Preview
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EFILED 1/9/2024 4.0
COMMONWEALTH OF MASSACHUSETTS
NORFOLK, SS SUPERIOR COURT
DEPARTMENT C.A NO.:2382CV00833
HANCOCK Q PLAZA LLC,
QUINCY 1" LLC, and
QUINCY 2" LLC,
Plaintiffs/Counterclaim Defendants,
Filed
Electronically
MP MASONRY, INC.,
Defendant/Counterclaim Plaintiff.
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ANSWER AND COUNTERCLAIM OF DEFENDANT
MP MASONRY, INC.
Defendant/Plaintiff-in-Counterclaim, MP Masonry, Inc., (“MP Masonry”), submits this
Answer and Counterclaim to Plaintiffs’ Complaint.
ANSWER
Introduction
MP Masonry denies the allegations set forth in the “Introduction” of Plaintiffs’ Complaint.
Parties 4
1 MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in this paragraph.
2 MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in this paragraph.
3 MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in this paragraph.
4 Admitted.
5 Admitted.
6 MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in this paragraph.
Jurisdiction
7. The allegation set forth in this paragraph is a legal conclusion, which does not
require a response.
8 The allegation set forth in this paragraph is a legal coriclusion, which does not
require a response.
Facts
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9 MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in this paragraph.
10. MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in this paragraph.
We MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the allegation set forth in this paragraph.
12. MP Masonry is aware that D.F. Pray, Inc., (“Pray”), entered into Subcontracts
with various Subcontractors who provided labor, equipment and/or materials to Pray in
connection with Pray’s construction of the Nova Residences Building Project, 1500 Hancock
Street, Quincy, MA 02169 (“Project”).
13. MP Masonry admits that it entered into a written Subcontract (“Subcontract”),
with Pray, under which MP Masonry agreed to install a TABS Thin-Brick Veneer Wall System
(“TABS System”), on a portion of the as-constructed exterior of the Project. (A copy of MP
Masonry’s Subcontract is affixed to this Answer as Attachment A). Thin-brick veneers are not
structural masonry. Rather, veneers are attached to the existing structural frame of a building for
aesthetic purposes. The decision to purchase and install the TABS System for this Project was
made by the Plaintiffs with the advice of the Project Architect, and Pray purchased the TABS
System. MP Masonry was then instructed by Pray to attach the TABS System to a series of as-
installed vertical steel Z-girts that span the top five (5) floors of the Project. Before MP
Masonry began that installation, MP Masonry constructed a mock-up of the as-iristalled TABS
Panel System, which revealed all layers of the installation; from Z-Girts to the veneer panels.
The mock-up was inspected and approved by the Project Architect, the Plaintiffs, and Pray. (A
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copy of a photograph of the mock-up that was taken by the Project Architect is affixed to this
Answer as Attachment E).
14. MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the characterizations set forth in this Paragraph
15. Admitted.
16. A copy of MP Masonry’s Subcontract is affixed to this Answer as Attachment A.
MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the
other allegations set forth in this paragraph.
17. MP Masonry admits that “D.F. PRAY SUBCONTRACT NO..2019-015-001”
appears to be a portion of a written Subcontract between Pray and a Subcontractor regarding the
construction of the “Nova Residences Building, 1500 Hancock Street, Quincy, MA 02169”. MP
Masonry is without knowledge or information sufficient to form a belief as to the truth of the
other allegations set forth in this paragraph.
18. Admitted.
19. A copy of MP Masonry’s Subcontract is affixed to this Answer as Attachment A.
MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the
other allegations set forth in this paragraph.
20. A copy of MP Masonry’s Subcontract is affixed to this Answer as Attachment A.
MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the
other allegations set forth in this paragraph.
21. MP Masonry admits that section 4.5.1 of “D.F. PRAY SUBCONTRACT NO.
2019-015-001” includes the quoted language.
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22. MP Masonry admits that section 4.6.1 ‘of “DF. PRAY SUBCONTRACT NO.
2019-015-001” includes the quoted language.
23. A copy of MP Masonry’s Subcontract is affixed to this Answer as Attachment A.
MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the
other allegations set forth in this paragraph.
24. MP Masonry admits that MP Masonry completed the installation ofthe Tabs
System to the portion of the building exterior that is designated in Attachment A. MP Masonry is
without knowledge or information sufficient to form a belief as to the truth of the other
allegations set forth in this paragraph.
25. “Exhibit 2” is a photograph that is attached to a January 23, 2020, Construction
Repair Report of Nautilus Consulting, LLC (“Nautilus Report’). MP Masonry is without
knowledge or information sufficient to form a belief as to the truth of the other allegations set
forth in this paragraph.
26. In conformity with the Manufacturer’s Specifications, MP Masonry attached a
TABS System to the as-constructed substrate of a portion of the Building exterior. MP Masonry
is without knowledge or information sufficient to form a belief as to the truth of the other
allegations set forth in this paragraph.
27. MP Masonry is aware that Plaintiffs’ “Exhibit 2” is a photograph that is attached
to a January 23, 2020, Construction Repair Report of Nautilus Consulting, LLC (“Nautilus
Report”), which MP Masonry understands was submitted by the Plaintiffs as evidence in an
Arbitration between the Plaintiffs and Pray that took place in January through March of 2020.
(A copy of the Nautilus Report is affixed to this Answer as Attachment B). MP Masonry is
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without knowledge or information sufficient. to form a belief as to the truth of the other
allegations set forth in this paragraph
28 Denied.
29. Denied.
30. Denied.
31 Denied.
32 MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in this paragraph.
33. MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in this paragraph.
34. MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in this paragraph.
35. MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in this paragraph.
36. Denied.
37. MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in this paragraph.
38. MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in this paragraph.
39. MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in this paragraph.
40. MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in this paragraph.
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4]. MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in this paragraph.
COUNT I
Negligence - Both Defendants
42. MP Masonry repeats its responses to paragraphs 1-41 as set forth above.
43. The allegations set forth in paragraph 43 contain legal conclusions to which no
response is required. To the extent a response is required, denied.
44 Denied.
45. The allegations set forth in paragraph 45 contain legal conclusions to which no
tesponse is required. To the extent a response is required, denied.
46. Denied.
COUNT II
Breach of Subcontractor Agreement - Third-Party Beneficiary
Both Defendants
47. MP Masonry repeats its responses to Paragraphs 1-46 as set forth above.
48. Admitted.
49. A copy of MP Masonry’s Subcontract is affixed to this Answer as Attachment A.
MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the
other allegations set forth in this paragraph.
50. A copy of MP Masonry’s Subcontract is affixed to this Answer as Attachment
A. MP Masonry is without knowledge or information sufficient to form a belief as to the
truth of the other allegations set forth in this paragraph.
51. The allegations set forth in paragraph 51 contain legal conclusions to which no
response is required. To the extent a response is required, denied.
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52. MP Masonry denies that it “breached [any] duties under [its] Subcontract”. MP
Masonry is without knowledge or information sufficient to form a belief as to the truth of
the other allegations set forth in this paragraph.
