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RE: Digital Wayfinding and Out-of-Home Advertising Kiosk Program To Santa Monica City Council:
I write this letter in support of BigOutdoor’s proposal to build smart kiosks throughout the city of Santa Monica. As a longtime resident of the City of Santa Monica, safety and the support of local businesses are a top priority for me. I truly believe the interactive kiosks being proposed will alleviate my concerns about both.
Firstly, the wayfinding kiosks allow for the amplification and discovery of local businesses in Santa Monica, something which has been lacking during my time as a resident. I believe this important aspect of the Big Outdoor proposal is essential to a thriving and tight knit community.
On top of the support the kiosk program will bring for local businesses, the kiosks will also allow for a brighter light to be shone on the history and continued community programs hosted and put on by the City of Santa Monica. From our city’s events, to museums, and historical aspects this is a big win for all Santa Monica residents.
Secondly, and most importantly in my opinion, the proposed kiosks have a public safety aspect which is of the utmost importance to tourists and the residents of Santa Monica. Being able to display public safety alerts as well as the emergency network will allow my family and I to sleep more soundly at night.
For these reasons listed above I fully support Big Outdoor’s response to the Santa Monica kiosk RFP.
Sincerely,
David Wong
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Letter: Santa Monica City Council -Big Outdoor-221021
Date: October 21, 2022
RE: Adoption of a Resolution Declaring Intention to Award a Franchise Agreement for RFP 300: Digital Wayfinding and Out-of-Home Advertising Kiosk Program Santa Monica City Council
To Whom it May Concern,
We the McKinney Avenue Transit Authority, have worked with Big Outdoor for several years and have always appreciated the ad revenue they have been able to bring to our organization in Dallas.
Big Outdoor manages the sales and marketing of our streetcar /trolley advertising program. They have successfully monetized these assets while making sure all campaigns and advertisers are of the highest quality.
In addition, we have begun work with Big Outdoor in designing interactive/wayfinding kiosk signage for our busiest stations in our system. They’ve helped navigate this process by interfacing with local business owners, associations, and BIDs to assure a successful launch.
During our multi-year relationship, Big Outdoor has proven to be a trusted partner and we look forward to collaborating with them for years to come.
Sincerely,
Vic Cervantes
President
McKinney Avenue Transit Authority (MATA)
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October 21, 2022
Santa Monica City Council:
To Whom it May Concern,
The Gaslamp Quarter Association located in downtown San Diego has worked with Big Outdoor over the past several years to help monetize our advertising kiosk program throughout our district.
They've been instrumental in bringing in revenue that has helped our business owners thrive and has allowed for us as an association to drive increased business to the Gaslamp. In addition to the sales and marketing aspect, they've implemented cleaning and maintenance procedures that keeps the kiosks and surrounding areas looking pristine at all times.
They've always gone above and beyond to help many of our business owners, oftentimes by promoting their business on the kiosks and helping them drive revenue. Big Outdoor has a community minded approach that works well in the neighborhood. They are always innovating on ways to support the Gaslamp Quarter outside of just advertising.
Big Outdoor has always been available to discuss special events and have helped us in ways outside the standard sales agreement. They're a true partner, and a group that we look forward to working with for years to come. If you have any questions, please feel free to reach out to me directly.
Best regards,
Michael Trimble
Executive Director
Gaslamp Quarter Association
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October 24, 2022
Santa Monica City Council
To Whom it May Concern,
We have worked with Big Outdoor for the past several years and have always appreciated the partnership.
Big Outdoor manages several supergraphics and digital media kiosks throughout Downtown. They’ve always been responsive to our requests for including content benefiting the community. They ensure all assets and advertisers are of the highest quality.
Big Outdoor has proven to be a trusted partner and we look forward to working them for years to come.
Sincerely,
Shalissa Perry, Chief Marketing Officer
Downtown Dallas, Inc.
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October 25, 2022
Re: Big Outdoor reference
To whom it may concern,
Our partnership with Big Outdoor extends over five years. They were the first media firm to secure approval for a digital installation as part of the Atlanta Arts & Entertainment district. Big Outdoor has been a responsive partner that supports the goals and objectives of A&E Atlanta to elevate the district and the local creative community.
Sincerely,
Fredalyn M. Frasier, Project Director, Planning and Urban Design Central Atlanta Progress (CAP)
Atlanta Downtown Improvement Development (ADID)
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sensoryinteractive.net | Atlanta • Austin • Boston • Dallas • New York • Washington DC Santa Monica City Councilmembers
05 December, 2022
To Whom it May Concern,
We have been working with Big Outdoor for over 10 years and continue to value our relationship in the media business. BIG has consistently delivered on several projects we have advised and advanced with investors and developers including the development of digital networks at Manhattan Village in Manhattan Beach, CA, Victory Park in Dallas, TX, and Apex II in Downtown Los Angeles, CA. Their organization has brought significant and above projected revenue to a variety of properties throughout the country and they continually exceed our expectations, as well as our Clients. They are a responsive and attentive group, who work diligently to understand the goals and objectives of our Clients, the visitors, and the communities around the project(s).
Big Outdoor has demonstrated their leadership in the industry and we look forward to collaborating with them on future projects.
We understand Big Outdoor is looking to advance a digital wayfinding program for the community and City of Santa Monica and confident on their ability to execute and offer our support where applicable. Please feel free to contact me directly.
Sincerely,
Randy
Randy Byrd
President, CEO
1101 Wilson Blvd
Suite 931
Rosslyn, VA 22209
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December 8th, 2022
RE: Adoption of a Resolution Declaring Intention to Award a Franchise Agreement for RFP 300:
Digital Wayfinding and Out-of-Home Advertising Kiosk Program To Whom It May Concern:
I am writing to you on behalf of Big Outdoor and the Digital Wayfinding and Out-of-Home program in Santa Monica. I am pleased to recommend Big Outdoor for this project. We’ve successfully worked with Big on several Digital media programs in Santa Monica and in other markets.
Kinetic operates three offices across New York City, Chicago and LA and we have been working with Big Outdoor for 7 years. We have a strong and respectful partnership and the team at Big Outdoor mirrors that in how they handle all our client needs. They are as passionate about delivering great work as we are and together, we have done that on many occasions for our clients such as Ally Financial, Tiffany & Co., Door Dash, The Coca Cola Company, NBCUniversal, Google and Airbnb.
Big Outdoor has done a very good job in developing digital products across major markets that in turn become highly sought-after placements our clients specifically ask for. They have a very strong understanding of how to develop a product, effectively market it and successfully sell it.
My experience with Big is they are a professional, well managed firm and they meet and exceed customer expectations. If you have any questions, please call me at 773-318-5778 Regards,
Maureen McCloskey
Managing Director
Kinetic Worldwide
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December 8th, 2022
Dear Santa Monica City Staff and Council,
Over the past few weeks, we have had the opportunity to view, inspect, and comment on the BIG Outdoors kiosks which are slated to be installed over the coming months.
We were impressed with the potential these kiosks have for Santa Monica, not only as an informational platform, but also as one to generate revenue and foot traffic for The City, and it’s small businesses.
Even more impressive and reassuring was how responsive, and welcoming the BIG Outdoor team was to the business community and how receptive they have been to suggested changes proposed by business owners and residents.
We emphatically support BIG Outdoor in this endeavor and look forward to working with them closely to curate this valuable program in the coming months.
Sincerely,
Hunter G. Hall
Executive Director
Main Street Business Improvement Association
314.323.4663
[email protected]
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1 Vernice Hankins
From: DG Brown <[email protected]>
Sent: Monday, December 12, 2022 12:53 AM
To: Gleam Davis; Lana Negrete; Phil Brock; Christine Parra; Oscar de la Torre; Caroline Torosis; Jesse Zwick; councilmtgitems
Subject: Ike Smart City = Corruption?
EXTERNAL
Dear Mayor Davis, Mayor Pro Tempore Negrete, and Councilmembers:
Finally a private company has come to the table with an offer that would give Santa Monica its fair share. I've sat through many Council meetings where residents and Councilmembers have skewered developers and other private companies for trying to exploit Santa Monica ‐ profiting from our city's beauty and prosperity, while residents suffer from the impacts and our community is not fairly compensated.
