PCMR focuses on Talisker in right-of-first-refusal argument
April 9, 2014
Attorneys for Park City Mountain Resort and Talisker Land Holdings, LLC on Tuesday morning expectedly disagreed sharply about whether PCMR was denied a right of first refusal when the other side reached an agreement with Vail Resorts.
The Colorado firm in 2013 became the operator of Talisker-owned Canyons Resort under the agreement. The deal could be expanded to the disputed Talisker Land Holdings, LLC terrain underlying most of the PCMR slopes depending on the outcome of the lawsuit.
The PCMR side claims the agreement between the Talisker side and Vail Resorts violated a right-of-first-refusal clause outlined in its leases. But Talisker Land Holdings, LLC argues otherwise, saying PCMR’s leases expired prior to the Vail Resorts agreement. That, Talisker Land Holdings, LLC says, removes any right of first refusal.
The sides appeared in front of 3rd District Court Judge Ryan Harris for the second time in less than a week. Both of the hearings were critical, and the case, it appears, largely rests on the upcoming rulings by Harris. He said a ruling could be made by as early as late May on the claim PCMR was denied a right of first refusal.
James Quinn, one of the attorneys representing the PCMR side, outlined a series of transactions involving the disputed land. Attorneys for PCMR spent considerable time during the discovery phase of the lawsuit — when the sides conduct depositions and obtain documents — learning about the transactions.
Quinn said the transactions left Talisker Land Holdings, LLC with little to do with the acreage. He said Vail Resorts and another firm, known as Flera, hold the rights on the land. Quinn inferred Talisker chief Jack Bistricer is no longer in charge.
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"Talisker’s gone. Mr. Bistricer has left the scene," Quinn said, claiming that Talisker took the money and ran.
A March 2010 transaction involving the Talisker family of companies and Flera triggered the right of first refusal, Quinn said. PCMR was unaware of the transaction until learning of it during the course of the lawsuit, he said. That deal left the land at PCMR under the control of a firm involving both Talisker and Flera, according to PCMR.
Quinn told the judge PCMR is entitled to an injunction undoing the March 2010 transaction. Harris, though, said doing so would be complicated. The judge also said if the deal was undone a similar one could be reached later. Quinn said perhaps the PCMR side could reach an agreement involving the land instead.
Quinn, meanwhile, addressed the deal involving the Talisker side and Vail Resorts, saying it is, effectively, a sale. It has a 50-year term with six 50-year renewals, lasting 350 years with each of the renewals. Quinn noted that 350 years ago was the time of the pilgrims. He said Vail Resorts logged the land as an asset on a regulatory filing. He also said Rob Katz, the chairman and CEO of Vail Resorts, wanted to buy the land, requiring the sides to structure a deal in an effort not to trigger the right of first refusal.
The Talisker Land Holdings, LLC side outlined a vastly different scenario than the one from PCMR, arguing that the right of first refusal was not triggered by the agreement with Vail Resorts since that deal involves a lease rather than a sale. Howard Shapiro, one of the attorneys representing Talisker Land Holdings, LLC, said Bistricer told Katz he did not want to sell the property. Shapiro said Vail Resorts, as part of the agreement with the Talisker side, would only succeed PCMR as a tenant on the land.
"There’s been no sale of the leased property," Shapiro said, adding, "Vail never gets to buy the property."
Shapiro said Bistricer had also told John Cumming, the chief executive officer of PCMR parent Powdr Corp., he did not intend to sell the property. Bistricer called himself someone who leases, not sells, land to others, Shapiro said. He acknowledged that Katz used words like sale and purchase, but the deal ultimately was a lease.
"He understood Jack wasn’t a seller," Shapiro said about Katz.
Shapiro also argued that the right of first refusal did not remain intact after the leases with PCMR expired. A dispute about whether PCMR renewed the leases prompted the lawsuit. The claim centered on the right of first refusal was added later.