53. MP Masonry denies that the “Plaintiffs were damaged by [MP Masonry’s]
breaches”. MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the other allegations set forth in this paragraph.
COUNT I
Breach of Express Warranty and Breach of Implied Warranty
Both Defendants
54, MP Masonry repeats its responses to paragraphs 1-53 as set forth above.
55. Any Third-Party Beneficiary rights that the Plaintiffs may have had under MP
Masonry’s Subcontract with Pray were annulled by the Settlement Agreement between the
Plaintiffs and Pray and the related Settlement Agreement between Pray and MP Masonry.
As to implied warranties, the allegations set forth in paragraph 55 contain legal conclusions to
which no response is required and, to the extent a response is required, the allegations are denied.
MP Masonry is without knowledge or information sufficient to form a belief as to the truth
of the other allegations set forth in this paragraph.
56. MP Masonry is without knowledge or information sufficient to form a belief
as to the truth of the allegations set forth in this paragraph.
57. MP Masonry denies that MP Masonry “breached these warranties for the
reasons described herein, by, without limitation, by the Faulty Installation of the TABS/Thin
Brick.” MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the other allegations set forth in this paragraph.
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58. MP Masonry denies that the “Plaintiffs were damaged by [MP Masonry’s]
breaches of [its] warranties to Plaintiffs.” MP Masonry is without knowledge or
information sufficient to form a belief as to the truth of the other allegations set forth
in this paragraph.
COUNT IV
Violation of M.G.L. Ch. 93A §§2, 11
Both Defendants
59. MP Masonry repeats its responses to paragraphs 1-58 as set forth above.
60. ; MP Masonry admits that MP Masonry and the Plaintiffs were “engaged in
commerce in Massachusetts within the meaning of M.G.L. Ch. 93A §11.” MP Masonry is
without knowledge or information sufficient to form a belief as to the truth of the other
allegations set forth in this paragraph.
61. MP Masonry denies that it breached any warranties or engaged in any “conduct
[that] constitutes unfair and deceptive acts or practices within the meaning of M.G.L. Ch. 93A.
§§2, 11.” MP Masonry is without knowledge or information sufficient to form a belief as to
the truth of the other allegations set forth in this paragraph.
62. MP Masonry denies that MP Masonry engaged in or that the Plaintiffs were
damaged by any such “unfair and deceptive acts and practices”. MP Masonry is without
knowledge or information sufficient to-form a belief as to the truth of the other allegations
set forth in this paragraph.
COUNT V
Indemnification - Both Defendants
63. MP Masonry repeats its responses to paragraphs 1-62 as set forth above.
64. The allegations against MP Masonry that are set forth in paragraph 64 contain
legal conclusions to which no response is required and, to the extent a response is required, the
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allegations are denied. MP Masonry is without knowledge or information sufficient to form a
belief as to the truth of the other allegations set forth in this paragraph.
65. MP Masonry denies that the “Plaintiffs suffered damages on account [of MP
Masonry’s] actions, omissions, faulty construction, and breaches of the Subcontract and [any]
warranties to Plaintiffs.” MP Masonry is without knowledge or information sufficient to form
a belief as to the truth of the other allegations set forth in this paragraph.
66: The allegations in paragraph 66 against MP Masonry are a legal “demand [for]
indemnification [and for] damages and attorneys' fees” to which no response is required and, to
the extent a response is required,
the allegations are denied. MP Masonry is without knowledge
or information sufficient to form a belief as to the truth of the other allegations set forth in
this paragraph.
PRAYER FOR RELIEF
WHEREFORE, MP Masonry prays that the Court:
(1) enter judgment against the Plaintiffs on each Count of the Plaintiffs’ Complaint,
(2) award MP Masonry the costs and fees that have been incurred in defense of this
action, and
(3) award such other relief as the Court deems just and proper.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Plaintiffs fail to set forth a claim for which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
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If Plaintiffs were damaged as alleged, which MP Masonry denies, the damages resulted from
the acts and/or omissions of persons for whose conduct MP Masonry is neither legally liable
nor responsible.
THIRD AFFIRMATIVE DEFENSE
If Plaintiffs were damaged as alleged, which MP Masonry denies, the damages
resulted from Plaintiffs own negligent acts and/or omissions and, as a consequence, are either
barred from recovery or any recovery must be reduced by an amount that is proportionate to
the extent of their contributory negligence.
FOURTH AFFIRMATIVE DEFENSE
Plaintiffs are not entitled to recover from MP Masonry because MP Masonry
performed its services in conformance with all applicable standards of care.
FIFTH AFFIRMATIVE DEFENSE
Plaintiffs failed to mitigate their damages.
SIXTH AFFIRMATIVE DEFENSE
Plaintiffs suffered no harm as a result of any action or inaction by MP Masonry.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs' claims are barred by the terms of the Settlement Agreement_and Mutual
Release between the Plaintiffs and Pray, a copy of which is affixed to this Answer as
Att achment C, and the terms of the Settlement Agreements between Pray and the
Subcontractors that are referenced by the Plaintiffs and Pray in Attachment_C, which
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includes a Settlement Agreement between Pray and MP Masonry, a copy of which is affixed
to this Answer as Attachment D.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs' are estopped from proceeding with their claims against MP Masonry in
this Action by their decision to enter into the Settlement Agreement and Mutual Release
between the Plaintiffs and Pray between the Plaintiffs and Pray, a copy of which is affixed
to this Answer as Attachment C, and the terms of the Settlement Agreements between Pray
and the Subcontractors that are referenced by the Plaintiffs and Pray in Attachment C,
which includes a Settlement Agreement between Pray and MP Masonry, a copy of which is
affixed to this Answer as Attachment D.
NINTH AFFIRMATIVE DEFENSE
Plaintiffs are judicially estopped from proceeding with their claims against MP
Masonry because the Plaintiffs have brought a separate action against Pray, the Project
Architect, the Project Mechanical Engineer, and the Project Structural Engineer, which
includes a claim that the Nova Residences Building is “subsiding” and that the subsidence
has caused and is causing the Thin-Brick Veneers that are attached to the building structure
to buckle and deform.
TENTH AFFIRMATIVE DEFENSE
Any Third-Party Beneficiary rights that the Plaintiffs may have had under MP Masonry’s
Subcontract with Pray have been annulled by the Settlement Agreement and Mutal Release
between Pray and MP Masonry, a copy of which is affixed to this Answer as Attachment D
and the related Settlement Agreement between Pray and MP Masonry.
ELEVENTH AFFIRMATIVE DEFENSE
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Any and all warranties have lapsed.
TWELFTH AFFIRMATIVE DEFENSE
MP Masonry reserves the right to rely upon other and further defenses as may
become apparent during the discovery of this action and the right to amend this Answer to
assert such defenses.
COUNTERCLAIM
Parties
1 Plaintiff in Counterclaim, MP Masonry, Inc., (“MP Masonry”), is a
Massachusetts corporation with a principal address of 60 John L Dietsch Blvd., North Attleboro,
Massachusetts.
