Common use of Insurance Coverage and Claims Clause in Contracts

Insurance Coverage and Claims. (a) The Tribe shall obtain and maintain commercial general liability insurance consistent with industry standards for non-tribal casinos in the United States underwritten by an insurer with an A.M. Best rating of A or higher which provides coverage of no less than ten million dollars ($10,000,000) per occurrence for bodily injury, personal injury, and property damage arising out of, connected with, or relating to the operation of the Gaming Operation, Gaming Facility or Gaming Activities (Policy). To effectuate the insurance coverage, the Tribe shall expressly waive, and waive its right to assert, sovereign immunity up to the greater of ten million dollars ($10,000,000) or the limits of the Policy, in accordance with the tribal ordinance referenced in subdivision (b) below, in connection with any claim for bodily injury, personal injury, or property damage, arising out of, connected with, or relating to the operation of the Gaming Operation, Gaming Facility, or the Gaming Activities, including, but not limited to, injuries resulting from entry onto the Tribe’s land for purposes of patronizing the Gaming Facility or providing goods or services to the Gaming Facility; provided, however, that nothing herein requires the Tribe to agree to liability for punitive damages or to waive its right to assert sovereign immunity in connection therewith. The Policy shall acknowledge in writing that the Tribe has expressly waived, and waived its right to assert, sovereign immunity for the purpose of resolution or arbitration of those claims under the terms of this section, up to the greater of ten million dollars ($10,000,000) or the limits of the Policy, and for the purpose of enforcement of any ensuing award or judgment, and shall include an endorsement providing that the insurer shall not invoke tribal sovereign immunity up to the limits of the Policy; however, such endorsement or acknowledgement shall not be deemed to waive or otherwise limit the Tribe’s sovereign immunity for any portion of the claim that exceeds ten million dollars ($10,000,000) or the Policy limits, whichever is greater. (b) The Tribe shall adopt, and at all times hereinafter shall maintain in continuous force, an ordinance that provides for all of the following: (1) The ordinance shall provide that the standards of California tort law regarding claims of bodily injury, personal injury, or property damage arising out of, connected with, or relating to the operation of the Gaming Operation, Gaming Facility, or the Gaming Activities, including but not limited to injuries resulting from entry onto the Tribe’s land for purposes of patronizing the Gaming Facility or providing goods or services to the Gaming Facility, shall be used to determine liability; provided that California law governing punitive damages need not be a part of the ordinance. Nothing herein shall subject the Tribe to any award of punitive damages. Further, the Tribe may include in the ordinance required by this subdivision a requirement that a person with claims for money damages against the Tribe file those claims within the time periods applicable for the filing of claims for money damages against public entities under California Government Code section 810 et seq. (2) The ordinance shall also expressly provide for waiver of the Tribe’s sovereign immunity and its right to assert sovereign immunity with respect to the resolution of such claims in the Tribe’s tribal court system, once a tribal court system is established, or until a tribal court system is established, by a tribal claims commission, and in the tribal appellate court, once a tribal appellate court is established, or until a tribal appellate court is established, in the Jams Optional Arbitration Appeal Procedure, but only up to the greater of ten million dollars ($10,000,000) or the Policy limits; provided, however, such waiver shall not be deemed to waive or otherwise limit the Tribe’s sovereign immunity for any portion of the claim that exceeds ten million dollars ($10,000,000) or the Policy limits, whichever is greater. (3) The ordinance shall allow for the claim to be resolved either in the Tribe’s tribal court system, once a tribal court system is established, or by a three (3)-member tribal claims commission consisting of one (1) representative of the tribal government and at least one (1) commissioner who is not a member of the Tribe. The tribal court or tribal claims commission must afford the claimant with a dispute resolution process that incorporates the essential elements of fairness and due process. Discovery in the tribal court or claims commission proceedings shall be governed by section 1283.05 of the California Code of Civil Procedure. No member of the tribal court or the tribal claims commission may