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GILCHRIST & RUTTER PROFESSIONAL CORPORATION 1299 OCEAN AVENUE, SUITE 900 SANTA MONICA, CA 90401 (310) 393-4000

CHRISTOPHER SUTTON LAW OFFICES 586 LA LOMA ROAD PASADENA, CA 91105 (626) 683-2500

DLA PIPER LLP (US) 1999 AVENUE OF THE STARS, SUITE 400 LOS ANGELES, CA 90067-6023 (310) 595-3000

HILL FARRER & BURRILL L.L.P. ONE CALIFORNIA PLAZA, 37TH FLOOR 300 SOUTH GRAND AVENUE LOS ANGELES, CA 90071-3147 (213) 620-0460

February 14, 2012 VIA E-MAIL AND U.S. MAIL Ms. Dolores Roybal Saltarelli Los Angeles County Metropolitan Transportation Authority One Gateway Plaza, MS 99-22-2 Los Angeles, CA 90012 Email: roybald@metro.net Mr. Ray Tellis Federal Transit Administration, Region IX 888 South Figueroa Street, Suite 1850 Los Angeles, CA 90017 Email: ray.tellis@dot.gov Re: State Clearinghouse No. 2009031043 Los Angeles County Metropolitan Transportation Authority Regional Connector Transit Corridor Project Final Environmental Impact Statement/Environmental Impact Report (January 20, 2012) Mr. Raymond Sukys Office of Planning and Program Development Federal Transit Administration, Region IX 201 Mission Street, Suite 1650 San Francisco, CA 94105 Email: raymond.sukys@dot.gov

Dear Ms. Roybal Saltarelli, Mr. Sukys and Mr. Tellis: This letter is submitted on behalf of Thomas Properties Group (TPG), which is the real property owner and property manager of the properties located at 515-555 South Flower Street, referred to as the City National Plaza and Towers in the Final Environmental Impact Statement/Environmental Impact Report (Final EIS/EIR), and 400 South Flower Street, referred to as the J-2 Garage (collectively, the TPG Properties); Hines, which owns the property located at 444 South Flower Street (Citigroup Center); The California Club, which owns the property located at 538 South Flower Street; and the Westin Bonaventure Hotel and Suites, which owns the property located at 404 South Figueroa Street (all collectively, the

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Affected Property Owners and the Affected Properties). The Affected Properties are all immediately adjacent to portions of the proposed Los Angeles County Metropolitan Transportation Authority (LACMTA) Regional Connector Transit Corridor Project (Regional Connector or Project), and are located on South Flower Street between 4th and 6th Streets (the Financial District). Together, the Affected Properties provide millions of square feet of office with accessory retail uses, hundreds of hotel rooms and employ thousands of people in the Financial District. Certain of the Affected Property Owners have previously submitted comments on the Draft Environmental Impact Statement/ Environmental Impact Report (" Draft EIS/EIR") and on the Supplemental Environmental Assessment/Recirculated Supplemental Draft EIR. See, for example, TPGs letter dated September 1, 2011 and Hines letter dated September 2, 2011, included in the Final EIS/EIR as comment letter R-BU4 and R-BU6, respectively. The Affected Property Owners continue to be disappointed that LACMTA has failed to sufficiently consider the significant adverse environmental impacts of and feasible mitigations for the construction of the Regional Connector in the Financial District. In particular, the use of cut and cover construction in the Financial District, instead of the use of the tunnel boring machine ("TBM") method, which is being used for virtually all other portions of the line, is highly impactful and consequently violates the California Environmental Quality Act (Pub. Res. Code 21000 et seq.; CEQA). The result of the proposed use of the cut and cover method can only be further delays and costs for the Project. 1. The Failure To Mitigate Significant Adverse Environmental Impacts In The Financial District Is Contrary To The City's Goals Of Economic Growth. The City of Los Angeles (City) has expressed its high priority for development of the Financial District and surrounding downtown areas in its long-term plans and in its support of development projects located in those areas, including without limitation, the Wilshire Grand Hotel project, LA Live, and the Grand Avenue project. Yet, the Project as currently designed would create substantial unmitigated adverse impacts over a period of years on traffic, transit, vehicular and pedestrian access, local businesses, parking, and safety, all of which will serve to limit leasing and rental opportunities and prices at a time when this area of downtown is just starting to show signs of recovery. LACMTAs refusal to avoid or mitigate these significant impacts in the Financial District, as it has done in other areas, by refining the Project to use the TBM method of construction is squarely incompatible with all of the goals and policies promoting downtown development. While future plans for the development of other districts in the downtown area, e.g., Little Tokyo, should certainly be encouraged, at the same time it must be recognized that the Financial District and its substantial infrastructure already exist and serve as a key economic driver for the entire region. The continued revitalization of the Financial District is critical to any plans for renewing the greater downtown Los Angeles area and is the catalyst for the other

