Contract analysis

I. PURPOSE AND SCOPE OF THIS MEMORANDUM The purpose of this memorandum is to anticipate the likely opinions, analytical methodology, and factual predicates of James Ochoa, PE, of Keystone Project Advisory LLC (1500 Market Street, Suite 1200, Philadelphia, PA 19102), who has been retained by Meridian Infrastructure Partners LLC ("Meridian" or "Contractor") as its construction and delay expert in this action. Specifica

II. BACKGROUND ON JAMES OCHOA, PE A. Professional Profile James Ochoa, PE, is a licensed Professional Engineer with a specialty in fiber-optic and telecommunications infrastructure construction. He is the founder and principal of Keystone Project Advisory LLC, a construction consulting firm based in Philadelphia, Pennsylvania, that provides project management, scheduling, delay analysis, and expert witness services t

III. SUMMARY OF THE MASTER CONSTRUCTION AGREEMENT'S RELEVANT PROVISIONS A. MCA Overview The Master Construction Agreement ("MCA") was executed on March 15, 2020, between Northgate Fiber Americas Inc., a wholly owned subsidiary of Northgate Telecommunications PLC (as "Owner"), and Meridian Infrastructure Partners LLC (as "Contractor"). The MCA governs the design, engineering, permitting, and construction of approximat

Section 5.3 (Permitting Responsibilities). This provision allocates responsibility for obtaining the permits necessary for the fiber-optic construction. As discussed at length in Jeffrey Park's October 2024 analysis memorandum, Section 5.3 distinguishes between (i) backbone interstate corridor rights-of-way and federal regulatory approvals, which are the Owner's responsibility, and (ii) municipal right-of-way permits

Section 8.2 (Milestone Schedule). This provision defines the 14 milestone completion dates and the requirements for interim completion certificates. Each milestone has a defined scope, geographic area, and scheduled completion date. The milestone schedule is the baseline against which Meridian's actual performance is measured, and any delay analysis — whether by Ochoa or Dr. Chazen — will necessarily be anchored to t

Section 9.1 (Liquidated Damages for Delay). The MCA provides for liquidated damages in the amount of $175,000 per day per milestone for unexcused delay beyond the milestone completion date. Liquidated damages are capped at 10% of the milestone payment amount for any individual milestone and at 5% of the total contract price in the aggregate, establishing an aggregate cap of $60 million. This provision is the basis fo

Section 12.4 (Quality Standards). This provision requires all work to conform to Northgate Technical Specification NS-FIBER-2020 and to applicable industry standards, including ANSI/TIA-568 and BICSI guidelines. Compliance with Section 12.4 is relevant to the 287 Non-Conformance Reports ("NCRs") issued during contract performance, 43 of which were classified as critical. Quality failures and the resulting rework are

Section 14.1 (Termination for Cause by Owner). This provision permits the Owner to terminate the MCA upon the Contractor's material breach, subject to a 30-day written cure period. The termination process followed by NFA — consisting of Cure Notice No. 1 (January 18, 2024), Cure Notice No. 2 (February 19, 2024), rejection of the Corrective Action Plan (March 12, 2024), and Notice of Termination (April 1, 2024) — was

Section 14.3 (Termination for Convenience). This provision permits the Owner to terminate the MCA at any time for its convenience upon 60 days' written notice. Upon a termination for convenience, the Contractor is entitled to payment for all completed and accepted work plus 8% of the remaining unperformed contract value as a termination fee. This provision is relevant because Meridian's Count I seeks damages based on

Section 16.1 (Change Orders). This provision requires that any change to the scope of work, schedule, or contract price be documented in a written Change Order signed by both parties. The written Change Order requirement is central to Ochoa's anticipated Theory 2 (constructive change orders), and Meridian's failure to follow this procedure is a significant vulnerability in its constructive change defense.

