee as authorized by13
subsection (7) of this section;14
(5) (a) The clean transit enterprise fund is hereby created in the15
state treasury. The fund consists of clean transit retail delivery fee16
revenue credited to the fund pursuant to subsection (7) of this section, any17
monetary gifts, grants, donations, or other money received by the18
enterprise, any federal money that may be credited to the fund, and any19
other money that the general assembly may appropriate or transfer to the20
fund. The state treasurer shall credit all interest and income derived from21
the deposit and investment of money in the fund to the fund. Subject to22
annual appropriation by the general assembly, the enterprise may expend23
money from the fund to provide grants, pay its reasonable and necessary24
operating expenses, including repayment of any loan received by the25
enterprise pursuant to subsection (5)(b) of this section, and otherwise26
exercise its powers and perform its duties as authorized by this part 3.27
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(6) In addition to any other powers and duties specified in this1
section, the board has the following general powers and duties:2
(g) To promulgate ADOPT rules to set the amount of the clean3
transit retail delivery fee at or below the maximum amount authorized in4
this section and to govern the process by which the enterprise accepts5
applications for, awards, and oversees grants, loans, and rebates pursuant6
to subsection (8) of this section; and7
(7) (a) In furtherance of its business purpose, beginning in state8
fiscal year 2022-23, the enterprise shall impose, and the department of9
revenue shall collect on behalf of the enterprise, a clean transit retail10
delivery fee on each retail delivery. Each retailer who makes a retail11
delivery shall either collect and remit or elect to pay the clean transit retail12
delivery fee in the manner prescribed by the department in accordance13
with section 43-4-218 (6). For the purpose of minimizing compliance14
costs for retailers and administrative costs for the state, the department of15
revenue shall collect and administer the clean transit retail delivery fee on16
behalf of the enterprise in the same manner in which it collects and17
administers the retail delivery fee imposed by section 43-4-218 (3).18
(b) For retail deliveries of tangible personal property purchased19
during state fiscal year 2022-23, the enterprise shall impose the clean20
transit retail delivery fee in a maximum amount of three cents.21
(c) (I) Except as otherwise provided in subsection (7)(c)(II) of this22
section, for retail deliveries of tangible personal property purchased23
during state fiscal year 2023-24 or during any subsequent state fiscal year,24
the enterprise shall impose the clean transit retail delivery fee in a25
maximum amount that is the maximum amount for the prior state fiscal26
year adjusted for inflation. The enterprise shall notify the department of27
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revenue of the amount of the clean transit retail delivery fee to be1
collected for retail deliveries of tangible personal property purchased2
during each state fiscal year no later than March 15 of the calendar year3
in which the state fiscal year begins, and the department of revenue shall4
publish the amount no later than April 15 of the calendar year in which5
the state fiscal year begins.6
(II) The enterprise is authorized to adjust the amount of the clean7
transit retail delivery fee for retail deliveries of tangible personal property8
purchased during a state fiscal year only if the department of revenue9
adjusts the amount of the retail delivery fee imposed by section 43-4-21810
(3) for retail deliveries of tangible personal property purchased during the11
state fiscal year.12
SECTION 17. In Colorado Revised Statutes, 43-4-1302, amend13
(15); and repeal (19), (20), and (23) as follows:14
43-4-1302. Definitions. As used in this part 13, unless the context15
otherwise requires:16
(15) "Inflation" means the average annual percentage change in17
the United States department of labor, bureau of labor statistics, consumer18
price index for Denver-Aurora-Lakewood for all items and all urban19
consumers, or its applicable predecessor or successor index, for the five20
years ending on the last December 31 before a state fiscal year for which21
an inflation adjustment to be made to the air pollution mitigation per ride22
fee imposed by section 43-4-1303 (7) or the air pollution mitigation retail23
delivery fee imposed by section 43-4-1303 (8) begins.24
(19) "Retail delivery" has the same meaning as set forth in section25
43-4-218 (2)(e).26
(20) "Retailer" has the same meaning as set forth in section27
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39-26-102 (8).1
(23) "Tangible personal property has the same meaning as set2
forth in section 39-26-102 (15).3
SECTION 18. In Colorado Revised Statutes, 43-4-1303, amend4
(3) introductory portion, (3)(a), (5)(a), and (6)(h); and repeal (8) as5
follows:6
43-4-1303. Nonattainment area air pollution mitigation7
enterprise - creation - board - powers and duties - rules - fees - fund.8
(3) The business purpose of the enterprise is to mitigate the9
environmental and health impacts of increased air pollution from motor10
vehicle emissions in nonattainment areas that results from the rapid and11
continuing growth in retail deliveries made by motor vehicles and in12
prearranged rides provided by transportation network companies by13
providing funding for eligible projects that reduce traffic, including14
demand management projects that encourage alternatives to driving alone15
or that directly reduce air pollution, such as retrofitting of construction16
equipment, construction of roadside vegetation barriers, and planting trees17
along medians. To allow the enterprise to accomplish this purpose and18
fully exercise its powers and duties through the board, the enterprise may:19
(a) Impose an air pollution mitigation per ride fee and an air20
pollution mitigation retail delivery fee as authorized by subsections (7)21
and (8) SUBSECTION (7) of this section;22
(5) (a) The nonattainment area air pollution mitigation enterprise23
fund is hereby created in the state treasury. The fund consists of air24
pollution mitigation per ride fee revenue and air pollution mitigation retail25
delivery fee revenue credited to the fund pursuant to subsections (7) and26
(8) SUBSECTION (7) of this section, any monetary gifts, grants, donations,27
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or other payments received by the enterprise, any federal money that may1
be credited to the fund, and any other money that the general assembly2
may appropriate or transfer to the fund. The state treasurer shall credit all3
interest and income derived from the deposit and investment of money in4