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developments along the light rail line. Damaging the vitality of the downtown core will hinder, not promote, economic renewal in the whole area. As such, it is puzzling that LACMTA should focus its priorities elsewhere along the line. 2. CEQA Mandates Mitigation Of The Cut And Cover Construction Impacts In The Financial District, As Is Done For Little Tokyo. The Affected Property Owners, who are developers, owners, and/or property managers of predominantly sustainable, transit-oriented developments, do support mass transit, and the Regional Connector, specifically, as an overall matter. However, the Affected Property Owners have significant economic interests in ensuring that the construction impacts of the Regional Connector on the tenants, employees, patrons, and visitors of their respective Affected Properties are avoided or at least minimized to the greatest extent possible. This is not just a matter of mistaken priorities on LACMTAs part. As shown by the significant involvement of legal counsel, it should be recognized that CEQA mandates that the significant environmental impacts created by the construction of the Project be avoided or reduced through revisions to the Project, adoption of all feasible mitigation measures, and consideration of alternatives. The Final EIS/EIR fails to meet these tests. The Final EIS/EIR acknowledges that the overall construction impacts of the Project have been reduced, many to a less than significant level particularly in Little Tokyo and in the Financial District on Flower Street between 3rd and 4th Streets by eliminating cut and cover construction and replacing it with use of the TBM. As the Final EIS/EIR states, that refinement reduces the number of business acquisitions required, reduces the need for road and sidewalk closures, property acquisitions, job displacement and overall neighborhood disruption. In addition, mitigation measures have been refined and expanded in those areas. By contrast, however, the significant impacts in the Financial District created by the cut and cover construction employed along Flower Street between 4th and 7th Streets remain unresolved. In fact, the Final EIS/EIRs conclusions that other impacts along Flower Street between 4th and 7th Streets are less than significant are legally suspect, as they are not based on substantial evidenceeither the mitigation is improperly deferred or the proposed mitigation is so vague as to be meaningless. The Final EIS/EIRs excuse for failing to reduce or avoid these impacts is that the refinement to the Project and the mitigation measures employed in Little Tokyo and on Flower Street between 3rd and 4th Streets are not practicable or not feasible for the Financial District, but, as with many of its other conclusions, the Final EIS/EIR fails to support these bald conclusions with substantial evidence. The failure to provide feasible mitigation for such impacts, and to evaluate alternatives to avoid those impacts, renders the Final EIS/EIR fatally flawed under CEQA. CEQA accords lead agencies discretion in environmental reviews, but CEQA compels government first to identify the environmental effects of projects, and then to mitigate those adverse effects through the

