Park City/Talisker-Vail Lawsuit

[thetrailboss]

I don't take that read, but respect that you do. I actually take this single page website as an attempt by PCMR to get public support. And yes, both sites are PR vehicles, but there is nothing wrong with using PR to garner support. I also get that if you hate POWDR or PCMR, than you are going to take a stance that they should just fold up and move on, living with their mistake. If you truly don't care who runs the resort, just care that it opens, I can also see taking the stance that POWDR should sell out and move on. But if you look at it strictly from a business point of view, with out prejudice, POWDR is doing just what they should be doing. Misleading or not, its all fair in the business world.

I'm probably being over critical. We are living with this here in Utah. I've heard all the arguments, read the briefs, etc. I think it just comes down to a clear screw up by POWDR and nothing more. They are trying to spin it as something else that it's not. I agree that it just needs to be resolved.

 

[marcski]

I don't take that read, but respect that you do. I actually take this single page website as an attempt by PCMR to get public support. And yes, both sites are PR vehicles, but there is nothing wrong with using PR to garner support. I also get that if you hate POWDR or PCMR, than you are going to take a stance that they should just fold up and move on, living with their mistake. If you truly don't care who runs the resort, just care that it opens, I can also see taking the stance that POWDR should sell out and move on. But if you look at it strictly from a business point of view, with out prejudice, POWDR is doing just what they should be doing. Misleading or not, its all fair in the business world.

Not necessarily.

First, unfortunately for Powdr and PCMR, public support really means nothing. This is (was) a legal issue between businesses. As far as the legal issue, it was pretty cut and dry, hence, the judge's decision on a summary judgment motion prior to trial.

Second, looking at this from a strictly business perspective, it could be argued that it is in Powdr's best interest to make a deal now before there is any detriment to either Park City or the resort itself.

 

[AdironRider]

I'm probably being over critical. We are living with this here in Utah. I've heard all the arguments, read the briefs, etc. I think it just comes down to a clear screw up by POWDR and nothing more. They are trying to spin it as something else that it's not. I agree that it just needs to be resolved.

You really dont think Vail is trying to get a bit more than they deserve? They did try to strongarm their way into the base facilities and parking lots for free after all.

No argument that Powdr opened this door and for that they are at fault, but just because Vail overpaid their lease isn't Powdrs fault and they shouldnt have to make up the difference.

 

[Quietman]

Second, looking at this from a strictly business perspective, it could be argued that it is in Powdr's best interest to make a deal now before there is any detriment to either Park City or the resort itself.

Unless they're following the Market Basket owner's current business plan! Continue to fight while the business dies.

I wonder why no one is walking the picket lines in Park City calling for a boycott unless Powdr is allowed to stay!

 

[thetrailboss]

You really dont think Vail is trying to get a bit more than they deserve? They did try to strongarm their way into the base facilities and parking lots for free after all.

No argument that Powdr opened this door and for that they are at fault, but just because Vail overpaid their lease isn't Powdrs fault and they shouldnt have to make up the difference.

I think that Vail is taking advantage of POWDR's plight. As you know the ski industry can be a cut-throat business at times. Hell, even Alta and Snowbird can't always get along.

That said, a lot of locals are just pissed with POWDR and want them to just concede and end it now.

 

[AdironRider]

Well yeah everyone looks out for their own best interest.

No surprise Park City people dont care who runs the place, they just want to ski, but Powdr isnt in the wrong to not just roll over and play dead.

 

[thetrailboss]

Well yeah everyone looks out for their own best interest.

No surprise Park City people dont care who runs the place, they just want to ski, but Powdr isnt in the wrong to not just roll over and play dead.

True, but they have no legal status to remain on Talisker's land, so it is in their best interest to have negotiated the sale of their infrastructure instead of leaving it up for the court to determine.

 

[skiNEwhere]

Pardon my ignorance as I have not kept up to date on this thread, but why is talisker not willing to work with them on renewing the lease late? Did they have a bad working relationship, or is it a matter of getting more money from another tenant? I imagine the legal fees are astronomical

 

[AdironRider]

The latter. Vail is committed to paying like 35 mil (after the revenue share as part of the lease) a year for 350 years or something ridiculous. (at least 50 years, with 6x 50 year renewals at a minimum of 2% rent increase per year)

 

[Highway Star]

The latter. Vail is committed to paying like 35 mil (after the revenue share as part of the lease) a year for 350 years or something ridiculous. (at least 50 years, with 6x 50 year renewals at a minimum of 2% rent increase per year)

$25m plus % of profits above a certain level, or something like that. Its in the SEC docs somewhere. $25m is pretty much the current annual profit for the Canyons.

 

[Hawkshot99]

Pardon my ignorance as I have not kept up to date on this thread, but why is talisker not willing to work with them on renewing the lease late? Did they have a bad working relationship, or is it a matter of getting more money from another tenant? I imagine the legal fees are astronomical

They would like to operate it themselves, or recieve the money they should be paid. $150, 000 a year is way cheap

 

[mbedle]

They did try to work with PCMR, but PCMR didn't apparently like Talisker's offer and turned around and sued them.

