Lyft V SF

1 PILLSBURY WINTHROP SHAW PITTMAN LLP
DIANNE L. SWEENEY (State Bar No. 187198)

2 GLENN A. SWEATT (State Bar No. 194936)
RYAN SELNESS (State Bar No. 306369)
3 dianne@pillsburylaw.com
glenn.sweatt@pillsburylaw.com
4 ryan.selness@pillsburylaw.com
2550 Hanover Street
5 Palo Alto, California 94304
Telephone: (650) 233-4500
6 Facsimile: (650) 233-4545
7 PILLSBURY WINTHROP SHAW PITTMAN LLP
NATHAN SPATZ (State Bar No. 204769)
8 nathan.spatz@pillsburylaw.com
725 South Figueroa Street, Suite 2800
9 Los Angeles, CA 90017-5406
Telephone: (213) 488-7100
10 Facsimile: (213) 629-1033
11 Attorneys for Plaintiff
BAY AREA MOTIVATE, LLC
12
13 SUPERIOR COURT FOR THE STATE OF CALIFORNIA

14 FOR THE COUNTY OF SAN FRANCISCO
15
16 BAY AREA MOTIVATE, LLC, Case No.

17 Plaintiff,
BAY AREA MOTIVATE, LLC’S
18 v. COMPLAINT FOR INJUNCTIVE AND
DECLARATORY RELIEF
19 THE CITY AND COUNTY OF SAN
FRANCISCO, THE SAN FRANCISCO DEMAND FOR JURY TRIAL
20 MUNICIPAL TRANSPORTATION
AGENCY, and DOES 1-50,
21
Defendants.
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MOTIVATE’S COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF; DEMAND FOR JURY TRIAL
4810-4034-1913.v1
1 Plaintiff Bay Area Motivate, LLC (“Motivate”) brings this action to prohibit Defendants the
2 City and County of San Francisco and the San Francisco Municipal Transportation Agency
3 (“SFMTA”) (collectively, SFMTA with the City and County of San Francisco, “San Francisco”)
4 from issuing bike share permits, entering into contracts or agreements, or taking any other measures
5 that would disregard, dilute or otherwise prejudice Motivate’s exclusive right to operate a bike
6 share program in the public rights-of-way in San Francisco as to all types of bicycles, including, but
7 not limited to, traditional pedal bikes, e-assist, electric assisted or electric bikes (“E-bikes”),
8 stationed or docked bikes, and/or stationless or dockless bikes. Motivate seeks both injunctive
9 relief and declaratory relief to protect its negotiated right to exclusivity for a bike share program
10 (which includes Motivate’s right to a first offer for any E-bike share program requested by San
11 Francisco) and to obtain a declaration of its rights under the parties’ agreements.
12
13 I. INTRODUCTION
14 1. “Bike sharing” is a public biking system concept that allows customers to rent a bike
15 on a short-term basis from one section of a city and leave it in another section of the city that same
16 day. A customer might check-out and check-in multiple bikes throughout the day as he/she
17 commutes to work, runs errands at lunch, meets a friend after work, and returns home.
18 2. As of 2015, San Francisco, unlike other major cities including Washington D.C.,
19 New York, Chicago and Montreal, had no viable bike share program. Motivate brought an
20 innovative proposal to San Francisco and the Bay Area—a public-private partnership where
21 Motivate would invest millions of dollars to establish a bike share program for a long-term, regional
22 bike share system with robust backend technology, and at no cost to taxpayers. In exchange for
23 Motivate’s significant investments, Motivate would have the right to be the exclusive bike share
24 operator in the region for the term of the agreement. Specifically, they were granted the exclusive
25 right to use the “public rights-of-way” for a bike share program. This same bike share model had
26 proven enormously successful in New York, where, in exchange for making significant capital
27 investments in the bike share program, Motivate was given exclusive rights to operate.
28 3. Motivate initially brought this proposal to the Metropolitan Transportation