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imposition of feasible mitigation measures or through the selection of feasible alternatives (Sierra Club v. State Board of Forestry (1994) 7 Cal.4th 1215, 1233); see also, Mountain Lion Foundation v. Fish & Game Commission (1997) 165 Cal.4th 105, 134 [CEQA contains a substantive mandate not to approve a project with significant environmental effects if there are feasible mitigation measures or alternatives that can substantially lessen or avoid those effects].) Impacts on the Affected Properties created by the cut and cover construction method and the need for a temporary construction easement include: Adverse vehicular access and circulation impacts to the Affected Properties resulting from barriers or grade differentials created by work on Flower Street. Adverse impacts to pedestrians, many of whom are employees and visitors to the Affected Properties, resulting from barriers or grade differentials created by the work on Flower Street. Adverse health and safety impacts to the retail, office and restaurant tenants, customers and visitors resulting from interruption to access to the Affected Properties during the cut and cover construction during emergency conditions. Adverse health and safety impacts to disabled retail, office and restaurant tenants, customers and visitors resulting from interruption to access to the Affected Properties during the cut and cover construction during normal as well as emergency conditions. Adverse impacts to the retail, office and restaurant tenants resulting from any interruption to access to the Affected Properties during the cut and cover construction. Adverse impacts to downtown traffic flow due to the interference with the Flower Street stop for transit, shuttle and other modes of transportation between 4th and 7th Streets, including the size or ease of access to those stops. Adverse impacts to freeway on-ramps and off-ramps resulting from the grade differentials (essentially giant speed bumps) at the intersections of 5th Street and Flower Street and 6th Street and Flower Street. Construction noise and vibration impacts on tenants and business owners. General mitigation measures have been identified in the Final EIS/EIR; however, no mitigation measure has been specifically identified to address the substantial change in ambient noise and vibration levels in the immediate vicinity of the Affected Properties. Two of the Affected Property Owners, the Westin

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Bonaventure Hotel and Suites and The California Club, are particularly affected by these impacts, as their businesses serve sensitive receptors. The Final EIS/EIR does not dispute these significant adverse impacts. Indeed, it acknowledges the need for mitigation of significant construction impacts in other areas of the Project, and notes that many of these impacts, previously affecting Little Tokyo and Flower Street between 3rd and 4th Streets have been avoided or reduced by employing the TBM. No plausible analysis is offered why this mitigation cannot be employed elsewhere, particularly in the Financial District. For example, when employed generally, Mitigation Measures TR-12 and 13 do not reduce the Projects construction impacts on public transportation to a less than significant level; however, when employed in Little Tokyo, they do. (See, e.g., Final EIS/EIR page ES-49.) The only difference between the disruption in transit experienced by the Affected Properties in the Financial District and that experienced in Little Tokyo is the fact that in Little Tokyo, the Project has been refined to include use of the TBM. 3. The Final EIS/EIR Lacks Substantial Evidence That The TBM Cannot Be Used In The Financial District Between 4th and 7th Streets. The Final EIS/EIR claims with scant analysis that the TBM cannot be used in the Financial District to reduce construction impacts caused by the cut and cover construction technique due to physical constraints and, therefore, the impacts created by the cut and cover technique can be adequately mitigated. Neither claim has any merit. The Final EIS/EIR contains no substantial evidence supporting its conclusion that use of the TBM is infeasible or impractical. It asserts that use of the TBM would be hindered south of 4th Street due to existing tie-backs that would have to be removed, rendering the technique not practicable, and that use of this excavation technique would not be feasible for constructing a proposed pocket track and possible crossover. However, for example, there is no evidence that: The number of such tie-backs that exist south of 4th Street, or how they are located in the path of the TBM; Similar tie-backs are not present in the Little Tokyo area along 2nd Street or on Flower Street between 3rd and 4th Streets where the TBM will now be used; Tunneling would in fact have to be halted to address the tie-backs; Why addressing the tie-backs would render the use of the TBM not practicable, and what LACMTA means by the term not practicable; Whether the TBM would crunch through a tie-back, like a propeller getting caught in a net, and whether this would cause health and safety concerns;

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Whether the tie-backs, even if only present in the Financial District and not in Little Tokyo or on Flower Street between 3rd and 4th Streets, render the use of the TBM legally infeasible under CEQA, and, if so, why; Why cut and cover is no longer needed between 3rd and 4th Streets (see Final EIS/EIR, page F4-83); Why use of the TBM would be legally infeasible in the Financial District due to the possibility that a pocket track, and to the even more remote possibility that a crossover, may be built in this location; Why a pocket track is necessary between 4th Street and 6th Street; Why use of the TBM would be precluded now, should a Flower/5th/4th station be built in the future (see Final EIS/EIR, page F4-82); How the existence of tie-backs makes the use of the TBM method not practicable when it has been successfully used in other highly urbanized areas with existing tie-backs in the path of the TBM, such as in Seattle, Washington.

