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HomeMy WebLinkAbout2016-04-25 City Council Agenda PacketCity Council 1 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. April 25, 2016 Special Meeting Council Chambers 5:00 PM Agenda posted according to PAMC Section 2.04.070. Supporting materials are available in the Council Chambers on the Thursday 10 days preceding the meeting. PUBLIC COMMENT Members of the public may speak to agendized items; up to three minutes per speaker, to be determined by the presiding officer. If you wish to address the Council on any issue that is on this agenda, please complete a speaker request card located on the table at the entrance to the Council Chambers, and deliver it to the City Clerk prior to discussion of the item. You are not required to give your name on the speaker card in order to speak to the Council, but it is very helpful. TIME ESTIMATES Time estimates are provided as part of the Council's effort to manage its time at Council meetings. Listed times are estimates only and are subject to change at any time, including while the meeting is in progress. The Council reserves the right to use more or less time on any item, to change the order of items and/or to continue items to another meeting. Particular items may be heard before or after the time estimated on the agenda. This may occur in order to best manage the time at a meeting or to adapt to the participation of the public. To ensure participation in a particular item, we suggest arriving at the beginning of the meeting and remaining until the item is called. HEARINGS REQUIRED BY LAW Applicants and/or appellants may have up to ten minutes at the outset of the public discussion to make their remarks and up to three minutes for concluding remarks after other members of the public have spoken. Call to Order Closed Session 5:00-6:00 PM A. CONFERENCE WITH CITY ATTORNEY—POTENTIAL LITIGATION Significant Exposure to Litigation Under Section 54956.9(d)(2) (One Potential Case, as Defendant) – Palo Alto-Stanford Fire Protection Agreement Study Session 6:00-7:00 PM 1.Receive and Review the Report on the Mid-Peninsula Bicycle Sharing System Study Special Orders of the Day 7:00-7:10 PM 2.Building Safety Month Proclamation Agenda Changes, Additions and Deletions REVISED 2 April 25, 2016 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. City Manager Comments 7:10-7:20 PM Oral Communications 7:20-7:35 PM Members of the public may speak to any item NOT on the agenda. Council reserves the right to limit the duration of Oral Communications period to 30 minutes. Minutes Approval 7:35-7:40 PM 3.Approval of Action Minutes for the April 11, 2016 Council Meeting Consent Calendar 7:40-7:45 PM Items will be voted on in one motion unless removed from the calendar by three Council Members. 4.Approval of an Amendment to Contract Number C1415788 With Finite Matters to Increase the Contract Term by Three Years and $142,225 for a Total Amount Not-to-Exceed of $363,555 for Budget Publishing Software Services and Support 5.Approval of Amendment Number 4 to Contract Number C13148075 in the Amount of $117,000 With West Coast Arborists Inc., for Tree Pruning and Removal Services for a Total Contract Compensation Not- to-Exceed $1,349,410 6.Request for Authorization to Amend two Legal Services Agreements With the Law Firm of Rankin Stock & Heaberlin: (1) for LitigationDefense in the Matter of Harney v. City of Palo Alto Police Department, Increase Compensation by $60,000 for a Total Contract Not-To-Exceed Amount of $90,000; and (2) for Litigation Defense in Multiple General Litigation Matters, Increase Compensation by $60,000 for a Total Not- To-Exceed Amount of $190,000 Action Items Include: Reports of Committees/Commissions, Ordinances and Resolutions, Public Hearings, Reports of Officials, Unfinished Business and Council Matters. 7:45-8:45 PM 7.Fiscal Year 2017 Proposed Budget Overview 8:45-9:45 PM 8.Colleagues Memo: Developing City Policy on Acquisition, Use, and Safeguards for Surveillance and Information-gathering Technologies Inter-Governmental Legislative Affairs Council Member Questions, Comments and Announcements Members of the public may not speak to the item(s) Capital Budget Operating Budget 3 April 25, 2016 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. Adjournment AMERICANS WITH DISABILITY ACT (ADA) Persons with disabilities who require auxiliary aids or services in using City facilities, services or programs or who would like information on the City’s compliance with the Americans with Disabilities Act (ADA) of 1990, may contact (650) 329-2550 (Voice) 24 hours in advance. 4 April 25, 2016 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. Additional Information Standing Committee Meetings Sp. City School Meeting April 26, 2016 Sp. City Council Meeting- B&C Interviews April 28, 2016 Schedule of Meetings Schedule of Meetings Tentative Agenda Tentative Agenda Public Letters to Council Set 1 City of Palo Alto (ID # 6324) City Council Staff Report Report Type: Study Session Meeting Date: 4/25/2016 Summary Title: Update on the Mid-Peninsula Bicycle Sharing System Study Title: Receive and Review the Report on the Mid-Peninsula Bicycle Sharing System Study From: City Manager Lead Department: Planning and Community Environment Recommendation Staff recommends that the City Council receive and review the report on the Mid-Peninsula Bicycle Sharing System Study. This is a study session, and no action is requested. Executive Summary Bike Share is a transportation system which provide a fleet of bicycles for use by anyone within the service area for an established time-based price. Typically, bikes must be picked up and returned to fixed docking stations, but some systems contain onboard locking systems allowing users to leave bikes anywhere within the service area. Bike share providers typically price rides to encourage short trips and funtion as a “last mile” solution for transit riders to reach their destinations which may be inconvenient or too far for walking or by local transit. Bike share systems of varying sizes are currently active across the United States and within Palo Alto and the regional Bay Area Bike Share system. The existing Bay Area Bike Share (BABS) program is a fixed-station system with 700 bicycles variably distributed across five cities: San Francisco, Redwood City, Palo Alto, Mountain View, and San Jose. Five stations and 50 bikes are currently located within the City of Palo Alto. The five city pilot program launced in 2013 under an agreement between the Bay Area Air Qauality Management District and local parter agencies to oversee implementation. Since implemetnation, Motivate, the BABS vendor, monitored system performance and in May 2015 entered into an agreement with the Metropolitain Transportation Commission (MTC) to expand the system within San Francisco, Oakland, Berkeley, and San Jose with no public funding. These cities were selected for expansion based on positive correlations between bike share trips and population density, diversity of land uses, and concentration of bike share stations. City of Palo Alto Page 1 Under the terms of this agreement, the remaining Peninsula cities, including Palo Alto may choose to continue, expand and continue, or discontinue participation in Motivate’s Bay Area Bike Share system. Continuing or expanding the current system includes both capital and ongoing costs. Both of which could be completely or partially offset with advertising and/or increased use based on the terms of the agreement. As the end of the initial pilot period drew near, Palo Alto, Redwood City and Mountain View partnered with SamTrans to conduct a study of the various options for bike share in the Peninsula moving forward. A common desire among all cities is to expand the number of bikes available and increase the number of destinations accessible to users of the system to complement transit as an alternative to driving. However, the various alternatives have differing financial and logistal challenges. Background Bay Area Bike Share Program Pilot The existing Bay Area Bike Share (BABS) pilot program is a 70-station/700-bicycle/1,236- dock fixed-station regional bicycle sharing system operating in the cities of San Francisco, Redwood City, Palo Alto, Mountain View, and San Jose in San Francisco, San Mateo, and Santa Clara Counties. The five-city pilot program was established using federal Congestion Mitigation Air Quality and local Transportation Funds for Clean Air resources totalling $4.29 million. The five city pilot program launced in 2013 under the Bay Area Air Quality Management District (BAAQMD) administering the program with an intergovernmental agreement between the Santa Clara Valley Transportation Authority (VTA), San Mateo County Transit (SamTrans), San Mateo County, and the San Francisco Municipal Transportation Agency (SFMTA). The Air District owns the equipment and the intergovernmetnal agreement outlines the decision-making process for decisions affecting the system. One of the primary and unique goals of the pilot system was to provide a “last mile” connection for transit riders arriving and departing from the Caltrain stations within the service area. Despite the many agencies, the system has universal branding, fee structure, and payment system which allows users to access the system in multiple cities with one membership. Since implementation, results of system data analysis reveal !S’s strongest performing city is San Francisco, followed by Mountain View, San Jose, Palo Alto, and Redwood City. While the urban form of San Francisco is signficantly different than the other cities, evaluation of performance data from the Bay Area Bike Share-Peninsula Communities Strategic Plan show a combination of factors positively correlate with greater bike share trip counts within smaller systems, such as the Peninsula locations, including: number and of bike share stations, service area, and to a lesser degree land use diversity and bike share station concentraion. The table City of Palo Alto Page 2 below shows the breakdown of bikes and use by city. A key performance metrc used to evaluate bike share systems is the number of trips per bike per day. City System Statistics Ridership Trips / Bike / Day Stations Docks Bikes Trips Percent San Francisco 35 665 350 321,108 90.7% 2.51 Redwood City 7 115 70 2,007 0.6% 0.08 Palo Alto 5 75 50 3,093 0.9% 0.17 Mountain View 7 117 70 9,989 2.8% 0.39 San Jose 16 264 160 17,956 5.1% 0.31 Total 70 1,236 700 326,915 100% 1.39 Ridership Statistics for Bay Area Bike Share (September 1, 2014 to August 31, 2015) Source: Bay Area Bike Share-Peninsula Communities Strategic Plan In response to performance data and projections, Motivate, the current BABS operator and the Metropolitain Transportation Commission (MTC) agreed to expand the existing system to 7,000 bikes within San Francisco, Oakland, Berkeley, and San Jose without public funding. As part of this agreement, the Peninsula cities, including Palo Alto, that participated in the pilot program, may continue the bike share program but must pay a monthly premium to retain the current number of bikes and pay capital and operations costs for system expansion. The costs to continue or expand the existing system are included in Attachment A. If the Peninsula cities elect not to continue to participate in Bay Area Bike Share, the pilot will come to an end on June 30, 2016 and Motivate will remove the five existing stations within Palo Alto during the first week of July. The pilot program has already been extended through agreement from December 31, 2015 to June 30, 2016. Motivate has requested official notification from the Peninsula cities by May 31, 2016. Bay Area Bike Share – Peninsula Communities Strategic Plan In October 2015, the Metropolitan Transportation Commission released funding to SamTrans to help Redwood City, Palo Alto, and Mountain View make a decision on how to move forward with bike share after the end of the Bay Area Bike Share pilot on June 30, 2016. This plan, scheduled for completion in May 2016, provides background information including a summary of how the pilot program performed in the Peninsula cities, an overview of travel behaviors to, from, and within the peninsula, an analysis of the ideal system size and form in each community, and a summary of the Motivate pricing proposal and how that compares to the capital and operating costs of other equipment providers and operators. The first three deliverables from the study are attached as Attachments B, C and D. By analyzing successful bike sharing systems in suburban communities similar to Palo Alto, the consultant identified the characteristics of these systems and mapped the high-demand areas within the City of Palo Alto. Based on this geographic modeling, and a qualitative assessment of trip generators, the ideal bike share system size for Palo Alto was estimated to be 35 stations. These stations would be concentrated in the downtown core, California Avenue business district, Stanford Medical Center, and Stanford Research Park, with the remainder dispersed at major attractions and public facilities throughout the city. City of Palo Alto Page 3 City of San Mateo Pilot Bike Share System In November 2015, the San Mateo City Council approved a contract in the amount of $85,000 to purchase 40 Social Bicycles smart bikes for a pilot bicycle share system. The council staff report is included as Attachment E and the purchase contract is included as Attachment F. The council also approved a service contract with Bikes Make Life Better, Inc. to operate and maintain a 50-bike smart bike system for $90,000 per year. This contract is included as Attachment G. San Mateo was approached by an alternative bike share provider, Social Bicycles (SoBi), to implement a 50-bike pilot bike share program within San Mateo. SoBi operates bike share programs within several North American cities, including Long Beach, Phoenix, Santa Monica, San Ramon, Tampa, and Hamilton, Ontario, and is in the process of launching a new system in Portland, Oregon. The City of Santa Monica went through an extensive procurement process to select SoBi, and, based on this, the City of San Mateo staff recommended a sole- source award of the bike share system to SoBi, which was approved by that city council. San Mateo’s municipal code permits this type of sole source award if staff believes that a new request for proposals will not result in a more favorable proposal. On March 7, 2016, staff submitted an application to the Santa Clara Valley Transportation Authority for funding through the Transportation Fund for Clean Air - Program Manager Funds. The City requested $171,429 in capital funds, with the assumption that the City would identify $911,428 in local funding over the five-year project period. This would enable the City to add three new stations and 30 new bicycles to the existing BABS system. It is also assumed that the City would be able to add five additional privately-funded stations. The application is included as Attachment H. Letters of support were received from both the Stanford Medical Center and Stanford Research Park. The letters are included as Attachments I and J. MTC Bike Share Capital Program The Metropolitan Transportation Commission (MTC) set aside up to $4.5 million for a Bike Share Capital Program in Bay Area communities outside of the BABS expansion area at its May 2015 meeting. The Bike Share Capital Program will award grants over two phases, with the timing of the second phase to be determined following Phase 1. The funding is a one-time funding source to help project sponsors with capital purchase and initial implementation costs and will not be an on-going grant program. It will also not fund operations due to constraints on the federal Congestion Mitigation and Air Quality (CMAQ) funds committed to the program. A memo from MTC outlining the draft program guidelines is included as Attachment K. Discussion With the initial BAAQMD pilot program concluding on June 30, 2016, staff has been considering the following options for the city’s bike share system. Under all expansion alternatives, bike share station locations, number of bikes, and costs would be informed by recommendations in the Bay Area Bike Share – Peninsula Communities Strategic Plan. 1. Continue and modestly expand existing BABS system with eight new stations 2. Implement small new smart bike system with ten hubs 3. Continue and agressively expand existing BABS system with 29 new stations City of Palo Alto Page 4 4. Implement large new smart bike system with 35 hubs Under options two and four, the Bay Area Bike Share – Peninsula Communities Strategic Plan assumes the new equipment vendor would be Social Bicycles as a means to limit complications and confusion from introducing a third vendor to the region. Social Bicycles through Bikes Make Life etter, Inc. is the current equipment vendor for the ity of San Mateo’s pilot bike share system and other cities could potentially add on to the Bikes Make Life Better/Social Bicycles agreement. Based on data from the Bay Area Bike Share – Peninsula Communities Strategic Plan, system expansion with more bikes and stations within a smaller system in a suburban setting is projected to result in increased performance. Costs Capital and net operating costs were calculated for each of the scenarios and the following table shows a breakdown of capital (including installation) costs, operating costs, estimates of potential user revenues (from membership and overage fees), and net operating costs for each city and for the collective program. Capital and operating costs are generally well-known and are outlined in the table footnotes. User revenues are more difficult to calculate are a combination of annual and casual membership sales and usage fees. Annual and casual membership sales are calculated as the number of annual or casual members (assumed to grow from existing membership levels in proportion to the number of stations in the system) multiplied by the cost of an annual or casual membership ($88 or $9 respectively). Usage fees are calculated first by estimating the number of annual trips from the equations included in Attachment B (and assuming a station density of eight stations per square mile). Trips are then broken down into annual and casual member trips based on existing ratios in each city. Annual member trips are multiplied by the average overage fee recouped per annual member trip for the pilot program of $0.12 per trip. Casual user trips are multiplied by the average overage fee recouped per casual user trip for the pilot program of $8.79 per trip. STATUS QUO Existing system, current vendor OPTION 1 Minor expansion, current vendor (no gap in service) OPTION 2 Minor expansion, new vendors OPTION 3 Major expansion, current vendor OPTION 4 Major expansion, new vendors CAPITAL Motivate Motivate Social Bicycles Motivate Social Bicycles Capital Cost Number of stations $0 Five existing stations, no new stations $415,000 Five existing stations, one used station from RWC, seven new stations $400,000 Ten new hubs $1,785,000 Five existing stations, 29 new stations $1,075,000 35 new hubs Total Capital Cost $0 $595,000 $885,000 $5,115,000 $3,225,000 OPERATIONS Motivate Motivate New Operator Motivate New Operator Operations (Revenue) Net Cost $101,000 $335,000 ($115,000) $220,000 $290,000 ($115,000) $175,000 $900,000 ($565,000) $335,000 $735,000 ($565,000) $170,000 City of Palo Alto Page 5 Total Five- year Cost to City $505,000 $1,695,000 $1,760,000 $6,790,000 $4,075,000 TFCA Funding (Application Pending) $0 $171,429* $0 $171,429* $0 Regionwide MTC Funding ($4.5M in FY2017) $0 $0 $500,000* $500,000* $500,000* *Funding not secured. City of Palo Alto must compete regionally for these funding programs. Policy Implications Development of an expanded bike share system is consistent with the following Comprehensive Plan and Bicycle + Pedestrian Transportation Plan goals, policies and projects: Comprehensive Plan:  Goal T-1: Less Reliance on Single-Occupant Vehicles  Policy T-3: Support the development and expansion of comprehensive, effective programs to reduce auto use at both local and regional levels. Bicycle + Pedestrian Transportation Plan:  PR-5 Bike Share Program Environmental Review This is a study action and exempt from review under the California Environmental Quality Act. Attachments:  Attachment A: BABS Motivate Expansion Proposal Term Sheet (PDF)  Attachment B: BABS Toole Peninsula Cities Plan Deliverable 1 (PDF)  Attachment C: BABS Toole Peninsula Cities Plan Deliverable 2 Draft (PDF)  Attachment D: BABS Toole Peninsula Cities Plan Deliverable 3 Draft (PDF)  Attachment E: San Mateo Council Administrative Report (PDF)  Attachment F: San Mateo-SoBi Purchase Contract (PDF)  Attachment G: San Mateo-BMLB Service Agreement (PDF)  Attachment H: Palo Alto TFCA Application (PDF)  Attachment I: Stanford MC TFCA Support Letter (PDF)  Attachment J: Stanford RP TFCA Support Letter (PDF)  Attachment K: MTC Bike Share Capital Memo (PDF) City of Palo Alto Page 6 Attachment B - TO: Administration Committee DATE: May 6, 2015 FR: Executive Director RE: Bike Share Expansion Proposal: Motivate International, Inc. Background At your meeting on April 8, 2015, staff presented a bike share expansion proposal from Motivate International, Inc. (Motivate) which, if approved, would provide 7,000 bikes in Berkeley, Emeryville, Oakland, San Francisco, and San Jose by 2017 at no cost to the taxpayer. While the Committee voted to refer the item to the full Commission in May, staff was directed to report back to this Committee on several issues, including funding alternatives for pilot cities on the Peninsula and other potential expansions of the bike share program. During the robust Committee discussion, there was concern expressed about what options may be available to new communities that become interested in bike share in the future. A similar concern was raised by the Bay Area Air Quality Management District’s (BAAQMD) Mobile Source Committee, which voted to support the transfer of the pilot program and assets to MTC with a request that $4.5 million in funding be set aside to expand bike share to emerging communities beyond the five cities included in the Motivate proposal. This Committee also asked for more detail in the following areas: (1) how the proposal would ensure compliance with the American with Disabilities Act; (2) substantiation of the sole source justification; and (3) options and timing for investing the more than $16 million in federal and state funds that would not be needed to expand bike share should the Commission authorize a contract with Motivate. Staff is therefore submitting this report as an informational item for Committee review in advance of consideration of approval to enter into an agreement with Motivate at the May Commission meeting. National and International Comparison on Bike Share Before providing responses to the issue areas, staff wanted to provide some additional helpful context about successful bike sharing in this country and abroad in hopes of putting a finer point on why Motivate chose to focus on five cities. A 2013 study of fourteen U.S. and international bike share systems shows positive correlation between population density and bike share usage. The chart below displays the average trips per bike per day for cities that have fewer than 5,000 people per square mile, between 5,000 and 15,000 people per square mile, and more than 15,000 people per square mile. For comparison, San Francisco has more than 15,000 people per square mile, and the other four proposed cities each have more than 5,000 people per square mile. The average population density for the entire Bay Area is a little more than 1,000 people per square mile. Administration Committee Agenda Item 3 May 6, 2015 Page 2 The following chart compares the five pilot cities to other U.S. and international systems in terms of trips per bike per day: Proposal to Continue Bike Share in Pilot Cities In response to Commissioner feedback and subsequent meetings with staff of the pilot cities, Motivate has offered terms regarding pricing, discounts, and sponsorship for Mountain View, Palo Alto, and Redwood City. Please note that the City of San Mateo has decided not to pursue bike share along these terms at this time. San Mateo officials instead requested consideration to redirect some of the $1.3 million in funding capacity that would have gone into bike share in their community to other elements of their bike and pedestrian program. Administration Committee Agenda Item 3 May 6, 2015 Page 3 The three remaining pilot cities would not be required to purchase new equipment, but would instead pay a monthly premium to cover the cost of retrofitting the existing pilot bikes and stations. If a city wants to expand, new equipment is priced to match the pilot program prices, plus 10%. Ongoing operations and maintenance for new equipment would cost $100 per dock per month. The table below shows the proposed costs for these three cities. City Bikes Docks Cost per dock per month Annual cost Mountain View 54 117 $112.50 $158,000 Palo Alto 37 75 $112.50 $101,000 Redwood City 52 117 $112.50 $158,000 Total 143 309 $112.50 $417,000 If these cities reach agreements with Motivate, there are two primary ways to offset or reduce ongoing operating costs. First, cities will be able to offer recognition for local sponsors on one ad panel at each station, which has been shown to cover approximately half of a station’s annual cost. Second, cities would receive discounts for achieving the ridership levels shown below. Therefore, if a pilot city can attract a sponsor and maintain an average ridership of 1.5 trips per bike per day, it is likely that there would be no public funds required to continue the bike share program. Trips per bike per day Discount 1.0 25% 1.5 50% 3.0 100% The cities have requested up to one year to explore sponsorship options as well as continue to refine service locations to see if they can improve system use before making a decision about whether to continue bike share at the costs noted above. Motivate has agreed to operate the current equipment in these cities through December 31 at no cost, and MTC staff proposes to subsidize the cities through June 30, 2016 for approximately $200,000. Cities wishing to continue must notify Motivate by May 31; for cities that decide not to continue by this time, Motivate will plan to relocate the equipment in July 2016. Terms for Other Interested Bay Area Communities Motivate has established similar terms for any Bay Area community that would like to join the system after the 7,000-bike expansion is completed. The capital cost for new bikes is the same as for the pilot cities. For a typical configuration, full capital costs are approximately $5,600/bike, plus $4,000 per new station for installation activities. For example, five stations with 50 bikes would cost approximately $300,000. Ongoing operations and maintenance would cost $130 per dock per month, or just over $150,000 annually in the five station example. The discount levels described above are available for all Bay Area cities based on ridership, and all cities will be able to capitalize on local sponsorship. In addition, and as described more below under funding, staff is proposing to set aside $4.5 million in funding for capital expenses associated with emerging Administration Committee Agenda Item 3 May 6, 2015 Page 4 communities interested in bike share. This would follow the installation of the 7,000-bike proposed expansion and would be conditioned on communities covering the ongoing annual operating costs through local funds, sponsorship, ridership discounts, or a combination thereof. Compliance with the Americans with Disability Act (ADA) The term sheet has been revised to reflect how Motivate will comply with ADA requirements, including for both physical components of the system and the system website. The website and mobile app will utilize adaptive design and will be accessible and usable on desktop computers, tablets, and mobile devices. Ecommerce functionality will comply with Section 508 of the Rehabilitation Act of 1973. Station positioning protocol and individual station components will also comply with ADA requirements. Sole Source Substantiation To expand on the April discussion of the compelling business reasons for entering into a sole source with Motivate, staff is quantifying the monetary savings for the Bay Area of this approach in the table below, which assumes 80% farebox recovery and no advertising or sponsorship revenue. Bike Share Cost Element Estimated Annual Expenses 10-Year Value (2015 dollars, 3% discount rate) Capital cost for 6,300 expansion bikes / roughly 630 station sites -$37.6 million Annual operating and maintenance Cost above 80% farebox recovery $3.2 million $21.4 million Staff oversight, marketing and contract management $1.0 million $6.7 million Total $4.2 million $65.7 million In addition to the approximately $65 million value of the sole source contract for no public investment over the 10 year time period, the Motivate proposal also offers the opportunity to launch the robust 7,000 bike system quickly within 2.5 years, thereby attracting stronger usage earlier, in line with the Bay Area’s aggressive greenhouse gas reduction targets. A pay-as-you go model at the level of investment to-date would likely require five or more years to complete. Funding As described at the April Administration Committee meeting, fully private funding means that public funds originally intended for bikes and stations can instead be reprogrammed. The $19.1 million that the Commission approved from 2012 to 2014 for the pilot and the continuation and expansion of Bay Area Bike Share includes both federal Congestion Mitigation and Air Quality Improvement (CMAQ) and state Active Transportation Program (ATP) funds as summarized in the table below.   Administration Committee Agenda Item 3 May 6, 2015 Page 5 Program Fund Source Unreimbursed Amount ($ in millions) STP/CMAQ Cycle 1: Pilot CMAQ $2.7 STP/CMAQ Cycle 1: Expansion CMAQ $2.7 STP/CMAQ Cycle 2 (OBAG): Expansion CMAQ $6.0 Regional ATP Cycle 1: Expansion ATP $7.7 Total $19.1 The ATP funds have strict timely use of funds as well as competitive process selection requirements. Therefore, to avoid loss of those funds and in line with the last month’s discussion at the Programming and Allocations Committee meeting, staff recommends that $7.7 million be allocated to ready-to-go contingency ATP projects. Additional detail is included in agenda item 4a on today’s Programming and Allocations Committee agenda. Staff further recommends directing $4.5 million to address the concerns raised by several Commissioners as well as the BAAQMD Mobile Source Committee members (this may require a funding exchange given the sole source nature of the agreement with Motivate and federal rules). These funds would be set-aside for capital costs associated with bike share expansion in emerging communities. Staff would conduct a call for projects to solicit interest from communities in a timeframe to allow expansion to begin following installation of the 7,000-bike expansion. This funding level would support acquisition of an additional 750 bikes, roughly the size of the current pilot, in emerging communities. In addition, staff is recommending that $0.5 million in CMAQ be provided to the city of San Mateo to advance its bicycle and pedestrian program. Staff is proposing that the remaining $6.4 million be subject to the broader discussion of priorities for OBAG2 as the Commission considers a draft framework next month at the Programming and Allocations Committee meeting. Other Clarifications Further, based on questions by Commissioners and city staff, the term sheet has been revised to clarify the following areas:  Exclusivity: Motivate has clarified the terms attached to this report to show that the proposed exclusivity provision only applies to public right-of-way in Berkeley, Emeryville, Oakland, San Francisco, and San Jose. Moreover, the exclusivity provision does not apply to an existing pilot electric bike share program, facilitated by City CarShare and planned for Berkeley and San Francisco. The approximately 90 electric bikes at 25 planned stations will be available only to members of City CarShare.  System Size: Motivate has agreed to maintain a 2:1 dock-to-bicycle ratio in Mountain View, Palo Alto, and Redwood City during the extended grace period and continuing forward if those cities decide to continue with their current systems. Under current station configurations, a 2:1 ratio represents 155 bikes across these three cities. This adds 55 bikes to the original proposal for a total of up to 7,055 bikes across eight cities. If fewer than all three Attachment A Page 1 Attachment A Motivate-MTC Proposed Term Sheet This term sheet is intended to be used to facilitate discussions between the Metropolitan Transportation Commission (“MTC”) and Motivate International Inc. (“Motivate”) in order to develop a contract for the acquisition, launch and operation of a bike share system in the Bay Area. Contract Topic Contract Terms Equipment Ownership If required by the FHWA, Motivate will be obligated to purchase the equipment initially acquired with federal funds according to the terms of the FHWA agreement. As currently outlined in the FHWA agreement, any item with a current per-unit FMV of less than $5,000 will be transferred to Motivate at no cost. For items with a current per-unit FMV of more than $5,000, the purchase price will be based on the share of federal funding for the project multiplied by the equipment’s FMV, as established by past sales of comparable equipment. System Size 7,000-7,055 bikes total  4,500 in SF  1,000 in San Jose  1,400 in East Bay (850 in Oakland, 100 in Emeryville, 400 in Berkeley, 50 TBD based on additional system planning analysis)  Between 100 and 155 to be determined: -If Mountain View, Palo Alto, and Redwood City all decide to agree with Motivate and continue bike share, Motivate will provide 155 bikes among the three cities. -If one or two of the three pilot cities listed above decide to continue bike share, Motivate will provide enough bikes to maintain a 2:1 dock to bike ratio with the docks currently stationed in each city. If this is less than 100 bikes, Motivate will deliver enough bikes to another city to reach a program total of at least 7,000. -If none of the three pilot cities listed above decides to continue bike share, 100 bikes to be determined among SF, San Jose, and the East Bay. Launch Dates Sites representing 25% of the total bikes for San Jose, East Bay and San Francisco should be approved and permitted by December 30, 2015. Motivate will install these bikes by June 1, 2016. Attachment A Page 2 Contract Topic Contract Terms Launch Dates Sites representing an additional 15% of bikes for San Jose, East (continued) Bay and SF should be approved and permitted by April 30, 2016. Motivate will install these bikes by October 1, 2016. Sites representing the remaining 60% of bikes for the East Bay should be approved and permitted by July 30, 2016. Motivate will install these bikes by January 1, 2017. Sites representing an additional 30% of bikes for San Jose and SF should be approved and permitted by November 30, 2016. Motivate will install these bikes by April 1, 2017. Sites for the remaining bikes in San Jose and SF should be approved and permitted by May 31, 2017. The remainder of bikes shall be installed no later than November1, 2017. Delays in receiving permitted and approved sites by specified dates will result in extension of the installation dates in an amount equal to the delay. The above dates are based on completion of the contract with the MTC by July 31, 2015. If Motivate is negotiating in good faith and the contract signing occurs after July 31, 2015, the above dates will be extended by a duration equal to the difference between the contract signing date and July 31, 2015. Term 10 year term, reduced to 5 years if Motivate does not achieve the aggregate bike target numbers described above (includes provisions for force majeure and siting issues) or if Motivate is in persistent and material breach of its contractual obligations as of the time renewal is considered in the fourth year. The contract may be extended for two additional five-year terms upon mutual agreement of the MTC and Motivate. If Motivate is in substantial compliance with the terms of the contract, MTC will engage in good faith negotiations to renew the contract on substantially equivalent terms one year prior to the expiration of the current term. MTC will provide notification of non-renewal no later than six months prior to the end of the term. If neither party provides no notice of non-renewal by six months, the contract should be extended for five years on the same terms.             Attachment A Page 3 Contract Topic Contract Terms Exclusivity During the Term of this Agreement, Motivate shall have the exclusive right to operate a bike sharing program that utilizes public property and public right of way anywhere within San Francisco, Berkeley, Oakland, San Jose and Emeryville. The exclusivity provision does not apply to an existing pilot electric bike share program, facilitated by City CarShare and planned for Berkeley and San Francisco. The approximately 90 electric bikes at 25 planned stations will be available only to members of City CarShare. System Buy-In San Jose, San Francisco, Berkeley, Emeryville, and Oakland may contribute public funding for additional bikes and stations that are interoperable with the existing system. Costs to cities for purchasing, installing and operating the equipment is as follows:  Capital Equipment: Aggregate pricing for bike share solution as specified in the Air District contract + 10%. Adjusted annually by the producer price index.  Installation: $4,000 per station, including site planning and drawings, growing at CPI.  Operations and maintenance of the equipment: $100 per dock per month, growing at CPI  Motivate is obligated to maintain equipment purchased by the cities in a state-of-good repair throughout the term. At the end of the term, Motivate shall return the equipment to the city in good working order acknowledging that there is expected to be normal wear and tear from use. San Mateo and existing pilot cities other than San Francisco and San Jose that want to continue and/or expand existing system operations after the expiration of the BAAQMD contract can develop a new service agreement with Motivate using their own sources of funds. Costs to cities for purchasing, installing and operating the equipment is as follows:  Existing equipment upgrade cost: $12.50 per dock per month, growing at PPI.  New capital equipment: Aggregate pricing for bike share solution as specified in the Air District contract + 10%. Adjusted annually by the producer price index.  Installation of new equipment: $4,000 per station, including site planning and drawings, growing at CPI  Operations and maintenance of the equipment: $100 per dock per month, growing at CPI.           Attachment A Page 4 Contract Topic Contract Terms System Buy-In (continued) -Price is reduced to $75 per dock, adjusted by CPI, if an average of 1 ride per bike per day citywide occurs for a 12 month period -Price is reduced to $50 per dock, adjusted by CPI, if an average of 1.5 rides per bike per day citywide occurs for a 12 month period -Price is reduced to $0 per dock, adjusted by CPI, if an average of 3 rides per bike per day citywide occurs for a 12 month period  Motivate is obligated to maintain equipment purchased by the cities in a state-of-good repair throughout the term. At the end of the term, Motivate shall return the equipment to the city in good working order, acknowledging that there is expected to be normal wear and tear from use.  Cities are able to raise sponsorship to offset the costs of purchasing and operating the bike share system in their locality. Local sponsorship packages may include recognition of the sponsor on one side of one ad panel on the station. System naming rights, bike branding, and other branding of physical assets will be determined by Motivate in conjunction with title sponsor and in compliance with local advertising regulations. Local sponsors cannot be in the same category as the title sponsor, unless approved by Motivate.  Motivate will operate the current configurations of stations and docks, following the expiration of the BAAQMD contract, with enough bikes to provide a 2:1 ratio of bikes to docks, at no cost until December 31, 2015.  MTC will pay $100 per dock per month to Motivate from January 1, 2016 through June 30, 2016 to maintain operations in the pilot cities.  Cities must decide whether or not to continue and/or expand bike share by May 31, 2016. Motivate will begin relocating equipment in cities that decide not to continue in July 2016. Subsequent to deployment of 7,000 bikes within San Francisco, San Jose, Oakland, Berkeley and Emeryville, other cities in the MTC region that want to participate in the regional bike share system can develop a service agreement with Motivate using their own sources of funds. Costs to cities for purchasing, installing and operating the equipment is as follows:   Attachment A Page 5 Contract Topic Contract Terms System Buy-In (continued)  New capital Equipment: Aggregate pricing for bike share solution as specified in the Air District contract + 10%. Adjusted annually by the producer price index.  Installation: $4,000 per station, including site planning and drawings, growing at CPI  Operations and maintenance of the equipment: $130 per dock per month, growing at CPI. -Price is reduced to $97.50 per dock, adjusted by CPI, if an average of 1 ride per bike per day citywide occurs for a 12 month period -Price is reduced to $65 per dock, adjusted by CPI, if an average of 1.5 rides per bike per day citywide occurs for a 12 month period -Price is reduced to $0 per dock, adjusted by CPI, if an average of 3 rides per bike per day citywide occurs for a 12 month period  Motivate is obligated to maintain equipment purchased by the cities in a state-of-good repair throughout the term. At the end of the term, Motivate shall return the equipment to the city in good working order, acknowledging that there is expected to be normal wear and tear from use.  Cities are able to raise sponsorship to offset the costs of purchasing and operating the bike share system in their locality. Local sponsorship packages may include recognition of the sponsor on one side of one ad panel on the station. System naming rights, bike branding, and other branding of physical assets will be determined by Motivate in conjunction with title sponsor and in compliance with local advertising regulations. Local sponsors cannot be in the same category as the title sponsor, unless approved by Motivate. In addition, Motivate has the right to contract with private entities that want to provide funding for stations and bikes that are situated on privately-owned property. Pricing $149 annual pass that can be increased no more than CPI + 2% annually. Annual pass can be paid in 12-monthly installments of no more than $15.00 All other pricing can be set at Motivate’s discretion. Motivate will offer a discounted pass set at 40% of the annual price. The discount will be available to customers who are eligible and enrolled in Bay Area utility lifeline programs. If participation Attachment A Page 6 Contract Topic Contract Terms Pricing (continued) in the discounted program is below expectations, Motivate and MTC may mutually agree on other eligibility criteria so long as the eligibility is determined by a third-party. Revenue Share User Revenue: 5% of user revenue above $18,000,000 earned by Motivate (in accordance with GAAP) in any year will be paid to MTC. Amounts owed will be paid within 120 days of the end of the calendar year. Sponsorship Revenue: 5% of sponsorship revenue in excess of $7,000,000 earned by Motivate (in accordance with GAAP) in any year will be paid to MTC. Amounts owed under the sponsorship revenue share agreement in years 1-5 will be deferred and paid in equal installments in years 6-10. For years 6-10, amounts owed under the sponsorship revenue share agreement will be paid within 120 days of the end of the calendar year. The revenue share hurdle will be adjusted for CPI starting in year 2. Brand Development and Sponsorship Motivate is responsible for identifying sponsors and developing system name, color, logo and placement of system assets. MTC, in consultation with the cities, will have approval rights over title sponsorship and branding. Motivate will abide by cities’ existing guidelines and restrictions with regards to outdoor advertising. Motivate will not choose sponsors that are in age-restricted categories (alcohol, tobacco or firearms), products banned by the local government, or deemed offensive to the general public. Rejection of proposed sponsors by municipalities are limited to the grounds above. Advertising Motivate will have the right to sell advertising on physical and digital assets. Advertising on physical assets are subject to local restrictions on outdoor advertising. Siting Motivate to develop site locations, which will be prioritized based on demand. Motivate will also use city analyses and recommendations already developed where possible. If a city does not approve a proposed site location, they must provide an alternative within one-block. Motivate to provide a 20% minimum placement in communities of concern system-wide. Participating cities may designate other areas for 20% minimum placement instead of communities of concern. Attachment A Page 7 Contract Topic Contract Terms Siting (continued) Motivate will work together with cities on community engagement and outreach as part of the station siting process, including necessary business associations and city meetings. Motivate can relocate or resize underperforming stations while maintaining minimum placements in communities of concern. Motivate will hire planning and engineering firms to minimize the cities’ costs and resources related to planning. Motivate will discuss staff time requirements with each city and determine ways to reduce demands on staff. If staff time exceeds estimates due to errors or omissions or by Motivate or its contractors, Motivate will reimburse cities for reasonable and documented direct staff time related to these issues. Cities to provide estimates on costs of permits within seven days of signing term sheet. If costs of permits are significant, Motivate will seek a waiver on permit costs given the public benefits of the project. If Motivate and Cities cannot reach agreement on a waiver, Motivate may consider reimbursing actual direct costs incurred by the city to provide the permit (e.g, a field visit by an inspector). Security Fund Motivate will provide $250,000 into a Security Fund account controlled by MTC prior to the installation of the first new station. The Security Fund shall serve as security for the faithful performance by Motivate of all obligations under the contract. MTC may make withdrawals from the Security Fund of such amounts as necessary to satisfy (to the degree possible) Motivate’s obligations under this Agreement that are not otherwise satisfied and to reimburse the MTC or cities for costs, losses or damages incurred as the result of Motivate’s failure to satisfy its obligations. MTC shall not make any withdrawals by reason of any breach for which Motivate has not been given notice and an opportunity to cure in accordance with the Agreement. If funds are withdrawn from the Security Fund, Motivate will be required to replenish the Security Fund to an amount equal to $250,000 on a quarterly basis. Interest in account accrues to Motivate. 90 days after the end of the term, any remaining funds will be returned to Motivate. Attachment A Page 8 Contract Topic Contract Terms Liability Motivate shall defend, indemnify and hold MTC and its officers and employees harmless, to the fullest extent permitted by law, etc. Similar indemnities for cities. Default Termination and default clauses include the option to require Motivate to remove equipment, assign or transfer equipment and IP to a third party. IP assignment is limited to the extent needed for a third-party to maintain and operate the system. Data All data owned by Motivate. Cities granted a non-exclusive, royalty free, perpetual license to use all non-personal data. Monthly Reports shall be provided for each of the above KPIs and other system data, to be determined. Responsibilities of Brand development, station siting, design, permitting, purchase of Motivate equipment and software, installation of bikes and stations, station relocation, equipment replacement, bike share safety training, monthly operating meetings with MTC and cities, marketing, sales and sponsorship, operations and maintenance of system including customer service. Station relocation by public agencies will require reimbursement of costs incurred by Motivate. However, if a newly installed station is found to be unsuitable by a city for its location, the city may request within 30 days of installation the relocation of a station at Motivate’s cost. The number of available free station moves is equal to 10% of the installed station base less any prior moves. For example, if a city has 100 stations installed, they have a total of 10 free station moves less any free station moves used to date. If the system grows to 200 stations, they then have 20 station moves less any station moves used to date. Site Design and Planning Motivate will hire a planning and engineering firm with experience in the specific locality to do surveying, site design and permit submission. Motivate will solicit input from each city to help determine its planning and engineering partners. Motivate will hire a community relations firm to assist with organizing and hosting community meetings and to conduct outreach to local residents and businesses. Motivate will use commercially reasonable efforts to subcontract the work to DBEs where possible. Each municipality should provide a point of contact to coordinate the community engagement efforts and the permitting process. Attachment A Page 9 Contract Topic Contract Terms Marketing MTC, in consultation with the cities, has final approval of marketing plans and activities. MTC, in consultation with the cities has approval over marketing and outreach plans for low-income communities, non-native English speaking populations, and disadvantaged communities. Motivate must do outreach and marketing in Spanish, Chinese and Vietnamese. MTC retains the ability to conduct outreach and program support in low-income and Limited English Proficiency neighborhoods. Motivate’s other marketing activities must comply with MTC and local standards for decency and not offend the general public. Motivate will not advertise or promote any products in prohibited categories (tobacco, alcohol, etc.). Parking Meter Revenue Motivate must make best effort to avoid taking metered parking spaces. If a city requires reimbursement of lost parking meter revenue for a given site, the city must also provide an alternative site location within one city block that is not sited in metered parking areas. Motivate can choose to locate in either site. KPIs Key Performance Indicators: 1. Rebalancing: no station will remain full or empty for more than 3 consecutive hours between 6AM and 10PM. 2. Bicycle Availability: the number of bikes available for rent on an average, monthly basis shall be at least 90% of all bikes in service. 3. Station Deactivation, Removal, Relocation, and Reinstallation: as notified by MTC, perform the necessary action within the number of days in the established schedule for each task. 4. Station/Bike Maintenance, Inspection & Cleaning: check each bike and station at least once per month and resolve each issue within a given time frame. 5. Program, Website, and Call Center Functionality: the system, website, and call center shall each be operational and responsive 24/7, 365 days a year. Liquidated damages related to KPIs may not exceed 4% of annual user revenue for the year.     Attachment A Page 10 Contract Topic Contract Terms Transition of Project Subject to Air District Board approval, BAAQMD, MTC and from Bay Air Quality Motivate will cooperatively develop a plan to effectuate the transfer Management District of the project from the BAAQMD to MTC. The plan will provide (BAAQMD) to MTC for the implementation of new pricing, the continuation of existing memberships, the transfer of system data, the transfer of assets, and any other provision to ensure a seamless transfer and provide Motivate with the ability to operate the system under the MTC contract. Resolution of Terms with BAAQMD Resolution includes:  Motivate will settle all outstanding claims with the Air District for the amount of $150,000.  Air District agrees to release funds withheld for billed expenses and to pay all legitimate past and documented unbilled expenses totaling $582,872 less the $150,000 settlement amount.  On a go-forward basis, Motivate will be paid for all eligible reimbursable costs per month to the maximum amount of one twelfth of the Annual Operations Fee, or $136,638.67 per month. Cost caps within categories will not be relevant.  This agreement will resolve prior SLA claims and any other prior potential claims that could be asserted through the date of Settlement Americans with In implementing and operating the bicycle sharing system, Disability Act (ADA) Motivate shall comply with all applicable requirements of the Provisions Americans with Disabilities Act, Section 508 of the Rehabilitation Act of 1973, and all other applicable federal, state and local requirements relating to accessibility for persons with disabilities, including any rules or regulations promulgated thereunder. Such compliance shall extend to the location and design of system equipment and related facilities as well as the system website and any mobile application for the system. Mayor Jeff Gee City Hall Vice Mayor Rosanne Foust 1017 Middlefield Road Redwood City, CA 94063 Council Members Voice (650) 780-7220 Alicia Aguirre Fax (650) 261-9102 Ian Bain mail@redwoodcity.org Diane Howard www.redwoodcity.org Barbara Pierce John Seybert April 24, 2015 Hon. Dave Cortese Chair and MTC Commissioner Representing Santa Clara County President, Santa Clara County Board of Supervisors 70 West Hedding Street Tenth Floor – East Wing San Jose, CA 95110 RE: Bay Area Bike Share Expansion Proposal: Motivate International, Inc. Dear Mr. Cortese: On April 2, 2015 the City of Redwood City (City) learned that the Metropolitan Transportation Commission’s Administration Committee planned to discuss, at its April 8 meeting, a proposal received from Motivate International, Inc. The proposal outlines Motivate’s recommendation to expand the existing Bay Area Bike Share pilot system from 700 bicycles to 7,000 bicycles using no public funds. Per the proposal, the current bike share pilot project cities of Redwood City, Palo Alto, and Mountain View are excluded, but may “buy-in” at their own cost. Redwood City and the cities between San Francisco and San Jose form critical links in the Bay Area’s transportation networks, including the Bay Area Bike Share system. This is particularly true for Peninsula cities along the Caltrain line, including the bike share pilot cities of Redwood City, Palo Alto, and Mountain View. As with any transportation system, it’s important to provide access and connections at both the beginning and end of the user’s trip (first and last mile). Up and down the Peninsula, Redwood City and our neighbors to our north and south are bringing significant transit-oriented developments to our city centers, collectively enabling thousands of new residents and employees to connect to local and regional transit. For example, an additional 1,635 apartments are being constructed within a half mile of Redwood City’s Caltrain station. One third of these units are completed, with the balance to be finished and occupied within one year. Additionally, Box, Inc. is moving its corporate headquarters to Redwood City. The new office, currently under construction and adjacent to Redwood City’s Caltrain station, will bring an additional 1,200 employees to downtown Redwood City later this year. The timing of the Bay Area Bike Share pilot was a bit early for Redwood City given our downtown development timeline, but nonetheless the City joined the team and dedicated significant staff time to all phases of the pilot program, including planning, design, development, launch, and ongoing operations. Throughout the 5-year pilot process our staff contributed input, ideas, and feedback to support the program and help ensure its success, laying the groundwork for other cities to join the post-pilot expansion throughout the Bay Area. Given Redwood City’s considerable investment of resources, and in light of our downtown development schedule (new construction to be completed in early 2016), we ask to remain a bike share partner for one year beyond the end of the pilot program, at no “buy-in” cost to Redwood City. This one-year period is needed to evaluate the options and considerations for moving ahead with the sole-source agreement proposed by Motivate. Given Motivate’s post-pilot target launch date of June 2016 (initial expansion), this should not impact or overlap with the expansion. The proposal being considered is a non-solicited sole-source (non-competitive) proposal received from the current operator of the bike share pilot program. Many challenges, problems, and delays were encountered throughout the design, development, launch, and operation phases of the pilot program. Therefore, we additionally recommend and request that MTC staff coordinate with the pilot partners and the Bay Area Air Quality Management District to ensure that the contract terms build from lessons learned during the pilot program, in order to: • Protect the public interest and investment in the program to date • Identify and address operational shortcomings experienced during the pilot • Outline alternatives for cities who choose to buy into the system, e.g. allow those cities to use sponsor revenue to subsidize local costs We appreciate your attention to this matter and thank you in advance. Sincerely, Jeffrey Gee, Mayor City of Redwood City C: City Council, Redwood City Bob Bell, City Manager MTC Commissioners Steve Heminger, Executive Director, MTC COMMUNITY DEVELOPMENT DEPARTMENT 1017 Middlefield Road ENGINEERING & TRANSPORTATION P.O. Box 391 Redwood City, CA 94064 Telephone: 650.780.7380 Facsimile: 650.780.7309 www.redwoodcity.org April 7, 2015 Steve Heminger (transmitted via email) Metropolitan Transportation Commission 101 Eighth Street Oakland, CA 94607 Subject: MTC Administration Committee Agenda Item 4: Bike Share Expansion Proposal: Motivate International, Inc. Dear Mr. Heminger, Motivate’s proposal to expand bike sharing could be an extraordinary opportunity to establish bike share as a meaningful transit system for the Bay Area. We share MTC’s enthusiasm and support moving ahead with negotiations to expand the regional bike share program. Because we only learned of Motivate’s proposal on April 2, 2015, we are unable to provide detailed input at this time. However, we encourage MTC to address the following points as you refine your term sheet and negotiate a contract with Motivate:  Identify how the key performance indicators and contract terms reflect lessons learned during the pilot program. The staff report includes information on the system costs and number of trips taken, but it does not provide background on the performance of Motivate, previously Alta Bicycle Share, in terms of delivering the service.  