Pardon my ignorance as I have not kept up to date on this thread, but why is talisker not willing to work with them on renewing the lease late? Did they have a bad working relationship, or is it a matter of getting more money from another tenant? I imagine the legal fees are astronomical

 

[AdironRider]

Do you know what their offer was? Allegedly was hand over your assets free of charge cause you fucked up, on top of the legitimate claims for back rent and transfer of the lease holding.

 

[mbedle]

I don't know what the original offer was. But it was clearly to negotiate a new lease, with obviously a higher rent payment. It states that in the original complaint file by PCMR.

Do you know what their offer was? Allegedly was hand over your assets free of charge cause you fucked up, on top of the legitimate claims for back rent and transfer of the lease holding.

 

[Highway Star]

I don't know what the original offer was. But it was clearly to negotiate a new lease, with obviously a higher rent payment. It states that in the original complaint file by PCMR.

Talisker asked for a greatly increased rent, and POWDR told them to pound sand. Before Vail came in the picture. In hindsight, probably a reasonable deal.

 

[Highway Star]

Vail asking for $200M - $300M bond for PCMR land use....

Can the lawyers please comment on this one???

PG. 1 - http://www.scribd.com/doc/236934829/Talisker-filing-on-bond-for-Park-City-Mountain-Resort#download

Substantial damages have accrued and will continue to accrue from GPCC/GPI’s use of Talisker’s property since April 30, 2011. Even though the Court ruled that GPCC/GPI have been unlawfully detaining Talisker’s property and ordered the property restored to Talisker’s possession, GPCC/GPI seek to stay that order, remain on the property and continue to generate revenue and profits from its use. For that to be allowed, while the litigation continues in this Court and in the appellate courts, the required bond must be enough to assure payment to Talisker of its expected damages. As will be fully explained below and in light of the damages from GPCC/GPI’s use of the property in the past and while the litigation is completed, if GPCC/GPI want to remain in possession of Talisker’s property, they must provide adequate assurance of full payment when this Court’s judgments are affirmed on appeal, which is a bond of no less than $----- million, as summarized in the chart below.

-Damages incurred for past use and occupation
-Damages during trial & appeal

This figure reflects rent during the period of over five years that GPCC/GPI will have been in unlawful detainer (at approximately 50% of GPCC/GPI’s earnings and management fees each year), plus the statutorily required trebling (from September 2013), interest, and attorneys’ fees. The size of the bond is merely the impact of PCMR choosing to remain on the land in hopes their remote chance for appeal is successful, and the statutory disincentives required under Utah law to discourage unlawful use of an other parties’ property.

GPCC/GPI’s leases with Talisker expired over three years ago, on April 30, 2011. Since that time, GPCC/GPI have earned in excess of $-- million from their use of Talisker’s property while paying nothing for its occupancy and use, even refusing to pay monies into escrow. Talisker is owed the “reasonable value of the use and occupation of the premises.”
Virtually all of the ski terrain at the Resort belongs to Talisker, and according to GPCC/GPI’s own experts, over 77% of the Resort’s revenue is directly attributable to their use of Talisker’s property. In addition, since the time that GPCC/GPI were served with a Notice to Quit on August 28, 2013, it is “mandatory upon the court” to treble the amount owed. Fowler v. Seiter, 838 P.2d 675, 679 (Utah Ct. App. 1992) (internal quotation marks omitted). Talisker is also owed prejudgment interest at 10 percent annually, Utah Code Ann. § 15-1-1(2), and entitled to its attorneys’ fees.
GPCC/GPI already owe nearly $-- million in damages, and the number will continue to climb so long as GPCC/GPI occupy Talisker’s property.

ERRRR......so if my guestimates of PCMR's annual profits are accurate at $35m-$50m per year, and if my math is right......

.........Vail is asking for a $200M - $300M bond.

 

[Highway Star]

Can the lawyers please comment on this one???

PG. 1 - http://www.scribd.com/doc/236934829/Talisker-filing-on-bond-for-Park-City-Mountain-Resort#download

Substantial damages have accrued and will continue to accrue from GPCC/GPI’s use of Talisker’s property since April 30, 2011. Even though the Court ruled that GPCC/GPI have been unlawfully detaining Talisker’s property and ordered the property restored to Talisker’s possession, GPCC/GPI seek to stay that order, remain on the property and continue to generate revenue and profits from its use. For that to be allowed, while the litigation continues in this Court and in the appellate courts, the required bond must be enough to assure payment to Talisker of its expected damages. As will be fully explained below and in light of the damages from GPCC/GPI’s use of the property in the past and while the litigation is completed, if GPCC/GPI want to remain in possession of Talisker’s property, they must provide adequate assurance of full payment when this Court’s judgments are affirmed on appeal, which is a bond of no less than $----- million, as summarized in the chart below.