Without such evidence supporting its conclusions, the Final EIS/EIRs conclusions are fatally flawed under CEQA, and cannot suffice to support its failure to adopt the same refinement to the Project in the Financial District as has been adopted in Little Tokyo and on Flower Street between 3rd and 4th Streets to reduce the same significant impacts that the Project will create in the Financial District to the Affected Properties and Affected Property Owners. 4. The Final EIS/EIR Lacks Substantial Evidence That The Adverse Impacts Of The Cut and Cover On The Affected Properties Will Be Mitigated To A Less Than Significant Level And Defers Mitigation. In addition to lacking substantial evidence supporting its conclusion that use of the TBM is infeasible or impractical, the Final EIS/EIR fails to provide substantial evidence that the adverse impacts of the cut and cover construction will be mitigated to a less than significant level, where that claim is made. Similarly, the Final EIS/EIR violates CEQA by deferring the mitigation of the adverse impacts. (See, e.g., Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 92 [When setting aside a citys promise to adopt a greenhouse gas reduction plan in the future to mitigate a projects significant impacts, the Court of Appeal noted that[n]umerous cases illustrate that reliance on tentative plans for future mitigation after completion of the CEQA process significantly undermines CEQAs goals of full disclosure and informed decisionmaking]; San Joaquin Raptor Rescue Ctr. v. County of Merced (2007) 149 Cal.App.4th 645, 670 [If [t]he success or failure of mitigation efforts may largely depend on management plans that have not yet been formulated, and have not been subject to analysis and review within the EIR, the EIR is defective].) For example:

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The Final EIS/EIR does not sufficiently address how impacts to vehicular access and pedestrians, in particular pedestrians with disabilities, will be mitigated. Instead, the response to Comment R-BU4-5 simply states that any decking configurations would be designed to safely accommodate the undercarriage and overhead clearances of vehicles using the driveways, garages, and loading docks. Similarly, it states that decking configurations would require construction of ADA-compliant ramps and accesses as well as modifications to vehicular access points (See Final EIS/EIR, pages F4-70, F4-64, F4-83.) Both statements are simply vague conclusory statements regarding mitigation that will be attempted in the future, but that has not yet been designed. In other words, the Final EIS/EIR offers only deferred mitigation in violation of CEQA. By contrast, CEQA requires that the Final EIS/EIR provide specific mitigation measures to address these impacts not only to ensure that the level of the impact will indeed be reduced to a less than significant level, but also to determine whether the mitigation, itself, creates any other impacts that must in turn be addressed. The EIS/EIR does not specify how access to businesses, restaurants and retail establishments will be maintained during construction, but merely assures that it will. Vague language about installing signs and directing pedestrians to nearby crosswalks is not sufficient. Neither is a bald statement that [n]o restaurants or other businesses on the referenced property would be required to close as part of construction activities (see, e.g., Final EIS/EIR, page F4-74), which patently ignores indirect economic impacts on such businesses caused by discouraging patrons. The EIS/EIR does not specify how vehicular access to buildings and parking garages will be maintained during construction, but merely assures that it will. Mitigation Measure TR-1 simply states that a traffic management and construction mitigation plan will be devised. The Final EIS/EIR further ensures that [a]ny decking configurations would be designed to accommodate the undercarriage and overhead clearances of vehicles using the driveways, garages and loading docks. (Pages F4-71, F4-73; emphasis added.) Once again, the Final EIS/EIR has deferred critical mitigation, and has done so even when the standards and mitigation methods are readily available now. In fact, the Final EIS/EIR fully acknowledges that [i]t may not be possible to keep all vehicular entrances to garages open at all times during operating hours, but [LACMTA] would ensure that access is provided via other vehicular entrances during those times so that the garages can continue to operate. (Final EIS/EIR, page F4-74.) However, some of the Affected Properties (such as the Citigroup Center, Westin Bonaventure Hotel and Suites, and The California Club Properties) have limited garage entrances, and alternative vehicular access is

