In my last post I highlighted the similarities and differences between the original October 2017 Framework Agreement and the July 2018 Plan Development Agreement, as laid out by the Toronto Star. Today I’ll focus on the Plan Development Agreement, with an eye to how it frames what will be in the MIDP.
Below are some notes on what stood out to me in the PDA. In particular, I highlight the odd co-governance relationship between Sidewalk Labs and Waterfront Toronto and the tellingly named “public engagement” strategy that falls short of best practices we would expect of public consultations (as opposed to engagement).
In Part I, I cover the overall plan for the MIDP. Part II discusses governance issues, Part III talks public engagement, and I highlight a few odds and ends in Part IV.
The Plan Development Agreement also includes a Schedule (Schedule I) that addresses digital governance issues.
PART I: The plan
A roadmap for a roadmap
The Plan Development Agreement is designed “among other reasons, to establish a roadmap for the planning phase of the Project involving the preparation and creation of a Master Innovation and Development Plan for the Project” (Preamble). In other words, it is a roadmap for a roadmap.
At the risk of sounding like a broken record, this is not the type of agreement that an organization that understands what a smart city is and how data “works” and how innovation happens should sign. If Waterfront Toronto had truly understood the project scope, they would’ve been able to know what to ask for in the first place. They could’ve gone straight to the proposal to develop Quayside according to principles that they themselves had set out. Instead we got a Request for Proposals to receive a proposal to create a proposal to develop Quayside (and more!).
The Plan Development Agreement reminds us that Sidewalk Labs was only established in 2015 (Article 1.01.a). In other words, it is a very, very young company with no track record. Again, it’s hard to avoid the thought that the only reason it landed this contract is because it’s a Google company, and we’re in a moment in which people believe that data-driven companies have some special insight into the world (spoiler: they don’t). No experience necessary.
In a sense, it’s a match made in heaven: a government agency with no experience in data/intellectual property/smart city governance working with a company with no track record in high-level urban development. What could go wrong?
MIDP Scope
Article 1.01 of Schedule B sets out the purposes of the MIDP, including improving quality of life, economic opportunity (as well as making Toronto “a global hub for urban innovation”), and addressing climate change, among other issues.
What the MIDP will do
“The MIDP will address the principal commercial terms for the potential implementation of the MIDP. The main agreements between the Parties to implement the MIDP are referred to herein as the ‘Principal Implementation Agreements’” (2.01(a); emphasis in original). Other agreements may be necessary (2.01(b)).
Land, IP and infrastructure: The Principal Implementation Agreements will include an agreed-upon methodology for valuing Quayside land, which could be affected by “the program set out in the MIDP.” Also on the table: “an ‘intellectual property methodology’ or ‘infrastructure methodology’” to address profit-sharing from these two aspects (2.02(a)-(d)).
Development: It will also ensure that any third-party development (“design and construction of any above-grade buildings”) on Quayside “will be led by Waterfront Toronto and undertaken jointly by Waterfront Toronto and Sidewalk Labs.” “The MIDP and/or Principal Implementation Agreements will identify those circumstances and conditions under which Sidewalk Labs will act as vertical developer” (2.03(b)).
MIDP “Pillars”
Article 1.02 of Schedule B sets out nine “pillars,” which the MIDP is to address:
- Mobility (transportation);
- Public realm (the outdoor environment);
- Building plans;
- Community and city services;
- Environmental sustainability (e.g., addressing climate change);
- Digital platform (covers embeddedness in the physical environment, emphasizing adaptability over time, open for use to everyone, privacy-protecting standard for personal privacy. Note: mentions “urban data,” a term that is not in Canadian law and which Sidewalk Labs seems to have invented for this project);
- Privacy and data governance (emphasizes planning targets (massing, density, phasing and zoning) that reflect sound planning principles);
- Pre-MIDP-approval pilots and early actions;
- Housing affordability (covering programs, policies, business models, and existing programs that make housing more available and affordable);
- Economic development
- Creation of an Urban Innovation Institute
- Establishment of Google’s Canadian headquarters
- Holistic development and planning, linking all of these pillars, creating “strategies around project phasing, occupancy, statutory and regulatory matters, and implementation.”