2. Defendant in Counterclaim, Hancock Q Plaza LLC ("Hancock"), is a
Massachusetts limited liability company with a principal place of business at 1512 Hancock
Street, Quincy, Massachusetts 02169.
3 Defendant in Counterclaim, Quincy Ist LLC ("Quincy lst"), is a Massachusetts
limited liability company with a principal place of business at 1512 Hancock Street, Quincy,
Massachusetts 02169.
4 Defendant in Counterclaim, Quincy 2nd LLC ("Quincy 2nd"), is a Massachusetts
limited liability company with a principal place of business at 1512 Hancock Street, Quincy,
Massachusetts 02169.
Jurisdiction
This Court has jurisdiction pursuant to M.G.L. Ch. 212 §§3-4.
Venue is proper pursuant to M.G.L. Ch. 223 §1.
Facts
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7 MP Masonry, Inc., (“MP Masonry”), is a commercial masonry construction
contractor who performed masonry work on the Nova Residences Building Project,
(“Project”), in Quincy MA under a Subcontract with the Project Manager, D.F. Pray, Inc.,
(“Pray”). (A copy of MP Masonry’s Subcontract is attached to this Answer as Exhibit 1).
8 In March of 2018, MP Masonry was asked by Pray to submit a quote for the
Project and suggested that MP Masonry contact Tri-State Brick (“Tri-State”), a thin-brick
supplier who had been interfacing with the Architect and would likely be providing
the Project
with a thin-brick veneer system.
9 MP Masonry called Tri-State and spoke with David Zetoff, a sales
representative for Tri-State, who told MP Masonry that he had discussed the Project with
SN Consulting Group, the Project Architect, (“S/N”), and was told that the Project Owners
were considering the purchase and installation of a TABS Veneer Panel System, (“TABS
System”’), for the Project.
10. On March 12, 2018, MP submitted a quote based upon a TABS System;
advising, in the event the quote was accepted, that the Architect would need to revise the
design to reflect the use of the TABS’ Installation Details and Specifications. The quote was
rejected, and another masonry company was awarded the subcontract.
11. MP Masonry heard nothing further from Pray until the fall of 2018 when Pray
asked MP Masonry to submit another quote. Pray told MP Masonry that the subcontracted
masonry company had been unable to perform.
12. On November 02, 2018, MP Masonry submitted a quote to install thin-brick
veneers as originally designed, which included the installation of cement board, the
application of a scratch coat of mortar to the cement board, and the attachment of thin-brick
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veneers to the scratch coat. That quote was rejected by Pray, however, Pray told MP
Masonry the Architect was considering the installation of a TABS System on the building
and Pray intended to call the subcontractors who would be involved with that installation to
a meeting so all concerned understood their responsibilities if a TABS System was chosen.
13. On January 8, 2019, Pray held a Project meeting to discuss the coordination
that would be needed to complete the structural framing of the top five (5) floors of the
Project and the attachment of a TABS System to that structural framing. The participants
included, S/N, RJ Kenney and Allen & Majors, S/N’s Engineering Consultants, RCM
Modular Solutions Group, 28 Rue Industrielle, Saint-Benoit-Labre, QC GOM 1PO0, Canada,
("RCM"), a company that constructs modular buildings who would be retained to construct,
deliver, and connect pre-fabricated modular boxes, on-site, that would become the structural
framing for each of the five (5) top floors of the Project, Tri-State Brick of Connecticut, the
supplier of the TABS System, and MP Masonry, the installer of the TABS System. The
following issues were discussed:
a. The TABS System follows the contour of the substrate and imperfections in
that substrate will be mirrored in the finished product, and
b. The framing and sheathing of the prefabricated modules, individually and
collectively, need to be in plane with the studs and aligned at 16” on-center, and that
alignment and plane needs to be maintained through the to-be-installed Z-Girts.
14. On January 11, 2019, Pray emailed all and advised it was looking for the
following:
a. “[RCM] Modular Box Shop Drawings, Mark-Ups and Comments” for
review/response.
b. “Kenney [to review] flashing details, onsite and per issued sketch ...”.
c. Z-girts to be installed at “16” on-center over an in-plane Modular Wall.
d. “[RCM to] Follow up with SN [re:] minimum window returns.”
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e. “SN [to provide] sketches moving forward”.
15. On January 28, 2019, MP Masonry sent Pray a Proposal and a Subcontract
between Pray and MP Masonry, which mirrors the terms of the Proposal, was executed on
the same day. (A copy of the Proposal is attached as Exhibit 12).
16. MP Masonry is not aware that all of the deliverables that were requested by
Pray on January 11, 2019, were completed and received. However, SN instructed all to
follow and comply with the TABS Construction Details and Installation, which are‘available
to the public.
17. MP Masonry installed an “in-place-mock-up” of the panels with adhered
veneers on a portion of the building exterior so all concerned could inspect and approve the
TABS System before MP Masonry moved forward. That inspection took place on March 14,
2019, during which all layers from Z-girts to the hanging panel system were visible. (See
Exhibit 2, SN photograph of In-Place/Mock-Up).
18. On.March 19, 2019, SN approved the Mock-up. (A copy of the approval is
attached as Exhibit 2A).
19. On April 11, 2019, MP Masonry notified Pray that ‘the “girts are not being
spaced properly on 88 and 16s ...”.
20. Pray scheduled a meeting for April 16, 2019, instructing RCM to attend
“because [Pray] is responsible for the installation”. At the meeting, MP Masonry told Pray
and RCM that RCM’s Z-Girts were off-center and out of plane and that the variance was
requiring MP Masonry to cut the pre-sized metal panels and the alignment problem was
mirroring through to the plane of the final product. It was agreed that Tri-State would be
asked to review.
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21. On April 20, 2019, Tri-State inspected the installation and reported: “the
installation ... looks great [and] aside from the areas where the substrate is uneven and
showing slightly through the ... thin brick system, everything looks to be installed correctly.
As discussed in the first job site meeting, any imperfections in the substrate will show all the
way through the system [and] these imperfections are not due to brick, panel or the
installation of either.”
22. On May 8, 2019, MP Masonry measured Z-Girt placement irregularities and
found that Z-Girt was consistently spaced 1.5” off-center and out of plane by 2” within 8-10
linear feet. MP Masonry told Matt DeThomas that the inconsistent alignment and plane of
the substrate was being mirrored in the finished product and that MP Masonry could not
correct that problem with a 5/16” felt shim if there was a way to shim the Panels that are
attached to the Z-Girt.
23. With Pray aware that it was not possible to level the existing plane by
shimming; Pray told MP Masonry to proceed with the installation.
24. On July 25, 2019, John Scanlon (SN), Ben Schlick (A&M) and Leon
DeGironimo (Pray) inspected the Project and Schlick wrote a Report. The Report states that
the Inspectors observed the building as “structurally complete with light construction
proceeding” and that “no exceptions were taken” regarding “the construction”. (A copy of
the Report is Attached as Exhibit 14).