the fund to the fund. Money in the fund is continuously appropriated to5
the enterprise for the purposes set forth in this part 13 and to pay the6
enterprise's reasonable and necessary operating expenses, including the7
repayment of any loan received pursuant to subsection (5)(b) of this8
section.9
(6) In addition to any other powers and duties specified in this10
section, the board has the following general powers and duties:11
(h) To promulgate ADOPT rules for the sole purpose of setting the12
amounts AMOUNT of the air pollution mitigation per ride fee and the air13
pollution mitigation retail delivery fee at or below the maximum amounts14
authorized in this section; and15
(8) (a) In furtherance of its business purpose, beginning in state16
fiscal year 2022-23, the enterprise shall impose, and the department of17
revenue shall collect on behalf of the enterprise, an air pollution18
mitigation retail delivery fee on each re tail delivery. Each retailer who19
makes a retail delivery shall either collect and remit or elect to pay the air20
pollution mitigation retail delivery fee in the manner prescribed by the21
department in accordance with section 43-4-218 (6). For the purpose of22
minimizing compliance costs for retailers and administrative costs for the23
state, the department of revenue shall collect and administer the air24
pollution mitigation retail delivery fee on behalf of the enterprise in the25
same manner in which it collects and administers the retail delivery fee26
imposed by section 43-4-218 (3).27
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(b) For retail deliveries of tangible personal property purchased1
during state fiscal year 2022-23, the enterprise shall impose the air2
pollution mitigation retail delivery fee in a maximum amount of3
seven-tenths of one cent.4
(c) (I) Except as otherwise provided in subsection (8)(c)(II) of this5
section, for retail deliveries of tangible personal property purchased6
during state fiscal year 2023-24 or during any subsequent state fiscal year,7
the enterprise shall impose the air pollution mitigation retail delivery fee8
in a maximum amount that is the maximum amount for the prior state9
fiscal year adjusted for inflation. The enterprise shall notify the10
department of revenue of the amount of the air pollution mitigation retail11
delivery fee to be collected for retail deliveries of tangible personal12
property purchased during each state fiscal year no later than March 1513
of the calendar year in which the state fiscal year begins, and the14
department of revenue shall publish the amount no later than April15 of15
the calendar year in which the state fiscal year begins.16
(II) The enterprise is authorized to adjust the amount of the air17
pollution mitigation retail delivery fee for retail deliveries of tangible18
personal property purchased during a state fiscal year only if the19
department of revenue adjusts the amount of the retail delivery fee20
imposed by section 43-4-218 (3) for retail deliveries of tangible personal21
property purchased during the state fiscal year.22
SECTION 19. In Colorado Revised Statutes, 39-37-103, repeal23
(15)(a)(IV) as follows:24
39-37-103. Definitions. As used in this article 37, unless the25
context otherwise requires:26
(15) (a) "Purchase price" means the aggregate consideration27
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valued in money paid or delivered or promised to be paid or delivered by1
the user or consumer in consummation of a sale, exclusive of:2
(IV) Any retail delivery fee and enterprise retail delivery fees3
imposed or collected as specified in section 43-4-218;4
SECTION 20. In Colorado Revised Statutes, 43-4-1103, amend5
(1)(a), (2)(d)(I), and (2)(d)(II) as follows:6
43-4-1103. Multimodal transportation options fund - creation7
- revenue sources for fund - use of fund.8
(1) (a) The multimodal transportation and mitigation options fund9
is hereby created in the state treasury. The fund consists of money10
transferred from the general fund to the fund pursuant to section11
24-75-219 retail delivery fee revenue credited to the fund pursuant to12
section 43-4-218 (5)(a)(II), and any other money that the general13
assembly may appropriate or transfer to the fund. The state treasurer shall14
credit all interest and income derived from the deposit and investment of15
money in the fund to the fund.16
(2) (d) (I) On and after October 1, 2022, unless the department has17
both adopted implementing guidelines and procedures that satisfy the18
requirements of section 43-1-128 (3) and updated its ten-year vision plan19
to comply with the implementing guidelines and procedures, expenditures20
from the funds made available for multimodal projects pursuant to21
sections 24-75-219 (7)(c)(I) and (7)(f)(II) and 43-4-218 (5)(a)(II) for state22
multimodal projects shall only be made for multimodal projects that the23
department, in consultation with the department of public health and24
environment, determines will help bring the ten-year vision plan into25
compliance with the requirements of section 43-1-128 (3).26
(II) On and after October 1, 20 22, unless th e department has27
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adopted implementing guidelines and procedures that satisfy the1
requirements of section 43-1-128 (3) and a metropolitan planning2
organization that is in an area or includes an area that has been out of3
attainment for national ambient air quality standards for ozone for two4
years or more has updated its regional transportation plan to comply with5
the implementing guidelines and procedures, expenditures from the funds6
made available for multimodal projects pursuant to sections 24-75-2197
(7)(c)(I) and (7)(f)(II) and 43-4-218 (5)(a)(II) for local multimodal8
projects within the territory of the metropolitan planning organization9
shall only be made for multimodal projects that the department, in10
consultation with the department of public health and environment,11
determines will help bring the regional transportation plan into12
compliance with the requirements of section 43-1-128 (3).13
SECTION 21. Act subject to petition - effective date. This act14
takes effect at 12:01 a.m. on the day following the expiration of the15
ninety-day period after final adjournment of the general assembly; except16
that, if a referendum petition is filed pursuant to section 1 (3) of article V17
of the state constitution against this act or an item, section, or part of this18
act within such period, then the act, item, section, or part will not take19
effect unless approved by the people at the general election to be held in20
November 2026 a nd, in such cas e, will take effect on the date of the21
official declaration of the vote thereon by the governor.22
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