City officials decreed some time ago that the late Paul Conrad’s sculpture, CHAIN REACTION, was “dangerous,” and would require approximately $200,000 to over $400,000 to fix, which the City was not prepared to pay. Subsequently, the City gave residents six months in which raise the requisite funds themselves.
Santa Monica lawyer Ken Kutcher (Harding Larmore Kutcher Kozol LLP) has examined the record –- from the making of Chain Reaction, including detailed analyses of the materials used in its construction, to the City officials’ recent condemnation of it.
Herewith, Mr. Kutcher’s report.
This letter is written on behalf of Dave Conrad, son of artist and political cartoonist Paul Conrad. This letter addresses Chain Reaction.
We have reviewed the Staff Reports, consultants’ reports, acquisition agreement, and correspondence regarding the Chain Reaction sculpture in the Civic Center. We are writing to help clarify some potential misconceptions about the existing condition of Chain Reaction and its maintenance and any needed repairs.
· To date, the City’s testing has not revealed any significant danger to public safety from the sculpture — only speculation as to possible risks.
o A structural design for the sculpture was prepared by a licensed structural engineer.
o The sculpture was apparently built in compliance with the building regulations in effect when it was constructed.
o A licensed contractor installed the concrete foundation and the steel structure that supports the artistic chains.
o The recent test results of the copper links were favorable.
o Recent X-rays of the welded connections of the steel members at the base of the sculpture did not reveal any concerns.
o Recent lab test on the fiberglass shell for structural integrity did not cause immediate concern.
o Recent tests confirmed that high-strength aggregate was used in the concrete base.
o The stainless steel armature does not show any sign of significant rusting.
· Although permits and inspection records have not been located by the City, the City’s agreement governing the sculpture’s construction stated that such permits and inspections would be required, and the City administered the grant money that paid for the sculpture, so there is little reason to speculate more than 20 years later that the permits and inspection of this previously-debated public art may not have been performed.
· The materials used in the sculpture’s construction are suitable, if not preferable, for this sculpture.
o Copper provides more stable patinas than would bronze in this coastal location.
o The sculpture’s core is a sturdy stainless steel frame supported by a substantial steel structural center post.
o The fiberglass components do not bear critical structural loads.
o There are no identified problems with the fiberglass, the screws or the joints in the copper tubing.
· Over the course of the past 20 years, the City does not appear to have performed any of the periodic maintenance that was contemplated in the City’s agreement for construction of the sculpture.
· The costs of repair used in the Staff Reports appear to be over-inclusive:
o They include more than $20,000 that had already been spent on testing.
o They also include $15,000-$20,000 for additional testing that is currently underway.
o They include $56,000-$80,000 for future landscaping.
o Using the City’s own estimates, the cost of repair and conservation for this landmark public art could be as low as $120,000.
· The sculpture has recently been designated as a City Landmark and thus cannot be removed without the necessary findings under the Landmarks Ordinance.
· The Landmarks Ordinance imposes a legal obligation on the City to repair and maintain this publicly-owned landmark.
A more detailed discussion of these points is set forth below.
To Date, No Particular Danger Has Been Identified
The City has retained art conservators, a structural engineer, and a materials testing company to evaluate the sculpture’s safety. To date, no danger has been identified — only speculation about possible risks.
The City’s art conservators found:
“From our limited observation, it appears that the stainless steel armature had welded connections and did not exhibit any sign of rusting. Minimal surface corrosion was observed on the central ‘flag pole.’ “ Rosa Lowinger & Associates Interim Notes, Nov. 18, 2011, p. 4.
They also found:
“The upper structure on the mushroom cloud was documented as being well built to specification far more rigorous than those shown on the original document.” Id.
The City’s materials testing service found that other than a 11⁄4” thick plate that caps the inner structure of the mushroom cloud, “[T]he extent of corrosion of all other structural members . . . appear[s] to be surface corrosion.” (Twinning, Inc., May 30, 2012, p. 2.) Approximately 18 to 20 inches of anchor bolt was exposed below the steel base plate, and “[n]o corrosion was observed on the embedded portion of the subject anchor bolt.” (Id. at 3.) In testing the fiberglass for flexural strength, the testing service found, “[A]lthough ultraviolet exposure will affect the material strength degradation over time, it is inconclusive based on this testing to confirm that the large deviation in the strength between the two samples was caused by more exposure to sunlight from one are versus the other.” (Id. at 3 & 4.) Based on such testing, the City’s testing company “make[s] no statement of compliance or noncompliance to the project specification or standards.” (Id. at 4.)