25. The TABS System is a hanging Thin-Brick Veneer System, which includes
steel veneer support panels, separate thin-brick veneers, and TABS patented adhesive. To
assemble and attach the individual veneer panels to an existing structure, the thin-brick
veneers are individually adhered to the steel panels in preset rows using a TABS adhesive
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and, when filled, those steel panels are then attached to the existing substrate with TABS
fastening screws. The difference between a thin-brick veneer panel system and a solid brick
masonry wall is structural support for the building. A Solid Brick wall is part of the structural
support of a building along with the wood or steel frame of the building. In contrast, thin-brick
veneer panels are attached to the structural frame of the building for aesthetic purposes and
depend upon the structural support of the existing “substrate”.
26. As a consequence, if there is movement in the frame of the structure that
movement will be mirrored in the thin-brick fagade.
27. The existing substrate of the top five (5) floors of the Project is a series of
monolithic vertical steel Z-girts that span those top five (5) floors and were installed by RCM.
As part of that installation, RCM was obligated to align and attach the Z-girts to that as-
installed framed modules so the as-installed TABS System was structurally supported.
28. The Project was substantially complete on September 19, 2019. (A copy of
the Notice.of Substantial Completion is attached as Exhibit 3).
29. On November 25, 2019, Plaintiffs’ Counsel sent Pray a Notice to Cure
D efault, in which Counsel asserted that Pray's work was incomplete and "defective," which
includes “Brick replacement [because] there are portions of the brick installation that are
defective in that it is too thin [and the] Owner ... reasonably believes the amount [to replace the
brick] could approach $1,000,000.” (A copy of the Notice to Cure Default is attached as Exhibit
4).
30. In conjunction with Counsel’s Notice to Cure Default, the Plaintiffs withheld all
payments that were owed to Pray for its compensation and for progress payments that were
due and owing to the Subcontractors.
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31. In response to the Plaintiffs’ decision to withhold all payments, on December
26, 2019, Pray brought an action in the Superior Court against the Plaintiffs, seeking, inter
alia, immediate payment of “$2.7 million” that had not been disputed under the provisions
of the Massachusetts Prompt Payment and Retainage Acts, an Order granting a “lien upon
the Property in the amount of $5.4 million” to cover the cost of all amounts that were due Pray
and its Subcontractors, an “Order [for] the sale of the Property”, and an Order “directing that
from the proceeds of the sale Pray be paid the amount of its lien together with expenses of the
sale and costs of this action”. (A copy of the Complaint is attached as Exhibit 5).
32. In response to Pray’s Court Action, on January 30, 2020, the Plaintiffs filed a
Demand for Arbitration and, on February 7, 2020, the Court, (“Kirpalani, J.), stayed Pray’s
action against the Plaintiffs, pending the results of the Arbitration. (A copy of the Plaintiffs’
Demand for Arbitration is attached as Exhibit 6).
33. The Demand for Arbitration includes a copy of a Construction Repair Report
dated January 23, 2020 that had been prepared by Nautilus Consulting, LLC, (“Nautilus
Report”), in which Nautilus opines that the Plaintiffs should “demolish the existing thin
brick system perform any necessary substrate repairs, and re-install the thin brick system’’,
which, according to Nautilus, “will cost $1,665,788”. (A copy of the Nautilus Report is
attached as Exhibit 7).
34. Nautilus instructs that its conclusions are based upon a “review of the Notice
to Cure Default Building letter from Pierce Atwood to DF Pray dated November 25, 2019
[and] conversations with the project owner”.
35. Sometime after the Arbitration had begun, but before the parties had settled
their disputes, Matt DeThomas, Pray’s Project Manager, contacted John Murray, the
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President of MP Masonry, to discuss the Plaintiffs’ claim regarding the Thin-Brick Veneers
and find out if Mr. Murray would be willing to meet with the Plaintiffs to discuss a possible
ettlement and, if MP Masonry and the Plaintiffs agreed to a settlement amount, the amount
would then be included in a global Settlement Proposal.
36. Mr. Murray agreed and later met with Andrian Shapiro, the controlling Owner
of the Project, Scott Pray, the President of Pray, Mr. DeThomas, and an individual that Mr.
Murray believes was a representative of the Project Architect. No agreement was reached.
37. In March of 2020, Mr. DeThomas again contacted Mr. Murray and explained
that Pray intended to propose a global Settlement to the Plaintiffs and wanted MP Masonry
to contribute more than MP Masonry had been willing to contribute when all had met with
Mr. Shapiro. Mr. Murray and Mr. DeThomas agreed to a specific amount that MP Masonry
would contribute to the global Settlement Offer being made by Pray.
38. After discussions between Pray and the Plaintiffs, the parties agreed to enter
into a formal Structured Settlement, which would require each Subcontractor, including MP
Masonry, to formally waive all claims against the Plaintiffs and the Project that the
Subcontractor has or could have regarding its work on the Project. A copy of that
SETTLEMENT AGREEMENT AND MUTUAL RELEASE dated April 7, 2020 is attached
as Exhibit 8.
39. The obligations of the Subcontractors in the Settlement Agreement and
Mutual Release include the following:
e 3.1.2: Final Lien Waivers, using the form attached hereto as Exhibit 2, from each
subcontractor and supplier listed on the attached Exhibit 3;
e 3.1.3: Execution by Pray and each subcontractor and supplier listed on Exhibit 4
attached hereto of a Notice of Dissolution of Lien using the forms attached hereto as Exhibits
5.1 through 5.11; and
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!perior Court - Nortolk
icket Number 2382CV00833
° 3.1.7: Execution by counsel for all Parties, including counsel for Pray
subcontractors and/or suppliers who have commenced actions, of a Stipulation of Dismissal(s) in
the form attached hereto as Exhibit 7.
40. The limitations of the Plaintiffs in the Settlement Agreement and Mutual Release
include the following:
.
e 4.2. Release _by Owner as to Pray. Upon receipt of all of the original
documentation
required for the Payment Conditions referenced in Paragraph 3, for good and
valuable consideration, the receipt and sufficiency of which Owner hereby acknowledges,
and with the sole exception of reserved claims stated in paragraph 4.3 of this: Agreement,
Owner, for itself, its past and present officers, directors, members, managers, partners
shareholders, employees, attorneys, agents, heirs, representatives, successors, assigns, and
all who may claim through it ("Owner Releasor"), hereby releases and forever discharges
Pray and its parent organization, subsidiaries, affiliates, officers, directors, members
managers, partners, shareholders, employees, attorneys, agents, successors and assigns
("Pray Releasee"), of and from all known claims, causes of action, losses and damages of
any kind or nature ("Claims") that Owner Releasor now has or ever had
against Pray Releasee, from the beginning of time up through and including the date
of this Agreement that arise out of, or relate to the Project.
4.3. Claims Reserved by Owner. Notwithstanding the Release by Owner set forth in
Paragraph 4.2 of this Agreement, Owner expressly reserves and does not release Pray
from Pray's warranty obligations to the Owner from the General Contract excep!