It seems that Big Outdoors proposed a strong business deal while Ike Smart City tried to rip off the city, then hired a former assistant city manager, a local attorney/big city council campaign donor to negotiate backroom deals. Also, somehow received the support of Downtown Santa Monica and Travel and Tourism? Why didn't Ike Smart City make a fair offer when given the opportunity to provide our community with what it deserves?
But hey, I guess this is just Ike Smart City's way of doing business. How would you feel if Santa Monica were in these headlines?
Council opens formal investigation into ‘smart cities’ deal Inspector General seizes computer from city employee involved in ‘smart cities’ controversy New Orleans’ smart city project collapses amid procurement investigation Emails show Valencia promoted smart city development while her lobbyist husband profited from it Backroom Deal Poised to Deliver Hundreds of Digital Ad Kiosks to LA’s Sidewalks Corruption shouldn't be rewarded. Please do the right thing.
DGB
North of Montana Resident
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Meghan Walsh
200 Varick Street
New York, NY 10014
December 12, 2022
RE: Letter of References for Adoption of a Resolution Declaring Intention to Award a Franchise Agreement for RFP 300:
Digital Wayfinding and Out-of-Home Advertising Kiosk Program To Whom It May Concern:
I am writing to you on behalf of Big Outdoor and the Digital Wayfinding and Out-of-Home program in Santa Monica. I strongly recommend Big Outdoor for this project, as we have successfully worked with Big on a number of Digital media programs in Santa Monica and in other markets.
I have personally worked with Big for over 6 years on the Warner Media business, a high profile and demanding streaming network. Big has been part of almost all of our largest campaigns, ranging from standard to large format static and digital media, to street level barricades. Specifically from a digital perspective, Big has helped us showcase our titles within their Santa Monica Digital Network – our talent often reposts photos standing in front of them.
Big Outdoor has evolved over the years to continuously meet high client demands and constant advances in digital technology, becoming a leading partner in the digital space. My experience with Big is that they are a professional, well managed firm and they meet and exceed customer expectations – I highly recommend Big Outdoor for the Santa Monica Kiosk Program.
If you have any questions, please call me at 631-848-9659.
Regards,
Meghan Walsh
Meghan Walsh
Senior Director, Warner Media OOH Investment
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RE: Adoption of a Resolution Declaring Intention to Award a Franchise Agreement for RFP 300: Digital Wayfinding and Out-of-Home Advertising Kiosk Program I am writing to you on behalf of Big Outdoor and the Digital Wayfinding and Out-of-Home program in Santa Monica. I am pleased to recommend Big Outdoor for this project. We’ve successfully worked with Big Outdoor on a number of Digital media programs in Santa Monica and in other markets throughout the US.
The Out Of Home buying team that I oversee is responsible for securing a high volume of Out Of Home media for our clients throughout each year. I have had the pleasure of working with Big Outdoor for the past several years. I am proud to call them a partner and continue to increase our business with them year after year. Their expertise in Out Of Home advertising leads them to offer an array of digital formats throughout the outdoor space and, in my opinion, their vision for the future is strong.
My experience with Big Outdoor is that they are a professional, well managed firm and they meet and exceed customer expectations. If you have any questions, please call me at Regards,
Billy Long, EVP OOH Practice
Publicis Media
375 Hudson St.
New York, NY 10014
561-350-5505
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From: [email protected]
Sent: Monday, December 12, 2022 1:53 PM
To: councilmtgitems; Caroline Torosis; Jesse Zwick; Gleam Davis; Lana Negrete; Phil Brock; Oscar de la Torre; Christine Parra
Cc: David Martin; David White
Subject: Item 12-A - Wayfinding Kiosks
EXTERNAL
December 12, 2022
Mayor and Councilmembers:
I sent an email on November 12 sharing my thoughts on the Wayfinding Kiosk matter. My email was not published in the Written Communications folder. No emails or letters submitted between October 26 and November 13 were accessible to the public, so I am submitting my comments today in this email and am confident it will be included in the folder with the Staff Report.
Like many community members, I was disappointed that the November 13 City Council meeting was not streamable on Granicus/Channel 16 or on YouTube due to technical issues with the audio system. Delivering information to the public via electronic information systems is vital to your constituents’ awareness and understanding of the issues that affect them, and essential to those who are unable to attend Boards, Commissions and Council meetings for reasons of disability, scheduling conflicts or personal matters. The community would have liked to hear the discussion.
As a 50-year resident of Santa Monica, a former school administrator for SMMUSD, City Councilmember, Mayor, and current Board Member at MWD, I have experienced and served our city on many levels. I have a deep appreciation of our history and of the community values that have evolved here.
I regard the kiosk program as a rare opportunity to provide multiple levels of information about our community – beyond advertising, services and wayfinding – in a way that will inform Santa Monicans and visitors alike in an equitable, accessible way.
The representatives of IKE have engaged with a wide variety of stakeholders who have suggested ways to enrich the basic and customized content that the company provides to communities in its “Smart City” kiosk systems. One of those suggestions is the addition of site-specific interpretive content to the kiosks, which would, with the tap of the screen, provide kiosk users a deeper understanding of the city’s unique civic, cultural and natural history from the perspective of each specific kiosk site. IKE representatives were very receptive to the idea and said that this function could easily and effectively be incorporated into their content. As I understand it, a digitized visual element – whether a drawing, photo, archival footage or chart -- would be accompanied by a brief description and would include a QR code linking the interested user to more detailed information. These specific interpretive sites could conceivably be linked to walking tours and other activities. Presenting interpretive content in an interactive and engaging way will undoubtedly instill in people a new appreciation of the community and values we are so proud of. Off the top of my head, I can imagine many opportunities for this kind of content. Some of the following topics below might be linked with appropriate kiosk sites:
* The breadth of Tongva/Gabrieleno lands and the culture and economy that helped define a once-thriving society – including the complex systems of trade routes on land and across Santa Monica Bay to the Channel Islands * The scores of Works Project Administration buildings, including City Hall itself * Local industry, from the site of the Douglas Aircraft factory during WWII, a facility that employed thousands of women and men (including my grandmother), and importantly, helped redefine the American workforce, to the clay quarry and brick factory in the Olympic corridor that produced building materials for our earliest buildings (which probably includes the original footings for my own house)
* Santa Monica’s vibrant, historic communities of color Item 12.A
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2 * The sites of women’s achievements, including the architectural achievements of Julia Morgan
* Sites associated with the Red Car system
* Santa Monica’s piers, past and present
* Santa Monica’s rich arts history, including the sites of historic galleries and museums, performing venues and the homes of the literary giants who put Santa Monica on the map * Santa Monica Bay, including the migratory patterns of whales and other sea mammals visible from Palisades Park, as well as the activities of seabirds that play an essential part in maintaining the ocean’s increasingly fragile ecosystem * Santa Monica’s geological and geographical features – our deepest history – providing a new perspective for residents and visitors
Those are a few of my thoughts on electronic interpretive signage. I do not think of that kind of content as niche or superfluous. It would bring a new perspective to the wayfinding words “you are here.” And finally with respect to resolving item 12-A, I feel that the provider the City ultimately selects should have come to the RFP process prepared to demonstrate their software engineering capacity, installation and maintenance know-how and ability to perform that significant task efficiently, plus real-world experience working closely with diverse local governments and community stakeholders. I know that other community leaders understand that the only firm that was ready on day one to meet those criteria was IKE Smart City. I would urge you to find a way to exercise your authority as City Councilmembers to set aside Staff’s resolution and tomorrow night’s Ordinance and move ahead with a proven provider.
Thank you.