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4810-4034-1913.v1
1 Commission (“MTC”)—the lead agency designated by the state to be the regional transportation
2 planning agency for the Bay Area. Seeing the obvious benefits to Motivate’s proposal for the
3 region, MTC helped facilitate discussions between Motivate and five “Participating Cities” – San
4 Francisco, Berkeley, Emeryville, Oakland, and San Jose.
5 4. The discussions culminated in the execution of two agreements: the Bay Area Bike
6 Share Program Agreement between MTC and Motivate (“Program Agreement”) and the
7 Coordination Agreement between Motivate, MTC, and the Participating Cities (“Coordination
8 Agreement”), both dated December 31, 2015.
9 5. In reliance on these agreements, Motivate borrowed tens of millions of dollars in
10 order to develop and launch the first widespread public biking system in San Francisco, San Jose,
11 Oakland, Berkeley and Emeryville (the “Bay Area Bike Share Program”). To date, Motivate has
12 invested over $35 million in building and implementing the Bay Area Bike Share Program and over
13 $15 million in San Francisco alone. Motivate and its investors and lenders made that investment in
14 exchange for a promise of exclusivity that would, among other things, allow Motivate to build a
15 community of riders for bike share services, recoup its investment over time and repay its lenders.
16 6. Motivate is still years away from recouping its investment. Yet, San Francisco is
17 now reneging on its contractual obligations to Motivate by threatening to implement a multi-vendor
18 bike share system, which will deprive Motivate of the benefit of its bargain with San Francisco and
19 allow San Francisco to profit unjustly from Motivate’s effort and investment in the burgeoning Bay
20 Area Bike Share Program. San Francisco has refused to negotiate with Motivate in good faith
21 pursuant to a contractual dispute resolution process that might diffuse the situation; refused to heed
22 to MTC’s guidance even though MTC is the lead agency as to the regional program and MTC has
23 repeatedly confirmed Motivate’s exclusive right; and has now opened a permit process that could
24 place thousands of bikes from other operators on the streets of San Francisco, without offering
25 those bikes to Motivate first.
26 7. San Francisco’s current posture and threatened actions appear to be politically
27 motivated and inspired by the lobbying of other bike share vendors who are unfairly competing for
28 the same public rights-of-way that Motivate spent millions of dollars to obtain for the period of its
3
4810-4034-1913.v1
1 agreement. San Francisco has no basis for its blatant and bad faith refusal to recognize Motivate’s
2 contractual rights.
4 II. PARTIES
5 8. Plaintiff Bay Area Motivate, LLC is a Limited Liability Company duly organized
6 and existing under the laws of Delaware. As of November 2018, Motivate is a wholly owned
7 indirect subsidiary of Lyft, Inc. and is headquartered in San Francisco, California.
8 9. Motivate is informed and believes that Defendants the City and County of San
9 Francisco and the San Francisco Municipal Transportation Agency are governmental entities
10 serving the residents and taxpayers of the City and County of San Francisco.
11 10. Motivate does not know the true names or capacities of defendants named herein as
12 Doe One through Doe Fifty and, therefore, sues these defendants by their fictitious names.
13 Motivate will seek leave to amend their true names and capacities when the same have been fully
14 ascertained.
15 11. Motivate is informed and believes, and on that basis alleges, that each of the
16 fictitiously named defendants is in some way legally responsible for the acts alleged in this
17 Complaint.
18 12. Motivate is informed and believes and thereon alleges that each of the defendants
19 named herein was and/or is at all relevant times the agent of each of the remaining defendants, and
20 in performing the conduct herein alleged, was acting in the course and scope of such agency.
21
22 III. JURISDICTION AND VENUE
23 13. The venue is proper in this case because the causes of action arose in the City and
24 County of San Francisco and the performance of the contracts at issue occurred, in part, in the City
25 and County of San Francisco. Further, the parties agreed in the Coordination Agreement dated
26 December 31, 2015, that “the exclusive forum for resolving such dispute shall be any State or
27 federal court sitting in San Francisco County, California.”
28
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4810-4034-1913.v1
1 IV. GENERAL ALLEGATIONS
2 14. A bike share program is a service in which bicycles are made available for shared
3 use to individuals on a short-term basis for a price or fee. A bike share program can use bikes that
4 are locked using “docks” (“docked” or “stationed” bikes (hereinafter “Stationed” bikes), bikes that
5 lock without a dock (“dockless” or “stationless” bikes (hereinafter “Stationless” bikes), or both.
6 Docked or Stationed shared bike programs allow people to rent the bike from a docking station
7 (pictured below) and return it at another docking station belonging to the same network. Docks are
8 often special bike racks that lock the bike, and only release it by computer control. The user returns
9 the bike by placing it in the dock, which locks it in place.
10 15. Below is a photo of Stationed bikes docked in a station and ready for the next rider:
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21 16. Stationless programs use bicycles with locks that are integrated onto the frame of the
22 bike and therefore do not require a docking station. Stationless bikes have GPS trackers and can be
23 located and unlocked by using a mobile app. There are also hybrid bikes that can be either docked
24 at a station or locked in place in a safe public location. A bike share program can use any of these
25 locking systems within the same program.
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4810-4034-1913.v1
1 17. Below is a photo of Stationless bikes in the public rights-of-way and ready for the
2 next rider. The integrated lock is on the frame of the rear wheel.
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14 18. The Bay Area Air Quality Management District (“BAAQMD”) launched the Bay
15 Area Bike Share pilot in August 2013 with a limited fleet size. Motivate’s predecessor-in-interest,
16 Alta Bicycle Share, Inc. (“Alta”), was the operator of that pilot when it launched in 2013, having
17 won a competitive bid to do so. Because the pilot only provided 700 bikes across five pilot cities,
18 however, the system was grossly undersized and did not provide a viable transit option.
19 19. In February of 2015, Motivate made an unsolicited proposal to the MTC and select
20 Bay Area cities (San Francisco, Oakland, Emeryville, Berkeley, and San Jose) to be the exclusive
21 supplier and operator of bike share in the Bay Area at no public cost. Motivate’s proposal for the
22 Bay Area included an expansion of the existing system to a total of 7,000 bikes throughout the
23 region. Two of the key features of Motivate’s proposal were: 1) Motivate, not the taxpayers, would
24 provide the tens of millions of dollars needed to launch and then operate the program; and 2) in
25 return for its significant financial investment, the cities participating in the program, like San
26 Francisco, would allow Motivate to serve as their exclusive bike share operator for at least ten (10)
27 years.
28
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4810-4034-1913.v1
1 20. The critical components of the deal were reflected in a Term Sheet between the
2 MTC and Motivate dated May 20, 2015. The Term Sheet provided, among other terms, that
3 Motivate was to be the exclusive operator of any bike share system in the Participating Cities for at
4 least ten (10) years. The Term Sheet provided (emphasis added):
5 “During the Term of this Agreement, Motivate shall have the exclusive right to
operate a bike sharing program that utilizes public property and public right of
6 way anywhere within San Francisco, Berkeley, Oakland, San Jose and
Emeryville.”
7
8 21. As negotiations of the terms and conditions proceeded, the parties discussed the
9 topic of Motivate providing E-bikes at some point in the future. As Motivate did not have an E-
10 bike offering at the time of these initial discussions, the parties negotiated a modified exclusivity
11 provision for E-bikes that required cities desiring to include E-bikes in the program to first bring
12 that E-bike opportunity to Motivate (after an initial waiting period), thereby continuing Motivate’s
13 exclusivity in the regional bike sharing program. This right was ultimately set forth in the “Grant of
14 Exclusive Rights” section of the Coordination Agreement and referred to as the “Right of First
15 Offer”.
16 22. On December 31, 2015 and after extensive negotiations, the MTC and Motivate
17 signed the Program Agreement. The Program Agreement, among other things, created the Bay
18 Area Bike Share Program (“Program”) in the Participating Cities for the design, build, operation,
19 maintenance and marketing of a network of publicly available bicycles. Concurrent with the entry
20 into the Program Agreement, the MTC, Motivate, San Francisco, and the other Participating Cities
21 entered into a “Coordination Agreement” for the Program.1 The Coordination Agreement, among
22 other things, set forth the rights, obligations, and responsibilities of each party with respect to the
23 Program including granting Motivate the exclusive right to operate any bike share program in the
24 region for at least ten (10) years.
25
26
27 1
Although there are additional parties to the Program Agreement and Coordination Agreement, this
28 action currently only addresses the actions of the City and County of San Francisco and the San
Francisco Municipal Transportation Agency.
7
4810-4034-1913.v1
1 23. Both the Program Agreement and the Coordination Agreement define “bicycle”
2 broadly to include all forms of two-wheeled bicycles, including E-bikes:
3 1.13 “Bicycle” shall mean a vehicle with pedals and with 2 wheels held in a frame
and aligned one behind the other and steered with a steering wheel as further
4 described in Appendix D of the Program Agreement. “Bicycle” shall not include
motorized vehicles, including scooters or mopeds. For the avoidance of doubt,
5 electric assisted bicycles constitute Bicycles and do not constitute motorized
vehicles. (Emphasis added.)
6
7 (Coordination Agreement at Section 1.13; Program Agreement at Section 1.32.)
8 24. Nothing in the Coordination Agreement or Program Agreement limited bicycles to
9 Stationed bikes or made any distinction at all between Stationed bikes and Stationless bikes.
10 25. As to exclusivity, the Coordination Agreement specifically granted exclusive rights
11 to operate a bike share program in the public rights-of-way during the term of the contract as
12 follows:
13 SECTION 32.0 GRANT OF EXCLUSIVE RIGHTS
14 32.1 Exclusive Rights and Exceptions. The Participating Cities hereby