Owner releases the "thin brick" claim as asserted in the Arbitration. Nothing set forth
herein is intended to expand the scope of the warranty obligation set forth in the General
Contract. Rather, the warranty reservation in this release is intended solely to allow the
Owner the benefit of the remaining warranty set forth in the General Contract. Owner
tepresents and warrants that as of the execution of this Agreement, no warranty claims exist
and it knows of no warranty claims. [Emphasis added]
Al As required by the terms of the SETTLEMENT AGREEMENT AND
MUTUAL RELEASE, on May 27, 2020, Pray and MP Masonry entered into -a
“SETTLEMENT AGREEMENT”, and MP Masonry fulfilled all of the obligations that are
set out in that Settlement Agreement and in the SETTLEMENT AGREEMENT AND
Preview
\perior Court - Norfolk scket Number 2382CV00833 EFILED 1/9/2024 4.0 COMMONWEALTH OF MASSACHUSETTS NORFOLK, SS SUPERIOR COURT DEPARTMENT C.A NO.:2382CV00833 HANCOCK Q PLAZA LLC, QUINCY 1" LLC, and QUINCY 2" LLC, Plaintiffs/Counterclaim Defendants, Filed Electronically MP MASONRY, INC., Defendant/Counterclaim Plaintiff. iperior Court - Nortolk acket Number 2382CV00833 ANSWER AND COUNTERCLAIM OF DEFENDANT MP MASONRY, INC. Defendant/Plaintiff-in-Counterclaim, MP Masonry, Inc., (“MP Masonry”), submits this Answer and Counterclaim to Plaintiffs’ Complaint. ANSWER Introduction MP Masonry denies the allegations set forth in the “Introduction” of Plaintiffs’ Complaint. Parties 4 1 MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph. 2 MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph. 3 MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph. 4 Admitted. 5 Admitted. 6 MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph. Jurisdiction 7. The allegation set forth in this paragraph is a legal conclusion, which does not require a response. 8 The allegation set forth in this paragraph is a legal coriclusion, which does not require a response. Facts \perior Court - Nortoik scket Number 2382CV00833 9 MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph. 10. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph. We MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegation set forth in this paragraph. 12. MP Masonry is aware that D.F. Pray, Inc., (“Pray”), entered into Subcontracts with various Subcontractors who provided labor, equipment and/or materials to Pray in connection with Pray’s construction of the Nova Residences Building Project, 1500 Hancock Street, Quincy, MA 02169 (“Project”). 13. MP Masonry admits that it entered into a written Subcontract (“Subcontract”), with Pray, under which MP Masonry agreed to install a TABS Thin-Brick Veneer Wall System (“TABS System”), on a portion of the as-constructed exterior of the Project. (A copy of MP Masonry’s Subcontract is affixed to this Answer as Attachment A). Thin-brick veneers are not structural masonry. Rather, veneers are attached to the existing structural frame of a building for aesthetic purposes. The decision to purchase and install the TABS System for this Project was made by the Plaintiffs with the advice of the Project Architect, and Pray purchased the TABS System. MP Masonry was then instructed by Pray to attach the TABS System to a series of as- installed vertical steel Z-girts that span the top five (5) floors of the Project. Before MP Masonry began that installation, MP Masonry constructed a mock-up of the as-iristalled TABS Panel System, which revealed all layers of the installation; from Z-Girts to the veneer panels. The mock-up was inspected and approved by the Project Architect, the Plaintiffs, and Pray. (A 'perior Court - Nortolk icket Number 2382CV00833 copy of a photograph of the mock-up that was taken by the Project Architect is affixed to this Answer as Attachment E). 14. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the characterizations set forth in this Paragraph 15. Admitted. 16. A copy of MP Masonry’s Subcontract is affixed to this Answer as Attachment A. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. 17. MP Masonry admits that “D.F. PRAY SUBCONTRACT NO..2019-015-001” appears to be a portion of a written Subcontract between Pray and a Subcontractor regarding the construction of the “Nova Residences Building, 1500 Hancock Street, Quincy, MA 02169”. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. 18. Admitted. 19. A copy of MP Masonry’s Subcontract is affixed to this Answer as Attachment A. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. 20. A copy of MP Masonry’s Subcontract is affixed to this Answer as Attachment A. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. 21. MP Masonry admits that section 4.5.1 of “D.F. PRAY SUBCONTRACT NO. 2019-015-001” includes the quoted language. Iperior Court - Nortolk scket Number 2382CV00833 22. MP Masonry admits that section 4.6.1 ‘of “DF. PRAY SUBCONTRACT NO. 2019-015-001” includes the quoted language. 23. A copy of MP Masonry’s Subcontract is affixed to this Answer as Attachment A. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. 24. MP Masonry admits that MP Masonry completed the installation ofthe Tabs System to the portion of the building exterior that is designated in Attachment A. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. 25. “Exhibit 2” is a photograph that is attached to a January 23, 2020, Construction Repair Report of Nautilus Consulting, LLC (“Nautilus Report’). MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. 26. In conformity with the Manufacturer’s Specifications, MP Masonry attached a TABS System to the as-constructed substrate of a portion of the Building exterior. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. 27. MP Masonry is aware that Plaintiffs’ “Exhibit 2” is a photograph that is attached to a January 23, 2020, Construction Repair Report of Nautilus Consulting, LLC (“Nautilus Report”), which MP Masonry understands was submitted by the Plaintiffs as evidence in an Arbitration between the Plaintiffs and Pray that took place in January through March of 2020. (A copy of the Nautilus Report is affixed to this Answer as Attachment B). MP Masonry is Iperior Court - Nortolk icket Number 2382CV00833 without knowledge or information sufficient. to form a belief as to the truth of the other allegations set forth in this paragraph 28 Denied. 29. Denied. 30. Denied. 31 Denied. 32 MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph. 33. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph. 34. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph. 35. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph. 36. Denied. 37. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph. 38. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph. 39. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph. 40. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph. iperior Court - Nortoik scket Number 2382CV00833 4]. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph. COUNT I Negligence - Both Defendants 42. MP Masonry repeats its responses to paragraphs 1-41 as set forth above. 43. The allegations set forth in paragraph 43 contain legal conclusions to which no response is required. To the extent a response is required, denied. 44 Denied. 45. The allegations set forth in paragraph 45 contain legal conclusions to which no tesponse is required. To the extent a response is required, denied. 46. Denied. COUNT II Breach of Subcontractor Agreement - Third-Party Beneficiary Both Defendants 47. MP Masonry repeats its responses to Paragraphs 1-46 as set forth above. 48. Admitted. 49. A copy of MP Masonry’s Subcontract is affixed to this Answer as Attachment A. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. 50. A copy of MP Masonry’s Subcontract is affixed to this Answer as Attachment A. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. 