- Article 1.04 highlights that regulatory and other changes will be needed.
PART II: Governance
The buck stops with Waterfront Toronto and Sidewalk Labs
The MIDP will be subject to the approval of each of Waterfront Toronto, in its sole, absolute and unfettered discretion (including the approval of its board of directors and any Additional Approvals on which Waterfront Toronto elects to condition its approval…) and Sidewalk Labs, in its sole, absolute and unfettered discretion … . (3.01(a))
No other officials need apply (sorry, Toronto city councillors). It’s all in the hands of Sidewalk Labs and the Waterfront Toronto Board of Directors.
Digital issues
Waterfront Toronto is given the responsibility to oversee “digital governance elements of the MIDP, including through the Digital Strategy Advisory Panel in accordance with the Digital Governance Framework Principles” (1.03(iv))
This is a lot of pressure on a part-time panel, especially one whose own members have remarked to the Ontario Auditor General that their “effectiveness in providing management guidance on key issues in the smart city project has been limited,” in the Auditor General’s words, and has been hit by several high-profile resignations.
Choose your own evaluation scheme
Of particular interest from a governance perspective, the MIDP will include (Schedule B, 1.01):
- “planning targets (massing, density, phasing and zoning) that reflect sound planning principles”;
- “a financial plan and economic targets that set minimum expectations of land value and rates of return that work at different scales; and
- “performance measures that if met justify replication of the development and innovation plan.”
As previously discussed, this requirement effectively turns Sidewalk Labs into a co-equal governing authority. Instead of the lead government authority setting the terms regulating how the project will be run and evaluated, this is being done by Sidewalk Labs in conjunction with Waterfront Toronto. And given that (as we will likely see) that the final MIDP seems to be a Sidewalk Labs-authored document, to which Waterfront Toronto had to issue, a week later, a reply of its own, my suspicion is that these provisions effectively mean that Sidewalk Labs is setting both the targets and the evaluation criteria. But again, this is what the RFP envisioned.
Merging of the regulator and the regulated
Schedule F sets out that the creation of the MIDP is a collaborative process, not the child of either Sidewalk Labs or Waterfront Toronto, but of the two organizations working together. Furthermore, “Any public communications and materials related to the MIDP must be jointly approved by both Parties.” (1.03(c))
In Schedule J (1.01), this blurring of responsibilities between buyer and seller, governor and governed, is justified because they “have entered a bold, first of its kind, and innovative approach to city building to deliver transformative benefits in quality of life to a diverse set of residents, workers, and visitors to Toronto. This requires the collaboration of Waterfront Toronto and Sidewalk Labs to develop the MIDP.”
The ability to set the rules is an enormous source of power.
Another way of saying what this section says is, the missing ingredient in promoting urban innovation and quality of life, from the beginning of time until now, has been that for-profit companies weren’t given sufficient power to help set the rules governing a city.
PART III: Public engagement
Public and government engagement: Promise of consultation
The MIDP will be developed through a process of co-creation and collaboration between the Parties, informed by a robust public engagement process and close collaboration with the City of Toronto and other governmental agencies and stakeholders. (Schedule B, 1.04)
It would be interesting to hear from City councillors and “other governmental agencies and stakeholders” to see if they feel that they were suitably engaged in “close collaboration” with Sidewalk Labs in the preparation of the MIDP. At the very least, I will be reading the MIDP with an eye to mentions of such collaboration.
Public engagement
Section 2.01(c) of Schedule J sets out the forms of public engagement to be used by Sidewalk Labs and Waterfront Toronto in promoting the Quayside project:
- Public roundtables (“Opportunity for the public to be kept up-to-date on the Parties’ progress, to work in small facilitated groups, and to help shape the Parties’ plans and goals, challenging assumptions and refining their thinking during key phases in the creation of the MIDP.”)