The City’s structural engineers found:
· A structural design for the sculpture was prepared by a licensed engineer (Richard Ranous).
· The structural design was found to be in compliance with the building code regulations in effect in 1990 (i.e., the California Building Code based on the 1988 edition of the Uniform Building Code published by the International Conference of Building Officials).
· A licensed contractor (George C. Hopkins Construction Company, Inc.) installed the concrete foundation and the steel structure that supports the fiberglass and chains. The contractor “used standard construction practice to build their portion of the structure.”
· Carlson Arts, LLC manufactured the fiberglass portion of the sculpture. Not surprisingly, they do not have records going back 20 years to when the sculpture was completed.
The February 1, 2012 Staff Report to the Arts Commission and Public Art Committee confirms:
“The copper links were tested to determine strength and failure thresholds. The results were favorable in confirming that the welded seams would not fail under nominal pressure. The tests also revealed that substantial force would be required to pull a copper link from its mounting on the fiberglass shell.” (Emphasis added.) Arts Comm’n & Public Art Comm. Staff Report, Feb. 1, 2012, p. 3.
The February 2012 Staff Report to the Arts Commission and Public Art Committee also confirms:
“The welded connections of the steel members at the base of the sculpture were x-rayed to determine possible damage and to assess their structural integrity. Results of this radiography test did not reveal concerns regarding the welded connections in the area examined . . . .” (Emphasis added.) Id.
The February 2012 Staff Report to the Arts Commission and Public Art Committee also confirms:
“Laboratory tests were performed on samples of the fiberglass shell for structural integrity and effects due to exposure to the elements. Although the results do not cause immediate concern, the results are inconclusive . . . .” (Emphasis added.) Id.
The February 2012 Staff Report to the Arts Commission and Public Art Committee also confirms:
“In determining the suitability of the sculpture’s structural concrete foundation . . . [c]ore samples were extracted in two areas where the compressive strength of the concrete foundation would be determined . . . the tests confirmed concrete with high-strength aggregate . . . .” (Emphasis added.) Id.
These same results were reported to the City Council. (City Council Staff Report, March 20, 2012, p. 4.)
The City Does Not Appear To Have Performed Any Of The Anticipated Periodic Maintenance
The Staff Reports make no mention of the City’s duty to maintain this public sculpture. However, Paragraph 7 of Agreement Number 5657 (CCS) dated March 18, 1991, provides that after the first year, “[T]he City shall be responsible for the ordinary maintenance of the [sculpture] including all repairs of the [sculpture] necessitated by ordinary wear and tear.” Indeed, Paragraph 4 provides that all contracts, maintenance instructions and specifications would be attached to the Agreement.
There is no evidence that over the course of the past 20 years, the City has performed any periodic maintenance of this sculpture, which was a $250,000 gift to the City.
The Staff Report also does not state whether the City obtained, retained or adhered to the “detailed maintenance instructions” that were called for under the Agreement. (Agreement # 5657, ¶s 3(b), 4, 5(d).) Indeed, Paragraph 5(d) provided that the City would receive those detailed instructions concurrently with the City’s final written acceptance of the art. Did the City fail to ask for them? Or did the City disregard them? Or did the City perhaps lose them?
In All Likelihood, Permits And Inspections Were Done At The Time Of The Sculpture’s Construction
The Staff Reports suggest that the sculpture may have been built without any permits or inspections:
“No records were found to confirm that the sculpture received review from the City’s Building and Safety Division or that a building permit was issued. Without a valid permit on file, it could not be confirmed that inspection of critical elements of the sculpture occurred.” City Council Staff Report, Mar. 20, 2012, p. 3; Arts Comm’n & Public Arts Comm. Staff Report, Feb. 1, 2012, p. 2.
This is all extremely speculative. Remember, this sculpture was not a secret. To the contrary, as the Staff Report indicates, the sculpture was the subject of “extensive public process and debate.” There is no reason to suspect that the sculpture was “bootlegged.”