51. The allegations set forth in paragraph 51 contain legal conclusions to which no response is required. To the extent a response is required, denied. ipertor Court - Nortoik scket Number 2382CV00833 52. MP Masonry denies that it “breached [any] duties under [its] Subcontract”. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. 53. MP Masonry denies that the “Plaintiffs were damaged by [MP Masonry’s] breaches”. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. COUNT I Breach of Express Warranty and Breach of Implied Warranty Both Defendants 54, MP Masonry repeats its responses to paragraphs 1-53 as set forth above. 55. Any Third-Party Beneficiary rights that the Plaintiffs may have had under MP Masonry’s Subcontract with Pray were annulled by the Settlement Agreement between the Plaintiffs and Pray and the related Settlement Agreement between Pray and MP Masonry. As to implied warranties, the allegations set forth in paragraph 55 contain legal conclusions to which no response is required and, to the extent a response is required, the allegations are denied. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. 56. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in this paragraph. 57. MP Masonry denies that MP Masonry “breached these warranties for the reasons described herein, by, without limitation, by the Faulty Installation of the TABS/Thin Brick.” MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. iperior Court - Norfolk icket Number 2382CV00833 58. MP Masonry denies that the “Plaintiffs were damaged by [MP Masonry’s] breaches of [its] warranties to Plaintiffs.” MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. COUNT IV Violation of M.G.L. Ch. 93A §§2, 11 Both Defendants 59. MP Masonry repeats its responses to paragraphs 1-58 as set forth above. 60. ; MP Masonry admits that MP Masonry and the Plaintiffs were “engaged in commerce in Massachusetts within the meaning of M.G.L. Ch. 93A §11.” MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. 61. MP Masonry denies that it breached any warranties or engaged in any “conduct [that] constitutes unfair and deceptive acts or practices within the meaning of M.G.L. Ch. 93A. §§2, 11.” MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. 62. MP Masonry denies that MP Masonry engaged in or that the Plaintiffs were damaged by any such “unfair and deceptive acts and practices”. MP Masonry is without knowledge or information sufficient to-form a belief as to the truth of the other allegations set forth in this paragraph. COUNT V Indemnification - Both Defendants 63. MP Masonry repeats its responses to paragraphs 1-62 as set forth above. 64. The allegations against MP Masonry that are set forth in paragraph 64 contain legal conclusions to which no response is required and, to the extent a response is required, the \perior Court - Nortolk icket Number 2382CV00833 allegations are denied. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. 65. MP Masonry denies that the “Plaintiffs suffered damages on account [of MP Masonry’s] actions, omissions, faulty construction, and breaches of the Subcontract and [any] warranties to Plaintiffs.” MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. 66: The allegations in paragraph 66 against MP Masonry are a legal “demand [for] indemnification [and for] damages and attorneys' fees” to which no response is required and, to the extent a response is required, the allegations are denied. MP Masonry is without knowledge or information sufficient to form a belief as to the truth of the other allegations set forth in this paragraph. PRAYER FOR RELIEF WHEREFORE, MP Masonry prays that the Court: (1) enter judgment against the Plaintiffs on each Count of the Plaintiffs’ Complaint, (2) award MP Masonry the costs and fees that have been incurred in defense of this action, and (3) award such other relief as the Court deems just and proper. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Plaintiffs fail to set forth a claim for which relief may be granted. SECOND AFFIRMATIVE DEFENSE 10 (perior Court - Nortoik icket Number 2382CV00833 If Plaintiffs were damaged as alleged, which MP Masonry denies, the damages resulted from the acts and/or omissions of persons for whose conduct MP Masonry is neither legally liable nor responsible. THIRD AFFIRMATIVE DEFENSE If Plaintiffs were damaged as alleged, which MP Masonry denies, the damages resulted from Plaintiffs own negligent acts and/or omissions and, as a consequence, are either barred from recovery or any recovery must be reduced by an amount that is proportionate to the extent of their contributory negligence. FOURTH AFFIRMATIVE DEFENSE Plaintiffs are not entitled to recover from MP Masonry because MP Masonry performed its services in conformance with all applicable standards of care. FIFTH AFFIRMATIVE DEFENSE Plaintiffs failed to mitigate their damages. SIXTH AFFIRMATIVE DEFENSE Plaintiffs suffered no harm as a result of any action or inaction by MP Masonry. SEVENTH AFFIRMATIVE DEFENSE Plaintiffs' claims are barred by the terms of the Settlement Agreement_and Mutual Release between the Plaintiffs and Pray, a copy of which is affixed to this Answer as Att achment C, and the terms of the Settlement Agreements between Pray and the Subcontractors that are referenced by the Plaintiffs and Pray in Attachment_C, which 2 i Iperior Court - Nortoik icket Number 2382CV00833 includes a Settlement Agreement between Pray and MP Masonry, a copy of which is affixed to this Answer as Attachment D. EIGHTH AFFIRMATIVE DEFENSE Plaintiffs' are estopped from proceeding with their claims against MP Masonry in this Action by their decision to enter into the Settlement Agreement and Mutual Release between the Plaintiffs and Pray between the Plaintiffs and Pray, a copy of which is affixed to this Answer as Attachment C, and the terms of the Settlement Agreements between Pray and the Subcontractors that are referenced by the Plaintiffs and Pray in Attachment C, which includes a Settlement Agreement between Pray and MP Masonry, a copy of which is affixed to this Answer as Attachment D. NINTH AFFIRMATIVE DEFENSE Plaintiffs are judicially estopped from proceeding with their claims against MP Masonry because the Plaintiffs have brought a separate action against Pray, the Project Architect, the Project Mechanical Engineer, and the Project Structural Engineer, which includes a claim that the Nova Residences Building is “subsiding” and that the subsidence has caused and is causing the Thin-Brick Veneers that are attached to the building structure to buckle and deform. TENTH AFFIRMATIVE DEFENSE Any Third-Party Beneficiary rights that the Plaintiffs may have had under MP Masonry’s Subcontract with Pray have been annulled by the Settlement Agreement and Mutal Release between Pray and MP Masonry, a copy of which is affixed to this Answer as Attachment D and the related Settlement Agreement between Pray and MP Masonry. ELEVENTH AFFIRMATIVE DEFENSE 12 perior Court - Nortoik scket Number 2382CV00833 Any and all warranties have lapsed. TWELFTH AFFIRMATIVE DEFENSE MP Masonry reserves the right to rely upon other and further defenses as may become apparent during the discovery of this action and the right to amend this Answer to assert such defenses. COUNTERCLAIM Parties 1 Plaintiff in Counterclaim, MP Masonry, Inc., (“MP Masonry”), is a Massachusetts corporation with a principal address of 60 John L Dietsch Blvd., North Attleboro, Massachusetts. 2. Defendant in Counterclaim, Hancock Q Plaza LLC ("Hancock"), is a Massachusetts limited liability company with a principal place of business at 1512 Hancock Street, Quincy, Massachusetts 02169. 3 Defendant in Counterclaim, Quincy Ist LLC ("Quincy lst"), is a Massachusetts limited liability company with a principal place of business at 1512 Hancock Street, Quincy, Massachusetts 02169. 