be employed by the Gaming Facility or Gaming Operation. Resolution of the dispute before the tribal court system or tribal claims commission shall be at no cost to the claimant (excluding claimant’s attorney’s fees). (4) The Tribe shall consent to the tribal court system, tribal claims commission, tribal appellate court, or the JAMS Optional Arbitration Appeal Procedure to the extent of the limits of the Policy. (5) Any party dissatisfied with the award of the tribal court or tribal claims commission may, at the party’s election, invoke the jurisdiction of the tribal appellate court, if one is established, or the JAMS Optional Arbitration Appeal Procedure (or if those rules no longer exist, the closest equivalent), provided that if there is a tribal appellate court, the party making the election of JAMS must bear all costs and expenses of JAMS and the JAMS arbitrators associated with the JAMS Optional Arbitration Appeal Procedure, regardless of the outcome. If there is no tribal appellate court, the cost and expenses of the JAMS Optional Arbitration Appeal Procedure shall be initially borne equally by the Tribe and the claimant (for purposes of this section, the “parties”) and both parties shall pay their share of the JAMS appeal costs at the time the JAMS appeal option is elected, but the JAMS arbitrator shall award costs and expenses to the prevailing party (but not attorney’s fees). The applicable JAMS Optional Arbitration Appeal Procedure, hereafter also known as the “JAMS appeal proceeding,” shall take place in Del Norte County, California, shall use one (1) arbitrator agreed upon by the parties, and shall not be a de novo review, but shall be based solely upon the record developed in the tribal court or tribal claims commission proceeding. The JAMS appeal proceeding shall review all determinations of the tribal court or tribal claims commission on matters of law, but shall not set aside any factual determinations of the tribal court or tribal claims commission if such determination is supported by substantial evidence. The JAMS Optional Arbitration Appeal Procedure arbitrator does not take new evidence but reviews the record of the decision below to make sure there is substantial evidence that reasonably supports that decision. The JAMS Optional Arbitration Appeal Procedure arbitrator’s appellate function is not to decide whether he or she would have reached the same factual conclusions but to decide whether a reasonable fact-finder could have come to the same conclusion based on the facts in the record. If there is a conflict in the evidence and a reasonable fact-finder could have found for either party, the decision of the tribal court or tribal claims commission will not be overturned on appeal. (6) To effectuate its consent to the tribal court system or tribal claims commission, and the JAMS Optional Arbitration Appeal Procedure in the ordinance, the Tribe, in the exercise of its sovereignty, expressly waives, and also waives its right to assert, its sovereign immunity in connection with the jurisdiction of the tribal court system, tribal claims commission, and JAMS Optional Arbitration Appeal Procedure (or if those rules no longer exist, the closest equivalent), and in any suit to (i) enforce an obligation under this section 12.5, or (ii) enforce or execute a judgment based upon the award of the tribal court system, tribal claims commission, or the JAMS Optional Arbitration Appeal Procedure arbitrator. (7) The ordinance may also require that the claimant first exhaust the Tribe’s administrative remedies for resolving the claim (hereinafter the “Tribal Dispute Process”) in accordance with the following standards: The claimant must bring his or her claim within one hundred eighty (180) days of receipt of written notice of the Tribal Dispute Process as long as notice thereof is served personally on the claimant or by certified mail with an executed return receipt by the claimant and the one hundred eighty (180)- day limitation period is prominently displayed on the front page of the notice. The ordinance shall provide that any other dispute resolution process may be stayed until the completion of the Tribal Dispute Process or one hundred eighty (180) days from the date the claim is filed in the Tribal Dispute Process, whichever first occurs, unless the parties mutually agree to a longer period. (c) Upon notice that a claimant claims to have suffered an injury or damage covered by this section, the Tribe shall provide notice by personal service or certified mail, return receipt requested, that the claimant is required within the limitation period provided by subdivision (b)(7) to first exhaust the Tribal Dispute Process, if any, and if dissatisfied with the resolution, entitled to engage in claims resolution as described in subdivisions (b)(3) through (6). (d) In the event the Tribe fails to