Judy Abdo
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1 Vernice Hankins
From: kent Strumpell <[email protected]>
Sent: Monday, December 12, 2022 3:33 PM
To: councilmtgitems; Phil Brock; Gleam Davis; Oscar de la Torre; Christine Parra; [email protected]; Caroline Torosis; Lana Negrete
Cc: David White
Subject: Digital billboard/kiosk proposal
EXTERNAL
Dear Council Members and City Manager,
My biggest concern with the proposed digital kiosk program is the 20‐plus year contract duration being pursued. With so many questions about the need (in light of the pervasive use of smart phones), revenue projections, technological evolution and most especially, the visual, cultural and safety impacts of dozens of brightly illuminated billboards in our pedestrian realm, why isn’t this a pilot project for, say, two years? I mean, recent programs for shared mobility devices as well as the Zero Emission Delivery Zone project ‐ similarly operating in our public space ‐ were structured as pilots with short durations so the operations could be evaluated and changes made if needed.
One unfortunate possibility would be if the presumed user need didn’t emerge, ie, if few people interacted with them, and the kiosks basically became offensive billboards in our limited public space with in‐your‐face advertising most of the time and occasional city programming of limited value. Their placement is another important issue that we need to be assured will be handled carefully. For instance, it is likely that the billboards will be oriented perpendicular to the flow of motor vehicle traffic to maximize ad exposure. That orientation ‐ and the kiosks' glare at night ‐ can make it difficult for transit users to see down the block for approaching buses, or speeding traffic if someone is about to enter a crosswalk, or a cyclist trying to see if it’s safe to enter an uncontrolled intersection. I’m not assuming these outcomes would result, but they seem like possibilities that a pilot period would allow us to take into account before selling off our city’s visual plane for decades.
I understand the need for the anticipated revenue, which Santa Monica could certainly put to good use. But if that is what is driving this, and the commercialization of our public realm is the cost, surely a better survey of public support for the program is needed. A test period with the ability to reevaluate would allow the public and the city to understand their impact and then make an informed decision to consider if the program is worth continuing, or if adjustments are needed.
Thank you,
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2 Kent Strumpell
1211 Michigan Ave.
Santa Monica
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December 12, 2022
Agenda Item 12A
Dear Mayor Davis and City Council Members:
The SaMo Safe Streets Alliance, having developed its coalition of community organizations based on decades of commitment and collaborative work to help the City of Santa Monica lead on innovation, sustainability and climate resiliency responsive to the community, as well as to equity, economic and environmental concerns, urges you to reject the staff’s recommendation to award a franchise to BIG Outdoor for the installation, operation, and maintenance of a digital wayfinding and out-of-home advertising kiosk network for a 20-year term. The IKE Smart City protest/appeal, contesting the franchise award to BIG Outdoor, clearly has merit and strong implications, warranting your serious consideration. The IKE protest/appeal is substantive and demonstratively valid. The appeal/protest ultimately deserves your support, As we have written to the Council before (see attached letters), it makes no sense to award a twenty-year contract for significant way-finding infrastructure in the right-of-way to BIG Outdoor because it has revealed that it has no experience or expertise with implementing any such product. Confident leadership must realize when it is necessary to reassess situations, particularly to achieve visionary and long term or “multi generational” goals and to be good stewards of the City’s reputational, financial and leadership integrity.
Providing innovative, dynamic community-serving kiosks is what IKE Smart City excels at. The company’s own values – and their understanding of the communities they serve, evolving services, public and active transportation, safety, sustainability guidelines, art and local businesses and a myriad of other content – set them apart from BIG’s unsubstantiated promises. To continue with BIG would compound errors made and will undoubtedly prove immensely expensive as there would be future costs to deal with delays (BIG has no product currently), malfunctioning infrastructure, reputational damage and possible litigation.
We still cannot understand how BIG should have been allowed to move forward for the contract after not meeting the RFP’s basic requirements in the first place – shockingly then advance after presenting an initial smoke and mirrors proposal to win the Staff’s final recommendation. After all, the City’s basic requirement, called out in its own RFP, that the applicant should “have successfully deployed, operated, and maintained kiosk programs in a minimum of three other similar markets [and] have a demonstrated history of producing strong advertising revenues.” Why the proposal was accepted and continued to be considered bedevils the mind. BIG has not implemented any kiosks in any city or similar market whatsoever.
Now, the City has to contend with IKE’s (well warranted) protest/appeal and BIG’s intellectual property infringements and outright plagiarism of IKE’s marketing materials from its website to bolster BIG’s own proposal. Why would the City risk hiring BIG Outdoors when it is now facing IKE’s compelling cease and desist cause of action due to patent infringement? The jeopardy to Santa Monica’s standing is big, including jeopardy to the City’s reputation in the local community and the region, as well as, quite visibly on the world stage.
What’s the example the City would be giving to youth and to our future generations by intentionally contracting with a company, like BIG, that has shown its contempt for meeting the RFP requirements and proposing a presumed financial packaging for a City revenue stream that is at best questionable and at worst untenable?
BIG Outdoor’s signing bonus may be tempting, but it is not worth the risk. Actually, any City concern about forsaking BIG Outdoor’s $4 million (pay-to-play) signing bonus offer is moot given that IKE Smart City has committed to match the contribution offered and to provide a superior and proven product. We’ve been told, on multiple occasions over the last few months, “It is complicated.” There is nothing complicated about what we are seeing publicly. The “truth” inevitably comes out. Depending on how that “truth" is perceived undermines credibility.
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The prospect of BIG Outdoor kiosks in the public right-of-way is frankly scary. Let us not forget that Santa Monica has unintentionally already fallen victim to employing designers and contractors that led to dysfunctional infrastructure. We are still suffering the practical and financial consequences from having chosen aesthetic design with poor engineering over functional infrastructure for the Big Blue Bus transit stops. An expensive project costing millions has not provided transit riders with useful or inviting access to transportation that encourages people to commute sustainably, supporting our adopted climate action goals. Unachieved, as noted in KCRW’s Design & Architecture reporting, L.A. Designer: Lorcan O’Herlihy Rethinks Big Blue Bus Stops, is “The success of LA’s public transit depends not only on the ease and efficiency of the system itself but the infrastructure that supports it, specifically the bus and metro stops that riders wait at, often in blazing sun, sometimes in the rain; typically standing, at times in the dark or alone.” The design firm chosen had no experience in designing and implementing transit infrastructure.
In another example of a shortsighted decision, in 2012/13 LA Mayor Garcette pulled the rug out from under the collaborative planning led by the City of Santa Monica and announced an exclusive contract with Bike Nation for bike share. Bike Nation promised big – but in actuality had never launched a bike share scheme. In the end – after over 2 years of missed deadlines and failed promises – they never launched, delaying the implementation of the region's bike share until Santa Monica took the lead with Breeze Bike Share.
As reported by Streetsblog in 2013*, “The ultimate question is not why Bike Nation left a contract but why they didn’t feel they could fulfill that contract once again (feeling antsy, Long Beach and LA?). Which would also, in turn, cause massive speculation for the rumors going around that they are being looked at by other municipalities (according to many, Bike Nation is still convincing other cities, despite [not] having a single successful launch, that they’re the bikeshare program to go with).” Bike Nation never launched - anywhere.
All of this institutional history and knowledge needs to inform the process and Council’s thoughtful decisions. We need the Council to be bold in its leadership, not beholden. We cannot allow past decisions that have led to a mistake to be compounded by awarding BIG Outdoor the franchise for the digital wayfinding kiosk.
What is the example for the young now in making important decisions for infrastructure? That example must be one that the City, community and future generations can trust. Reject the Staff’s recommendation and proceed with accepting the proven and superior technology offered by IKE Smart City. At minimum, cancel the old RFP and issue a new one that is transparent and follows its own rules.
Sincerely,
Cynthia Rose Cris Gutierrez
Co-Chair, Santa Monica Safe Street Alliance Co-Chair, Santa Monica Safe Streets Alliance Director, Santa Monica Spoke
SaMoSafeStreets.org
*https://la.streetsblog.org/2013/10/08/as-cities-big-and-small-move-on-bike-share-la-and-lb-wait-for-bikenation/ Item 12.A
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November 14, 2022
Agenda Item 8A
Dear Mayor and City Council Members:
The Santa Monica Safe Streets Alliance (SaMoSSA) once again urges you to reject Staff’s recommendation to award a contract to BIG Outdoor’s smoke and mirrors “promise” for a digital wayfinding and out-of-home advertising kiosk program. We implore you — and future generations look to you — to award the contract for a dynamic, innovative technology diligently led by IKE Smart Cities that will expertly and collaboratively evolve with Santa Monica’s community into the future.