Furthermore, the Agreement provided that the sculpture would be constructed with permits and inspections. For example, in Recital E of the Agreement, the City acknowledges and agrees that performance of the obligations under the Agreement was contingent on the issuance of all permits. And Paragraph 9 provides, “[T]he City shall inform Artist of any permits, authorizations, or licenses required directly by the City of Santa Monica.” Similarly, Paragraph 13 provides that Conrad would comply with all applicable laws, ordinances, rules and regulations. Paragraph 13 specifies that this duty included “all applicable building and safety codes and regulations.”
Per the Agreement, the City also made progress payments and a final payment upon completion of the sculpture. Are we to believe that the City administered a $250,000 grant without performing the necessary inspections, issuing the requisite permits and performing a final inspection and signoff for a monumental and controversial public sculpture in the heart of the Civic Center? That is simply implausible.
Indeed, Paragraph 5(c) of the Agreement provides that:
“[P]rior to approval of each phase of the Work, the City shall have the right to test the portion of the Work completed, including, but not limited to, the modular components, and the fully assembled Work, for structural integrity and quality of workmanship.”
And Paragraph 6 provides:
“Upon reasonable notice to the Artist, the City and the Foundation shall have the right, at mutually agreed upon hours, to inspect and review the progress of the Work.”
Why doesn’t the City believe this was done?
Over the years, our firm and our clients have found that the City’s permit files are not always complete. This could be especially true for a sculpture without a typical street address. I have confirmed with the Coastal Commission Staff Analyst that he recalls issuing a de minimus coastal development permit waiver for this sculpture.
The Materials That Were Used In Its Construction Are Suitable, If Not Preferable, For This Sculpture
In the February and March 2012 Staff Reports, concerns are raised about the materials used in the construction of the sculpture:
“The original Council staff report states that the work will be made of bronze, which would require little or no maintenance. However, as actually fabricated, the sculpture is made of copper tubing over a fiberglass core with an internal frame of stainless steel. These materials, while durable, do not have the same permanence in an outdoor setting as cast bronze.” City Council Staff Report, Mar. 20, 2012, p. 2; Arts Commission & Public Art Committee Staff Report, Feb. 1, 2012, pp. 1-2.
Dave Conrad has consulted with an art conservator, Steve Colton. He is the past head of the objects conservation section and Objects Conservator of the Los Angeles County Museum of Art. His other clients have included Hearst Monument at San Simeon, the Norton Simon Museum, the Huntington Art Museum, the California Museum of Science and Industry, the Japanese American National Museum, the Miho Museum, the Palm Springs Desert Museum, the Museum of Modern Art New York, and the Santa Barbara Museum of Art.
Mr. Colton’s preliminary reaction to City Staff’s current concerns about the materials of the sculpture are as follows:
“In the [City Staff Reports] it is stated that ‘bronze would require little or no maintenance.’ This is simply incorrect. Cast bronze, even when ‘patinated’ either by natural or artificially induce chemical methods is a form of corrosion that may be relatively stable, but most often requires routine maintenance to ensure that condition, and thus the color intended by the artist. The schedule of this maintenance will be highly dependent upon surrounding environmental conditions. Any site generally within two miles of salt laden air is considered as aggressive to extremely aggressive. In the setting at the Civic Center the complex structure of Chain Reaction is actually at least as good, or as to date demonstrated, better than cast bronze.
“It is very well known that chlorides tend to induce pitting corrosion in metals. This is found on everything from Aluminum (windows) to Ferrous metals ( too many examples), even on the most common form of stainless steel (type 304). One form of this type of corrosion is the infamous so-called ‘bronze disease’ almost always found in ancient excavated bronzes. In fact, finding it within the metal is one of the prime tests of authenticity. Copper in its more pure form as rolled sheeting (Statue of Liberty) or extrusions (Copper pipe on Chain Reaction) tend to form more stable patinas. This is because unlike the open structure of cast metals like bronze the structure of the metal is more closed, squished together, in the forming process.
“The fact that there is little to no proven corrosion on the Copper chain, without any documented routine maintenance procedures over the 20 years of outdoor exposure, proves its durability. This was the same conclusion during the extensive work on the Statue of Liberty in the mid-1980’s, and only re-repair of the Copper skin was performed.
“It is also stated that the ‘core’ of the sculpture is the fiberglass. This also is incorrect. The fiberglass is part of the shell or outer support layers. The core is the center painted steel piping and bolted mounting plate, and the highly corrosion resistant type 316L stainless steel space frame supporting the fiberglass. This is an important differentiation. The fiberglass is not bearing critical structural loads. The steels are doing that chore and there is no proof to date that they were or are inadequate to continue doing that function. More tests are needed, as stated, but there are no negatives in the test results presented to date.