adopt the ordinance specified in subdivision (b), the tort law of the State of California, including applicable statutes of limitations, shall apply to all claims of bodily injury, personal injury, and property damage arising out of, connected with, or relating to the operation of the Gaming Operation, Gaming Facility, or the Gaming Activities, including but not limited to injuries resulting from entry onto the Tribe’s land for purposes of patronizing the Gaming Facility or providing goods or services to the Gaming Facility; and the Tribe expressly waives, and waives its right to assert, sovereign immunity up to ten million dollars ($10,000,000) or the limits of the Policy, whichever is greater, in connection with any proceedings in the tribal court system, tribal claims commission, tribal appellate court, and JAMS Optional Arbitration Appeal Procedure, and in any suit to (i) enforce an obligation under this section, or (ii) enforce or execute a judgment based upon the award of the tribal court system, tribal claims commission, tribal appellate court or the JAMS Optional Arbitration Appeal Procedure arbitrator, of any such claims, any court proceedings based on such proceedings, including the award resulting therefrom, and any ensuing judgments. (e) The Tribe shall not invoke on behalf of any employee or agent, the Tribe’s sovereign immunity in connection with any claim for, or any judgment based on any claim for, intentional injury to persons or property committed by the employee or agent, without regard to the Tribe’s liability insurance limits. Nothing in this subdivision prevents the Tribe from invoking sovereign immunity on its own behalf or authorizes a claim against the Tribe or a tribally owned entity. (f) Any judgment in favor of a claimant shall be solely recoverable from the proceeds of the Policy.

Insurance Coverage and Claims. (a) The Tribe shall obtain and maintain commercial general liability insurance consistent with industry standards for non-tribal casinos in the United States underwritten by an insurer with an A.M. Best rating of A or higher which provides coverage of no less than ten million dollars ($10,000,000) per occurrence for bodily injury, personal injury, and property damage arising out of, connected with, or relating to the operation of the Gaming Operation, Gaming Facility or Gaming Activities (Policy). To effectuate the insurance coverage, the Tribe shall expressly waivewaives, and waive waives its right to assert, its sovereign immunity up to the greater of ten million dollars ($10,000,000) or the limits of the Policy, in accordance with the tribal ordinance referenced in subdivision (b) below, in connection with any claim for bodily injury, personal injury, or property damage, arising out of, connected with, or relating to the operation of the Gaming Operation, Gaming Facility, or the Gaming Activities, including, but not limited to, injuries resulting from entry onto the Tribe’s land for purposes of patronizing the Gaming Facility or providing goods or services to the Gaming Facility; provided, however, that nothing herein requires the Tribe to agree to liability for punitive damages or to waive its right to assert its sovereign immunity in connection therewith. The Policy shall acknowledge in writing that the Tribe has expressly waived, and waived its right to assert, sovereign immunity for the purpose of resolution arbitration or arbitration adjudication of those claims under the terms of this section, up to the greater of ten million dollars ($10,000,000) or the limits of the Policy, Policy referred to above and for the purpose of enforcement of any ensuing award or judgment, judgment and shall include an endorsement providing that the insurer shall not invoke tribal sovereign immunity up to the limits of the Policy; however, such endorsement or acknowledgement shall not be deemed to waive or otherwise limit the Tribe’s sovereign immunity for any portion of the claim that exceeds ten million dollars ($10,000,000) or the Policy limits, whichever is greater. (b) The Tribe shall adopt, and at all times hereinafter hereafter shall maintain in continuous force, an ordinance that provides for all of the following: (1) The ordinance shall provide that the standards of Tribe shall adopt as tribal law, provisions that are the same as California tort law regarding to govern all claims of bodily injury, personal injury, or property damage arising out of, connected with, or relating to the operation of the Gaming Operation, Gaming Facility, or the Gaming Activities, including but not limited to injuries resulting from entry onto the Tribe’s land for purposes of patronizing the Gaming Facility or providing goods or services to the Gaming Facility, shall be used to determine liability; provided that California law governing punitive damages need not be a part of the ordinance. Nothing