Clarify what it means for Motivate to be the ‘exclusive supplier and operator of bike share in the Bay Area.’ Smaller communities, corporate campuses, universities or similar entities may find the cost to buy into this system to be cost-prohibitive, requiring them to pursue a different system within their jurisdictions.  Determine how the current pilot cities (those not selected for the expansion program) can preserve their public investment in the pilot.  Identify the cost and process for the current pilot cities to buy into the system, keeping in mind: o A considerable investment of staff resources have gone into designing, developing, launching, and operating the pilot program and siting existing stations. o Non-expansion, pilot cities wanting to continue service would have the existing equipment sold to Motivate, only to have to pay to have the equipment put back. o Smaller communities’ ability to subsidize capital and/or operating costs could be compromised if Motivate has exclusive rights to sell advertising and is entitled to all sponsorship revenue. o The cost to provide service and the revenues associated with it will depend on usage.  Identify the process by which Bay Area Bike Share members who live or use the system in Redwood City would be notified of its departure and when the system would be removed. Although the current bike share system in Redwood City has not been used as extensively as we would have liked, it is important that our ability to participate in the system is preserved. Similarly, all Bay Area communities should be able to reap the benefits of bike sharing, where and when it may be appropriate – and the contract terms should reflect this. Thank you for your consideration and I look forward to continued communication with your staff to ensure that we leverage our experience in the bike share pilot project to get the best possible bike share system for the Bay Area. Sincerely, Jessica Manzi, PE Senior Transportation Coordinator cc: Administrative Committee members Dr. Robert B. Bell, City Manager - Redwood City Jeff Gee, Mayor - Redwood City Alicia Aguirre, Redwood City Councilmember & MTC Commissioner                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MEMORANDUM Project: Bay Area Bike Share – Peninsula Communities Strategic Plan Subject: Deliverable 1 – Summary of Pilot Program and Option 1: Buying into the Motivate Program Date: December 28, 2015 To: Melissa Reggiardo, SamTrans From: Sean Co and Adrian Witte, TDG CC: Peninsula Bike Share Working Group This memorandum is the first of a series of memoranda to help Redwood City, Palo Alto, and Mountain View (referred to as “the peninsula cities”) make their decision on how to move forward with bike share. It provides background information including a summary of how the pilot program performed in the peninsula cities, an overview of travel behaviors to, from, and within the peninsula, an analysis of the ideal system size and form in each community, and a summary of the Motivate pricing proposal and how that compares to the capital and operating costs of other equipment providers and operators. 1. Program Background The existing Bay Area Bike Share (BABS) pilot program is a 70 station / 700 bicycle / 1,236 dock bike share system operating in the cities of San Francisco, Redwood City, Palo Alto, Mountain View, and San Jose in San Francisco, San Mateo, and Santa Clara Counties. The pilot program was established using federal Congestion Mitigation Air Quality (CMAQ) and local Transportation Funds for Clean Air (TFCA) funds administered by the Bay Area Air Quality Management District (BAAQMD – “the Air District”). The Air District programmed $4.29 million that was used to administer bike share through an Intergovernmental Agreement (IGA) entered into with the San Francisco Municipal Transportation Agency (SFMTA), San Mateo County Transit (SamTrans), Redwood City, San Mateo County, and Santa Clara Valley Transportation Authority (VTA). The Air District owns the equipment and is the administrator and fiscal agent of the system and executes agreements with vendors to carry out the program. The IGA outlines the decision making process for decisions affecting                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Bay Area Bike Share Page | 2 Peninsula Cities Analysis the system. For issues that are not decided through consensus, each voting member gets one vote with the Air District retaining the authority to veto a decision as the ultimate provider of the system. Currently not all IGA partners are voting members with SamTrans acting as the voting member for Redwood City and the San Mateo County partners collectively. Equipment and operations were procured through a single RFP process. Alta Bicycle Share was selected as the operator of the system with a one‐year initial contract term plus four one‐year optional renewal terms. As part of that contract, equipment was provided by the Public Bike Share Company (PBSC), including the station hardware (i.e., technical platforms, docking points, kiosks, etc.), bikes, and the software back‐end (that utilizes the vendor’s own software platform). Motivate has purchased Alta Bicycle Share and now operates the program and provides equipment through its own supply chain. Under the initial contract, which now applies to Motivate, the operator is expected to meet certain performance standards and payment is based on actual expenses incurred up to a maximum fee established in the contract plus a management fee of 10‐percent of the sum of labor and direct costs. A new contract is being negotiated between MTC and Motivate for the new expanded system moving forward. 2. Commuter Behavior The following section provides an overview of commuter flows and mode splits to provide background on existing travel patterns to, from, and within the peninsula cities. Intercounty and Intercity Commute Flows A review of intercounty commute flows obtained from the American Community Survey demonstrates how residents move between counties on the peninsula (see Table 1). Based on data from 2009 to 2013, San Mateo County residents (which includes Daly City, South San Francisco, San Mateo, and Redwood City) have the highest intercounty commute rates with approximately 79,000 (or 23% of San Mateo County workers) commuting north to San Francisco and approximately 53,000 (15% of San Mateo County workers) commuting south to Santa Clara County (which includes Palo Alto, Mountain View, and San Jose). Conversely, San Mateo County sees approximately 45,000 commuters come into the county from both San Francisco and Santa Clara Counties. Fewer commuters make the longer distance trip between San Francisco and Santa Clara counties with approximately 11,000 commuters travelling north from Santa Clara County to San Francisco and 22,000 commuting in the opposite direction. Table 1 County‐to‐County Commute Flows San Francisco County San Mateo County Santa Clara County San Francisco County 340,735 45,216 22,423 San Mateo County 78,720 211,700 52,988 Santa Clara County 11,245 43,128 732,765                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Bay Area Bike Share Page | 3 Peninsula Cities Analysis Intercity commute flows are calculated in the U.S. Census Bureau’s American Community Survey and are expressed as the flow of workers aged over 16 between each of the six cities shown in Table 2. Not surprisingly, a high proportion of people live and work in the same city, though there are significant intercity commute flows including some cross‐peninsula movement to access employment. Table 2 shows that the percentage of workers commuting to San Francisco drops off as the distance increases. The peninsula cities have commuting levels between 2 and 6 percent of workers travelling to and from San Francisco. The most significant cross‐peninsula flows are:  16 percent of Mountain View residents work in Palo Alto  9 percent of Redwood City residents work in Palo Alto  6 percent of Palo Alto residents work in Mountain View  6 percent of Redwood City residents work in San Mateo and vice versa  5 percent of Palo Alto residents work in Redwood City Table 2 Intercity Commute Flows as a Percentage of Total Working Population Over Age 16 (2010)1 RE S I D E N C E WORKPLACE San Francisco South San Francisco City San Mateo Redwood Palo Alto* Mountain View San Francisco 76% 2% 1% 1% 1% 1% South San Francisco 33% 24% 4% 2% 1% < 1% San Mateo 13% 5% 29% 6% 4% 2% Redwood City 6% 3% 6% 28% 9% 3% Palo Alto* 4% 1% 2% 5% 35% 6% Mountain View 2% 1% 1% 3% 16% 27% *Includes East Palo Alto Commuter Mode Split While driving alone is the most common mode of travel to work, residents of the peninsula cities also use public transportation, walk, bike, and telecommute (see Table 3). Amongst the cities studied, Palo Alto has the highest bicycle commute rate at 9 percent, followed by Mountain View with 6 percent, whereas Redwood City’s bicycle commute rate is 2 percent.2 For the peninsula cities, transit ridership is highest in Palo Alto and Mountain View at 6 percent with Redwood City recording 4 percent. 1 U.S. Census Bureau, American Community Survey 2006‐2010. Five‐year estimates. Special Tabulation: Census Transportation Planning. Measures: workers 16 and over, weighted by 2010 working populations per city. 2 2010‐2014 American Community Survey 5‐Year Estimates. Commuting Characteristics by Sex, Accessed Dec. 3, 2015.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   Bay Area Bike Share Page | 4 Peninsula Cities Analysis Table 3 Commute Trips by Mode by City3 San Francisco South San Francisco San Mateo Redwood City Palo Alto East Palo Alto Mountain View Workers 16 years and over (total) 456,670 32,566 52,404 40,375 31,113 12,978 42,147 Car, truck, or van 44% 82% 82% 84% 72% 85% 81% Public transportation 33% 11% 8% 4% 6% 4% 6% Walk 10% 3% 3% 3% 5% 3% 3% Bicycle 4% 1% 2% 2% 9% 3% 6% Taxicab, motorcycle, or other means 4% 1% 2% 2% 9% 3% 6% Work at home 7% 3% 4% 6% 8% 2% 4% Transit Access According to the Caltrain 2014 On‐Board Transit Survey Final Report, 17 percent of passengers access Caltrain by bike and the same percentage reach their final destination by bike as well.4 According to the San Francisco Bicycle Coalition, since 2004, the number of passengers bringing their bikes on board Caltrain has almost quadrupled.5 To meet demand, bike capacity was increased to include two bike cars for every train in 2009, though passengers are still denied boarding due to limited bike capacity as per Caltrain’s “first –come, first‐served” policy.6,7 Caltrain explains: With limited onboard bike space, customers with bikes are encouraged to park them at Caltrain stations, when feasible. This will eliminate potential delays for cyclists who have to wait for trains with available onboard bike capacity. Bike racks, lockers and shared‐access parking facilities are available at most Caltrain stations for customers who bike to and/or from the station.8 However, Table 4 shows that secure bike parking is not available at every Caltrain station included in this analysis. Given the high bicycle access rates, limited secure bicycle parking, and limited space onboard Caltrain vehicles, there may be an argument to expand bike share access in the peninsula cities. However, it is noted that in the ‘BABS Membership Survey’ section below, that one of the conclusions of 3 U.S. Census Bureau. 2010 Demographic Profile. Accessed Dec. 3, 2015. 4 Caltrain 2014 On‐Board Transit Survey Final Report. http://www.caltrain.com/Assets/ MarketDevelopment/pdf/Caltrain+Origin+$!26+Destination+Survey+2014.pdf 5 San Francisco Bicycle Coalition. Caltrain. Accessed Dec. 15, 2015. https://www.sfbike.org/our‐work/regional‐ advocacy/caltrain/ 6 Ibid. 7 Caltrain. Bicycle Parking. Updated 2015. Accessed Dec. 15, 2015. http://www.caltrain.com/riderinfo/Bicycles/BicycleParking.html 8 Caltrain. Bicycle Parking. Updated 2015. Accessed Dec. 15, 2015. http://www.caltrain.com/riderinfo/Bicycles/BicycleParking.html                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               Bay Area Bike Share Page | 5 Peninsula Cities Analysis the survey team was that Bay Area Bike Share, at least as a pilot program “has not had a sizeable effect in reducing the number of bikes on Caltrain or BART trains.”9 Table 4 Caltrain Bicycle Parking Availability Station Bike Rack Spaces Bicycle Locker Spaces Bicycle Lockers Available Bike Share Available Other Bike Parking Amenities San Francisco 6 180 Yes Yes Free Attended Bike Parking Facility (Monday – Friday, 6:30 a.m. to 8:30 p.m.) San Mateo 11 12 Yes No City run, on‐demand electronic lockers www.bikelink.org Redwood City 18 50 No – full Yes Palo Alto 178 94 No – full Yes Mountain View 23 116 No – full Yes City run, shared access bike storage shed 3. System Performance in the Peninsula Cities Bay Area Bike Share in the peninsula cities are each designed as small “mini‐systems” that are connected to one another and to the rest of the system by Caltrain. Each city includes five to seven bike share stations centered on the Caltrain station. In this way, bike share is intended to deliver people to and from transit and act as a first‐and last‐mile transit connection. Quantitative Performance Review A breakdown of the number of stations, docks, bikes, and ridership for each of the pilot cities is included in Table 5 for the one‐year period between September 1, 2014 and August 31, 2015. Month‐by‐month ridership levels are included in Appendix A. As well, membership information for each of the pilot cities is included in Table 6 for the period between September 1, 2014 and November 11, 2015. Table 5: Ridership Statistics for Bay Area Bike Share (September 1, 2014 to August 31, 2015) City System Statistics Ridership Trips / Bike / Day Annual Member Trip Percentage Casual Member Trip PercentageStations Docks Bikes Trips Percent San Francisco 35 665 350 321,108 90.7% 2.51 85% 15% Redwood City 7 115 70 2,007 0.6% 0.08 79% 21% Palo Alto 5 75 50 3,093 0.9% 0.17 57% 43% Mountain View 7 117 70 9,989 2.8% 0.39 85% 15% San Jose 16 264 160 17,956 5.1% 0.31 84% 16% Total 70 1,236 700 326,915 100% 1.39 85% 15% 9 OneBayArea Innovation Starts Here. MTC’s Climate Initiatives Program Evaluation, Pilot Bike‐sharing Program, Bay Area Air Quality Management District.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  Bay Area Bike Share Page | 6 Peninsula Cities Analysis Table 6: Membership Statistics for Bay Area Bike Share (September 1, 2014 to November 11, 2015) City Annual Members Casual Members Number of Annual Members Annual Member Zip Code (%)1 Number of Casual Members Casual Member Percentage2 San Francisco 2,015 52% 44,488 85% Redwood City 70 2% 392 1% Palo Alto 72 2% 1,852 4% Mountain View 112 3% 1,842 4% San Jose 238 6% 3,539 7% Other 1,334 35% ‐‐ Total 3,814 100% 3,927 100% 1 Based on billing zip code provided at time of membership purchase. 2 Based on location of membership purchase. Users may have used the system in multiple locations. The peninsula cities have approximately 27 percent of the stations and 25 percent of the docks in the system. However, ridership was approximately 15,000 trips in the reported one‐year period, representing just under five percent of system ridership. The highest performing of the peninsula cities is Mountain View recording 0.39 trips per bike per day (higher than San Jose and second only to San Francisco). Palo Alto and Redwood City recorded lower ridership at 0.17 and 0.08 trips per bike per day, respectively. Approximately seven percent of annual members have billing zip codes in the peninsula cities and nine percent of casual members signed up in one of the peninsula cities. Ridership between Stations Toole Design Group prepared an online map that shows the number of trips per year between all origin‐ destination (O‐D) pairs for stations in the pilot program. The map shows that Caltrain stations are by far the highest ridership stations on the peninsula. There are 14 O‐D pairs with ridership above 150 trips per year, and all but one have a Caltrain station at one end (the exception is the O‐D pair between Franklin at Maple and the Redwood City Public Library which had a ridership of about 300 trips per year). The other ends of these high‐ridership O‐D pairs tend to be at employment (e.g., Redwood City Medical Center), transit (e.g., Castro Street & El Camino Real), retail (e.g., Mountain View City Hall), and educational (e.g., Stanford in Redwood City) destinations. Mountain View had four O‐D pairs with ridership higher than 1,000 trips per year, the largest being between the Mountain View Caltrain Station and Mountain View City Hall, which is located on Downtown Mountain View’s retail and commercial Main Street. Redwood City’s highest ridership pairs are between the Caltrain station and two different medical centers. Palo Alto’s highest ridership pairs are between the Caltrain stations and mixed‐use neighborhoods with retail, employment, and higher density residential uses. Interestingly there is somewhat high ridership between Palo Alto’s two Caltrain stations (Palo Alto and California Ave), both of which are located in active, mixed‐use neighborhoods.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   Bay Area Bike Share Page | 7 Peninsula Cities Analysis Individual station ridership is shown in Appendix B along with a table summarizing the characteristics of the area surrounding each station. Ridership between Cities Toole Design Group also analyzed ridership between the peninsula cities, shown in Table 7. Intercity ridership can also be viewed on the station‐to‐station online map. The three cities were designed as three independent mini‐systems and are generally operating that way with only a small amount of intercity travel – 496 trips out of 15,089 trips or 3 percent. The highest intercity ridership is 190 trips between Palo Alto and Mountain View and 50 trips between Palo Alto and Redwood City. Approximately two‐thirds of all intercity trips are between two and three miles long, with the remaining one‐third between three and seven miles long. Table 7: Intercity ridership between pairs of peninsula cities (September 1, 2014 to August 31, 2015) Mountain View (% of all Mountain View trips) Palo Alto (% of all Palo Alto trips) Redwood City (% of all Redwood City trips) Mountain View 9,788 98% 190 6% 2 0% Palo Alto 190 2% 2,851 92% 50 2% Redwood City 2 0% 50 2% 1,954 97% San Francisco 3 0% 2 0% 1 0% San Jose 6 0% 0 0% 0 0% Total 9,989 100% 3,093 100% 2,007 100% BABS Member and Intercept Survey In 2014, Bay Area Bike Share conducted an online member survey and an intercept survey. The online survey was administered in four rounds—at the end of January, March, June, and August, 2014 and was sent to all annual members. It received a total of 1,004 responses. The intercept surveys were conducted at stations only in San Francisco and received a total of 118 responses.10 From the online member survey, a large majority of respondents rated their BABS experience as excellent or good (93 percent) and recommended the system to friends or family (also 93 percent).11 Sixty annual members with zip codes from the peninsula cities responded to the survey. When asked 10 Surveys were conducted Market at 4th, Embarcadero at Sansome, San Francisco Caltrain (Townsend at 4th), and Harry Bridges Plaza (Ferry Building). 11 Ibid.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    Bay Area Bike Share Page | 8 Peninsula Cities Analysis what one thing they would improve about the system, the most commonly suggested changes were for more stations, improved rebalancing at existing stations, and equipment changes.12 A breakdown of the most requested changes is included below:  More stations: 24 respondents (40% of peninsula respondents).  Rebalancing, primarily the availability of bikes or spare docks at the Caltrain stations: 11 respondents (18%).  Equipment changes, such as improved consistency with locking and unlocking bicycles, weight of bicycles, gearing, etc.: 9 respondents (15%).  Service changes, such as a longer free‐ride period: 5 respondents (8%).  Maintenance such as brake upgrades, more regular cleaning: 3 respondents (5%).  Improved customer service: 3 respondents (5%).  No suggested improvement: 5 respondents (8%). Note that the annual member survey does not include potential members. There may be people in the peninsula cities that would use the bike share system if there were more stations or if some other potential barrier were removed. Related to bikes on board, the last two of four rounds of the online member survey included a question about bikes on transit to gauge the potential for BABS to reduce bike crowding on trains by encouraging people to use bike share to access the train or their destination. Respondents who said that they were going to or coming from Caltrain or BART when they used BABS were asked: “If bike share were not available, would you have brought your own bike on the train, to use at either end of your [Caltrain or BART] trip?” This question applied to only 15‐percent of respondents, of whom only a small percentage said that they would have brought their bike on the train if BABS was not available. Of people who referred to a Caltrain trip, eight (18‐percent) said that, yes, they would have brought their bike on the train while nine (20‐percent) said they were not sure or did not know.13 These responses indicate that BABS has not had a sizeable effect in reducing the number of bikes on Caltrain trains. Qualitative Performance Review The TDG team conducted interviews with key staff that were involved with the initial pilot program to assess how the system has worked in the peninsula cities. Staff from Redwood City, VTA, SamTrans, Palo Alto, Motivate, and the Metropolitan Transportation Commission (MTC) were interviewed. The Bay Area Bike Share program was started with the idea of the peninsula cities working together to provide a coordinated bike share system. Prior to that, San Francisco had direction from then Mayor Newsom in 2007 to implement a bike share system in the city. However, changes in the bike share 12 BABS Ridership Survey Data. 2014. 13 Ibid.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              Bay Area Bike Share Page | 9 Peninsula Cities Analysis industry had resulted in delays for the system in San Francisco and with the cities of Redwood City, Palo Alto, Mountain View, San Jose and the Air District expressing interest, San Francisco delayed to work towards a coordinated system. MTC, a potential choice to manage a regional system, was not interested in the operations of bike share and so the Air District volunteered to coordinate regional operations. The system was intended to be a pilot for the rest of the Bay Area but no strategic planning was conducted to determine a regional strategy for how bike share could work in different communities or where it should be expanded to (note that MTC started a strategic planning effort in 2014 but that effort was discontinued once the Motivate offer was made available). As a result, staff felt there needs to be more time to demonstrate the performance of a larger system. On the Peninsula, the system was intended to function as a first and last mile solution focused on the Caltrain corridor. There needs to be additional work to determine if there is additional demand within the individual cities and in particular untapped demand to Caltrain. Many employers are asking for connections to Caltrain and while they have not been specific on the mode, bike share could provide this service. Demand The staff at Redwood City has seen an increase in intra‐city trips when one of their stations was relocated to be near a high‐density residential development. The proximity to higher‐density residential areas within the more suburban cities of the Bay Area may be necessary to increase ridership. Stations in Redwood City were moved to be non‐competitive with walk trips. Bike share may need to cover longer distance trips than in urban areas. To increase bike share ridership, low‐stress bicycle infrastructure is needed on the Peninsula. While San Mateo is proceeding with their own bike share system, the City of Sunnyvale might be another city that bike share could expand into with significant demand. Interoperability While the city staff and Motivate staff felt that it was important to ensure that bike share memberships are compatible with different systems, it was undetermined if there was a need for the three peninsula cities to have interoperability (i.e., where the equipment is compatible for use in different cities). Staff felt there would be operational advantages and cost savings to having one vendor work in the Peninsula cities. Motivate staff stated that they would be willing to look into solutions to ensure compatibility with their equipment even if there was a different system on the Peninsula. Equipment and Operations It was recognized that the occurrence of full or empty stations (i.e., either where there is no room to dock a bike or no bike available for pick‐up) may provide a bad user experience, turning off current and future customers. The small system size with only a few stations offers no redundancies for people looking for available bikes or docks. Nevertheless, City staff felt that overall they were pleased with the service that Motivate provided, but that there were some issues with bikes not docking in stations and a general lack of marketing. Staff felt that while the Motivate staff were overall responsive, they were not given the resources necessary to provide a larger outreach effort to attract additional members. Motivate staff stated that there was individual marketing plans for the three Peninsula cities at the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  Bay Area Bike Share Page | 10 Peninsula Cities Analysis beginning of the project. Motivate staff also indicated that should a larger system be put in place, their level of effort with operations and marketing would be commensurate to size of the system. 4. System Planning and Demand Ridership observed in the peninsula cities was compared to that of other suburban cities participating in larger regional bike share programs. These include Alexandria, VA and Bethesda, Rockville, and Silver Spring, MD in the Washington D.C. area’s Capital Bikeshare and Brookline and Somerville, MA in the Boston area’s Hubway system. Table 8 and Figure 1 show the number of stations, system coverage area, and density of stations in each city as well as ridership information reported in terms of the number of trips per bike per day recorded for the most recent year where station‐to‐station data was available14. It shows that total ridership is generally higher in other suburban cities than in the peninsula cities. However, a deeper analysis of this data shows that many trips from these cities are external trips. When trips to and from external destinations are stripped out of the data leaving only internal trips, ridership levels are, in some cases, very similar to those of the peninsula cities. Table 8: Comparison of Suburban Bike Share Systems City Bike Share System Name Number of Stations (Percentage of System) System Coverage (sq.mi.) Station Density (stations / sq.mi.) Total Ridership (trips per bike per day) Internal Ridership1 (trips per bike per day) Mountain View Bay Area Bike Share 7 (10%) 1.28 5.5 0.42 0.42 Palo Alto 5 (7%) 0.76 6.6 0.19 0.18 Redwood City 7 (10%) 1.06 6.6 0.09 0.08 Alexandria, VA Capital Bikeshare 16 (5%) 2.24 7.1 1.34 1.13 Bethesda, MD 14 (4%) 1.86 7.5 0.85 0.61 Rockville, MD 21 (6%) 5.54 3.8 0.15 0.14 Silver Spring, MD 17 (5%) 3.12 5.4 0.63 0.54 Brookline, MA Hubway 4 (3%) 0.94 4.3 1.98 0.32 Somerville, MA 12 (9%) 2.23 5.4 1.30 0.43 1 Includes only bike share trips made within each city. 14 Ridership statistics represent the same 243 day period between April 2nd and November 30th 2013. This represents the time the Hubway system was open in 2013, the most recent year in which station‐to‐station data is available on the Hubway website. The Hubway system closed the remainder of 2013 due to winter weather conditions. Ridership statistics for Bay Area Bike Share and Capital Bikeshare represent the same 243 day period in 2014/2015.                                                   Bay Area Bike Share Page |11 Peninsula Cities Analysis Figure 1: Comparison of System Statistics for Suburban Bike Share Cities.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               Bay Area Bike Share Page | 12 Peninsula Cities Analysis A comparison of internal ridership levels is shown on Figure 2. Alexandria is a clear outlier. The city is removed from Washington D.C. and the other bike share jurisdictions and the majority of trips in Alexandria start or end at one of their Metro stations. Similarly, a lot of trips in Bethesda and Silver Spring start or end near the Metro stations (though not as many as in Alexandria).15 The results indicate that the presence of high‐capacity and frequent mass transit is likely to have an impact on bike share ridership. Land use may also have an impact with cities such as Rockville and Redwood City being more suburban in nature with more spread‐out land use and easy access to parking. Figure 2: Comparison of Intra‐City Bike Share Trip Rates for Suburban Bike Share Cities. The project team explored trends between internal ridership rates and several variables including the number of stations, service area, station density, population and employment density, land use diversity (i.e., jobs per household), and network design (i.e., weighted multimodal intersection density) within the service area.16 Plots of ridership rates against each of these variables are included in Appendix C. There 15 http://eliglazier.com/urban/map.html 16 Population and employment estimates and the land use diversity (jobs per household) and network design (weighted multimodal intersection density) variables are calculating by using the EPA Smart Location Database, which contains data from the 2010 Census: http://www.epa.gov/smartgrowth/smart‐location‐mapping#SLD                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             Bay Area Bike Share Page | 13 Peninsula Cities Analysis appears to be clear trends between the level of ridership and the number of stations, the service area, and to some degree station density and land use diversity. Population density, employment density, city coverage, and network density were less obvious as to their impact on ridership. This is consistent with other research that has shown that population and employment density is less of a predictor of transit and walking rates than factors such as proximity, land use diversity, and network design.17 The number of stations and the service area are closely related, but the service area accounts for where stations may be closer together and overlap in service area. The well‐fitting relationship between ridership and service area suggests that as more stations are added and increase the reach of the system, that overall system ridership also increases. There appears to be a lesser relationship between ridership and station density, at least in smaller systems. Analysis conducted by the National Association of City Transportation Officials (NACTO) of the five largest bike share programs in the United States showed that ridership at individual stations increases as a function of station density.18 It may be that in smaller systems, balancing coverage area and density is more important and that systems need to first consider covering a useful area where trips begin to become too far to walk. At some point in a system’s growth, station density may take over as the more important function in increasing ridership. Density is also important to ensure that stations are close enough together to be convenient to potential users and reachable with a short walk trip. Also, if a station is full or empty, people wishing to return or check out a bike need to be able to access another station nearby. To try to incorporate the importance of both service area and station density, the project team conducted a regression analysis to develop a simple relationship between the two variables that could help inform the impact of changing one or more of these variables. The analysis removed the results from Rockville and Alexandria as outliers to the service area and station density analyses (see Appendix C). The resulting equation is: R internal = 0.17 * SA + 0.017 * SD Where: Rinternal = Internal ridership rate, measured in trips per bike per day, SA = Service Area, measured in square miles, and SD = Station Density, measured in stations per square mile. A plot of the actual and predicted internal ridership rates using this equation is shown on Figure 3. The analysis resulted in an R‐squared value of 0.91 and an F‐test showed that the regression equation is useful in predicting ridership. A t‐test was conducted on the coefficients and found that there is some redundancy in using both service area and station density to estimate ridership, which is logical given 17 Ewing, R. and Cervero, R. Travel and the Built Environment – A Meta‐Analysis. Published in the Journal of the American Planning Association, Vol. 76, No. 3, Summer 2010. 18 NACTO Bike Share Equity Practitioners’ Paper #1, April 2015.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              Bay Area Bike Share Page | 14 Peninsula Cities Analysis they are somewhat related. Comparing predicted ridership to actual ridership (see Figure 3) showed that the equation is reasonably effective at predicting mid‐level ridership but was less accurate at predicting really low (e.g., Redwood City) and really high (e.g., Alexandria) ridership. Figure 3: Comparison of Actual Versus Predicted Internal Ridership Rates The equation can be used to surmise what might happen to system ridership if these variables are increased. It shows that every square mile added to the system area can expect a return in the order of 0.17 trips per bike per day. As well, if density is increased by 1 station per square mile, the resulting impact on ridership is smaller, 0.017 trips per bike per day. Again, at some point in a system’s growth, this may reverse and the impact of station density may take over as a larger driver of ridership, as suggested by the NACTO analysis. If the system ridership level of 1.0 rides per bike per day is a goal for a small city (which would also result in an operating cost reduction of $25 per dock per month – see below), then a system of at least 5 square miles and a density of at least 8 stations per square mile would be required. This is a system of approximately 40 stations assuming the current smart dock system configuration.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   Bay Area Bike Share Page | 15 Peninsula Cities Analysis The next steps will be to create maps of the potential system in each of the peninsula cities based on proposed system size identified above. One of the traits of a successful bike share system is the ability for people to walk to a station that is close to transit, retail, employment centers and other key origins and destinations. MTC’s GIS suitability map and a “walk shed” analysis will be used to determine more specific station locations. 5. Summary of Option 1 – Buying into the Motivate System As part of the Motivate expansion plan, the peninsula cities were given a cost proposal to “buy into” the system and continue operations of the existing equipment and to purchase and operate new equipment in the future. The Motivate proposal to purchase the current and new equipment depends on the size of the station but ranges from approximately $47,000 to $97,000 per station plus a $4,000 per station cost to permit and install new stations. These costs are compared in Table 9 with other U.S. cities that recently signed contracts or received proposals for bike share equipment based on an average station size of 19 docks and 10 bicycles. Table 9: Capital Cost Comparison (based on 10 bike and 19 dock station or equivalent) City Cost Type Technology Type Equipment Provider Number of 10‐Bike Stations Cost per Station Cost per Station (installation) San Mateo, CA Proposed Smart bike Social Bicycles 10 $17,0001 $4,600 West Hollywood, CA Proposed Smart bike Social Bicycles 15 $25,1072 $8,760 Portland, OR Proposed Smart bike Social Bicycles 60 $25,7203 $8,5503 Nextbike Pricing Request Smart bike Nextbike n/a $26,500  ‐ Nextbike Pricing Request Smart dock Nextbike n/a $29,000  ‐ Long Beach, CA Proposed Smart bike Social Bicycles 50 $35,075 $4,500 Santa Monica, CA Proposed Smart bike Social Bicycles 50 $43,0004 Included Los Angeles Metro, CA Proposed Smart dock B‐cycle 80 $47,5005 Included Motivate Proposal Proposed Smart dock Motivate  ‐$55,503.565 $4,000 1 The City of San Mateo is considering 10 to 12 “hubs” using existing bike racks. Therefore cost estimates do not include capital or installation of racks, docks, or kiosks. City of San Mateo staff report, November 16, 2015. 2 The City of West Hollywood is considering purchase of 255 custom bike racks for 20 locations to consist of 1 electronic kiosk, 10 large displays, and 9 small displays. City of West Hollywood Staff report, August 17, 2015. 3 The City of Portland will place bikes at 60 “locations” that include 30 city bike corrals, 19 “hubs” with display panels, and 11 kiosks. Installation costs include $4,814 per station to be paid by City for system start‐up and $3,736 per station to be paid by vendor for launch expenses. 4 The City of Santa Monica purchased 1,000 custom bike racks for 50 locations to consist of 20 electronic kiosks and 30 large and small displays. 5 All stations include electronic kiosks and map panels.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   Bay Area Bike Share Page | 16 Peninsula Cities Analysis Table 9 shows that prices vary depending on the size and specifications of the order. Smart bike systems are generally less expensive to purchase than smart dock systems, although it is noted that as more electronic kiosks were ordered (e.g., in Santa Monica), the price per station started to approach the price of a smart dock system. The Motivate equipment is the highest cost of any of the proposals compared. However, their per station installation costs are in line or lower than the other proposals. Other costs that are difficult to measure are the “start‐up” and “launch” costs associated with creating a new bike share program. As well, there are costs associated with delaying the system while a new program is selected and set up that also need to be accounted for. These are not insignificant costs and should be explored further if a different equipment vendor or operator is to be considered. The Motivate cost proposal includes a $112.50 per dock per month operating fee. This is broken into a $12.50 per dock per month fee to upgrade to the 8D Technologies equipment and $100 per dock per month to operate and maintain the system. The 8D Technologies equipment upgrade cost is a recurring cost that will last indefinitely. The latter O&M cost is reduced if the system hits ridership metrics above 1.0 trips per bike per day. Table 10 compares the base operating cost to those observed in several cities already operating bike share programs and in several cities that have recently received operating cost proposals. Table 10: Operating Cost Comparison City Operating Cost Type Equipment and Operator Type Operator Name System Size Price (per dock per month) Minneapolis, MN Actual (2013) Smart dock Non‐profit Nice Ride Minnesota 1,550 bikes, 3,100 docks $70.55 San Mateo, CA Proposed Smart bike Non‐profit Bikes Make Life Better 50 bikes, no specialty docks $78.951 Boston, MA Actual (2012) Smart dock Private Motivate 700 bikes, 1,400 docks $86.52 Santa Monica, CA Proposed Smart bike Private CycleHop 500 bikes, 1,000 racks $91.26 Denver, CO Actual (2014) Smart dock Non‐profit Denver Bikesharing 700 bikes, 1,250 docks $99.12 Aspen, CO Actual (2014) Smart dock Non‐profit WE‐Cycle 100 bikes, 180 docks $102.56 Motivate Proposal Proposed Smart dock Private Motivate  ‐$112.50 West Hollywood, CA Proposed Smart bike Private CycleHop 150 bikes, 255 racks $112.75 Arlington, VA Actual (2014) Smart dock Private Motivate 460 bikes, 920 docks $112.99 Los Angeles Metro, CA Proposed Smart dock Private Bicycle Transit Systems 1,000 bikes, 1,900 docks $115.34                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       Bay Area Bike Share Page | 17 Peninsula Cities Analysis City Operating Cost Type Equipment and Operator Type Operator Name System Size Price (per dock per month) Montgomery County, MD Actual (2015) Smart dock Private Motivate 500 bikes, 818 docks $117.43 Alexandria, VA Actual (2015) Smart dock, Private Motivate 180 bikes, 250 docks $124.59 Austin, TX Actual (2014) Smart dock Non‐profit Austin B‐cycle 380 bikes, 600 docks $127.45 Washington D.C. Actual (2015) Smart dock, Private Motivate 2,000 bikes, 3,674 docks $145.00 1 The City of San Mateo is planning to use existing bike racks for this system. For comparison, the per dock per month cost assumes 19 docks for every 10 bikes. Table 10 shows that actual operating costs range quite significantly anywhere from approximately $70 to $145 per dock per month. At the lower end, some non‐profits receive in‐kind donations and services to off‐set some operating expenses (such as free or low‐rent warehouse space, pro‐bono legal costs, marketing services, etc.). As well, there are often less stringent operating performance standards in some non‐profit run systems. There is very little information available about the cost to operate smart bike systems and in any case, most major city smart bike systems have been operating for less than a year. Operating costs are typically negotiated at the time of contract and will vary greatly depending on the service levels specified by the program owner. It is difficult to compare across cities without knowing the service levels that these systems operate at and in many cases, this is not available. It is also unclear what service levels Motivate is proposing at this cost. This will need further investigation. Nevertheless, the Motivate proposal is towards the upper end of the range of actual and proposed operating costs, and within a few dollars of the top of the range of operating costs for private bike share operators. The Motivate cost proposal will be more competitive if ridership levels reach 1.0 trips per bike per day in which case it will drop to $87.50 per dock per month compared to $112.50 per dock per month. Over the long run, operating costs far outstrip equipment costs and so it is prudent to consider cost impacts over a longer term. For example, for a 40 station / 760 dock bike share system operating over a 5 year period, the Motivate system would cost approximately $2.4 million for equipment and installation and approximately $5.1 million for operations and maintenance (approximately $1 million per year). This would reduce to $4.0 million if ridership can be maintained above 1.0 trips per bike per day (approximately $800,000 per year). The demand equation and the proposed Motivate costs were used to conduct some scenario planning to show the link between system costs, system ridership, and productivity. A 40 station / 400 bike / 760 dock system (Scenario 1) and a 60 station / 600 bike / 1,140 dock system (Scenario 2) were modeled and the results shown in Table 11 in terms of the capital cost per trip (over the five‐year useful life of the equipment) and the operating cost per trip. Table 11 shows that increasing the average ridership rate                                                                                                                                                                                                                                                                                                                                                                                                                   Bay Area Bike Share Page | 18 Peninsula Cities Analysis reduces the per trip capital and operating costs. This impact is enlarged with the reduced operating cost rates proposed by Motivate when ridership levels of 1.0 and 1.5 trips per bike per day are reached. Table 11: Comparison of Capital and Operating Cost Scenarios System Size Lower than Projected Ridership Projected Ridership Higher than projected Ridership Scenario 1 – 40 stations / 400 bikes / 760 docks (service area = 5.0 sq.mi.; station density = 8 stations / sq.mi.) Trips per bike per day 0.5 1.0 1.5 Annual trips 73,000 146,000 219,000 Five‐year capital cost $2,400,000 $2,400,000 $2,400,000 Capital cost per trip (over five‐year useful life of equipment) $6.58 $3.29 $2.19 Operating cost rate (per dock per month) $112.50 $87.50 $62.50 Operating cost per year $1,026,000 $798,000 $570,000 Operating cost per trip $14.05 $5.47 $2.60 Scenario 2 – 60 stations / 600 bikes / 1,140 docks (service area of 7.5 sq.mi.; station density = 8 stations / sq.mi.) Trips per bike per day 0.9 1.4 1.9 Annual trips 197,000 307,000 416,000 Five‐year capital cost $3,600,000 $3,600,000 $3,600,000 Capital cost per trip $3.65 $2.35 $1.73 Operating cost rate (per dock per month) $112.50 $87.50 $62.50 Operating cost per year $1,540,000 $1,197,000 $855,000 Operating cost per trip $7.81 $3.90 $2.06                                                                                                                                                 Bay Area Bike Share Page | 19 Peninsula Cities Analysis Appendix A: Monthly Ridership Rates by City Trips per Bike per Day Redwood City Palo Alto Mountain View September, 2014 0.05 0.20 0.43 October, 2014 0.05 0.19 0.44 November, 2014 0.04 0.15 0.32 December, 2014 0.03 0.07 0.22 January, 2015 0.07 0.15 0.33 February, 2015 0.07 0.12 0.35 March, 2015 0.08 0.14 0.40 April, 2015 0.09 0.15 0.38 May, 2015 0.07 0.16 0.39 June, 2015 0.12 0.22 0.46 July, 2015 0.14 0.27 0.47 August, 2015 0.11 0.21 0.49                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     Bay Area Bike Share Page | 20 Peninsula Cities Analysis Appendix B: Station Characteristics Analysis Station Jurisdiction Annual Ridership (trips)1 Station Photo Station Characteristics Caltrain Station Other Transit High Density Residential Commercial / Retail / Restaurant Activity Other Attractions Bicycle Facility Type Other Notes Kaiser Hospital (Old Location) Redwood City 380 No No No Medical offices Kaiser Permanente Medical Center Low‐volume street Station was initially not very visible located at the back of the medical center due to construction. Kaiser Hospital (New Location) Redwood City N/A N/A No No No Big box retail Kaiser Permanente Medical Center Buffered bike lane Station in a much more visible location on Veterans Way Mezes Redwood City 357 N/A No No Yes No No Bike lane Station recently moved to be located near the new Radius development Redwood City Caltrain Station Redwood City 1,694 Yes Yes No Restaurants / retail nearby No None Station has terrific visibility and is right on the Caltrain platform Redwood City Public Library Redwood City 216 No No No Restaurants neaby Public Library None Very visible station, on library plaza San Mateo County Center Redwood City 314 No No No Restaurants, theater nearby Courts, municipal offices, history museum Bike Lane Offset 1 block from “main drag”, near lots of parking lots Sequoia Hospital Redwood City No Yes No No Hospital Low‐volume street Stanford in Redwood City Redwood City 872 No Yes No No Hospital None California Avenue Caltrain Station Palo Alto 896 Yes Yes Yes Retail/Restaurant, “main street” No Bike lane On side street right by station‐ visibility could be better Cowper at University Palo Alto 1,152 No Yes No Retail/Restaurant, “main street” Office buildings None                                                                                                                                                                                                                                                                                                                                                                                                                        Bay Area Bike Share Page | 21 Peninsula Cities Analysis Palo Alto Caltrain Station Palo Alto 2,016 Yes Yes Yes Restuarants Bike lane Right across from station entrance Park at Olive Palo Alto 793 No No No Offices Bike lane University and Emerson Palo Alto 1,329 2.5 blocks Yes No Retail/Restaurant, “main street” None Super visible, right on main commercial street, right outside large bike shop, Castro Street at El Camino Real Mountain View 2,346 No Yes Yes Some strip mall retail, some main‐street style retail Offices None Charleston Park / North Bayshore Area Mountain View No Yes No Commercial Office park Google Bike lane Middlefield Light Rail Station Mountain View No Yes No No Suburban office park, light rail station Mountain View Caltrain Station Mountain View 7,408 Yes Yes No Retail/Restaurant, “main street” Mountain View City Hall Mountain View 3,307 No Yes Yes Retail/restaurant City Hall, offices None San Antonio Caltrain Station Mountain View 2,104 Yes Yes Yes A few small strip mall developments Strip mall offices None San Antonio Shopping Center Mountain View 2,168 No Yes No Big box retail, suburban office buildings Low‐volume street Notes: 1 Trip data is for the period from September 1, 2014 to August 31, 2015 and represents total trips to and from the station.                                                   Bay Area Bike Share Page |22 Peninsula Cities Analysis Appendix C: Comparison of Internal Bike Share Ridership with Service Area Characteristics                            Bay Area Bike Share Page |23 Peninsula Cities Analysis                            Bay Area Bike Share Page |24 Peninsula Cities Analysis                            Bay Area Bike Share Page |25 Peninsula Cities Analysis                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       Attachment C MEMORANDUM Project: Bay Area Bike Share – Peninsula Communities Strategic Plan Subject: Deliverable 2 – Business Case Analysis and Summary of San Mateo Pilot Program Date: January 29, 2016 To: Melissa Reggiardo, SamTrans From: Sean Co and Adrian Witte, Toole Design Group CC: Peninsula Bike Share Working Group This memorandum is the second of a series of memoranda to help Redwood City, Palo Alto, and Mountain View (referred to as “the peninsula cities”) make their decision on how to move forward with bike share. It includes: 1. A review of the “business case” for bike share in the peninsula cities – summarizing what function bike share can play, who are the most likely users of the system, and how bike share could address different city goals. 2. System planning for expanded programs in each of the peninsula cities and an exploration of population densities, diversity, and income levels in the proposed service areas. 3. A summary of the proposed San Mateo pilot bike share program to explore whether this program may be expandable to the peninsula cities as an alternative to the Motivate program. 4. Possible funding mechanisms that might be available to the peninsula cities including MTC capital funds and a review of funding mechanisms used in San Mateo and other places. 1. Business Case for Bike Share This section builds on the existing conditions review and analysis conducted as part of the first memorandum to summarize the business case for bike share on the peninsula. It looks at what functions bike share could play, who would be the expected users of the program, and how bike share might be able to address different city goals.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     Bay Area Bike Share Page | 2 Peninsula Cities Analysis Bike Share Functions and Users Bike share in the peninsula cities currently, and will continue to serve primarily a commuting function. The greatest opportunities are to connect people to mass transit such as Caltrain as part of larger commute trips or to connect local residents to employment centers within the same city or in nearby cities. There are particular benefits to Caltrain including increasing the catchment area of stations, reducing the need for private bicycles to be brought on board, and the opportunity to provide an integrated transit solution that offers an alternative to private vehicle travel. The program could also provide some ancillary functions for local residents, e.g., connecting neighborhood commercial districts, providing recreational riding opportunities, connecting student housing to city services, etc. Bike share programs in the peninsula cities are not expected to serve a large tourist or visitor market, primarily because the number of tourists and visitors to the peninsula is much lower than in other parts of the Bay Area. This does take away a potential revenue stream from casual users that in other cities makes up over 50‐percent of user revenues. This means that a greater emphasis on finding alternative funding sources or better monetizing local users will be important. Primary Functions of a Peninsula Bike Share Program  A first and last mile connection to transit, particularly to mass transit. Existing ridership patterns show that the most frequent trips in the pilot program are to and from the Caltrain stations. Bike share can increase the catchment area of a station (i.e., the bikeable distance around a station is much larger than the walkable distance). If bike share could be integrated into the transit fare structure, this would further reduce barriers to using the system and could provide a full transit solution to compete with private automobile travel.  Reduce demand for long‐term secure bicycle parking and the need to bring private bicycles on board Caltrain. The 2014 On‐Board Transit Survey Final Report showed that 17‐percent of passengers access Caltrain by bike.1 Providing a network of public bicycles that users can dock and “walk away” removes the personal risk of bike theft and could reduce the amount of secure, long‐term bicycle parking that Caltrain would need to provide at stations. According to the San Francisco Bicycle Coalition, since 2004, the number of passengers bringing their bikes on board Caltrain has almost quadrupled.2 Expanding bike share may alleviate some of the demand to bring bikes on board.3 1 Caltrain 2014 On‐Board Transit Survey Final Report. http://www.caltrain.com/Assets/ MarketDevelopment/pdf/Caltrain+Origin+$!26+Destination+Survey+2014.pdf 2 San Francisco Bicycle Coalition. Caltrain. Accessed Dec. 15, 2015. https://www.sfbike.org/our‐work/regional‐ advocacy/caltrain/ 3 One conclusion of the ‘BABS Membership Survey’ was that the Bay Area Bike Share, at least as a pilot program, “has not had a sizeable effect in reducing the number of bikes on Caltrain or BART trains.”                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         Bay Area Bike Share Page | 3 Peninsula Cities Analysis  Provide a connection to major employment centers, particularly for those commuting from the same or the next city. There are already some “super‐users” of the pilot program that make regular commute trips within the same city or to stations on the edge of the next city. As the system is expanded to cover more employment centers and moves towards the edges of adjacent cities, there is the potential for more commuting trips, and for associated trip‐making throughout the day (e.g., running errands, going for lunch, recreational rides, etc.). Bike share could become a Travel Demand Management (TDM) offering for employment centers in the peninsula cities, which could also provide a funding opportunity for the system. Ancillary Functions of a Peninsula Bike Share Program  Introduce new users to bicycling. Bike share provides an easily accessible network of bicycles useful for those that do not have access to a private bicycle or that are looking to try bicycling. Bike share systems and bicycling have social elements and social media associated with them and many people are introduced to bike share through friends and visibility of the program. A more complete and comfortable infrastructure network may be needed to attract or retain this group of potential users.  Economic development and increased spending in retail and commercial areas. Bike share can be a way to connect neighborhood centers and in particular provide access to downtowns and retail / commercial districts where parking is constrained. Other cities have found bike share to create additional local spending at businesses located near stations.  Student mobility. Although stations will not be provided on the main Stanford campus, there will be stations on nearby properties. As well, bike share could be provided at off‐campus student housing and be a means to connect students to city services, activity centers, and recreational destinations.  