Chapter 598 Oregon Laws 2003

AN ACT

HB 2279

Relating to arbitration; creating new provisions; amending ORS 30.330, 35.346, 105.180, 190.790, 190.800, 197.375, 222.530, 330.123, 341.573, 376.345, 390.240, 401.785, 421.628, 549.645, 646.451, 671.703, 701.146, 701.148, 701.180 and 711.180; and repealing ORS 36.300, 36.305, 36.310, 36.315, 36.320, 36.325, 36.330, 36.335, 36.340, 36.345, 36.350, 36.355, 36.360 and 36.365.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Definitions. As used in sections 1 to 30 of this 2003 Act:

(1) “Arbitration organization” means an association, agency, board, commission or other entity that is neutral and initiates, sponsors or administers an arbitration proceeding or is involved in the appointment of an arbitrator.

(2) “Arbitrator” means an individual appointed to render an award, alone or with others, in a controversy that is subject to an agreement to arbitrate.

(3) “Court” means a circuit court.

(4) “Knowledge” means actual knowledge.

(5) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency or instrumentality, public corporation or any other legal or commercial entity.

(6) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

SECTION 2. Notice. (1) Except as otherwise provided in sections 1 to 30 of this 2003 Act, a person gives notice to another person by taking action that is reasonably necessary to inform the other person in ordinary course, whether or not the other person acquires knowledge of the notice.

(2) A person has notice if the person has knowledge of the notice or has received notice.

(3) A person receives notice when it comes to the person’s attention or the notice is delivered at the person’s place of residence or place of business, or at another location held out by the person as a place of delivery of such communications.

SECTION 3. Application. (1) Sections 1 to 30 of this 2003 Act govern an agreement to arbitrate made on or after the effective date of this 2003 Act.

(2) Sections 1 to 30 of this 2003 Act govern an agreement to arbitrate made before the effective date of this 2003 Act if all the parties to the agreement or to the arbitration proceeding so agree in a record.

(3) On or after September 1, 2004, sections 1 to 30 of this 2003 Act govern an agreement to arbitrate whenever made.

SECTION 4. Effect of agreement to arbitrate; nonwaivable provisions. (1) Except as otherwise provided in this section, a party to an agreement to arbitrate or to an arbitration proceeding may waive, or the parties may vary the effect of, the requirements of sections 1 to 30 of this 2003 Act to the extent permitted by law.

(2) Before a controversy arises that is subject to an agreement to arbitrate, a party to the agreement may not:

(a) Waive or agree to vary the effect of the requirements of this section or section 5 (1), 6 (1), 8, 17 (1) or (2), 26 or 28 of this 2003 Act;

(b) Agree to unreasonably restrict the right under section 9 of this 2003 Act to notice of the initiation of an arbitration proceeding;

(c) Agree to unreasonably restrict the right under section 12 of this 2003 Act to disclosure of any facts by a neutral arbitrator; or

(d) Waive the right under section 16 of this 2003 Act of a party to an agreement to arbitrate to be represented by a lawyer at any proceeding or hearing under sections 1 to 30 of this 2003 Act, but an employer and a labor organization may waive the right to representation by a lawyer in a labor arbitration.

(3) A party to an agreement to arbitrate or arbitration proceeding may not waive, or the parties may not vary the effect of, the requirements of this section or section 3 (1) or (3), 7, 14, 18, 20 (4) or (5), 22, 23, 24, 25 (1) or (2), 29, 30 or 31 of this 2003 Act.

(4) Subsections (2) and (3) of this section do not apply to agreements to arbitrate entered into by two or more insurers, as defined by ORS 731.106, or self-insured persons for the purpose of arbitration of disputes arising out of the provision of insurance.

SECTION 5. Application for judicial relief. (1)(a) Except as otherwise provided in section 28 of this 2003 Act, an application for judicial relief under sections 1 to 30 of this 2003 Act must be made by petition to the court. Except as otherwise provided in this subsection, a person filing the first petition relating to an agreement to arbitrate or relating to an arbitration proceeding must pay the filing fee provided by ORS 21.110 (1) for plaintiffs, and persons responding to the petition must pay the filing fee provided by ORS 21.110 (1) for defendants. If subsequent petitions are filed relating to the same agreement to arbitrate or arbitration proceeding, no additional filing fees shall be required of the parties.