grant to Operator the exclusive right to operate a bike share program in
15 the public rights-of-way in the Participating Cities during the Term, with
the exception of (i) non-automated non-self-service (i.e., renting a bike
16 requires direct in-person human interaction) bike rental operations, (ii)
electric scooter sharing program, and (iii) automated (i.e., renting a bike
17 requires no direct in-person human interaction) roundtrip bike share
operations (i.e., where the renter is required to return the bike to the same
18 location from which it was rented).
19 32.2 Waiting Period. Operator has the exclusive right to operate a bike
share program with e-assist or electric bikes (“E-Bikes”) in the public rights-
20 of-way in the Participating Cities until June 30, 2016. Prior to June 30, 2016,
no Participating City shall do any of the following: conduct a procurement,
21 solicit or request proposals, solicit operators, or commence negotiations with
another operator for E-Bikes or announce the intent to have a point-to-point
22 E-Bike share system in public rights-of-way.
23 32.3 Right of First Offer. If at any time during the Term but after June
30, 2016, a Participating City intends to issue a Request for Proposals or
24 initiate another type of procurement (each of the foregoing, a “Solicitation”)
to operate a bike share program with E-Bikes, then prior to issuance of such
25 Solicitation, such Participating City shall offer to Operator the opportunity
to operate bike share program with E-Bikes. Following such offer,
26 Operator and such Participating City shall negotiate in good faith the
terms of such program. If within 3 months following such offer,
27 Operator and such Participating City are unable to reach agreement on
the terms of such program, then such Participating City shall have the
28 right to issue a Solicitation, and Operator shall have the right to respond
8
4810-4034-1913.v1
1 to such Solicitation, pursuant to the procurement rules applicable in said
Participating City.
2
(Coordination Agreement at Section 32.0.) (Emphasis added.)
3
4 26. Given the broad definition of “Bicycle” in the Coordination Agreement, Motivate’s
5 exclusivity applies to a bike share program in the public rights-of-way for any type of bicycle—
6 including traditional pedal bikes, E-Bikes, Stationed bikes, and Stationless bikes.
7 27. While various provisions of the above Coordination Agreement have been revisited
8 and amended, the contract term for exclusivity remained constant. Indeed, the underlying pre-deal
9 2015 term sheet set forth a description of exclusivity that was identical to a post-deal 2016 term
10 sheet that was prepared in connection with a contract amendment. Both term sheets described the
11 exclusivity provision in an identical manner:
12 “During the Term of this Agreement, Motivate shall have the exclusive right to
operate a bike sharing program that utilizes public property and public right of
13 way anywhere within San Francisco, Berkeley, Oakland, San Jose and
Emeryville.”
14
15 Not surprisingly, when the Coordination Agreement was amended in October 2016, the exclusivity
16 provision was left unaltered.
17 28. Nothing in the term sheets or the Coordination Agreement itself changed Motivate’s
18 exclusive right to operate in the public rights-of-way in San Francisco or limited the type of locking
19 system (i.e., locked at a station or locked without a station) that could be used on a bike in that
20 program.
21 29. Since executing the Program and Coordination Agreements, Motivate has spent tens
22 of millions of dollars developing, installing, and operating the Bay Area Bike Share Program.
23 Since June 2017, Motivate has placed nearly 2,000 bicycles on the streets of San Francisco (and
24 over 4,000 bicycles in all Participating Cities).
25 SAN FRANCISCO AND PARTICIPATING CITIES CONFIRM MOTIVATE’S
26 EXCLUSIVITY IN RESPONSE TO BIKE SHARE OPERATOR BLUEGOGO IN 2017
27 30. In 2016, another bike share program operator, Bluegogo, sought to launch its bikes
28 in the Bay Area. Bluegogo offered a Stationless bike, which could be parked and electronically
9
4810-4034-1913.v1
1 locked at any location by use of the Bluegogo app. The MTC and several Participating Cities
2 objected to the unauthorized launch and notified Bluegogo that Motivate had the exclusive right to
3 operate a bike share program in the Bay Area. The MTC and Participating Cities sent Bluegogo
4 letters of objection, referencing Motivate’s exclusive right to operate a bike share program in the
5 region:
6 Letter to Bluegogo from City of San Francisco, January 16, 2017:
7 “We write to request information about how you intend to operate in San Francisco
and to inform you that an exclusive right to operate a bike share program in the
8 public right of way in the City has been granted to another company.
9 In particular, in light of information about your business model that has come to our
attention, we are concerned about whether your proposed business activities in San
10 Francisco will comply with the City's requirements for use of its right of way. In
addition, we are concerned that it conflicts with the existing exclusive right the
11 City has granted to another company for a bike share program, under a contract
for a regional bike share program adopted by the Metropolitan Transportation
12 Commission.” (Emphasis added.)
13 Letter to Bluegogo from City of Berkeley, January 30, 2017:
14 “[P]lease be advised that last year, the City of Berkeley, pursuant to an