Recreational trip making. This is not expected to be a large group of users, but for certain station locations, there may be a potential trip type. For example, there is anecdotal evidence from hospital campuses that have bike share stations that they are used by visitors spending long hours at the campus and as a stress relief tool. Bike share in general can have a public health benefit by increasing physical activity. Minor Functions of a Peninsula Bike Share Program  Tourist and visitor transportation. Bike share is unlikely to serve a large tourist and visitor function, primarily because there are fewer tourists and visitors than in other parts of the Bay Area. This is a significant user group and revenue source in many other cities and will need to be considered in the financial model. Needs to Support the Bike Share Program  Improved and expanded bikeway network. There are certain users that will use the bike share system regardless of the amount and type of infrastructure. But there is a large potential user                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  Bay Area Bike Share Page | 7 Peninsula Cities Analysis to the Mountain View City Hall station, over 900 to the Castro Street & El Camino Real station, 600 to the Evelyn Park & Ride station, and even 100 were taken to the San Antonio Shopping Center. Map (3) Trips starting from San Francisco Caltrain station by member zip code This map shows the zip code (for Peninsula cities only) of annual members that made a trip originating from one of the two bike share stations at the San Francisco Caltrain station. What this map proximates is how many people that use Caltrain to travel from the Peninsula to San Francisco then use bike share to get to their final destination. There is no way to tell if these users also used bike share to access the Caltrain station at the Peninsula end of their trip. It shows that there were a total of 16,658 bike share trips made from the San Francisco Caltrain bike share stations by annual members residing in the Peninsula cities. This represents approximately 45 trips per day (and only includes annual members that chose to enter their zip codes). The map provides a breakdown of that number by zip code, e.g., there were 872 bike share trips taken from the San Francisco Caltrain bike share stations by annual members that live in zip code 94041 (part of Mountain View). One of the interesting findings of this map is the number of members that live in San Mateo and other Peninsula cities that do not currently have bike share. One of the uses for this map is to understand how many people would be impacted by changes to the current system, e.g., removing bike share altogether or going with a different system that could not be integrated with the Motivate system that would require these users to potentially have two bike share memberships to two different programs. 3. System Planning and Demographic Analysis The analysis documented in the first memorandum recommended a system size of 35 to 40 stations to increase ridership towards the target of 1.0 trip per bike per day. Based on that recommendation the project team placed stations at potential locations in Redwood City, Palo Alto, and Mountain View to reach the target coverage and station density. TDG considered the heat map prepared previously by MTC, large employment centers, commercial, retail, and entertainment destinations, civic destinations, and access to transit in placing stations. Note that these locations are intended to be general (e.g., to the intersection level). Additional work will be required to identify precise locations for each station considering available right‐of‐way, adjacent property interest, and public feedback. Potential station locations are shown on the online map accessed at: https://ennslisa.github.io/BayAreaBikeshareDemographics.html Based on these stations placements, the service area of the system was calculated by drawing a 1/4 mile radius circle around each potential bike share station (to approximate the distance that a potential bike share user would walk to access a station) and joining these circles where there was overlap. A series of maps were created to explore the following demographics of the proposed service area including: (1) population density; (2) diversity; and (3) income.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            Bay Area Bike Share Page | 8 Peninsula Cities Analysis Map (1) Population Density This map shows population density in the potential service area and was created using ESRI population estimates for 2015 based on the 2010 census. The map shows that there is potential for an expanded program to serve higher population density areas of the peninsula cities, which will increase the primary functions of the program as a connection to transit and a potential commuting option to employment centers. Map (2) Diversity This map shows diversity in the potential service area as calculated by ESRI’s Diversity Index, a measure of the percentage likelihood that two random people chosen from the same area would be of different races. The average Diversity Index for Mountain View is 76‐percent, for Palo Alto is 59‐percent, and for Redwood City is 85‐percent. Map (3) Income This map shows median household income in the potential service area. The average household income in the entire area is approximately $91,000 for Mountain View, $114,000 for Palo Alto, and $64,000 for Redwood City. Figures are ESRI estimates for 2015 based on the 2010 census. 4. Review of San Mateo Pilot Program The City of San Mateo completed a bike share feasibility study in 2013. The City was originally left out of the Bay Area Bike Share pilot program and the subsequent Motivate expansion of the program. More recently, the City was approached by Social Bicycles (SoBi) to implement a pilot program of their own featuring smart bike technology. Because SoBi had already been vetted through an extensive RFP process and awarded the contract to establish the City of Santa Monica’s Breeze bike share program, staff at the City of San Mateo reviewed this information and recommended to Council in November 2015 that they be granted a sole source contract to establish a 50 bicycle smart bike system. Smart bike systems, as opposed to smart dock systems such as the Motivate program, provide the locking mechanism on the bicycle itself, which offers greater flexibility in where the bicycle can be parked. SoBi also offers an a‐la‐carte menu of station options. San Mateo is purchasing only the bicycles and will use regular bike racks to serve as pseudo‐stations. There are also options to purchase custom built bike racks to give the station a unique look to other street furniture and an option to purchase kiosks. Because bikes are reserved via mobile phone or online, there is little need for kiosks except at stations that are likely to receive high casual usage. Because of these choices, the cost of providing stations is relatively low meaning that creating more stations is possible for the same or lower price. About the System Based on discussions with Kathy Kleinbaum at the City of San Mateo and information contained in the City’s Administrative Report dated November 16, 2015, the following describes some of the key features of the proposed bike share system:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           Bay Area Bike Share Page | 9 Peninsula Cities Analysis  The pilot will include 50 smart bikes distributed at 10 to 12 hubs.  The program will be named “Bay Bikes” and the system will be branded using a light blue color that will be distinguishable from the Motivate program.  The City used TDM funding allocated from developers to purchase the bicycles. The City did not take up the option to purchase custom bike racks or kiosks. They will use regular U‐racks with a vinyl wrap to distinguish them from other city bike racks.  The City will own the program and its assets. A local non‐profit called Bikes Make Life Better will operate and maintain the system performing day‐to‐day operations such cleaning the stations, repairing the bikes, and rebalancing the bikes between stations. SoBi will be responsible for creating and maintaining the website and mobile phone‐based membership and reservation system as well as performing revenue collection and disbursement.  The San Mateo program will have a different pricing structure to the Motivate system. Users can sign up for a membership for $15/month with which they receive one hour of free riding time per day. For casual users, and annual members exceeding their one hour of riding time, the cost is $5/hour, prorated to the nearest minute. There is a $3 fee for locking the bike outside a hub and a $1 credit for returning a bike that is parked outside to a hub. There is also a $100 fee for parking the bicycle outside of the service area (likely to be the City boundaries).  The City is seeking sponsorship. They are offering the bike basket and online assets to a potential sponsors. Other bike elements will likely be retained for system branding.  Currently, a user travelling between San Mateo and one of the BABS pilot cities would need to maintain two separate bike share memberships to be able to use bike share in both cities.  The City is intending to pilot the program for three years and evaluate the program based on overall usage and customer experience. At the end of the pilot term, the City can decide to continue the program, expand it, or to terminate it.  The City is hoping to launch the system in May 2016. Potential for Expansion of the San Mateo Bike Share Program The introduction of a second bike share system to the Peninsula offers some opportunities and some challenges. There may be an opportunity to expand this system to the other peninsula cities to create a peninsula region bike share system. Opportunities  Regional Expansion – San Mateo has kept open the option for regional expansion to other cities. They have named the program “Bay Bikes” to leave open this possibility and to create a regional brand. They are also open to different regional governance models including the Cities working together under an MOU or turning the system over to a non‐profit or some other model.  Cost – the a‐la‐carte nature of SoBi’s pricing structure means that per station capital costs are lower. The cost per station is reduced by purchasing fewer kiosks and having the flexibility to use regular bike racks in place of customized docking points.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           Bay Area Bike Share Page | 10 Peninsula Cities Analysis  Flexibility – smart bike systems allow users to park bicycles at or near hubs or at any location outside of a hub for an additional fee. This provides more flexibility in suburban settings where destinations are more spread out and would require a large number of stations. Challenges The following aspects of the San Mateo system may hinder expansion capabilities.  Inter‐operability – Smart dock bikes cannot be locked at smart bike hubs (as they need a custom docking point to lock to). However, smart bike systems can be locked at any bike rack in a smart dock area. Because of the distances between San Mateo and the other systems, it is unlikely to be an issue that a smart dock bike would be ridden between systems. However, as program areas expand over time, this may become more of an issue.  System Integration and Different Pricing Structures – Users of the San Mateo system will need to maintain two memberships if they also use the Bay Area Bike Share program in another city. SoBi and Motivate may over time offer reciprocal membership where a membership card for one system may provide access to the other system. However, it will still be necessary for users to maintain two accounts or be aware of the two different pricing structures. It would also require some form of revenue sharing agreement between the two companies. 5. Future Funding Opportunities MTC has continued to express interest in funding bike share equipment. It is expected that in the next few months MTC will release a regional call to fund bike share programs. MTC has $4.5 million in Congestion Mitigation and Air Quality (CMAQ) funds that can be used to purchase capital equipment for bike share. As is the case with any bike share program funded under CMAQ, operations and maintenance funds are not eligible. It is expected that these funds will be released in two phases with approximately $2.25 available in the first phase. While MTC is currently developing the program, it will most likely be a competitive program with priority given to communities that have done planning or feasibility studies. It is expected that a draft of this call will be released in March of 2016. There is also activity at a national level to clarify funding for bike share programs. The Bike Share Transit Act, introduced to Congress at the beginning of 2016, would make federal funds for bike share available through the Federal Transit Administration (FTA) and make it clear that bike share projects and associated equipment are eligible for federal transit funds and CMAQ. This may change some of the eligibility of projects and may allow operations and maintenance as an eligible expense. While the Bay Area Air Quality Management District (BAAQMD) funded the initial Bay Area Pilot Program, they have not made a clear determination if future Transportation For Clean Air (TFCA) funds will be available to fund bike share programs. MTC and BAAQMD conducted an evaluation of bike share under the Climate Initiative Program and bike share had a high cost per ton of CO2 reduced and minimal reductions of other criteria pollutants. The program evaluates projects based on the cost effectiveness of improving air quality and while bike share may have other benefits, the Climate Initiatives evaluation                                                                                                                                                                                                                                                                                                                                                                                                                           Bay Area Bike Share Page | 11 Peninsula Cities Analysis showed high capital costs mostly due to a lack of any other subsidy such as sponsorship and the upfront capital costs associated with the program. There are many other funding opportunities that could be explored further. Some of those that have been successfully implemented elsewhere include:  Travel Demand Management (TDM) and developer traffic impact fees going towards purchase of bike share equipment, as is being used to fund San Mateo’s pilot program.  Seeking a system sponsor to help fund capital or operations and maintenance. Corporate memberships could be offered as part of a sponsorship deal or independently.  Integrating bike share stations into other infrastructure improvements as part of other capital projects such as roadway reconstructions, trail construction, parking improvements, Caltrain station improvement plans, etc.  Revenue sharing agreement with transit providers that integrate bike share into the transit fare structure (this has not yet been implemented in the United States).  Crowdsource funding has been used in Kansas City to fund bike share stations in communities that want to expedite bike share in their neighborhoods.  There may be other grants available to fund different elements or specific programs related to bike share, e.g., public health and equity partnerships and grants may be available.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            Attachment D - MEMORANDUM Project: Bay Area Bike Share – Peninsula Communities Strategic Plan Subject: Deliverable 3 – Program Options Date: March 15, 2016 To: Melissa Reggiardo, SamTrans From: Sean Co and Adrian Witte, Toole Design Group CC: Peninsula Bike Share Working Group This memorandum is the third of a series of memoranda to help Redwood City, Palo Alto, and Mountain View (referred to as “the peninsula cities”) make their decision on how to move forward with bike share. It includes: 1. A summary of four potential system options that the peninsula cities could pursue including a streamlined, no‐gap‐in‐service scenario; a streamlined, new vendor scenario; and expanded system options with either the current vendor or a new vendor. 2. A review of procurement options to understand potential gaps in service and how to work regionally if a new vendor or operator is to be procured. 3. A review of potential regional governance options for the peninsula communities to move forward with a coordinated program. 4. Funding options including a review of how cities might be able to fund capital for their systems and short‐and long‐term operations. 1. Service Scenarios The Peninsula Bike Share Technical Committee discussed possible service options for bike share service in their communities. Firstly, in the interim, that the current pilot program be “streamlined” in each city. In Redwood City, staff felt that streamlined service would remove the two lowest performing stations to operate with fewer, well‐performing stations. In Palo Alto and Mountain View, staff felt that streamlining the system could occur by relocating under‐performing stations to better performing locations and/or adding a few new stations at key attractions and destinations.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Bay Area Bike Share Page | 2 Peninsula Cities Analysis Longer term, the peninsula cities might look to greatly increase the size of the program to between 30 to 40 stations to add significant utility to the program. This size increase comes with much greater capital and operating costs. Under any service scenario, any new equipment and operations would need to be funded by the cities and sources for this funding would need to be identified. The larger scale program increases this commitment. The general consensus of the Technical Committee is that there are already two bike share equipment vendors operating on the peninsula and it seems confusing and challenging to introduce a third (or more) vendors. That means that the peninsula cities will chose between the Motivate and the Social Bikes equipment assuming this fits with their procurement protocols. However, the cities can decide between one of the existing vendors (Motivate or Bikes Make Life Better) or select a new vendor or vendors to operate their systems. Distilling all of this information, four service options were considered for cost analysis: 1. Streamlined service, current vendor: streamline the number of stations in each city, purchase any additional equipment needed, and pay Motivate to continue operations. This option results in no gap in service. Cost estimates are based on quoted rates from Motivate (assuming less than 1.0 trip per bike per day). 2. Streamlined service, new vendor: streamline the number of stations in each city, procure a new equipment vendor (Social Bikes) and operator to take over operations. Cities could add on to the Bikes Make Life Better operating contract with San Mateo or procure a different operator. Cost estimates are based on capital costs quoted by Social Bikes and operating costs procured by the City of San Mateo. 3. Expanded service, current vendor: applying a target size of 35 stations to each city, this scenario would continue with the current vendor and operator. This option results in no gap in service. Cost estimates are based on quoted rates from Motivate (assuming less than 1.0 trips per bike per day). 4. Expanded service, new vendor: applying a target size of 35 stations to each city, this scenario would procure a new vendor (Social Bikes) and operator. Cities could add on to the Bikes Make Life Better operating contract with San Mateo or procure a different operator. Cost estimates are based on capital costs quoted by Social Bikes and operating costs procured by the City of San Mateo.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Bay Area Bike Share Page | 3 Peninsula Cities Analysis System Plans Service areas were developed for each city for the full build‐out scenario by applying stations to meet target coverage and station densities and then adjusted for key attractions and destinations. City staff were asked to identify what a streamlined service would look like in each of their cities. Mountain View, as part of planning for initial Bay Area pilot program had identified 11 station locations that they took through their internal approval process and proposed to the pilot program. The pilot launched with only 7 station locations including 2 that were the recommendation of the operator. The City has since relocated these 2 stations to their preferred locations. A streamlined service in Mountain View would include the existing 7 locations and add 4 stations as shown on Figure 1. In Palo Alto, streamlined service would include 13 stations ‐the 5 existing stations, 5 stations identified for private funding, and 3 new stations (for which the City of Palo Alto submitted a TFCA grant application in March 2016). These are shown on Figure 2. The new stations will add density in Downtown Palo Alto and at the California Avenue Caltrain station and provide stations directly serving the Stanford Medical Center and the Stanford Research Park. Staff suggested that the most effective way to streamline service in Redwood City may be to actually reduce the system to the best performing stations. This would help boost ridership metrics and reduce operating costs. The streamlined system would reduce to 5 stations as shown on Figure 3. Staff indicated that they would be willing to talk to Motivate to allow their 2 unused stations to be transferred to Mountain View and/or Palo Alto. System Costs Capital and net operating costs were calculated for each of the scenarios describe above. Table 1 shows a breakdown of capital (including installation) costs, operating costs, estimates of potential user revenues (from membership and overage fees), and net operating costs for each city and for the collective program. Capital and O&M costs are generally well known and are outlined in the table footnotes. User revenues are more difficult to calculate are a combination of annual and casual membership sales and usage fees. Annual and casual membership sales are calculated as the number of annual or casual members (assumed to grow from existing membership levels in proportion to the number of stations in the system) multiplied by the cost of an annual or casual membership ($88 or $9 respectively). Usage fees are calculated first by estimating the number of annual trips from the equations developed as part of Deliverable 1 (and assuming a station density of 8 stations per square mile). Trips are then broken down into annual and casual member trips based on existing ratios in each city. Annual member trips are multiplied by the average overage fee recouped per annual member trip for the pilot program of $0.12 per trip. Casual user trips are multiplied by the average overage fee recouped per casual user trip for the pilot program of $8.79 per trip.                                                     Bay Area Bike Share Page |4 Peninsula Cities Analysis Figure 1: Streamlined (Phase 1) and Full Build‐Out Scenarios for Mountain View Bike Share.                                                     Bay Area Bike Share Page |5 Peninsula Cities Analysis Figure 2: Streamlined (Phase 1) and Full Build‐Out Scenarios for Palo Alto Bike Share.                                                     Bay Area Bike Share Page |6 Peninsula Cities Analysis Figure 3: Streamlined (Phase 1) and Full Build‐Out Scenarios for Redwood City Bike Share.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             Bay Area Bike Share Page | 7 Peninsula Cities Analysis Table 1: Cost Scenarios (assumes one year of operations) OPTION 1 Streamlined service, current vendor (no‐gap‐in‐service) OPTION 2 Streamlined service, new vendors OPTION 3 Expanded service, current vendor OPTION 4 Expanded service, new vendors CAPITAL Motivate Social Bikes Motivate Social Bikes Mountain View $180,000 Receive 1 station from RWC, purchase 3 new stations $335,000 Purchase 11 stations from new vendor $1,665,000 Purchase 28 new stations $1,075,000 Purchase 35 new stations Palo Alto $415,000 Receive 1 stations from RWC, purchase 7 new stations $400,000 Purchase 10 stations from new vendor $1,785,000 Purchase 29 new stations $1,075,000 Purchase 35 new stations Redwood City ‐ Give 1 station to MV and 1 station to PA $150,000 Purchase 5 stations from new vendor $1,665,000 Purchase 29 new stations $1,075,000 Purchase 35 new stations Total Capital Cost $595,000 $885,000 $5,115,000 $3,225,000 OPERATIONS (REVENUE) Motivate New Operator Motivate New Operator NET COST $280,000 $250,000 $900,000 $735,000 Mountain View ($65,000) ($65,000) ($290,000) ($290,000) $215,000 $185,000 $610,000 $445,000 $335,000 $290,000 $900,000 $735,000 Palo Alto ($115,000) ($115,000) ($565,000) ($565,000) $220,000 $175,000 $335,000 $170,000 $130,000 $130,000 $900,000 $735,000 Redwood City ($20,000) ($20,000) ($285,000) ($285,000) $110,000 $110,000 $615,000 $450,000 Net Operating Cost (per year) $545,000 $470,000 $1,560,000 $1,065,000 Notes: 1. Motivate retains ownership of existing stations in the pilot cities, but there is no capital cost to the peninsula cities to retain these stations. 2. New stations cost $55,503.56 per station plus a $4,000 per station installation cost based on Motivate quoted prices for a 19 dock station and 10 bikes per station. 3. All new equipment would be required if Social Bikes was selected. New stations cost $33,550 per station plus $4,000 per station for installation based on prices quoted by Social Bikes for an equivalent 10 bike hub with 19 customized bike racks and a kiosk. Kiosks provided at one‐third of stations. A $10,000 start‐up cost for website design is also included in this price. 4. Operating cost of $112.50 per dock per month based on quoted rates from Motivate, assuming less than 1.0 trips per bike per day. 5. Operating costs based on rates procured by the City of San Mateo. This includes a $150 per bike operating cost, plus a $100 per bike per year allowance for replacement parts, a $2,500 per month software license fee, an $8 per bike per month platform connectivity fee, and a $50 per kiosk per month kiosk connectivity fee.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          Bay Area Bike Share Page | 8 Peninsula Cities Analysis 2. Procurement Options Staying with Motivate requires no procurement (Options 1 and 3). For this reason there is no gap in service under these options. For the other service options where a new vendor (either for equipment, operations, or both) needs to be procured, there is likely to be some downtime between the end of one service and the start of another. Cities could procure individually or in some collective format. Equipment and operators could be procured separately in each city. Procuring separately for equipment could create the scenario of different, incompatible vendors between cities. However, procuring separate operators could be of benefit to each city to allow them to prioritize different price points, service levels, and other features. For example, Mountain View may want to select a private operator with high service levels, but at a higher price point than Redwood City, who may be prepared to accept lower service levels and a non‐ profit operator for a lower cost. Based on discussion with staff at the City of San Mateo, the City was able to procure Social Bikes equipment without having to issue an RFP because of a number of factors. Firstly, another charter city (Santa Monica) went through a similar evaluation process to select Social Bikes as their vendor; secondly, the amount of the procurement was relatively low (less than $100,000); and lastly, they had a cost proposal from Motivate to compare to so the project was not sole source per se. These factors allowed staff to recommend to Council that the City purchase equipment from Social Bikes. These same opportunities may exist in the other Peninsula cities too. Another way to coordinate procurement would be for an agency to lead the procurement with others joining in. The City of Palo Alto has expressed interest that they would take the lead on procurement if necessary. 3. Regional Governance Options There are any number of ways for a bike share system to be organized and each city or region evaluates their specific needs to determine which model works best for the funding, geographical, and political environments of that area. A series of questions were designed to narrow down the potential governance options. This flow chart is shown on Figure 4.                                                Bay Area Bike Share Page |9 Peninsula Cities Analysis Figure 4: Peninsula Bike Share Governance Structure Options Flowchart.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    Bay Area Bike Share Page | 10 Peninsula Cities Analysis The flow chart shows that there are several viable options to create a regional bike share program in the Peninsula cities. These include:  Cities work together under a Memorandum of Understanding (MOU) framework. This is the model used by the Boston area’s Hubway system and for the Capital Bikeshare program in the Washington, D.C. area. Under this structure, an MOU would be developed between the participating cities that outlines collective program decisions such as system branding, pricing structure, revenue collection and distribution, marketing and fundraising responsibilities, etc.  Creating capacity outside of the city structures through the creation of a new non‐profit organization to take on responsibility for the bike share program. The non‐profit may also take on operations or contract out these services. This is the model used for Nice Ride Minnesota and Cincinnati Red Bike (the former operating in multiple cities and the latter operating in multiple cities across state lines).  Caltrain owned and operated program. This model is similar to the structure being used by LA Metro in Los Angeles where an agency that spans the entire region takes on the responsibility of the bike share program. Caltrain, although present in each community, does not have as much influence over the whole system area as would a regional planning or transit agency. Also, this model depends on interest and capacity within Caltrain that may not exist. Further discussions would be needed to pursue this model. Of the two most likely options, a collective MOU structure is the most expedient, maximizes control and involvement for each of the cities, and is the most cost‐effective option. However, it relies on all of the participating cities to be on‐board with this model and commit the necessary staff and financial resources to operate the program. The peninsula cities have a good history of working together cooperatively. The non‐profit model would take the financial and public image risks of the program away from the city agencies. Non‐profit operators also tend to be able to manage costs and can attract the greatest variety of funding sources. However, a new non‐profit would take considerable time to establish and would turn over control of the program. Staff capacity for the non‐profit would need to be built and a funding source established to build this capacity. As we have seen in the previous deliverables, the data suggests that the three (or more) systems working together offers benefits to bike share members on the Peninsula and in the rest of the region. The decision to work together to provide a unified bike share system ultimately rests with the individual cities. The Motivate bike share system offers substantial benefits to the Bay Area region with the possibility of rapid expansion into the East Bay and with large numbers of bikes not previously available with pubic funds. However the Motivate expansion may have inadvertently caused a fracture in bike share transportation for the region by causing cities not included in the expansion to examine their own options for bike share ‐which may include independent systems. The Bay Area is already burdened with 27 transit operators and regional coordination among them remains challenging. Should the Peninsula                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Bay Area Bike Share Page | 11 Peninsula Cities Analysis cities decide that a coordinated bike share model does not work, there are options for bike share which include independent programs and discontinuation of the service. Independent Programs Should the timing and coordination of a single regional system not fit into bike share plans for the cities, individual cities may want to move forward with the implementation of bike share on their own. The City of San Mateo has already moved forward with a small Social Bike system. The San Mateo system is independent of the Motivate system requiring members to sign up for the system even if they have a membership with Motivate. This is less than ideal from a customer service perspective requiring people that may live in San Mateo but work in San Francisco to carry two membership fobs with different pricing and different back‐end customer service and membership systems. Moving independently allowed San Mateo to use available funds to quickly implement a system without waiting for other cities to come online. This option may become necessary if one or two of the Peninsula cities decide to discontinue bike share or move with a technology option that is different from each other. Discontinuing Bike Share Should the cities decide that there is not political support or funding available for bike share, the Motivate program can be discontinued thereby ending the pilot program. Supporters of bike share including the Silicon Valley Bicycle Coalition and other advocacy groups may continue to lobby for bike share making that decision a political challenge. If bike share were to be removed, the interest and momentum would have subsided, making it difficult to bring bike share back at a future date. Funds that are available for bike share would be spent on other projects and the current regional bike share expansion funds may not be available in future years. 4. Funding Options Capital Metropolitan Transportation Commission (MTC) Congestion Mitigation and Air Quality (CMAQ) MTC is in the process of developing guidelines for a standalone CMAQ funded grant program to specifically fund bike share. It is expected the program will total $4.5 million and will be released in two calls with the first call expected in the spring of 2016. Since the program is funded with CMAQ it is expected that it will cover equipment only and not operations and maintenance. Bay Area Air Quality Management District (BAAQMD) Transportation Fund for Clean Air (TFCA) The TFCA fund has two parts, the Regional Fund and the County Program Manager Fund. The Air District is no longer accepting applications for bike share under the Regional Fund as an eligible expense. However bike share is still eligible under the County Program Manager Fund. To apply to the County Program Manager Fund, projects are submitted directly to the County Congestion Management                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             Bay Area Bike Share Page | 12 Peninsula Cities Analysis Agencies. Projects must include a cost/effective measure that shows that bike share is able to achieve a $500,000 per ton reduction for emissions. TFCA funds can be used to fund operations and maintenance for bike share for up to 5 years. It is worth noting that even though operations and maintenance for bike share are eligible, it is unlikely these expenses would make the application competitive. The cost effectiveness calculations are based on the number of bikes for a system. Any additional funds requested in the application that does not increase the number of bikes reduces the cost effectiveness number. Caltrans Active Transportation Program (ATP) The Active Transportation Program (ATP) is a new funding source in California that can be used to fund bicycle and pedestrian capital projects and plans. The program is a combination of different federal and state funding sources including the federal Transportation Alternative Program and Highway Safety Improvement Program. The state funds are part of the State Highway Account funds. Cycle 2 of the program was over programmed by $360 million over 3 fiscal years. The call for Cycle 3, which will cover fiscal years 2019/20 and 2020/21, will have applications due to Caltrans on June 15, 2016. Any grant requests will cover equipment but will be unlikely to cover ongoing operations and maintenance. Operations There may be some initial seed money available to either sustain interim operations or start new service. Given that MTC will no longer be funding the Bay Area Bike Share program, Samtrans and VTA will receive back their share of user revenues collected from the pilot program. This can be distributed to the peninsula cities for expenses related to bike share, operations, and capital incurred during the pilot program. It is expected that there is $281,000 in total and these funds can be used for continuation of the program. Based on the net operating cost shown in Table 1, this would allow a streamlined system to continue to operate under the current vendor for approximately 6 months. Longer‐term, the program would need to find one or more sponsors to fill the expected gap between operating costs and system revenues. Any shortfall would need to be funded by the program owner (e.g., the city, a non‐profit, etc.). 5. Next Steps Different equipment and operator scenarios will be discussed at the March committee meeting. Following that, the cities need to make some decisions about their internal goals and interests for bike share and decide if they’d like to move forward: (1) with bike share; and (2) as a region or as individual entities. The decision to move forward with bike share or not will likely come down to each city’s funding capacity – particularly to meet any operating shortfall. This needs to be tested and opportunities sought to secure capital and operating funds. Assuming the cities decide to move forward collectively with bike share, they will need to decide how they would like to move forward – under what governance structure. The most expedient model would be to operate under a collective agreement that outlines regional versus local decisions, identifies roles                                                                                                                                                                                                                                                                                  Bay Area Bike Share Page | 13 Peninsula Cities Analysis and responsibilities for each partner, outlines how decisions will be made, and specifies cost and revenue sharing agreements between the partners. This does not preclude transitioning to a different model over time. For example, a non‐profit could be formed to take over long‐term operations of the program if internal capacity or risk become issues. Once a governance structure is decided, the cities much chose between the existing equipment provider and operator or whether to go out to bid for a new vendor. A common procurement process will be necessary – with the ability for one city to lead the process and others to be able to add‐on to the contract with the selected vendor. The feasibility of this process should be determined with the cities’ procurement departments. Attachment E - City HallCITY OF SAN MATEO 330 W. 20th Avenue San Mateo, CA 94403 www.cityofsanmateo.org Administrative Report Agenda Number: 15., Status: New Business TO: City Council FROM: Larry A. Patterson, City Manager PREPARED BY: City Manager’s Office MEETING DATE: Monday, November 16, 2015 SUBJECT: Pilot Bike Share Program Implementation RECOMMENDATION Approve a purchase contract with Social Bicycles and a services agreement with Bikes Make Life Better to develop a pilot bike share program in San Mateo and adopt a Resolution to approve a revision to the Comprehensive Fee Schedule for 2015-2016 to add bike sharing program user fees and authorize the City Manager to execute both documents. BACKGROUND A bike share system consists of a network of bikes placed at hubs throughout a region that can be used on an hourly basis by system members. Bike sharing is a cost-effective mobility option that assists with last mile connectivity within a transportation system. Bike share programs have been adopted by more than 300 other cities worldwide, including San Francisco, San Jose, and Redwood City in the Bay Area. The City of San Mateo Bicycle Master Plan directs the City to explore the feasibility of implementing a bike share program within the City. In March 2013, the City completed a Bike Share Feasibility Study that determined that a successful program could be established within San Mateo. The City had originally hoped to participate in the regional Bay Area Bike Share program that was organized by the Metropolitan Transportation Commission (MTC). However, the bike share provider for that program, Motivate, has decided to limit their program in the future to just a few larger cities in the region. The City has been approached by an alternative bike share provider, Social Bicycles (SoBi), to implement a 50 -bike pilot bike share program within San Mateo. SoBi operates successful bike share programs within several North American cities, including Long Beach, Tampa, Phoenix, and Hamilton, Canada, and is in the process of launching new systems in Portland and Santa Monica. If successful, the bike share program in San Mateo will be expanded to a regional system, including other Peninsula and Silicon Valley communities. SoBi bicycles has partnered with Bikes Make Life Better, a local bicycle program operator, to operate the bike share program in San Mateo. The City of Santa Monica went through an extensive RFP process to select SoBi. Staff has reviewed their RFP materials and selection criteria and believes that SoBi offers the best fit system for San Mateo. As a result, staff recommends the sole-source award of the bike share system to SoBi. The City has the authority to sole source this contract under Municipal Code Section 3.60.050 which states that a contract can be sole sourced if calling for bids would be unavailing. Given how recently Santa Monica’s RFP was issued and the recent decision of Motivate not to operate on the Peninsula, staff does not believe that an RFP would result in CITY OF SAN MATEO Page 1 of 4 Printed on 2/8/2016 powered by Legistar™ Agenda Number: 15., Status: New Business a different outcome and would significantly delay the launch of a bike share system in San Mateo. Smart Bike System The SoBi bike share system is a “smart bike” system as opposed to the smart hub system used by the Bay Area Bike Share program. A smart bike system is one where the technology for locating, renting, releasing and locking is on the bikes themselves, as opposed to on the bike racks. This system has significant advantages in that the bikes can be parked at standard bike racks allowing for more flexibility at siting bike hubs, locking bikes mid-reservation, and allowing bikes to be left at non-hub locations at the end of a reservation. Smart bike systems can be implemented at a significantly lower capital cost than smart hub systems since they do not require that a pay kiosk be incorporated into each station. Instead, each bike is capable of accepting payments and releasing the bike-locking mechanism independently via mobile and web-based software that interacts with the smart bike hardware. Smart bike systems are easier to scale and can be successful with a small system such as the one proposed in San Mateo. San Mateo System The proposed San Mateo pilot bike share system will consist of 50 bikes spread out over a total of 10 to 12 hubs. The locations of the hubs have yet to be determined but will follow the guidance provided by the 2013 Bike Share Feasibility Study and will target transit nodes, large employers, retail districts, and high density housing sites. The City intends to use existing bike racks located throughout San Mateo for the program but may supplement some locations with additional bike racks to ensure adequate capacity. A typical hub would have roughly 4 bikes though some hubs will be larger, such as those located at the Caltrain stations. In order to develop and operate this system, the City first needs to purchase the bikes from SoBi and then enter into a services agreement with Bikes Make Life Better and SoBi to operate and maintain the system. Bikes Make Life Better would serve as the prime contractor to the City and SoBi would be a subcontractor under the proposed agreement. Bikes Make Life Better will be responsible for the day-to-day on-the-ground operations of the program, which includes repositioning the bikes between hubs, repairs and maintenance of the bikes. SoBi will be in charge of the web and mobile application-based membership and reservation system and the revenue collection and remittance. The City is intending to pilot the program for a 3-year trial basis and evaluate the program based on overall usage and customer experience. At the end of this term, the City can decide to continue the program, expand it, or to terminate it. The draft purchase contract with SoBi is included as Attachment 2 to this report. The contract is for an amount not to exceed $85,000. Staff is still finalizing negotiations on the language in Section 7, Indemnity and Limitation of Liability with SoBi. If any further modifications are made to this section following the publication of this report, staff will provide an updated contract to City Council at the meeting. Following the execution of the contract, SoBi bikes will place the order for the system bikes. The bikes take roughly 6 months to manufacture. The City hopes to launch the program in May 2016. A rendering of the proposed design for the bike share bikes is included as Attachment 4 to this report. The draft services agreement with Bikes Make Life Better is included as Attachment 3 to this report. The contract amount of $293,000 is based on per bike service fee of $1,800 per year for a three year period plus an additional start-up fee of $23,000 for system implementation. Test Phase Bikes Make Life Better and SoBi will be running a 10-bike test phase in San Mateo that is expected to launch a few months in advance of the implementation of the full system. This program will feature 3 bike hubs at the Downtown Caltrain station, the Hillsdale Caltrain station, and within Bay Meadows at the Nueva School property. This phase will allow the City to test the functionality of the program with a small group of users and to make adjustments to the operating model, as necessary. In addition, having bike share bikes at prominent CITY OF SAN MATEO Page 2 of 4 Printed on 2/8/2016 powered by Legistar™ Agenda Number: 15., Status: New Business locations will build interest and awareness in the bike share program. SoBi bikes will be providing the City with the 10 test bikes at no cost and will roll them into the larger 50 bike system. As a result, the City will only have to pay for the purchase of 40 bikes. The City will pay Bikes Make Life Better a nominal fee of $110 per month per bike for operating test phase program which will include repositioning the bikes between the 3 hubs a couple of times a day and maintaining the bikes during this period. User Fees The City worked closely with SoBi to develop program user fees that are consistent with their other bike share programs. The proposed fees are as follows: · $3 per half hour pay-as-you go use · $5 per hour for pay-as-you go use · $15 per month for a monthly membership (which includes 1 hour of use per day) · $3 fee for locking bikes outside of a bicycle hub · $100 for locking bikes outside of the bike share system boundaries (likely contiguous with City boundaries). These fees would apply during the 10-bike test phase and throughout the initial roll-out of the program and will be evaluated on an annual basis. The revenues from the user fees will help offset the annual operating costs of the program. In order to implement these bike share use fees, it is necessary to amend the Comprehensive Fee Schedule for 2015-2016. Attachment 1 includes the proposed resolution amending the Comprehensive Fee Schedule and the detailed fee structure. Sponsorships The City intends to seek out sponsors for the bike share system to further offset the annual operating costs. The City plans to approach major employers and property owners within the City. The sponsorships would be available on an annual basis and sponsors would be able to display their logo on the baskets of the bicycles. The City will retain the right to review and approve the sponsors and their logos to ensure appropriateness. BUDGET IMPACT The capital purchase costs and on-going annual operations will be paid from Project 465004 (Citywide Bike and Pedestrian Path Improvements Project). The initial capital costs to set up the bike share program are $85,000. This cost includes the provision of 40 bicycles. The bicycle provider, Social Bicycles, will provide the City with the 10 bikes used for the test phase at no cost. The services agreement with Bikes Make Life Better is for a fee not to exceed $293,000, which includes the start-up implementation expenses and operations for a three-year period. This cost will be offset by revenues from user fees and any sponsorships that the City attains which will be deposited back to Project 465004 to offset the expenses. Staff estimates that system revenues and sponsorships will cover approximately 50% of the operating costs in the first year and will eventually cover the full operating costs once the system reaches a stabilization level. ENVIRONMENTAL DETERMINATION The adoption of a pilot bike share program is categorically exempt pursuant to CEQA Guideline 15061(b)(3) in that it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. NOTICE PROVIDED All meeting noticing requirements were met. ATTACHMENTS Att 1 - Proposed Resolution Att 2 - Purchase Contract with Social Bicycles Att 3 - Agreement for Services with Bikes Make Life Better CITY OF SAN MATEO Page 3 of 4 Printed on 2/8/2016 powered by Legistar™ Agenda Number: 15., Status: New Business Att 4 - Rendering of San Mateo Bike Share bicycle STAFF CONTACT Kathy Kleinbaum, Senior Management Analyst kkleinbaum@cityofsanmateo.org (650)522-7153 CITY OF SAN MATEO Page 4 of 4 Printed on 2/8/2016 powered by Legistar™ Attachment F - PURCHASE CONTRACT FOR BIKE SHARE EQUIPMENT FROM SOCIAL BICYCLES INC. This Purchase Contract (the “Contract”), made and entered into this 17th day of November, 2015, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California (the "CITY"), and SOCIAL CYCLES INC, a Delaware Corporation ("VENDOR"). R E C I T A L S: A. The CITY desires to purchase certain smart bicycles hereinafter described for a bicycle sharing program (the “Bicycle Sharing Program”) in the City of San Mateo, California. B. The CITY desires to engage VENDOR to provide these smart bicycles by reason of its qualifications and experience and VENDOR has offered to provide the required goods on the terms and in the manner set forth herein. NOW, THEREFORE, IT IS AGREED as follows: SECTION 1 - PURCHASE The goods to be purchased from VENDOR under this Contract are described in Exhibit A to this Contract, which is attached and incorporated by reference. SECTION 2 – PRICE AND TAXES All prices shall be as stated in this Contract and are firm and not subject to escalation except as stated in Exhibit A. This purchase is subject to all California sales tax. Municipalities are exempt from federal excise and transportation taxes. Prices shall exclude these taxes. SECTION 3 – PAYMENT Payment terms shall be as stated in Exhibit A. Invoices must cite the purchase order number to prevent delay in payment. All invoices must be mailed to City of San Mateo, Attn: Accounts Payable, 330 West 20th Avenue, San Mateo, CA 94403. SECTION 4 – DELIVERY AND PERFORMANCE If delivery of goods cannot be made at the specified time, VENDOR shall promptly notify the CITY of the earliest possible date for delivery. The CITY’S receipt or acceptance of all or part of a non-conforming delivery shall not constitute a waiver of any claim, right, or remedy the CITY has under this Contract or applicable law. 1 SECTION 5 – SHIPMENT AND INSPECTION VENDOR assumes full responsibility for all transportation, transportation scheduling, packing, handling, insurance, and other services associated with delivery of all products. No charges for transportation containers, packing, etc., will be allowed unless so specified in this Contract or Exhibit A. All shipments shall be F.O.B. City of San Mateo. Transportation charges shall be shown as a separate item on the invoice. The CITY may revise shipping instructions as to any goods not as yet shipped. The CITY shall have the right to inspect any or all of the goods at VENDOR’s place of business or upon receipt by the CITY. By reason of its failure to inspect the goods, the CITY shall not be deemed to have accepted any defective goods or goods which do not conform to the specifications provided or to have waived any of the CITY’S rights or remedies arising by virtue of such defects or non-conformance. VENDOR shall be responsible for payment of shipping for the return of any defective goods. Shipping documents and invoices must cite the Purchase Order number. SECTION 6 – WARRANTIES VENDOR warrants that the new products delivered hereunder shall be free from defects in workmanship and materials and in conformity with all samples, drawings, descriptions and specifications furnished by VENDOR for (i) thirty-six (36) months from the delivery date in the case of the frames of each bicycle and (ii) twelve (12) months from the delivery date in the case of the locks and all other components and accessories of the products. The warranty excludes damage caused by accidents, misuse, weather events, vandalism, neglect, and improper maintenance. In addition, VENDOR is providing ten (10) used bicycles to the CITY. The CITY expressly acknowledges and agrees that it is acquiring the used bicycles from VENDOR on an “AS IS, WHERE IS” and “WITH ALL FAULTS” basis, without representations, warranties, or covenants of any kind or nature. VENDOR HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES RELATING TO THE PRODUCTS PROVIDED HEREUNDER OR COMPONENTS THEREOF, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. SECTION 7 – INDEMNITY AND LIMITATION OF LIABILITY VENDOR agrees to hold harmless and indemnify the CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense to the extent resulting from or arising out of VENDOR’s delivery of the bicycles under this Contract, except to the extent: (a) caused by the CITY or its employees, officers, agents, contractors, subcontractors, licensees or invitees; or (b) caused by the negligence or willful misconduct of the CITY or its employees, officers, agents, contractors, subcontractors, licensees or invitees. VENDOR agrees to defend the CITY, its elected and appointed officials, employees, and agents against any such claims. 2 SECTION 8 – TERMINATION This Contract may be terminated by mutual consent of both parties or by the CITY at its discretion. The CITY may cancel an order for goods at any time with written notice to VENDOR, stating the extent and effective date of termination. Upon receipt of this written notice, VENDOR shall stop performance under this Contract as directed by the CITY. If the Contract is terminated, VENDOR shall be paid in accordance with the Contract for all work commenced or performed by VENDOR prior to the date of termination that cannot be cancelled, meaning that VENDOR has already incurred costs for such work and such costs cannot be refunded. For any such work, when practicable, VENDOR agrees to use best efforts to assist the CITY in finding a suitable buyer for the goods. SECTION 9 – REMEDIES In the event of VENDOR’s breach of this Contract, the CITY may take any or all of the following actions, without prejudice to any other rights or remedies available to the CITY by law: (a) require Vendor to repair or replace such goods, and upon VENDOR’S failure or refusal to do so, repair or replace the same at VENDOR’S expense; and (b) reject any shipment or delivery containing defective or nonconforming goods and return for credit or replacement at VENDOR’S option, said return to be made at VENDOR’S cost and risk. In the event of the CITY’s breach hereunder, VENDOR’S exclusive remedy shall be VENDOR’S recovery of the goods or the purchase price payable for goods shipped or work commenced or performed prior to such breach. SECTION 10 – COMPLIANCE WITH LAW VENDOR warrants that it will comply with all federal, state, and local laws, ordinances, rules, and regulations applicable to its performance under this Contract. VENDOR shall obtain and maintain throughout the life of the Contract all permits or licenses required in connection with the manufacture, sale, and shipment of the products ordered under this Contract. SECTION 11 – ASSIGNMENT VENDOR shall not delegate or subcontract any duties and services or assign any rights or claims under this Contract without the CITY’S prior written consent. SECTION 12 – ARTWORK, DESIGNS, PATENTS, COPYRIGHTS AND TRADEMARKS VENDOR hereby agrees that the sale, use, or incorporation into manufactured products of all machines, software, hardware, materials and other devices furnished under this Contract are free and clear of infringement of any valid patent, copyright, or trademark. VENDOR shall hold the CITY harmless from any and all costs and expenses, including attorney fees, liability, and loss of any kind growing out of claims, suits, or actions alleging such infringement, and VENDOR agrees to defend such claims, suits, or actions. SECTION 13 – GOVERNING LAW This Contract shall be deemed to be made in the State of California and shall in all respects be construed and governed by the laws of that state. 3 SECTION 14 – VENUE In the event of litigation, venue will be in the County of San Mateo. SECTION 15 – WAIVER The waiver of any term, condition, or provision hereof shall not be construed to be a waiver of any other such term, condition, or provision, nor shall such waiver be deemed a waiver of a subsequent breach of the same term, condition or provision. SECTION 16 - COSTS AND ATTORNEY FEES Attorney fees in an amount not exceeding $85 per hour per attorney, and in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Contract. