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developers to assure the fullest utilization of its site and any <br />potential by- products of its production facility which may attract <br />other desirable industrial development. <br />C. The construction of the production facility and improve- <br />ments on the site shall comply with applicable zoning laws, building <br />codes and other statutes and /or ordinances in effect at the time the <br />construction of the facility commences. <br />D. New Energy's commitments herein are subject to a final <br />closing of its Department of Energy loan guarantee. Should New <br />Energy for any reason abandon the construction of its ethanol <br />production facility on the site subsequent to the receipt of the <br />final United States Department of Energy loan guarantee commitment, <br />New Energy shall be liable to the City for any and all expenses <br />incurred by the City as a result of the City's complete or partial <br />performance of the City's obligations pursuant to this agreement. <br />Additionally, New Energy shall be liable to St. Joseph County for any <br />and all expenses incurred by St. Joseph County as a result of St. <br />Joseph County's complete or partial performance of St. Joseph <br />County's obligations pursuant to the "Agreement Between the City of <br />South Bend, Indiana, and St. Joseph County, Indiana, for Construction <br />and Maintenance of Maple Road." Abandonment by New Energy of the <br />construction of its ethanol plant on the South Bend site shall be <br />defined as: the occurrence of events which will render it impossible <br />to achieve mechanical completion of the plant within thirty -six (36) <br />months from the start of construction. If the events are beyond the <br />control of New Energy and caused by no fault of its own and New <br />Energy has satisfactorily demonstrated to the City its ability to <br />achieve mechanical completion within a reasonable period of time, <br />thereafter, New Energy and the City shall mutually agree to a mod- <br />ified completion schedule providing for mechanical completion beyond <br />the thirty -six (36) month period. <br />ME <br />