agreement with the Metropolitan Transportation Commission and the cities of
15 San Francisco, Oakland, Emeryville and San Jose, awarded a Franchise for
bicycle transportation services to Bay Area Motivate, LLC, to operate a bike
16 share program. The agreement to operate that program provides Bay Area
Motivate the exclusive right to operate such program for a 10 year term. The
17 pertinent portion of that agreement provides:
18 32.1 Exclusive Rights and Exceptions. The Participating Cities hereby
grant to Operator the exclusive right to operate a bike share program in
19 the public rights-of-way in the Participating Cities during the Term . . . .”
20 Letter to Bluegogo from City of San Jose, February 3, 2017:
21 “Additionally, we are concerned that your potential activities will not comply with
the exclusive right to operate bicycle share that has been granted by the City to
22 another company. The City has entered into a contractual agreement with the
Metropolitan Transportation Commission, Bay Area Motivate, LLC, and several
23 other cities, granting Bay Area Motivate, LLC an exclusive right to operate a bicycle
share business in the City right-of-way for a 10 year term.”
24
25 31. The information that was publicly available at the time shows that Bluegogo was a
26 Stationless bike share operator. In early January 2017, the San Francisco Examiner stated that
27 “Bluegogo is a ‘stationless’ form of bike sharing. The company places bikes on sidewalks in cities
28 which customers can find via GPS on a smartphone app.”
10
4810-4034-1913.v1
1 (https://www.sfexaminer.com/news/bikeshare-company-may-drop-thousands-of-bikes-on-sf-
2 streets-without-permits/). The City of Oakland confirmed the same in its February 2017 letter to
3 Bluegogo:
4 “We understand that your company recently contacted staff at the City of San
Francisco and the City of Berkeley with the intention of launching a bike sharing
5 program. From our current understanding of Bluegogo’s dock-less system, the
bicycles can be located and rented via a smart phone app. and can be returned to
6 any location within a virtual geographic boundary, or geofence.
7 Please be advised that last year, the City of Oakland, pursuant to an agreement with
the
8 Metropolitan Transportation Commission and the cities of San Francisco, Berkeley,
Emeryville and San Jose, awarded exclusive right to operate a bike sharing program
9 to Bay Area Motivate, LLC. The agreement to operate that program provides Bay
Area Motivate the exclusive right to operate such program for a 10 year term.
10
The pertinent portion of that agreement provides:
11
32.1 Exclusive Rights and Exceptions. The Participating Cities hereby grant
12 to Operator the exclusive right to operate a bike share program in the public
rights-of-way in the Participating Cities during the Term . . .” (Emphasis
13 added.)
14 32. In a January 30, 2017 letter to Apple and Google (with all Participating Cities,
15 including San Francisco, copied), the MTC further demanded that both Apple and Google remove
16 Bluegogo’s app from their app stores because:
17 “Bluegogo’s operations pose a serious threat to Bay Area Bike Share, the bike share
program in the Bay Area that has been developed in a way that promotes the public
18 interest. We understand that the San Francisco Municipal Transit Agency has
also requested Apple to remove the Bluegogo app from the App Store. Under the
19 Bay Area Bike Share program, which is operated by Bay Area Motivate, LLC
(Motivate), the Cities of San Francisco, San Jose, Oakland, Berkeley, and
20 Emeryville have granted Motivate the exclusive right to operate a bike share system
on the public right of way in exchange for several public benefits.
21
….
22
Bluegogo’s operations violate the exclusive right granted by the cities of San
23 Francisco, San Jose, Berkeley, Emeryville, and Oakland to Motivate to operate a
bikeshare system, which provides grounds for Apple to remove the Bluegogo app
24 from the App Store.” (Emphasis added.)
25 The MTC made a similar take-down request for the Bluegogo app to Google Play. Based
26 on the MTC’s letters, San Francisco made its own take-down requests to both Apple and Google.
27 33. The MTC went on to confirm both that Motivate’s operations depended on
28 exclusivity and that the violation of Motivate’s right could destroy the regional program:
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4810-4034-1913.v1
1 “Finally, Motivate has promised to deliver 7,000 bikes to the major metropolitan
areas of the Bay Area, creating a regional bike share system. However, Motivate’s
2 operations depend on the exclusive right to operate in San Francisco and the
other cities noted above. Bluegogo’s violation of this exclusive right could result
3 in destroying Bay Area Bike Share, thereby eliminating a regional bike share
system enjoyed by those who live and work in the Bay Area, including many
4 employees of Apple itself.” (Emphasis added.)
5 34. Ultimately, Bluegogo did launch a small number of bikes in Bay Area cities (without
6 permission), including San Francisco. Various Bluegogo bikes were subsequently picked up and
7 impounded by San Francisco and the rogue effort came to a quick end.
8 PARTICIPATING CITIES AGAIN CONFIRM EXCLUSIVITY IN RESPONSE
9 TO ANOTHER BIKE SHARE OPERATOR IN 2017 AND 2018
10 35. In late 2017 and 2018, a similar set of letters was sent to LimeBike—another bike
11 share operator that, like Bluegogo, offered a Stationless bike. By early 2018, LimeBike offered
12 both traditional bikes and E-bikes. On March 12, 2018, the City of Emeryville, another
13 Participating City, notified LimeBike that its operations would be a “violation of the Coordination
14 Agreement” with Motivate and directed LimeBike to cease and desist or a host of consequences,
15 from a civil action to administrative penalties, would follow:
16 “please be advised that in 2016, pursuant to a Coordination Agreement

(‘Agreement’) with the Metropolitan Transportation Commission and the cities of
17 San Francisco, Oakland, Berkeley, and San Jose, the City of Emeryville awarded an
exclusive right to operate bicycle transportation services to Bay Area Motivate,
18 LLC, to operate a bike share program within the member cities, including
Emeryville. That Agreement provides Bay Area Motivate the exclusive right to
19 operate such a program for a ten-year term. The pertinent portion of that Agreement
provides:
20
32.1 Exclusive Rights and Exceptions. The Participating Cities hereby grant
21 to Operator the exclusive right to operate a bike share program in the public
rights-of-way in the Participating Cities during the Term,
22
If LimeBike is currently operating in the City of Emeryville, it is in violation of the
23 Coordination Agreement, and must cease operating in the City immediately.
24 . . . .The violation of any provision of the EMC may constitute an infraction, and
may be
25 prosecuted by the City in the name of the people of the State of California, or, at the
option of the City, may be redressed by civil action. Any person convicted of an
26 infraction under the EMC shall be punished by a fine of up to $400, with multiple
violations chargeable as a misdemeanor subject to a fine of $1,000, or by
27 imprisonment not to exceed six months, or by both such fine and imprisonment
(EMC 1-2.01). Each and every day a violation is committed, continued or permitted
28
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1 constitutes a separate offense (id.). Violations are also subject to administrative
penalties.”
2
3 The City of San Jose’s November 30, 2017 letter similarly required LimeBike to cease and desist:
4 “the City has entered into a contractual agreement with Bay Area Motivate, LLC,
granting Motivate the exclusive right to operate a bicycle share business in the City's
5 right-of-way for a 10-year term. The relevant section of this agreement states:
6 Exclusive Rights and Exceptions. The Participating Cities hereby grant to

Operator the exclusive right to operate a bike share program in the public rights-
7 of-way in the Participating Cities during the Term ….
8 The City will enforce all laws and its police powers, including but not limited to
those that protect the City’s right-of-way and ensure the safety and service provided
9 by the City’s right-of-way.
10 Accordingly, you are hereby directed immediately to cease and desist from any
bicycle share operations in the City’s public right-of-way.”
11
12 36. Motivate is informed and believes that San Francisco and the remaining
13 Participating Cities took a similar stance against LimeBike’s Stationless bikes. LimeBikes did not
14 further pursue a rogue launch in San Francisco.
15 MOTIVATE GRANTS LIMITED SHORT-TERM
16 STATIONLESS E-BIKE EXCEPTION
17 37. In or about October 2017, a dispute between San Francisco and Motivate arose
18 concerning Stationless E-bikes and whether such bikes were covered by Motivate’s exclusivity
19 agreement. In response to that dispute, the MTC triggered the “Dispute Resolution Process” set
20 forth in Section 34 of the Coordination Agreement in an effort to resolve that dispute. The Dispute
21 Resolution Process is triggered:
22 “[i]n the event of a dispute between Operator and MTC and/or a