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simply not available. Under such circumstances, this approach under Mitigation Measure TR-1 is not feasible, and cannot reduce the level of this impact. Therefore, an unacknowledged significant impact remains. The EIS/EIR does not specify how it would ensure the safe evacuation of buildings during construction in the event of an actual fire or other emergency at one of the Affected Properties. Instead, Mitigation Measure SS-15 simply states that LACMTA shall protect public use of work areas and keep them clear of obstructions. However, this statement is not supported with specific strategies for how this outcome will be achieved: how will safe pathways be created; where will people be able to congregate away from the emergency and from emergency personnel; how disabled, injured or impeded individuals will be directed or handled; whether construction will be halted and equipment and vehicles moved, etc. Again, the Final EIS/EIR merely assures that [LACMTA] would not allow construction activities to impede safe evacuation of the retail area or access for emergency personnel at any time (page F4-75), without providing any specifics. Concerns raised regarding ADA access and decking for the Affected Properties have not been addressed. No mitigation measure guarantees that ADA access and decking for the Affected Properties will be installed at existing grade level or that ADA-compliant ramps and accesses would be provided. By contrast, Mitigation Measure SS-9 guarantees an ADA accessible connection for the 2nd/Hope Street station to Upper Grand Avenue. Yet, the Final EIS/EIR includes no such mitigation measure for the Affected Properties, some of which suffer equally severe grade differentials.

Without such evidence supporting its claims of mitigation, the Final EIS/EIRs conclusions are fatally flawed under CEQA. 5. LACMTA Is Required To Compensate The Affected Property Owners For Damages Due To Their Loss Of Business. Under California eminent domain law, LACMTA is, of course, required to compensate the Affected Property Owners for the damages they suffer due to their loss of business opportunities resulting from the construction of the Project, including, where applicable, the value of the final Temporary Construction Easements ("TCE") that may be taken (see, e.g., Pierpont Inn, Inc. v. State (1969) 70 Cal.2d 282 [noise, dust and disturbing vibrations caused by heavy equipment during construction of freeway interfered with use of adjacent hotel]), and to pay severance damages for the impact of the taking on the remainder of the respective Affected Properties (see, e.g., Metropolitan Water Dist. of So. California v. Campus Crusade for Christ, Inc. (2007) 41 Cal.4th 954 [temporary severance damages resulting from the construction of a public project are compensable if the construction interferes with the property owners actual intended use of the property]). The potential impacts on the tenants and visitors to the City