- Design jams/Design charrettes (examining specific elements of the “potential plan”)
- CivicLabs (brainstorming of possible solutions to be piloted by the parties)
- Neighbourhood Meetings (“to share updates on the MIDP, answer questions and seek feedback.)
- Pop-Ups
- Six advisory working groups (to be run by Sidewalk Labs)
- Reference Panel (36 people selected from across the city “to help provide policy and planning guidance and insights.)
- Sidewalk talks (talks from experts on urban issues “that are relevant to the Project but not Project related”)
- 307 Lakeshore (showcase “living technologies, cultural programming, and interactive exhibits and workshops to learn more and help shape the MIDP)
- Social media outreach
Schedule J (2.01(d)) also sets out a three-pronged social-media strategy, involving information provision by Sidewalk Labs and Waterfront Toronto, soliciting feedback, and getting in touch with “a diverse set of online constituencies,” as well as using it as advertising for “in-person events.”
What stands out about this process, as I’ve previously noted, is how analog it is. It is biased toward in-person gatherings and information sessions. There is a lot of public engagement here, and relatively little public consultation. With the partial exception of social media, most of these events are biased toward information sessions, with citizens reduced to reacting to Sidewalk Labs proposals, rather than being the catalyst for planning policy. (And even their social-media strategy has a bias toward providing information rather than encouraging conversations.) Neither does it leverage the interactive potential of the internet to meet the gold standard of public consultations, namely the Brazilian Marco Civil consultations that Dr. Natasha Tusikov and I have discussed elsewhere. The Quayside consultations are the type of consultations that you undertake when you’re involved in a top-down urban-planning exercise.
And regarding social media, I would’ve hoped by now that public agencies would realize that Facebook, Twitter and Instagram have become so hopelessly degraded as public fora that they aren’t suitable venues for meaningful, informed public engagement. Instagram is for pictures, Twitter is for rapid-fire snark, and Facebook… well, Facebook is where civil conversation goes to die. They are not how you meaningfully engage with citizens.
PART IV: Odds and ends
Intellectual property
When it comes to deciding who will benefit from intellectual property in this project, the Plan Development Agreement kicks the can down the road to the MIDP (2.02(d)).
Waterfront Toronto is supposed to work with Sidewalk Labs “to develop the financial model and implementation phasing for the Project that seeks to make the Project financially viable and developing the business case for the MIDP, taking into account land value, Intellectual Property and infrastructure plans and any related standards or requirements.” (1.03(iii))
Interestingly, trade secrets, the hottest form of intellectual property these days, and the key form of intellectual property protection used by companies like Google to protect their proprietary algorithms is not mentioned in Schedule G, “Intellectual Property Terms,” when listing the various “Types of intellectual property.”
Also described as a type of intellectual property is data, which is not recognized as being covered by intellectual property in Canadian law.
Schedule G also mentions a particular type of IP, “Site-Specific IP”; “non-MIDP Site IP” and “Co-Created IP”; the first and third require definition by Sidewalk Labs and Waterfront Toronto.
Ending the relationship
Article IX sets out the situations under which this adventure could come to an end (9.01):
- Mutual agreement;
- If either side isn’t able to get approval for the MIDP by an agreed-upon date, or if one informs the other that approval failed;
- An irreconcilable dispute;
- A “funding suspension” if Sidewalk Labs decides that this isn’t going to work (9.03);
- An agreed-upon date if the Principal Implementation Agreements aren’t approved.
Sole-sourcing
Not sure how much of a deal this would be, but am highlighting it just in case:
“Implementation Agreements will generally contemplate competitive procurement processes, with limited exceptions allowing for Sidewalk Labs or its affiliates to provide Purposeful Solutions, but only on a fair and demonstrably arms’-length basis.” (Schedule C, 1.02)
Tomorrow: One final detour to discuss data governance, and then it’s all MIDP, all the time!
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