We submit this letter today to reiterate and expand on the thoughts expressed in our October 25th letter, which we attached, and to ensure that our views appear in the written communications file available online to the public. Also, we submit additional thoughts about content that we hope will increase your appreciation of the scalability of information available in IKE’s kiosk software, which will only enhance the overall program by the high-scoring IKE Smart City kiosks already proposed, and further customize the content that reflects our diverse community’s rich resources and values. We have been impressed by IKE’s proactive attention to even the small details that are essential to help improve street safety.
Based on our review of the Staff Report and the October 25th hearing video, we’ve become even more convinced that IKE Smart Cities’ proposal is the only viable option. We cannot understand at this point why BIG is still a contender. We urge you to exercise your legal authority to choose IKE’s solid innovative proposal over the vastly inferior “mythical program” promised by BIG. BIG’s proposed signing bonus cannot be allowed to distract the choice with a pay-to-play gambit. The proposal BIG set forth was almost completely conceptual.
It clearly exposed the company’s lack of experience in this field and was weak on virtually all important and relevant details. In contrast IKE’s proposal is innovative, dynamic and currently on the street in cities in the US and around the world.
SaMoSSA is also uneasy and utterly confused about how it is acceptable that a top scorer is unable or unwilling to come forward with a functional kiosk for Council’s review prior to the October 25th hearing. How is this possible or acceptable?
By contrast, beyond our first-hand and in-person encounter with IKE’s demonstration kiosk and the October 25th Council discussion, IKE has continued to be receptive to additional ideas that we feel are vital to kiosk users’ ability to understand and innovatively navigate Santa Monica’s built environment, including landmarks and orientation and contextual interpretive content that carries the user in a wayfinding experience far beyond the “you are here” to an immersive and broader environmental and historical realm.
Just as important, the IKE organization has continued to be receptive to content that would inform visitors (and remind residents) of our community’s sustainability leadership and commitments as well as the best practices that encourage stewardship of our natural and built environment. Santa Monica is, after all, a LEED city. We should expect to live up to the standards that we have collectively set and have sought to realize for more than twenty-five years.
(In fact, soon before Council will be the update of the City’s Sustainability Plan.)
We urge you to exercise leadership to accept IKE’s offer to match BIG’s financial proposal, and bring IKE’s clearly superior product on board as an exciting, innovative, virtual member of our progressive community.
What you do now will affect how we leverage dynamic new technologies to help us thoughtfully and inclusively innovate today – and for future generations – so that Santa Monica can energetically welcome and efficiently inform our community and visitors. Thank you for your attention.
Sincerely,
Cynthia Rose Cris Gutierrez
Co-Chair, Santa Monica Safe Street Alliance Co-Chair, Santa Monica Safe Streets Alliance Director, Santa Monica Spoke
SaMoSafeStreets.org
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October 25, 2022
Agenda Item 14A
Dear Mayor and City Council Members:
The Santa Monica Safe Streets Alliance (SaMoSSA), a collaboration of local advocacy organizations and community members that advocate for safe, livable and sustainable streets that are welcoming to everyone, urges you to reject Staff’s recommendation to award a contract to BIG Outdoor for a digital wayfinding and out-of-home advertising kiosk program. In contrast to IKE Smart City, BIG does not have the experience or knowledge to create a user-friendly interactive wayfinding kiosk program. BIG offers in essence static, sidewalk, electronic billboards, akin to furniture. BIG, in effect, would ask Santa Monica to be its guinea pig.
IKE has significant experience and expertise in building a digital wayfinding kiosk program that is customized for interactive use by a diverse set of users in public spaces throughout various municipalities. City Staff appears to have based its recommendation on the primary criterion of BIG having offered the most money to “pay to play” – not a basis for a forward-thinking, visionary choice that will be with us for many generations.
In light of IKE’s new offer to match BIG’s financial contribution, the IKE Smart City units would be the prudent and obvious choice. IKE is a technology company with a proven, plug-and-play system and a responsive support team.
We ask that the City Council carefully consider the scores from the top two of the proposals and reject Staff’s recommendation. Our community and the City of Santa Monica deserve infrastructure that will be dynamic and evolve with our expectations and needs into the future in collaboration led by IKE's expertise and our community input. IKE has a proven product. BIG has a notion.
As the co-chairs of SaMoSSA, we were invited by IKE to give our input to their team who reached out to share with us the capabilities of their operational demonstration kiosk. We were impressed by the working kiosk and IKE’s commitment and demonstrated history in many markets of user-friendliness. The IKE team was excited and eager to build on new ideas with the Santa Monica community input.
We are confident that IKE would provide Santa Monica with a visionary, customized, continually updated kiosk program based on the tested software and design that IKE has developed through its working with scores of cities, including Berkeley. As an example of IKE’s responsiveness, we understand that they went to great lengths to study, design and integrate a use-application needed for the ease and equitable access of the low vision and blind community. The openness of the IKE team assured our confidence that IKE would commit to making sure it provided a kiosk program with dynamic, high quality way-finding features to facilitate residents, families, businesses, workers, students and visitors in engaging with and in getting around our city to enjoy its services, amenities, and events. The IKE team listened intently to our feedback and was enthused to have a program that reflects the Santa Monica values and uniqueness and that would be maintained in a skilled, collaborative and conscientious manner.
We ask the Council to award the contract to IKE Smart City that has a history of demonstrated implementation of smart kiosk technology.
Sincerely,
Cynthia Rose Cris Gutierrez
Co-Chair, Santa Monica Safe Street Alliance Co-Chair, Santa Monica Safe Streets Alliance Director, Santa Monica Spoke
SaMoSafeStreets.org
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1 Vernice Hankins
From: Council Mailbox
Sent: Tuesday, December 13, 2022 8:34 AM
To: councilmtgitems
Subject: Fw: Agenda Item 12A: Digital Wayfinding and Out-of-Home Advertising Kiosk Program Attachments: 2022-12 CC 12A Digital Kiosk Prgram SaMoSSA -combined.pdf From: Cynthia Rose <[email protected]>
Sent: Monday, December 12, 2022 7:34 PM
To: Council Mailbox <[email protected]>
Cc: [email protected] <[email protected]>; David White <[email protected]>
Subject: Agenda Item 12A: Digital Wayfinding and Out‐of‐Home Advertising Kiosk Program
EXTERNAL
Dear Mayor Davis and City Council Members
Santa Monica Safe Streets Alliance urges you to reject the staff’s recommendation to award a franchise to BIG Outdoor for the installation. The IKE protest/appeal is substantive and demonstratively valid. The appeal/protest ultimately deserves your support,
We implore you — and future generations look to you — to award the contract for a dynamic, innovative technology diligently led by IKE Smart Cities that will expertly and collaboratively evolve with Santa Monica’s community into the future. We submit this letter today to reiterate and expand on the thoughts expressed in our November 14th and October 25th letters (which is also included on pages 3 and 4 of the document attached). ‐‐
Cynthia Rose and Cris Gutierrez
Co‐Chairs
Santa Monica Safe Streets Alliance
SaMoSafeStreets.org
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From: Sherry Martini <[email protected]>
Sent: Tuesday, December 13, 2022 9:53 AM
To: councilmtgitems
Subject: Fw: BIG OUTDOORS claim it can provide millions to us beyond the initial payout
EXTERNAL
----- Forwarded Message -----
From: Sherry Martini <[email protected]>
To: David White <[email protected]>
Cc: Council Mailbox <[email protected]>; Douglas Sloan <[email protected]>; [email protected] <[email protected]>; Gleam Davis <[email protected]>; Phil Brock <[email protected]>; Christine Parra <[email protected]>; [email protected] <[email protected]>; Editor santamonicalookout.com <[email protected]>; [email protected] <[email protected]>
Sent: Tuesday, December 13, 2022 at 09:51:44 AM PST
Subject: BIG OUTDOORS claim it can provide millions to us beyond the initial payout I also have one more question re this? I understand per press reports (Santa Monica Outlook and SMDP) that huge amounts of money are predicted to come our way from Outdoor.
