Traverse City commissioners Tuesday will discuss the Traverse City Film Festival’s use of the Bijou by the Bay after the festival operated the theater for only 121 days in 2022 – well short of its contractual requirement to be open at least 200 days. The TCFF board is invoking a force majeure clause in the contract, saying the closure was pandemic-related. City commissioners will also hold a public hearing Tuesday on plans to rebuild the Senior Center and vote to approve a contract for the reconstruction of Madison and Jefferson streets, among other agenda items.

Bijou by the Bay
City Mayor Pro Tem Amy Shamroe has requested a discussion about the Traverse City Film Festival’s (TCFF’s) use of the city-owned Bijou by the Bay building after the festival submitted an annual report invoking a force majeure clause for failing to meet its contract terms in 2022.

TCFF is required to “maintain a minimum program of at least one film showing per day for at least 200 days per year” as part of its contract to run the Bijou. Festival board members said in their report that “due to the ongoing worldwide health crisis, the Bijou by the Bay movie
attendance followed the nationwide trend of decreased pandemic attendance.” The report states that rival movie theater AMC is only open for “60 percent of the showtimes it once offered in pre-pandemic days,” and that “all indoor businesses, restaurants and gathering places have seen a similar drop-off, especially amongst older adults.” For those reasons, the board said, TCFF is invoking force majeure for 2022 “due to the ongoing coronavirus public health emergency.”

Shamroe says she wants to have a discussion with the city attorney and staff about how and when tenants can invoke force majeure. She notes that tenants in other city buildings, such as Brew, had to close at early points in the pandemic due to shutdown orders, but were open throughout 2022. TCFF also operated the State Theatre through 2022, she notes, questioning why one theater was open but not the other. “I don’t know if we’ve encountered something like this before,” she says. “The Bijou is supposed to be there for the public to use, including for nonprofits and other groups to use, but they’ve often been closed. They opened for their own festival, but then closed again promptly.”

Festival board members said in the report that they “fully expect and plan to have the Bijou open for at least 200 days in 2023, pending no further shutdowns due to the pandemic or other force majeures.” The board said there is a new executive director at the organization, Angie Forton, and that TCFF plans to continue offering “exciting, fresh, diverse movie programming for our community and a first-class, singular experience for moviegoers of all ages.” The board added: “We look forward to bringing the city even more good news at the end of 2023.”

Shamroe also wants to discuss another part of the TCFF annual report. In 2021, TCFF came to the city to request a 10-year lease extension for the Bijou. At the time, the festival’s lease agreement was still good through July 2023, prompting some commissioners to question why a decade-long extension needed to be approved two years in advance. Some community members asked for the extension to be delayed, citing concerns about festival operations and the desire to create a new community-based nonprofit board to run the Bijou. TCFF representatives countered that they needed the early lease extension so they could move ahead with major building investments, including installing a new HVAC system and COVID-proofing the Bijou. Commissioners voted 6-1 to approve the lease renewal, with Shamroe opposed.

In TCFF’s recent report, the board said the festival ultimately never made the HVAC repairs to the Bijou. “The extensive HVAC structural change anticipated in the 2021 (amended lease) were not made,” the report states. “Instead, the replaceable air filters were upgraded to a MERV-l3 rating to improve air quality. This change required no structural modification to the HVAC system and did not rise to a level that would require notification or approval.” Shamroe calls the change in plans “a lesson that if someone comes to us with a request to vote early to extend a contract, we might need to pause or at least build those (conditions) into the contract renewal.”

Shamroe says she’s not necessarily looking to take significant action on the Bijou contract Tuesday – such as terminating the agreement or evicting TCFF – but wants to better understand how the contract will be enforced going forward. “I don’t know if we have grounds to cancel the contract, but it’s something that needs to be discussed publicly,” she says. “The public deserves to know what’s going on.”

Also at Tuesday’s commission meeting…
> Commissioners will hold a public hearing on a planned unit development (PUD) application for the Traverse City Senior Center to be redeveloped on city-owned property on East Front Street. The public hearing for a PUD – which is a zoning plan tailored to a specific property, usually because of the complexity of the development – must follow a specific formal process that includes a staff presentation on the project, public comment, city commission deliberation, and a vote to grant the PUD. The PUD has already been supported by the city’s planning commission and – if approved by commissioners – would pave the way for the planned reconstruction of the building to proceed later this year.

> Commissioners will consider approving a $3.916 million contract with Team Elmer’s for the reconstruction of Madison and Jefferson streets this year. That figure is higher than the city’s original estimate of $3.394 million. According to a memo from City Engineer Tim Lodge, the city reviewed the bid and found that the original estimated costs “associated with pipe installation for the storm sewer, sanitary sewer, and watermain were too low. We discussed the higher bid costs with (Team Elmer’s, the sole bidder) and found that the higher costs for the pipe installation were attributed to the need to replace all of the trench backfill material instead of using existing soils…also, most all of the estimated costs for the concrete work were too low. (Team Elmer’s) indicated the higher pricing was due to concrete material supply shortages and increased pricing, which are prevalent in this year’s construction costs.” The project will be covered via the city’s sewer fund, water fund, parks tree fund, and capital project fund for street reconstruction.

> Commissioners will consider adopting a city building electrification policy proposed by Commissioner Tim Werner. The policy is intended to “make significant advancement toward Traverse City’s commitment to become carbon neutral before mid-century,” according to its language, and would require all new buildings built on city-owned property to be fully electrified. It would also require buildings that qualify for a city payment in lieu of taxes (PILOT) agreement to be fully electrified, and all vacant city property that is sold or leased to be deed restricted for full electrification. Any city buildings that undergo major renovations would need to be fully electrified at that time, and all regularly scheduled replacements of city-owned boilers, other heating, and hot water supply would require full electrification. In addition, all new and replacement backup power would be supplied by batteries or micro-grid, according to the policy language.

> Finally, commissioners will vote on agreements that could allow a new downtown parking deck to move forward on State Street – a shift south in location from an originally planned spot on West Front Street – and for affordable housing to be built on Lot O at the corner of State and Cass streets. Read more about both proposals in detail here.