herein shall subject the Tribe to any award of punitive damages. Further, the Tribe may include in the ordinance required by this subdivision a requirement that a person with claims for money damages against the Tribe file those claims within the time periods applicable for the filing of claims for money damages against public entities under California Government Code section 810 et seq. Under no circumstances shall there be any awards of attorney’s fees or costs. (2) The ordinance shall also expressly provide for waiver of the Tribe’s sovereign immunity and its right to assert sovereign immunity with respect to the arbitration or resolution of such claims in the Tribe’s tribal court systemcourt, once a or if the tribal court system is establishednot available, or until a tribal court system is established, by a in the tribal claims commission, and in the tribal appellate court, once a or if the tribal appellate court is established, or until a tribal appellate court is establishednot available, in the Jams JAMS Optional Arbitration Appeal Procedure, but only up to the greater of ten million dollars ($10,000,000) or the Policy limitslimits of the Policy; provided, however, such waiver shall not be deemed to waive or otherwise limit the Tribe’s sovereign immunity for any portion of the claim that exceeds ten million dollars ($10,000,000) or the Policy limits, whichever is greater. (3) The ordinance shall allow for the claim to be resolved either in the Tribe’s tribal court systemor, once a if the tribal court system is establishednot available, or by a three (3)-member tribal claims commission consisting pursuant to the terms and provisions in subdivision (c). The tribal claims commission shall consist of at least one (1) representative of the tribal government and at least one (1) commissioner who is not a member of the Tribe. No member of the tribal claims commission may be employed by the Gaming Facility or Gaming Operation. The tribal court or tribal claims commission must afford the claimant patron with a dispute resolution process that incorporates the essential elements of fairness and due process. Discovery in the tribal court or claims commission proceedings shall be governed by section 1283.05 of the California Code of Civil Procedure. No member of the tribal court or the tribal claims commission may be employed by the Gaming Facility or Gaming Operation. Resolution of the dispute before the tribal court system or tribal claims commission shall be at no cost to the claimant (excluding claimant’s attorney’s fees). (4) The Tribe shall consent to the tribal court system, or tribal claims commission, tribal appellate court, or the JAMS Optional Arbitration Appeal Procedure commission jurisdiction to the extent of the limits of the Policy. Discovery in the tribal courts or tribal claims commission proceedings shall be governed by tribal rules and procedures comparable to the rules set forth in section 1283.05 of the California Code of Civil Procedure. (5) Any party dissatisfied with the award of the tribal court or tribal claims commission may, at the party’s election, invoke the jurisdiction of the tribal appellate court, if one is establishedor in the absence of a tribal appellate court, or the JAMS Optional Arbitration Appeal Procedure (or if those rules no longer exist, the closest equivalent), provided that if there is a tribal appellate court, the party making the election of JAMS must bear all costs and expenses of JAMS and the JAMS arbitrators associated with the JAMS Optional Arbitration Appeal Procedure, regardless of the outcome. If there is no tribal appellate court, the cost and expenses of the JAMS Optional Arbitration Appeal Procedure shall be initially borne equally by the Tribe and the claimant (for purposes of this section, the “parties”) and both parties shall pay their share of the JAMS appeal costs at the time the JAMS appeal option is elected, but the JAMS arbitrator shall award costs and expenses to the prevailing party (but not attorney’s fees). The applicable JAMS Optional Arbitration Appeal Procedure, hereafter also known as the “JAMS appeal proceeding,” shall take place in Del Norte Sonoma County, California, shall use one (1) arbitrator agreed upon by the parties, and shall not be a de novo review, but shall be based solely upon the record developed in the tribal court or tribal claims commission proceeding. The JAMS appeal proceeding shall review all determinations of the tribal court or tribal claims commission on matters of law, but shall not set aside any factual determinations of the tribal court or tribal claims commission if such determination is supported by substantial evidence. The JAMS appeal proceeding will review the decision of the tribal court or tribal claims commission under the substantial evidence standard. The JAMS Optional Arbitration Appeal