We'd get the signing bonus of $4 million and then "50 percent of the adjusted gross revenues" or $5 million per year, which ever is higher."
I have a few questions:
1) what will the size of the kiosks be?
2) where will they be?
3) how long with the advertising be visible vs. the informative information. 4) what types of advertising be allowed and who decides this? 5) what happens if this company goes bankrupt -- what happens to all the kiosks (I understand rebranded Rove IQ is essentially a start up company) Are we left with 50 non-working kiosks? 6) Will Big Outdoor [dba as Rove IQ? per complaint] open its books to us to make sure the City is receiving 50 % of the Adjusted Gross (not sure what that means) or will we just hav eto trust them? 7) Will these kiosks have cameras or be collecting/monitoring other information on citizens, for which they can further monetize the kiosks. If so, will citizens be made aware of the monitoring? "Under the proposed contract, the City would initially receive either 50 percent of adjusted gross revenues or $5 million per year, whichever is higher, staff said in a report to the Council.
Assuming all 50 kiosks are installed, the City would reap an estimated $14 million a year, staff said. BIG Outdoor has also offered the City a $4 million signing bonus before the franchise agreement kicks in.
"We need the money right now," Councilmember Oscar de la Torre said of the proposed contract. "They put forward a very attractive financial package." https://www.surfsantamonica.com/ssm_site/the_lookout/news/News-2022/December2022/12_12_2022_Bidder_Mounts_Last_Ditch_Effort_to_Block_Lucrative_Wayfinding_Contract.html On Tuesday, December 13, 2022 at 09:39:39 AM PST, Sherry Martini <[email protected]> wrote:
Looks like Ike has sued Big Outdoors as of 4 days ago, in case you didn't know. Case number and information below.
Lawyers filing the suit are well respected so I'm imagining it has merit.
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2 I am wondering, I don't see ROVE IQ (rebranded from Smartlink) or any of its leaders on the Oaks reports? Maybe I missed them. The lawsuit names "BIG OUTDOOR and Smartlink Ventures d/b/a Rove IQ" as if they are one entity.
Also, can anyone here point me to any interactive citizen assisting Kiosks at Santa Monica Place, per:
"Tagliaferri also noted that BIG operates the kiosks at Santa Monica Place, making it 'the only digital Out-of-Home sign operator in Santa Monica since 2016." https://www.bizjournals.com/cincinnati/inno/stories/news/2022/07/05/nky-startup-rove-iq-seeing-rapid-growth-thisyear.html
NEW SUIT - TRADEMARK
Manatt, Phelps & Phillips filed a trade dress and trademark infringement lawsuit Friday in California Central District Court on behalf of IKE Smart City, a maker of 'smart' kiosks which provide free Wi-Fi and other city services. The suit takes aim at BIG Outdoor and SmartLink Ventures d/b/a Rove IQ for allegedly producing smart kiosks which mimic the plaintiff's registered trade dress. The defendants are also accused of plagiarizing the plaintiff's marketing materials. Counsel have not yet appeared for the defendants. The case is 2:22-cv-08937, Ike Smart City, LLC v. Big Outdoor, LLC et al.
On Tuesday, December 13, 2022 at 09:21:19 AM PST, Sherry Martini <[email protected]> wrote:
Dear RoveIQ:
It is my understanding from press reports that you are the software provider for BIG OUTDOOR the company bidding for at least 50 citizen-based interactive information kiosks with advertising in our city. Can you kindly tell me how long you have provided software for BIG OUTDOOR and what cities you have worked with BIG OUTDOOR for Kiosks? I would like to check the references re BIG OUTDOOR's statement:
"Bill Tagliaferri, BIG's executive vice president of real estate, said IKE's claims don't have merit. "Both BIG Outdoor and our software provider Rove iQ have developed and currently operate hundreds of digital kiosks," Tagliaferri said. "All of Rove iQ’s kiosks are wayfinding kiosks and BIG operates many as well."
Tagliaferri also noted that BIG operates the kiosks at Santa Monica Place, making it "the only digital Out-of-Home sign operator in Santa Monica since 2016." (see full link to Santa Monica Lookout article below)
Also, I don't recall seeing any INTERACTIVE or Citizen-Based INFORMATIVE Kiosks at the Santa Monica Place. The only thing I see if really big advertising for all sorts of things on very big Screens. Can you share an example of an interactive/informative citizen-based kiosk at Santa Monica Place.
Thank you.
Sherry Martini
Activist
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On Monday, December 12, 2022 at 08:49:49 AM PST, Sherry Martini <[email protected]> wrote:
I had to find the information on the BIG OUTDOORS owners another way:
And now I understand the Real Estate Partners aspect of BIG OUTDOORS. It's partially owned by a Suntx, a private equity firm:
"SunTx Capital Partners is a leading private equity firm, which invests in middle-market manufacturing, distribution, and service companies. We partner with business owners and deploy our capital, experience, and relationships to help middle-market companies maximize their potential. Our proven, pragmatic approach and comfort with complex situations has earned SunTx a reputation as a trusted partner."
https://suntxcapitalpartners.com/
"The company [BIG OUTDOORS] was started in 2013 and is owned by Brad Berkley, Eric Niemeyer and SunTx Capital Partners which has allocated $100 million in capital to grow the business. Brad Berkley is CEO. Eric Niemeyer is President." Company of the Day: Big Outdoor
Company of the Day: Big Outdoor
billboardinsider
Company: Big Outdoor Markets: Nationwide Headquarters: 1528 Slocum St, Dallas, TX 75207 Phone: 214-969-5800 ...
Here's info from Brad Berkley's Linked in page. I could not find much on Eric Niemeyer:
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4 "CEO Big Outdoor
Mar 2003 - Present · 19 yrs 10 mosMar 2003 - Present · 19 yrs 10 mosDallas/Fort Worth AreaDallas/Fort Worth Area
•
o BIG Outdoor is a privately held premier Out-Of-Home media company focused on the development, marketing and sales of unique highprofile media assets in key media markets across the country, with offices in New York, Los Angeles, and Dallas.
BIG Outdoor has established itself as a major force in the outdoor advertising industry at the same time, our philosophy is to maintain the integrity of operating as a boutique firm with an emphasis on providing world-class services to both our clients and real estate partners."
Could not find much on Eric Nieymeyer, but here is a LA Business Journal where he is quoted. I can't access it.
Hollywood Wrap Star - Los Angeles Business Journal
Hollywood Wrap Star - Los Angeles Business Journal
staff-author
A protective coating was needed on a Hollywood skyscraper due to asbestos abatement. There's an ad on it, and it...
On Monday, December 12, 2022 at 08:29:11 AM PST, Sherry Martini <[email protected]> wrote:
Image from Big Outdoor's webpage of what they do:
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5 And who are the owners/officers of BIG OUTDOORS? Can someone tell me? On Monday, December 12, 2022 at 08:26:54 AM PST, Sherry Martini <[email protected]> wrote:
Dear "Big Outdoors"/City Council and City Manager:
I understand we recently awarded a contract with the City of Santa Monica digital signage, which per the Santa Monica Daily Press is to offer services to Santa Monica citizens like community messages and emergency info, and in return you would be able to advertise and would be paid for same. Apparently, according to the staff report, BIG OUTDOORS bid was the best one, offering the City a lot more money and also offering a "design most appropriate for the culture and aesthetic of Santa Monica".
The last time we had these digital signs put it, it was for the bus stops, along with stools that did not meet ADA requirements. I advised the City as soon as they started putting them in of this, but such advise fell on deaf ears. And now, most of those digital signs don't work. I take the bus every day and the only digital sign that works right now on 4th Street is the one at Wilshire and 4th. The rest on Wilshire are either always broken or almost always broken. This is an issue because we no longer have the arrival times of buses posted, so anyone without a smart phone is out of luck.