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this provision that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Contract. SECTION 17 - MEDIATION Should any dispute arise out of this Contract, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the California State Board of Mediation and Conciliation, or other agreed-upon service. The mediator shall be selected by a "blindfolded" process. The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties. SECTION 18 - NOTICES All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows: To CITY: City of San Mateo Attn.: City Manager 330 West 20th Avenue San Mateo, CA 94403 To VENDOR: Social Bicycles Attn: Ryan Rzepecki, CEO 47 Hall Street, Suite 414 Brooklyn, NY 11205 4 SECTION 19 – MISCELLANEOUS PROVISIONS RELATED TO THE BICYCLE SHARING PROGRAM The CITY acknowledges that a third party will be responsible for the management and operation of the Bicycle Sharing Program contemplated by this Contract, including but not limited to the rental and maintenance of the products; the procurement of all parts, tools, labor, and other requirements associated with maintaining the products; the solicitation and enrollment of subscribed users; the marketing of the Bicycle Sharing Program; the provision of customer service to subscribed users; and the overall delivery of a safe and reliable program. VENDOR will, pursuant to a separate agreement, grant the third party provider a non-transferable, non- sublicensable, non-exclusive, limited right to access and use VENDOR’s software operating platform for the purpose of enabling the rental of bicycles to subscribed users in the Bicycle Sharing Program. SECTION 20 – OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS The CITY acknowledges that the goods offered hereunder contain and/or incorporate certain intellectual property rights, including but not limited to trademarks, patent, patent application, moral right, trade secret, copyright and any applications or right to apply for registration, computer software programs or applications, tangible or intangible proprietary information, or any other intellectual property rights (the “Intellectual Property Rights”), that the Intellectual Property Rights used in conjunction with the products are proprietary to VENDOR and/or VENDOR’s suppliers, and that VENDOR and/or its suppliers retain exclusive ownership of the Intellectual Property Rights and all copies thereof provided under this Contract. The CITY acknowledges that title to the Intellectual Property Rights will remain with VENDOR and its licensors, notwithstanding anything to the contrary herein, and that the CITY has no rights in the Intellectual Property Rights except those expressly granted by this Contract. When used in reference to the Intellectual Property Rights or in reference to Intellectual Property Rights embedded in the products, the word “purchase” and similar or derivative words are deemed to mean “non- transferable, non-sublicensable, non-exclusive, limited license” to use the Intellectual Property Rights solely to the extent required for the CITY to use the products provided hereunder in accordance with this Contract. The CITY acknowledges that it is not entitled to receive the source code of any software. This limited license shall continue until this Contract is terminated, until the license is terminated in accordance with this Contract, for the useful life of the goods in which the Intellectual Property Rights are embedded, or for the useful life of the Intellectual Property Rights, whichever is shorter. Notwithstanding the above and anything contrary in this Contract, in the event the CITY, in accordance with this Contract and with VENDOR’s prior written approval, transfers title to goods containing or incorporating Intellectual Property Rights, this limited license shall transfer to the CITY’s transferee. Use of Intellectual Property Rights in violation of this Section shall automatically terminate the limited license. All data created and/or processed by the products and VENDOR’s software platforms, including subscribed user data, is and will remain the sole property of VENDOR. The Parties acknowledge that the data in the CITY’s possession may be subject to disclosure under the California Public Records Act. The CITY shall not directly or indirectly: 5 1.1. Sell, lease, license, pledge, sublicense, loan, encumber, or otherwise transfer the Intellectual Property Rights, in whole or in part, to any third party or otherwise make the Intellectual Property Rights available to any third party, and shall keep the same free from any lien or encumbrance, or any other claim by a third party; 1.2. Copy, reproduce, or otherwise infringe the Intellectual Property Rights, in whole or in part, with respect to the goods or other materials developed or provided hereunder by VENDOR; 1.3. Decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of any portion of the Intellectual Property Rights; 1.4. Write or develop any derivative software or any other software program based on the Intellectual Property Rights; 1.5. Make modifications, corrections, alterations, enhancements, or other additions to the Intellectual Property Rights; 1.6. Use the Intellectual Property Rights or allow someone to use the Intellectual Property Rights otherwise than for the Bicycle Sharing Program; or 1.7. Remove or destroy any Marks, proprietary markings, or proprietary legends placed upon or contained with or on any Goods or any related materials or documentation by VENDOR. Trademarks associated with the CITY and VENDOR are and shall remain the property of the CITY and Vendor, respectively. Notwithstanding the above and subject to the limitations, terms, and conditions set forth in this Contract, neither party shall use the other party’s trademarks without the prior written consent of the other party. SECTION 21 - FORCE MAJEURE Neither party shall be liable to the other party for failure or delay in the performance of a required obligation if such failure or delay is caused by strike, riot, fire, natural disaster, utilities and communications failures, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the non-performing party, provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible. SECTION 22 - CONTRACT CONTAINS ALL UNDERSTANDINGS; AMENDMENT This document represents the entire and integrated agreement between the CITY and VENDOR and supersedes all prior negotiations, representations, and agreements, either written or oral. This document may be amended only by written instrument, signed by both the CITY and VENDOR. 6 _______________________________ _________________________________ ________________________________ __________________________________ IN WITNESS WHEREOF, CITY and VENDOR have executed this Contract the day and year first above written. CITY OF SAN MATEO Larry A. Patterson, City Manager ATTEST: Patrice Olds, City Clerk SOCIAL BICYCLES, INC. Ryan Rzepecki, CEO APPROVED AS TO FORM: Gabrielle Whelan, Assistant City Attorney 7 EXHIBIT A BICYCLES (in United States dollars) SMART BICYCLE Quantity Price Total B.1 V3.5 Smart Bicycle 40 1,500$ 60,000$ custom paint and decals (Pantone color palette) included onboard real-time GPS and accelerometer tracking included onboard GSM cellular connection included integrated keypad, LCD screen, and RFID technology included solar and dynamo power generators included three-speed hub with shaft drive transmission included B.2 Replacement Parts and Custom Tools 50 100$ 5,000$ B.3 Exterior Basket Printed Assets and Design Template 50 50$ 2,500$ B.4 Interior Basket Printed Assets and Design Template 50 50$ 2,500$ B.5 Additional Sponsorship Printed Assets and Design Template 50 50$ 2,500$ B.6 Upgrade to Skirt Guard -85$ -$ B.7 Skirt Guard Printed Assets and Design Template -20$ -$ B.8 Upgrade to Eight-Speed Hub with Shaft Drive Transmission -135$ -$ TOTAL SMART BICYCLE COSTS 72,500$ TRANSPORT AND CUSTOMS SERVICES Quantity Price Total T.1 Smart Bicycle Delivery Services (Item #B.1) 12,500$ T.2 Docking Point Delivery Services (Item #D.1) -$ T.3 Payment Kiosk Delivery Services (Item #S.1) -$ T.4 Panel Delivery Services (Item #S.2 and #S.3) -$ TOTAL TRANSPORT AND CUSTOMS SERVICES COSTS 12,500$ SUMMARY Initial Goods Purchase and Setup Cost 72,500$ Transport and Customs Services 12,500$ TOTAL UP-FRONT ONE-TIME COSTS 85,000$ TERMS TERMS • Fifty percent (50%) of the Total Up-Front One-Time Costs shall be paid by the CITY to VENDOR upon placing a Purchase Order. The remaining fifty percent (50%) of the Total Up-Front One-Time Costs is due on the delivery date of the applicable Goods. • The delivery date of the Goods will be six (6) months after submission of a Purchase Order. Purchase Orders shall be deemed submitted when the CITY’s initial payment and final branding designs are received by VENDOR. • The prices quoted above are valid for ninety (90) days from the effective date of the Contract. Social Bicycles Inc. • Brooklyn, NY Attachment G - AGREEMENT WITH BIKES MAKE LIFE BETTER, INC. FOR BICYCLE MANAGEMENT SERVICES FOR THE SAN MATEO BIKE SHARE PROGRAM This Agreement, made and entered into this 17th day of November, 2015, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California ("CITY"), and Bikes Make Life Better, Inc., a California corporation ("CONTRACTOR"), whose address is 879 Hampshire, San Francisco, California 94110. R E C I T A L S : A. CITY desires certain bike share program establishment and management services hereinafter described. B. CITY desires to engage CONTRACTOR to provide these bike share program services by reason of its qualifications and experience for performing such services and CONTRACTOR has offered to provide the required services on the terms and in the manner set forth herein. NOW, THEREFORE, IT IS AGREED as follows: SECTION 1 - SCOPE OF SERVICES The scope of services to be performed by CONTRACTOR under this Agreement is as described in Exhibit A to this Agreement, which is attached and incorporated by reference. SECTION 2 - DUTIES OF CONTRACTOR CONTRACTOR shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONTRACTOR under this Agreement. CONTRACTOR shall, without additional compensation, correct or revise any errors or deficiencies in its work. CONTRACTOR represents that it is qualified to furnish the services described under this Agreement. CONTRACTOR shall be responsible for employing or engaging all persons necessary to perform the services of CONTRACTOR. SECTION 3 - DUTIES OF CITY CITY shall provide pertinent information regarding its requirements for the project. CITY shall examine documents submitted by CONTRACTOR and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONTRACTOR'S work. -1- SECTION 4 - TERM The services to be performed under this Agreement shall commence on November 17, 2015, and be completed on or about June 30, 2019. SECTION 5 - PAYMENT Payment shall be made by CITY only for services rendered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONTRACTOR a fee pursuant to rates stated in Exhibit B. Any amounts due Contractor under this Agreement upon which payment is not received within 30 days of City receiving an invoice shall accrue late fees equal to the lesser of: (i) 3% per month; or (ii) the highest rate allowable by law, in each case compounded monthly to the extent allowable by law. Without limiting Contractor’s other rights or remedies, in the event City is more than 30 days delinquent in their scheduled payments, City agrees that Contractor may, at its choosing, terminate the relationship. In the event City’s account becomes seriously delinquent, Contractor will have no choice but to resort to collection proceedings and City agrees to be responsible for Contractor’s attorney's fees and costs incurred in those proceedings. SECTION 6 – TERMINATION Without limitation to such rights or remedies as CITY or CONTRACTOR shall otherwise have by law, CITY or CONTRACTOR shall have the right to terminate this Agreement or suspend work on the Project for any reason, upon thirty (30) days' written notice to the other party. CONTRACTOR agrees to cease all work under this Agreement upon receipt of said written notice. SECTION 7 - OWNERSHIP OF DOCUMENTS All documents prepared by CONTRACTOR in the performance of this Agreement are and shall be the property of CITY, whether the project for which they are made is executed or not. SECTION 8 - CONFIDENTIALITY All reports and documents prepared by CONTRACTOR in connection with the performance of this Agreement are confidential until released by CITY to the public. CONTRACTOR shall not make any such documents or information available to any individual or organization not employed by CONTRACTOR or CITY without the written consent of CITY before any such release. SECTION 9 - INTEREST OF CONTRACTOR -2- CONTRACTOR covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement. SECTION 10 - CONTRACTOR'S STATUS It is expressly agreed that in the performance of the services required under this Agreement, CONTRACTOR shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONTRACTOR an agent or employee of CITY while providing services under this Agreement. SECTION 11 - INDEMNITY CONTRACTOR agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONTRACTOR’s performance of this Agreement, except for those claims arising out of CITY’s sole negligence or willful misconduct. CONTRACTOR agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. SECTION 12 - INSURANCE Contractor shall procure and maintain for the duration of the contract the insurance specified in Exhibit C to this Agreement SECTION 13 - NONASSIGNABILITY Both parties hereto recognize that this Agreement is for the personal services of CONTRACTOR and cannot be transferred, assigned, or subcontracted by CONTRACTOR without the prior written consent of CITY. SECTION 14 - RELIANCE UPON SKILL OF CONTRACTOR It is mutually understood and agreed by and between the parties hereto that CONTRACTOR is skilled in the performance of the work agreed to be done under this Agreement and that CITY relies upon the skill of CONTRACTOR to do and perform the work in the most skillful manner, and CONTRACTOR agrees to thus perform the work. The acceptance of CONTRACTOR's work by CITY does not operate as a release of CONTRACTOR from said obligation. SECTION 15 - WAIVERS The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not -3- be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance. SECTION 16 - COSTS AND ATTORNEY FEES Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this provision that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement. SECTION 17 - NON-DISCRIMINATION CONTRACTOR warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONTRACTOR nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act. SECTION 18 - MEDIATION Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the State Mediation and Conciliation Service, or other agreed-upon service. The mediator shall be selected by a blind draw. The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties. SECTION 19 - LITIGATION CONTRACTOR shall testify at CITY'S request if litigation is brought against CITY in connection with CONTRACTOR'S services under this Agreement. Unless the action is brought by CONTRACTOR, or is based upon CONTRACTOR'S wrongdoing, CITY shall compensate CONTRACTOR for preparation for testimony, testimony, and travel at CONTRACTOR'S standard hourly rates at the time of actual testimony. -4- SECTION 20 - NOTICES All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows: To CITY: City of San Mateo Attn: Public Works Director 330 West 20th Avenue San Mateo, CA 94403 To CONTRACTOR: Bikes Make Life Better, Inc. Attn: Amy Harcourt 879 Hampshire San Francisco, CA 94110 SECTION 21 - AGREEMENT CONTAINS ALL UNDERSTANDINGS; AMENDMENT This document represents the entire and integrated agreement between CITY and CONTRACTOR and supersedes all prior negotiations, representations, and agreements, either written or oral. This document may be amended only by written instrument, signed by both CITY and CONTRACTOR. SECTION 22 - GOVERNING LAW AND VENUE This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo. IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this Agreement the day and year first above written. CITY OF SAN MATEO CONTRACTOR Larry A. Patterson, City Manager Amy Harcourt, CEO APPROVED AS TO FORM Gabrielle Whelan, Assistant City Attorney -5- EXHIBIT A SCOPE OF WORK The City of San Mateo continues to support and invest in the role of bicycle transportation. The City is exploring a pilot bicycle share system that could introduce bicycles to new users and further complement the City’s existing multi-modal transportation network. The pilot bicycle share project will include 50 bicycles at ten to twelve locations within the City of San Mateo. Bikes Make Life Better will serve as the prime contractor for this project and will be responsible for the operations and maintenance of the system, including the redistribution of the bicycles. Social Bicycles (Sobi) will be a subcontractor to Bikes Make Life Better and will be responsible for the provision of the bicycles, the bike sharing website portal, and revenue collection and remittance. The Contract team, which includes Bikes Make Life Better and Sobi shall be responsible for all of the following: A. SYSTEM DEVELOPMENT AND INSTALLATION The budget for the installation and launch of the Bike Share system shall be consistent with Exhibit B of this contract. The scope of Work shall include all of the following: 1. System installation. Provide installation of all bicycles, electronics, and system software. 2. Create website. Work with Social Bicycles, and the City to create branding, marketing and public relations. 3. Station Locations. Work with the City of San Mateo to identify and establish station locations. The City will provide an initial list of locations that may be appropriate. The Contract team will assist the City with evaluating the locations and determining the final list. Locations may be adjusted during the term of the contract, based on usage rates and other factors. 4. Launch. Plan and execute a timely and effective system launch within 30 days of delivery of the bikes or within the time from when the bike racks locations are finalized and in place. B. SYSTEM MAINTENANCE AND OPERATION The Bike Share system shall be operated consistent with the budget included in Exhibit B of this contract. The scope of work shall include all of the following: 1. Reporting. Contractor shall submit monthly reports of gross revenues, ridership, and expenses, in a format approved by the City, with revenue broken down into categories of income. At the end of each operating year, the Contractor will be required to submit a detailed income, utilization/ridership, and expense statement for the past year's operation. 2. Open Data. Contractor shall provide open content data that will allow third party developers to provide applications to assist users in finding bicycles, and stations, and comparing travel and usage information consistent with reports from other US systems.. 3. Response to Complaints. All System structures shall contain a conspicuously posted telephone number, to the contractor's customer service operations to which the public may direct complaints and comments, and instructions for filing a complaint. All complaints received by Contractor shall be logged, Contractor shall cooperate with the City in providing a timely response to any such complaints. The Contractor shall provide a shared database in which the City can communicate complaints from the public and from the City, and in which the Contractor can report the resolution of such complaints. 4. Maintenance, Redistribution, and Repair. System maintenance shall include, but is not limited to, inspecting, maintaining, redistributing bikes between station hubs, cleaning, and removing graffiti from System structures on a timely basis, inspection and prompt repair or replacement of the system elements. Contractor shall comply with specified service standards as shown in Exhibit E of this contract. 5. Real-time Communication. Provide system to track bicycle and dock status and populate interactive map with status of bicycles at stations, station locations with optional address and directions, and transit information. 6. Safety information. Safety information shall be provided to all customers. 7. Adaptive Website Design. Provide and correctly display web pages on all major web browsers and mobile devices/formats. 8. Branding, Marketing, Sponsor Fulfillment and Public Relations. Contractor shall work with City to oversee the implementation of all branding, marketing and public relations, and work with City to fulfill all obligations of any grants, sponsorships, advertisers and/or donors including placement of corporate messaging as appropriate on bicycles stations or other locations. 9. Performance Outcomes and Service Level Agreements. Contractor shall meet Service Level Agreements (“SLA") consistent with Exhibit E of this contract. 10. Customer Service. Contractor shall provide responsive and customer-friendly services that encourage repeat use, including timely response to complaints. C. FINANCIAL OPERATIONS 1. Registration. Provide and maintain in full operation a web page to register, submit credit card data, and execute a user agreement. After registration, members should be able to immediately access a bike at any station. Membership of various durations (such as 30 minutes, hourly, daily, Weekly, and/or monthly) shall be available. Rates and durations shall be determined by the City and Contractor. 2. Secure Financial Transactions. Complete secure financial transactions with data input at the web page or mobile device applications. Provide the capability to track whether bicycles are returned during a specified period and accurately assess overtime fees. Financial data must be held securely in a manner that complies with all laws, and only accessed by authorized personnel. The Contractor shall develop a robust security policy. The Contractor must ensure that its security policy is enforced, report any breaches to the City and develop corrective plan to prevent future breaches. The method for protecting financial data, user names, and addresses, must be Payment Card Industry (PCI) compliant and satisfy minimum specifications of the City. 3. Fee Collection. Accurately assess and collect fees for failure to return any bicycle within 24 hours or an established time period and clearly communicate rules to user. 4. Revenue. All revenues, including membership fees, use fees, and revenue from other sources, shall be collected by the Contractor on behalf of the City and returned to the City. The Contractor, as the City's fiduciary with respect to collection and treatment of such revenue, shall be responsible for all revenue from the time it is collected until the time it is deposited to City accounts. 5. Records. Contractor shall maintain records and make them available to the City on appropriate notice for inspection and auditing. 6. Billing and Compensation. The Contractor shall submit invoices for service, operation, maintenance and repairs based on a monthly, per-bike fee. The monthly fee will cover a reasonable number of station relocations per year (up to 5). The Contractor shall submit invoices for compensation for the installation of new stations in additional locations at the price specified in the agreement. 7. Regular Operations Review. Contractor shall perform ongoing review of ridership, fees structure and development of recommendations that promote use of the system and reduce or eliminate any operating deficit. D. SAFETY AND LIABILITY Waiver of Liability Contractor’s registration for all new system users will require agreement to a statement waiving liability and accepting responsibility for use of the City's bikeshare bicycles. The waiver language is subject to City approval prior to implementation. E. SYSTEM EXPANSION, INTEROPERABILITY AND REGIONAL COORDINATION 1. Contractor will work with the City to coordinate with Clipper and provide access to all bike share systems in the San Francisco Bay Area. 2. Contractor shall work with the City to expand the system within the City of San Mateo as directed, subject to an amendment of this contract. 3. Contractor must develop cooperative agreements with other regional bikeshare operators so that users can check out bicycles from bikeshare systems in San Mateo County and Santa Clara County, as feasible. 4. Contractor shall facilitate regional cooperation, interoperability with any other regional bikeshare system and regional fare media, and ongoing partnerships with transit and local businesses. Exhibit B: Budget and Fee Schedule Exhibit C: Insurance Requirements Exhibit D: San Mateo Bike Share Schedule Exhibit E: Service Level Agreements Exhibit B IMPLEMENTATION SERVICES (in United States dollars) SOBI IMPLEMENTATION SERVICES Quantity Price Total A.1 Implementation Services (including expenses) 15,000 A.2 Website Landing Page Design $ 8,000 TOTAL ADDITIONAL PRODUCTS AND SERVICES COSTS $ 23,000 OPERATIONS (in United States dollars) BMLB MONTHLY TURN-KEY OPERATIONS COSTS Quantity Price Total O.1 Per Bicycle Fee (per month) 50 150$ $ 7,500 TOTAL MONTHLY TURN-KEY OPERATIONS COSTS $ 7,500 TOTAL ANNUAL TURN-KEY OPERATIONS COSTS $ 90,000 All prices are for the 50-bike pilot and will be revisited for future expansion EXHIBIT C INSURANCE REQUIREMENTS MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an “occurrence” basis, including products-completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. If the contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the contractor. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions: Additional Insured Status The City, its elected and appointed officials, employees, and agents are to be covered as insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Contractor; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used). Primary Coverage For any claims related to this contract, the Contractor’s insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, employees, and agents. Any insurance or self-insurance maintained by the City, its elected and appointed officials, employees, or agents shall be excess of the Contractor’s insurance and shall not contribute with it. Notice of Cancellation -8- Each insurance policy required above shall provide that coverage shall not be canceled, except after thirty (30) days’ prior written notice (10 days for non-payment) has been given to the City. Waiver of Subrogation Contractor hereby grants to City a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the Contractor to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City. Verification of Coverage Contractor shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. -9- Exhibit E - Service Standards MAINTENANCE + OPERATIONS Schedule Location Staff Repairs and Adjustments Daily / Weekly On-site BMLB Station and Bicycle Inspection Daily / Weekly On-site BMLB Prevention Maintenance and Tune-ups Quarterly Facility BMLB Cleaning and Litter Removal Daily On-site BMLB Cleaning upon notification Within 48 hours On-site BMLB Address repair upon notification Within 48 hours On-site BMLB Maintenance: 88% of bikes operational Weekly On-site BMLB Replacement parts and bicycles As needed Facility BMLB Web and mobile updates On-going Wireless SoBi Customer Service dispatching to crew Immediately Facility to Site BMLB Redistribution of Bicycles at Priority Hubs (‘Priority’ stations will not be empty more than 8 hours daily) Daily On-Site BMLB Redistribution of Bicycles at 'Auxillary' Hubs (‘Auxillary’ stations will not be empty for more than 24 hours) Daily On-Site BMLB Daily / Weekly Repairs, Adjustments, and On-site Inspections • Clean all visible dirt, ink, paint, litter, graffiti • Remove all trash from surrounding area • Inspect all stations and bikes for defects • Check all communications systems • Check lock functionality, keypad, enclosure • Check frame for damage, cracks, dents • Check tire pressure, basket, bell, headset • Check handlebar tightness and range of motion • Check seat tightness and seat quick-release • Check brake function and gears for alignment • Check LED lights (front and rear) for function • Check fenders and kickstand for damage • Check for wheels trueness, and broken spokes • Check hub or axle tightness • Check bottom bracket, pedals, cranks • Grease shaft drive; check for correct function • Brief test ride to ensure overall correct function Quarterly Prevention Maintenance and Tune-ups • Adjust tire pressure and replace tires if needed • Adjust headset and replace tires if needed • Adjust seat tightness and seat quick-release, and replace if needed • Adjust brake function and gears for alignment, and replace if needed • Adjust fenders and kickstand for damage, and replace if needed • Adjust for wheels trueness, and replace wheels if needed • Adjust hub or axle tightness, and replace if needed • Adjust bottom bracket, pedals, cranks, and replace if needed • Grease shaft drive; check for correct function, and replace if needed • Brief test ride to ensure overall correct function Attachment H - Attachment I - Attachment K - TO: Active Transportation Working Group DATE: March 13, 2016 FR: Kevin Mulder RE: DRAFT Bike Share Capital Program This memo outlines the plan for the Draft Bike Share Capital Program in advance of the March 2016 Active Transportation Working Group, where staff will solicit feedback on questions listed below. Background/Goals & Objectives Bike sharing has been a mixed success in the Bay Area, as demonstrated by the Bay Area Air Quality Management District’s pilot bike share program, Bay Area Bike Share (BABS). In May 2015, MTC’s Commission approved a privately-funded BABS expansion in Berkeley, Emeryville, Oakland, San Francisco, and San Jose by Motivate Inc. that will add over 6,000 bikes to the system at no public cost. MTC’s Commission also set aside up to $4.5 million for the Bike Share Capital Program in the remaining Bay Area communities at the same May 2015 meeting. The Bike Share Capital Program will award grants over two phases, with the timing of the second phase to be determined following Phase 1. The funding is a one-time funding source to help project sponsors with capital purchase and initial implementation costs and will not be an on-going grant program. It will also not fund operations due to constraints on the federal Congestion Mitigation and Air Quality (CMAQ) funds committed to the program. Program Summary Eligible projects Bike share capital projects in Bay Area communities other than the privately-funded BABS expansion. Typical capital items include:  Bicycles, stations, and station components  Support/rebalancing vehicles for bicycles  Testing equipment & membership cards/readers  Planning, engineering, design, & permitting  Site prep, installation, & project management Total amount available Up to $2 million in Phase 1 Type of funds Congestion Mitigation and Air Quality Funds (CMAQ) – Federal Funds administered by Caltrans Local Assistance Application Process The Bike Share Capital Program will follow a two-step application and evaluation process. First, MTC will invite interested applicants to submit Letters of Interest (3-page maximum, excluding attachments) to describe proposed projects, anticipated impacts, project readiness, and funding plans. The evaluation S:\PLAN\TRAN\_NEW_PTC & City Council\CMRs\2016\6324 Mid-Peninsula Bike Share Study\Memo- MTC Draft Bike Share Capital Program.docx committee will review all LOIs and identify a small number of promising projects. These applicants will be invited to submit a more formal proposal for further evaluation. The evaluation committee will quantitatively evaluate proposals against the following criteria categories: Potential for impact (including bicycle mode shift, reduced VMT, first/last mile solutions, etc.) Full funding plan for ongoing operations Readiness and local support (including feasibility studies, bike facilities, complete streets policies, other engagement, etc.) Local match share of total project cost Capability of the project partners to implement the project Location within a Priority Development Area (PDA), Community of Concern (COC), or Community Air Risk Evaluation (CARE) Program area Schedule & Timeline – all dates are tentative LOI Development & Pre-Application Workshops April – May 2016 LOI Review & MTC Committee Presentation June or July 2016 Full Proposals Development August – September or October 2016 Full Proposals Review October – November 2016 Recommended Program of Projects & Commission Approval December 2016 TIP Revision Approval January 2017 Request for Obligation / E-76 and E-76 Approval from Caltrans June or July 2017 Project Implementation Within 24 months of MTC Commission approval Questions for ATWG What do you recommend for the minimum and maximum size of the grants? What share of the total project amount do you anticipate for planning, engineering, and design? Will you be able to provide a 100% operating funding commitment/plan by September or October of this year? Do you have other concerns about implementation readiness? Should a portion of the $4.5 million be redirected to install bicycle facilities instead of bike share? Would you agree to a condition that poor system usage could result in equipment redistribution after a given period of time? Kevin Mulder Active Transportation Planner Metropolitan Transportation Commission kmulder@mtc.ca.gov 101 8th Street Oakland, CA 94607 510-817-5764 S:\PLAN\TRAN\_NEW_PTC & City Council\CMRs\2016\6324 Mid-Peninsula Bike Share Study\Memo- MTC Draft Bike Share Capital Program.docx City of Palo Alto (ID # 6829) City Council Staff Report Report Type: Special Orders of the Day Meeting Date: 4/25/2016 City of Palo Alto Page 1 Summary Title: Building Safety Month Proclamation Title: Building Safety Month Proclamation From: City Manager Lead Department: City Clerk Attachments:  Attachment A: Building Safety Month Proclamation 2016 (DOCX) Proclamation BUILDING SAFETY MONTH Whereas, Palo Alto’s efforts to address critical issues, such as safety, energy efficiency, water conservation, sustainability and resilience in the built environment, concerns that affect citizens in their everyday lives and in times of natural disaster, gives people confidence and a strong feeling of safety; and Whereas, the City of Palo Alto has taken significant strides in introducing lean government practices, innovative technologies and creative outreach efforts, models that make for continuous improvement and ensure that our city continues to enforce construction codes in a way that is efficient, transparent and predictable; and Whereas, the City of Palo Alto has received a Class One rating from the Insurance Services Office, a rating that shows that Palo Alto maintains the highest standards for structural safety and is a rating that has caused a reduction in insurance rates, which, in turn, has lowered costs to the community; and Whereas, gratitude is given to the vigilant guardians of the city, such as building safety and fire prevention officials, architects, engineers, laborers and others officials who ensure safety in the construction field throughout our city; and Whereas, these city officials use a process that brings together key stakeholders within the public, private, non-profit and citizen sectors, such as architects, engineers, contractors and developers which shape the building codes that make up our city; our commitment to safety, energy conservation, water efficiency and environmental stewardship is seen in these buildings that we live and function in; and Whereas, the City of Palo Alto uses the most widely adopted building safety, energy and fire prevention code in the nation to help protect the public: this is called the International Model Code; and Whereas, the theme of Building Safety Month 2016 is: “Driving growth through innovation, resilience and safety,” a theme which encourages our nation to be aware of the importance of building safety, including new technologies in the construction industry; and Whereas, Palo Alto’s Green Building Initiative is designed to build and operate in a new generation of efficient, environmentally responsible and healthy building criteria, it demonstrates how the practice of green building can have a significant impact on reducing energy and natural resource consumption and it aids in the improvement and well-being of Palo Alto citizens by improving indoor air quality and comfort; and Now, Therefore, I, Patrick Burt Mayor of the City of Palo Alto, on behalf of the City Council do hereby proclaim May, 2016 as Building Safety Month, a month that recognizes the improvement in building safety, which is an essential service. Presented: April 25, 2016 CITY OF PALO ALTO OFFICE OF THE CITY CLERK April 25, 2016 The Honorable City Council Attention: Finance Committee Palo Alto, California Approval of Action Minutes for the April 11, 2016 Council Meeting Staff is requesting Council review and approve the attached Action Minutes. ATTACHMENTS:  Attachment A: 04-11-16 DRAFT Action Minutes (DOC) Department Head: Beth Minor, City Clerk Page 2 CITY OF PALO ALTO CITY COUNCIL DRAFT ACTION MINUTES Page 1 of 8 Regular Meeting April 11, 2016 The City Council of the City of Palo Alto met on this date in the Council Chambers at 6:02 P.M. Present: Berman, Burt, DuBois, Holman, Kniss arrived at 6:45 P.M., Schmid, Wolbach Absent: Filseth, Scharff Closed Session 1. CONFERENCE WITH LABOR NEGOTIATORS City Designated Representatives: City Manager and his Designees Pursuant to Merit System Rules and Regulations (James Keene, Molly Stump, Suzanne Mason, Rumi Portillo, Dania Torres Wong, Allyson Hauck) Employee Organizations: Utilities Management and Professional Association of Palo Alto (UMPAPA); Management, Professional and Confidential Employees Authority: Government Code Section 54957.6(a). MOTION: Council Member Wolbach moved, seconded by Council Member Holman to go into Closed Session. MOTION PASSED: 6-0 Filseth, Kniss, Scharff absent Council went into Closed Session at 6:09 P.M. Council returned from Closed Session at 7:03 P.M. Mayor Burt announced no reportable action. DRAFT ACTION MINUTES Page 2 of 8 City Council Meeting Draft Action Minutes: 4/11/16 Agenda Changes, Additions and Deletions None. Minutes Approval 2. Approval of Action Minutes for the March 28, 2016 Council Meeting. MOTION: Council Member Berman moved, seconded by Mayor Burt to approve the Action Minutes for the March 28, 2016 Council Meeting. MOTION PASSED: 7-0 Filseth, Scharff absent Consent Calendar MOTION: Council Member Kniss moved, seconded by Council Member DuBois to approve Agenda Item Numbers 3-6. 3. Approval of a Contract With Pleasanton Engineering Contractors, Inc. in the Not-to-Exceed Amount of $275,000 for Improvements to the Household Hazardous Waste Station Located at the Regional Water Quality Control Plant. 4. Finance Committee Recommends Adoption of a Budget Amendment for Fiscal Year (FY) 2016 to Adjust Budgeted Revenues and Expenditures in Accordance With the Recommendations in the FY 2016 Midyear Budget Review Report. 5. Adoption of new Memoranda of Agreement With Palo Alto Peace Officers’ Association (PAPOA), International Association of Firefighters’ Union, Local 1319 (IAFF), Service Employees’ International Union, Local 521 (SEIU) and Palo Alto Police Management Association (PAPMA) and Resolution 9581 Entitled, “Resolution of the Council of the City of Palo Alto Amending the City of Palo Alto Merit Rules and Regulations.” 6. Approval of a City of Palo Alto Comment Letter Regarding the Draft 2016 California High Speed Rail Authority Business Plan. MOTION PASSED: 7-0 Filseth, Scharff absent DRAFT ACTION MINUTES Page 3 of 8 City Council Meeting Draft Action Minutes: 4/11/16 Action Items 7. PUBLIC HEARING: Adoption of an Ordinance to Amend Chapter 18.76 (Permits and Approvals) of the Palo Alto Municipal Code to Modify the Architectural Review Findings. The Planning and Transportation Commission and the Architectural Review Board Reviewed and Recommended the Proposed Draft Ordinance. The Proposed Amendments are Exempt From Further Environmental Review per California Environmental Quality Act (CEQA) Guideline Sections 15061(b) and 15301, 15302 and 15305. Public Hearing opened at 7:19 P.M. Public Hearing closed at 7:45 P.M. MOTION: Council Member Holman moved, seconded by Council Member Schmid to adopt an Ordinance which is a continuation of the annual planning codes update discussed in December 2015 and contains amendments to the Architectural Review approval findings contained in Chapter 18.76 of the Palo Alto Municipal Code (PAMC) Title 18 as submitted in the Staff Report, replacing Section 1 of the Ordinance with the following: “(d) Findings Neither the director, nor the city council on appeal, shall grant architectural review approval, unless it is found that at a minimum each of the following findings is met: 1. The design is consistent with applicable elements of the Palo Alto Comprehensive Plan, Zoning Code (including context-based design criteria, as applicable) and any relevant design guides. 2. The project has a unified and coherent design, is an aesthetically holistic design of massing and materials (intended to avoid superficial and “applied” appearance of design), creates an internal sense of order and desirable environment for occupants, visitors, and the general community, and preserves, respects and integrates existing natural features and the historic character including historic resources of the area when relevant; and provides harmonious transitions in size, mass, DRAFT ACTION MINUTES Page 4 of 8 City Council Meeting Draft Action Minutes: 4/11/16 scale and character to adjacent land uses, is compatible within the context of existing development in that it establishes design linkages with surrounding existing buildings so that the visual unity of the street is maintained at a minimum by: (1) Siting, scale, massing, materials; (2) The rhythmic pattern of the street established by the general width of the buildings and the spacing between them; (3) The sizes, proportions, and orientations of windows, bays, and doorways; (4) The location and treatment of entryways where applicable; And enhances living conditions on the site (if it includes residential uses) and in adjacent residential areas. 3. The design is of high aesthetic quality, using high quality materials and appropriate construction techniques, and incorporating textures, colors, and other details that are compatible with and enhance the surrounding area. 4. The design is functional, allowing for ease and safety of pedestrian and bicycle access and providing for elements that support the building’s necessary operations (e.g. convenient vehicle access to property and utilities, appropriate arrangement and amount of open space and integrated signage, if applicable, etc.). 5. The landscape design is desirable, integrated and compatible with the building and the surrounding area, is appropriate to the site’s functions, and utilizes drought-resistant plant material capable of providing desirable habitat and that can be appropriately maintained. 6. The project incorporates design principles that achieve sustainability and green building requirements in areas related to energy efficiency, water conservation, building materials, landscaping, and site planning.” INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER to add to the Motion, “Direct Staff and the Architectural Review Board to review the updated language prior to the next DRAFT ACTION MINUTES Page 5 of 8 City Council Meeting Draft Action Minutes: 4/11/16 reading of this Ordinance and offer approval, feedback or changes.” (New Part B) INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER to remove from the first paragraph of the Motion, “at a minimum” after “unless it is found.” INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER to add to the first paragraph of the Motion, “applicable” after “each of the following.” INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER to add to the Motion Subsection 1, “coordinated area plans” after “as applicable.” INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER to replace in the Motion Subsection 5, “is desirable, integrated and compatible with the building and the surrounding area” with “compliments and enhances the building design and its surroundings.” INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER to add to the Motion Subsection 5, “to the extent practical, indigenous” after “functions, and utilizes.” INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER to remove from the Motion Subsection 2, “is an aesthetically holistic design of massing and materials (intended to avoid superficial and “applied” appearance of design)” and add to subsection 3, “is an aesthetically holistic design of massing and materials (intended to avoid superficial and “applied” appearance of design)” after “high aesthetic quality.” INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER to add to the Motion Subsection 2, “that contribute positively to the site” after “natural features.” MOTION RESTATED: Council Member Holman moved, seconded by Council Member Schmid to: DRAFT ACTION MINUTES Page 6 of 8 City Council Meeting Draft Action Minutes: 4/11/16 A. Adopt an Ordinance which is a continuation of the annual planning codes update discussed in December 2015 and contains amendments to the Architectural Review approval findings contained in Chapter 18.76 of the Palo Alto Municipal Code (PAMC) Title 18 as submitted in the Staff Report, replacing Section 1 of the Ordinance with the following: “(d) Findings Neither the director, nor the city council on appeal, shall grant architectural review approval, unless it is found that each of the following applicable findings is met: 1. The design is consistent with applicable elements of the Palo Alto Comprehensive Plan, Zoning Code (including context-based design criteria, as applicable), coordinated area plans and any relevant design guides. 2. The project has a unified and coherent design, creates an internal sense of order and desirable environment for occupants, visitors, and the general community, and preserves, respects and integrates:  existing natural features that contribute positively to the site and  the historic character including historic resources of the area when relevant; and provides harmonious transitions in size, mass, scale and character to adjacent land uses , is compatible within the context of existing development in that it establishes design linkages with surrounding existing buildings so that the visual unity of the street is maintained at a minimum by: (1) Siting, scale, massing, materials; (2) The rhythmic pattern of the street established by the general width of the buildings and the spacing between them; (3) The sizes, proportions, and orientations of windows, DRAFT ACTION MINUTES Page 7 of 8 City Council Meeting Draft Action Minutes: 4/11/16 bays, and doorways; (4) The location and treatment of entryways where applicable; And enhances living conditions on the site (if it includes residential uses) and in adjacent residential areas. 3. The design is of high aesthetic quality, is an aesthetically holistic design of massing and materials (intended to avoid superficial and “applied” appearance of design) using high quality materials and appropriate construction techniques, and incorporating textures, colors, and other details that are compatible with and enhance the surrounding area. 4. The design is functional, allowing for ease and safety of pedestrian and bicycle access and providing for elements that support the building’s necessary operations (e.g. convenient vehicle access to property and utilities, appropriate arrangement and amount of open space and integrated signage, if applicable, etc.). 5. The landscape design compliments and enhances the building design and its surroundings, is appropriate to the site’s functions, and utilizes, to the extent practical, indigenous drought-resistant plant material capable of providing desirable habitat and that can be appropriately maintained. 6. The project incorporates design principles that achieve sustainability and green building requirements in areas related to energy efficiency, water conservation, building materials, landscaping, and site planning.” B. Direct Staff and the Architectural Review Board to review the updated language prior to the next reading of this Ordinance and offer approval, feedback or changes. MOTION AS AMENDED PASSED: 7-0 Filseth, Scharff absent 8. Direction to Staff Regarding Downtown Palo Alto Parking Wayfinding and Parking Guidance Systems Design. DRAFT ACTION MINUTES Page 8 of 8 City Council Meeting Draft Action Minutes: 4/11/16 MOTION: Council Member Kniss moved, seconded by Council Member Holman to direct Staff to solicit bids for construction for the Downtown Parking Wayfinding design in the green color scheme. SUBSTITUTE MOTION: Council Member Wolbach moved, seconded by Council Member Schmid to direct Staff to solicit bids for construction for the Downtown Parking Wayfinding design in the blue color scheme. SUBSTITUTE MOTION PASSED: 5-2 Holman, Kniss no, Filseth, Scharff absent MOTION: Council Member Kniss moved, seconded by Council Member Berman to direct Staff to prepare plans and estimates for construction and installation of Automated Parking Guidance System (APGS) with preference for single-space monitoring in the Downtown Palo Alto parking garages and solicit bids when funding becomes available. MOTION PASSED: 6-1 DuBois no, Filseth, Scharff absent Inter-Governmental Legislative Affairs None. Council Member Questions, Comments and Announcements Council Member Kniss shared the contributions of Paula Kirkeby to the Palo Alto art community, including running what is now named Smith Anderson Editions. Ms. Kirkeby served on the Public Art Commission and supported the Palo Alto Art Center. Council Member Holman noted that community support and recognition for the work of Paula Kirkeby included the renewal of a Conditional Use Permit by the Planning and Transportation Commission for a period twice as long as requested by Ms. Kirkeby. Adjournment: The meeting was adjourned in memory of Paula Kirkeby at 10:38 P.M. City of Palo Alto (ID # 6832) City Council Staff Report Report Type: Consent Calendar Meeting Date: 4/25/2016 City of Palo Alto Page 1 Summary Title: Approval of Amendment to Extend Contract with Finite Matters Three Years Title: Approval of an Amendment to Contract Number C1415788 with Finite Matters to Increase the Contract Term by Three Years and $142,225 for a Total Not-to-Exceed of $363,555 for Budget Publishing Software Services and Support From: City Manager Lead Department: Administrative Services Recommendation Staff recommends that Council approve and authorize the City Manager or his designee to execute Amendment No. 1 to Contract No. C14151788 with Finite Matters Ltd. (Contract) by increasing the term by three years and the total compensation by $142,225 from $221,330 to $363,555 for budget publication software for the annual operating, capital, and municipal fees budget documents. (Attachment B.) Executive Summary The Office of Management and Budget (OMB) uses a software tool that compiles financial data, text, and graphics into the final Capital, Operating, and Municipal Fees budget documents. This software is the tool that currently pulls all these disparate data points enabling OMB to deliver these documents to the City Council in a timely basis and continues to provide Council with documents that are visually appealing. This amendment is needed to 1) continue improvements and integration efforts of the budget process in the various systems and 2) maximize costly one-time implementation efforts through maintaining this software tool for three additional years. This amendment allows staff to integrate this production software with the new performance measure module in Questica. In addition, in prior years, a number of critical integrations were not completed and additional professional services are necessary to ensure the publication of the documents can be executed. Extending the contract by three years ensures the implementation efforts integrating the publication software primarily to the budget system are maximized through the life of the current budget system contract. This amendment will increase the Finite Matters contract by $142,225 from $221,330 to $363,555 over the life of the proposed extended contract ending December 2019 (compared to the current December 2016 term). Of the $142,225 increase, $70,000 reflects a one-time increase in the current year to complete integration with new system modules and $72,225 to extend the contract for three additional years (year 4: $23,835; year 5: 24,075; year 6: 24,315). City of Palo Alto Page 2 Background On December 16, 2013, the City Council approved a three year contract with Finite Matters Ltd. to replace and purchase budget document publication software for the operating and capital budget documents. This was completed as the City of Palo Alto previously used Component Publisher software from Aleuron Systems which no longer provided support for its Component Publisher software and the company is no longer in existence. The City’s annual budget process starts in the preceding fall for the forthcoming fiscal year. The annual proposed budget documents are released to the City Council in late April. The software allows OMB and department staff to input/edit text for narrative, financial, and performance measurement information in the budget documents; queries financial data to automatically compile and tabulate financial tables; allows OMB staff to manage, change, and edit financial mapping, text, graphics, and photos; and produce high-quality, bookmarked PDF budget documents for viewing on the City’s website. Staff searched for an alternative software solution that compiles financial data, manages and automatically formats text, and incorporates graphics throughout the budget documents. A Request for Proposal (RFP) was issued on September 20, 2013 inviting professional service proposals for the Budget Document Publication Software and three companies responded. The selection committee comprised of City Staff from the OMB and Utilities Department. The committee reviewed all bids submitted and scored on a variety of technical requirements, cost to the City, and references. Although Finite Matters Ltd. was the highest priced proposal, after careful analysis, incorporating feedback from staff, and contract/pricing negotiation, the committee selected Finite Matters Ltd. as the most technically qualified professional firm that has submitted the most advantageous proposal to the City. Finite Matters Ltd. has successfully provided database publishing system implementation and support to a wide variety of customers, including many Federal, state, county and local government agencies. The contract is for three years and provides additional support for setting up and publishing the final adopted operating budget document, training, and configuring the operating and capital budgets with the forthcoming new budgeting system. The original contract was approved in the amount of $221,330 to be funded for three years in the City’s Technology Fund including implementation and annual software maintenance. Currently in the third year of the contract, staff has implemented a majority of this tool and the Operating, capital and Municipal Fee budget documents publishing are all dependent on this tool. Beginning with the Fiscal year 2015, annual budget documents have been produced through this tool. Discussion This amendment provides funding of $70,000 for additional one-time in nature work that is needed in fiscal year 2016 to ensure a manageable workload for the Office of Management and Budget (OMB) to successfully produce a comprehensive and complete operating and capital budget for fiscal year 2017. This will make it possible for the OMB to update the current budget publication integration to include additional customization of the publishing tool to guarantee full functionality and integration with Questica, the City’s budgeting software. This additional funding will ensure the completion of the automation of existing processes amongst various systems and programs and software tools, increasing productivity within the organization as originally intended. Additional work to include: City of Palo Alto Page 3 - Alignment of production software with the new performance measures modules added to Questica - Alignment of the integration of production software with upgraded modules in Questica such as the revised salary and benefits module - Establish independent publishing report run parameters to ensure more independence of staff from professional services assistance from Finite Matters in the long run. In addition allows for more flexible book production in conjunction with the internal budget development timelines. - Streamline the summary charts in the Capital Budget book, currently inputted manually outside of the publishing software and publishing tools - Correct publishing parameters for capital projects, currently completed by maintaining a manual list of projects to be included in the book. - Restructure the logic in the publishing software to correct for manual work arounds used in the development of the FY16 Adopted Budget to ensure the accurate query of appropriate data points including the cost center and general ledger accounts in the various financial tables in both the operating and capital budgets. These adjustments are necessary in order to ensure both Operating and Capital budget books are able to be published by leveraging the existing both time and financial investments made in both the publication and budgeting software systems to date. A recommended three year contract amendment ($72,225 increase; approximately $24,000 annually) maximizes the useful life of custom implementation efforts requiring both significant staff time and financial support through utilizing this tool through the life of the current budget software solution contract ending in 2019. Every organization and their financial structure and presentation has unique elements. Staff has worked to customize the FiniteMatters software (PatternStream) during the initial implementation and through the budget system upgrade implementation as well and integrated current systems as well as this software tool to ensure publication of the peopled and adopted budget documents is possible. This contract extension will sync the publication software contract with the budget system contract term to ensure maximum value for the cost already incurred both contractually and in staff time and resources. Annual costs include the annual software maintenance costs of approximately $10,000 annually as well as 80 hours of support from FiniteMatters for issues that may arise during the annual publication of the proposed budget documents and well as the adopted budget documents. Therefore, staff recommends a three year contract extension of approximately $24,000 annually. Resource Impact This amendment will increase the Finite Matters contract by $142,225 from $221,330 to $363,555 over the life of the proposed contract ending December 2019. Funds for this contract are available in the City’s Technology Fund in the current fiscal year and are subject to the annual appropriation in subsequent years. Additional details can be found in Exhibit “C” Compensation of the contract terms. BUDGET SCHEDULE NOT TO EXCEED AMOUNT Original Contract: $221,330 Amendment 1: Task 3 (Year 3) $ 70,000 Task 4 (Year 4) $ 23,835 City of Palo Alto Page 4 Task 5 (Year 5) $ 24,075 Task 6 (Year 6) $ 24,315 Amendment 1 Total Basic Services and Reimbursable Expense $142,225 Total Amended Not to Exceed Over Six Years $363,555 Environmental Review These services do not constitute a project for the purposes of the California Environmental Quality Act. Attachments:  Attachment A: Original Contract - C14151788 Finite Matters Ltd (PDF)  Attachment B: Contract Amendment - Finite Matters (PDF) ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A ATTACHMENT A 1 Revision April 28, 2014 AMENDMENT NO. 1 TO CONTRACT NO. C14151788 BETWEEN THE CITY OF PALO ALTO AND FINITE MATTERS LTD. FOR PROFESSIONAL SERVICES This Amendment No. 1 to Contract No. C14151788 (“Contract”) is entered into on this 25 day of April, 2016, by and between the CITY OF PALO ALTO, a California chartered municipal corporation (“CITY”), and FINITE MATTERS LTD., a Virginia corporation, located at 3064 River Road West, Goochland, Virginia, 23063, Telephone (804) 556-1180 (“CONSULTANT”). R E C I T A L S A. The Contract was entered into between the parties to replace existing budget document publishing software. B. The parties wish to amend the Contract. NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this Amendment, the parties agree: SECTION 1. Section 2 is hereby amended to read as follows: “SECTION 2. TERM. The term of this Agreement shall be from the date of its full execution through June 30, 2019 unless terminated earlier pursuant to Section 19 of this Agreement.” SECTION 2. Section 4 is hereby amended to read as follows: “SECTION 4. NOT TO EXCEED COMPENSATION. The compensation to be paid to CONSULTANT for performance of the Services described in Exhibit “A”, including both payment for professional services and reimbursable expenses, shall not exceed Three Hundred Sixty-Three Thousand Five Hundred Fifty-Five Dollars ($363,555). The applicable rates and schedule of payment are set out at Exhibit “C-1”, entitled “HOURLY RATE SCHEDULE,” which is attached to and made a part of this Agreement. Additional Services, if any, shall be authorized in accordance with and subject to the provisions of Exhibit “C”. CONSULTANT shall not receive any compensation for Additional Services performed without the prior written authorization of CITY. Additional Services shall mean any work that is determined by CITY to be necessary for the proper completion of the Project, but which is not included within the Scope of Services described at Exhibit “A”.” DocuSign Envelope ID: CBFDD2CE-9C6F-4A02-B33E-4A2AA4B79B80 2 Revision April 28, 2014 SECTION 3. The following exhibit(s) to the Contract is/are hereby amended to read as set forth in the attachment(s) to this Amendment, which are incorporated in full by this reference: a. Exhibit “C” entitled “COMPENSATION”. SECTION 4. Except as herein modified, all other provisions of the Contract, including any exhibits and subsequent amendments thereto, shall remain in full force and effect. IN WITNESS WHEREOF, the parties have by their duly authorized representatives executed this Amendment on the date first above written. CITY OF PALO ALTO City Manager APPROVED AS TO FORM: Senior Asst. City Attorney Finite Matters Ltd. President and CEO Attachments: EXHIBIT "C": COMPENSATION DocuSign Envelope ID: CBFDD2CE-9C6F-4A02-B33E-4A2AA4B79B80 Ben Slone 3 Revision April 28, 2014 EXHIBIT “C” COMPENSATION The CITY agrees to compensate the CONSULTANT for professional services performed in accordance with the terms and conditions of this Agreement based on the hourly rate schedule attached as Exhibit C-1. The compensation to be paid to CONSULTANT under this Agreement for all services described in Exhibit “A” (“Services”) and reimbursable expenses shall not exceed $363,555. CONSULTANT agrees to complete all Services, including reimbursable expenses, within this amount. Any work performed or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to the CITY. BUDGET SCHEDULE NOT TO EXCEED AMOUNT Original Contract: Task 1 (Year 1) $92,245 Task 2 (Year 2) $76,645 Task 3 (Year 3) $18,645 Sub-total Basic Services $187,535 Reimbursable Expense $33,795 Total Basic Services and Reimbursable Expense $221,330 Amendment 1: Task 3 (Year 3) $70,000 ($88,645 total with $18,645 above) Task 4 (Year 4) $23,835 Task 5 (Year 5) $24,075 Task 6 (Year 6) $24,315 Sub-total Basic Services $142,225 Reimbursable Expense $0 Total Basic Services and Reimbursable Expense $142,225 Total Amended Not to Exceed Over Six Years $363,555 REIMBURSABLE EXPENSES The administrative, overhead, secretarial time or secretarial overtime, word processing, photocopying, in-house printing, insurance and other ordinary business expenses are included within the scope of payment for services and are not reimbursable expenses. CITY shall reimburse CONSULTANT for the following reimbursable expenses at cost. Expenses for DocuSign Envelope ID: CBFDD2CE-9C6F-4A02-B33E-4A2AA4B79B80 4 Revision April 28, 2014 which CONSULTANT shall be reimbursed are: A. Travel outside the San Francisco Bay area, including transportation and meals, will be reimbursed at actual cost subject to the City of Palo Alto’s policy for reimbursement of travel and meal expenses for City of Palo Alto employees. B. Long distance telephone service charges, cellular phone service charges, facsimile transmission and postage charges are reimbursable at actual cost. All requests for payment of expenses shall be accompanied by appropriate backup information. Any expense shall be approved in advance by the CITY’s project manager. Under this contract amendment there are no planned reimbursable expenses. ADDITIONAL SERVICES The CONSULTANT shall provide additional services only by advanced, written authorization from the CITY. The CONSULTANT, at the CITY’s project manager’s request, shall submit a detailed written proposal including a description of the scope of services, schedule, level of effort, and CONSULTANT’s proposed maximum compensation, including reimbursable expenses, for such services based on the rates set forth in Exhibit C-1. The additional services scope, schedule and maximum compensation shall be negotiated and agreed to in writing by the CITY’s Project Manager and CONSULTANT prior to commencement of the services. Payment for additional services is subject to all requirements and restrictions in this Agreement. DocuSign Envelope ID: CBFDD2CE-9C6F-4A02-B33E-4A2AA4B79B80 City of Palo Alto (ID # 6760) City Council Staff Report Report Type: Consent Calendar Meeting Date: 4/25/2016 City of Palo Alto Page 1 Summary Title: Amendment No. 4 to Tree Pruning and Removal Contract Title: Approval of Amendment Number 4 to Contract Number C13148075 in the Amount of $117,000 With West Coast Arborists Inc., for Tree Pruning and Removal Services for a Total Contract Compensation Not-to-Exceed $1,349,410 From: City Manager Lead Department: Public Works Recommendation Staff recommends that Council approve and authorize the City Manager or designee to execute Amendment No. 4 to Contract No. C1314875 with West Coast Arborists, Inc.