Procedure arbitrator does not take new evidence but reviews the record of the decision below to make sure there is substantial evidence that reasonably supports that decision. The JAMS Optional Arbitration Appeal Procedure arbitrator’s appellate function is not to decide whether he or she would have reached the same factual conclusions but to decide whether a reasonable fact-finder could have come to the same conclusion based on the facts in the record. If there is a conflict in the evidence and a reasonable fact-finder could have found for resolved the conflict either partyway, the decision of the tribal court or tribal claims commission will not be overturned on appeal. The arbitrator shall have no authority to award attorney’s fees, costs or arbitration fees, regardless of outcome. (6) To effectuate its consent to the tribal court system or tribal claims commission, and the JAMS Optional Arbitration Appeal Procedure in the ordinance, the TribeTribe shall, in the exercise of its sovereignty, expressly waiveswaive, and also waives waive its right to assert, its sovereign immunity in connection with the jurisdiction of the tribal court systemcourt, tribal claims commission, and JAMS Optional Arbitration Appeal Procedure (or if those rules no longer exist, the closest equivalent)Procedure, and in any suit to (i) enforce an obligation under this section 12.5, or (ii) enforce or execute a judgment based upon the award of the tribal court systemcourt, tribal claims commission, or the JAMS Optional Arbitration Appeal Procedure arbitrator. (7) The ordinance may also require that the claimant first exhaust the Tribe’s administrative remedies for resolving the claim (hereinafter the “Tribal Dispute Process”) in accordance with the following standards: The claimant must bring his or her claim within one hundred eighty (180) days of receipt of written notice of the Tribal Dispute Process as long as notice thereof is served personally on the claimant or by certified mail with an executed return receipt by the claimant and the one hundred eighty (180)- day 180)-day limitation period is prominently displayed on the front page of the notice. The ordinance shall may provide that any other dispute resolution process may shall be stayed until the completion of the Tribal Dispute Process or one hundred eighty (180) days from the date the claim is filed in the Tribal Dispute Process, whichever first occurs, unless the parties mutually agree to a longer period. (c) Upon notice that a claimant claims to have suffered an injury or damage covered by this section, the Tribe shall provide notice by personal service or certified mail, return receipt requested, that the claimant is required within the specified limitation period provided by subdivision (b)(7) to first exhaust the Tribal Dispute Process, if any, and if dissatisfied with the resolution, is entitled to engage in claims resolution as the appeal process described in subdivisions subdivision (b)(3) through (6)above. (d) In the event the Tribe fails to adopt the ordinance specified in subdivision (b), the tort law of the State of California, including applicable statutes of limitations, shall apply to all claims of bodily injury, personal injury, and property damage arising out of, connected with, or relating to the operation of the Gaming Operation, Gaming Facility, or the Gaming Activities, including but not limited to injuries resulting from entry onto the Tribe’s land for purposes of patronizing the Gaming Facility or providing goods or services to the Gaming Facility; and the Tribe shall be deemed to have expressly waiveswaived, and waives to have waived its right to assert, sovereign immunity up to the greater of ten million dollars ($10,000,000) or the limits of the Policy, whichever is greater, Policy in connection with any proceedings in the tribal court system, tribal claims commission, tribal appellate court, and JAMS Optional Arbitration Appeal Procedure, and in any suit to (i) enforce an obligation under this section, or (ii) enforce or execute a judgment based upon the award of the tribal court system, tribal claims commission, tribal appellate court or the JAMS Optional Arbitration Appeal Procedure arbitrator, arbitration of any such claims, any court proceedings based on such proceedingsarbitration, including the arbitral award resulting therefrom, and any ensuing judgments. (e) The Tribe shall not invoke on behalf of any employee or agent, the Tribe’s sovereign immunity in connection with any claim for, or any judgment based on any claim for, intentional injury to persons or property committed by the employee or authorized agent, without regard to the Tribe’s liability insurance limits. Nothing in this subdivision prevents the Tribe from invoking sovereign immunity on its own behalf or authorizes a claim against the Tribe or a tribally owned entity. (f) Any judgment In the event the Tribe fails to adopt the ordinance specified in favor subdivision (b), such failure shall constitute a breach of a claimant shall be solely recoverable from the proceeds of the Policythis Compact.