So, I have concerns about more "digital technology" and decided to look up BIG OUTDOORS:
1) I could find no information about the owners/officers of BIG OUTDOORS on their website. 2) BIG OUTDOORS' website has examples of what they do, and the most glaring thing I saw was HUGE (BIG) signs with a car advertisement, the size of something you would see in Times Square. Is this our new vision for Santa Monica. This company is called "BIG OUTDOORS" so I'm think on that.
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6 3) What DETAILED community benefits will the citizens received in exchange for advertising? What sorts of citizen information will be in on these signs and how will they be used. I'd like to see a video. 4) BIG OUTDOORS website says it works "hand in hand-in-hand with Real Estate Partners to capture untapped value through innovative signage solutions.. . ." Who are BIG OUTDOORS' "real estate partners"? I encourage Council copied here to look at the "BIG OUTDOORS" website linked below. Is this something you really want for Santa Monica. Is a few million worth what Big Outdoors vision is on their website? I then looked at the competitor who is suing, IKE Smart City, and I have to say, their website is more in line with what would suit Santa Monica. It shows a tastefully designed touch Kiosk, not too large (like the ones on 4th Street by the buses), which has lots of information for folks (and then of course advertising in between). Below is a link to the IKE Smart City Kiosk which is not only more in line visually with what Santa Monica needs but also shows what will be offered. BIG OUTDOORS only has a HUGE digital sign the size of Texas with a car advertisement on it. In addition, Ike Smart City's website talks more about helping cities and municipalities and has extensive experience, whereas BIG OUTDOORS focuses on the advertising and helping it's "real estate partners." To me it's all about the intent of the company. IKE Smart City is also extremely transparent about their TEAM, listing all their officers/members and also their parent company. I cannot find anything about the owners/officers on the BIG OUTDOORS web page.
I would really ask questions of Staff as to why they chose "BIG OUTDOORS" over Ike Smart City" or any other applicant. Just comparing the websites and intent behind each, it seems clear that something is wrong and we need to do more research on this. Do we want our City to look like the BIG OUTDOORS website and help their "real estate partners" or do we want to have something more like what is shown on the IKE Smart City website, which is clearly more in line with what our City needs. Unless you want to sell the City out for a few more million and have it look like the depiction on BIG OUTDOORS' website.
I don't want to negate Staff, but they have been wrong in the past about these things and someone needs to actually get on the phone and call the Cities were both of these companies have worked and ask for REAL not imagined footage of citizens using these kiosks. I'd do it myself, but I have no access.
Below are links from both websites and also links to the home pages of both companies.
From BIG OUTDOOR's Website:
REAL ESTATE AND DEVELOPMENT
BIG Outdoor’s asset development team works hand-in-hand with Real Estate partners to capture untapped value through innovative signage solutions by deploying a combination of new technology and traditional formats that engage audiences across the demographic spectrum.
BIG Outdoor delivers maximum exposure for brands and maximum revenue returns to our Real Estate partners.
From IKE Smart City"
What You Can Do on Those New Digital Kiosks Downtown - Cincinnati Magazine What You Can Do on Those New Digital Kiosks
Downtown - Cincinnati Magazine
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7 The newest additions to Cincinnati’s walkways boast cutting-edge technology and a hyper-local experience.
Transparent disclosure of officers for Ike Smart City:
https://www.ikesmartcity.com/#leadership
Big Outdoor website link HOME:(can't find anything re officers) https://www.bigoutdoor.com/about-us/
Ike Smart City website link home:
IKE Smart City
IKE Smart City
IKE (Interactive Kiosk Experience) is an interactive digital kiosk on city sidewalks and public spaces. IKE prov...
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Mayer Brown is a global services provider comprising an association of legal practices that are separate entities including Mayer Brown LLP (Illinois, USA), Mayer Brown International LLP (England), Mayer Brown (a Hong Kong partnership) and Tauil & Chequer Advogados (a Brazilian partnership). 751283822.2
Mayer Brown LLP
333 S. Grand Ave 47th Floor
Los Angeles, CA 90071
United States of America
T: +1 213 229 9500
F: +1 213 625 0248
mayerbrown.com
Andrew T. Kugler
T: +1 213 621 9462
F: +1 213 576 8126
[email protected]
December 13, 2022
BY EMAIL
Santa Monica City Council
City Hall
1685 Main Street
Santa Monica, CA 90401
Re: Response to Protest Filed by IKE Smart City -
Digital Wayfinding and Advertising Kiosk
Program
Dear Honorable Councilmembers:
This firm represents BIG Outdoor, LLC (“BIG Outdoor”). We are writing to respond to the 552-page protest that was filed on Friday by IKE Smart City (“IKE”) to the proposed award for the Digital Wayfinding and Advertising Kiosk Program.1 This protest is yet another example of IKE’s campaign to interfere with the City’s franchise award. In just the last week, IKE sent a “cease and desist” letter to BIG Outdoor containing frivolous trademark and copyright allegations, filed a federal lawsuit, and tried to generate press coverage to intimidate the City Council ahead of its December 13th meeting. Now, in its most audacious move yet, IKE has filed an absurdly long, eleventh-hour protest that spares no prisoners.
The protest, of course, contains the same misleading attacks on BIG Outdoor and RoveIQ that IKE has already made to the Council without success. But in a sign of increasing desperation, IKE now focuses its ire at the City as well with threats to sue and, even worse, unsubstantiated character attacks on senior City officials. Indeed, IKE recklessly accuses evaluation team members from seven different City departments of intentionally steering the franchise to BIG Outdoor based on nothing more than IKE’s opinion that BIG Outdoor’s scores were too high. Incredibly, IKE even attacks the Council with conspiracy-laden suggestions that it scheduled a “special” meeting to prevent IKE from speaking and intentionally disabled the audio recording at the last Council meeting to prevent any record of the proceeding. (See Protest, pgs. 28, 31, n. 11.) It is hard to know where to start a response, so we will simply ask, is this the type of company with which the City of Santa Monica wants to do business for the next 20 years? This procurement has been subjected to multiple layers of exhaustive review over the last year. City staff, along with The Superlative Group (“Superlative”)—a neutral, outside consultant 1 Although IKE has been contesting the proposed franchise award for nearly two months, it waited until the last minute to file its 552-page protest document and did not provide a courtesy copy to BIG Outdoor. As such, BIG Outdoor has had only one business day to prepare this response.
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to the City—conducted comprehensive reviews of the proposals and BAFO submissions, along with detailed interviews and reference checks of the finalists. Following that review, City staff unanimously recommended BIG Outdoor for the franchise. As noted in the report prepared by Superlative, “BIG Outdoor was selected as the preferred supplier due to their more attractive financial proposal and range of additional community benefits, such as donating two percent of profits from the program back to the City to fund community programs and services and hiring a full-time Santa Monica resident as a success ambassador.” (Superlative Report, pg. 4.) In fact, BIG Outdoor offered to guarantee the City $9 million in revenues over the first year of the program as compared to the $2.25 million offered by IKE. As further noted by Superlative, a “[r]eview of the non-financial aspects of the submissions from BIG Outdoor and IKE Smart City…concluded that both proposals were of similar technical competence and capable of delivering a high quality product and user experience.” (Id.)
In addition, the City Council has already conducted multiple hearings on the procurement and BIG Outdoor’s selection, during which IKE made many of the same claims that it raises in the instant protest. At IKE’s urging, the Council even viewed BIG Outdoor’s kiosk in person to confirm it meets the City’s requirements. After all of this, just a few weeks ago, the Council voted 7-0 to adopt the Resolution of Intent (“ROI”) to accept the unanimous staff recommendation to award the franchise to BIG Outdoor.
IKE’s protest changes nothing.
