Womble Carlyle Construction Industry Blog

Following the construction industry and related legal topics in the United States.

Tuesday, January 29, 2008

Architecture and the University: Inventing Something Bold and Reinventing the Old

Separate items reported on January 28 in The Chronicle of Higher Education reflect the range of architectural and construction opportunities on today's college campus. At a recent Yale University symposium entitled “Building the Future: the University as Architectural Patron,” speakers promoted innovation and advocated that a campus should consider its physical place in the broader community with “lively, informed discourse about architecture and its role.” See here.

The presentations, of course, included the MIT professor "who is partly responsible for two of the most striking and controversial buildings of the past 10 years — Steven Holl’s Simmons Hall and Frank Gehry’s Stata Center, both at MIT." Speakers suggested that institutions of higher education have a social responsibility to "build well."

By contrast, The Chronicle also noted that eight floors of Chicago's landmark skyscraper, the Pittsfield Building, finished in 1927, will be renovated as dormitory space for students from several nearby Chicago institutions of higher education. The landmark skyscraper "was built for the heirs of the department-store magnate Marshall Field." See here.

Wednesday, January 16, 2008

Can a Letter of Credit Substitute for a Performance and Payment Bond?

An owner was confronted recently with a circumstance in which a contractor that the owner really wanted to use was unable to obtain a bond for the project. The contractor was a small company, but had successfully built other projects for the owner. This project, however, would be the largest ever undertaken by the contractor, and was beyond the contractor's bonding capacity. What to do?

The dilemma was resolved by the contractor by establishing a clean irrevocable standby letter of credit ("LOC") in favor of the owner. While not in the total amount of the contract, the LOC was large enough to give the owner the assurance it needed that if the contractor became stretched too thin and was unable to complete the project in a timely fashion, the owner would have prompt and easy access to funds to complete the project.

If using this device, it is important to make clear in the contract that the LOC will not only be irrevocable but also will be a "clean" LOC, so that the beneficiary (in this case the owner) needs to do nothing more to draw down the LOC than to sign a statement that the other party (in this case, the contractor) is in default under the contract and that pursuant to the contract the owner is entitled to draw down the LOC. (This entry published by Karen Estelle Carey, a member of the Real Estate Development group).

Monday, January 14, 2008

Window Washer Defies Laws – Of Gravity and Nature

In case you haven’t heard around the water cooler, a window washer fell off a 47 story New York skyscraper and lived. Sure he was hurt – some injuries to his brain, spinal column, ribs, abdomen and multiple broken bones in his arm and both legs, but doctors report a miraculous recovery. According to the New York Post, he is talking, watching TV, can move all his limbs, has no paralysis and is expected to walk again.

Since this is a construction industry blog from a law firm, first lets discuss his breach of the law of gravity. According to ABC News, the window washer "fell so far that the force of gravity maxed out and air friction even played a slight role in softening the blow." A physics professor in the article explains that "At a certain point you just don’t go any faster. You hit terminal velocity [124mph]." According to the New York Post article, the window washer was able to hold onto the window washing platform that he was on which likely provided enough air resistance to slow his descent. Newsweek described the scaffolding platform as 16 feet long and weighing 1,250 pounds. A physics professor in the Newsweek article also hypothesized that the window washer’s platform may have hit the side of the building a few times, slowing momentum. Another contributing hypothesis is possible assistance by a wind current updraft flowing through New York’s forest of buildings. He landed on a pile of twisted cables which is a better cushion than flat concrete.

Next, the window washer’s breach of the law of nature. According to the New York Post article, doctors say a fatality will occur in 50 percent of the falls from three or four stories and a fall from over 10 stories is almost always fatal. A doctor at the window washer’s hospital reports the highest he previously heard of anyone surviving is 19 stories. According to a Slate article, that young man was fortunate to hit a tree on the way down which may have slowed down his fall. So how did this window washer survive? According to Slate Magazine, the number one body part to avoid landing on is your head; and secondly your pelvic area. Somehow, the window washer accomplished this feat.

Inquiring readers of this blog may want to know if anyone has ever survived a fall greater than 47 stories which is nearly 500 feet. According to a Guardian Unlimited article, in 1972, a flight attendant holds the world record for surviving a fall, dropping 6.3 miles inside part of a jetliner destroyed in a mid-air bomb attack. A skydiver fell 2.8 miles and only broke his ankle after his main chute got tangled and his reserve chute failed. Clearly, going down with an object – a part of a jet or unopened chute, or hitting a tree on the way down, will slow down velocity. So if you ever find yourself falling a great distance, the Slate article provides a useful tip: "If you're unlucky enough to fall a long distance without anything—like a parachute—to slow you down, it's best to lie flat to increase your surface area in contact with the wind, but be sure to orient yourself feet first before landing." (This entry published by Ken Michael, a member of Womble Carlyle's construction law practice group).