(b) If the first petition relating to an arbitration proceeding is a petition to seek confirmation, vacation, modification or correction of an award under section 22, 23 or 24 of this 2003 Act, the person filing the petition must pay a fee of $35, and a person filing an appearance in opposition to the petition must pay a filing fee of $21.

(c) If a civil action is pending relating to the same dispute that is the subject of the arbitration, and filing fees were paid for that action under ORS 21.110, filing fees may not be charged under this subsection for the filing of any petition under sections 1 to 30 of this 2003 Act.

(2) Unless a civil action involving the agreement to arbitrate is pending, notice of a first petition to the court under sections 1 to 30 of this 2003 Act must be served in the manner provided by ORCP 7 D. Otherwise, notice of the petition must be given in the manner provided by ORCP 9.

SECTION 6. Validity of agreement to arbitrate. (1) An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.

(2) Subject to section 7 (8) of this 2003 Act, the court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.

(3) An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled.

(4) If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

SECTION 7. Petition to compel or stay arbitration. (1) On petition of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement:

(a) If the refusing party does not appear or does not oppose the petition, the court shall order the parties to arbitrate; and

(b) If the refusing party opposes the petition, the court shall proceed summarily to decide the issue as provided in subsection (8) of this section and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.

(2) On petition of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue as provided in subsection (8) of this section. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.

(3) If the court finds that there is no enforceable agreement to arbitrate, it may not order the parties to arbitrate pursuant to subsection (1) or (2) of this section.

(4) The court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.

(5) If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, a petition under this section must be made in that court. Otherwise, a petition under this section may be made in any court as provided in section 27 of this 2003 Act.

(6) If a party makes a petition to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.

(7) If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim.

(8) A judge shall decide all issues raised under a petition filed under sections 1 to 30 of this 2003 Act unless there is a constitutional right to jury trial on the issue. If there is a constitutional right to jury trial on an issue, the issue shall be tried to a jury upon the request of any party to the proceeding.

SECTION 8. Provisional remedies. (1) Before an arbitrator is appointed and is authorized and able to act, the court, upon petition of a party to an arbitration proceeding and for good cause shown, may enter an order for provisional remedies to protect the effectiveness of the arbitration proceeding to the same extent and under the same conditions as if the controversy were the subject of a civil action.

(2) After an arbitrator is appointed and is authorized and able to act:

(a) The arbitrator may issue such orders for provisional remedies, including interim awards, as the arbitrator finds necessary to protect the effectiveness of the arbitration proceeding and to promote the fair and expeditious resolution of the controversy, to the same extent and under the same conditions as if the controversy were the subject of a civil action; and

(b) A party to an arbitration proceeding may move the court for a provisional remedy only if the matter is urgent and the arbitrator is not able to act timely or the arbitrator cannot provide an adequate remedy.

(3) A party does not waive a right of arbitration by making a petition under subsection (1) or (2) of this section.

SECTION 9. Initiation of arbitration. (1) A person initiates an arbitration proceeding by giving notice in a record to the other parties to the agreement to arbitrate in the agreed manner between the parties or, in the absence of agreement, by certified mail, return receipt requested and obtained, or by service as authorized for summons under ORCP 7 D. The notice must describe the nature of the controversy and the remedy sought.

(2) Unless a person objects for lack or insufficiency of notice under section 15 (3) of this 2003 Act not later than the beginning of the arbitration hearing, the person by appearing at the hearing waives any objection to lack or insufficiency of notice.

SECTION 10. Consolidation of separate arbitration proceedings. (1) Except as otherwise provided in subsection (3) of this section, upon petition of a party to an agreement to arbitrate or to an arbitration proceeding, the court may order consolidation of separate arbitration proceedings as to all or some of the claims if:

(a) There are separate agreements to arbitrate or separate arbitration proceedings between the same persons or one of them is a party to a separate agreement to arbitrate or a separate arbitration proceeding with a third person;

(b) The claims subject to the agreements to arbitrate arise in substantial part from the same transaction or series of related transactions;

(c) The existence of a common issue of law or fact creates the possibility of conflicting decisions in the separate arbitration proceedings; and

(d) Prejudice resulting from a failure to consolidate is not outweighed by the risk of undue delay or prejudice to the rights of or hardship to parties opposing consolidation.