Participating City arising under this Agreement or with respect to the
23 Program. . . .”
24 Section 34 further describes a process that requires various meetings culminating in mediation
25 facilitated by the American Arbitration Association if the initial meetings do not resolve the
26 dispute.
27 38. Without any objection or claim that the dispute about Stationless bikes or E-bikes
28 were not covered by the Dispute Resolution Process, San Francisco proceeded to participate in the
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4810-4034-1913.v1
1 Dispute Resolution Process with the MTC and Motivate. That process was successful, and a
2 settlement was reached on November 27, 2017 (“Settlement Agreement”). As Motivate was not yet
3 ready to launch Stationless E-bikes, Motivate agreed to a one-time limited exception to its
4 exclusivity allowing San Francisco to issue a single permit to a third-party for 250 Stationless E-
5 bikes (which could ultimately be increased to 500 Stationless E-bikes) for a total period not to
6 exceed 18 months (“E-bike Pilot”). The Settlement Agreement explicitly provided that it was only
7 a one-time exception to Motivate’s exclusivity:
8 Notwithstanding Motivate’s “exclusive right to operate a bike share program in the

public rights-of-way”, Motivate and the City agree that electric bikes or electric
9 assist bikes (collectively, “e-bikes”) are a desirable complement to pedal bikes in
providing a full range of alternative transportation and that Motivate does not
10 currently offer an e-bike product but is working in good faith to develop e-bikes that
can be integrated into the Ford GoBike system. As a result, Motivate agrees to a
11 one-time exception to its exclusivity in the area of e-bikes.
12 39. San Francisco, in turn, issued a permit to JUMP, another bike share operator which
13 offers Stationless E-bikes. Motivate is informed and believes that JUMP is a wholly owned
14 subsidiary of Uber. JUMP’s pilot expires on July 9, 2019.
15 SAN FRANCISCO REQUESTS
16 MORE STATIONLESS E-BIKES IN LATE 2018
17 40. In late 2018, Motivate, San Francisco and other Participating Cities began
18 discussions to include Stationless E-bikes in Motivate’s bike share program. Pursuant to the
19 Coordination Agreement, any Participating City seeking E-bikes is first required to offer the
20 opportunity to Motivate as the exclusive bike share operator in the region. (Coordination
21 Agreement Section 32.0 (Grant of Exclusive Rights).)
22 41. Following several months of discussions, Motivate and the Participating Cities
23 agreed to include E-bikes and the parties proceeded to prepare an agreement “to operate an ebike
24 system consistent with the Coordination Agreement” (“E-bike Letter Agreement” or “Letter
25 Agreement”). As further described in the Letter Agreement, Motivate created a “Hybrid E-bike”
26 that could operate in both a Stationed and Stationless mode.
27 42. The E-bike Letter Agreement will bring an additional 7,200 bikes into the
28 Participating Cities, on top of the bikes detailed in the Program and Coordination Agreements. As
14
4810-4034-1913.v1
1 to San Francisco, the E-bike Letter Agreement was signed by Motivate, San Francisco, and the
2 MTC in February 2019 and will bring approximately 4,000 Hybrid E-bikes into San Francisco, with
3 the first round of E-bikes set to deploy by June 30, 2019, coinciding with the end of the E-bike
4 Pilot.
5 SAN FRANCISCO TAKES STEPS TO DEPRIVE MOTIVATE
6 OF ITS EXCLUSIVE RIGHTS TO OPERATE A BIKE SHARE PROGRAM
7 CLAIMING THAT STATIONLESS BIKES ARE OUTSIDE OF THE PROGRAM
8 43. Motivate is informed and believes that notwithstanding the recent E-bike Letter
9 Agreement and the millions of dollars Motivate invested into a bike share program in San Francisco
10 in exchange for its exclusive rights, San Francisco is now bowing to political pressures to
11 undermine a fundamental component of the regional bike share program—Motivate’s exclusive
12 right to operate any bike share program in the public rights-of-way.
13 44. San Francisco is now claiming that the Bike Share Program does not apply to
14 Stationless bikes, which is fundamentally at odds with prior statements and the conduct of all
15 Participating Cities, the lead regional transportation agency (MTC) and San Francisco itself.
16 Motivate is informed and believes that San Francisco’s position is not a good-faith interpretation of
17 the Coordination Agreement, the Program Agreement, the Settlement Agreement, or the E-Bike
18 Letter Agreement. Motivate is further informed and believes that JUMP and/or its parent company
19 Uber are actively lobbying certain San Francisco officials to allow JUMP to expand its E-bike
20 presence in San Francisco notwithstanding Motivate’s exclusivity. (As of late 2018, for example,
21 JUMP’s counsel sent a letter to the MTC incorrectly claiming that “Motivate does not have
22 contractual exclusivity over e-bike or dockless bike sharing programs.”) JUMP’s self-interested
23 positioning and San Francisco’s political anxieties, however, are irrelevant in light of the
24 Coordination Agreement, Program Agreement, Settlement Agreement, E-bike Letter Agreement,
25 and the actions of the MTC and Participating Cities, including San Francisco, which firmly
26 establish Motivate’s exclusivity in the public rights-of-way during the contractual term of the Bike
27 Share Program. (See e.g., cease and desist letters above to Bluegogo and LimeBike, both
28 Stationless bike share operators.)