(Attachment A) in the amount of $117,000,increasing the not-to-exceed compensation to $1,349,410 for tree pruning and removal services through June 30, 2016. Background The City has used contract services for tree pruning and removal since 2000, providing a proactive cycle of basic tree maintenance for the City. The most recent tree maintenance contract was initiated in 2013, and awarded to West Coast Arborists, Inc. (CMR #3252) as a three-year contract with two,one-year mutual renewal options, to perform pruning, removal, stump grinding, and other maintenance of approximately 5,054 City trees annually along street corridors within the City’s limits. The original contract was set to expire on June 30, 2015. Several amendments have been executed to extend the contract term and/or add funding. Amendment No. 1 was executed to correct the original contract agreement termination date of June 30, 2015 to January 13, 2016. Amendment No. 2 was approved by Council on March 9, 2015 (CMR #5270), adding $182,410 and extending the term of the contract to March 14, 2016 to address backlogged City of Palo Alto Page 2 pruning work orders, the increase in drought-related work orders and to provide staff more time to complete the Request for Quotations (RFQ) process for a replacement contract.Amendment No. 3 was executed to extend the contract term to June 30, 2016 to bridge the gap between the contract expiration and the expected City Council approval of a new contract. A new, 3-year RFQ for Tree Pruning and Removal Services was developed and competitively solicited in January 2016. Results from the lowest, responsible bidder indicate a significant cost increase for services (in some cases 200-300%). Cost increases are attributed but not limited to an increase in demand due to drought, changes in labor agreements and prevailing wage requirements, and scope of work expansion. Available funding in the existing contract was effectively exhausted in March 2016. Discussion Due to the significant cost increase expected in the new contract, staff determined that it was appropriate to allow Finance Committee and City Council to consider the new multi-year contract as part of the FY 2017 proposed budget. Funding in the current contract has been exhausted, and staff is therefore recommending approval of Amendment No. 4 at this time to provide additional funding so that tree pruning and removal services can be continued. The addition of $117,000 in contract funds will provide pruning for approximately 1,680 trees and removal of approximately 30 trees if needed,consistent with current contract rates, maintaining the monthly average of 420 trees on a 7-year pruning cycle. Retaining West Coast Arborists via Amendment No.4, will continue essential pruning and removal services until the budget process is complete and a new contract awarded. Pruning and removal services promote the health of the tree population and enhance street appearance and safety. Resource Impact Sufficient funding for this amendment is available in the Fiscal Year 2016 operating budget. City of Palo Alto Page 3 Policy Implications This recommendation does not represent any change to existing City policies. Environmental Review The recommended action is CEQA-exempt under the California Environmental Quality Act pursuant to CEQA Guidelines Section 15301(h) (maintenance of existing landscape). Attachments: ·Attachment A -Amendment 4 to Contract C13148075 West Coast Arborists (PDF) Revision April 28, 2014 AMENDMENT NO. 4 TO CONTRACT NO. C13148075 BETWEEN THE CITY OF PALO ALTO AND WEST COAST ARBORISTS, INC. This Amendment No .4 to Contract No. C13148075 (“Contract”) is entered into April 25, 2016 , by and between the CITY OF PALO ALTO, a California chartered municipal corporation (“CITY”), and WEST COAST ARBORISTS, INC., a California corporation, located at 2200 East Via Burton Street, Anaheim, CA 92806 (“CONTRACTOR”). R E C I T A L S A. The Contract was entered into between the parties for the provision of General services for tree pruning and removal services. B. The parties wish to amend the Contract by increasing the compensation from One million two hundred thirty two thousand four hundred ten dollars ($1,232,410) to a not to exceed total amount of One million three hundred forty nine thousand four hundred ten dollars ($1,349,410) for continuation of services as specified in Exhibit “A” of the original contract per Council Staff Report #6760, date 4/25/16. NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this Amendment, the parties agree: SECTION 1. Section 5 “COMPENSATION FOR ORIGINAL TERM” is hereby amended to read as follows: “CITY shall pay and CONTRACTOR agrees to accept as not-to-exceed compensation for the full performance of the Services and reimbursable expenses, if any: The total maximum lump sum compensation of dollars ($ ); OR The sum of dollars ($ ) per hour, not to exceed a total maximum compensation amount of dollars ($ ); OR A sum calculated in accordance with the fee schedule set forth at Exhibit C, not to exceed a total maximum compensation amount of One million three hundred forty nine thousand four hundred ten dollars ($1,349,410) . CONTRACTOR agrees that it can perform the Services for an amount not to exceed the total maximum compensation set forth above. Any hours worked or services performed by CONTRACTOR for which payment would result in a total exceeding the maximum amount of compensation set forth above for performance of the Services shall be at no cost to CITY. DocuSign Envelope ID: 8DAFB94C-363D-43C7-9852-269929C6D3AE Revision April 28, 2014 SECTION 2. Except as herein modified, all other provisions of the Contract, including any exhibits and subsequent amendments thereto, shall remain in full force and effect. IN WITNESS WHEREOF, the parties have by their duly authorized representatives executed this Amendment on the date first above written. CITY OF PALO ALTO ____________________________ City Manager APPROVED AS TO FORM: _____________________________ Senior Deputy City Attorney WEST COAST ARBORISTS, INC. By:___________________________ Name:_________________________ Title:________________________ DocuSign Envelope ID: 8DAFB94C-363D-43C7-9852-269929C6D3AE Vice President Victor Gonzalez CITY OF PALO ALTO OFFICE OF THE CITY ATTORNEY April 25, 2016 The Honorable City Council Palo Alto, California Request for Authorization to Amend two Legal Services Agreements With the Law Firm of Rankin Stock & Heaberlin: (1) for Litigation Defense in the Matter of Harney v. City of Palo Alto Police Department, Increase Compensation by $60,000 for a Total Contract Not-To-Exceed Amount of $90,000; and (2) for Litigation Defense in Multiple General Litigation Matters, Increase Compensation by $60,000 for a Total Not-To-Exceed Amount of $190,000 The City Attorney's Office requests authorization to amend two existing contracts with the law firm of Rankin Stock & Heaberlin (“Rankin Stock”) to increase the contract amounts to provide for litigation defense services:  in the matter of Harney v. Palo Alto Police Department, et al., by $60,000 , and  for multiple personal injury litigation matters, by $60,000. In May 2015, the City retained Rankin Stock to represent the City and the individually sued police officers in the matter of Harney v. Palo Alto Police Department, et al. We entered into a contract for $30,000 to fund the early stages of litigation, with the understanding that additional funds would be needed if the case progressed to discovery, motions and trial. The Council recently approved a settlement of the case. Additional funds are needed to fund discovery activities and settlement negotiations. The increase would bring the total not to exceed compensation on this contract to $90,000. Rankin Stock (formerly Rankin, Landsness, Lahde, Serverian & Stock) has represented the City in various tort and civil rights litigation matters since 2006. The current general litigation contract covers multiple personal injury litigation matters for the period September 2013 through July 31, 2016. The amendment brings the total contract not to exceed amount to $190,000 over this nearly 3 year period. Funding for these amendments does not require additional budgetary authority as they can be accommodated within the Office of the City Attorney’s budget for FY 2016. Department Head: Molly Stump, City Attorney Page 2 City of Palo Alto (ID # 6874) City Council Staff Report Report Type: Action Items Meeting Date: 4/25/2016 City of Palo Alto Page 1 Council Priority: City Finances Summary Title: Fiscal Year 2017 Proposed Budget Overview Title: Fiscal Year 2017 Proposed Budget Overview From: City Manager Lead Department: Administrative Services Background and Discussion As required by the Charter, The City Manager Proposed Operating and Capital Budgets for FY 2017 will be presented to Council on April 25, 2016. The documents are still in production and will be presented to Council on April 25, 2016. At that time, staff will also take time to provide an overview of the budget document during this meeting. Between May 03, 2016 and May 23, 2016, the Finance Committee is scheduled to review the FY 2017 Proposed Operating and Capital Budgets and provide a recommendation to the City Council for adopting the budgets. The transmittal letters in both budgets will provide a succinct overview of the General Fund, Enterprise Funds, Internal Service Funds, and the Capital Fund budgets. Public hearing for the FY 2017 budget is scheduled for June 13, 2016 to allow for the public to provide comments and input to the City Council. The City Council is scheduled to adopt the Fiscal Year 2017 Budget on June 13, 2016 as well. City of Palo Alto COLLEAGUES MEMO April 25, 2016 Page 1 of 4 (ID # 6876) DATE: April 25, 2016 TO: City Council Members FROM: Council Member Berman, Vice Mayor Scharff, Council Member Schmid, Council Member Wolbach SUBJECT: COLLEAGUES MEMO: DEVELOPING CITY POLICY ON ACQUISITION, USE, AND SAFEGUARDS FOR SURVEILLANCE AND INFORMATION-GATHERING TECHNOLOGIES SUMMARY In order to maintain public trust, ensure protection of privacy, and provide clarity for city staff, Palo Alto should proactively adopt an ordinance establishing a general policy governing consideration, adoption, and use of surveillance and information-gathering technologies by city departments, contractors, or partners. RECOMMENDATION We recommend the City Council refer this memo to the Policy and Services Committee to discuss (supported by appropriate staff) creation of an ordinance or other policy governing surveillance and information-gathering technology. Such an ordinance would establish a standard operating procedure (SOP) to be utilized prior to adoption or re-purposing of any technology for potential surveillance applications by City departments, contractors, or partners, as well as prior to seeking funding for such technologies. In addition, the ordinance would require annual reporting on uses of such technologies by the City. Policy and Services should consider the following: 1. Whether and when public hearings and other community engagement are appropriate prior to adoption of surveillance technology by the City, contractor, or partner; 2. The mechanism for Council approval prior to adoption of, re-purposing of, or seeking funding for surveillance technology; 3. Information, such as a Surveillance Impact Report or statement in a City Manager’s Report, to be prepared by staff prior to approval which would include information on operations and management; data use; data minimization and limitation; secure data storage and transmission; data access; data retention; data sharing; handling of Public Records Act requests and any individualized policy recommendations; 4. The requirements of federal, state and local laws, regulations and programs that protect and/or regulate gathering, access, retention and use of personally identifiable information and surveillance technology (such as HIPPA, PCII, PII, VISA, VMS, PRA and April 25, 2016 Page 2 of 4 (ID # 6876) Records Retention). The Committee should survey the existing field of regulation as part of its preparation for developing new regulations; 5. Measures to accommodate community interests in smart city initiatives and other innovations, data-gathering to support planning efforts and other policy development, use of technology to facilitate access to City services and programs, security of persons and property, and cost efficiency, to strike the right balance for Palo Alto; 6. Information sharing between jurisdictions; and 7. What type of oversight, evaluation, auditing, or enforcement are appropriate. For further discussion of possible components, see the model ordinance by the American Civil Liberties Union (Attachment A, pages 22-25) and recommendations by the International Association of Chiefs of Police (Attachment B, pages 3-7). BACKDGROUND Technology Examples of technology with surveillance applications include but are not limited to: automated license plate readers (ALPRs), image and video recording, audio recording, unmanned aerial vehicles (aka “drones”), voice recognition, facial recognition, gait analysis, location tracking, automated social media monitoring, cell phone interceptors / cell phone tower emulators (international mobile subscriber identity catchers "IMSI", e.g. Stingrays), electronic communication surveillance (e.g. internet and phone interception), hacking, and data mining. Palo Alto Palo Alto currently uses audio recording, cameras in police vehicles, body-worn cameras for police officers, and received one ALPR through a County grant. The Council also recently (October 5, 2015) approved a contract to deploy low resolution cameras to count pedestrian and bicycle traffic (the City Manager added a privacy clause to the contract). For video recording in particular, Palo Alto has a staff-written policy that was revised as recently as January 2015. (See Attachment E). Other Cities Other municipalities around the state (see Attachment C) and country have adopted various other technologies, often without notification to the public or elected officials, and without robust policies governing data protection, data access, and data retention. Boston, it was recently revealed, collected ALPR data (tracking residents' locations) which was stored online and accessible by the public. Alameda, CA, recently adopted a policy for Stingrays which was transparent, and well received by privacy advocates and the community as a good example. County Santa Clara County recently rejected adoption of Stingray cell phone interceptors after concerns raised by Supervisor Joe Simitian, in particular due to concerns about transparency. (See attachment D). Santa Clara County is currently considering an ordinance governing surveillance technology use by county agencies. April 25, 2016 Page 3 of 4 (ID # 6876) State In 2015, Governor Jerry Brown signed several bills regarding privacy and modern technology. Two by Senator Jerry Hill deal with ALPRs (SB 34) and cell phone interceptors (SB 741). SB 178 by Senators Mark Leno and Joel Anderson requires a warrant prior to searching cell phones, emails, etc. AB 856 by Assemblymember Ian Calderon restricts use of drones over private property. AB 1116 by Assemblymember Mike Gatto restricts uses of voice recordings by private companies. Federal The Northern California Regional Intelligence Center (aka NCRIC or Fusion Center) in San Francisco links local surveillance with federal, raising concerns for residents about how data collected by local agencies will be shared with federal agencies. Federal intelligence, military, and law enforcement have been the subject of much controversy regarding surveillance technology - the nature, adoption, use, security, and legal justification of which have been questioned. DISCUSSION Law enforcement and government depend on the trust of the community. Use of technologies which has the appearance, potential, or effect of violating privacy or civil liberties can diminish community trust in government, particularly when adopted and used without transparency. The City’s contracting processes include security and other requirements for data and personal information, and the City has a video management procedure that applies to visual information gathering, such as at sensitive utility infrastructure facilities, public garages, etc. Rapidly evolving surveillance technology raises concerns for the City including, but not limited to: privacy of residents and visitors; chilling effects on expression, research, travel, association, or other rights; misuse of data; data breach (access by unauthorized parties); and adoption, use, or expansion of capabilities without Council oversight. Rather than attempt to predict or react to each piece of emerging technology, the proposed ordinance would proactively establish a high level policy to be followed prior to the City (or contractor or partner) seeking funding, adopting, or re-purposing any specific technology. This standard operating procedure would provide clarity and predictability for City departments, the City Council, and the community. As technology advances in coming years, our Police Department in particular will benefit from the confidence of our community that such technologies will only be adopted and utilized in a transparent and responsible manner with clear oversight by the elected City Council and the public to whom they are accountable. Staff Impact Resources from the following departments will be needed to support a policy discussion in Policy & Services: Information Technology, Police Department, Planning & Community April 25, 2016 Page 4 of 4 (ID # 6876) Environment, Utilities, Public Works, Emergency Services, City Manager’s Office, City Clerk’s Office and City Attorney’s Office. Depending on its breadth and specific requirements, significant staff resources may be needed to administer and maintain any new program. As a result of the evolving landscape of technology and security threads, privacy issues and the value of well-conceived policies are not limited to police and public safety activities alone. Utilities, for example, are increasingly working with data that can be sensitive for customers, and this sensitivity will increase with the roll-out of smart meter and smart grid technologies. Similarly, the capability of traffic and parking technologies to collect granular data presents another opportunity to examine the need for balancing data analytics and privacy priorities, while advancing the City’s smart city initiatives. Staff is not suggesting that these issues be overlooked. To the contrary, this may be a topic in which Palo Alto is uniquely positioned to demonstrate leadership in thoughtful stakeholder engagement and policy development. It should be recognized, however, that this effort may be a significant undertaking requiring consummate resources and prioritization to address effectively. MAKING SMART DECISIONS ABOUT SURVEILLANCE A GUIDE FOR COMMUNITIES FROM THE ACLU OF CALIFORNIA alifornia communities are increasingly grappling with whether to deploy new surveillance technologies ranging from drones to license plate readers to facial recognition. This is understandable, since public safety budgets are tight, technology vendors promise the ability to do more with less, and federal agencies or industry sponsors may even offer funding. But surveillance can be both less effective and far more costly to local agencies and to the community at large than initially imagined, leaving communities saddled with long-term bills for surveillance that doesn’t end up making the community safer. Surveillance can also be easily misused, leading to the erosion of community trust, bad press, and even costly lawsuits. In the wake of the revelations about the National Security Agency’s rampant warrantless spying and the use of military equipment in Ferguson, Missouri to quell protests, communities are increasingly focused on the need for greater transparency, oversight, and accountability of surveillance and local policing. More than ever, people are aware of how billions of dollars in federal funding and equipment provided directly to law enforcement is circumventing normal democratic processes and preventing communities from thoroughly evaluating the costs and risks of surveillance. As a result, many community leaders and residents are no longer willing to heed local law enforcement’s call to “just trust us.” Instead, leaders and residents want to know when and why surveillance is being considered, what it is intended to do, and what it will really cost — both in dollars and in individual rights — before taking any steps to seek funding or acquire or deploy surveillance technology. They also want to craft robust rules to ensure proper use, oversight, and accountability if surveillance is used. Unfortunately, few resources exist to help communities make thoughtful decisions about surveillance. That’s where this document comes in. This first-of-its-kind guide provides step-by-step assistance to help communities ask and answer the right questions about surveillance. It includes case studies highlighting smart approaches and missteps to avoid. Because each community and each type of surveillance may present a different set of issues, there is no one-size-fits-all solution. Instead, this guide gives communities a flexible framework that policymakers, community members and law enforcement should use to properly evaluate a wide array of surveillance technologies and develop policies that provide transparency, oversight, and accountability. It also includes a Surveillance & Community Safety Ordinance that communities should adopt to ensure that the right process is followed every time. We hope you will find this document and its supporting materials (available online at aclunc.org/smartaboutsurveillance) useful in making informed decisions about surveillance that recognize and address the costs, risks, and alternatives. Nicole A. Ozer Peter Bibring Technology and Civil Liberties Policy Director Police Practices Director ACLU of California ACLU of California C 1 ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE   Authors: Chris Conley, Matthew Cagle, Peter Bibring, Jessica Farris, Linda Lye, Mitra Ebadolahi and Nicole Ozer, ACLU of California Contributing Writers: Addison Litton & Thomas Mann Miller Design & Layout: Gigi Pandian & Daniela Bernstein Printing: InkWorks Press This publication was underwritten with support from the ACLU Foundation and the ACLU’s generous members and donors.    PUBLISHED BY THE ACLU OF CALIFORNIA NOVEMBER 2014  CONTENTS  Technology Overview ........................................................................................................................ 2 Key Questions to Answer Before Moving Forward with Any Surveillance Proposal ...... 3 Why It Matters: The Costs and Consequences of Surveillance ............................................. 4 Surveillance Carries Both Immediate and Ongoing Financial Costs ....................................... 4 Surveillance Carries Costs for the Community as a Whole ...................................................... 5 Surveillance Faces Increased Scrutiny from Public Officials .................................................... 7 Key Steps when Considering a Surveillance Proposal .............................................................. 9 Collectively Evaluate the Effectiveness, Costs, and Alternatives Before Making Decisions about Surveillance ........................................................................................................................... 9 Establish a Surveillance Technology Use Policy to Mitigate Harms and Protect Rights .. 15 Ensure Accountability by Enforcing Policies and Encouraging Ongoing Public Engagement .................................................................................................................................. 19 Conclusion ......................................................................................................................................... 21 Appendix: Model Surveillance & Community Safety Ordinance ...................................... 22 Endnotes ........................................................................................................................................... 216 2 MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES 3 ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE 4 MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES Why It Matters: The Costs and Consequences of Surveillance  At first glance, surveillance technology may seem like an attractive way to increase public safety while decreasing the costs associated with policing, especially if potentially supported by outside funding. However, surveillance often has unexpected costs, including the expense of installing and maintaining equipment, the practical effect on law enforcement’s ability to work with individuals who feel unfairly singled out, the impact on the rights of community members, and the potential for legal headaches as courts and legislatures continue to grapple with issues related to surveillance. Your community needs to identify and assess all of the costs of surveillance as early in the consideration process as possible in order to determine whether surveillance technology really is the right choice. A. SURVEILLANCE CARRIES BOTH IMMEDIATE AND ONGOING FINANCIAL COSTS  The fiscal impact of surveillance can far exceed initial purchase prices for equipment. Modifying current infrastructure, operating and maintaining systems, and training staff can consume limited time and money even if federal or state grants fund initial costs.1 Surveillance technologies may also fail or be misused, resulting in costly lawsuits. Looking beyond the sticker price is essential.2 1. SURVEILLANCE REQUIRES INFRASTRUCTURE, STAFFING, TRAINING, AND MAINTENANCE  The hidden costs of infrastructure, training and staffing, operations, and maintenance can dwarf the cost of acquiring surveillance technology in the first place. Communities that have failed to accurately estimate the full financial cost of a surveillance system have dealt with massive cost overruns and programs that fail to accomplish their stated purpose. For example, Philadelphia planned to spend $651,672 for a video surveillance program featuring 216 cameras. Instead, it spent $13.9 million on the project and wound up with only 102 functional cameras after a year, a result the city controller described as “exceedingly alarming, and outright excessive — especially when $13.9 million is equivalent to the cost of putting 200 new police recruits on our streets.”3 To avoid a similar incident in your community, it is essential to identify all of the costs required to install, use, and maintain surveillance technology before making a decision about whether to do so. 2. SURVEILLANCE CAN CREATE FINANCIAL RISKS INCLUDING LITIGATION AND DATA BREACH  Surveillance can carry a number of legal risks. Programs that fail to include proper safeguards for freedom of expression, association, and religion, or that inadequately enforce such safeguards, can lead to expensive litigation. For example, Muslim residents in Orange County filed a discrimination lawsuit when it was revealed that state agents were sending informants into mosques to collect information on the identities and activities of worshippers.4 Even technical glitches can create the potential for costly lawsuits and other expenses: the City of San Francisco is still embroiled in a multi-year civil rights lawsuit after wrongly pulling over, handcuffing, and holding at gunpoint an innocent woman due to an error by its ALPR system.5 The collection of surveillance data also creates the risk of data breach liability. Even following best practices (which itself can entail significant expense) is not enough to prevent every breach. California law now requires that a local agency notify residents about a security breach.6 And the fiscal costs of a breach of sensitive surveillance data could be very high: a 2012 “When you’re considering a new  technology, it’s important to  evaluate not only the upfront costs  but also the costs of maintenance  and upgrades that will occur down  the road.”   Captain Michael Grinstead, Newport  News (VA) Police Department2  Under California Civil Code § 1798.29,  local government agencies are  required to notify affected individuals  in the result of a data breach.  5 ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE report found that companies spent an average of $5.5 million to resolve a data security breach.7 The more information your community collects and retains, the greater the risk and potential cost of a breach.8 3. FUNDS SPENT ON SURVEILLANCE MAY BE WASTED DUE TO COMMUNITY BACKLASH   Failing to thoroughly discuss surveillance proposals and listen to community concerns early in the process can result in massive backlash and wasted time and funds when plans have to be suspended or even cancelled. Oakland was forced to scrap most of the planning for its Domain Awareness Center and scale the project back considerably after community members protested the misleading mission statement and lack of transparency for the project.9 Engaging with the community before deciding whether to go forward with a surveillance proposal can help your community avoid a similar mistake. B. SURVEILLANCE CARRIES COSTS FOR THE COMMUNITY AS A WHOLE  The community at large may also pay a heavy price if surveillance technology is acquired and deployed without public evaluation of the risks to the community and strong safeguards to prevent misuse. Surveillance can easily intrude upon the rights of residents and visitors if it is used, or creates the perception that it may be used, to monitor individuals and groups exercising their rights to freedom of expression, association, and religion — freedoms that public officials are sworn to protect.10 In addition, surveillance can erode trust in law enforcement, making it harder for officers and community members to work together to keep the community safe. 1. SURVEILLANCE CAN INTRUDE UPON COMMUNITY MEMBERS’ RIGHTS  Unfortunately, there are many examples demonstrating how readily surveillance can be misused to target individuals based on their associations or religious or political activities. Police in Santa Clara used a GPS device to track a student due to his father’s association with the local Muslim Community Association.11 Police in Michigan sought “information on all the cell phones that were congregating in an area where a labor-union protest was expected.”12 The NSA specifically monitored the email of several prominent Muslim-Americans with no evidence whatsoever of wrongdoing.13 And in Germany, drones that were supposed to be used only for traffic monitoring and for serious kidnapping situations were later used to monitor an anti-nuclear protest.14 15 Surveillance programs that do not focus on individual targets can be particularly problematic. “Dragnet” surveillance of the entire public creates the potential for all sorts of abuse, from NSA analysts tracking romantic partners16 to a Washington, D.C. police lieutenant blackmailing patrons of a gay bar.17 And surveillance targeted at specific groups, such as members of a religious congregation or attendees at a political rally or gun show, can discourage participation in community activities and alienate the group from the rest of “It is essential that big data analysis conducted by  law enforcement outside the context of predicated  criminal investigations be deployed with  appropriate protections for individual privacy and  civil liberties. The presumption of innocence is the  bedrock of the American criminal justice system.  To prevent chilling effects to Constitutional rights  of free speech and association, the public must be  aware of the existence, operation, and efficacy of  such programs.”  ‐ Big Data: Seizing Opportunities, Preserving Values  (White House Report)15 “After [public backlash about Oakland’s proposed Domain  Awareness Center] we really had to regroup and think about  how we needed to proceed.”  Renee Domingo, Oakland Emergency Services Coordinator8  6 MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES the community. Even if specific members of the group are legitimate targets of investigation, tracking the entire group extends “guilt by association” to those who have done nothing wrong. And once members of the group are tainted with such suspicion, it becomes easy to justify prying into their private lives, or even threatening them with further consequences, such as placement on the No-Fly List, if they do not cooperate with additional surveillance efforts.181920212223 Just the perceived threat of surveillance has the potential to harm community members by discouraging political advocacy, efforts to seek counseling about reproductive choices, avenues to explore one’s sexuality, and other activities that are clearly protected by the federal and California constitutions. Most recently, in the wake of the revelations of NSA surveillance, research has shown that Internet users are less likely to use search engine terms that they believed might “get them in trouble with the government.”24 Surveillance carries privacy and free speech threats even if it is conducted solely in public places. This is particularly true when surveillance information is aggregated to build a robust data profile that can “reveal much more in combination than any isolated record.”25 As Supreme Court Justice Sonia Sotomayor has noted, “a precise, comprehensive record of a person’s public movements … reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” In addition, “[a]wareness that the Government may be watching chills associational and expressive freedoms.”26 SURVEILLANCE AND POLITICAL ACTIVISM  In an age when surveillance is often justified by the need to combat terrorism, it’s easy to forget that  police across the U.S. have a long history of conducting surveillance on political activists, from the “Red  Squads” dedicated to disrupting communist groups in the early 20th century to COINTELPRO and other  efforts by the police and FBI to infiltrate and discredit the antiwar and civil rights movements in the  1950s, 60s and 70s. In fact, California has seen a long list of such abuses in its recent history:   o The California Office of Homeland Security collected detailed information about political  demonstrations, including a rally outside a Canadian consulate office in San Francisco to  protest seal hunting, a demonstration in Walnut Creek at which government officials spoke  against the war in Iraq, and a Women's International League for Peace and Freedom gathering  at a courthouse in support of a 56‐year‐old Salinas woman facing federal trespassing charges.19  o Local police have monitored peaceful political events, including a Code Pink antiwar protest  on Mother’s Day20 and even a lecture on veganism at Cal State Fresno.21   o Undercover Oakland police officers infiltrated a group planning a peaceful protest against  police brutality and even took a leadership role in directing the course of the march.22   o Santa Cruz police officers infiltrated planning meetings for a proposed alternative New Year’s  Eve march, leading to a media firestorm and a report from the Santa Cruz police auditor  concluding that the department “violated … [parade] organizers’ rights to privacy, freedom of  speech and freedom of assembly.”23   Intelligence reforms born from lawsuits and congressional inquiries have led many law enforcement  agencies to bar the collection of information about political activism and other First Amendment‐ protected activities without good reason to suspect that a particular individual is or has been involved  criminal activity. There need to be similar restrictions on the use of surveillance technology to ensure  that it is not used to chill or undermine political activism. 7 ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE 2. SURVEILLANCE CAN ERODE TRUST IN LAW ENFORCEMENT  The use of surveillance can also reinforce justified concerns of profiling and discrimination, particularly in communities that have historically faced similar issues. Failing to fully engage with community members about the impact of surveillance — or, worse, skirting the democratic process by acquiring and deploying surveillance technology without public discussion at all — can erode trust even further, making it even harder for law enforcement officers to work with the community to solve crimes and protect public safety. Compton police learned this lesson the hard way: after news of an aerial surveillance program that was intentionally kept “hush-hush” broke, both citizens and lawmakers reacted negatively to the secrecy, with the mayor calling for a “citizen private protection policy” ensuring that the community would be notified before any new surveillance equipment was deployed or used.27 This fear that surveillance could be used in a discriminatory fashion is well-founded. In the years after the September 11th attacks, the New York Police Department created a secretive intelligence wing that infiltrated Muslim neighborhoods with undercover officers, where they monitored the daily lives and compiled dossiers about Muslim-Americans engaging in constitutionally protected activities in cafes, bookstores, and private residences with no evidence of illegal activity.28 And in Britain, where video surveillance is pervasive, a European Parliament study showed that “the young, the male and the black were systematically and disproportionately targeted, not because of their involvement in crime or disorder, but for ‘no obvious reason.’”29 Acquiring and using surveillance technologies without recognizing these concerns can reinforce distrust of law enforcement, hindering rather than aiding the protection of public safety.30 C. SURVEILLANCE FACES INCREASED SCRUTINY FROM PUBLIC OFFICIALS  Public officials are increasingly tackling issues related to surveillance. There is broad, bipartisan political support for surveillance reform in both D.C. and at the state level, and courts are frequently grappling with cases involving surveillance technology. When evaluating a surveillance proposal, your community needs to consider the potential for legal change and the policy and individual rights concerns that are driving that change. One of the most dramatic shifts in the legal landscape has been an increasing recognition that legal protections for individual rights must take into account the impact of modern technology. As a result, a majority of the Supreme Court has suggested that using technology to track an individual’s location — even in public — over an extended period of time triggers constitutional scrutiny.31 Similarly, a federal judge declared the NSA’s warrantless collection of telephone metadata unconstitutional, criticizing its “almost Orwellian” scope.32 Surveillance programs that fail to account for this trend may well be held unconstitutional, and criminal investigations based on evidence from those programs could be jeopardized. 33 In a recent report, Civil Rights Principles in an Era of Big Data, fourteen civil and human rights groups  highlighted the potential disparate impact of data collection on marginalized communities and called  for technology to “be designed and used in ways that respect the values of equal opportunity and  equal justice.” The report called for an end to high‐tech profiling and efforts to safeguard constitutional  principles.30  “GPS monitoring — by making available  at a relatively low cost such a substantial  quantum of intimate information about  any person whom the Government, in its  unfettered discretion, chooses to track — may ‘alter the relationship between  citizen and government in a way that is  inimical to democratic society.’”  United States v. Jones (Sotomayor, J.,  concurring)33  8 MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES The California Constitution is even more protective of community members’ privacy, including in public spaces. The state right to privacy expressly gives Californians a legal and enforceable “right to be left alone” that protects interests in privacy beyond the home.34 The California Supreme Court has held that covertly “infiltrating” and monitoring the activities of students and professors at classes and public meetings without any indication of criminal activity violated the California Constitution,35 as did warrantless aerial surveillance of a resident’s backyard.36 Californians’ right to free expression also extends outside of the home, even to privately-owned areas like shopping centers.37 There are also bipartisan legislative efforts to rein in surveillance at the federal and state level. Federal lawmakers are evaluating proposals aimed at reining in the NSA38 and updating the Electronic Communications Privacy Act.39 As of October 2014, 6 states have enacted laws restricting law enforcement access to location information, with 14 other states considering similar legislation.40 43 states have introduced legislation aimed at curbing the use of drones for surveillance purposes.41 And in communities from Menlo Park to Seattle, local ordinances are placing specific restrictions on the use of surveillance technologies.42 Your community should follow the lead of courts and lawmakers and carefully evaluate the costs and risks of surveillance in order to protect both your investments in public safety and the rights of everyone. ENACT A SURVEILLANCE & COMMUNITY SAFETY ORDINANCE   TO MAKE SURE THE RIGHT PROCESS IS FOLLOWED EVERY TIME  Passing the Surveillance & Community Safety Ordinance included in the Appendix to this guide will  help your community avoid problems down the line by following the right process every time. It  ensures that there is community analysis of surveillance technology whenever it is considered, that  local lawmakers approve each step, and that any surveillance program that is approved includes both  a Surveillance Use Policy that safeguards individual rights and transparency and accountability  mechanisms to ensure that the Policy is followed.  9 ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE Key Steps when Considering a Surveillance Proposal  Surveillance can end up being very costly, both in dollars and in personal freedom. That’s why it is essential to publicly and thoroughly evaluate surveillance proposals. The following section will help your community — including public officials, law enforcement and diverse community members — work together to determine whether surveillance really makes sense and put in place robust rules to ensure proper use, oversight and accountability if your community decides to move forward with a surveillance proposal. 43 A. COLLECTIVELY EVALUATE THE EFFECTIVENESS, COSTS, AND ALTERNATIVES BEFORE  MAKING DECISIONS ABOUT SURVEILLANCE  Surveillance should only be a means to an end, never as an end in itself. That means that your community should have an actual purpose in mind or problem that needs to be addressed before even considering surveillance technology. Once you have that, you can collectively evaluate whether surveillance is likely to effectively accomplish your goals, as well as the costs to both your community’s budget and to individual rights. 1. DECIDE AS A COMMUNITY: INVOLVE THE ENTIRE COMMUNITY FROM THE START  The best way to consider whether surveillance is the right choice and avoid costly mistakes is to engage the entire community — including law enforcement, local lawmakers, and members of the public — in a thorough discussion about any surveillance proposal. Different segments of your community are likely to bring valuable perspectives to the process of evaluating whether to acquire and use surveillance technology. And the time to engage with your community is at the very beginning of the process, before any funding is sought, technology is acquired or system is used.44  How is the community engaged in an informed debate about a surveillance proposal?  It is never too early for a public debate about a surveillance proposal. Community members should know what kind of surveillance is being considered, what it is intended to do and how it will affect them at the earliest stages of the process, when their input can bring out important information, highlight community concerns, and help avoid unforeseen problems and community backlash. The Department of Homeland Security (DHS) Privacy Office and Office for Civil Rights and Civil Liberties  issued CCTV: Developing Privacy Best Practices, a report that encourages government agencies to build  privacy, civil rights, and civil liberties considerations into the design, acquisition, and operations of  video surveillance systems. An appendix highlights the need to follow the Fair Information Practice  Principles of Transparency, Individual Participation, Purpose Specification, Data Minimization, Use  Limitation, Data Quality and Integrity, Security, and Accountability, and Auditing.43  “We need to have discussions with the public  about new technologies and the robust privacy  policies adopted to protect privacy. This lessens  the pushback we get [and] benefits us in the long  run.”  Chief Art Acevedo, Austin (TX) Police Department44  10 MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES Effectively notifying the public that surveillance is being considered requires more than a line item in a public meeting agenda. Proactively reaching out to community groups, including those representing ethnic and religious communities, and local media to increase public awareness early in the process can help your entire community engage with the issue. 45 An informed debate also requires that your community has access to a wide range of information in order to assess how surveillance would work in practice and whether it would advance local goals. Hosting community meetings with various speakers representing different perspectives (not just law enforcement and the technology vendor) can help the community understand how the surveillance technology actually works and its potential implications. Your community should also prepare and release a Surveillance Impact Report to help everyone understand the scope and potential costs of the proposal and a draft Surveillance Use Policy that details the safeguards that would be put in place if the proposal were approved. Your community may also consider convening an ad-hoc committee of local residents, experts and advocates who can work together to make recommendations or help complete these documents. 464748 CASE STUDY: OAKLAND’S “DOMAIN AWARENESS CENTER” FORCED TO SCALE BACK  AFTER KEEPING COMMUNITY IN THE DARK  In 2013 the City of Oakland tried to expand its “Domain Awareness Center,” originally focused on the  Port of Oakland, into a citywide surveillance network linking together video cameras from local streets  and schools, traffic cameras, and gunshot microphones. Instead of soliciting early public input about the  expanded system, Oakland tried to move forward without any meaningful engagement with the  community. Residents were outraged and the City Council voted against expanding the system.45   CASE STUDY: CITIES ENGAGE WITH COMMUNITY MEMBERS TO EVALUATE  SURVEILLANCE PROPOSALS  Several cities considering proposals to introduce or expand surveillance have found it useful to actively  engage community members through working groups and ad‐hoc committees to shape policy and  provide oversight. The Redlands Police Department convened a Citizens’ Privacy Council, open to any  resident of the city, to provide advice on policy for surveillance cameras and oversee police use of the  cameras.46 Richmond formed an ad‐hoc committee to evaluate policies for its video surveillance  program.47 And in 2014, following community backlash and the vote not to expand Oakland’s Domain  Awareness Center, the City Council created a Privacy and Data Retention Ad Hoc Advisory Committee  comprised of diverse community members to create safeguards to protect privacy rights and prevent  the misuse of data for a scaled‐back system to be used at the Port of Oakland.48  11 ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE  How will the community decide whether to proceed with a surveillance proposal?  Community members deserve more than just information about surveillance proposals: they need the opportunity to weigh in on whether the proposal actually benefits the community and how or whether it should move forward, either by giving input to local policymakers at public hearings or by casting their own ballot on the issue. In either case, initial community approval should be obtained before any steps towards acquiring surveillance technology are taken, including applying for funding from outside entities. This ensures that external grants do not circumvent the proper democratic process and cut community members out of the loop. Local policymakers or the community as a whole should be given additional opportunities to weigh in if the proposal changes or as more details become available.49 2. DEFINE THE PURPOSE: ASK HOW AND WHETHER THIS TECHNOLOGY WILL AID YOUR COMMUNITY  Your community cannot determine whether surveillance is an appropriate solution if you have not first identified the problem. Defining the specific purpose or issues that surveillance is intended to address is essential to evaluate the likely effectiveness of surveillance and to identify alternatives that might provide a better fit for your needs and budget. It can help highlight the individuals or communities who are likely to be most impacted by surveillance and ensure that their thoughts and concerns are fully understood. It also USE A SURVEILLANCE IMPACT REPORT TO MAKE AN INFORMED DECISION   The scope and potential costs of a surveillance technology should be assessed and made available to  the community through a Surveillance Impact Report. This report should include:  o information describing the technology, how it works, and what it collects, including technology  specification sheets from manufacturers;  o the proposed purposes(s) for the surveillance technology;  o the location(s) it will be deployed and crime statistics for any location(s);   o an assessment identifying any potential impact on civil liberties and civil rights and discussing  any plans to safeguard the rights of the public; and   o the fiscal costs for the surveillance technology, including initial purchase, personnel and other  ongoing costs, and any current or potential sources of funding.   