(2) The court may order consolidation of separate arbitration proceedings as to some claims and allow other claims to be resolved in separate arbitration proceedings.

(3) The court may not order consolidation of the claims of a party to an agreement to arbitrate if the agreement prohibits consolidation.

SECTION 11. Appointment of arbitrator; service as neutral arbitrator. (1) If the parties to an agreement to arbitrate agree on a method for appointing an arbitrator, that method must be followed, unless the method fails. If the parties have not agreed on a method, the agreed method fails, or an arbitrator designated or appointed fails or is unable to act and a successor has not been appointed, the court, on petition of a party to the arbitration proceeding, shall appoint the arbitrator. An arbitrator so appointed has all the powers of an arbitrator designated in the agreement to arbitrate or appointed pursuant to the agreed method.

(2) An individual who has a known, direct and material interest in the outcome of the arbitration proceeding or a known, existing and substantial relationship with a party may not serve as an arbitrator required by an agreement to be neutral.

SECTION 12. Disclosure by arbitrator. (1) Before accepting appointment, an individual who is requested to serve as an arbitrator, after making a reasonable inquiry, shall disclose to all parties to the agreement to arbitrate and arbitration proceeding and to any other arbitrators in the arbitration proceeding any known facts that a reasonable person would consider likely to affect the impartiality of the arbitrator in the arbitration proceeding, including:

(a) A financial or personal interest in the outcome of the arbitration proceeding; and

(b) An existing or past relationship with any of the parties to the agreement to arbitrate or the arbitration proceeding, their counsel or representatives, a witness or another arbitrator in the proceeding.

(2) An arbitrator has a continuing obligation to disclose to all parties to the agreement to arbitrate and arbitration proceeding and to any other arbitrators in the proceeding any facts that the arbitrator learns after accepting appointment that a reasonable person would consider likely to affect the impartiality of the arbitrator.

(3) If an arbitrator discloses a fact required by subsection (1) or (2) of this section to be disclosed and a party timely objects to the appointment or continued service of the arbitrator based upon the fact disclosed, the objection may be a ground under section 23 (1)(b) of this 2003 Act for vacating an award made by the arbitrator.

(4) If the arbitrator did not disclose a fact as required by subsection (1) or (2) of this section, upon timely objection by a party, the court under section 23 (1)(b) of this 2003 Act may vacate an award.

(5) An arbitrator appointed as a neutral arbitrator who does not disclose a known, direct and material interest in the outcome of the arbitration proceeding or a known, existing and substantial relationship with a party, the party’s counsel or representatives, a witness or another arbitrator in the proceeding is presumed to act with evident partiality under section 23 (1)(b) of this 2003 Act.

(6) If the parties to an arbitration proceeding agree to the procedures of an arbitration organization or any other procedures for challenges to arbitrators before an award is made, substantial compliance with those procedures is a condition precedent to a petition to vacate an award on that ground under section 23 (1)(b) of this 2003 Act.

SECTION 13. Action by majority. If there is more than one arbitrator, the powers of an arbitrator must be exercised by a majority of the arbitrators, but all of them shall conduct the hearing under section 15 (3) of this 2003 Act.

SECTION 14. Immunity of arbitrator; competency to testify; attorney fees and costs. (1) An arbitrator or an arbitration organization acting in that capacity is immune from civil liability to the same extent as a judge of a court of this state acting in a judicial capacity.

(2) The immunity afforded by this section supplements any immunity under other law.

(3) The failure of an arbitrator to make a disclosure required by section 12 of this 2003 Act does not cause any loss of immunity under this section.

