Contract analysis

I. Executive Summary The purpose of this memorandum is to analyze whether the municipal permits required for the fiber build-out program at issue in this litigation were the responsibility of Northgate Fiber Americas Inc. ("NFA" or the "Owner") or Meridian Infrastructure Partners LLC ("Meridian" or the "Contractor") under Section 5.3 of the Master Construction Agreement dated March 15, 2020 (the "MCA"). This question

II. Background A. The Master Construction Agreement The MCA was executed on March 15, 2020 between Northgate Fiber Americas Inc. ("NFA"), a wholly owned subsidiary of Northgate Telecommunications PLC, as Owner, and Meridian Infrastructure Partners LLC, a portfolio company of Ridgepoint Capital Group LP, as Contractor. The MCA is a comprehensive construction agreement governing the design, engineering, permitting, and

III. Text of MCA § 5.3 — Permitting Obligations A. Full Reproduction of Section 5.3 The allocation of permitting responsibilities between the Owner and the Contractor is governed by MCA § 5.3, entitled "Permits and Licenses." This section is divided into four subsections, each of which addresses a distinct aspect of the permitting framework. The full text of each subsection, as it appears in the executed MCA, is repr

Section 5.3(a) — "Owner Permits." Section 5.3(a) provides as follows: "Owner shall be responsible for obtaining and maintaining, at its own cost and expense, all Owner Permits. As used herein, 'Owner Permits' shall mean: (i) franchise agreements with state and municipal authorities authorizing Owner to operate a telecommunications network within the applicable jurisdiction; (ii) licenses and registrations with the Fe

Section 5.3(b) — "Contractor Permits." Section 5.3(b) provides as follows: "Contractor shall be responsible for obtaining and maintaining, at its own cost and expense, all Contractor Permits. As used herein, 'Contractor Permits' shall mean all permits, licenses, approvals, and authorizations required for the performance of the Work, other than Owner Permits, including without limitation street-opening permits, road-c

Section 5.3(c) — "Owner Cooperation." Section 5.3(c) provides as follows: "Owner shall cooperate with Contractor and provide reasonable assistance, including provision of franchise documentation and corporate authorizations, as reasonably required by Governmental Authorities in connection with Contractor's applications for Contractor Permits. Owner's obligation to cooperate under this Section 5.3(c) shall not be cons

Section 5.3(d) — "Contractor's Obligation to Diligently Pursue Permits." Section 5.3(d) provides as follows: "Contractor shall use commercially reasonable efforts to apply for and obtain all Contractor Permits in a timely manner consistent with the Milestone Schedule. Contractor shall include in its project schedule sufficient lead time for permit acquisition, taking into account typical processing times of the appli

IV. Contractual Analysis — Plain Language Interpretation A. The "Contractor Permits" Definition Is Broad and Comprehensive The definition of "Contractor Permits" in MCA § 5.3(b) is drafted with deliberate breadth and comprehensiveness. Three features of the definition, taken together, leave no room for Meridian's argument that municipal construction permits fall outside the scope of Contractor Permits. First, the ope

V. Course of Performance Evidence Even if the court were to find any ambiguity in MCA § 5.3 — which we do not believe it should — the parties' course of performance over the first eighteen months of the project provides compelling evidence of the parties' shared understanding that municipal construction permits were Contractor Permits. Under New York law, course of performance evidence is admissible to interpret ambi

VI. Meridian's Specific Permitting Allegations and Rebuttal Meridian has advanced several specific permitting-related allegations in its pleadings, deposition testimony, and correspondence. Each is addressed in turn below. A. Allegation: NFA Failed to Obtain Right-of-Way Agreements Meridian alleges that NFA was responsible for obtaining right-of-way ("ROW") agreements with municipalities, and that NFA's delays in sec

VII. Applicable New York Law A. Contract Interpretation — Plain Meaning Rule Under New York law, the interpretation of an unambiguous contract is a question of law for the court. W.W.W. Assocs., Inc. v. Giancontieri, 77 N.Y.2d 157, 162 (1990). Where the terms of a contract are clear and unambiguous, the court must enforce the contract according to the plain meaning of its terms, without resort to extrinsic evidence.

VIII. Impact on Liquidated Damages Analysis The permitting allocation issue has direct and significant implications for Northgate's $49 million liquidated damages counterclaim under MCA § 9.1. This section summarizes the interaction between the permitting defense and the LD analysis. MCA § 9.1 imposes liquidated damages at the rate of $175,000 per day per milestone for "unexcused delay" in achieving the milestones sp