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National Plaza and Towers, Citigroup Center, Westin Bonaventure Hotel and Suites and the California Club could be very substantial unless the impacts of the cut and cover construction are truly mitigated. Use of the TCE for anything other than preserving vehicular and pedestrian access and for separating pedestrians on the sidewalks from the street work by K-rails and fences along the specific areas of the property lines of the Affected Properties would potentially disrupt the ability of tenants and visitors to use the stores, restaurants, offices, parking and parking garages in the Affected Properties in a normal fashion, as a result of impaired access, noise and vibration from work that is contemplated immediately adjacent to those properties. Any such disruption to the tenants will give rise to claims by those tenants that such disruption has caused them to incur damages. Moreover, prospective new tenants will likely consider several years of disruption and inconvenience to be a major impediment to entering into leases at the Affected Properties. Downtown office space is currently extremely competitive and lessees have a wide range of choices. It is possible, even likely, that any disruptive work adjacent to or on the Affected Properties will cause potential lessees to divert to other spaces in the area or to leave the Downtown market instead of leasing at the Affected Properties. The impairment of the Affected Property Owners existing leases and the loss of even one or two new leases for any Affected Property Owner could reasonably cause tens of millions of dollars in damages to that Affected Property Owner, all of which would be compensable as severance damages by the taking of the TCEs, if such easements permit any obstruction or impairment of access to the Affected Properties by tenants or visitors. Such severance damages would add substantially to the cost of the Regional Connector Project, and unnecessarily so, since use of the TBM method would obviate the need for TCEs altogether. Of particular concern to the Westin Bonaventure Hotel and Suites and The California Club are the significant disruption, noise and vibration impacts that the cut and cover method will create, since those impacts will in turn create substantial adverse economic effects on their businesses. The Westin Bonaventure Hotel and Suites, as its name implies, provides lodging to sensitive receptors as its core business; The California Club also provides lodging as well as club and restaurant facilities. The substantial business losses both Affected Property Owners will suffer, and for which they will be entitled to be compensated, would be substantially reduced if the TBM method, rather than cut and cover method, were employed. 6. LACMTA Should Incorporate TBM Into The Final Blocks Of The Project, As Required By CEQA. The fact that the Financial District, the area of the Project with the most impacts and economic risk, is the only area of the main line of the Project not to be mitigated by the use of the TBM is simply inexplicable from a policy and practical standpoint. The alleged excuses for not utilizing TBM for the remaining three blocks in the Financial District are so devoid of factual support that it appears LACMTA, perceiving itself to be short of funds and under purely political pressures to invest its resources elsewhere, simply contrived some cobbled-together reasons why

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tunneling could not be used in the Financial District blatantly ignoring the economic exigencies and the clear violations of CEQA involved. Even if the cost of tunneling could be greater than cut and cover and on full analysis it is not clear it would be CEQA does not allow LACMTA to cause the public and Affected Property Owners to bear the substantial consequences of its unwillingness to mitigate the Project's impacts. (See, e.g., Citizens of Goleta Valley v. Bd. of Supervisors (1988) 197 Cal.App.3d 1167, 1181 ["The fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible. What is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project."].) LACMTA still has the opportunity to avoid these substantial impacts and the risk and delays of CEQA violations by incorporating TBM into the remaining blocks of the Project. The Affected Property Owners are willing to work with LACMTA to find ways to make TBM effective and affordable. What they are not willing to do and what CEQA does not require them to do is to shoulder a huge economic burden of adverse project impacts when there are feasible methods that can be incorporated in the Project to avoid these impacts. We hope LACMTA, on further consideration, will reach the same conclusion. We look forward to additional discussions toward this end. [Signatures follow on next page]

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Sincerely, GILCHRIST & RUTTER Professional Corporation

Robert I. McMurry Attorneys for Thomas Properties Group, Inc. DLA PIPER LLP (US)

Ryan Leaderman Attorneys for Hines CHRISTOPHER SUTTON LAW OFFICES

Christopher Sutton Attorneys for The Westin Bonaventure Hotel and Suites HILL FARRER & BURRILL, L.L.P.

Kevin Brogan Attorneys for The California Club

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cc: Los Angeles County Metropolitan Transit Authority Board of Directors Antonio R. Villaraigosa, Mayor, City of Los Angeles Michael D. Antonovich, Los Angeles County Supervisor, 5th District Diane DuBois, Vice Mayor, Lakewood John Fasana, City Council Member, Duarte Jos Huizar, City Council Member, Los Angeles Richard Katz, City of Los Angeles Don Knabe, Los Angeles County Supervisor, 4th District Gloria Molina, Los Angeles County Supervisor, 1st District Ara Najarian, Mayor, City of Glendale Pam OConnor, City Council Member, Santa Monica Mark Ridley-Thomas, Los Angeles County Supervisor, 2nd District Mel Wilson, City of Los Angeles Zev Yaroslavsky, Los Angeles County Supervisor, 3rd District Michael Miles Arthur T. Leahy, Chief Executive Officer, Metro Martha Welborne, Executive Director, Countywide Planning, Metro Jan C. Perry, City Council Member, Los Angeles

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