(4) In a judicial, administrative or similar proceeding, an arbitrator or representative of an arbitration organization is not competent to testify, and may not be required to produce records as to any statement, conduct, decision or ruling occurring during the arbitration proceeding, to the same extent as a judge of a court of this state acting in a judicial capacity. This subsection does not apply:

(a) To the extent necessary to determine the claim of an arbitrator, arbitration organization or representative of the arbitration organization against a party to the arbitration proceeding; or

(b) To a hearing on a petition to vacate an award under section 23 (1)(a) or (b) of this 2003 Act if the petitioner establishes prima facie that a ground for vacating the award exists.

(5) If a person commences a civil action against an arbitrator, arbitration organization or representative of an arbitration organization arising from the services of the arbitrator, organization or representative, or if a person seeks to compel an arbitrator or a representative of an arbitration organization to testify or produce records in violation of subsection (4) of this section, and the court decides that the arbitrator, arbitration organization or representative of an arbitration organization is immune from civil liability or that the arbitrator or representative of the organization is not competent to testify, the court shall award to the arbitrator, organization or representative reasonable attorney fees.

SECTION 15. Arbitration process. (1) An arbitrator may conduct an arbitration in such manner as the arbitrator considers appropriate for a fair and expeditious disposition of the proceeding. The authority conferred upon the arbitrator includes the power to hold conferences with the parties to the arbitration proceeding before the hearing and, among other matters, determine the admissibility, relevance, materiality and weight of any evidence.

(2) An arbitrator may decide a request for summary disposition of a claim or particular issue:

(a) If all interested parties agree; or

(b) Upon request of one party to the arbitration proceeding, if that party gives notice to all other parties to the proceeding and the other parties have a reasonable opportunity to respond.

(3) If an arbitrator orders a hearing, the arbitrator shall set a time and place and give notice of the hearing not less than five days before the hearing begins. Unless a party to the arbitration proceeding makes an objection to lack or insufficiency of notice not later than the beginning of the hearing, the party’s appearance at the hearing waives any objection based on lack or insufficiency of notice. Upon request of a party to the arbitration proceeding and for good cause shown, or upon the arbitrator’s own initiative, the arbitrator may adjourn the hearing from time to time as necessary but may not postpone the hearing to a time later than that fixed by the agreement to arbitrate for making the award unless the parties to the arbitration proceeding consent to a later date. The arbitrator may hear and decide the controversy upon the evidence produced although a party who was duly notified of the arbitration proceeding did not appear. The court, on request, may direct the arbitrator to conduct the hearing promptly and render a timely decision.

(4) At a hearing under subsection (3) of this section, a party to the arbitration proceeding has a right to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing.

(5) If an arbitrator ceases or is unable to act during the arbitration proceeding, a replacement arbitrator must be appointed in accordance with section 11 of this 2003 Act to continue the proceeding and to resolve the controversy.

SECTION 16. Representation by a lawyer; representation of legal entities. A party to an arbitration proceeding may be represented by a lawyer admitted to practice in this state or any other state. A corporation, business trust, partnership, limited liability company, association, joint venture or other legal or commercial entity may be represented by a lawyer admitted to practice in this state or any other state, by an officer of the entity, or by an employee or other agent authorized by the entity to represent the entity in the proceeding.

SECTION 17. Witnesses; subpoenas; depositions; discovery. (1) An arbitrator may administer oaths. An arbitrator or an attorney for any party to the arbitration proceeding may issue a subpoena for the attendance of a witness and for the production of records and other evidence at any hearing. A subpoena must be served in the manner for service of subpoenas under ORCP 55 D and, upon petition to the court by a party to the arbitration proceeding or the arbitrator, enforced in the manner provided by ORCP 55 G.

(2) In order to make the proceedings fair, expeditious and cost-effective, upon request of a party to or a witness in an arbitration proceeding, an arbitrator may permit a deposition of any witness to be taken for use as evidence at the hearing, including a witness who cannot be subpoenaed for or is unable to attend a hearing. The arbitrator shall determine the conditions under which the deposition is taken.

(3) An arbitrator may permit such discovery as the arbitrator decides is appropriate in the circumstances, taking into account the needs of the parties to the arbitration proceeding and other affected persons and the desirability of making the proceeding fair, expeditious and cost-effective.

