21
Ed in the event that any damages were sustained as a result of the construction. To this
end, the Con Ed Lease expressly stated that, although the construction of the tower would
not be such as to impair Con Ed's status as a lessee of the substation premises, the
authority to design and construct the tower lay exclusively with the Port Authority and
Con Ed would therefore have only limited remedies against the Port Authority in the
event the construction did substantially interfere with or cause damage to the substation.
Section 8(a) of the agreement provided that the Port Authority
could construct additional stories above the substation of "whatsoever design, size and
purpose as the Port Authority may from time to time and at any time during the letting
determine," (Con Ed Lease, § 8(a)) but that such construction "shall [not] unreasonably
impair, endanger or interfere with the continuous use of the Substation Building by [Con
Ed] the Lessee." (Id.) Sections 8(b) and 16 limited the remedies available to Con Ed.
Section 8(b) provided:
The exercise of any or all of the foregoing rights by the Port Authority or
its authorized contractors or agents shall not be[,] or be construed to be[,]
an eviction of the Lessee nor be made the grounds of any abatement of
rental nor any claim or demand for damages, consequential or otherwise.
(emphasis added)
Section 16 of the agreement amplified section 8 and provided that the
measure of the Port Authority's liability would be to reimburse Con Ed for its repair and
replacement expenses.
The Port Authority shall reimburse the Lessee for any expense incurred by
the Lessee in maintaining, repairing, replacing, or rebuilding the
Substation Building or the Lessee's Substation Equipment caused by the
acts or omissions of the Port Authority or its agents, contractors or
employees in connection with the construction or maintenance of the
stories, structures, buildings or improvements described in Section 8
hereof.
