HomeMy WebLinkAboutAGENDA REPORT 2025 0521 CC REG ITEM 12CVIA EMAIL AND US MAIL
kennis@rwglaw.com
May 5, 2025
Kevin Ennis, Esq.
Richards Watson Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, California 90071
Re: In the Matter of the Award of Contract to Aspire
Broadband, LLC by the City of Moorpark
Notice of Appearance Regarding Bid Protest
Dear Mr. Ennis
We are writing to you in your capacity as the City Attorney for the
City of Moorpark. Please be advised that Mark McDonald and Siteserver,
Inc. (“Siteserver”) has retained Simas & Associates, Ltd. We are writing in
order to protest the contract awarded to Aspire Broadband, LLC (“Aspire”) on April 2, 2025.1 Please direct all future correspondence to the following
as Siteserver’s legal counsel:
Steven L. Simas
Ryan M. Keever
Simas & Associates, Ltd.
7355 Morro Road, Suite 101
Atascadero, California 93422
Tel: (805) 547-9300
Fax: (805) 547-9302
Email: info@simasgovlaw.com
Overview
On April 2, 2025, Assistant to the City Manager Brian Chong brought Item 9.C. before the Moorpark City Counsel to consider an ordinance allowing the use of micro-trenching of fiber optic cables and implementing SB 378, and extending a license agreement to Aspire for access to and use of the City’s right-of-way for fiber optic cable installation
1 Exhibit A.
Item: 12.C.
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Kevin Ennis, Esq. City Attorney of Moorpark May 5, 2025 Page 2 and a Smart City Services Agreement between Aspire and the City to implement such installation.
1. Siteserver Has A Competitive Bid On April 2, 2025, Mr. McDonald learned that the City of Moorpark (“City”) was considering a proposal to enter into a Smart City Services Agreement with Aspire. He happened to learn about this contract after speaking with another City employee on April 1, 2025, and found out that the proposal was being considered the very next day, with no formal bid solicitation process and no notice of the matter being broadcast prior. Mr. McDonald then sent an email to Assistant to the City Manager, Brian Chong, wherein he provided his last-minute proposal for an alternative to the Aspire system and requested that the City Council delay action on the proposal for at least 30 days, until he could put together a formal bid proposal. This request was ignored. As outlined in Mr. McDonald’s proposal, Siteserver has the following benefits over the Aspire Broadband agreement:
• Symmetrical speeds up to 10 Gbps available network wide, compared to 2 Gbps with Aspire.
• Entry level pricing starting at $50/month to encourage higher adoption rates (which results in more City revenue).
• Zero-cost Smart City 1 Gbps Internet to 50 locations of City’s choosing @ 1Gbps, then $20/month.
• Deeply Discounted Smart City 10 Gbps Internet up to 10 locations for $100/month each, which is approximately 60% less than Aspire.
• Deeply Discounted Smart City Dark Fiber @ $20/strand/month, which is approximately 33% less than Aspire’s rates.
• No increases to City rates or service for five years. Aspire increases 3% per year beginning year one.
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Kevin Ennis, Esq. City Attorney of Moorpark May 5, 2025 Page 3
• Larger network footprint to include key additional locations lacking high speed, reliable internet. These benefits result in savings to the City in excess of $15,000 per year while providing higher speeds and lower rates to Moorpark’s residents and businesses. Unfortunately, the public and Moorpark City Council were never afforded the opportunity to properly assess the strengths and weaknesses of this bid, or any others, because Aspire was presented to them as the only option for such a project.
2. The City Did Not Follow Proper Procedure In reviewing the City ordinances and the Agenda Report from April 2, 2025, we have not seen it established anywhere how a formal bidding procedure was conducted, or how this procurement was exempted from such bidding procedure under local, county or state law. We are aware that “[i]n its discretion, the city council may at any time, by a majority vote and without amending this chapter, waive the purchasing procedures or alter these proceedings to fit a specific purchase, when such waiver is not in violation of state law. (Ord. 16 § 1, 1984).” However, the City did not claim such a waiver in the minutes wherein the Ordinance implementing SB 378 was passed or in any related matters that were included within Agenda Item 9.C. It therefore appears that the City operated extrajudicially in adopting this item and contracting with Aspire. This violates the due process rights of Siteserver and any other qualified service provider that was ready and able to bid on such a project, if they had been aware of it.
Conclusion
Because the County seemingly failed to engage in a formal bid solicitation process, which would be required for a contract this large,
Siteserver is prepared to take legal action against the City in order to
enforce its rights to bid on this public contract by way of a writ of mandate through the superior court. Siteserver is willing to resolve this matter
without litigation, however, and is therefore requesting the following
information from the City:
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Kevin Ennis, Esq. City Attorney of Moorpark May 5, 2025 Page 4 1. Clarification regarding the process the City is following for
entering this contract with Aspire without a formal bidding
process;
2. Copies of any and all bids submitted by all vendors, including
Aspire;
3. All information and materials relied upon by the City in coming to
their decision to select Aspire for this contract; and
4. An immediate stay of the contract performance pending resolution
of this bid protest and award review.
We hope to resolve this short of litigation and are attempting to
exhaust our administrative remedies at this juncture. Please confirm receipt and your position.
Thank you for your time and attention in this matter. We look forward to hearing from you no later than May 9, 2025. You can reach us
at (805) 547-9300 or at info@simasgovlaw.com.
Sincerely,
Ryan M. Keever
Simas & Associates, Ltd.
RMK:ms
Enclosure(s)
cc: Mark McDonald (via email)
Steven L. Simas, Esq. (via email) Kate Uckert, Paralegal (via email)
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