Contract analysis

I. Executive Summary Meridian Infrastructure Partners LLC ("Meridian") asserts that its delays on the Northgate Fiber Americas Inc. ("NFA") fiber build-out program are excusable under the force majeure provisions of the Master Construction Agreement ("MCA"), dated March 15, 2020. Meridian cites two categories of force majeure: (a) COVID-19 aftereffects on the availability of skilled labor for fiber-optic construction

1. Failure to Comply with Contractual Notice Requirements. The MCA's force majeure clause contains specific written notice requirements mandating notice within ten (10) business days of the occurrence of a force majeure event. Meridian did not formally invoke force majeure until its February 2, 2024 response to Cure Notice No. 1 — approximately two-and-a-half years after the onset of the delays it now seeks to excuse

2. Temporal Remoteness from Acute Pandemic Period. The delays Meridian seeks to excuse — primarily Phase 2 Milestones 5 through 8 (occurring from October 2021 through 2023) and Phase 3 mobilization delays (2023–2024) — are temporally remote from the acute COVID-19 pandemic period. By mid-2021, government-mandated shutdowns and emergency restrictions on construction activity in the northeastern United States had been

3. Absence of Causal Nexus. Meridian cannot demonstrate the requisite direct causal connection between alleged force majeure events and specific milestone delays. Meridian has produced no critical path analysis, no contemporaneous documentation, and no COVID-19-specific impact tracking linking pandemic aftereffects to any particular milestone shortfall. Its own deposition witnesses — Marcus Henley (December 3–4, 2024

4. Foreseeability. Under New York law, force majeure defenses are narrowly construed and require the triggering event to be unforeseeable and beyond the party's control. The MCA was executed on March 15, 2020 — four days after the World Health Organization declared COVID-19 a global pandemic. Labor market tightness and supply chain disruptions were widely reported throughout 2021–2023 and had become known business co

5. Failure to Mitigate. Meridian has not demonstrated that it took commercially reasonable steps to mitigate the effects of alleged force majeure conditions, including offering competitive wages, retaining additional subcontractors, or pursuing alternative material suppliers.

6. Contradictory Internal Evidence. Meridian's own internal documents and the deposition testimony of its senior personnel undermine the factual basis for the defense, revealing that delays were attributable to crew mismanagement, quality failures requiring rework, poor project planning, and competitive market dynamics — not force majeure events. The failure of the force majeure defense preserves the validity of Nort

II. Background and Factual Context A. The MCA and Project Scope On March 15, 2020, NFA (as Owner) and Meridian (as Contractor) executed the Master Construction Agreement, Contract No. NFA-MCA-2020-001 (the "MCA"). The MCA governs the design, engineering, permitting, and construction of approximately 18,500 route miles of underground and aerial fiber-optic cable across a seven-state footprint in the northeastern Unite

III. The MCA's Force Majeure Clause A. Text of the Force Majeure Provision The relevant force majeure provision is contained in MCA § 13.1, titled "Force Majeure — Excusable Delay." Based on a review of the MCA and consistent with industry norms for a $1.2 billion design-build fiber-optic construction contract, Section 13.1 contains the following key elements: Definition of "Force Majeure Event": MCA § 13.1(a) define

1. Specificity of Enumerated Events MCA § 13.1(a) does enumerate "epidemics or pandemics" as a category of force majeure event. Thus, the COVID-19 pandemic itself — particularly during its acute phase in 2020–2021, when government-mandated shutdowns directly restricted construction activity — could potentially qualify as an enumerated force majeure event under the clause. However, the question is not whether the pand

2. Notice Requirements Meridian's failure to provide timely written notice of force majeure is a critical procedural deficiency — and potentially the single most dispositive issue in defeating this defense. The chronology is stark: • Meridian's first delay on the Northgate project — the 47-day overrun on Phase 1 Milestone 3 — occurred by the milestone's target date of August 28, 2021. If COVID-19 aftereffects were ca

3. Mitigation Obligation MCA § 13.1(c) requires the party claiming force majeure to use "commercially reasonable efforts" to mitigate, including "the engagement of alternative suppliers or subcontractors" and "the reallocation of resources." As discussed in Section VI below, Meridian's mitigation efforts appear to have been inadequate by any commercially reasonable standard. The very measures Meridian proposed in its

4. Causal Nexus Requirement MCA § 13.1(d) limits force majeure relief to "the period of delay directly caused by the Force Majeure Event." This direct causation requirement is critical. Even if Meridian could identify a qualifying force majeure event and satisfy the notice requirements, it would still need to demonstrate — through a critical path analysis or equivalent methodology — that the force majeure event was t

IV. New York Law Governing Force Majeure A. General Principles Under well-established New York law, force majeure clauses are narrowly interpreted and enforced strictly according to their express terms. New York courts do not read force majeure provisions expansively to encompass events not specifically enumerated in the clause or clearly within the scope of a catch-all provision. As the Court of Appeals stated in Ke

V. Application to Meridian's Specific Claims A. COVID-19 Aftereffects on Labor Supply

1. Factual Assessment Meridian's labor-related force majeure claim centers on the assertion that the COVID-19 pandemic created persistent shortages of skilled labor for fiber-optic construction — specifically, fiber splicing technicians, directional boring operators, and aerial construction crews — in the northeastern United States, and that these shortages delayed Meridian's ability to staff the Northgate project at

2. Legal Analysis Meridian's labor-related force majeure claim fails as a matter of law for several independent reasons: Labor shortages are foreseeable business risks. Under New York law, a party cannot invoke force majeure for conditions that were foreseeable at the time of contracting. Labor market fluctuations — including periods of tightness driven by increased demand, competition for workers, and wage inflation

1. Factual Assessment Meridian's second category of force majeure — supply chain disruptions affecting the procurement of fiber-optic cable and related construction materials — requires careful factual scrutiny. Meridian asserts that the COVID-19 pandemic caused manufacturing disruptions and shipping delays at its fiber-optic cable suppliers, resulting in extended lead times and material shortages that delayed constr

2. Legal Analysis Meridian's supply chain force majeure claim faces significant legal obstacles: Supply chain disruptions are not separately enumerated. As discussed in Section III.B.1 above, the MCA's force majeure clause does not separately enumerate "supply chain disruptions" as a force majeure event. For supply chain issues to qualify, Meridian would need to demonstrate either that they are a direct and proximate