15
4810-4034-1913.v1
1 45. Starting in April 2019, Motivate made a host of good-faith, informal efforts to
2 resolve the dispute with San Francisco. In late April 2019, after Motivate’s initial efforts to engage
3 San Francisco failed and San Francisco threatened to open the bike share permitting process to
4 other operators, Motivate initiated the Dispute Resolution Process as required by the Coordination
5 Agreement—and just like the MTC had done in October 2017 when a similar dispute arose
6 concerning Stationless E-bikes. This time, however, San Francisco took a new stance.
7 46. Rather than participating in the contractually required Dispute Resolution Process as
8 it had done in late 2017, San Francisco repeatedly refused to participate in the process based on its
9 unilateral determination that the Dispute Resolution Process is inapplicable to the current dispute.
10 San Francisco’s stated rationale was that the Coordination Agreement does not apply to Stationless
11 bikes. San Francisco made, and continues to make this claim, even though the Coordination
12 Agreement makes no such distinction and applies to all bikes whether Stationed or Stationless. On
13 May 15, 2019, SFMTA’s director wrote:
14 The dispute resolution procedures set forth in the Coordination Agreement do not
apply to either Lyft’s proposed hybrid bikeshare expansion or the SFMTA’s plans to
15 open the stationless permit application process, and we see no reason to postpone
this permit process as a result.
16
17 47. In response, both the MTC and Motivate made good-faith efforts to demonstrate to
18 San Francisco that the Dispute Resolution Process was, in fact, applicable and that resolution was
19 important to the overall regional system. As the regional planning agency for the Bay Area
20 Counties, the MTC wrote to SFMTA and Motivate on May 20, 2019 reminding San Francisco of
21 the value of the Motivate system to the Bay Area ($65M), confirming Motivate’s broad exclusivity
22 right, and disagreeing with San Francisco’s position that Stationless bikes are carved out from
23 Motivate’s exclusivity:
24 This letter follows the April 28, 2019 letter Bay Area Motivate, LLC (“Motivate”)
sent to the San Francisco Municipal Transit Authority (“SFMTA”) initiating the
25 dispute resolution process under the Bay Area bike share coordination agreement
and citing SFMTA’s intent to allow other bike share operators to apply for and
26 obtain permits, and SFMTA’s May 15, 2019 letter in response, in which SFMTA
takes the position that circumstances do not currently exist that would give rise to a
27 dispute under the coordination agreement. As the regional planning agency for
the nine-county San Francisco Bay Area that holds the operational program
28
16
4810-4034-1913.v1
1 agreement with Motivate for the bike share program, MTC would like to add
the following perspective to this recent correspondence.
2
In approving the bike share agreement in 2015, MTC believed exclusivity was a
3 central element for Motivate to agreeing to foot the entire cost of delivering,
installing, and operating a 7,000 bike share system in the five participating cities
4 of San Francisco, San Jose, Oakland, Berkeley, and Emeryville. It was clear that
Motivate would not agree to do this if the participating cities were going to
5 allow for point-to-point bike share competitors for a specified period.
6 At the time, MTC estimated the 10-year monetary savings/value for the Bay
Area of the public-private bike share program was in excess of $65 million in
7 2015 dollars. In addition to the significant investment, the parties agreed that
Motivate would make a long-term commitment to ensure consistency and reliability
8 for the user, agree to key performance indicators (KPIs) or pay liquidated damages,
and provide many other public benefits including price certainty and low-income
9 discount.
10 …
11 The intent related to exclusivity was broad from MTC’s policy perspective, and
is addressed in at least two areas of the agreements: the definition of bicycle as
12 included in the program and coordination agreements; and the grant of exclusive
rights provision as included in the coordination agreement. A “bicycle” is
13 defined as “a vehicle with pedals and with 2 wheels held in a frame and aligned
one behind the other and steered with a steering wheel.” Further, the definition
14 makes clear that “bicycle” “shall not include motorized vehicles including scooters
and mopeds. For the avoidance of doubt, electric assisted bicycles constitute
15 bicycles.” The definition of bicycle is silent on any distinction between station-
based and dockless bicycles.
16
The exclusivity provision, which resides in the coordination agreement, includes
17 “the exclusive right to operate a bike share program in the public rights of way
in the Participating Cities during the term, with the exception of (i) non-
18 automated non-self-service (….) bike rental operations, (ii) electric scooter
sharing program, and (iii) automated (…) roundtrip bike share operations.”
19 Ebikes or dockless/stationless bikes are not included in the specific exclusions
from the exclusivity provision. …
20
In light of this background, MTC believes that a dispute does exist under
21 coordination agreement regarding whether Motivate has the exclusive right to
operate dockless ebikes in San Francisco under the coordination agreement. As
22 MTC sees it, the dispute is similar in nature to the dispute that MTC initiated
by letter of October 6, 2017, which noted that the “parties involved appear to have
23 substantial differences of interpretation of the exclusive rights provision under the
Coordination Agreement [and that the] dispute is of region-wide significance as it
24 could undermine the Ford Gobike program and because similar disagreements over
the exclusivity provision could arise in other participating cities.” This earlier
25 dispute resulted in a settlement agreement in which Motivate agreed to a “one-
time exception to exclusivity in the area of ebikes” to allow San Francisco to
26 issue a permit limited in time and volume to another “stationless e-bike
system.” Based on this, it seems clear that the same issues present in the earlier
27 dispute are central to the current dispute referenced in Motivate’s April 28, 2019
letter.
28
17
4810-4034-1913.v1
1 As such we encourage SFMTA and Motivate to engage in good faith in the
dispute resolution process outlined in Section 34 of the Coordination
2 Agreement. (Emphasis added.)
3 48. On May 24, 2019, SFMTA confirmed its intention to open the permit process and
4 again refused to participate in the Dispute Resolution Process. San Francisco inexplicably claimed
5 that undertaking the confidential Dispute Resolution Process “at the same time as we launch the
6 application process for the Stationless Bikeshare Permit program is fundamentally at odds with our
7 responsibilities to manage a permit process that is open, transparent and fair to all applicants.” But
8 again, the confidential Dispute Resolution Process was no surprise to San Francisco. It was part of
9 the Coordination Agreement that San Francisco agreed to and has, for years, accepted benefits
10 under. Like the exclusivity terms, San Francisco is selectively disregarding binding contractual
11 terms.
12 49. While Motivate agreed, and continues to be willing, to participate in the Dispute
13 Resolution Process, San Francisco continues to refuse. By refusing to recognize Motivate’s right to
14 exclusivity in the public rights-of-way and by now offering that right to other operators, San
15 Francisco is unfairly interfering with Motivate’s rights and depriving Motivate of the benefit of its
16 bargain.
17 SAN FRANCISCO HAS NOW OPENED A PERMIT PROCESS
18 THAT WILL ALLOW OTHER BIKE SHARE OPERATORS TO OBTAIN PERMITS
19 IN VIOLATION OF THE BIKE SHARE AGREEMENTS
20 50. On or about May 28, 2019, San Francisco opened a public permit application
21 process in violation of its agreements with Motivate to authorize up to 12,000 bikes (including at
22 least 33% E-bikes) without first offering that opportunity to Motivate pursuant to the Right of First
23 Offer requirement in the Coordination Agreement. Rather San Francisco posted its Permit
24 Application, Distribution Guidelines, Community Engagement Plan Requirements and Evaluation
25 Scoresheet on its public website. San Francisco states that it is considering applications submitted
26 between May 28, 2019 through June 24, 2019 and that it anticipates announcing new permits by
27 July 2019.
28 51. On May 30, 2019, Motivate again objected to San Francisco’s permitting process and
18
4810-4034-1913.v1
1 notified San Francisco that it should, in the interest of transparency and fairness, take immediate steps to
2 notify any third-party permit applicants about Motivate’s exclusive arrangement and this dispute. On
3 information and belief, San Francisco declined to do so.
4 52. While it is uncertain if San Francisco will issue permits in July or at some other
5 earlier or later time, Motivate brings this action to protect its right to exclusivity in the public rights-
6 of-way and preserve the status quo pending trial on this matter. Unlike other contracts where goods
7 and services can be found elsewhere, San Francisco, as the party that controls the public rights-of-
8 way to which the right of exclusivity is granted, is the only party who can provide Motivate with
9 the right to exclusivity it bargained for.
10 FIRST CAUSE OF ACTION
11 (Specific Performance and Injunctive Relief Against San Francisco; C.C.P. § 527)
12 53. Motivate incorporates by reference, as though fully set forth, the allegations of
13 paragraphs l through 52 of this Complaint.
14 54. In considering whether to grant preliminary injunctive relief, courts consider “two
15 interrelated factors: the likelihood the moving party ultimately will prevail on the merits, and the