A worksheet to help your community prepare a Surveillance Impact Report is available at  aclunc.org/smartaboutsurveillance.  CASE STUDY: SAN JOSE’S DRONE GROUNDED UNTIL COMMUNITY APPROVES  San Jose residents were outraged when they learned that their police department had purchased a  drone without any public debate. Amid critical media coverage and protests from community groups,  civil‐rights advocates, and local residents, police apologized and said they would ground the drone until  they could conduct adequate public outreach.49  12 MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES provides a starting point for crafting a Surveillance Use Policy by defining specific objectives for which surveillance is appropriate and barring its use outside of those purposes. 50  What specific community purposes will be aided by adopting this technology?   A well-defined community purpose should include a specific problem and a measurable outcome that the community desires. Vague purposes such as “protecting our city from criminals” make it difficult for the community to understand how surveillance might be used or how its effectiveness might be measured. In contrast, a purpose such as “increase recovery of stolen vehicles” succinctly identifies an outcome desired by community members and helps frame public discussion. That discussion may in turn lead you to narrow or alter the purposes for which surveillance should be used, if you decide to use it at all.51   CASE STUDY: OAKLAND SPENDS $2M ON “HARDLY‐USED” POLICE TECHNOLOGY  The cash‐strapped city of Oakland learned the hard way that acquiring new police technology without  a clearly‐defined purpose can be a waste of time and money. A city audit revealed that the city had  squandered almost $2 million on hardly‐used police technology between 2006 and 2011. The auditor  recommended steps to ensure that technology purchases were intended to fulfil specific strategic  objectives and regular evaluation of their effectiveness.51  SURVEILLANCE AT THE “BORDER”  When you think of the border, you probably imagine a narrow line between our country and our  neighbors. But federal regulations grant the U.S. Customs and Border Protection Agency broad  authority within 100 miles of the edge of U.S. territory, which includes not just cities like San Diego  but Los Angeles, San Francisco, and even Fresno, Redding, and Sacramento.50 This means that the  deployment of surveillance technology by border agencies, including technologies originally  developed for military purposes, impacts individuals and communities throughout California.  Unfortunately, there is very little transparency about the use of surveillance technology by border  agencies. Are local officials or lawmakers cooperating in surveillance activities? Are they even  informed? Or is the federal government monitoring Californians far from the actual border without  the safeguards that our democracy and Constitution demand?  A serious and informed discussion of the implications of widespread surveillance at the “border,”  whether by your local law enforcement or a federal agency, is absolutely necessary to prevent  widespread violations of Americans’ rights to privacy, property, liberty, equal protection, and due  process. Even if your community can’t easily prevent federal agencies from monitoring you, it can  make sure that local law enforcement and lawmakers are transparent about their role. And it can  clearly send a message to federal and state policymakers that you expect to be part of the discussion  of any kind of surveillance in your area.  13 ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE  Will this surveillance technology help your community achieve that purpose?  After your community identifies the purposes that surveillance technology might be able to address, you should evaluate whether the proposed technology would actually achieve them. Manufacturer’s claims should not be taken at face value, and certainly not in isolation. Instead, your community should look at all of the evidence or arguments suggesting that surveillance will or will not effectively help you achieve your defined purpose.52  Are there better alternatives to achieve your purpose?  Even if the proposed surveillance technology does seem likely to help your community achieve its purpose, there still may be alternatives that are just as (or more) effective, less expensive, and/or less likely to be misused or otherwise impact your community members. In particular, you should compare the effectiveness and costs of technology-based solutions with non- technology-oriented approaches to address the problem. For example, multiple studies have shown that traditional approaches such as increased lighting and foot patrols significantly reduce crime.53 You should not automatically assume that surveillance technology will be more effective.54 3. IDENTIFY THE COSTS AND RISKS: EXAMINE FINANCIAL, LEGAL, AND PRACTICAL CONSEQUENCES   Even if a specific technology is appropriate for your community’s purposes, there still may be financial, legal and practical concerns that may make adopting it undesirable. This section will help you measure the likely costs of surveillance so that you can determine whether they are truly outweighed by the expected benefits. CASE STUDY: CITIES REPLACE RED LIGHT CAMERAS WITH LONGER YELLOW LIGHTS  California cities are increasingly shutting down red light cameras as evidence mounts that the cameras  increase, rather than decrease, traffic accidents. For example, in Walnut, CA, a study found that red  light cameras resulted in dramatic increases in “red light running collisions” (400%), “rear end collisions”  (71%) and “broadside collisions” (100%)” and that “no argument can be made that photo enforcement  has improved safety . . . within the city of Walnut. In fact, the use of red light cameras appears to have  decreased safety and put roadway users at increased risk.” In light of this evidence, more than half of  the California cities that once used red light cameras have ended their programs, turning instead to  alternatives that have proven more effective at preventing accidents such as longer yellow lights at  dangerous intersections.54  CASE STUDY: SAN FRANCISCO RECONSIDERS PLANS TO EXPAND   SAFETY CAMERA PROGRAM THAT FAILS TO IMPROVE COMMUNITY SAFETY  In 2005, San Francisco set out to deter violent crime and provide police with an investigative tool by  installing video cameras in the City’s high‐crime, high‐traffic areas. However, post‐installation crime  statistics published by mandate under a city ordinance revealed that the cameras neither reduced crime  nor assisted in solving them in any meaningful way. In fact, the cameras only led to six suspects being  charged by the SFPD between 2005 and 2008. As a result, the Police Commission reconsidered its plans  to expand the program.52  14 MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES  How much will the technology cost your community to acquire and operate?  Deciding how to allocate funds is one of your community’s most important tasks. Every dollar your community spends on surveillance technology is a dollar it cannot spend on some other community need. Residents deserve assurance that funds are being spent on mutually agreed-upon interests. Costs related to surveillance technology will include personnel time, training costs, maintenance and upkeep, as well as any network and storage costs for the data your community may collect. Potential costs associated with risks of data breach or lawsuits based on abuse of surveillance also need to be recognized.55 These questions cannot be dismissed solely because your community is seeking grant funding to pay for the technology. These grants are attractive for obvious reasons: they appear to allow your community to buy a technology without having to spend local taxpayer dollars. But outside grants may not cover the costs that follow a technology’s adoption, particularly the long-term costs of operation, repairs, and personnel. Estimating these costs as accurately as possible — and making sure those estimates are shared with the community and made part of the debate about adopting surveillance — is key.  What are the legal risks and associated potential costs of the surveillance proposal?  Surveillance technology can carry a number of significant legal risks, in part because of rapid changes to privacy law. Even under current law, misuse of surveillance systems or data or technical glitches outside of your control could subject your community to potential legal liability. And as courts and lawmakers continue to reassess how privacy and free speech rights should apply in the digital age, there is a risk that your community’s investment in surveillance technology could leave you with equipment that can no longer be legally used as intended. These factors need to be accounted for when performing a cost- benefit analysis of any surveillance proposal. 5657 “One more question to ask ourselves is whether  we are carefully considering the infrastructure  that is needed to support technology — the  costs of monitoring it and of staffing technology  units at a time when departments are laying off  civilians. We really need to think about all of the  aspects of technology when initial investments  are being made.”  ‐ Police Executive Research Forum, “How Are  Innovations in Technology Affecting Policing?”55 CASE STUDY: FBI REMOVES GPS TRACKERS AFTER SUPREME COURT RULES THAT  WARRANTLESS TRACKING IMPLICATES FOURTH AMENDMENT  The FBI had installed approximately 3,000 GPS trackers on cars without a warrant throughout the United  States when the U.S. Supreme Court ruled in 2012 that their use implicated the Fourth Amendment.56  As a result, the FBI deactivated the warrantless trackers and its agents had to physically retrieve them.57  Obtaining warrants before using those GPS trackers would have ensured the constitutionality of  obtained evidence and saved the FBI considerable time and effort.  15 ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE  How could the surveillance proposal negatively impact public safety or individual rights?  A surveillance proposal designed to benefit your community may carry side effects that undermine that objective. Insecure systems can present a tempting target for hackers, potentially making your community less safe in the process. Surveillance programs that target — or appear to target — specific groups, especially those that already feel marginalized, can make it harder for law enforcement to work cooperatively with those groups to investigate crimes. And surveillance can chill political and social engagement such as attendance at political rallies, gun shows, or religious ceremonies if community members fear that their individual lives are constantly being monitored. Identifying the harms as well as benefits of surveillance is an important part of evaluating any proposal.58 B. ESTABLISH A SURVEILLANCE USE POLICY TO MITIGATE HARMS AND PROTECT  RIGHTS  If after careful consideration and public debate your community decides that a particular surveillance technology is worth adopting, you need to ensure that policies are in place so that it is used properly. A clear, legally enforceable Surveillance Use Policy that provides guidance about when and how to use surveillance can safeguard individual rights while protecting local law enforcement and your entire community from costly lawsuits, bad press, loss of community trust, and more. Recognizing the necessity of use policies, Seattle and Spokane, Washington recently passed ordinances requiring police to develop use guidelines for new surveillance equipment before using it.59 60 Here are some of the key elements of a robust, legally enforceable Surveillance Use policy. 1. USE APPROPRIATELY: PLACE CLEAR LIMITS ON SURVEILLANCE  If your community has been following this guide, you’ve already defined community purposes that justify a particular technology. Now it’s time to use those purposes to decide and memorialize the acceptable uses that will benefit the community and those that are simply prohibited. Doing so safeguards against use of the technology in a manner the community never intended. CASE STUDY: REDLANDS DEPLOYS INSECURE CAMERA NETWORK  The surveillance camera network in the city of Redlands made the news for the wrong reasons when  computer security experts demonstrated how easily they could take control of the cameras. Although  the police department expressed concern about “people with criminal intent using the public camera  feed to case homes or businesses or track the police force,” the network was deployed with no security  at all. Even after the story broke, the network was secured with an outdated encryption protocol that a  researcher described as “putting a diary lock on your front door.”58  CASE STUDY: LAPD BODY CAMERA POLICIES PROTECT OFFICERS AND THE PUBLIC  After announcing its intention to adopt body cameras, the Los Angeles Police Department reached out  to the police union, the ACLU, and the public, to get input on the program and help designing policies  that adequately safeguard privacy of officers and citizens. Being transparent about the program and  soliciting input from the beginning can help ensure policymakers identify problems and address them  from the start.60  16 MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES  When is surveillance permitted or prohibited?  The first step is straightforward but essential: defining how and when the technology may be used. Every entity in your community that conducts surveillance should have a policy that clearly specifies appropriate uses of each technology and bars all other uses. In order to benefit from and reflect community input and oversight, technology should only be used for the particular purposes for which it was acquired. Any proposed new uses should be subject to the same public discussion as the acquisition of new technology, allowing the community to weigh in on the appropriateness of any expanded purpose. Your policy needs to be consistent with constitutional guarantees of privacy, equal protection, freedom of speech and freedom of religion. In fact, your use policy should not only address clearly unlawful but also potentially unlawful uses of surveillance technology. If there are questions about the legality of a specific practice, your use policy should prohibit that practice until there is a definite answer.  What legal or internal process is required to use surveillance?  It is also important to ensure that all legally required and internal processes are followed each time surveillance is used. These processes help to prevent unauthorized or outright illegal uses and also make sure that even appropriate uses of the surveillance technology minimize the impact on individual rights. In many cases, the best way to ensure that legal requirements are satisfied is to require a search warrant prior to conducting surveillance, allowing the court system to play a role in overseeing the program. With the streamlined modern warrant process, officers can seek a judge’s approval quickly and easily by simply placing a phone call or using a mobile device.61 Internal recordkeeping, including recording the reason for each use of surveillance, can also help ensure compliance with the appropriate use policy and create an audit trail for ongoing feedback and oversight.  How are officers trained before they conduct surveillance?  Having clear policies is not helpful if the people using the technology or the data it collects lack the underlying knowledge to comply with those policies. You need to ensure that training programs for anyone involved with surveillance are comprehensive, encompassing not just the technology and Surveillance Use Policy but the purposes and legal rules that inform the Policy. Training should spell out both the obligations of anyone using the technology and the consequences for policy violations. 62  Are you only collecting necessary data?  Ensuring that surveillance technology is used in a way that accomplishes its stated purpose without collecting additional data is a straightforward way to reduce the risk of privacy invasions. That’s why the federal statute authorizing wiretaps has from its inception required “minimization” — an effort to make sure that even after a warrant has issued and collection is underway, police only intercept communications relevant to the investigation, not every communication made by the target.63 “All of our officers receive First and Fourth  Amendment training before they’re allowed to  access the system in any way.”  ‐ Jonathan Lewin, Chicago Police Department Office  of Emergency Management and Communications62  17 ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE The same principle should be applied to other forms of surveillance, requiring a reasonable effort to avoid collecting superfluous information. For example, a police department that deploys drones to an accident scene to quickly identify any need for police or emergency intervention does not need to record and retain video footage.64 2. PREVENT MISUSE OF DATA: LIMIT WHEN DATA CAN BE USED AND WHO CAN ACCESS IT  Even data collected for a legitimate purpose can be put to illegitimate uses. It is essential that your community establish clear rules so that surveillance data is used only for approved purposes. Doing so not only prevents outright abuses of the data that can erode public trust but also keeps “mission creep” from altering the balance that you have already worked out between government actions and individual liberties.  How will surveillance data be secured?  The first step in preventing misuse of data is ensuring that it is stored securely. Technical safeguards are necessary to help protect community members’ data from accidental disclosure and misuse. You should consult with experts and implement safeguards at multiple levels that protect data at all points in its lifespan. Your community may already possess secure storage space separated from other databases and computer systems. This provides you with an obvious level of control. If you choose to store data elsewhere, you must ensure that it is secure and subject to your safeguards. Your community should also designate someone as an authority or custodian with responsibility over community members’ data and your storage systems. 65  Under what circumstances can collected data be accessed or used?  In addition to technical safeguards to protect data, you should also limit the circumstances under which it can be legitimately accessed or used. These limits should be based on the specific purposes your community agreed to when it adopted the technology. For example, if the purpose of the technology is to address specific violent crimes, your policy might allow database searches only as part of an official investigation of a violent crime, and only for data that is related to that investigation. Data access and use CASE STUDY: OHIO STATE HIGHWAY PATROL RETAINS ONLY ALPR HITS  The Ohio State Highway Patrol policy for automated license plate readers (ALPRs) states that “all ‘non‐ hit’ captures shall be deleted immediately.” The ALPR program is intended to detect stolen vehicles,  Amber Alerts, and persons with outstanding warrants. As a result, retaining data about “non‐hit”  vehicles does not further that purpose, and a policy of deleting that data immediately protects the  community from unnecessary risks.64  CASE STUDY: MONTEREY COUNTY SUFFERS DATA BREACH   DUE TO “TOTALLY OBSOLETE” DATA PRACTICES  Monterey County’s computer systems were breached in 2013 and the personal information of over  140,000 local residents was stolen. A subsequent grand jury investigation concluded that the breach  stemmed from “totally obsolete” data practices and a failure to follow privacy laws. The grand jury  warned of “serious financial consequences” if the county failed to change its practices.65  18 MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES policies that are consistent with the articulated purposes for the system will provide guidance to operators and engender community trust by deterring abuses that can follow unfettered access to surveillance data. Your community’s goal of balancing privacy and security will be easier to achieve if particular data access and use limits are accompanied by steps to ensure the rules are followed. Database access should be limited — for example, by only allowing junior staff to access data with the permission and guidance of a more senior officer, or by limiting data access solely to senior officers. As explained earlier, training is a must. Restricting data access to a limited set of trained employees decreases the potential that community members’ data can be misused. To ensure targeted use of data, it may be appropriate to require a search warrant or similar external process before the data can be accessed at all. 6667  What limits exist on sharing data with outside entities?  Placing limits on how you use the data is a great step, but third parties you share the information with may not have the same limits in place. To protect residents’ privacy and prevent uses of information contrary to community desires, it is important to articulate when — if ever — your purposes justify sharing any collected information. During the public debate over your Surveillance Use Policy, the community should decide when sharing is permissible and when it is prohibited. If data can be shared, your community must also determine how to ensure that the entity receiving the data lives up to your community’s standards. This may require contractual language binding the third party to your data policies and safeguards. For example, the city of Menlo Park, California specifically requires by ordinance that any agreement with Northern California’s fusion center demand compliance with the City’s own retention policy.68 If a potential recipient of your data cannot agree with your policies or conditions, the best choice is to not share your data. 3. LIMIT DATA RETENTION: KEEP INFORMATION ONLY AS LONG AS NECESSARY  The longer you retain information, the greater the potential privacy and security risks. The easiest way to minimize these risks is to retain only the information you need and only for as long as you need it.  Does retaining data help accomplish the purpose for which the technology was acquired?  To maximize the usefulness of your technology and minimize civil liberties concerns, your retention period should not be longer than necessary to directly advance community purposes. For instance, deploying automated license plate readers to locate stolen or Amber Alert vehicles is not aided by the collection of historical data. Retaining data “just in case it becomes useful” increases the risk that data will be used contrary to the purpose agreed upon by the community or wind up in the hands of a bad actor. Retaining data can also increase the costs of surveillance by requiring expensive storage solutions and making it harder to effectively use the system. Focusing on the specific objective that surveillance is intended to accomplish can help you determine a retention period that balances that objective with the costs and risks associated with data retention. CASE STUDY: LAX POLICIES LEAD TO “LOVEINT” ABUSE  Without strong policies limiting access to data, the temptation to misuse the system for personal  interests can be hard to resist. The NSA even has a specific term, LOVEINT, for employees who monitor  their significant others,66 and two Fairfield officers could face criminal charges after using a statewide  police database to screen women from online dating sites.67  19 ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE  Are there other legal or policy reasons that inform your data retention policy?  There may be other legal and policy issues that affect your data retention policy, informed by legal concerns unrelated to your community’s purposes. For example, your community should choose a retention period that balances a desire to be responsive to public records requests with residents’ civil liberties, including privacy. Responsiveness to records requests should not be a primary justification for an extended retention period, however, since community concerns about surveillance are better addressed by retaining less information in the first place. 69  What happens when the data retention period expires?  To prevent misuse of data after your community’s desired retention period has lapsed, ensure that data is regularly deleted after that time. This can be accomplished via automated technical measures or periodic audits. Before data is collected, your community should also decide whether there are any specific circumstances that justify the retention of data beyond your community’s chosen retention period and specify what specific condition(s) must be met in order to do so. For instance, it might be appropriate to preserve data relevant to a specific ongoing investigation, data necessary to complete an investigation of internal data misuse, and data relevant to a criminal defendant’s case. Any such conditions should be informed by your community’s purposes and clearly articulated in your Surveillance Use Policy. C. ENSURE ACCOUNTABILITY BY ENFORCING POLICIES AND ENCOURAGING ONGOING  PUBLIC ENGAGEMENT  Even if your community has already deployed surveillance technology, the community as a whole has a crucial role in ensuring that the public interest is still being accomplished by surveillance. One key question is whether your Surveillance Use Policy is actually effectively safeguarding individual rights and preventing abuses. A second is whether the assumptions you made when you approved surveillance in the first place still hold true after actual experience with the technology and its impact. Revamping or even cancelling an ineffective or imbalanced program is better than wasting time, money, and community trust on a tool that does more harm than good. 1. IDENTIFY AND ADDRESS ABUSES: AUDIT USE OF TECHNOLOGIES AND DATA AND ADDRESS ANY MISUSE  The safeguards in your Surveillance Use Policy are only worthwhile if the policy is actually followed. But given the secretive nature of many forms of surveillance, ensuring compliance takes conscious effort. Strong internal and external oversight and auditing can help identify isolated or systemic abuses of surveillance technology, and legally enforceable sanctions can deter both.  What type of supervision exists for persons operating the technology?  Your system of management, in addition to technical measures, facilitates internal oversight of your technology and data. Designating a chain of command for a given surveillance technology helps specific personnel understand what responsibilities they have over the equipment or data and makes it easy to trace where misuse occurred. All of this helps your community deter abuses and guarantee that resources are used wisely. “If there’s anything of a criminal nature recorded on video,  it’s grabbed and inventoried within hours. Most everything  else is never looked at again, so it’s purged automatically.”  ‐ Commander Steven Caluris, Chicago Police Department69  20 MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES  How will misuses of the technology be identified?   The best way to identify misuse of surveillance is to “watch the watchers” by keeping thorough records of each time surveillance is deployed or surveillance data is called up. The person or persons with oversight responsibility should be independent, be given full access to the technology and database, and empowered to receive complaints about misuse and draw conclusions that can lead to legally enforceable consequences. To catch what human oversight misses, your community should ensure that technical measures including access controls and audit logs are in place. Placing the oversight authority with a third party such as the City Council or a citizen panel may also increase the likelihood that the misuses are accurately identified. 70  What legally enforceable sanctions exist against misuse and abuse of this technology?   By establishing consequences for violations of the guidelines, your community encourages proper use of the technology and sends a message that community values apply to everyone. Depending on the circumstances, sanctions ranging from retraining to fines, suspensions, or termination may be appropriate for violations of your Surveillance Use Policy. In addition, your community should provide an appropriate remedy for anyone harmed by an abuse. Legally enforceable sanctions discourage misuse and guarantee that aggrieved community members will be made whole. 2. KEEP THE DIALOG OPEN: ENCOURAGE PUBLIC OVERSIGHT AND ONGOING DISCUSSION  Your community at large plays two essential roles in ensuring that any current surveillance program actually benefits your community. First, transparency about abuses of surveillance allows the community to determine whether the Surveillance Use Policy or any associated sanctions need to be revised to address the issue. Second, as your community learns first-hand whether surveillance is effective and how it impacts different individuals and groups, you may wish to reassess the purposes for which surveillance should be used or even whether it should still be used at all. Surveillance should be under the control of the community at all times, not just when it is initially being considered.  How will the community continue to be informed about the surveillance program?  It is important that your community’s oversight mechanisms not only are in place before surveillance is used but also remain available as long as the surveillance program continues or any collected data remains. This allows the community to continue to learn about and provide feedback on the effectiveness and impact of surveillance, and provides the information you will need to evaluate any changes going forward. “[A]ll usage is supervised. All camera and operator  actions are logged and can be tracked later.”  ‐ Jonathan Lewin, Chicago Police Department Office  of Emergency Management and Communications.70  CASE STUDY: FRESNO ADOPTS ANNUAL AUDIT OF VIDEO SURVEILLANCE  When the Fresno Police Department proposed a citywide video‐policing program using live‐feed  cameras, the city council required an annual independent audit to ensure that all of the privacy and  security guidelines for the system’s use are being followed. Fresno Police Chief Jerry Dyer said he  supported the audit: “I have no doubt the audit will be very helpful to our ongoing video policing  operations.” The city’s auditor, a retired federal district court judge with deep experience on civil rights  cases, examined current use of the system and made specific policy recommendations.71  21 ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE One of the most effective ways to keep your community informed is to produce an annual report about each surveillance technology that has been used in this past year. This report should include: o A description of how and how often the technology was used; o Information, including crime statistics, that indicate whether the technology was effective at accomplishing its stated purpose; o A summary of community complaints or concerns about the technology; o Information about any violations of the Surveillance Use Policy, data breaches, or similar incidents, including the actions taken in response, or results of any internal audits; o Whether and how data acquired through the use of the technology was shared with any outside entities; o Statistics and information about Public Records Act requests, including responses; and o The total annual costs for the technology, including personnel and other ongoing costs, and any external funding available to fund any or all of those costs in the coming year. 71 In addition, there may be other ways to provide your community with information about the operation and effectiveness of the surveillance program. Responding to Public Records Act requests with as much information as possible, taking into account factors such as the privacy rights of individuals whose information may be included in the requested data, is one way to allow interested community members access to concrete information about the program. Creating standing committees of community members, regularly holding public events and forums, and establishing open inspection periods for the technology can also help keep the community informed.  How will local officials and the public re‐evaluate the decision to engage in surveillance or the  existing policies and safeguards?  The community’s decision to approve surveillance should be reconsidered on an annual basis. If there is evidence that call into question the conclusion that the benefits of surveillance outweigh costs and concerns, or that there are better ways to achieve the same purpose with fewer costs or risks, policymakers should seek community input and take whatever action is appropriate to address these concerns. That may involve narrowing the purpose or scope of surveillance, requiring modifications to the Surveillance Use Policy, or exploring alternatives that better address community needs. Conclusion  Communities increasingly understand the need to make smart choices about surveillance technology and ensure that time, energy, and resources are not spent on systems that cost more, do less, and have a greater impact on the rights of community members than you expect. And following public outcry about NSA spying and the use of military equipment by local police, community members demand — and deserve — both a voice in any decision to deploy surveillance technology and reassurance that robust safeguards and public oversight will be in place if surveillance is going to be used. Make sure that your entire community is engaged in asking and answering the right questions about surveillance technology by adopting a Surveillance & Community Safety Ordinance and following the other recommendations in this guide. 22 MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES Appendix: Model Surveillance & Community Safety Ordinance  A. KEY PRINCIPLES OF THE MODEL ORDINANCE  o Informed Public Debate at Earliest Stage of Process: Public notice, distribution of information about the proposal, and public debate prior to seeking funding or otherwise moving forward with surveillance technology proposals. o Determination that Benefits Outweigh Costs and Concerns: Local leaders, after facilitating an informed public debate, expressly consider costs (fiscal and civil liberties) and determine that surveillance technology is appropriate or not before moving forward. o Thorough Surveillance Use Policy: Legally enforceable Surveillance Use Policy with robust civil liberties, civil rights, and security safeguards approved by policymakers. o Ongoing Oversight & Accountability: Proper oversight of surveillance technology use and accountability through annual reporting, review by policymakers, and enforcement mechanisms. B. MODEL ORDINANCE TEXT  The [Council/Board of Supervisors] finds that any decision to use surveillance technology must be judiciously balanced with the need to protect civil rights and civil liberties, including privacy and free expression, and the costs to [City/County]. The [Council/Board] finds that proper transparency, oversight, and accountability are fundamental to minimizing the risks posed by surveillance technologies. The [Council/Board] finds it essential to have an informed public debate as early as possible about whether to adopt surveillance technology. The [Council/Board] finds it necessary that legally enforceable safeguards be in place to protect civil liberties and civil rights before any surveillance technology is deployed. The [Council/Board] finds that if surveillance technology is approved, there must be continued oversight and annual evaluation to ensure that safeguards are being followed and that the surveillance technology’s benefits outweigh its costs. NOW, THEREFORE, BE IT RESOLVED that the [Council/Board] of [City/County] adopts the following: Section 1. Title This ordinance shall be known as the Surveillance & Community Safety Ordinance. Section 2. [Council/Board] Approval Requirement 1) A [City/County] entity must obtain [Council/Board] approval at a properly-noticed public hearing prior to any of the following: a) Seeking funds for surveillance technology, including but not limited to applying for a grant, accepting state or federal funds, or in-kind or other donations; b) Acquiring new surveillance technology, including but not limited to procuring such technology without the exchange of monies or consideration; c) Using new surveillance technology, or using existing surveillance technology for a purpose, in a manner or in a location not previously approved by the [Council/Board]; or d) Entering into an agreement with a non-[City/County] entity to acquire, share or otherwise use surveillance technology or the information it provides. 2) A [City/County] entity must obtain [Council/Board] approval of a Surveillance Use Policy prior to engaging in any of the activities described in subsection (1)(b)-(d). 23 ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE Section 3. Information Required 1) The [City/County] entity seeking approval under Section 2 shall submit to the [Council/Board] a Surveillance Impact Report and a proposed Surveillance Use Policy at least forty-five (45) days prior to the public hearing. 2) The [Council/Board] shall publicly release in print and online the Surveillance Impact Report and proposed Surveillance Use Policy at least thirty (30) days prior to the public hearing. Section 4. Determination by [Council/Board] that Benefits Outweigh Costs and Concerns The [Council/Board] shall only approve any action described in Section 2, subsection (1) of this ordinance after making a determination that the benefits to the community of the surveillance technology outweigh the costs and the proposal will safeguard civil liberties and civil rights. Section 5. Compliance for Existing Surveillance Technology Each [City/County] entity possessing or using surveillance technology prior to the effective date of this ordinance shall submit a proposed Surveillance Use Policy no later than ninety (90) days following the effective date of this ordinance for review and approval by [Council/Board]. If such review and approval has not occurred within sixty (60) days of the submission date, the [City/County] entity shall cease its use of the surveillance technology until such review and approval occurs. Section 6. Oversight Following [Council/Board] Approval 1) A [City/County] entity which obtained approval for the use of surveillance technology must submit a Surveillance Report for each such surveillance technology to the [Council/Board] within twelve (12) months of [Council/Board] approval and annually thereafter on or before November 1. 2) Based upon information provided in the Surveillance Report, the [Council/Board] shall determine whether the benefits to the community of the surveillance technology outweigh the costs and civil liberties and civil rights are safeguarded. If the benefits do not outweigh the costs or civil rights and civil liberties are not safeguarded, the [Council/Board] shall direct that use of the surveillance technology cease and/or require modifications to the Surveillance Use Policy that will resolve the above concerns. 3) No later than January 15 of each year, the [Council/Board] shall hold a public meeting and publicly release in print and online a report that includes, for the prior year: a. A summary of all requests for [Council/Board] approval pursuant to Section 2 or Section 5, including whether the [Council/Board] approved or rejected the proposal and/or required changes to a proposed Surveillance Use Policy before approval; and b. All Surveillance Reports submitted. Section 7. Definitions The following definitions apply to this Ordinance: 1) “Surveillance Report” means a written report concerning a specific surveillance technology that includes all of the following: a. A description of how the surveillance technology was used; b. Whether and how often data acquired through the use of the surveillance technology was shared with outside entities, the name of any recipient entity, the type(s) of data disclosed, under what legal standard(s) the information was disclosed, and the justification for the disclosure(s); c. A summary of community complaints or concerns about the surveillance technology; 24 MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES d. The results of any internal audits, any information about violations of the Surveillance Use Policy, and any actions taken in response; e. Information, including crime statistics, that help the community assess whether the surveillance technology has been effective at achieving its identified purposes; f. Statistics and information about public records act requests, including response rates; and g. Total annual costs for the surveillance technology, including personnel and other ongoing costs, and what source of funding will fund the technology in the coming year. 2) “[City/County] entity” means any department, bureau, division, or unit of the [City/County]. 3) “Surveillance technology” means any electronic device, system utilizing an electronic device, or similar used, designed, or primarily intended to collect, retain, process, or share audio, electronic, visual, location, thermal, olfactory or similar information specifically associated with, or capable of being associated with, any individual or group. 4) “Surveillance Impact Report” means a publicly-released written report including at a minimum the following: (a) Information describing the surveillance technology and how it works, including product descriptions from manufacturers; (b) information on the proposed purposes(s) for the surveillance technology; (c) the location(s) it may be deployed and crime statistics for any location(s); (d) an assessment identifying any potential impact on civil liberties and civil rights and discussing any plans to safeguard the rights of the public; and (e) the fiscal costs for the surveillance technology, including initial purchase, personnel and other ongoing costs, and any current or potential sources of funding. 5) "Surveillance Use Policy" means a publicly-released and legally-enforceable policy for use of the surveillance technology that at a minimum specifies the following: a. Purpose: The specific purpose(s) for the surveillance technology. b. Authorized Use: The uses that are authorized, the rules and processes required prior to such use, and the uses that are prohibited. c. Data Collection: The information that can be collected by the surveillance technology. d. Data Access: The individuals who can access or use the collected information, and the rules and processes required prior to access or use of the information. e. Data Protection: The safeguards that protect information from unauthorized access, including encryption and access control mechanisms. f. Data Retention: The time period, if any, for which information collected by the surveillance technology will be routinely retained, the reason such retention period is appropriate to further the purpose(s), the process by which the information is regularly deleted after that period lapses, and the specific conditions that must be met to retain information beyond that period. g. Public Access: How collected information can be accessed or used by members of the public, including criminal defendants. h. Third Party Data Sharing: If and how other [City/County] or non-[City/County] entities can access or use the information, including any required justification or legal standard necessary to do so , and any obligations imposed on the recipient of the information. i. Training: The training required for any individual authorized to use the surveillance technology or to access information collected by the surveillance technology, including any training materials. j. Auditing and Oversight: The mechanisms to ensure that the Surveillance Use Policy is followed, including identifying personnel assigned to ensure compliance with the policy, internal recordkeeping of the use of the technology or access to information collected by the technology, technical measures to monitor for misuse, any independent person or entity with oversight authority, and the legally enforceable sanctions for violations of the policy 25 ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE Section 8. Enforcement 1) Any violation of this Ordinance constitutes an injury and any person may institute proceedings for injunctive relief, declaratory relief, or writ of mandate in any court of competent jurisdiction to enforce this Ordinance. 2) A court shall award costs and reasonable attorneys' fees to the plaintiff who is the prevailing party in an action brought to enforce this Ordinance. 3) In addition, for a willful, intentional, or reckless violation of this Ordinance, an individual shall be deemed guilty of a misdemeanor and may be punished by a fine not exceeding $1,000 per violation, imprisonment in the county jail for not more than six months, or both such a fine and imprisonment. Section 9. Severability The provisions in this Ordinance are severable. If any part of provision of this Ordinance, or the application of this Ordinance to any person or circumstance, is held invalid, the remainder of this Ordinance, including the application of such part or provisions to other persons or circumstances, shall not be affected by such holding and shall continue to have force and effect. Section 10. Effective Date This Ordinance shall take effect on [DATE]. 26 MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES 1 See Darwin Bond Graham & Ali Winston, The Hidden Costs of Oakland’s Surveillance Center, East Bay Express, Jan. 22, 2014, available at http://www.eastbayexpress.com/oakland/controversial-the-hidden-costs-of-oaklands-surveillance- center/Content?oid=3816398; Nancy La Vigne et al., Urban Institute, Evaluating the Use of Public Surveillance Cameras for Crime Control and Prevention (2011), available at http://www.cops.usdoj.gov/Publications/ e071112381_EvalPublicSurveillance.pdf. 2 Police Executive Research Forum, How Are Innovations in Technology Transforming Policing? 26 (Jan. 2012) [hereinafter PERF Report], available at http://www.policeforum.org/assets/docs/Critical_Issues_Series/ how%20are%20innovations%20in%20technology%20transforming%20policing%202012.pdf. 3 Press Release, Office of the Controller, Butkovitz Alarmed by Police Camera Program, June 20, 2012, http://www.philadelphiacontroller.org/page.asp?id=792. 4 See Fazaga v. FBI, 844 F.Supp.2d 1022 (C.D. Cal. 2012). 5 See Tim Cushing, Another Bogus Hit from a License Plate Reader Results in Another Citizen Surrounded by Cops with Guns Out, TechDirt (May 23, 2014), https://www.techdirt.com/articles/20140513/07404127218/another-bogus-hit-license-plate- reader-results-another-citizen-surrounded-cops-with-guns-out.shtml. 6 Cal. Civil Code § 1798.29 (2014). 7 Ponemon Inst. & Symantec, 2011 Cost of Data Breach Study: United States (2012), available at http://www.symantec.com/ content/en/us/about/media/pdfs/b-ponemon-2011-cost-of-data-breach-us.en-us.pdf. 8 Symposium, The Value of Privacy, U. Cal.-Hastings School of L. Const. L. Q., Apr. 7, 2014 (oral remarks), available at http://livestre.am/4P7Lk. 9 See Will Kane, Oakland to Limit Surveillance Center to Port, Airport, S.F. Gate, Mar, 6, 2014, available at http://www.sfgate.com/bayarea/article/Oakland-to-limit-surveillance-center-to-port-5290273.php. 10 For example, the San Francisco Police Department’s Mission Statement states that “policing strategies must preserve and advance democratic values” and that “police must respect and protect the rights of all citizens as guaranteed by the state’s Constitution.” Police Department, Mission Statement, http://sf-police.org/index.aspx?page=1616. 11 Terrence O’Brien, Caught Spying, FBI Asks Student to Return GPS Tracker, SWITCHED (Oct. 8, 2010), http://www.switched.com/2010/10/08/caught-spying-fbi-asks-student-to-return-gps-tracker/. 12 Michael Isikoff, FBI Tracks Suspects’ Cell Phones Without a Warrant, Newsweek, Feb, 18, 2010 (updated Mar. 13, 2010), available at http://www.newsweek.com/fbi-tracks-suspects-cell-phones-without-warrant-75099. 13 David Kravets, Rights Groups Decry New NSA Leak: Snooping on Muslim-Americans’ E-mail, Ars Technica (July 9, 2014), http://arstechnica.com/tech-policy/2014/07/rights-groups-decry-new-nsa-leak-snooping-on-muslim-americans-e- mail/. 14 Christian Watien, 5 Uses for Drones that Don’t Involve Fighting Terrorists, Epoch Times (Nov. 10, 2012), www.theepochtimes.com/n2/world/5-uses-for-drones-that-don-t-involve-fighting-terrorists-313051-print.html. 15 Executive Office of the President, Big Data: Seizing Opportunities, Preserving Values 66 (2014), available at http://www.whitehouse.gov/sites/default/files/docs/big_data_privacy_report_may_1_2014.pdf. 16 Andrea Peterson, LOVEINT: When NSA Officers Use Their Spying Power on Love Interests, Wash. Post, Aug. 24, 2013, available at http://www.washingtonpost.com/blogs/the-switch/wp/2013/08/24/loveint-when-nsa-officers-use-their- spying-power-on-love-interests/. 17 See Julia Angwin & Jennifer Valentino-DeVries, New Tracking Frontier: Your License Plates, Wall St. J., Sep. 29, 2012, available at http://online.wsj.com/news/articles/SB10000872396390443995604578004723603576296. 18 See Tanvir v. Holder, Case No. 13-CV-6951 (S.D. N.Y. Apr. 22, 2014) (First Amended Complaint), available at http://apps.washingtonpost.com/g/documents/world/lawsuit-accusing-us-of-putting-people-on-no-fly-list-after-they- say-they-wont-spy/941/. 19 Peter Nicholas, State Tracked Protesters in the Name of Security, L.A. Times, July 1, 2006, available at http://articles.latimes.com/2006/jul/01/local/me-security1.. 20 Camille T. Taiara, Monitoring Malcontents: Why Do the Governor’s Critics Keep Findings Themselves Targets of Strange Police Scrutiny?, S.F .Bay Guardian, http://www.sfbg.com/39/41/news_governator.html. 21 See Mike Rhodes, Students at CSUF Are Starving for Civil Liberties, Indybay (Apr. 27, 2005), https://www.indybay.org/newsitems/2005/04/27/17351181.php. 22 Local 10 ILWU v. City of Oakland, No. 3:03-cv-02962 (N.D. Cal. Apr. 28, 2005) (Jordan Dep. at 24:11-24). 23 See Bradley, Santa Cruzans Speak Out Against Police Infiltration and for an Independent Investigation, Indybay (Jan. 25, 2006), https://www.indybay.org/newsitems/2006/01/25/17981451.php. 24 Alex Marthews & Catherine Tucker, Government Surveillance and Internet Search Behavior (March 24, 2014), http://ssrn.com/abstract=2412564. 25 Riley v. California, 134 S. Ct. 2473, 2489 (2014). Endnotes  27 ONLINE AT ACLUNC.ORG/SMARTABOUTSURVEILLANCE 26 United States v. Jones, 132 S.Ct. 945, 955, 56 (2012). 27 Angel Jennings, Richard Winston & James Rainey, Sherriff’s Secret Air Surveillance of Compton Sparks Outrage, L.A. Times, Apr. 23, 2014, available at http://www.latimes.com/local/lanow/la-me-ln-sheriffs-surveillance-compton-outrage- 20140423-story.html. 28 Adam Goldman & Matt Apuzzo, NYPD Defends Tactics over Mosque Spying; Records Reveal New Details on Muslim Surveillance, Huffington Post (Feb 25, 2012), http://www.huffingtonpost.com/2012/02/24/nypd-defends-tactics- over_n_1298997.html; Adam Goldman & Matt Apuzzo, New York Drops Unit That Spied on Muslims, N.Y. Times, April 15, 2014, available at http://www.nytimes.com/2014/04/16/nyregion/police-unit-that-spied-on-muslims-is- disbanded.html. 29 European Parliament Directorate General Internal Policies, A Review of the Increased Used of CCTV and Video-Surveillance for Crime Prevention Purposes in Europe 15 (2009). 30 See Press Release, Leadership Conference, Civil Rights Principles for the Era of Big Data, http://www.civilrights.org/press/2014/civil-rights-principles-big-data.html. 31 U.S. v. Jones, 132 S.Ct. 945 , 954 (2012) (Sotomayor, J., concurring); id. at 957 (Alito, Ginsberg, Breyer, and Kagan, J., concurring in the judgment). 32 Klayman v. Obama, Civ. No. 13-0851 (D.D.C. Dec. 16, 2013). 33 U.S. v. Jones, 132 S.Ct at 956 (quoting U.S. v. Cuevas-Perez, 640 F.3d 272, 285 (7th Cir. 2011) (Flaum, J., concurring)). 34 Ballot Pamplet., Proposed Amendments to Cal. Const. with Arguments to Voters, Gen. Elec. (Nov. 7, 1972). 35 White v. Davis, 533 P.2d (Cal. 1975). 36 People v. Cook 41 Cal. 3d 373 (1985). 37 Robins v. Pruneyard Shopping Center, 592 P.2d 899 (Cal. 1979) (holding that, under the California Constitution, members of the public have a legal right to pass out pamphlets and seek signatures in a privately-owned shopping center), aff’d, .447 U.S. 74 (1980). 38 U.S.A. Freedom Act, H.R. 3361, 113th Cong. (2013). 39 Email Privacy Act, H.R. 1852, 113th Cong. (2013). 40 Allie Bohm, Status of Location Privacy Legislation in the States, ACLU Free Future (April 8, 2014), https://www.aclu.org/blog/technology-and-liberty-national-security/status-location-privacy-legislation-states (as of May 6, 2014). 41 Allie Bohm, Status of 2014 Domestic Drone Legislation in the States, ACLU Free Future (April 22, 2014), https://www.aclu.org/blog/technology-and-liberty/status-2014-domestic-drone-legislation-states (as of May 6, 2014). 42 See Bonnie Eslinger, Menlo Park Council Approves Ordinance Regulating Police Use of Surveillance, San Jose Mercury News, May 14, 2014, available at http://www.mercurynews.com/breaking-news/ci_25766277/menlo-park-council-approves- ordinance-regulating-police-use; Seattle City Council Enacts Groundbreaking Legislation Protecting Residents’ Civil Liberties, Local Progress (May 1, 2013), http://localprogress.org/seattle-city-council-enacts-groundbreaking-legislation-protecting- residents-civil-liberties/. 43 U.S. Dep’t of Homeland Security, CCTV: Developing Best Practices (2007), available at http://www.dhs.gov/xlibrary/assets/privacy/privacy_rpt_cctv_2007.pdf. 44 PERF Report, supra note 2, at 35. 45 Ali Winston, Oakland City Council Rolls Back the Domain Awareness Center, East Bay Express (Mar. 5, 2014), http://www.eastbayexpress.com/SevenDays/archives/2014/03/05/oakland-city-council-rolls-back-the-dac. 46 Redlands Police Department, Citizen Privacy Council, http://www.cityofredlands.org/police/CPC. 47 Memorandum, Establishing Ad Hoc Committee to Review the Community Warning System and Industrial Safety Ordinance (Sept. 18, 2012), http://64.166.146.155/agenda_publish.cfm?mt=ALL&get_month=9&get_year=2012&dsp=agm& seq=12339&rev=0&ag=241&ln=23604&nseq=0&nrev=0&pseq=12303&prev=0. 48 See Memorandum, City Administrator’s Weekly Report (Apr. 25, 2014), http://www2.oaklandnet.com/oakca1/groups/cityadministrator/documents/report/oak046804.pdf. 49 Robert Salonga, San Jose: Police Apologize for Drone Secrecy, Promise Transparency, San Jose Mercury News, Aug 5, 2014, available at http://www.mercurynews.com/crime-courts/ci_26279254/san-jose-police-apologize-secret-drone- purchase-promise. 50 See ACLU, Know Your Rights: The Government’s 100-Mile “Border” Zone — Map, https://www.aclu.org/know-your-rights- governments-100-mile-border-zone-map. 51 See Oakland City Auditor, Police Technology Performance Audit: FY 2006–07 through 2010–11 (2012), available at http://www.oaklandauditor.com/images/oakland/auditreports/0pd%20tech.pdf. 52 See Citris, Cistris Study on SF Public Cameras Released (Jan. 9, 2009), http://citris-uc.org/citris-study-on-sf-public- cameras-released/. 28 MAKING SMART DECISIONS ABOUT SURVEILLANCE: A GUIDE FOR COMMUNITIES 53 See David P. Farrington & Brandon C. Welsh, Effects of Improved Street Lighting on Crime: A Systematic Review, Home Office Research Study 251 (Aug. 2002), p. 42; Ronald V. Clarke, U.S. Department of Justice, Office of Community Oriented Policing Services, Improving Street Lighting to Reduce Crime in Residential Areas (Dec. 2008), available at http://cops.usdoj.gov/Publications/e1208-StreetLighting.pdf; Jay Beeber, Collision Analysis of the Photo Enforced Intersection in Walnut, CA, http://www.thenewspaper.com/rlc/docs/2014/ca-walnut.pdf. 54 See Steve Scauzillo, Red Light Cameras Being Stopped, L.A. Daily News. (Jan. 21, 2014), http://www.dailynews.com/general-news/20140121/red-light-cameras-being-stopped. 55 PERF Report, supra note 2, at 44. 56 United States v. Jones, 132 S. Ct. 945 (2012). 57 Joann Pan, FBI Turns Off 3000 GPS Devices After Ruling, Mashable (Feb. 27, 2012), http://mashable.com/2012/02/27/fbi-turns-off-3000-gps-devices/. 58 Kashmir Hill, Whoops, Anyone Could Watch California City’s Police Surveillance Cameras, Forbes.com (Aug. 21, 2014), http://www.forbes.com/sites/kashmirhill/2014/08/11/surveillance-cameras-for-all/. 59 Seattle City Council Enacts Groundbreaking Legislation Protecting Residents’ Civil Liberties, Local Progress (May 1, 2013), http://localprogress.org/seattle-city-council-enacts-groundbreaking-legislation-protecting-residents-civil-liberties/; Jamela Debelak, ACLU of Washington, Surveillance: Spokane Acts to Protect Privacy and Provide Transparency (Aug. 21, 2013), https://aclu-wa.org/blog/surveillance-spokane-acts-protect-privacy-and-provide-transparency. 60 Erika Aguilar, LAPD Body Cameras: 90-Day Test Seeks to Answer Key Questions to Create New Policy, 89.3 KPCC (Feb. 4, 2014), http://www.scpr.org/news/2014/02/04/41855/lapd-body-cameras-90-day-test-seeks-to-answer-key/. 61 Terry McFadden, Technology Helping Police to Receive Warrants Faster, WNDU.com (July 8, 2013), http://www.wndu.com/ news/specialreports/headlines/Technology-helping-police-to-receive-search-warrants-faster--214651051.html. 62 PERF Report, supra note 2, at 14. 63 18 U.S.C. § 2518(5) (2014). 64 Ohio State Highway Patrol Policy No. OSP-103.29 (revised Dec. 23, 2008). 65 Julia Reynolds, Monterey County Grand Jury Finds Computer Data Risks, Monterey Herald, Aug. 21, 2014, available at http://www.montereyherald.com/news/ci_26009592/monterey-county-grand-jury-finds-computer-data-risks. 66 Dianne Feinstein, NSA Officers Spy on Love Interests, Wall St. J., Aug. 23, 2013, available at http://blogs.wsj.com/washwire/2013/08/23/nsa-officers-sometimes-spy-on-love-interests/. 67 Anjali Hemphill, Dating on Duty: Officers Accused of Screening Dates Using Police System, CBS 13 Sacramento (Aug. 22, 2014), http://sacramento.cbslocal.com/2014/08/22/dating-on-duty-officers-accused-of-screening-dates-using-police-system/. 