IV. ANTICIPATED OCHOA OPINIONS — OWNER-CAUSED DELAY THEORIES Based on the sources identified in Section I above — and particularly Meridian's February 2, 2024 response to Cure Notice No. 1, which articulated three primary delay excuses — we anticipate that Ochoa will advance four principal Owner-caused delay theories. The first three correspond directly to the defenses set forth in Meridian's Cure Notice response; th

1. Anticipated Opinion We anticipate that Ochoa will opine that NFA bore primary responsibility for obtaining municipal right-of-way permits, easements, and utility crossing approvals under MCA Section 5.3, and that NFA's failure to secure these permits in a timely manner constituted the critical-path cause of Meridian's schedule delays across Phases 2 and 3. This opinion tracks directly from Meridian's February 2, 2

2. Expected Methodology Ochoa's methodological approach to the permit delay theory will likely involve the following analytical steps: First, Ochoa will construct an as-planned versus as-built schedule comparison for the affected milestones (primarily Milestones 5, 6, 7, and 8). This comparison will overlay the dates on which municipal permits were actually issued against the dates on which the construction schedule

3. Counter-Arguments for Dr. Chazen's Consideration We recommend that Dr. Chazen address the following counter-arguments in her affirmative report to preemptively undermine Ochoa's permit delay theory: Contractual allocation under MCA § 5.3. The foundational premise of Ochoa's permit delay theory — that NFA bore primary responsibility for obtaining municipal permits — is contradicted by the plain language of the MCA.

1. Anticipated Opinion We anticipate that Ochoa will opine that NFA directed fourteen (14) scope changes during the course of contract performance that were never formalized as written Change Orders under MCA Section 16.1, and that these constructive change orders expanded Meridian's scope of work, disrupted the critical path, and caused schedule delays that contributed to Meridian's failure to meet milestone deadlin

2. Expected Methodology Ochoa's methodological approach to the constructive change order theory will likely include the following elements: First, Ochoa will attempt to isolate the schedule impact of each alleged scope change using a time-impact analysis or windows analysis method. For each of the fourteen alleged changes, he will identify the date on which the change was allegedly directed, the activities affected,

3. Counter-Arguments for Dr. Chazen's Consideration We recommend that Dr. Chazen address the following counter-arguments to preemptively undermine Ochoa's constructive change order theory: MCA § 16.1 — Written Change Order requirement. The MCA contains an unambiguous written Change Order requirement. Section 16.1 provides that no change to the scope of work, schedule, or contract price shall be binding upon either pa

1. Anticipated Opinion We anticipate that Ochoa will opine that the lingering effects of the COVID-19 pandemic on construction labor availability and the fiber-optic cable supply chain constituted force majeure events that excused Meridian's delay. Specifically, Ochoa will likely argue that the pandemic caused severe disruptions to the supply of skilled construction labor in the northeastern United States and extende

2. Expected Methodology Ochoa's methodological approach to the force majeure theory will likely include the following elements: First, Ochoa will present industry-wide labor statistics and wage data showing tight construction labor markets in the northeastern United States during 2021–2023. This data will likely be drawn from Bureau of Labor Statistics reports, Associated General Contractors of America workforce surv

3. Counter-Arguments for Dr. Chazen's Consideration We recommend that Dr. Chazen address the following counter-arguments to undermine Ochoa's force majeure theory: MCA force majeure clause requires timely notice and mitigation. The MCA's force majeure clause (which I am analyzing in a separate memorandum currently in preparation) imposes specific procedural prerequisites for invoking force majeure, including timely w

1. Anticipated Opinion Although this theory extends beyond the traditional scope of construction delay analysis, we anticipate that Ochoa may offer opinions, either directly or as part of his delay narrative, suggesting that NFA actively interfered with Meridian's performance and that the April 1, 2024 termination for cause was pretextual — motivated not by genuine concerns about Meridian's performance failures but b

2. Counter-Arguments for Dr. Chazen's Consideration We recommend that Dr. Chazen consider the following counter-arguments, recognizing that the pretext theory may be partially outside the scope of her construction delay expertise: Outside scope of construction delay expert. To the extent Ochoa opines on NFA's corporate motivations, business strategies, or subjective intent in terminating the MCA, these opinions excee

V. CROSS-CUTTING METHODOLOGICAL VULNERABILITIES IN OCHOA'S EXPECTED ANALYSIS In addition to the theory-specific counter-arguments discussed in Section IV, several cross-cutting methodological vulnerabilities are likely to afflict Ochoa's analysis regardless of the specific delay theory he advances. Dr. Chazen should be prepared to address each of these vulnerabilities in her affirmative report and, if necessary, in h

VI. RECOMMENDATIONS FOR DR. CHAZEN'S AFFIRMATIVE REPORT Based on the analysis set forth in this memorandum, we make the following recommendations regarding the scope and content of Dr. Chazen's affirmative expert report, due March 31, 2025. A. Preemptive Addressing of Owner-Caused Delay Theories Dr. Chazen's affirmative report should proactively address each of the four anticipated Ochoa theories — permit delays, con