16 relative interim harm to the parties from the issuance or non-issuance of the injunction.” Am.
17 Indian Model Sch v. Oakland Unified Sch. Dist., 227 Cal. App. 4th 258, 274 (2014). Here,
18 Motivate is likely to prevail on the merits, and the relative harm to Motivate weighs in favor of
19 issuance of an injunction.
20 55. On or about December 31, 2015, Motivate and San Francisco, among others, entered
21 into the Coordination Agreement and the related Program Agreement (“Bike Share Agreements”).
22 56. The consideration set forth in the Bike Share Agreements was the fair and
23 reasonable value of the bike share program at the time the agreements were entered and is just and
24 reasonable as to San Francisco. The MTC, the regional agency overseeing this program, has
25 estimated the program value to the region at $65 million (in 2015 dollars) and Motivate, not San
26 Francisco or the other Participating Cities, provided this value at its own expense. Motivate has
27 invested more than $15 million in San Francisco alone, and is still years away from recouping its
28 investment.
19
4810-4034-1913.v1
1 57. Motivate has performed, or is ready, willing, and able to perform, all conditions,
2 covenants, and promises that it is required to perform under the terms and conditions of the Bike
3 Share Agreements and the recent E-bike Letter Agreement.
4 58. San Francisco has failed and refused, and continues to fail and refuse, to perform the
5 conditions, covenants, and promises that it is required to perform under the Bike Share Agreements
6 and the E-bike Letter Agreement. It opened a public permit application process for “up to 12,000”
7 Stationless bikes, including both traditional bikes and E-bikes, and has advised Motivate that other
8 operators will be considered for permits. San Francisco has never offered these 12,000 bikes to
9 Motivate, rather it requested only 4,000 bikes from Motivate in the E-bike Letter Agreement. San
10 Francisco has advised that it intends to issue permits by July 2019, but nothing in the permit process
11 prohibits San Francisco from issuing a permit to another operator at an earlier date.
12 59. Motivate has repeatedly offered to proceed with the Dispute Resolution Process set
13 forth in the Coordination Agreement with San Francisco, but San Francisco has refused. San
14 Francisco has also disregarded the efforts of the lead regional transit agency (MTC) to encourage
15 San Francisco to proceed with that process, as the parties have done in the past.
16 60. If San Francisco proceeds with its public permit process, Motivate will have no
17 adequate legal remedy and thus will be irreparably harmed for at least two independently sufficient
18 reasons. First, Motivate will be deprived of a unique right for which it can obtain no substitute: the
19 exclusive right to operate a bike share program with any type of Bicycle (whether locked with or
20 without a station) in the City and County of San Francisco and the exclusive right to receive the
21 first offer to operate any E-bike share program in the City and County of San Francisco. Second,
22 monetary damages would be extremely difficult to measure and thus will be inadequate to
23 compensate Motivate for the detriment it suffers because, among other things: Motivate will lose its
24 exclusive right to operate a bike share program in the public rights-of-way of the City and County
25 of San Francisco; no other party can provide Motivate with that exclusive right but San Francisco;
26 Motivate will lose its exclusive right to receive the first offer to operate any E-bike share program
27 in the City and County of San Francisco (and again, no other party can provide Motivate with that
28 right but San Francisco); and Motivate will lose an unknown number of current and future riders
20
4810-4034-1913.v1
1 (whether those riders use other bike share operators or simply avoid bike sharing altogether) and
2 unknown goodwill.
3 61. If San Francisco awards operating permits to other bike share companies, it will
4 cause great and irreparable harm to Motivate, unless enjoined and restrained by order of the Court.
5 Therefore, Motivate requests the Court to enjoin San Francisco from issuing bike share permits,
6 entering into contracts or agreements, or taking any other measures that would disregard, dilute or
7 otherwise prejudice Motivate’s exclusive right to operate a bike share program in the public rights-
8 of-way in the City and County of San Francisco as to all types of bicycles, including, but not
9 limited to, traditional pedal bikes, E-bikes, Stationed bikes, and/or Stationless bikes. Such relief
10 includes but is not limited to enjoining San Francisco from awarding any Stationless bike share
11 permits or any other permit that would allow for another person to use the public rights-of-way to
12 operate a bike sharing program during the term of the agreements.
13 SECOND CAUSE OF ACTION
14 (Declaratory Relief Against San Francisco; C.C.P. § 1060)
15 62. Motivate realleges and incorporates by reference the allegations set forth in
16 paragraphs 1 through 61, of this Complaint.
17 63. An actual controversy has arisen and now exists between Motivate and San
18 Francisco with respect to their respective rights and obligations under the Bike Share Agreements
19 and the Settlement Agreement, including, but not limited to, the following:
20 1) Motivate contends, and San Francisco denies, that the Bike Share Agreements gives
21 Motivate the exclusive right to operate a bike share program in the City and County
22 of San Francisco involving any type of bike, including E-bikes , whether Stationed
23 or Stationless, in the public rights-of-way during the term of the agreements, which
24 is at least 10 years;
25 2) Motivate contends, and San Francisco denies, that with respect to E-bikes, whether
26 Stationed or Stationless, the Bike Share Agreements gives Motivate the exclusive
27 right to receive the first offer to operate any E-bike share program in the City and
28 County of San Francisco (including for the 12,000 Stationless bikes that are now
21
4810-4034-1913.v1
1 subject to the public permitting process), requires San Francisco to negotiate the
2 terms of such a program in good faith with Motivate, and prohibits San Francisco
3 from issuing a Request for Proposals or initiating another type of procurement for
4 such a program from entities other than Motivate unless three months have passed
5 since San Francisco offered the program to Motivate and the parties were unable to
6 reach agreement on the terms of such program;
7 3) Motivate contends, and San Francisco denies, that the Settlement Agreement only
8 allowed for a one-time and limited exception to Motivate’s exclusive right for E-
9 bikes and that exception terminates after 18 months as stated in the Settlement
10 Agreement.
11 64. Motivate desires a judicial determination of its rights and duties and a declaration
12 that: (i) the Bike Share Agreements give Motivate the exclusive right to operate a bike share
13 program in the City and County of San Francisco involving any type of Bicycle, including E-bikes,
14 whether Stationed or Stationless, in the public rights-of-way during the term of the agreements,
15 which is at least 10 years; (ii) with respect to E-bikes, the Bike Share Agreements give Motivate the
16 exclusive right to receive the first offer to operate any E-bike share program in the City and County
17 of San Francisco, whether Stationed or Stationless, require San Francisco to negotiate the terms of
18 such a program in good faith with Motivate, and prohibit San Francisco from issuing a Request for
19 Proposals or initiating another type of procurement (including permitting) for such a program, with
20 entities other than Motivate unless three months have passed since San Francisco offered the
21 program to Motivate and the parties were unable to reach agreement on the terms of such program;
22 and (iii) the Settlement Agreement does not permit San Francisco to issue permits to operate an E-
23 bike share program, whether Stationed or Stationless, in San Francisco to entities other than
24 Motivate after expiration of the limited 18-month Stationless E-bike Pilot.
25 65. A judicial declaration is necessary and appropriate at this time under the
26 circumstances in order that Motivate may ascertain its rights and duties. Such declaration is
27 necessary and appropriate to resolve an existing controversy over whether San Francisco can issue
28 permits for bike share programs in the public rights-of-way (whether the bikes are Stationed,
22
4810-4034-1913.v1
1 Stationless, human-powered, or electric), to entities other than Motivate, as San Francisco has now
2 made its permit application for Stationless bikes publicly available and stated that it intends to
3 complete the permit process by July 2019.
4 66. Therefore, Motivate requests the Court to issue declaratory relief as described herein
5 under C.C.P. § 1060.
6 PRAYER
7 WHEREFORE, on its First Cause of Action, Motivate seeks the following relief from this
8 Court:
9 1. An injunction enjoining San Francisco in the ways and manner set forth in the First
10 Cause of Action;
11 2. A temporary restraining order and/or preliminary injunction restraining San
12 Francisco in the ways and manner set forth in the First Cause of Action;
13 3. For attorneys’ fees, and costs and other expenses;
14 4. Award of costs of suit herein; and
15 5. Such other relief as the Court deems proper.
16 WHEREFORE, on its Second Cause of Action, Motivate seeks the following relief from
17 this Court:
18 1. Declarations for the relief as requested in the Second Cause of Action;
19 2. For attorneys’ fees, and costs and other expenses;
20 3. Award of costs of suit herein; and
21 4. Such other relief as the Court deems proper.
22
Dated: June 7, 2019 PILLSBURY WINTHROP SHAW PITTMAN LLP
23
24
25 By: DIANNE L. SWEENEY