I. Competitive Bidding Laws are for the Benefit of the Public, not the Private Interests of a Disappointed Bidder.
Before addressing the substance of IKE’s protest, it is important to remember the purpose of competitive bidding laws. These laws “are enacted for the benefit of property holders and taxpayers, and not for the benefit or enrichment of bidders, and should be construed and administered as to accomplish such purpose fairly and reasonably with sole reference to the public interest.” See Domar Electric, Inc. v. City of Los Angeles (1994) 9 Cal. 4th 161, 174. It is thus well established that “a bid which substantially conforms to a call for bids may, though it is not strictly responsive, be accepted if the variance cannot have affected the amount of the bid or given a bidder an advantage or benefit not allowed other bidders.” Ghilotti Construction Co. v. City of Richmond (1996) 45 Cal.App.4th 897, 905. “These considerations must be evaluated from a practical rather than a hypothetical standpoint, with reference to the factual circumstances of the case. They must also be viewed in the light of the public interest, rather than the private interest of the disappointed bidder. ‘It certainly would amount to a disservice to the public if the losing bidder were to be permitted to comb through the bid proposal…of the [winning] bidder after the fact, [and] cancel the [winning] bid on minor technicalities, with the hope of securing acceptance of his…bid. Such construction would be adverse to the best interests of the public and contrary to public policy.” Id. at 908-09 (citation omitted).
With that context in mind, it is clear that IKE’s protest is not an effort to raise valid concerns involving the public interest, but a desperate ploy to protect its own economic interests.
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II. IKE’s Intellectual Property Allegations Are Frivolous.
One of the few new claims made in IKE’s protest is that the BIG Outdoor kiosk violates IKE’s intellectual property rights. IKE first made these claims in a letter to BIG Outdoor and RoveIQ last week, followed by a federal court complaint filed a few days later (which has not been served on BIG Outdoor or RoveIQ).2 IKE’s protest provides no further specifics concerning these allegations beyond a veiled threat to sue the City too. (See Protest, pg. 27: “While the case is currently limited to BIG and RoveIQ, all parties who aide (sic), abet, or provide the means for infringing activity, or those who control the means to end the infringement but decline to do so, can be liable for contributory and vicarious infringement.”) IKE’s IP threats are all bluster and no substance. To understand how frivolous these claims are, consider that the kiosk design that IKE alleges has been stolen is not even under consideration for use by the City. Moreover, even if such kiosk design were to be used, a federal trademark Examiner has already found that IKE has not presented sufficient evidence to demonstrate any protectable trade dress rights to the design. (See BIG Outdoor’s response to IKE dated December 8, 2022, attached as Exhibit A.) As for IKE’s alleged rights to the “dashboard design,” IKE has not pointed to any federal trademark filing protecting that design and anyone who has ever used a cell phone or interactive kiosk can quickly see that neither IKE nor any other company has exclusive rights to such a common screen layout.
IKE’s motives are clear. Its empty IP threats are nothing more than a last-ditch attempt to introduce chaos ahead of the Council meeting. In any event, BIG Outdoor will vigorously defend against these claims and seek all available remedies and sanctions against IKE for misusing the federal courts and attempting to interfere with BIG Outdoor’s prospective franchise. See, e.g., Int'l Floor Crafts, Inc. v. Adams, 477 F. Supp. 2d 336, 340 (D. Mass. 2007) ("A party can…be held liable for tortious interference on the basis of the filing of a lawsuit if it is alleged that the suit was filed for the ulterior purpose of interfering with a prospective business relationship.") Importantly, pursuant to the franchise agreement, BIG Outdoor will also defend and indemnify the City should IKE seek to extend its bogus IP claims to the City. Indeed, section 14 of the proposed franchise agreement requires BIG Outdoor to defend and indemnify the City against these claims and BIG Outdoor reiterates its commitment to hold the City harmless.
III. BIG Outdoor Submitted a Responsive Proposal.
Much of IKE’s protest is dedicated to rehashing the same misleading arguments about BIG Outdoor’s alleged lack of experience that IKE already made to the City Council without success.
Specifically, IKE mixes together RFP language describing proposer experience (see RFP Sec. 4, Evaluation Criteria No. 1) with language from a separate criteria relating to references (see RFP, 2 IKE’s original demand letter also alleged patent violations. Interestingly, after BIG Outdoor pointed out that IKE does not have a single active pending patent application, much less an enforceable patent, IKE’s “patent allegations” were mysteriously left out of the federal complaint.
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Sec. 4 Evaluation Criteria No. 5) to concoct an argument that BIG Outdoor failed to meet a minimum experience requirement of three public sector projects.
This argument is smoke and mirrors. The RFP listed several factors to be evaluated as part of prior experience, including the experience of key personnel and previous projects of comparable complexity, scale and nature (see RFP Sec. 4, Evaluation Criteria No. 1), but contrary to IKE’s contorted argument, the RFP never limited proposers to public sector projects.
Moreover, IKE has consistently misrepresented BIG Outdoor’s experience. BIG Outdoor is not just a billboard company. It operates hundreds of digital kiosks around the country and, most importantly for the Council’s purposes, the City has determined that BIG Outdoor has the requisite experience and skills to perform on this contract. Indeed, as noted, Superlative’s report concluded that both proposers had similar technical competence and were both capable of delivering a high quality product and user experience. (Superlative Report, pg. 4.) While IKE can disagree with these neutral assessments, IKE does not have the right to substitute its judgment for the City’s.3 IKE also fails to cogently explain how any of this gave BIG Outdoor a competitive advantage. See Konica Business Machines, U.S.A., Inc. v. Regents (1988) 206 Cal.App.3d 449, 454 (variance is inconsequential if it cannot have affected the amount of the bid or given a bidder an unfair advantage or benefit not allowed other bidders). IKE confusingly argues that because BIG Outdoor was able to submit a proposal without the required experience, it was given the competitive advantage of proposing a kiosk with unrealistic capabilities and revenues. This makes no sense. Irrespective of its prior experience, BIG Outdoor’s kiosks, like IKE’s kiosks, were subject to the same scrutiny for technical competence, and after that extensive review, the City determined that the kiosks proposed by BIG Outdoor met all of the City’s equipment and technology requirements. (Superlative Report, pg. 10.)
The same is true for BIG Outdoor’s financial proposal. Indeed, while IKE’s protest now tries to characterize BIG Outdoor’s proposal as “astronomical” and “fantastical,” just a few weeks ago IKE sought to offer the City the very same financial terms with its improper post-procurement offer. Obviously, BIG Outdoor’s financial terms are not “unrealistic” if IKE was belatedly willing to offer the same terms.
IV. IKE’s Attacks against RoveIQ are Improper and Irrelevant.
IKE next attacks RoveIQ with a wandering argument that RoveIQ is effectively the proposer or a joint venture partner and that the City erred by failing to demand its financial statements to determine if it was a responsible party. This argument is factually erroneous and 3 IKE’s protest makes a number of other misrepresentations regarding BIG Outdoor’s experience. For example, IKE attempts to characterize BIG Outdoor’s Victory Park project in Dallas as a shopping mall. That is false. Victory is a 79-acre district with streets and sidewalks that are largely public right-of-way. (See https://www.dallasecodev.org/369/Sports-Arena-TIF-District.) Due to the limited time, Big Outdoor cannot respond to every misrepresentation made by IKE, but suffice it to say, BIG Outdoor vigorously disputes IKE’s claims.
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misstates the RFP requirements. RoveIQ is a subcontractor, and the RFP did not require financial statements from subcontractors. Rather, the RFP required statements “for the entity that is proposed to sign the Contract.” (See RFP, Sec. 4, Evaluation Criteria No. 5.) BIG Outdoor was the proposer, will be the signatory to the franchise agreement, and will be responsible for the entire performance of the contract regardless of the involvement of subcontractors. (See RFP, Sec. 6.7.) IKE’s argument thus fails on its face.
In any event, IKE again crosses the line by using a frivolous legal argument to attack RoveIQ as a “tech startup” with “almost no financial background or backing” that “could fold (as the vast majority of tech start-ups do).” (Protest, pg. 20.) That is simply untrue, unsubstantiated and potentially defamatory. The fact is that RoveIQ has been in the interactive kiosk market since 2016 (longer than IKE). If anyone has proven themselves to be non-responsible, it is IKE.
