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ON THE MOVE MASER CONSULTING P.A. HIRES FRANCIS J.MILLER, III, P.E. TO LEAD RAIL ENGINEERING SERVICES Maser Consulting P.A. (Hot Firm #16 for 2016), an engineering firm headquartered in Red Bank, New Jersey, announced that it has hired Francis J. Miller, III, P.E. to lead its rail engineering service division. Miller was formerly chief track engineer and director high speed rail for Jacobs Engineering Group . He is the current director of the passenger and transit functional group for the American Railway Engineering and Maintenance-of-Way Association and is based in Maser Consulting’s Hamilton, New Jersey office. Miller has more than three decades

of experience in the planning, design, construction, inspection, and project management of major railway, track, and facility engineering projects. Specializing in transit/ railway engineering, his undertakings have included major rehabilitation, design-build, and new start projects for mass transportation systems throughout the U.S., including light- and heavy-rail transit systems and commuter, high-speed, and freight railroads. “Maser Consulting has been focusing on building up its railway survey and engineering service division through a combination of geospatial and conventional survey methods specific to commuter transit, light- and

heavy rail and street car systems,” explained Leonardo E. Ponzio, vice president and director of survey services for Maser Consulting. “The addition of Frank Miller to our team to oversee the services we already have in place is truly an asset.” Maser Consulting offers advanced survey services to rail customers nationwide through the use of GPS, geospatial survey including mobile LiDAR and the AMBERG GRP system. The firm has been employing standard and creative solutions for capturing comprehensive track geometry and corridor data in the unique rail and tunnel environments backed by a full- range of engineering and design services.

WILLIAM QUATMAN, from page 11

tolerable, that portion of the agreement which is unconscio- nable will be struck as adhesive if it is against public policy. ❚ ❚ Intent. The intent of the parties is sometimes an issue where one party thinks one thing and the other party thinks another. Our intent is judged by our outward conduct, not internal thoughts, as would be interpreted by the average reasonable person. Courts try to determine the intent of the parties by looking only at the “four corners” of the written contract. There is great reluctance to go “outside” the contract, because this opens the door to evidence that is not part of the contract terms. Such evidence is called “parol evidence” and is usually not admissible in court unless the contract is so ambiguous that the court cannot determine the parties’ intent without the aid of such evidence. For this reason, it is common to see an “integration clause” in contracts like: “This Agreement supersedes the parties’ prior proposals, offers and communications and constitutes the entire agreement.” It is, therefore, very important to include all relevant details of the scope of work, and fee and negotiations in the written agree- ment. Parties often do this by incorporating written propos- als into the contract by reference, and attaching them as an exhibit. “You want to be sure you have a proper contract that protects you and your company. Get it in writing, negotiate acceptable terms, and don’t start work until both parties have signed!” In Abraham Lincoln’s 1861 first inaugural address he asked, once a contract is entered into, “can it, as a contract, be peaceably unmade, by less than all the parties who made it? One party to a contract may violate it – break it, so to speak; but does it not require all to lawfully rescind it?” The answer is “yes,” both parties can lawfully rescind a contract by mutual agreement. But more often, it is one party who breaches the contract and that is when you want to be sure you have a proper contract that protects you and your company. Get it in writing, negotiate acceptable terms, and don’t start work until both parties have signed! WILLIAM QUATMAN is an architect and general counsel at Burns & McDonnell Engineering Co. Contact him at bquatman@burnsmcd. com.

of dealing between them which leads the offeror to under- stand that silence means acceptance, or where the parties have agreed by contract that silence means acceptance. Many court cases hold that acceptance can be shown by a party’s ac- tions, such as proceeding with work or accepting payment. Be careful about starting work or services without rejecting the terms of an unreasonable contract proposed by your client. “Contracts can be oral or written, customized forms or industry standard forms, all of which are legal and binding. Even an email exchange or a signed cocktail napkin can form a legal contract.” ❚ ❚ Rejection. Offers are terminated by an express rejection. A “counter-offer” is common where one side makes an offer, by sending a proposal or contract, and the other side sends back a different proposal or a marked up contract. This is not an acceptance of the original offer, but it is a rejection of the of- fer coupled with a counter-offer. This now creates the “power of acceptance” in the original offeror, who can accept the counter-offer, or reject it. We normally see a series of offers and counter-offers before the parties eventually agree on a set of terms and price that they can live with. Until that time, however, there is no contract. Acceptance must be the “mir- ror image” of the offer, so that the terms match. This is also known as “mutual assent” or a “meeting of the minds.” If the two do not match, you have a counter-offer – not a contract. ❚ ❚ Bargained exchanges and adhesion contracts. The law pre- fers fair bargaining in contracts, where there is some give and take in the negotiations (offers and counter-offers). Contracts which are presented on a “take-it-or-leave-it” basis are known as “adhesion contracts” because the terms are merely adhered to by the weaker party, rather than negotiated. Adhesion con- tracts are usually pre-printed forms forced by a stronger party on a weaker party. This does not mean that all AIA, EJCDC, or DBIA contracts are unenforceable. To the contrary, courts only strike those parts of a standardized form which fail to live up to reasonable expectations and which are unconscio- nably unfair. Normally, there is unequal bargaining power involved as well, where the weaker party is compelled to sign under some economic duress. If an adhesion contract is so one-sided that no fair-minded person would view it as just or

THE ZWEIG LETTER November 14, 2016, ISSUE 1176

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