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4810-4034-1913.v1
1 DEMAND FOR JURY TRIAL
2 Plaintiff Bay Area Motivate, LLC hereby demands a trial by jury.
3
Dated: June 7, 2019 PILLSBURY WINTHROP SHAW PITTMAN LLP
4
6 By: DIANNE L. SWEENEY

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Lyft V SF

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Lyft V SF

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1 PILLSBURY WINTHROP SHAW PITTMAN LLP

DIANNE L. SWEENEY (State Bar No. 187198)

13 SUPERIOR COURT FOR THE STATE OF CALIFORNIA

16 BAY AREA MOTIVATE, LLC, Case No.

28 3. Motivate initially brought this proposal to the Metropolitan Transportation

4 Francisco, Berkeley, Emeryville, Oakland, and San Jose.

8 Agreement”), both dated December 31, 2015.

9 5. In reliance on these agreements, Motivate borrowed tens of millions of dollars in

17 now reneging on its contractual obligations to Motivate by threatening to implement a multi-vendor

25 those bikes to Motivate first.

26 7. San Francisco’s current posture and threatened actions appear to be politically

7 indirect subsidiary of Lyft, Inc. and is headquartered in San Francisco, California.

22 III. JURISDICTION AND VENUE

27 federal court sitting in San Francisco County, California.”

9 the bike by placing it in the dock, which locks it in place.

2 broadly to include all forms of two-wheeled bicycles, including E-bikes:

7 (Coordination Agreement at Section 1.13; Program Agreement at Section 1.32.)

8 24. Nothing in the Coordination Agreement or Program Agreement limited bicycles to

10 25. As to exclusivity, the Coordination Agreement specifically granted exclusive rights

13 SECTION 32.0 GRANT OF EXCLUSIVE RIGHTS

14 32.1 Exclusive Rights and Exceptions. The Participating Cities hereby

11 exclusivity provision in an identical manner:

16 provision was left unaltered.

24 over 4,000 bicycles in all Participating Cities).

25 SAN FRANCISCO AND PARTICIPATING CITIES CONFIRM MOTIVATE’S

26 EXCLUSIVITY IN RESPONSE TO BIKE SHARE OPERATOR BLUEGOGO IN 2017

6 Letter to Bluegogo from City of San Francisco, January 16, 2017:

13 Letter to Bluegogo from City of Berkeley, January 30, 2017:

14 “[P]lease be advised that last year, the City of Berkeley, pursuant to an

16 Bluegogo’s app from their app stores because:

8 PARTICIPATING CITIES AGAIN CONFIRM EXCLUSIVITY IN RESPONSE

9 TO ANOTHER BIKE SHARE OPERATOR IN 2017 AND 2018

15 from a civil action to administrative penalties, would follow:

16 “please be advised that in 2016, pursuant to a Coordination Agreement

6 Exclusive Rights and Exceptions. The Participating Cities hereby grant to

14 further pursue a rogue launch in San Francisco.

15 MOTIVATE GRANTS LIMITED SHORT-TERM

16 STATIONLESS E-BIKE EXCEPTION

21 Resolution Process is triggered:

22 “[i]n the event of a dispute between Operator and MTC and/or a

7 a one-time exception to Motivate’s exclusivity:

8 Notwithstanding Motivate’s “exclusive right to operate a bike share program in the

5 SAN FRANCISCO TAKES STEPS TO DEPRIVE MOTIVATE

6 OF ITS EXCLUSIVE RIGHTS TO OPERATE A BIKE SHARE PROGRAM

7 CLAIMING THAT STATIONLESS BIKES ARE OUTSIDE OF THE PROGRAM

11 undermine a fundamental component of the regional bike share program—Motivate’s exclusive

12 right to operate any bike share program in the public rights-of-way.

24 Coordination Agreement, Program Agreement, Settlement Agreement, E-bike Letter Agreement,

28 Stationless bike share operators.)

13 May 15, 2019, SFMTA’s director wrote:

17 SAN FRANCISCO HAS NOW OPENED A PERMIT PROCESS

18 THAT WILL ALLOW OTHER BIKE SHARE OPERATORS TO OBTAIN PERMITS

19 IN VIOLATION OF THE BIKE SHARE AGREEMENTS

3 information and belief, San Francisco declined to do so.

10 FIRST CAUSE OF ACTION

13 paragraphs l through 52 of this Complaint.

3 Share Agreements and the recent E-bike Letter Agreement.

12 operate a bike sharing program during the term of the agreements.

13 SECOND CAUSE OF ACTION

14 (Declaratory Relief Against San Francisco; C.C.P. § 1060)

16 paragraphs 1 through 61, of this Complaint.

6 reach agreement on the terms of such program;

24 Motivate after expiration of the limited 18-month Stationless E-bike Pilot.