Insurance Coverage and Claims. (a) The Tribe shall obtain and maintain commercial general liability insurance consistent with industry standards for non-tribal casinos in the United States underwritten by an insurer with an A.M. Best rating of A or higher which that provides coverage of no less than ten million dollars ($10,000,000) per occurrence for bodily injury, personal injury, and property damage directly arising out of, connected with, or relating to the operation of the Gaming Operation, Gaming Facility Facility, or Gaming Activities (Policy). To effectuate the insurance coverage, the Tribe shall expressly waivewaives, and waive waives its right to assert, sovereign immunity up to the greater of ten million dollars ($10,000,000) or the limits of the Policy, in accordance with the tribal ordinance referenced in subdivision (b) below, in connection with any claim for bodily injury, personal injury, or property damage, directly arising out of, connected with, or relating to the operation of the Gaming Operation, Gaming Facility, or the Gaming Activities, including, but not limited to, injuries resulting from entry onto the Tribe’s land for purposes of patronizing the Gaming Facility or providing goods or services to the Gaming Facility; provided, however, that nothing such injury occurs at the Gaming Facility or on a road accessing the Facility exclusively. Nothing herein requires the Tribe to agree to liability for punitive damages or attorney’s fees or to waive its right to assert sovereign immunity in connection therewith. The Policy shall acknowledge in writing that the Tribe has expressly waived, and waived its right to assert, sovereign immunity for the purpose of resolution or arbitration adjudication of those claims under the terms of this section, up to the greater of ten million dollars ($10,000,000) or the limits of the Policy, Policy and for the purpose of enforcement of any ensuing award or judgment, judgment and shall include an endorsement providing that the insurer shall not invoke tribal sovereign immunity up to the limits of the Policy; however, such endorsement or acknowledgement shall not be deemed to waive or otherwise limit the Tribe’s sovereign immunity for any portion of the claim that exceeds ten million dollars ($10,000,000) or the Policy limits, whichever is greater. (b) The Tribe shall adopt, and at all times hereinafter shall maintain in continuous force, an ordinance that provides for all of the following: (1) The ordinance shall provide that the standards of Tribe shall adopt as tribal law, provisions that are the same as California tort law regarding to govern all claims of bodily injury, personal injury, or property damage directly arising out of, connected with, or relating to the operation of the Gaming Operation, Gaming Facility, or the Gaming Activities, including but not limited to injuries resulting from entry onto the Tribe’s land for purposes of patronizing the Gaming Facility or providing goods or services to the Gaming Facility, shall be used to determine liability; provided that that such injury occurs at the Gaming Facility or on a road accessing the Facility exclusively. California law governing punitive damages and attorney’s fees need not be a part of the ordinance. Nothing herein shall subject the Tribe to any award of punitive damages. Further, the Tribe may include in the ordinance required by this subdivision a requirement that a person with claims asserting any claim(s) for money damages against the Tribe for bodily injury, personal injury, or property damage file those claims within the time periods applicable for the filing of claims for money damages against public entities under California Government Code section 810 et seq. Under no circumstances shall there be any awards of punitive damages or attorney’s fees or costs. (2) The ordinance shall also expressly provide for waiver of the Tribe’s sovereign immunity and its right to assert sovereign immunity with respect to the resolution of such claims in the Tribe’s tribal court systemsystem with jurisdiction over the subject matter, once a or if there is no tribal court system is established, or until a tribal court system is establishedsystem, by a three-member tribal claims commission, and in commission with jurisdiction over the tribal appellate court, once a tribal appellate court is established, or until a tribal appellate court is established, in the Jams Optional Arbitration Appeal Proceduresubject matter, but only up to the greater of ten million dollars dollar ($10,000,000) or the Policy limitslimit; provided, however, such waiver shall not be deemed