68 See Bonnie Eslinger, Menlo Park Council Approves Ordinance Regulating Police Use of Surveillance, San Jose Mercury News, May 14, 2014, available at http://www.mercurynews.com/breaking-news/ci_25766277/menlo-park-council-approves- ordinance-regulating-police-use. 69 PERF Report, supra note 5, at 36. 70 Id at 14. 71 George Hostetter, Former Judge Wanger Writes Far-Ranging Audit on Fresno Video Policing, Fresno Bee, Jan. 7, 2014, available at http://www.fresnobee.com/2014/01/07/3701754/judge-wanger-delivers-impressive.html.   IACP Technology Policy Framework  January 2014 Page 1              IACP TECHNOLOGY POLICY FRAMEWORK1  January 2014    Introduction  New and emerging technologies increasingly play a crucial role in the daily work of  police, equipping officers with enforcement and investigative tools that have the  potential of making them safer, better informed, and more effective and efficient.  Developing and enforcing comprehensive agency policies regarding deployment and use  is a critical step in realizing the value that technologies promise, and is essential in  assuring the public that their privacy and civil liberties are recognized and protected.    Technological advances have made it possible to monitor and record nearly every  interaction between police and the public through the use of in‐car and body‐worn  video, access to an expanding network of public and private video surveillance systems,  and the increasing use of smartphones with digital recording capabilities by citizens and  officers alike. Police can track suspects with the use of GPS tracking technologies and  officers themselves can be tracked with automated vehicle location (AVL) systems.  Automated license plate recognition (ALPR) systems can scan the license plates of  vehicles within sight of officers in the field and quickly alert them if the vehicle has been  reported stolen or is wanted. Identity can be remotely verified or established with  biometric precision using mobile fingerprint scanners and facial recognition software.  Crimes can be mapped as they are reported, gunshot detection technology can alert law  enforcement almost instantaneously when a firearm is discharged, and surveillance  cameras can be programmed to focus in on the gunshot location and stream live video  to both dispatchers and responding officers. With these advancements come new  opportunities to enhance public and officer safety. They also present new challenges for  law enforcement executives.    The challenges include identifying which technologies can be incorporated by the  agency to achieve the greatest public safety benefits, and defining metrics that will  enable the agency to monitor and assess the value and performance of the  technologies. Just because a technology can be implemented, does not mean that it  should be. There are also challenges in integrating these technologies across different  platforms, building resilient infrastructure and comprehensive security, providing  technical support, and maintaining and upgrading applications and hardware. All of this  can be confusing and technically demanding, underscoring the need for effective  planning, strategic deployment, and performance management.      IACP Technology Policy Framework  January 2014 Page 2    Addressing these challenges is paramount because of the broader issues that the use of  this expanding array of technologies by law enforcement presents. A principal tenet of  policing is the trust citizens grant police to take actions on their behalf. If that trust is  violated and public approval lost, police are not able to effectively perform their duties  to keep communities safe.     The Policy Mandate  Creating and enforcing agency policies that govern the deployment and use of  technology, protecting the civil rights and civil liberties of individuals, as well as the  privacy protections afforded to the data collected, stored, and used, is essential to  ensure effective and sustainable implementation, and to maintain community trust.  Policies function to reinforce training and to establish an operational baseline to guide  officers and other personnel in proper procedures regarding its use. Moreover, policies  help to ensure uniformity in practice across the agency and to enforce accountability.  Policies should reflect the mission and values of the agency and be tightly aligned with  applicable local, state, and federal laws, regulations, and judicial rulings.     Policies also function to establish transparency of operations, enabling agencies to allay  public fears and misperceptions by providing a framework that ensures responsible use,  accountability, and legal and constitutional compliance. The use of automated license  plate recognition (ALPR) technologies, unmanned aerial systems, and body‐worn video  by law enforcement, for example, has generated substantial public discussion,  increasing scrutiny, and legislative action in recent years.2 Privacy advocates, elected  officials, and members of the public have raised important questions about how and  under what circumstances these technologies are deployed, for what purposes, and  how the data gathered by these technologies are retained, used, and shared. Having  and enforcing a strong policy framework enables law enforcement executives to  demonstrate responsible planning, implementation, and management.     Agencies should adopt and enforce a technology policy framework that addresses  technology objectives, deployment, privacy protections, records management, data  quality, systems security, data retention and purging, access and use of stored data,  information sharing, accountability, training, and sanctions for non‐compliance.  Agencies should implement safeguards to ensure that technologies will not be deployed  in a manner that could violate civil rights (race, religion, national origin, ethnicity, etc.)  or civil liberties (speech, assembly, religious exercise, etc.). The policy framework is but  one of several critical components in the larger technology planning effort that agencies  should undertake to ensure proper and effective use of automation.     Universal Principles  Given the privacy concerns and sensitivity of personally identifiable information and  other data often captured and used by law enforcement agencies,3 and recognizing  evolving perceptions of what constitutes a reasonable expectation of privacy,4 the    IACP Technology Policy Framework  January 2014 Page 3    technology policy framework should be anchored in principles universally recognized as  essential in a democratic society.     The following universal principles should be viewed as a guide in the development of  effective policies for technologies that can, or have the potential to monitor, capture,  store, transmit and/or share data, including audio, video, visual images, or other  personally identifiable information which may include the time, date, and geographic  location where the data were captured.5    1. Specification of Use—Agencies should define the purpose, objectives, and  requirements for implementing specific technologies, and identify the types of  data captured, stored, generated, or otherwise produced.  2. Policies and Procedures—Agencies should articulate in writing, educate  personnel regarding, and enforce agency policies and procedures governing  adoption, deployment, use, and access to the technology and the data it  provides. These policies and procedures should be reviewed and updated on a  regular basis, and whenever the technology or its use, or use of the data it  provides significantly changes.  3. Privacy and Data Quality—The agency should assess the privacy risks and  recognize the privacy interests of all persons, articulate privacy protections in  agency policies, and regularly review and evaluate technology deployment,  access, use, data sharing, and privacy policies to ensure data quality (i.e.,  accurate, timely, and complete information) and compliance with local, state,  and federal laws, constitutional mandates, policies, and practice.  4. Data Minimization and Limitation—The agency should recognize that only those  technologies, and only those data, that are strictly needed to accomplish the  specific objectives approved by the agency will be deployed, and only for so long  as it demonstrates continuing value and alignment with applicable  constitutional, legislative, regulatory, judicial, and policy mandates.   5. Performance Evaluation—Agencies should regularly monitor and evaluate the  performance and value of technologies to determine whether continued  deployment and use is warranted on operational, tactical, and technical grounds.   6. Transparency and Notice—Agencies should employ open and public  communication and decision‐making regarding the adoption, deployment, use,  and access to technology, the data it provides, and the policies governing its use.  When and where appropriate, the decision‐making process should also involve  governing/oversight bodies, particularly in the procurement process. Agencies  should provide notice, when applicable, regarding the deployment and use of  technologies, as well as make their  privacy policies available to the public. There  are practical and legal exceptions to this principle for technologies that are    IACP Technology Policy Framework  January 2014 Page 4    lawfully deployed in undercover investigations and legitimate, approved covert  operations.6   7. Security—Agencies should develop and implement technical, operational, and  policy tools and resources to establish and ensure appropriate security of the  technology (including networks and infrastructure) and the data it provides to  safeguard against risks of loss, unauthorized access or use, destruction,  modification, or unintended or inappropriate disclosure. This principle includes  meeting state and federal security mandates (e.g., the FBI’s CJIS Security Policy7),  and having procedures in place to respond if a data breach, loss, compromise, or  unauthorized disclosure occurs, including whether, how, and when affected  persons will be notified, and remedial and corrective actions to be taken.8  8. Data Retention, Access and Use—Agencies should have a policy that clearly  articulates that data collection, retention, access, and use practices are aligned  with their strategic and tactical objectives, and that data are retained in  conformance with local, state, and/or federal statute/law or retention policies,  and only as long as it has a demonstrable, practical value.   9. Auditing and Accountability—Agencies and their sworn and civilian employees,  contractors, subcontractors, and volunteers should be held accountable for  complying with agency, state, and federal policies surrounding the deployment  and use of the technology and the data it provides. All access to data derived  and/or generated from the use of relevant technologies should be subject to  specific authorization and strictly and regularly audited to ensure policy  compliance and data integrity. Sanctions for non‐compliance should be defined  and enforced.    Developing Policies and Operating Procedures  The universal principles provide structural guidance for the development of specific  agency policies and operating procedures that comport with established constitutional,  legal, and ethical mandates and standards. Agency policies and procedures specify the  operational components of each individual technology implementation, deployment,  and management, and should typically include and address the following factors:9  1. Purpose  a. A general discussion of the purpose of a specific agency policy to  include the agency’s position on protecting privacy.  2. Policy  a. A discussion of the overarching agency policy regarding the deployment  and use of a specific technology, its application to members of the  agency, and reference to relevant laws, policies, and/or regulations that  authorize the agency to implement a technology, or that relate to the  use and deployment of a technology.  3. Definitions    IACP Technology Policy Framework  January 2014 Page 5    a. A description of the technology, its components, and functions.   b. Definitions and acronyms associated with the technology.  4. Management  a. Strategic Alignment: Describe how the technology aligns and furthers  the agency’s strategic and tactical deployment objectives.  b. Objectives and Performance: Identify objectives for the deployment  and conditions for use of a technology, and a general strategy for  assessing performance and compliance with the agency’s policy.  c. Ownership: Clearly specify that the hardware and software associated  with the technology is the property of the agency, regardless whether it  has been purchased, leased, or acquired as a service, and that all  deployments of a technology are for official use only (FOUO). All data  captured, stored, generated, or otherwise produced by a technology  are the property of the agency, regardless where the data are housed  or stored. All access, use, sharing, and dissemination of the data must  comply with the policies established and enforced by the agency.  d. Classification of Data: Clearly specify the data classification and its level  of sensitivity (e.g., top secret, secret, confidential, restricted,  unclassified, private, public, etc.), whether the data captured, stored,  generated, or otherwise produced by a technology are considered  public information, and whether it is subject to applicable public  records act requests and under what circumstances.  e. Privacy Impact: Develop or adopt and use a formal privacy impact  assessment (PIA)10 or similar agency privacy assessment on technology  and the data it captures, stores, generates, or otherwise produces.  5. Operations  a. Installation, Maintenance, and Support: Require regular maintenance,  support, upgrades, calibration, and refreshes of a technology to ensure  that it functions properly.  b. Deployment: Identify who is authorized to officially approve the  deployment and use of a technology, and the conditions necessary for  deployment and use, if applicable.  c.    Training: Require training, and perhaps certification or other  documented proficiency, if applicable, of all personnel who will be  managing, maintaining, and/or using a technology. Training should also  cover privacy protections on the use of the technology, and the impact  and sanctions for potential violations.  d. Operational Use: Identify specific operational factors that must be  addressed in deployment and use of a technology.  (For example, for  ALPR, the officer should i) verify that the system has correctly “read”  the license plate characters; ii) verify the state of issue of the license  plate; iii) verify that the “hot list” record that triggered the alert is still  active in the state or NCIC stolen vehicle or other file, and confirm the    IACP Technology Policy Framework  January 2014 Page 6    hit with the entering agency; and iv) recognize that the driver of the  vehicle may not be the registered owner).  e. Recordkeeping: Require recordkeeping practices that document all  deployments of the technology, including who authorized the  deployment; how, when, and where the technology was deployed;  results of deployments; and any exceptions. Recordkeeping will support  efforts to properly manage technology implementation, ensure  compliance with agency policies, enable transparency of operations,  enable appropriate auditing review, and help document business  benefits realization.  6. Data Collection, Access, Use, and Retention  a. Collection: Define what data will be collected, how data will be  collected, the frequency of collection, how and where data will be  stored, and under what authority and conditions the data may be  purged, destroyed, or deleted in compliance with applicable local,  state, and/or federal recordkeeping statutes and policies, court orders,  etc. Identify the destruction/deletion methods to be used.  b. Access and Use: Define what constitutes authorized use of data  captured, stored, generated, or otherwise produced by a technology.  Define who is authorized to approve access and use of the data, for  what purposes and under what circumstances.  c. Information Sharing: Specify whether data captured, stored, generated,  or otherwise produced by a technology can be shared with other  agencies, under what circumstances, how authorization is provided,  how information that is shared is tracked/logged, how use is  monitored, and how policy provisions (including privacy) will be  managed and enforced. Any agency contributing and/or accessing  shared information should be a signatory of a data sharing  Memorandum of Understanding (MOU). Dissemination of any shared  information should be governed by compliance with applicable state  and federal laws, standards, agency privacy policies, and procedures as  agreed in the MOU.  d. Security: Define information systems security requirements of the  technology and access to the data to ensure the integrity of the  systems and confidentiality of the data. The security policy should  address all state and federal mandated security policies, and clearly  address procedures to be followed in the event of a loss, compromise,  unauthorized access or use, destruction, modification, or unintended or  inappropriate disclosure of data, including how and when affected  persons will be notified, and remedial and corrective actions to be  taken.  e. Data Retention and Use: Establish data retention schedules in  accordance with state or federal law or policy, access privileges, purge,    IACP Technology Policy Framework  January 2014 Page 7    and deletion criteria for all data captured, stored, generated, or  otherwise produced by a technology. Agencies should consider  differentiating between data that are part of an ongoing or continuing  investigation and information that is gathered and retained without  specific suspicion or direct investigative focus. Agencies may wish to  limit the retention of general surveillance data. Empirical research  assessing the performance of a technology may assist in determining an  appropriate retention schedule.  7. Oversight, Evaluation, Auditing, and Enforcement  a. Oversight: Establish a reporting mechanism and a protocol to regularly  monitor the use and deployment of a technology to ensure strategic  alignment and assessment of policy compliance.  b. Evaluation: Regularly assess the overall performance of a technology so  that it can i) identify whether a technology is performing effectively, ii)  identify operational factors that may impact performance effectiveness  and/or efficiency, iii) identify data quality issues, iv) assess the business  value and calculate return on investment of a technology, and v) ensure  proper technology refresh planning.  c. Auditing: Audit all access to data captured, stored, generated, or  otherwise produced by a technology to ensure that only authorized  users are accessing the data for legitimate and authorized purposes,  and establish regular audit schedules.  d. Enforcement: Establish procedures for enforcement if users are  suspected of being or have been found to be in noncompliance with  agency policies.      Conclusion  Realizing the value that technology promises law enforcement can only be achieved  through proper planning, implementation, training, deployment, use, and management  of the technology and the information it provides. Like all resources and tools available  to law enforcement, the use of new technologies must be carefully considered and  managed. Agencies must clearly articulate their strategic goals for the technology, and  this should be aligned with the broader strategic plans of the agency and safety needs of  the public. Thorough and ongoing training is required to ensure that the technology  performs effectively, and that users are well versed in the operational policies and  procedures defined and enforced by the agency. Policies must be developed and strictly  enforced to ensure the quality of the data, the security of the system, compliance with  applicable laws and regulations, and the privacy of information gathered. Building  robust auditing requirements into agency policies will help enforce proper use of the  system, and reassure the public that their privacy interests are recognized and  protected. The development of these policies is a proven way for executives to ensure  they are taking full advantage of technology to assist in providing the best criminal  justice services, while protecting the privacy, civil rights, and civil liberties of citizens.    IACP Technology Policy Framework  January 2014 Page 8                                                            1 This Technology Policy Framework was developed by an ad‐hoc committee of law  enforcement executives and subject matter experts representing IACP Divisions, Committees,  Sections, the IACP National Law Enforcement Policy Center, and other organizations and groups,  including the Criminal Intelligence Coordinating Council, Major Cities Chiefs Association,  National Sheriffs’ Association, Major County Sheriffs’ Association, Association of State Criminal  Investigative Agencies, the Institute for Intergovernmental Research (IIR), the Integrated Justice  Information Systems (IJIS) Institute, and federal partners.  2 The American Civil Liberties Union (ACLU) recently released two reports addressing law  enforcement technologies—ALPR and body‐worn video. Both reports discuss the value of the  technology to law enforcement operations and investigations, and both call for policies  addressing deployment, operations, data retention, access, and sharing. Catherine Crump, You  are Being Tracked: How License Plate Readers Are Being Used to Record Americans’ Movements,  (New York: ACLU, July 2013), at https://www.aclu.org/technology‐and‐liberty/you‐are‐being‐ tracked‐how‐license‐plate‐readers‐are‐being‐used‐record, and Jay Stanley, Police Body‐Mounted  Cameras: With Right Policies in Place, a Win for All, (New York: ACLU, October 2013), at  https://www.aclu.org/technology‐and‐liberty/police‐body‐mounted‐cameras‐right‐policies‐ place‐win‐all. Also see, Massachusetts Senate Bill S.1648, An Act to Regulate the Use of  Automatic License Plate Reader Systems, Cynthia S. Creem, Sponsor, at  https://malegislature.gov/Bills/188/Senate/S1648; Cynthia Stone Creem and Jonathan Hecht,  “Check it, then chuck it,” The Boston Globe, December 20, 2013, at  http://www.bostonglobe.com/opinion/2013/12/20/podium‐ license/R1tKQerV0YAPLW6VCKodGK/story.html; Shawn Musgrave, “Boston Police halt license  scanning program,” The Boston Globe, December 14, 2013, at  http://www.bostonglobe.com/metro/2013/12/14/boston‐police‐suspend‐use‐high‐tech‐ licence‐plate‐readers‐amid‐privacy‐concerns/B2hy9UIzC7KzebnGyQ0JNM/story.html; Ashley  Luthern and Kevin Crowe, “Proposed Wisconsin bill would set rules for license‐plate readers,”  Milwaukee Journal Sentinel, December 3, 2013, at  http://www.jsonline.com/news/milwaukee/proposed‐wisconsin‐bill‐would‐set‐rules‐for‐license‐ plate‐readers‐b99155494z1‐234324371.html; Dash Coleman, “Tybee Island abandons license  plate scanner plans,” Savannah Morning News, December 3, 2013, at  http://savannahnow.com/news/2013‐12‐02/tybee‐island‐abandons‐license‐plate‐scanner‐ plans#.UqCAy8RDuN0; Kristian Foden‐Vencil, “Portland police are collecting thousands of  license plate numbers every day,” Portland Tribune, December 3, 2013, at  http://portlandtribune.com/pt/9‐news/203130‐portland‐police‐are‐collecting‐thousands‐of‐ license‐plate‐numbers‐every‐day; Alicia Petska, “City Council split over how to handle license  plate reader concerns,” The News & Advance, (Lynchburg, VA), November 12, 2013, at  http://www.newsadvance.com/news/local/article_5327dc78‐4c18‐11e3‐bc28‐ 001a4bcf6878.html; Jonathan Oosting, “Proposal would regulate license plate readers in  Michigan, limit data stored by police agencies,” MLive, (Lansing, MI), September 9, 2013, at  http://www.mlive.com/politics/index.ssf/2013/09/proposal_would_regulate_licens.html;  Katrina Lamansky, “Iowa City moves to ban traffic cameras, drones, and license plate  recognition,” WQAD, June 5, 2013, at http://wqad.com/2013/06/05/iowa‐city‐moves‐to‐ban‐ traffic‐cameras‐drones‐and‐license‐plate‐recognition/;  Richard M. Thompson, II, Drones in  Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses,  (Washington, DC: Congressional Research Service, April 3, 2013), at  http://www.fas.org/sgp/crs/natsec/R42701.pdf; Somini Sengupta, “Rise of Drones in U.S. Drives    IACP Technology Policy Framework  January 2014 Page 9                                                                                                                                                                      Efforts to Limit Police Use,” New York Times, February 15, 2013, at  http://www.nytimes.com/2013/02/16/technology/rise‐of‐drones‐in‐us‐spurs‐efforts‐to‐limit‐ uses.html?pagewanted=all; Stephanie K. Pell and Christopher Soghoian, “Can You See Me Now?  Toward Reasonable Standards for Law Enforcement Access to Location Data That Congress  Could Enact,” Berkeley Technology Law Journal, Vol. 27, No. 1, pp. 117‐196, (2012), at  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1845644; and Stephen Rushin, “The  Legislative Response to Mass Police Surveillance,” 79 Brooklyn Law Review 1, (2013), at  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2344805. All accessed December 30,  2013.  3 Personally identifiable information (PII) has been defined as “…any information about  an individual maintained by an agency, including (1) any information that can be used to  distinguish or trace an individual’s identity, such as name, Social Security number, date and  place of birth, mother’s maiden name, or biometric records; and (2) any other information that  is linked or linkable to an individual, such as medical, educational, financial, and employment  information.” Government Accountability Office (GAO), Privacy: Alternatives Exist for Enhancing  Protection of Personally Identifiable Information, (Washington, D.C.: GAO, May 2008), p. 1, at  http://www.gao.gov/new.items/d08536.pdf. McCallister, et. al., define “linked” information as  “information about or related to an individual that is logically associated with other information  about the individual. In contrast, linkable information is information about or related to an  individual for which there is a possibility of logical association with other information about the  individual.” Erika McCallister, Tim Grance, and Karen Scarfone, Guide to Protecting the  Confidentiality of Personally Identifiable Information (PII): Recommendations of the National  Institute of Standards and Technology, (Gaithersburg, MD: NIST, April 2010), p. 2‐1, at  http://csrc.nist.gov/publications/nistpubs/800‐122/sp800‐122.pdf. McCallister, et. al., go on to  describe linked and linkable information: “For example, if two databases contain different PII  elements, then someone with access to both databases may be able to link the information  from the two databases and identify individuals, as well as access additional information about  or relating to the individuals. If the secondary information source is present on the same system  or a closely‐related system and does not have security controls that effectively segregate the  information sources, then the data is considered linked. If the secondary information source is  maintained more remotely, such as in an unrelated system within the organization, available in  public records, or otherwise readily obtainable (e.g., internet search engine), then the data is  considered linkable.” Id. Both accessed December 30, 2013.  4 Justice Harlan first articulated a “constitutionally protected reasonable expectation of  privacy” in Katz v. United States, 389 U.S. 347 (1967), at 361. Justice Harlan’s two‐fold test is  “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that  the expectation be one that society is prepared to recognize as ‘reasonable.’” Id. Many of the  technologies being deployed by law enforcement capture information that is publicly exposed,  such as digital photographs and video of people and vehicles, or vehicle license plates in public  venues (i.e., on public streets, roadways, highways, and public parking lots), and there is little  expectation of privacy. “A person traveling in an automobile on public thoroughfares has no  reasonable expectation of privacy in his movements from one place to another.” United States  v. Knotts, 460 U.S. 276 (1983), at 281. Law enforcement is free to observe and even record  information regarding a person’s or a vehicle’s movements in public venues. The U.S. Supreme  Court, however, has ruled that the electronic compilation of otherwise publicly available but    IACP Technology Policy Framework  January 2014 Page 10                                                                                                                                                                      difficult to obtain records alters the privacy interest implicated by disclosure of that compilation.  U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749  (1989). Automation overwhelms what the Court referred to as the practical obscurity associated  with manually collecting and concatenating the individual public records associated with a  particular person into a comprehensive, longitudinal criminal history record. “…[T]he issue here  is whether the compilation of otherwise hard‐to‐obtain information alters the privacy interest  implicated by disclosure of that information. Plainly there is a vast difference between the  public records that might be found after a diligent search of courthouse files, county archives,  and local police stations throughout the country and a computerized summary located in a  single clearinghouse of information.” Id., at p. 764. This has subsequently been referred to as  the “mosaic theory” of the Fourth Amendment. United States v. Maynard, 615 F.3d 544 (D.C.  Cir.) (2010). See also, Orin Kerr, “The Mosaic Theory of the Fourth Amendment,” Michigan Law  Review, Vol. 111, p. 311, (2012), at  http://www.michiganlawreview.org/assets/pdfs/111/3/Kerr.pdf. Accessed December 30, 2013.  5 These universal principles largely align with the Fair Information Practices (FIPs) first  articulated in 1973 by the Department of Health, Education & Welfare (HEW). HEW, Records,  Computers and the Rights of Citizens, July 1973, at   http://epic.org/privacy/hew1973report/default.html. See, Robert Gellman, Fair Information  Practices: A Basic History, Version 2.02, November 11, 2013, at http://bobgellman.com/rg‐ docs/rg‐FIPShistory.pdf. Comparable principles have been articulated by various governmental  agencies, including the U.S. Department of Homeland Security, (Hugo Teufel, III, Privacy Policy  Guidance Memorandum, Number: 2008‐01, (Washington, DC: DHS, December 29, 2008), pp. 3‐4,  at http://www.dhs.gov/xlibrary/assets/privacy/privacy_policyguide_2008‐01.pdf); the Home  Office in the United Kingdom (Home Office, Surveillance Camera Code of Practice, (London, UK;  The Stationery Office, June 2013), pp 10‐11, at  https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/204775/Surve illance_Camera_Code_of_Practice_WEB.pdf); and the Information and Privacy Commissioner of  Ontario, Canada (Ann Cavoukian, Guidelines for the Use of Video Surveillance Cameras in Public  Places, (Ontario, Canada: Information and Privacy Commissioner of Ontario, September 2007),  pp. 5‐6, at: http://www.ipc.on.ca/images/Resources/up‐3video_e_sep07.pdf, and Ann  Cavoukian, Privacy and Video Surveillance in Mass Transit Systems: A Special Investigative  Report (Privacy Investigation Report MC07‐68), (Ontario, Canada: Information and Privacy  Commissioner of Ontario, March 3, 2008), p 3, at: http://www.ipc.on.ca/images/Findings/mc07‐ 68‐ttc_592396093750.pdf). Also see, National Research Council, Protecting Individual Privacy in  the Struggle Against Terrorists: A Framework for Program Assessment, (The National Academies  Press: Washington, D.C., 2008), at http://nap.edu/catalog.php?record_id=12452. All accessed  December 30, 2013.  6 Law enforcement is not, for example, expected to notify the subjects of lawfully  authorized wiretaps that their conversations are being monitored and/or recorded. These  deployments, however, are typically subject to prior judicial review and authorization. See, e.g.,  Katz v. United States, 389 U.S. 347 (1967); Berger v. New York, 388 U.S. 41 (1967); Title III,  Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510‐2522, as amended by the  Electronic Communications Privacy Act of 1986.    IACP Technology Policy Framework  January 2014 Page 11                                                                                                                                                                      7 Federal Bureau of Investigation, Criminal Justice Information Services (CJIS) Security  Policy, Version 5.2, August 9, 2013, CJISD‐ITS‐DOC‐08140‐5.2, at http://www.fbi.gov/about‐ us/cjis/cjis‐security‐policy‐resource‐center/view. Accessed December 30, 2013.  8 Additional guidance regarding safeguarding personally identifiable information can be  found in the Office of Management and Budget (OMB) Data Breach notification policy (M‐07‐ 16), at http://www.whitehouse.gov/sites/default/files/omb/memoranda/fy2007/m07‐16.pdf,  and state data breach notification laws available from the National Conference of State  Legislatures, at http://www.ncsl.org/research/telecommunications‐and‐information‐ technology/security‐breach‐notification‐laws.aspx.  Accessed December 30, 2013.  9 See, e.g., International Association of Chiefs of Police, Model Policy: License Plate  Readers, August 2010  http://iacppolice.ebiz.uapps.net/personifyebusiness/OnlineStore/ProductDetail/tabid/55/Defau lt.aspx?ProductId=1223; Paula T. Dow, Attorney General, Directive No. 2010‐5, Law Enforcement  Directive Promulgating Attorney General Guidelines for the Use of Automated License Plate  Readers (ALPRs) and Stored ALPR Data, (Trenton, NJ: Office of the Attorney General, December  3, 2010), at http://www.state.nj.us/oag/dcj/agguide/directives/Dir‐2010‐5‐ LicensePlateReadersl‐120310.pdf; Office of the Police Ombudsman, 2011 Annual Report:  Attachment G: Body‐Worn Video & Law Enforcement: An Overview of the Common Concerns  Associated with Its Use, (Spokane, WA: Spokane Police Ombudsman, February 20, 2012), at  http://www.spdombudsman.com/wp‐content/uploads/2012/02/Attachment‐G‐Body‐Camera‐ Report.pdf; ACLU, Model Policy: Mobile License Plate Reader (LPR) System, (Des Moines, IA:  ACLU, September 19, 2012), at http://www.aclu‐ia.org/iowa/wp‐ content/uploads/2012/09/Model‐ALPR‐Policy‐for‐Iowa‐Law‐Enforcement.pdf. Many of these  policy elements are also addressed in the National Research Council’s report, op. cit., specifically  in chapter 2, “A Framework for Evaluating Information‐Based Programs to Fight Terrorism or  Serve Other Important National Goals,” at pp. 44‐67. All accessed December 30, 2013  10 A privacy impact assessment (PIA) is “a systematic process for evaluating the potential  effects on privacy of a project, initiative or proposed system or scheme.” Roger Clarke, “Privacy  Impact Assessment: Its Origins and Development,” Computer Law & Security Review, 25, 2 (April  2009), pp. 125‐135, at http://www.rogerclarke.com/DV/PIAHist‐08.html. Law enforcement  agencies should consider using the Global Advisory Committee’s Guide to Conducting Privacy  Impact Assessments for State, Local, and Tribal Justice Entities at  https://it.ojp.gov/gist/47/Guide‐to‐Conducting‐Privacy‐Impact‐Assessments‐for‐State‐‐Local‐‐ and‐Tribal‐Justice‐Entities. This resource leads policy developers through appropriate privacy  risk assessment questions that evaluate the process through which PII is collected, stored,  protected, shared, and managed by an electronic information system or online collection  application. The IACP published Privacy Impact Assessment Report for the Utilization of License  Plate Readers, (Alexandria, VA: IACP, September 2009), at  http://www.theiacp.org/Portals/0/pdfs/LPR_Privacy_Impact_Assessment.pdf. For a list of PIAs  completed by the U.S. Department of Justice, see http://www.justice.gov/opcl/pia.htm;  Department of Homeland Security, see https://www.dhs.gov/privacy‐office‐privacy‐impact‐ assessments‐pia. All accessed December 30, 2013.   1 State of Surveillance in California – Findings & Recommendations January 2015 Executive Summary In the wake of revelations about the National Security Agency’s rampant warrantless spying and local law enforcement’s use of military equipment in cities like Ferguson, Missouri, community members have been regularly contacting the ACLU with concerns about the proliferation of surveillance. Cities and counties have also increasingly reached out for guidance about how to approach the use of surveillance in ways consistent with civil liberties and civil rights. Yet very little information exists about surveillance technology in California or how to properly consider its acquisition or use. To address this, the ACLU of California conducted a first-of-its-kind assessment of surveillance technology in the state. We also released a new resource guide, Making Smart Decisions About Surveillance: A Guide for Communities, and developed a model ordinance designed to help policymakers ensure adequate transparency, oversight, and accountability.1 The following document summarizes our findings about the state of surveillance in California and recommends several ways that the Attorney General and other state policymakers could take action to help address the widespread lack of transparency, oversight, and accountability for surveillance technology in California. Methodology and Summary of Surveillance Survey Findings From June to November 2014, the ACLU of California2 examined thousands of publicly available3 records for California’s 58 counties and 60 selected cities.4 We researched the types of surveillance technology in communities, including automated license plate readers (ALPRs), 5 body cameras,6 drones,7 facial recognition,8 “Stingrays,” 9 and video surveillance.10 We investigated how much money has been spent to acquire and maintain surveillance technology and the source of those funds. We also examined any public processes in place to provide for transparency, oversight, and accountability for surveillance technology’s acquisition and use. What we discovered raised a number of significant concerns. Across the state, there is widespread proliferation of surveillance, with at least 90 communities (40 counties, 50 cities) possessing some form of surveillance technology. Vast sums of money are being spent on surveillance, including over $65 million in publicly available figures, a significant portion of which is federal grant dollars. While some communities are taking important steps to thoroughly consider surveillance technology and develop plans to promote public safety and safeguard citizen rights, we discovered that even basic transparency, oversight, and accountability has become the exception, not the rule. Many California communities lack the 2 guidance to make smart decisions about surveillance and are moving forward without public conversation, careful consideration of the costs and benefits, or adequate policies in place to prevent misuse and safeguard rights. There is Widespread Proliferation of Surveillance Technology in California California communities have acquired and deployed a wide array of surveillance technologies. Our research uncovered at least 90 California communities (40 counties, 50 cities) in possession of various surveillance technologies.11 Video cameras are the most common form of surveillance technology in California - more than half of the cities and counties we examined have acquired them. ALPRs are a close second - 57 of the 118 counties and cities in our survey possess such devices.12 Finally, at least 32 California communities had body cameras as of November 2014.13 Local law enforcement agencies are also acquiring newer, more powerful technologies like drones and Stingray cell phone tracking devices that can facilitate other forms of surreptitious surveillance.14 At least 3 communities (San Jose and Los Angeles and Alameda Counties) have acquired drones for law enforcement purposes. Information about Stingray purchases was nearly impossible to locate, yet we know from reporting and our research that they exist in at least 10 different communities, including Los Angeles, Oakland, San Jose, San Francisco, San Diego and Sacramento.15 While a lack of publicly available information about drones and Stingrays makes it difficult to discover which localities possess these tools and the legal basis for their use, it may be that other communities are either considering or already have these technologies as well. Vast Sums of Money is Being Spent on Surveillance Technology We found publicly available evidence documenting more than $65 million dollars in spending on surveillance technology in California. We identified over $20 million of spending on video surveillance alone.16 These funds come from multiple sources, including local,17 state,18 and federal funding streams.19 Law enforcement agencies have also obtained surveillance funding from private sources such as police foundations,20 asset forfeiture proceeds,21 and other jurisdictions22 (LAPD received its two drones from Seattle police).23 Federal dollars are a very common source of funding for California’s surveillance technology. Federal funds constituted roughly 40 percent of the surveillance programs we examined with identifiable funding sources. Numerous localities have used federal funds to buy everything from automated license plate readers24 to facial recognition technology.25 Federal funds were also originally earmarked for San Jose’s drone purchase.26 In California, these federal funds are typically administered under programs operated by the Department Homeland Security Grant Programs that include the Urban Areas Security Initiative (UASI) and the Port Security Grant Program (PSGP). The California Emergency Management Association (CalEMA) also manages federal surveillance grants to local governments.27 Yet with all of the funding we found for the acquisition of these technologies, surveillance technology’s post-acquisition costs, including maintenance, replacement, staffing, and training were often not accounted for or reported in publicly available materials. We did not find a single surveillance program that was preceded by a comprehensive cost-benefit analysis that included information about current and future costs and an analysis of the potential impact on civil 3 liberties and civil rights. It is clear from the few public records that we located that these ongoing costs can be substantial. For example, Clovis was spending at least $60,000 in maintenance costs for its network of video surveillance cameras by 201128 and Richmond was spending $300,000 annually for maintenance by 2013.29 Because our research was based solely on publicly available information about surveillance, the spending data noted is almost certainly just the tip of the iceberg. Very little information is easily and publicly accessible about local surveillance technology acquisitions. For example, although public records reflect that Riverside acquired ALPR units in 2011, the ACLU was unable to locate any other documents concerning the acquisition, funding or policies concerning these ALPR units.30 Basic Transparency, Accountability and Oversight Is the Exception for Surveillance Technology in California, Not the Rule Surveillance technology is often purchased without adequate community engagement Our research also revealed that communities in California are also acquiring surveillance technology without first adequately engaging the public.31 And when information about surveillance technology is included in public documents at some point in the process, it may include language so vague that it is difficult for the public and even some policymakers to understand what is being considered and know to voice concern. Community members were surprised to learn in 2014 about drone purchases in San Jose and Alameda County. In San Jose, the relevant city council meeting agenda only specified that the police and fire departments had sought authorization to receive $983,000 from the federally funded Bay Area Urban Areas Security Initiative.32 The public did not learn about the purchase until months later when ACLU researchers discovered attached agenda documents with earmarked funds for an “unmanned aerial vehicle.” 33 There was immediate public outrage at this “secret” purchase.34 The police soon apologized and have now initiated a public process to consider the potential use of the drone.35 Unfortunately, this trend continues - in late 2014, the Alameda County Sheriff simply announced that he had bought two drones, providing no public notice despite the fact that widespread local concerns sidelined a similar proposal in 2012.36 The purchase of invasive Stingray cell phone surveillance technology is another area where policymakers and the public appear to also be left in the dark. When Sacramento County approved over $300,000 dollars in funding for what the ACLU believes to be Stingray equipment, the only information provided in public records was that law enforcement was seeking “wireless tracking equipment.” 37 In San Jose public documents, over $300,000 in funding for what the ACLU also suspects to be Stingray technology was referred to as “law enforcement surveillance technology equipment.” 38 Public debate is rare and late in the process Our research found that adequate public debate over surveillance technology is rare and if it happens at all, is very late in the process. We found evidence of public debate about the acquisition of surveillance technology for less than 15% of the programs we tracked. None of the 52 communities we identified with two or more surveillance technologies publicly debated every 4 technology.39 For more than 100 of the 180 surveillance technology programs we identified in publicly available records, we either could not locate evidence of a public hearing or approval was via consent calendar. Consent calendar items are typically designated as routine in nature, are intended to have no discussion, and are often approved en masse with a single vote. We found only two occasions where surveillance technology proposals were removed from the consent calendar to entertain public debate: for body cameras in Fresno,40 and for a mounted infrared video-surveillance camera and microwave transmission system in San Diego County.41 Even where there are public records disclosing the consideration or acquisition of a surveillance program, they are often incomplete, lacking basic information about the technology involved, costs, or potential impact on civil liberties. The result is that policymakers may not have the information they need to make an informed decision. For example, after the Santa Cruz City Council approved the use of federal funds to purchase ALPRs for the police department, one councilmember was asked what effect the scanners might have on on community members, he replied, “I don’t know enough about the technology.” 42 Another was unaware of privacy issues, admitting, “I was asleep at the wheel. The council didn’t get much correspondence about the potential for the erosion of civil rights that these kinds of devices can cause…. If I’d been better informed about [the ALPRs] I may have voted against the purchase….” 43 We also found that the timing of any public debate and policymaker approval is often late in the process – after law enforcement agencies apply and obtain funding for surveillance technology rather than before. The Santa Clara County Sheriff was awarded $489,000 by the Urban Areas Security Initiative to purchase facial-recognition software prior to public process before the Santa Clara County Board of Supervisors.44 In Placerville, police obtained a grant for $26,000 in federal funds for a license-plate reader before City Council public process.45 San Rafael police were awarded $33,126 in federal funds for a license-plate reader before public process at the city council.46 Recently, the San Jose police received federal funding approval and earmarked it to purchase a drone prior to public process at the city council.47 While some California communities have taken important steps to ensure a more robust public process, there is a lack of consistency in the process between different surveillance technologies.48 For example, before Ventura acquired a $93,000 video monitoring system, its police department discussed the system’s intended uses with local community councils, addressed residents’ concerns, and explained the proposed internal use restrictions.49 And while San Jose’s acquisition of a drone initially lacked public involvement, when considering acquisition of body cameras the city developed a robust 12-month work plan that included a diverse ad-hoc committee, an assessment of technological needs, and the drafting of a policy for Council consideration.50 Although we could not locate a community with a policy that ensures consistent public engagement and debate for all surveillance technology, members of the board of supervisors in Santa Clara, San Francisco, and Santa Cruz counties have announced plans to introduce separate Surveillance Technology & Community Safety Ordinances. Few surveillance technologies have adequate use policies We found a publicly available use policy for fewer than 1 in 5 surveillance technology programs. None of the 52 communities with two or more surveillance technologies had publicly available use policies for every technology. Many cities had no use policy whatsoever for their surveillance technology – for example, only 3 of the 61 counties and cities we identified using 5 video surveillance had publicly available use policies. The publicly available policies that do exist largely fail to properly address all of the necessary issues including purpose specification, limited use, training, data security, data retention, auditing, and accountability discussed by the Department of Homeland Security Privacy Office, the International Association of Chiefs of Police Technology Policy Framework, or the ACLU of California guide and model ordinance.51 Many policies we looked at appear to be modified templates that do not properly address all of the necessary issues. The City of Alameda’s 2013 proposal for an ALPR policy is a prime example of this.52 Produced by a company called Lexipol, that policy did not place clear limits on the technology’s use, instead directing that the technology be used for “official and legitimate business.” That policy also lacked detail about officer training, meaningful limits on retention or use of ALPR data, and enforceable consequences for violation of the use policy itself. After analyzing the policy last year, the ACLU urged Alameda to delay adoption of ALPR technology until the community revised and improved its use policy.53 Other surveillance programs appear to have no policies in place except for those written by a federally connected fusion center, such as by the South Bay Information Sharing System (SBISS), the Southern California-based Automated Regional Justice Information System (ARJIS), or the Northern California Regional Intelligence Center (NCRIC).54 These policies lack strong protections to prevent against misuse and infringements of constitutionally protected activities.55 For example, NCRIC’s ALPR policy only prohibits monitoring of First Amendment activities where those activities are the sole reason for monitoring. The ARJIS policy lacks a detailed set of acceptable and prohibited uses.56 While NCRIC expressly permits law enforcement agencies to set local retention policies, others, like ARJIS, do not, and once a community decides to share surveillance data with this fusion center, its control over what happens to community members’ data diminishes.57 We also found that few policies have clear and effective enforcement provisions for violations. The need for enforceable policies is illustrated by Oakland’s officer body camera policy, which contains specific directives to officers’ use of the equipment, prohibitions on conduct, and instructions for the storage and access to data. However, Oakland’s policy does not contain a mechanism ensuring its enforcement58 and it appears that Oakland police have repeatedly violated the department’s body camera policy without consequence.59 Not having a proper use policy can also lead to significant legal problems for communities. San Francisco learned this lesson the hard way when it adopted license plate readers without a formal policy that required officers to confirm plate reads visually to safeguard civil rights. In March 2009, an ALPR unit misread the plate of Denise Green, a 47 year-old African American woman, erroneously flagging her burgundy Lexis as a stolen gray truck. The police stopped Green, handcuffed her, and held her at gunpoint while a search took place.60 In early 2014, a federal appeals court authorized a constitutional rights suit by Green against the SFPD, the City, and the patrol officers. While no community has a surveillance use policy in place that comprehensively addresses all of the necessary issues, several community policies have integrated important building blocks that others can replicate. 6  In 2006, the San Francisco Board of Supervisors passed the Community Safety Camera ordinance (CSC).61 The CSC includes a specific purpose for the cameras and limits use of camera data, requires public notice when new cameras are being considered, a public hearing, a vote of the police commission, approval only if benefits outweigh concerns and community support exists, and annual reporting.  In 2006, the Fresno Police Department adopted a Video Policing Project Policy and Guidelines Manual.62 This extensive manual describes the system and its purpose, includes guidance and specific prohibitions on racial profiling, details access limits for collected data, addresses primary and secondary uses of data, strictly limits retention of footage, addresses the public’s right of access to footage obtained by the city’s cameras, and requires independent auditing.  In 2014, Menlo Park’s City Council passed an ordinance consisting of a use policy for ALPRs and video surveillance.63 This enforceable policy includes provisions setting forth specific prohibited uses of each technology, quarterly auditing of the use and efficacy of ALPR, and constraints on how data can be shared with third parties including the area fusion center, NCRIC.  In 2014, a citizens’ committee appointed by the Oakland City Council drafted a proposed policy for the City’s DHS-funded Port Domain Awareness Center (DAC) that places clear limits on allowable uses, provides guidance to operators with regards to constitutionally protected activities, requires comprehensive auditing, and sets forth enforceable consequences for misuse.64 Oversight of surveillance technology after deployment is virtually non-existent Necessary provisions for oversight of surveillance technology after initial use, including audits, fiscal and civil liberties reviews, and evaluation of program efficacy are few and far between. Two programs we found that planned for more than minimal periodic oversight are Fresno’s citywide video-policing program and San Francisco’s Community Safety Camera Program.65 In Fresno, the city council required an annual independent audit of the police department’s citywide, live-feed, video-policing program to ensure that all of the privacy and security guidelines for the system’s use are being followed. 66 The auditor is specifically instructed to report to the city council on police compliance with Fresno’s video-policing policies.67 The first comprehensive audit was completed in 2014 by a former federal judge.68 Fresno Police Chief Jerry Dyer expressed support for the auditing process, saying “I have no doubt the audit will be very helpful to our ongoing video policing operations.”69 San Francisco’s CSC requires that the San Francisco Police Department prepare a report every year on all cameras in the City and County.70 The annual report is designed to assess the cameras’ effectiveness, effect on crime, and to help the community determine whether any changes to the program should be made.71 In 2008, researchers at the University of California, Berkeley, comprehensively evaluated San Francisco’s surveillance cameras. The resulting report found that the existing camera program had not addressed its intended purpose of preventing or reducing violent crime.72 This report informed subsequent public debate amongst the Board of Supervisors regarding a proposal to expand the program.73 7 Finally, Menlo Park’s ALPR and video surveillance ordinance requires NCRIC (the entity that stores the City’s ALPR data) to provide a quarterly report to the city that summarizes the number of license plates captured by the ALPR in the city, how many of those license plates were “hits” (on an active wanted list), the number of inquiries made by Menlo Park personnel along with the justifications for those inquiries, and information on any data retained beyond six months and the reasons for such retention. In November 2014, Menlo Park published its first quarterly ALPR review. The data indicated that only about .05% of the plate reads were “hits,” most of which were false reads.74 Policy Recommendations Surveillance technology is proliferating in California’s communities largely without mechanisms that ensure transparency, accountability, and oversight for its acquisition and use. Local law enforcement lacks clear guidance and direction from state policymakers on how to promote public safety while safeguarding civil liberties and civil rights. As the state’s chief law officer and defender of liberty for Californians, the Attorney General is well-positioned to work to address these growing concerns in a variety of ways: 1. Issue Attorney General Best Practices for Surveillance Technology With growing community concern about policing, the Attorney General should use the opportunity to issue clear guidance to law enforcement in the state about the basic mechanisms for public transparency, accountability, and oversight that should be in place at the earliest stage of the process – when surveillance technology is being considered and well before it is purchased or deployed. Best Practices issues by the Attorney General’s Office would be very helpful to communities throughout California. The ACLU of California’s guide for communities, Making Smart Decisions About Surveillance, and resources also developed by The International Association of Chiefs of Police, Police Executive Research Forum, and the Department of Homeland Security Privacy Office would hopefully all be helpful to the development of Attorney General Best Practices.75 2. Encourage Law Enforcement Support of Local Ordinances The Attorney General could also encourage local law enforcement to support local Surveillance Technology & Community Safety Ordinances and create mechanisms that facilitate consistent transparency, accountability, and oversight at the local level. Policymakers in Santa Clara County, San Francisco County, and Santa Cruz County have already committed to introducing the ordinance, the Oakland Ad Hoc Advisory Committee on Privacy and Data Retention has also recommended its adoption,76 and several other large and small communities throughout California are also considering next steps. Key principles for local ordinances include:  Informed Public Debate at Earliest Stage of Process: Public notice, distribution of information about the proposal and public debate prior to seeking funding or otherwise moving forward with surveillance technology proposals. 