Who Pays for Asphalt Pavement Cracking, Settlement, Heaving....
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Asphalt Pavement Cracking, Settlement, and Heaving:  Why the Contractor Should Not have to Pay for the Repair

Spring is fast approaching and asphalt pavement cracking, settlement, and heaving will also begin to materialize on many projects.  This is a regular occurrence notwithstanding that the contractor has met all of the acceptance criteria during construction.  What happens next is also a common occurrence:  the engineer demands that the contractor repair the damage, which the contractor does at its own expense.  While this is standard practice throughout much of the country, it need not be.   If contractors have met all acceptance criteria, they should likely not have to pay for this!
To protect against having to pay for the cost of repairing cracking, settlement, and heaving, project participants: the contractor, engineer, and owner, need to understand why these problems occur when the contractor has not done anything wrong. 
Although these problems show up in the pavement, they are normally caused by an under-designed subgrade.  For many parts of the country, the on-site soils are cohesive clays and silts.  The problem with these soils is that they retain moisture.  Moisture can enter the subgrade from below through  a returning water table that has previously been dewatered, as well as from above through rain, snow, and/or sleet.  The wet subgrade can then deform once subjected to traffic load.  Since asphalt is a flexible pavement, it will mirror the subgrade deformation.  Combine the wet subgrade with freeze/thaw and the result is typically cracking, settlement, and heaving.
When the flowers bloom this Spring, you can also count on asphalt pavement cracking, settling, and heaving.  As long as you have placed the subgrade materials in proper lifts and at required moisture and density, contractors should likely not be required to pay for the required repair costs.
When this occurs on your projects, make sure you immediately talk with someone who understands both the technical side of this as well as the applicable law.  Get a roadmap so you don't pay when an asphalt pavement project is under-designed. Taking this step will help lead you towards the goal of minimizing risk and maximizing profits on all of your asphalt paving projects.

Thomas R. Olson*
Olson Construction Law, P.C.
1898 Livingston Avenue
West Saint Paul, MN  55118
Tel. (651) 298-9884
Fax (651) 298-0056
* Licensed to Practice Law in: The State of Minnesota (#169079); The State of South Dakota (#3898); The State of North Dakota (#06505); The State of Nebraska (#23887); and The State of Iowa (#AT0010013).
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Copyright © 2017 Olson Construction Law, P.C., All rights reserved.

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