V. The City Did Not Deviate from the RFP Evaluation Criteria.
IKE also rehashes claims that the City deviated from the RFP evaluation criteria, but again, provides nothing new. The Superlative report makes clear that BAFO submissions were “reviewed and scored in line with the Evaluation Criteria,” which “covered a wide range of factors including:
Experience & Technical Competence; Ability to Meet Project Work Plan & Timelines; Quality Control; Revenue Projects & Profit Sharing; Stability & References; and Value-Add & Bredth (sic) of Service.” (Superlative Report, pg. 3.)
We would also note that IKE’s BAFO scoring argument is premised on a faulty assumption. In arguing that the City had no justification for reducing its overall score, IKE assumes that the second round of scoring was based solely on the BAFO financial offers. That is not accurate. The second round also took into account months of additional review of the proposals, proposer interviews and reference checks. Again, while IKE can disagree with the neutral assessments made by the City evaluators and Superlative, that is not a basis for a protest, and IKE does not get to substitute its judgment for the City’s.
VI. IKE’s Allegations of Improper Conduct by City Officials Are Reckless and Unsubstantiated.
Finally, we want to address the accusations made by IKE of “an early effort afoot to have BIG score more points” and of an Evaluation Committee “inappropriately inflating BIG’s scores in order to steer the award of the franchise to BIG.” (Protest, pg. 24.) These are serious allegations, yet IKE offers absolutely no evidence to substantiate them beyond its own opinion of what the scores should have been. IKE also fails to proffer any motive that could have conceivably convinced an outside consultant to the City and officials from seven different City departments to conspire to steer an award to a company with which the City has never contracted before.
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If it sounds absurd, it’s because it is. IKE’s attacks on senior City officials are irresponsible and reckless and frankly should subject IKE to possible debarment.
VII. Conclusion.
In sum, IKE’s protest is based on rehashed arguments, empty threats, and malicious character attacks on BIG Outdoor, RoveIQ, City staff and the Council itself. This is not normal behavior for a company competing for City business. These are not legitimate business disputes.
They are bully tactics meant to scare and intimidate the City and anyone who dares to compete with IKE. It is time to put an end to the nonsense. Big Outdoor will not be swayed by IKE’s conduct and we know the Council will not be either. We respectfully request that the Council reject IKE’s protest and award the franchise to BIG Outdoor.
Very truly yours,
Andrew T. Kugler
cc: Mayor Gleam Davis
Mayor Pro Tem Lana Negrete
Councilmember Phil Brock
Councilmember Oscar de la Torre
Councilmember Christine Parra
Councilmember Caroline Torosis
Councilmember Jesse Zwick
David White, City Manager
Douglas T. Sloan, City Attorney
Susan Y. Cola, Assistant City Attorney
Melissa Spagnuolo, Community Partnerships Manager
Brad Berkley, Big Outdoor
Erin Watkins, Big Outdoor
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EXHIBIT A
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Mayer Brown is a global services provider comprising an association of legal practices that are separate entities including Mayer Brown LLP (Illinois, USA), Mayer Brown International LLP (England), Mayer Brown (a Hong Kong partnership) and Tauil & Chequer Advogados (a Brazilian partnership). 751253522.1
Mayer Brown LLP
333 S. Grand Ave 47th Floor
Los Angeles, CA 90071
United States of America
T: +1 213 229 9500
F: +1 213 625 0248
mayerbrown.com
Andrew T. Kugler
Partner
T: +1 213 621 9462
F: +1 213 576 8126
[email protected]
December 8, 2022
BY EMAIL
Mr. Charles E. Weir
Manatt, Phelps & Phillips, LLP
2049 Century Park East
Suite 1700
Los Angeles, CA 90067
Re: IKE Smart City
Dear Mr. Weir:
We represent BIG Outdoor, LLC (“BIG Outdoor”). Your letter of December 5, 2022, on behalf of IKE Smart City, LLC (“IKE”), has been forwarded to our attention for response.
For the last six weeks, IKE has waged a “scorched earth” campaign to upend the proposed award to BIG Outdoor of the City of Santa Monica’s Digital Wayfinding and Advertising Kiosk Program. After failing to gain traction with its improper post-procurement proposal and baseless assertions maligning the City’s procurement process and BIG Outdoor’s proposal, IKE now throws alleged trademark and patent violations against the wall to see if they will “stick.” They do not.
The allegations in your letter are frivolous. First, IKE claims infringement of “registered trade dress rights” in its kiosk cabinet design. As support, your letter cites Trademark Registration Number 6422015. However, it conveniently omits the fact that this registration is on the Supplemental Register only and does not evidence any protectable rights in the design.1 Indeed, even the federal trademark Examiner assigned to IKE’s application found that IKE “has not provided sufficient evidence demonstrating that consumers recognize that the features claimed in the description of the mark are recognized by consumers as identifying the source of the goods.”2 The Examiner’s skepticism was well warranted, as similar designs exist in the marketplace (see Exhibit A), which further diminishes the likelihood that IKE’s design is capable of obtaining secondary meaning with consumers.3 Moreover, even if IKE could demonstrate a protectable interest in the design (which it cannot), your letter fails to acknowledge that this was only one of a number of design options submitted by BIG Outdoor for consideration. Regardless, this one 1 See In re Federated Dep’t Stores, 3 U.S.P.Q.2d 1541 (T.T.A.B. 1987) (“It is overwhelmingly agreed that a Supplemental Register registration is evidence of nothing more than the fact that the registration issued on the date printed thereon. … It is entitled to no presumptions of validity, ownership or priority.”).
2 See Office Action dated April 21, 2021.
3 See Wal-Mart Stores Inc. v. Samara Brothers, Inc., 529 U.S. 205, 214 (2000) (holding a product’s configuration or design is not inherently distinctive without secondary meaning).
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design that IKE cherry-picked is materially different than IKE’s design and was eliminated early in the process from consideration. In sum, your trade dress claim has zero merit.
Second, IKE claims that BIG Outdoor copied its “distinctive dashboard design,” but IKE fails to identify any intellectual property protecting that design. Moreover, even were IKE to identify such intellectual property, this claim likewise must fail, as BIG Outdoor’s interface design differs from IKE’s and will be familiar to anyone who has ever used a cell phone or interacted with a like wayfinding kiosk (see Exhibit B). IKE simply does not have any exclusive rights to such a common screen layout.
Third, your letter makes vague allegations of pending patent applications owned by IKE that, if issued, may cover BIG Outdoor’s kiosks. We cannot substantively respond to these allegations, as your letter fails to identify any specific protectable technology. While IKE’s website references three pending patents, we note that after searching US Patent & Trademark Office records, we could only locate one patent application owned by IKE (Publication No. 2020- 0349543), which was abandoned by IKE on April 28, 2022.
Finally, IKE alleges copyright violations of its marketing materials, but in support, can only point to a single sentence from BIG Outdoor’s over 200 pages of proposal materials. The fact that there is some commonality of phrasing in hundreds of pages of documents prepared about the same subject matter should not shock the conscience.
In sum, this latest salvo in IKE’s campaign against BIG Outdoor must fail like the others.
Given the sheer lack of merit, it is abundantly clear that IKE is not trying to protect any valid intellectual property rights, but is instead attempting to interfere with BIG Outdoor’s prospective economic relations with the City of Santa Monica, a fact further evidenced by your decision to send copies of the letter to the Santa Monica City Council and various other City officials. We demand that IKE cease such improper conduct immediately.
Please note that nothing in this letter shall be construed as a waiver of any right or remedy that BIG Outdoor should have against IKE for tortious interference.
Very truly yours,
Andrew T. Kugler
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cc: Mayor Gleam Davis
Mayor Pro Tem Lana Negrete
Councilmember Phil Brock
Councilmember Oscar de la Torre
Councilmember Christine Parra
Councilmember Caroline Torosis
Councilmember Jesse Zwick
David White, City Manager
Douglas T. Sloan, City Attorney
Susan Y. Cola, Assistant City Attorney
Melissa Spagnuolo, Community Partnerships Manager
Brad Berkley, Big Outdoor
Erin Watkins, Big Outdoor
PJ Thelan, Rove IQ
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Exhibit A
LinkNYC kiosk installed in 2015
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Exhibit B
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