4 Defendant in Counterclaim, Quincy 2nd LLC ("Quincy 2nd"), is a Massachusetts limited liability company with a principal place of business at 1512 Hancock Street, Quincy, Massachusetts 02169. Jurisdiction This Court has jurisdiction pursuant to M.G.L. Ch. 212 §§3-4. Venue is proper pursuant to M.G.L. Ch. 223 §1. Facts 13 Iperior Court - Nortoik scket Number 2382CV00833 7 MP Masonry, Inc., (“MP Masonry”), is a commercial masonry construction contractor who performed masonry work on the Nova Residences Building Project, (“Project”), in Quincy MA under a Subcontract with the Project Manager, D.F. Pray, Inc., (“Pray”). (A copy of MP Masonry’s Subcontract is attached to this Answer as Exhibit 1). 8 In March of 2018, MP Masonry was asked by Pray to submit a quote for the Project and suggested that MP Masonry contact Tri-State Brick (“Tri-State”), a thin-brick supplier who had been interfacing with the Architect and would likely be providing the Project with a thin-brick veneer system. 9 MP Masonry called Tri-State and spoke with David Zetoff, a sales representative for Tri-State, who told MP Masonry that he had discussed the Project with SN Consulting Group, the Project Architect, (“S/N”), and was told that the Project Owners were considering the purchase and installation of a TABS Veneer Panel System, (“TABS System”’), for the Project. 10. On March 12, 2018, MP submitted a quote based upon a TABS System; advising, in the event the quote was accepted, that the Architect would need to revise the design to reflect the use of the TABS’ Installation Details and Specifications. The quote was rejected, and another masonry company was awarded the subcontract. 11. MP Masonry heard nothing further from Pray until the fall of 2018 when Pray asked MP Masonry to submit another quote. Pray told MP Masonry that the subcontracted masonry company had been unable to perform. 12. On November 02, 2018, MP Masonry submitted a quote to install thin-brick veneers as originally designed, which included the installation of cement board, the application of a scratch coat of mortar to the cement board, and the attachment of thin-brick 14 !perior Gourt - Nortolk scket Number 2382CV00833 veneers to the scratch coat. That quote was rejected by Pray, however, Pray told MP Masonry the Architect was considering the installation of a TABS System on the building and Pray intended to call the subcontractors who would be involved with that installation to a meeting so all concerned understood their responsibilities if a TABS System was chosen. 13. On January 8, 2019, Pray held a Project meeting to discuss the coordination that would be needed to complete the structural framing of the top five (5) floors of the Project and the attachment of a TABS System to that structural framing. The participants included, S/N, RJ Kenney and Allen & Majors, S/N’s Engineering Consultants, RCM Modular Solutions Group, 28 Rue Industrielle, Saint-Benoit-Labre, QC GOM 1PO0, Canada, ("RCM"), a company that constructs modular buildings who would be retained to construct, deliver, and connect pre-fabricated modular boxes, on-site, that would become the structural framing for each of the five (5) top floors of the Project, Tri-State Brick of Connecticut, the supplier of the TABS System, and MP Masonry, the installer of the TABS System. The following issues were discussed: a. The TABS System follows the contour of the substrate and imperfections in that substrate will be mirrored in the finished product, and b. The framing and sheathing of the prefabricated modules, individually and collectively, need to be in plane with the studs and aligned at 16” on-center, and that alignment and plane needs to be maintained through the to-be-installed Z-Girts. 14. On January 11, 2019, Pray emailed all and advised it was looking for the following: a. “[RCM] Modular Box Shop Drawings, Mark-Ups and Comments” for review/response. b. “Kenney [to review] flashing details, onsite and per issued sketch ...”. c. Z-girts to be installed at “16” on-center over an in-plane Modular Wall. d. “[RCM to] Follow up with SN [re:] minimum window returns.” 15 petior Court - Nortolk scket Number 2382CV00833 e. “SN [to provide] sketches moving forward”. 15. On January 28, 2019, MP Masonry sent Pray a Proposal and a Subcontract between Pray and MP Masonry, which mirrors the terms of the Proposal, was executed on the same day. (A copy of the Proposal is attached as Exhibit 12). 16. MP Masonry is not aware that all of the deliverables that were requested by Pray on January 11, 2019, were completed and received. However, SN instructed all to follow and comply with the TABS Construction Details and Installation, which are‘available to the public. 17. MP Masonry installed an “in-place-mock-up” of the panels with adhered veneers on a portion of the building exterior so all concerned could inspect and approve the TABS System before MP Masonry moved forward. That inspection took place on March 14, 2019, during which all layers from Z-girts to the hanging panel system were visible. (See Exhibit 2, SN photograph of In-Place/Mock-Up). 18. On.March 19, 2019, SN approved the Mock-up. (A copy of the approval is attached as Exhibit 2A). 19. On April 11, 2019, MP Masonry notified Pray that ‘the “girts are not being spaced properly on 88 and 16s ...”. 20. Pray scheduled a meeting for April 16, 2019, instructing RCM to attend “because [Pray] is responsible for the installation”. At the meeting, MP Masonry told Pray and RCM that RCM’s Z-Girts were off-center and out of plane and that the variance was requiring MP Masonry to cut the pre-sized metal panels and the alignment problem was mirroring through to the plane of the final product. It was agreed that Tri-State would be asked to review. 16 iperior Court - Nortolk icket Number 2382CV00833 21. On April 20, 2019, Tri-State inspected the installation and reported: “the installation ... looks great [and] aside from the areas where the substrate is uneven and showing slightly through the ... thin brick system, everything looks to be installed correctly. As discussed in the first job site meeting, any imperfections in the substrate will show all the way through the system [and] these imperfections are not due to brick, panel or the installation of either.” 22. On May 8, 2019, MP Masonry measured Z-Girt placement irregularities and found that Z-Girt was consistently spaced 1.5” off-center and out of plane by 2” within 8-10 linear feet. MP Masonry told Matt DeThomas that the inconsistent alignment and plane of the substrate was being mirrored in the finished product and that MP Masonry could not correct that problem with a 5/16” felt shim if there was a way to shim the Panels that are attached to the Z-Girt. 23. With Pray aware that it was not possible to level the existing plane by shimming; Pray told MP Masonry to proceed with the installation. 24. On July 25, 2019, John Scanlon (SN), Ben Schlick (A&M) and Leon DeGironimo (Pray) inspected the Project and Schlick wrote a Report. The Report states that the Inspectors observed the building as “structurally complete with light construction proceeding” and that “no exceptions were taken” regarding “the construction”. (A copy of the Report is Attached as Exhibit 14). 25. The TABS System is a hanging Thin-Brick Veneer System, which includes steel veneer support panels, separate thin-brick veneers, and TABS patented adhesive. To assemble and attach the individual veneer panels to an existing structure, the thin-brick veneers are individually adhered to the steel panels in preset rows using a TABS adhesive 17 Iperior Gourt - Nortolk 'cket Number 2382CV00833 and, when filled, those steel panels are then attached to the existing substrate with TABS fastening screws. The difference between a thin-brick veneer panel system and a solid brick masonry wall is structural support for the building. A Solid Brick wall is part of the structural support of a building along with the wood or steel frame of the building. In contrast, thin-brick veneer panels are attached to the structural frame of the building for aesthetic purposes and depend upon the structural support of the existing “substrate”. 