8  Determination that Benefits Outweigh Costs and Concerns: Local leaders, after facilitating an informed public debate, expressly consider costs (fiscal and civil liberties) and determine that surveillance technology is appropriate or not before moving forward.  Thorough Surveillance Use Policy: Legally enforceable Surveillance Use Policy with robust civil liberties, civil rights, and security safeguards approved by policymakers.  Ongoing Oversight & Accountability: Proper oversight of surveillance technology use and accountability through annual reporting, review by policymakers and enforcement mechanisms. 3. Support State Legislation to Create Consistent Transparency, Oversight, and Accountability Mechanisms for California Law Enforcement The Attorney General might also consider state legislation that also incorporates these key principles and ensures proper and consistent transparency, oversight, and accountability when surveillance technology is being considered by any California law enforcement entity. 4. Develop & Periodically Issue California State of Surveillance Report The ACLU of California’s extensive research on surveillance in California also highlighted just how difficult it is to identify what is happening in the state. It would be very helpful for the Attorney General to streamline transparency about surveillance in California, both to increase public awareness and facilitate oversight. As a recommendation in Best Practices or a provision in a potential state law, the Attorney General’s Office should consider mechanisms to compile and release regularly-updated information about surveillance technology in the state, including what is being used and where, funding sources, and what processes are in place to provide for transparency, accountability, and oversight. 1 The Making Smart Decisions About Surveillance guide, an interactive map of findings, and additional resources are available at https://www.aclunc.org/smartaboutsurveillance. 2 Thank you to legal researchers Matt Cagle, Thomas Mann Miller, Molly Caldwell, Tony Huynh, Lauren Harriman, and Leighanna Mixter. 3 For purposes of this document, “publicly available” information is that which a resident with Internet access could obtain online without the assistance of a request under the California Public Records Act. Our search included but was not limited to publicly available agendas, minutes, and staff reports of city councils and county boards of supervisors; documents of regional quasigovernmental entities; government statements; and news reports. 4 We researched the following California cities: Anaheim, Bakersfield, Beverly Hills, Burbank, Blythe, Chico, Chula Vista, Clovis, Concord, East Palo Alto, El Centro, Elk Grove, Escondido, Eureka, Fontana, Fremont, Fresno, Gilroy, Glendale, Hayward, Huntington Beach, Inglewood, Irvine, Long Beach, Los Angeles, Martinez, Merced, Menlo Park, Modesto, Moreno Valley, Napa, Oakland, Oceanside, Ontario, Oxnard, Pasadena, Placerville, Rancho, Cucamonga, Redding, Redlands, Richmond, Riverside, Roseville, Sacramento, Salinas, San Bernardino, San Diego, San Jose, San Rafael, Santa Ana, Santa Clara, Santa Cruz, Santa Maria, Santa Monica, Santa Rosa, Stockton, Turlock, Ukiah, Vallejo, Ventura, Visalia, Yuba City. 5 Automated license plate readers are sophisticated camera systems mounted to police cars or light posts that scan license plates that come into view. They are often used to look for vehicles of interest, such as stolen cars, but in the process may record the time and place of all vehicles that drive by. 6 Body cameras are small cameras worn by police that record audio and video. These cameras can record everything from typical public interactions with police to sounds and images at rallies or even lewd banter in a squad car. Some body cameras are always on, others are controlled by the wearer. 9 7 Drones are unmanned aerial vehicles that may carry cameras, microphones, or other sensors or devices. Drones range from small “quadcopters” that can maneuver near ground level to high-altitude planes with extremely powerful cameras. Often quieter than traditional aircraft, drones are capable of surreptitious surveillance. 8 Facial recognition is software that identifies a person in photos or videos based on various characteristics of the person’s face. Facial recognition software may be applied to photos or videos captured by an array of devices or contained in government databases. 9 “Stingrays,” or International Mobile Subscriber Identity (“IMSI”) Catchers are devices that emulate a cell phone tower in order to interact with nearby cell phones. Stingrays identify nearby devices, operate in a dragnet fashion that affects every phone in range, and can also be configured to intercept and capture the contents of communications including calls, text messages, or Internet activity. 10 Video surveillance camera systems that allow the remote observation or recording of activity in public spaces. Video feeds may be actively monitored in hopes of spotting crime as it happens or recorded for potential investigations or prosecutions. 11 A summary of the ACLU of California’s surveillance findings is located at the following URL: http://www.aclunc.org/surveillancemap. 12 We located approximately $7.8 million in funding allocated for automated license plate readers. 13 We located approximately $8.2 million in funding allocated for officer body cameras. 14 See Jennifer Valentino-Devries, 'Stingray' Phone Tracker Fuels Constitutional Clash, Wall Street Journal, Sept. 22, 2011, available at: http://www.wsj.com/articles/SB10001424053111904194604576583112723197574. 15 We located publicly available information suggesting the following localities possess Stingrays: San Bernardino, Los Angeles Police Department, Los Angeles Sheriff Department, Oakland Police Department, San Jose Police Department, San Francisco Police Department, San Diego Police Department, San Diego County, Sacramento Police Department, and the Sacramento County Sheriff’s Department. 16 We located approximately $21.5 million in funding allocated for video surveillance technology. Cities have spent the most local money on video surveillance programs, totaling almost $10 million across 12 cities. Fresno spent over $3 million on its live-feed cameras between 2006 and 2013, and has resorted to staffing the cameras with volunteers, rather than sworn officers as originally intended. Oliver Wanger, “Video Policing Unit Audit” (Nov. 30, 2013), 3–6, available at http://www.wjhattorneys.com/assets/files/VPU-Audit-00449144.pdf and https://s3.amazonaws.com/s3.documentcloud.org/documents/1003257/wanger-report.pdf ($870,000 in 2007, $1,016,477.95 in 2008, $547,803 in 2009, $124,200 in 2010, $103,600 in 2011, $111,400 in 2012, $148,320 in 2013, and $135,200 in 2014, totaling $3,057,000.95). Richmond and the Port of Richmond spent $4 million on 34 CCTV cameras in “high-crime” Richmond neighborhoods and 79 cameras at the Port of Richmond, in 2007. Richmond City Council, Meeting Minutes (July 31, 2007), 1–2, available at http://www.ci.richmond.ca.us/ArchiveCenter/ViewFile/Item/1253 (the City of Richmond contributed $1,538,244, the Port of Richmond contributed $3,833,279, and the City of Richmond reserved $166,721 for contingencies). Oakland has most likely spent millions of dollars on surveillance cameras, but there is no clear record of total spending. In 2008, Oakland police proposed spending $5.8 million for a wireless mesh system with 20 surveillance cameras and a monitoring center, with expected annual recurring costs of $800,000, and another $1.5 million on cameras around public schools. Oakland currently has 35 CCTV cameras and 40 live-feed cameras in the city, 135 cameras at the Oakland Coliseum complex, and over 700 cameras around public schools. Memo from Wayne Tucker, Chief of Police, to the Office of the City Administrator, regarding a report on crime fighting strategies to the Public Safety Committee (Jul. 8, 2008), at 1, Port of Oakland, Board of Port Commissioners Meeting Agenda (May 23, 2013), Item 3.1, at 12, available at http://www.portofoakland.com/pdf/about/meetings/2013/boar_shee_130523.pdf. 17 For example, in September 2014 the City of Anaheim allocated over $1.15 million of local funds for the purchase of officer body cameras. The specific source of funds was the Police Dept. 2014/2015 Budget for Civil Liabilities Investigator in the General Fund. See Ana Venagas, Anaheim police officers to wear cameras, OC Register, Sept. 9, 2014, available at http://www.ocregister.com/articles/cameras-634334-video-police.html; see also http://www.anaheim.net/docs_agend/questys_pub//MG47522/AgendaFrame.htm; http://www.anaheim.net/docs_agend/questys_pub//MG47522/AS47561/AS47565/AI47816/DO47817/DO_47817.pdf. 18 For example, video surveillance in Roseville was paid for in part with CA Prop. 1b funds. http://roseville.granicus.com/MetaViewer.php?view_id=2&clip_id=2358&meta_id=88314 19 For example, the Department of Homeland Security (DHS) funneled $35,546,960 to local governments in the Bay Area as part of the Urban Area Security Initiative (UASI) between May 1, 2012, and November 30, 2013. From those funds, Oakland received $1,200,730 during that period, San Jose received $1,548,879, Santa Clara County 10 received $4,143,890, and Santa Cruz received $345,800, totaling $7,239,299. While not all UASI funds are allocated to surveillance technology, a significant portion are: See Memo from Tristan Levardo, CFO of the Bay Area Urban Area Security Initiative, to the Bay Area Urban Area Security Initiative Approval Authority regarding FY2011 UASI Spending Report (June 12, 2014), available at http://bayareauasi.org/sites/default/files/resources/061214%20Agenda%20Item%207%20FY2011%20UASI%20Spe nding%20Report.pdf; Bay Area Urban Areas Security Initiative, Project Proposal Guidance for Fiscal Year 2015 (Interim) (Sept. 11, 2014), at 9, available at http://bayareauasi.org/sites/default/files/resources/091114%20Agenda%20Item%204%20Appendix%20A%20FY15%20Project%20Proposal%20Guidance%20%26%20Sample%20Form.pdf (marked draft for Approval Authority review). 20 The Chico Police Department Business Support Team funded a license-plate reader in Chico. See, e.g., Chico City Council, Meeting Minutes (Feb. 19, 2013), Consent Agenda Item 2.2 (unanimously approving donation of license-plate reader from Chico Police Department Business Support Team), available at http://chico- ca.granicus.com/MinutesViewer.php?view_id=2&clip_id=370&doc_id=9db34992-d762-1030-9122-24b3144c4264; 21 Our research uncovered multiple purchases of surveillance technology made with asset forfeiture funds, including officer body cameras in Hayward and El Centro, video surveillance in Santa Barbara and Bakersfield, and ALPRs in Inglewood. See Hayward City Council Agenda, July 1, 2014, available at http://www.hayward-ca.gov/CITY- GOVERNMENT/CITY-COUNCIL-MEETINGS/2014/CCA14PDF/cca070114full.pdf; City of El Centro Council Agenda Report, Oct. 2, 2012, available at http://www.cityofelcentro.org/userfiles/10-02-12%20- %20Item%209%281%29.pdf; City of Santa Barbara City Council Minutes, Sept. 20, 2011, available at http://services.santabarbaraca.gov/cap/MG100814/AS100818/AS100825/AS100826/AI101983/DO102015/DO_102 015.PDF; Gretchen Wenner, Downtown surveillance cameras will bring Big Brother to Bakersfield, The Californian, Aug. 12, 2010, available at http://www.bakersfieldcalifornian.com/local/x1415295660/Downtown- surveillance-cameras-will-bring-Big-Brother-to-Bakersfield ; City of Inglewood Minutes, July 19, 2011, available at http://www.cityofinglewood.org/civica/filebank/blobdload.asp?BlobID=7045; see also Dave Maass, Asset Forfeiture and the Cycle of Electronic Surveillance Funding, Electronic Frontier Foundation, Jan. 16, 2015, https://www.eff.org/deeplinks/2015/01/asset-forfeiture-and-cycle-electronic-surveillance-funding. 22 In February 2014, the Modesto police announced they were sending a surveillance vehicle—called an “Armadillo”—equipped with eight live-feed, wide-angle, high-definition cameras to monitor “high-crime” neighborhoods. There was no decision by local leaders to approve the transfer; the police department had received the vehicle as a donation from neighboring Ceres. Modesto Police Department, Police Armadillo Hits High Crime Areas (Feb. 25, 2014), http://www.ci.modesto.ca.us/newsroom/releases/police/prdetail.asp?ID=1872; Tim Daly, Modesto cops add “armadillo” to force, News 10, Feb. 26, 2014, available at http://www.news10.net/story/news/local/modesto/2014/02/26/modesto-armadillo-police-camera/5848819/. In another example, several Native American tribes funded license-plate readers for the San Diego County Sheriff. 2011 ALPR funding $78,673.25, San Diego County Meeting Agenda, available at http://www.sdcounty.ca.gov/lueg/iglcbc/meetingdocs/4-8-11_IGLCBC_MeetingAgenda.pdf. 23 Joel Rubin, LAPD adds drones to arsenal, says they’ll be used sparingly, LA Times, May 30, 2014, available at http://www.latimes.com/local/lanow/la-me-ln-lapd-adds-drones-to-arsenal-20140530-story.html (“[T]he department announced that it had acquired two "unmanned aerial vehicles" as gifts from the Seattle Police Department.”) 24 Numerous California localities have used federal funding to purchase automated license plate readers and include Chula Vista, Clovis, East Palo Alto, Marin County, Roseville, San Diego, Tulare County, and Elk Grove. 25 See Memo from Assistant Attorney General Regina B. Schofield to Dr. Pamela Scanlon regarding federal funding in the amount of $418,000 for the Automated Regional Justice Information System (ARJIS) which includes a “query system based on facial recognition.” Available at: https://www.eff.org/files/2013/11/07/01_- _tacids_award_letter_2.pdf; see also Jennifer Lynch & Dave Maass, San Diego Gets in Your Face With New Mobile Identification System, Electronic Frontier Foundation, Nov. 7, 2013, https://www.eff.org/deeplinks/2013/11/san- diego-gets-your-face-new-mobile-identification-system. 26 Memo from Larry Esquivel, San Jose Chief of Police, to the Mayor and City Council (Nov. 1, 2013), at 3, available at http://sanjoseca.gov/DocumentCenter/View/23693 (requesting permission to purchase an unmanned aerial vehicle with $8,000 of $354,000 in DHS funding); City of San Jose, City Council Meeting Minutes (Nov. 19, 2013), Item 2.12, at 9, (authorizing execution of agreement with the City and County of San Francisco to accept $983,000 in funding from the Urban Areas Security Initiative); see also Shawn Musgrave, Despite Repeated Denials, San Jose Police Definitely Have a Drone, Vice (July 29, 2014), available at motherboard.vice.com/read/despite-repeated-denials-san-jose-police-definitely-have-a-drone; Robert Salonga, San 11 Jose police drone inflames surveillance-state rumblings, San Jose Mercury News (July 30, 2014), available at http://www.mercurynews.com/crime-courts/ci_26253376/san-jose-surveillance-state-rumblings-inflamed-by-sjpd. 27 For example, the Alameda County Sheriff originally planned to purchase a drone in 2012 with part of a larger $1.2 million grant dispersed through the California Emergency Management Agency. Angela Woodall, Alameda County puts the brakes on purchasing drone, Oakland Tribune, Dec. 4, 2012, available at http://www.mercurynews.com/breaking-news/ci_22122536. 28 City of Clovis, Report to the City Council (Sept. 19, 2011), available at https://www.ci.clovis.ca.us/Portals/0/Documents/CityCouncil/Agendas/2011/20110919/CC-D-1.pdf; see also Demian Bulaw, Future Fuzzy for Government Use of Surveillance Cameras/Still Some Bay Area Cities Hope to Follow Clovis’ Lead, SFGate, July 23, 2006, available at http://www.sfgate.com/news/article/Future-fuzzy-for-government-use-of-public-2515607.php. 29 See City of Richmond, Human Resources Management Dept. Meeting Minutes (Apr. 25, 2013), at 1–3, available at http://www.ci.richmond.ca.us/Archive/ViewFile/Item/5178. 30 ALPR units were mentioned in a community update newsletter, RPD Happenings, available at http://www.riversideca.gov/rpd/community/newsletters/rpd-2011-05.pdf. 31 There are many examples of surveillance technology purchases without public notice or involvement. For example, a 2009 report to the Salinas city council listed a video surveillance system as having been acquired “recently” despite the fact that the ACLU could not locate publicly available City Council records mentioning the initial purchase. Salinas Police Department, 180-day Report to the Community, October 20, 2009, available at http://www.ci.salinas.ca.us/services/police/pdf/180-DayReport-102009.pdf. 32 Matt Bigler, Bay Area's first cop drone sparks worry, outrage from civil-rights group, KCBS Bay Area, http://sanfrancisco.cbslocal.com/2014/11/13/san-jose-police-hear-residents-concerns-about-surveillance-drone/; Thom Jensen, Mike Bott, Is sheriff's department using tracking and data-collecting device without search warrants?, CBS News 10, June 23, 2014, http://www.news10.net/story/news/investigations/2014/06/23/is-sacramento-county-sheriff-dept-using-stingray-to-track-collect-data/11296461/. 32 City of San Jose, City Council Meeting Agenda (Nov. 19, 2013), at 6 (Consent Calendar Item 2.12), available at http://sanjoseca.gov/DocumentCenter/View/23727. 33 When the San Jose City Council gave approval to police to purchase a drone, the description on the city council meeting agenda specified only that the police and fire departments sought authorization to receive $983,000 from the Bay Area Urban Areas Security Initiative. The description provided only a link to a memo from the police and fire chiefs and the budget director with more information about what the funds would be used for, including $8,000 for an unmanned aerial vehicle. See City of San Jose, City Council Meeting Agenda (Nov. 19, 2013), at 6 (Consent Calendar Item 2.12), available at http://sanjoseca.gov/DocumentCenter/View/23727; Memo from Larry Esquivel, San Jose Chief of Police, to the Mayor and City Council (Nov. 1, 2013), at 3, available at http://sanjoseca.gov/DocumentCenter/View/23693 (requesting permission to purchase an unmanned aerial vehicle with $8,000 of $354,000 in DHS funding). 34 Scott Herhold, Big Brother, begone: The San Jose police should get rid of their drone, San Jose Mercury News, Aug. 2, 2014, available at http://www.mercurynews.com/scott-herhold/ci_26264766/big-brother-begone-san-jose-police-should-get; San Jose Peace & Justice Center, Rally Against the Drone! And Militarization of the Police (last accessed Jan. 20, 2015), http://www.sanjosepeace.org/article.php/20141001152838137. 35 Robert Salonga, San Jose: Police apologize for drone secrecy, promise transparency, San Jose Mercury News, Aug. 5, 2014, available at http://www.mercurynews.com/crime-courts/ci_26279254/san-jose-police-apologize-secret-drone-purchase-promise 36 In November 2014 the Alameda County Sheriff purchased two drones with over $97,000 in funds from the county’s Office of Homeland Security and Emergency Services. See Matt O’Brien, Alameda County sheriff buys two drones, Dec. 4, 2014, available at http://www.mercurynews.com/crime-courts/ci_27059034/alameda-county-sheriff-buys-two-drones. 37 Sacramento County, Board of Supervisors Agenda (Nov. 5, 2013), Item 14, available at http://www.agendanet.saccounty.net/sirepub/cache/2/uwdlotm54esv3znz0pwswbzy/1131109042014035517303.htm ; Memo from the Sheriff’s Department to the Sacramento County Board of Supervisors for the Agenda of Nov. 5, 2013, at 2, available at http://www.agendanet.saccounty.net/sirepub/cache/2/uwdlotm54esv3znz0pwswbzy/649263409042014035719458.PDF (spending authorization request includes $300,075 for “Wireless Tracking Equipment”) (in a response to a public-records request from the ACLU of Northern California about documents related to IMSI catchers, Sacramento County returned a document with the same budget line, $300,075, with the description, apparently “Wireless Tracking Equipment,” redacted); Kim Minugh, Sacramento County sheriff acknowledges possession, use 12 of cellphone surveillance technology, Sacramento Bee (Jul. 31, 2014), available at http://www.sacbee.com/2014/07/31/6596112/sacramento-sheriff-acknowledges.html. 38 Memo from Christopher M. Moore, Chief of Police, to the San Jose Mayor and City Council (July 30, 2014), at 3 (requesting authorization to enter into agreement with City and County of San Francisco to allocate UASI funds to San Jose, including $250,000 for “law enforcement surveillance technology equipment”); Agreement Between the City and County of San Francisco and the City of San Jose for the Distribution of FY 2011 UASI Grant Funds (May 1, 2012), at A-3, available at http://www3.sanjoseca.gov/clerk/Agenda/20120821/20120821_0802acon.pdf ($250,000 to purchase “law enforcement surveillance technology equipment”). The equipment number included in the agreement description, AEL#: 13LE-00-SURV, is used by DHS. See Department of Homeland Security, Equipment, Law Enforcement Surveillance, AEL / SEL Number 13LE-00-SURV, available at https://www.llis.dhs.gov/knowledgebase/authorizedequipmentlist/equipment-law-enforcement-surveillance (accessed Sept. 4, 2014) (equipment description: “Surveillance equipment and related accessories, including but not limited to: audio, data, and visual equipment. Includes electronic equipment such as Pen registers (equipment capable of capturing incoming and outgoing phone numbers, along with the duration of calls, without listening to the actual conversations).”); City of San Jose, Early Distribution Council Packet for May 14, 2013 (Apr. 30, 2013), at 12 (including memo from San Jose Chief of Police Larry Esquivel regarding proposed spending for 2012 UASI funding); Agreement Between the City and County of San Francisco and the City of San Jose for the Distribution of FY 2012 UASI Grant Funds (Dec. 1, 2012), at A-2, available at http://sanjoseca.gov/DocumentCenter/View/15909 ($172,000 to purchase “law enforcement surveillance equipment,” AEL# 13LE-00-SURV); The two expenditures of $250,000 and $172,000 match records San Jose released in response to a public-records request, including proposals to UASI (for the same amounts) and purchase agreements with Harris Corp. (totaling $432,485.31), which produces the most well-known IMSI catchers. See KXTV News 10, 9 Calif. law enforcement agencies connected to cellphone spying technology, Mar. 6, 2014, available at http://www.news10.net/story/news/investigations/watchdog/2014/03/06/5-california-law-enforcement-agencies-connected-to-stingrays/6147381/. 39 In at least one instance, local officials did not debate acquisition but did debate policy: the Chico City Council authorized the purchase of a license-plate reader on the consent calendar, in 2013, but directed staff to draft a use policy, which it did debate. City of Chico, City Council Meeting Minutes (Sept. 3, 2013), available at http://chico-ca.granicus.com/MinutesViewer.php?view_id=2&clip_id=416&doc_id=d8a860c2-67dd-1031-9668-843478bb431f; City of Chico, City Council Meeting Agenda (Sept. 3, 2013), available at http://chico-ca.granicus.com/MetaViewer.php?view_id=2&clip_id=416&meta_id=36829. 40 City of Fresno, City Council Meeting Minutes (Jul. 31, 2014), available at https://fresno.legistar.com/LegislationDetail.aspx?ID=1852287&GUID=833F6193-0CCE-45C7-86CC- 3C0194672568. 41 San Diego County, Board of Supervisors Meeting Agenda (Jan. 26, 2010), Item 2, available at http://sdcounty.granicus.com/DocumentViewer.php?file=sdcounty_673669eb2e688fc71ef2bec80221ad8c.pdf&view=1; Memo from William D. Gore, San Diego County Sheriff, to the San Diego County Board of Supervisors (Jan. 26, 2010) (request for sole source authority to purchase surveillance equipment), available at http://www.sdcounty.ca.gov/bos/supporting_docs/012610ag02t.pdf. 42 John Malkin, Surveillance City? GoodTimes, Jan 29, 2014, http://www.gtweekly.com/index.php/santa-cruz-news/good-times-cover-stories/5386-surveillance-city.html. 43 Id. 44 Santa Clara Board of Supervisors, Minutes, Sept. 11, 2012, available at http://sccgov.iqm2.com/Citizens/FileOpen.aspx?Type=12&ID=4131&Inline=True (approving grant of UASI federal funds); see also Memo from Laurie Smith, Santa Clara County Sheriff, to the Santa Clara County Board of Supervisors regarding Integrated Regional Law Enforcement Information Sharing System (Coplink) (Feb. 12, 2013) (requesting authorization to spend $489,000 from the Department of Homeland Security to upgrade regional database with facial recognition software), available at sccgov.iqm2.com/Citizens/FileOpen.aspx?Type=30&ID=13873. 45 Memo from George Nielson, Chief of Police, to the Placerville City Council, Aug. 20, 2008, available at http://www.cityofplacerville.org/civicax/filebank/blobdload.aspx?blobid=3962 (“[A]pproximately $26,000.00 has been approved by the Approval Authority Board for the City's use, for the purchase of an Automated License Plate Recognition system.”) 46 City of San Rafael, City Council Agenda Report, prepared by Lt. Raffaello Pata, Captain (Mar. 19, 2012). 13 47 See Memo from Larry Esquivel, San Jose Chief of Police, to the Mayor and City Council (Nov. 1, 2013), at 3, available at http://sanjoseca.gov/DocumentCenter/View/23693 (requesting permission to purchase an unmanned aerial vehicle with $8,000 of $354,000 in DHS funding). 48 The Redlands Police Department convened a Citizens’ Privacy Council, open to any resident of the city, to provide advice on policy for surveillance cameras and oversee police use of the cameras. Richmond formed an ad‐hoc committee to evaluate policies for its video surveillance program. And in 2014, following community backlash and the vote not to expand Oakland’s Domain Awareness Center, the City Council created a Privacy and Data Retention Ad Hoc Advisory Committee comprised of diverse community members to create safeguards to protect privacy rights and prevent the misuse of data for a scaled-back system to be used at the Port of Oakland. Redlands Police Department, Citizen Privacy Council, http://www.cityofredlands.org/police/CPC; Memorandum, Establishing Ad Hoc Committee to Review the Community Warning System and Industrial Safety Ordinance (Sept. 18, 2012), http://64.166.146.155/agenda_publish.cfm?mt=ALL&get_month=9&get_year=2012&dsp=agm& seq=12339&rev=0&ag=241&ln=23604&nseq=0&nrev=0&pseq=12303&prev=0; see Memorandum, Oakland City Administrator’s Weekly Report (Apr. 25, 2014), http://www2.oaklandnet.com/oakca1/groups/cityadministrator/documents/report/oak046804.pdf. 49 City of Ventura Administrative Report (Dec. 14, 2011), available at http://www.cityofventura.net/files/file/meetings/city_council/2012/01-09-12/item%2004.pdf 50 Memo from Larry Esquivel, Chief of Police, to the San Jose Mayor and City Council (Mar. 20, 2014), regarding body worn cameras (detailing work plan for Body Worn Camera Committee), available at http://www.piersystem.com/external/content/document/1914/2126242/1/03-21-14Police.PDF. 51 U.S. Dep’t of Homeland Security, CCTV: Developing Best Practices (2007), available at http://www.dhs.gov/xlibrary/assets/privacy/privacy_rpt_cctv_2007.pdf; International Association of Chiefs of Police, Technology Policy Framework (2014), available at www.theiacp.org/Portals/0/documents/pdfs/IACP%20Technology%20Policy%20Framework%20January%202014 %20Final.pdf. 52 See, e.g., Draft ALPR Policy 462 for the use of Automated License Plate Readers, Alameda City website, http://alamedaca.gov/sites/default/files/department-files/2013-12-26/draft_alpr_policy.pdf. 53 Analysis of Alameda’s Draft Policy Manual for Automated License Plate Readers, Jan. 29, 2014, available at http://alamedaca.gov/sites/default/files/department-files/2014-02-04/aclu_analysis_of_alameda_alpr_policy.pdf. 54 For example, San Diego, Chula Vista, Oceanside, and Escondido share all data they collect with ALPRs through a regional data-sharing system called ARJIS. In the Bay Area alone, several regional data-sharing systems aggregate and analyze ALPR data, including SBISS for the South Bay (Santa Clara and Gilroy), NCRIC for the North Bay (Menlo Park, San Mateo County), and the UASI’s West Node Regional Data Sharing in Marin County. 55 NCRIC Automated License Plate Reader Policy, available at https://ncric.org/html/NCRIC%20ALPR%20POLICY.pdf ARJIS LPR Regional Guidelines (Jan. 2015 draft), available at http://www.arjis.org/Portals/0/PortalDocuments/DRAFT%20ARJIS%20LPR%20Acceptable%20Use%20Policy%20psc%2001%2002%202015%20ps.pdf; SBISS Memorandum of Understanding, http://www3.sanjoseca.gov/clerk/Agenda/20100330/20100330_0210mou.pdf. 56SBISS MOU mentions no set limit. NCRIC has a default length of one year, but allows shorter limits set by contributing cities or counties to trump its retention period. ARJIS has a retention period of one year for fixed cameras and two years for portable cameras regardless of limit set by contributor. City of Palo Alto City Council Staff Report (May 5, 2014), available at https://www.cityofpaloalto.org/civicax/filebank/documents/40191; NCIRC Automated License Plate Reader Policy, available at https://ncric.org/html/NCRIC%20ALPR%20POLICY.pdf; LPR Regional Guidelines (Jan. 2015 Draft), available at http://www.arjis.org/Portals/0/PortalDocuments/DRAFT%20ARJIS%20LPR%20Acceptable%20Use%20Policy%2 0psc%2001%2002%202015%20ps.pdf; The City of Novato California Staff Report (Oct. 8, 2013), available at http://ci.novato.ca.us/agendas/pdfstaffreports/cc100813_F-3.pdf; Memorandum of Understanding, available at http://apps.co.shasta.ca.us/BOS_Agenda/MG69199/AS69205/AS69234/AI69367/DO69369/13.PDF. 57 A data sharing agreement in one jurisdiction may affect residents in another. For example, when the Santa Clara County Board of Supervisors approved, via consent calendar, a request from the county sheriff to upgrade a regional database with facial-recognition software, the decision also affected dozens of other cities that cooperate with the county sheriff and contribute information to the database—including every city in Santa Clara, Santa Cruz, Monterey, and San Benito counties. See Memo from Laurie Smith, Santa Clara County Sheriff, to the Santa Clara County Board of Supervisors regarding Integrated Regional Law Enforcement Information Sharing System (Coplink) (Feb. 12, 2013) (requesting authorizing to spend $489,000 from the Department of Homeland Security to 14 upgrade regional database with facial recognition software); Santa Clara County Board of Supervisors, Board of Supervisors Meeting Minutes (Feb. 12, 2013) (approving request from Laurie Smith on consent calendar). 58 Oakland Police Department, Portable Video Management System, Departmental General Order, Effective Date Mar. 5 2014, available at https://www.muckrock.com/foi/california-52/oakland-police-dept-body-cam-policy-emails-and-complaints-13459/#files. 59 See, e.g., Sixteenth Monitoring Report of Robert S. Warshaw, Monitor of the Negotiated Settlement Agreement (NSA) in the case of Delphine Allen, et al., vs. City of Oakland, et al., in the United States District Court for the Northern District of California, at 45, available at http://www.cand.uscourts.gov/filelibrary/1350/2014-01%20monitoring%20report.pdf. 60 Matt Cagle, San Francisco - Paying the Price for Surveillance Without Safeguards, ACLU-NC Blog, May 22, 2014, https://www.aclunc.org/blog/san-francisco-paying-price-surveillance-without-safeguards. 61 Community Safety Camera Ordinance, Chapter 19 of the San Francisco Administrative Code, available at http://administrative.sanfranciscocode.org/19/. 62 For complete Video Policing Project Policy Guidelines and Manual, see Memo from Jerry Dyer, Fresno Police Chief, to Fresno City Council, Oct. 21, 2008, 13–24, available at http://www.fresno.gov/NR/rdonlyres/77999966- 4ABA-45C5-9519-42E4E29657A4/0/HonorableBrettDorianVideoPolicingAuditorServices.pdf. 63 City of Menlo Park, City Council Special and Regular Meeting Agenda (June 3, 2014), Item #D-1, An Ordinance Regarding the Use of Automated License Plate Readers and Neighborhood Surveillance Cameras, available at http://www.menlopark.org/ArchiveCenter/ViewFile/Item/1658. 64 The Ad Hoc committee’s draft, dated January 15, 2015, is available here: https://oaklandprivacy.files.wordpress.com/2015/01/1-13-15-dac-privacy-and-data-retention-policy-draft- 011515.pdf. 65 Cities and counties have occasionally required that surveillance technologies be reviewed within a certain time period after deployment, but these requirements are rare and incomplete where they exist. For example, while San Bernardino maintains a city website listing statistics about the use of ALPR, including stolen cars recovered, publicly available statistics have not been published for any year following 2010. See ALPR Statistics, City of San Bernardino website (last visited Jan. 20, 2015), http://www.ci.san- bernardino.ca.us/cityhall/police_department/public_safety/traffic_safety_programs/alpr/default.asp. Roseville’s City Council required that the Roseville Police Department report the benefits and costs of bus cameras to a city commission one year after installation. In the case of Roseville, the ACLU found no record that the post-deployment report was ever conducted. City of Roseville, Transit On-Board Video Cameras Purchase (May 31, 2012), available at http://roseville.granicus.com/MetaViewer.php?view_id=2&clip_id=2358&meta_id=88314. 66 Fresno City Council Minutes, Sep. 20, 2012, available at http://www.fresno.gov/CouncilDocs/agenda9.20.2012/1b.pdf. 67 Id.; City of Fresno, City Council Meeting Minutes, Aug. 22, 2006, available at http://www.fresno.gov/NR/rdonlyres/CE8889CD-A095-40D1-968B-B50237558584/0/August222006CityCouncilMinutes.pdf (amending policy to include annual audit); City of Fresno, City Council Meeting Minutes, Sep. 26, 2006, available at http://www.fresno.gov/NR/rdonlyres/2D40AAED-5A45-4FD1-8316-1EE714F42D78/0/September262006CityCouncilMinutes.pdf (amending policy to include greater protections for individuals participating in demonstrations or other lawful gatherings). 68 Hon. Oliver W. Wanger, Annual Audit for the Fresno Police Department Video Policing Unit for the Period Ending November 30, 2013 (December 30, 2013), available at http://www.wjhattorneys.com/assets/files/VPU-Audit-00449144.pdf; George Hostetter, Former Judge Wanger Writes Far-Ranging Audit on Fresno Video Policing, in The Fresno Bee (Jan. 7, 2014), available at http://www.fresnobee.com/2014/01/07/3701754/judge-wanger-delivers-impressive.html. 69 Judge Wanger: Fresno video policing done right, needs money, Fresno Bee, Jan 8, 2014, available at http://cqrcengage.com/mnmajority/app/document/1354649;jsessionid=ocJiPHEyGHZ19bsd440Xgp5B.undefined 70 Ordinance No. 127-06, Sec. 19.4(d), available at https://sfgov.legistar.com/View.ashx?M=F&ID=2592763&GUID=E040FBD1-E991-425A-AE5B-0A4449FFD108. 71 Id. The report must “identify the camera locations, the crime statistics (or the vicinity surrounding each camera both before and after the camera is installed, crime statistics from surrounding vicinities, the number of times the Police Department requested copies of the recorded images, the number of times the images were used to bring criminal charges, the types of charges brought, and the results of the charges.” 72 See Citris, Citris Study on SF Public Cameras Released (Jan. 9, 2009), http://citris-uc.org/citris-study-on-sf-publiccameras-released/. 15 73 Andrew Dudley, Lights, Camera, Inaction: San Francisco’s Broken Surveillance System, Hoodline, Oct. 19, 2014, http://hoodline.com/2014/10/lights-cameras-inaction-san-francisco-s-broken-surveillance-state. 74 Quarterly Review of Data Captured by Automated License Plate Readers (ALPR) for the Period Beginning July 1, 2014 through October 1, 2014, Menlo Park City Council Meeting, Nov. 18, 2014, available at http://menlopark.org/DocumentCenter/View/5786. 75 See Making Smart Decisions About Surveillance: A Guide for Communities, https://www.aclunc.org/publications/making-smart-decisions-about-surveillance-guide-communities; Map: State of Surveillance in California, ACLU of Northern California, https://www.aclunc.org/article/map-state-surveillance-california; U.S. Dep’t of Homeland Security, CCTV: Developing Best Practices (2007), available at http://www.dhs.gov/xlibrary/assets/privacy/privacy_rpt_cctv_2007.pdf; Police Executive Research Forum, How Are Innovations in Technology Transforming Policing? 26 (Jan. 2012), available at http://www.policeforum.org/assets/docs/Critical_Issues_Series/ how%20are%20innovations%20in%20technology%20transforming%20policing%202012.pdf; International Association of Chiefs of Police, Technology Policy Framework (2014), available at www.theiacp.org/Portals/0/documents/pdfs/IACP%20Technology%20Policy%20Framework%20January%202014 %20Final.pdf. 76 The DAC Ad Hoc Advisory Committee’s recommendations supplementing its privacy policy include a recommendation that Oakland adopt a citywide surveillance technology ordinance. https://oaklandprivacy.files.wordpress.com/2015/01/1-13-15-dac-privacy-and-data-retention-policy-draft- 011515.pdf. FURTHER READING Santa Clara county executive tells Ars what Harris wanted was "on the silly side." Jhaymesisviphotography The Santa Clara County Board of Supervisors has halted a plan to approve the purchase of a cell-site simulator, better SEC Ars Technica has arrived in Europe. Check it out! by Cyrus Farivar - May 7, 2015 6:00am PDT ▼▼ In rare move, Silicon Valley county gov’t kills stingray acquisition | Ars ... http://arstechnica.com/tech-policy/2015/05/in-rare-move-silicon-valley-... 1 of 5 5/7/2015 6:49 PM FURTHER READING known as a stingray. The secretive surveillance devices can be used to determine a phone’s location, but they can also intercept calls and text messages. During the act of locating a phone, stingrays also sweep up information about nearby phones—not just the target phone. Earlier this year, Ars reported on how the FBI is actively trying to "prevent disclosure" of how these devices are used in local jurisdictions across America. The move, happening in one of the primary counties in Silicon Valley, marks an unusual occasion that a local government has turned away from federal funds that would be used to acquire such a device. The device was approved initially during a February 24, 2015 meeting, despite a testy exchange between the Santa Clara Sheriff's Office and Supervisor Joe Simitian, a former state senator with a penchant for an interest in privacy issues. Simitian's office didn't immediately respond to Ars' request for comment. James Williams, the deputy county executive, wrote in a Tuesday letter to his boss Jeffrey Smith: After negotiations regarding contract terms, including business and legal issues, the County and Harris have been unable to reach agreement on a contract for the purchase of the System. Accordingly, the System will not be purchased at this time. Harris Corporation is the Florida-based defense contractor that is the manufacturer of the device produced under the StingRay trademark. As the dominant maker of cell-site simulators, stingray has also become the generic name for this class of devices. Both the FBI and the Harris Corporation have previously declined to answer Ars' specific questions. Smith told Ars that Harris wanted to impose overly strict restrictions as to what could be disclosed through the public records process. "What happened was, we were in negotiations with Harris, and we couldn't get them to agree to even the most basic criteria we have in terms of being responsive to public records requests," he said. "After many hours of back and forth it became clear that they weren't going to consent to a contract in an attempt to keep everything secret and non-discoverable and that's not something we could live with as a public agency. The negotiations are going to be terminated and the grant money will go to other purposes." WHA DOZ The Nev LG Sna In rare move, Silicon Valley county gov’t kills stingray acquisition | Ars ... http://arstechnica.com/tech-policy/2015/05/in-rare-move-silicon-valley-... 2 of 5 5/7/2015 6:49 PM FURTHER READING He said that the FBI was not involved in the discussions, and that Santa Clara County did not even get to the stage of the onerous non-disclosure agreement along the lines of a previously published one revealed in a court case in Erie County, New York. In that case, a rare unredacted form demonstrated the full extent of the FBI's attempt to quash public disclosure of stringray information. The most egregious example from the document showed that the FBI would prefer to drop a criminal case in order to protect secrecy surrounding the stingray. In St. Louis, a defense lawyer who represented a woman who had pleaded guilty to being involved in a series of robberies recently told Ars that prosecutors dropped charges rather than expose the use of a stingray. Last year, prosecutors in Baltimore did the same thing during a robbery trial. "The best I can get into is that [Harris has] been convinced by somebody, maybe by themselves, that federal law prohibits them saying anything to anybody about their technology unless that person has a badge or is a criminal investigation in the criminal justice system," Smith added. "So if we're buying this as civilians we would have to guarantee that we would never tell anybody that it was being bought. It was a little on the silly side. They're claiming that everything is a trade secret, but the reality is that the public is quite well-aware that this is a wireless wiretapping and it's not a secret, I can't understand where they're coming from." Civil liberties and legal experts hope that the newfound scrutiny that has come from various cities around the country, including Tacoma, Washington, and Erie County, New York, are beginning to reach those in government. "With more scrutiny of these deals and the strings that are attached to them, I am hopeful that more counties will negotiate more aggressively," Brian Owsley, a former federal judge who is now a law professor at Indiana Tech, told Ars. "As Harris Corporation is in the business of selling its products, if enough local law enforcement agencies object to the "standard’ agreement, then Harris Corporation may have to change its standard language." Relatively little is known about how, exactly, stingrays, known more generically as cell-site simulators, are used by law enforcement agencies nationwide, although new documents have recently been released showing how they have been purchased and used in some limited instances. However, it has been well-established that cops have lied to courts about their use. Typically, police deploy them without first obtaining a search warrant. A local privacy activist who has closely followed stingrays from nearby San Leandro, California, Mike Katz-Lacabe, told Ars this was the first time he had ever heard of a county resisting acquisition of a stingray. "Much, if not all, of the credit goes to Supervisor Joe Simitian and his push for transparency," he told WOR In rare move, Silicon Valley county gov’t kills stingray acquisition | Ars ... http://arstechnica.com/tech-policy/2015/05/in-rare-move-silicon-valley-... 3 of 5 5/7/2015 6:49 PM ---- Ars by e-mail. "In addition, this is one of the few times that there has been a public discussion BEFORE the acquisition of a stingray. There were no public discussions in Oakland, San Jose, or San Francisco when each of those police departments acquired a stingray, and they may not have even appeared on an agenda of the respective City Councils." "I hope that this is a sign that sunlight is finally piercing the veil of the secrecy surrounding the use of this equipment," he added. "Use of this equipment is specifically kept hidden from judicial authority and the courts under the terms of the non-disclosure agreement that police departments must sign before they can buy a Stingray. It is critical to our judicial system and our democracy that the public and our elected representatives be informed about the use of these devices so that we can have a discussion about their privacy implications and make informed decisions about policies for their use." Smith, the county executive, for his part was surprised to learn that Santa Clara may be the first local entity to refuse Harris' demands. "We're not focused on being the only one to do something, but we had to do what we thought was right in terms of negotiations," he added. "If it's the only time it's happened, I'm surprised." Cyrus Farivar / Cyrus is the Senior Business Editor at Ars Technica, and is also a radio producer and author. His first book, The Internet of Elsewhere, was published in April 2011. @cfarivar on Twitter In rare move, Silicon Valley county gov’t kills stingray acquisition | Ars ... http://arstechnica.com/tech-policy/2015/05/in-rare-move-silicon-valley-... 4 of 5 5/7/2015 6:49 PM About Us Advertise with us Contact Us Reprints Subscribe to Ars RSS Feeds Newsletters Reddit Wired Vanity Fair Style Details © 2015 Condé Nast. All rights reserved Use of this Site constitutes acceptance of our User Agreement (effective 1/2/14) and Privacy Policy (effective 1/2/14), and Ars Technica Addendum (eff Your California Privacy Rights The material on this site may not be reproduced, distributed, transmitted, cached or otherwise used, except with the prior written permission of Cond Ad Choices In rare move, Silicon Valley county gov’t kills stingray acquisition | Ars ... http://arstechnica.com/tech-policy/2015/05/in-rare-move-silicon-valley-... 5 of 5 5/7/2015 6:49 PM City of Palo Alto Policy on Video Management Revised January 2015 I. INTRODUCTION The purpose of this Policy is to provide guidelines for the use of City-owned video management systems (VMS) and accompanying cameras that are permanently installed. Mobile, portable, wearable and other such audio/video systems are outside the scope of this Policy. II. POLICY STATEMENT The City of Palo Alto is committed to enhancing the quality of life of employees and residents of Palo Alto by integrating security practices with available technology. To enhance security of City property and aid investigatory capability, it may be appropriate to permanently install stationary video devices that are owned by the City of Palo Alto, and to ensure that the video systems currently in existence are governed by a single City-wide policy. The City remains committed to ensuring that all video systems are used in a manner that respects and balances the privacy interests of employees and residents. Video systems will be used by various departments to monitor critical infrastructure that support on-going City services, prevent acts of vandalism, theft and other crimes, provide real-time situational awareness in the event of natural disasters or other critical incidents, assist with response to public safety incidents in the City, and, where appropriate, the investigation of criminal activity. III. DEFINITIONS “General Monitoring” refers to viewing recorded images from stationary cameras and monitors that have been approved under this Policy for the purpose of complying with City policies and laws and regulations. “Specific monitoring,” for purposes of this Policy, refers to a more focused type of observation on an individual or group of individuals that involves: (1) realtime or live monitoring; (2) a closer degree of scrutiny related to the reasonable grounds to believe the person(s) who are the target of the monitoring are engaging in or have engaged in prohibited activity and (3) is designed to be investigatory and generally conducted over a longer timeframe. Specific monitoring does not include incidental observation or inadvertent discovery. For any specific monitoring activity to occur, there must be some connection between the information collected and unlawful activity. “Operators” are those persons provided with access to any part of the VMS. Current staffing precludes the routine monitoring of cameras. Accordingly, operators may be capable of viewing live (real-time) or recorded video and other information, depending on their level of access. 1 “VMS Administrator” refers to the designee(s) of the City Manager, who shall oversee this Policy, as defined herein. As of January 2015, the designee(s), who are to form a committee and work collaboratively, are as follows: (1) the Director of Emergency Services; (2) a representative from the Palo Alto Utilities Department; and (3) a representative of the City Attorney’s Office. IV. USE OF PERMANENTLY INSTALLED STATIONARY VIDEO EQUIPMENT A. Rules 1) Application: The head of a City department (“applicant”) wishing to permanently install video cameras shall submit a written request (form) to the VMS Administrator with a statement justifying the benefit of installing such equipment. The application must include the proposed number and location of the device(s), the purpose of the installation, whether the location of the cameras involves recording of activity by employees or the general public or both, and the names and titles of the individuals who will be the operators. The source of funding for the installation must be specifically identified as part of the request. 2) Review: The VMS Administrator will review the request and advise the applicant of the decision within ninety (90) business days after receipt. The applicant may appeal the decision of the VMS Administrator by submitting an appeal to the City Manager or his/her designee, who will consult with the City Attorney’s Office and respond to the request within thirty (30) business days after receipt. The decision of the City Manager or his/her designee is final. 3) Equipment Specifications: The VMS Administrator will develop a specification that provides guidance regarding the type of equipment City departments may purchase, compatibility, installation (contractors, etc.), and other such implementation details. 4) Changes: An applicant may file a written request to change the location or limit the visual range of a specific installation of video equipment based on a belief that it infringes on a reasonable expectation of privacy or other protected rights. The request shall be submitted to the VMS Administrator and shall (a) identify the location, (b) identify the concern or issue, and (c) provide the suggested changes. The VMS Administrator shall respond to the request within ninety (90) business days after receipt. The response will be based on a reconsideration of the initial request to install the devices in light of the concerns. The appeal process is the same as paragraph 2, above. 5) Retroactive Provisions: Within twelve (12) months of the effective date of this Policy and the Equipment Specifications, all existing City-owned systems shall be brought into compliance with all aspects of this Policy. Those which do not conform shall be removed, unless a waiver is granted by the VMS Administrator. 6) Security: Operators shall exercise due care to ensure that video displays shall not be viewable by unauthorized persons. 7) Signage: Any area in which a video system is permanently installed shall have signage prominently displayed indicating the fact of monitoring. In cases in which there is an ongoing investigation, monitoring shall be governed by usual legal or City procedures, which may not require signage. 2 In the event third parties (such as private businesses and other non-government entities) desire to share their video feeds with the City, the following rules will apply: 1) Except for exigent circumstances or temporary (less than 90 days) access, the third party shall submit a written authorization form to the VMS Administrator, specifying which City department is to be granted access, for what duration (if any), and any other conditions or limitations. 2) The VMS Administrator shall maintain a registry of such third parties which have authorized the City of Palo Alto to have access to their video systems. B. Training 1) Operators shall be trained in the technical, legal and ethical parameters of appropriate system use. 2) Operators shall receive a copy of this policy and provide written acknowledgement that they have read and understood its contents. 3) Certain operators, such as those in the 911 Communications Center and the Emergency Operations Center, may require additional training. C. Operation 1) Monitoring will be conducted in a professional, ethical and legal manner. The system will not be used to invade the privacy of individuals or otherwise utilized in areas where the reasonable expectation of privacy exists. Monitoring shall not be used to harass, intimidate or discriminate against any individual or group. 2) Duties of Department Heads. (a) Each Department Head shall designate the Operators and provide the list of staff to the VMS Administrator; (b) Each Department Head shall keep this list of Operators up-to-date and ensure staff completes the required training (per Section B) and completes the VMS Employee Statement and other forms; (c) Department Operators may engage in General Monitoring for the purpose of enhancing compliance with City policies as described in Section I herein; (d) Department Operators shall not engage in Specific Monitoring except in instances of suspected criminal activity, natural disaster, or threat to public property or safety, unless authorized by the VMS; and (e) Every Department Head shall ensure that they or their staff notify the VMS Administrator as soon as practicable of any instances of or planned Specific Monitoring. 3) Duties of VMS Administrator. (a) The VMS Administrator may engage in General Monitoring for the purpose of enhancing compliance with City policies as described in Section I herein; (b) The VMS Administrator shall have City-wide system access and may engage in realtime and Specific Monitoring in the event of natural disaster, law enforcement 3 emergency, imminent threat situation, authorized law enforcement investigation, for the purpose of system-wide threat and safety assessments, and/or with the approval of the Chief of Police or his/her designee or City Manager or his/her designee; (c) The VMS Administrator shall prepare an annual report to the City Manager and the Chief of Police containing information regarding system use City-wide; and (d) All requests for recordings or other system use that are made in connection with internal investigations, disciplinary matters, or criminal investigation shall be made to the VMS Administrator. D. Storage, Public Records 1) Both current and archived recordings will be secured in accordance with current state of art and best practices. 2) The volitional public release of video images shall be done only with the authorization of the VMS Administrator and only with a properly completed written request. 3) Video images needed for a criminal investigation or other official reason shall be collected and booked in accordance with current departmental evidence procedures. 4) Requests for recorded video images from other government agencies or by the submission of a court order or subpoena shall be promptly submitted to the Police Department Communications Manager, who will research the request and submit the results of such search through the VMS Administrator to the City Attorney's office for further handling. Every reasonable effort should be made to preserve the data requested until the request has been fully processed by the City Attorney's office. 5) Video images captured by the system that are requested by the public or media will be made available only to the extent required by law. Except as required by a valid court order or other lawful process, video images requested under the Public Records Act will generally not be disclosed to the public when such video images are evidence in an ongoing criminal investigation in which a disposition has not been reached. 6) Recordings shall be retained for one (1) year in accordance with California Government Code Section 34090.6(a) and then will be erased or recorded over unless retained as part of a criminal investigation, a civil or criminal court proceeding, pursuant to a Preservation Notice issued by the City Attorney’s Office. No attempt shall ever be made to alter any recording, except to enhance quality for investigative purposes and to blur elements (such as uninvolved bystander faces) consistent with other policies and common practice to preserve privacy, to preserve evidence or other such lawful and valid reason. The VMS may have network video recorders (NVRs) or similar mechanisms where images are “buffered” for a period of time before they overwritten. Such data are not considered recordings. A recording occurs when images are exported to another medium (such as a DVD). 7) Retained recordings will be destroyed at the appropriate time, which will be determined and directed by the City Attorney’s Office. 4 E. Destruction or Tampering with Cameras or System Components Any person who tampers with or destroys a camera or any part of the video system may be prosecuted in the criminal justice system as well as subject to discipline, up to and including termination, in the case of staff. F. Routine Audits The video system shall be subject to regular audits. Any unauthorized use of the video system shall be reported to the VMS Administrator as well as the City Manager or his/her designee. 5