-Damages incurred for past use and occupation
-Damages during trial & appeal

This figure reflects rent during the period of over five years that GPCC/GPI will have been in unlawful detainer (at approximately 50% of GPCC/GPI’s earnings and management fees each year), plus the statutorily required trebling (from September 2013), interest, and attorneys’ fees. The size of the bond is merely the impact of PCMR choosing to remain on the land in hopes their remote chance for appeal is successful, and the statutory disincentives required under Utah law to discourage unlawful use of an other parties’ property.

GPCC/GPI’s leases with Talisker expired over three years ago, on April 30, 2011. Since that time, GPCC/GPI have earned in excess of $-- million from their use of Talisker’s property while paying nothing for its occupancy and use, even refusing to pay monies into escrow. Talisker is owed the “reasonable value of the use and occupation of the premises.”
Virtually all of the ski terrain at the Resort belongs to Talisker, and according to GPCC/GPI’s own experts, over 77% of the Resort’s revenue is directly attributable to their use of Talisker’s property. In addition, since the time that GPCC/GPI were served with a Notice to Quit on August 28, 2013, it is “mandatory upon the court” to treble the amount owed. Fowler v. Seiter, 838 P.2d 675, 679 (Utah Ct. App. 1992) (internal quotation marks omitted). Talisker is also owed prejudgment interest at 10 percent annually, Utah Code Ann. § 15-1-1(2), and entitled to its attorneys’ fees.
GPCC/GPI already owe nearly $-- million in damages, and the number will continue to climb so long as GPCC/GPI occupy Talisker’s property.

ERRRR......so if my guestimates of PCMR's annual profits are accurate at $35m-$50m per year, and if my math is right......

.........Vail is asking for a $200M - $300M bond.

 

[mbedle]

While I understand why Talisker would come in like a bull in a china shop with their estimated bond amount, I find their methodologies for calculating it flawed. Using other ski area's leasing arangements as comps, seems to ignore that the land in questions is unusable, in of its self. For example, the Canyon's lease includes the entire ski resort. Northstar's lease, I'm not 100% sure off, but it appears to cover the building and structures under a triple net lease. Sure, Vail could connect the land to the Canyons resort, but it definitely would not increase the profits at Canyon as nearly as much as a stand alone resort. In simple terms, say that the Canyons generate 25M a year. Added the PCMR Talisker terrain to that resort is not going to result in Canyons generating 50M per year. It seems like Talisker is trying to evaluate the land as if they owned everything and ignoring the fact that they don't. Its going to be interesting what ultimately comes out of this. Since mitigation is still ongoing, I can only guess that PCMR and Vail are trying to reach a joint operations agreement.

 

[Highway Star]

While I understand why Talisker would come in like a bull in a china shop with their estimated bond amount, I find their methodologies for calculating it flawed. Using other ski area's leasing arangements as comps, seems to ignore that the land in questions is unusable, in of its self. For example, the Canyon's lease includes the entire ski resort. Northstar's lease, I'm not 100% sure off, but it appears to cover the building and structures under a triple net lease. Sure, Vail could connect the land to the Canyons resort, but it definitely would not increase the profits at Canyon as nearly as much as a stand alone resort. In simple terms, say that the Canyons generate 25M a year. Added the PCMR Talisker terrain to that resort is not going to result in Canyons generating 50M per year. It seems like Talisker is trying to evaluate the land as if they owned everything and ignoring the fact that they don't. Its going to be interesting what ultimately comes out of this. Since mitigation is still ongoing, I can only guess that PCMR and Vail are trying to reach a joint operations agreement.

PCMR keeps making the arguement that the land is useless without their access to it. Well, then perhaps Talisker should seek an easement to allow an access road.....?

Seriously, the arguement is complete BS. Talisker owns the land and the lifts, and PCMR is bringing in somewhere around $70M-100M in just ticket/pass revenues every year on those land and lifts. Without it they don't make squat. For Vail to ask for a rent of $8000 per acre, I'd say that's a pretty good spot for negotiation. The Judge gets to see the actual numbers, he's not going to be fooled by Cumming's claims of poverty, LOL.

BTW, if you look at the Vail SEC filings, you'll see they value the PCMR land at $160M because it produces yearly revenue of a bit over $20M. Seem legit to me.

 

[mbedle]

The land is pretty much useless without access to it. There are hundred of mountains in Utah with just as good, if not better fall lines and steeps than PCMR terrain. The problem is access, without it, you can't have a resort. You are correct that PCMR made money off of the land they leased. But Talisker isn't going to make crap off the land with out the base area and other items/rights that PCMR owns. Its a simple fact that they both need each other to function as a business and make money. Look at it this way, if Talisker is so sure that they don't need the base area, they would have let the eviction go forward, screwed mediation and just let Vail pay them rent for the land. I can only guess that Vail has an agreement with Talisker that states specifically we are not leasing that land without the base area and rights.