26. As a consequence, if there is movement in the frame of the structure that movement will be mirrored in the thin-brick fagade. 27. The existing substrate of the top five (5) floors of the Project is a series of monolithic vertical steel Z-girts that span those top five (5) floors and were installed by RCM. As part of that installation, RCM was obligated to align and attach the Z-girts to that as- installed framed modules so the as-installed TABS System was structurally supported. 28. The Project was substantially complete on September 19, 2019. (A copy of the Notice.of Substantial Completion is attached as Exhibit 3). 29. On November 25, 2019, Plaintiffs’ Counsel sent Pray a Notice to Cure D efault, in which Counsel asserted that Pray's work was incomplete and "defective," which includes “Brick replacement [because] there are portions of the brick installation that are defective in that it is too thin [and the] Owner ... reasonably believes the amount [to replace the brick] could approach $1,000,000.” (A copy of the Notice to Cure Default is attached as Exhibit 4). 30. In conjunction with Counsel’s Notice to Cure Default, the Plaintiffs withheld all payments that were owed to Pray for its compensation and for progress payments that were due and owing to the Subcontractors. 18 \perior Court - Nortolk seket Number 2382C 00833 31. In response to the Plaintiffs’ decision to withhold all payments, on December 26, 2019, Pray brought an action in the Superior Court against the Plaintiffs, seeking, inter alia, immediate payment of “$2.7 million” that had not been disputed under the provisions of the Massachusetts Prompt Payment and Retainage Acts, an Order granting a “lien upon the Property in the amount of $5.4 million” to cover the cost of all amounts that were due Pray and its Subcontractors, an “Order [for] the sale of the Property”, and an Order “directing that from the proceeds of the sale Pray be paid the amount of its lien together with expenses of the sale and costs of this action”. (A copy of the Complaint is attached as Exhibit 5). 32. In response to Pray’s Court Action, on January 30, 2020, the Plaintiffs filed a Demand for Arbitration and, on February 7, 2020, the Court, (“Kirpalani, J.), stayed Pray’s action against the Plaintiffs, pending the results of the Arbitration. (A copy of the Plaintiffs’ Demand for Arbitration is attached as Exhibit 6). 33. The Demand for Arbitration includes a copy of a Construction Repair Report dated January 23, 2020 that had been prepared by Nautilus Consulting, LLC, (“Nautilus Report”), in which Nautilus opines that the Plaintiffs should “demolish the existing thin brick system perform any necessary substrate repairs, and re-install the thin brick system’’, which, according to Nautilus, “will cost $1,665,788”. (A copy of the Nautilus Report is attached as Exhibit 7). 34. Nautilus instructs that its conclusions are based upon a “review of the Notice to Cure Default Building letter from Pierce Atwood to DF Pray dated November 25, 2019 [and] conversations with the project owner”. 35. Sometime after the Arbitration had begun, but before the parties had settled their disputes, Matt DeThomas, Pray’s Project Manager, contacted John Murray, the 19 perior Court - Norfolk icket Number 2382CV00833 President of MP Masonry, to discuss the Plaintiffs’ claim regarding the Thin-Brick Veneers and find out if Mr. Murray would be willing to meet with the Plaintiffs to discuss a possible ettlement and, if MP Masonry and the Plaintiffs agreed to a settlement amount, the amount would then be included in a global Settlement Proposal. 36. Mr. Murray agreed and later met with Andrian Shapiro, the controlling Owner of the Project, Scott Pray, the President of Pray, Mr. DeThomas, and an individual that Mr. Murray believes was a representative of the Project Architect. No agreement was reached. 37. In March of 2020, Mr. DeThomas again contacted Mr. Murray and explained that Pray intended to propose a global Settlement to the Plaintiffs and wanted MP Masonry to contribute more than MP Masonry had been willing to contribute when all had met with Mr. Shapiro. Mr. Murray and Mr. DeThomas agreed to a specific amount that MP Masonry would contribute to the global Settlement Offer being made by Pray. 38. After discussions between Pray and the Plaintiffs, the parties agreed to enter into a formal Structured Settlement, which would require each Subcontractor, including MP Masonry, to formally waive all claims against the Plaintiffs and the Project that the Subcontractor has or could have regarding its work on the Project. A copy of that SETTLEMENT AGREEMENT AND MUTUAL RELEASE dated April 7, 2020 is attached as Exhibit 8. 39. The obligations of the Subcontractors in the Settlement Agreement and Mutual Release include the following: e 3.1.2: Final Lien Waivers, using the form attached hereto as Exhibit 2, from each subcontractor and supplier listed on the attached Exhibit 3; e 3.1.3: Execution by Pray and each subcontractor and supplier listed on Exhibit 4 attached hereto of a Notice of Dissolution of Lien using the forms attached hereto as Exhibits 5.1 through 5.11; and 20 !perior Court - Nortolk icket Number 2382CV00833 ° 3.1.7: Execution by counsel for all Parties, including counsel for Pray subcontractors and/or suppliers who have commenced actions, of a Stipulation of Dismissal(s) in the form attached hereto as Exhibit 7. 40. The limitations of the Plaintiffs in the Settlement Agreement and Mutual Release include the following: . e 4.2. Release _by Owner as to Pray. Upon receipt of all of the original documentation required for the Payment Conditions referenced in Paragraph 3, for good and valuable consideration, the receipt and sufficiency of which Owner hereby acknowledges, and with the sole exception of reserved claims stated in paragraph 4.3 of this: Agreement, Owner, for itself, its past and present officers, directors, members, managers, partners shareholders, employees, attorneys, agents, heirs, representatives, successors, assigns, and all who may claim through it ("Owner Releasor"), hereby releases and forever discharges Pray and its parent organization, subsidiaries, affiliates, officers, directors, members managers, partners, shareholders, employees, attorneys, agents, successors and assigns ("Pray Releasee"), of and from all known claims, causes of action, losses and damages of any kind or nature ("Claims") that Owner Releasor now has or ever had against Pray Releasee, from the beginning of time up through and including the date of this Agreement that arise out of, or relate to the Project. 4.3. Claims Reserved by Owner. Notwithstanding the Release by Owner set forth in Paragraph 4.2 of this Agreement, Owner expressly reserves and does not release Pray from Pray's warranty obligations to the Owner from the General Contract excep! Owner releases the "thin brick" claim as asserted in the Arbitration. Nothing set forth herein is intended to expand the scope of the warranty obligation set forth in the General Contract. Rather, the warranty reservation in this release is intended solely to allow the Owner the benefit of the remaining warranty set forth in the General Contract. Owner tepresents and warrants that as of the execution of this Agreement, no warranty claims exist and it knows of no warranty claims. [Emphasis added] Al As required by the terms of the SETTLEMENT AGREEMENT AND MUTUAL RELEASE, on May 27, 2020, Pray and MP Masonry entered into -a “SETTLEMENT AGREEMENT”, and MP Masonry fulfilled all of the obligations that are set out in that Settlement Agreement and in the SETTLEMENT AGREEMENT AND