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The preceding paragraph sets forth the exclusive remedy for claims based on failure of or defect in <br />materials or services, whether such claim is made in contract or tort (including negligence) and <br />however instituted, and, upon expiration of the warranty period, all such liability shall terminate. <br />The forgoing warranty is exclusive and in lieu of all other warranties, whether written, oral, implied <br />or statutory. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE <br />SHALL APPLY, nor shall the Engineer be liable for any loss or damage whatsoever by reason of <br />its failure to discover, report, repair or modify latent defects or defects inherent in the design of any <br />tank or containment visually inspected and included in this plan. In no event, whether a result of <br />breach of contract, warranty or tort (including negligence) shall the Engineer be liable for any <br />consequential or incidental damages including, but not limited to, loss of profit or revenues, loss of <br />use of facilities inspected, assessment of penalty for lack of diligence or timely execution of the <br />SPCCP or any associated damage to facilities, neighboring properties, down-time costs or claims <br />of other damages. <br />All owners or operators of non-transportation oil-related facilities must complete a Certification <br />of the Applicability of the Substantial Harm Determination and maintain the certification form <br />with the SPCC Plan. If a facility meets the substantial harm criteria, the owner or operator must <br />prepare a Facility Response Plan (FRP) prior to beginning operation (40 CFR 112.20). As <br />indicated by the certification provided in Appendix A, the KRC TRACY PLANT does not meet <br />the substantial harm criteria and, therefore, does not require an FRP. <br />2