to waive or otherwise limit the Tribe’s sovereign immunity for any portion of the claim that exceeds ten million dollars dollar ($10,000,000) or the Policy limitslimit, whichever is greater, or for punitive damages or attorneys’ fees. (3) The ordinance shall allow for the claim to be resolved either in the Tribe’s tribal court system, once a tribal court system is established(Tribal Court), or if there is no Tribal Court with jurisdiction over the subject matter, by a the three (3)-member tribal claims commission consisting of one Claims Commission (1) representative of the tribal government and at least one (1) commissioner who is not a member of the Tribe. The tribal court or tribal claims commission must afford the claimant with a dispute resolution process that incorporates the essential elements of fairness and due process. Discovery in the tribal court or claims commission proceedings shall be governed by section 1283.05 of the California Code of Civil ProcedureClaims Commission). No member of the tribal court or the tribal claims commission Claims Commission may be employed by the Gaming Facility or Gaming Operation. Resolution of the dispute before the tribal court system Tribal Court or tribal claims commission Claims Commission shall be at no cost to the claimant Claimant (excluding claimantClaimant’s own attorney’s feesfees and expenses). The Tribal Court or Claims Commission must afford the Claimant with a fair dispute resolution process that incorporates the essential elements of due process. (4) The Tribe shall consent to the tribal court system, tribal claims commission, tribal appellate court, Tribal Court or the JAMS Optional Arbitration Appeal Procedure Claims Commission adjudication to the extent of the limits ten million dollar ($10,000,000) Policy limit, but not for punitive damages or attorneys’ fees, that discovery in Tribal Court or Tribal Claims Commission proceedings shall be governed by procedures comparable to section 1283.05 of the Policy. (5) Any California Code of Civil Procedure, and that any party dissatisfied with the award of the Tribal Court or Claims Commission may appeal to the Tribe's court of appeal, or if there is no tribal court or tribal claims commission mayof appeal, at the party’s election, may invoke the jurisdiction of the tribal appellate court, if one is established, or the JAMS Optional Arbitration Appeal Procedure (or if those rules no longer exist, the closest equivalent), provided that if there is a tribal appellate court, the party making the election of JAMS must bear all costs and expenses of JAMS and the JAMS arbitrators associated with the JAMS Optional Arbitration Appeal Procedure, regardless of the outcome. If there is no tribal appellate court, the cost and expenses of the JAMS Optional Arbitration Appeal Procedure shall be initially borne equally by the Tribe and the claimant (for purposes of this section, the “parties”) and both parties shall pay their share of the JAMS Proceedings on appeal costs at the time the JAMS appeal option is elected, but the JAMS arbitrator shall award costs and expenses to the prevailing party (but not attorney’s fees). The applicable JAMS Optional Arbitration Appeal Procedure, hereafter also known as the “JAMS appeal proceeding,” shall take place in Del Norte County, California, shall use one (1) arbitrator agreed upon by the parties, and shall not be a de novo reviewnovo, but shall be based solely upon the record developed in the tribal court Tribal Court or tribal claims commission Claims Commission proceeding. The JAMS appeal proceeding appellate forum shall review all determinations of the tribal court Tribal Court or tribal claims commission Claims Commission on matters of law, but shall not set aside any factual determinations determination of the tribal court Tribal Court or tribal claims commission Claims Commission if such determination is supported by substantial evidence. The JAMS Optional Arbitration Appeal Procedure arbitrator does not take new evidence but reviews the record of the decision below to make sure there is substantial evidence that reasonably supports that decision. The JAMS Optional Arbitration Appeal Procedure arbitrator’s appellate function is not to decide whether he or she would have reached the same factual conclusions but to decide whether a reasonable fact-finder could have come to the same conclusion based on the facts in the record. If there is a conflict in the evidence and a reasonable fact-finder could have found for either party, the decision of the tribal court Tribal Court or tribal claims commission Claims Commission will not be overturned on appeal. If there is no tribal court of appeal, the cost and expenses of the JAMS Optional Arbitration Appeal Procedure (hereafter “JAMS appeal”) shall be initially advanced by the appellant at the time the JAMS appeal option is