“The fiberglass is supporting the Copper chain through the screw fasteners, but to date all three of those outer shell and decoration elements, the fiberglass, the screws, and the joints in the Copper tubing have either passed their testing with flying colors, or been given ‘inconclusive’ results. The inconclusive results for the fiberglass were not because of failures during testing, simply because to date the samplings submitted to date do not meet statistical criteria of the testing to make a call either way. The results of tests performed on the fiberglass to date were not deemed substandard – even by current criteria. Considering that the materials have 20 years of exposure the results of the tests to date appear to tend toward a positive rather than a negative result.
“To state that the materials used do not have the same permanence as cast bronze, or that the sculpture appears to be unsafe is not supportable by fact, testing, or by the current state of the sculpture.“
Furthermore, Paragraph 5(a) of the Agreement expressly provided that the materials and protective coatings would be “approved in advance by City.” Because the City was to perform periodic inspections during final design and construction prior to making their progress payments and final payment, there is no reason to now believe the City was then unaware of the materials used during construction of the sculpture.
The Costs Of Repair Are Overstated
The Staff Reports assert that “the estimated cost of repair and conservation . . . range from $227,372 to $423,172.” (City Council Staff Report, Mar. 20, 2012, p. 1; Arts Comm’n & Public Art Comm. Staff Report, Feb. 1, 2012, p. 1.) These costs were a bit loosely calculated.
For example, they include $20,715 already spent on testing, none of which has identified any serious defects. They also include $15,870-$20,870 for additional testing currently underway.
They also include $56,000-$80,000 for future landscaping. And they include $18,787-$36,587 as a contingency.
The cost of repair is estimated at $64,000-$200,000, without all of the testing having been completed. This is a wide range (a factor of 312.5%).
The cost of conservation is estimated to be $52,000-$65,000. So the cost of repair and conservation could actually be as low as $120,000, using the City’s estimates. This would be less than half the cost of the sculpture in 1990 dollars.
The Sculpture’s Recent Designation As A Local Landmark Invokes Duties On The City
On July 9, 2012, the Landmarks Commission unanimously designated Chain Reaction to be a City Landmark. The Landmarks Commission found that Chain Reaction: (1) exemplifies, symbolizes or manifests elements of the cultural, social or political history of the City; (2) has aesthetic or artistic interest or value; (3) is identified with a historic person; (4) is a significant example of Paul Conrad’s work; and (5) has a unique location or is an established and familiar visual feature.
The Landmarks Commission’s decision was not appealed and is therefore a final and binding determination.
Section 9.36.190 of the Municipal Code provides:
“Every owner, or person in charge, of a Landmark . . . shall have the duty of keeping in good repair all of the exterior features of such Landmark . . . and all interior features thereof which, if not so maintained, may cause or tend to cause the exterior features of such Landmark . . . to deteriorate, decay, or become damaged, or otherwise to fall into a state of disrepair. All designated buildings or structures shall be preserved against such decay and be kept free from structural defects through the prompt repair of any of the following:
“(a) Façades which may fall and injure members of the public or property.
“(b) Deteriorated or inadequate foundation, defective or deteriorated flooring or floor supports, deteriorated walls or other vertical structural supports.
“(c) Members of ceilings, roofs, ceiling and roof supports or other horizontal members which age, split or buckle due to defective material or deterioration.
“(d) Deteriorated or ineffective waterproofing of exterior walls, roofs, foundations or floors, including broken windows or doors.
“(e) Defective or insufficient weather protection for exterior wall covering, including lack of paint or weathering due to lack of paint or other protective covering.
“(f) Any fault or defect in the building which renders it not properly watertight or structurally unsafe.
“This Section 9.36.190 of this Chapter shall be in addition to any and all other provisions of law requiring such Landmark . . . to be kept in good repair.”
If any owner is bound by such a responsibility, surely the City is, under its own ordinance.
Furthermore, having been designated as a designated City Landmark, Chain Reaction cannot be removed, relocated or destroyed without approval of an application for certificate of appropriateness or certificate of economic hardship that must be processed through the Landmarks Commission. (SMMC § 9.36.170.)