elected, but the JAMS appellate arbitrator shall award costs and expenses, but not attorney's fees, to the prevailing party. The appeal proceedings shall take place in the County, or the nearest County in which JAMS is available, and shall use one (1) arbitrator, agreed upon by the parties. (65) To effectuate its consent to the Tribal Court, Claims Commission, tribal court system or tribal claims commissionof appeal, and if appropriate, the JAMS Optional Arbitration Appeal Procedure in the ordinance, the Tribe, in the exercise of its sovereignty, expressly waives, and also waives its right to assert, its sovereign immunity in connection with the jurisdiction of the Tribal Court, Claims Commission, tribal court systemof appeal, tribal claims commissionand, and if appropriate, JAMS Optional Arbitration Appeal Procedure (or if those rules no longer exist, the closest equivalent), and in any suit to (i) enforce an obligation under this section 12.5, or (ii) enforce or execute a judgment against the operating account of the Gaming Operation based upon the award of the Tribal Court, Claims Commission, tribal court systemof appeal or, tribal claims commissionif appropriate, or the JAMS Optional Arbitration Appeal Procedure arbitratorProcedure, subject to the limitations of this section. (76) The ordinance may also require that the claimant first exhaust the Tribe’s administrative remedies for resolving the claim (hereinafter the “Tribal Dispute Process”) in accordance with the following standards: The claimant must bring submit his or her claim written claim, together with all available supporting documentation, within one hundred eighty (180) days of receipt of written notice of the Tribal Dispute Process as long as notice thereof is served either personally on the claimant or by certified mail or overnight courier with an executed return receipt by proof of delivery requested to the claimant and the one hundred eighty (180)- day 180)-day limitation period is prominently displayed on the front page of the notice. The ordinance shall may provide that any other dispute resolution process may shall be stayed until the completion of the Tribal Dispute Process or one hundred eighty (180) days from the date the claim is filed in under the Tribal Dispute Process, whichever first occurs, unless the parties mutually agree to a longer period. (c) Upon written notice that a claimant claims to have suffered an injury or damage covered by this section, the Tribe shall provide notice by personal service or certified mailmail or overnight courier, return with proof of delivery receipt requested, that the claimant is required within the one hundred eighty (180)-day limitation period provided by subdivision (b)(7) to first exhaust the Tribal Dispute Process, if any, and if dissatisfied with the resolution, is entitled to engage in claims resolution as the appeal process described in subdivisions subdivision (b)(3b)(4) through (6)above. (d) In the event the Tribe fails to adopt the ordinance specified in subdivision (b), the tort law such failure shall constitute a breach of the State of California, including applicable statutes of limitations, shall apply to all claims of bodily injury, personal injury, and property damage arising out of, connected with, or relating to the operation of the Gaming Operation, Gaming Facility, or the Gaming Activities, including but not limited to injuries resulting from entry onto the Tribe’s land for purposes of patronizing the Gaming Facility or providing goods or services to the Gaming Facility; and the Tribe expressly waives, and waives its right to assert, sovereign immunity up to ten million dollars ($10,000,000) or the limits of the Policy, whichever is greater, in connection with any proceedings in the tribal court system, tribal claims commission, tribal appellate court, and JAMS Optional Arbitration Appeal Procedure, and in any suit to (i) enforce an obligation under this section, or (ii) enforce or execute a judgment based upon the award of the tribal court system, tribal claims commission, tribal appellate court or the JAMS Optional Arbitration Appeal Procedure arbitrator, of any such claims, any court proceedings based on such proceedings, including the award resulting therefrom, and any ensuing judgmentsCompact. (e) The Tribe shall not invoke on behalf of any employee or agent, the Tribe’s sovereign immunity in connection with any claim for, or any judgment based on any claim for, intentional injury to persons or property committed by the employee or agent, without regard to the Tribe’s liability insurance limits. Nothing in this subdivision prevents the Tribe from invoking sovereign immunity on its own behalf or authorizes a claim against the Tribe or a tribally owned entity. (f) Any judgment in favor of a claimant shall be solely recoverable from the proceeds of the Policy.