(4) If an arbitrator permits discovery under subsection (3) of this section, the arbitrator may order a party to the arbitration proceeding to comply with the arbitrator’s discovery-related orders, issue subpoenas for the attendance of a witness and for the production of records and other evidence at a discovery proceeding, and take action against a noncomplying party to the extent a court could if the controversy were the subject of a civil action in this state.

(5) An arbitrator may issue a protective order to prevent the disclosure of privileged information, confidential information, trade secrets and other information protected from disclosure to the extent a court could if the controversy were the subject of a civil action in this state.

(6) All laws compelling a person under subpoena to testify and all fees for attending a judicial proceeding, a deposition or a discovery proceeding as a witness apply to an arbitration proceeding as if the controversy were the subject of a civil action in this state.

(7) The court may enforce a subpoena or discovery-related order for the attendance of a witness within this state, and for the production of records and other evidence issued by an arbitrator or by an attorney for any party to the proceeding in connection with an arbitration proceeding in another state, upon conditions determined by the court so as to make the arbitration proceeding fair, expeditious and cost-effective. A subpoena or discovery-related order issued by an arbitrator or by an attorney for any party to the proceeding in another state must be served in the manner provided by ORCP 55 D for service of subpoenas in a civil action in this state and, upon petition to the court by a party to the arbitration proceeding or the arbitrator, enforced in the manner provided by ORCP 55 G for enforcement of subpoenas in a civil action in this state.

SECTION 18. Judicial enforcement of preaward ruling by arbitrator. If an arbitrator makes a preaward ruling in favor of a party to the arbitration proceeding, the party may request the arbitrator to incorporate the ruling into an award under section 19 of this 2003 Act. A prevailing party may make a petition to the court for an expedited order to confirm the award under section 22 of this 2003 Act, in which case the court shall summarily decide the petition. The court shall issue an order to confirm the award unless the court vacates, modifies, or corrects the award under section 23 or 24 of this 2003 Act.

SECTION 19. Award. (1) An arbitrator shall make a record of an award. The record must be signed or otherwise authenticated by any arbitrator who concurs with the award. If the award requires the payment of money, including but not limited to payment of costs or attorney fees, the award must be accompanied by a separate statement that contains the information required by ORCP 70 A(2)(a) for money judgments. The arbitrator or the arbitration organization shall give notice of the award, including a copy of the award, to each party to the arbitration proceeding.

(2) An award must be made within the time specified by the agreement to arbitrate or, if not specified therein, within the time ordered by the court. The court may extend or the parties to the arbitration proceeding may agree in a record to extend the time. The court or the parties may extend the time within or after the time specified or ordered. A party waives any objection that an award was not timely made unless the party gives notice of the objection to the arbitrator before receiving notice of the award.

SECTION 20. Change of award by arbitrator. (1) Upon request by a party to an arbitration proceeding, an arbitrator may modify or correct an award:

(a) Upon a ground stated in section 24 (1)(a) or (c) of this 2003 Act;

(b) Because the arbitrator has not made a final and definite award upon a claim submitted by the parties to the arbitration proceeding; or

(c) To clarify the award.

(2) A request under subsection (1) of this section must be made and notice given to all parties within 20 days after the requesting party receives notice of the award.

(3) A party to the arbitration proceeding must give notice of any objection to the request within 10 days after receipt of the notice under subsection (2) of this section.

(4) If a petition to the court is pending under section 22, 23 or 24 of this 2003 Act, the court may submit the claim to the arbitrator to consider whether to modify or correct the award:

(a) Upon a ground stated in section 24 (1)(a) or (c) of this 2003 Act;

(b) Because the arbitrator has not made a final and definite award upon a claim submitted by the parties to the arbitration proceeding; or

(c) To clarify the award.

(5) An award modified or corrected pursuant to this section is subject to sections 19 (1), 22, 23 and 24 of this 2003 Act.

SECTION 21. Remedies; fees and expenses of arbitration proceeding. (1) An arbitrator may award punitive damages or other exemplary relief if such an award is authorized by law in a civil action involving the same claim and the evidence produced at the hearing justifies the award under the legal standards otherwise applicable to the claim.

(2) An arbitrator may award reasonable attorney fees and other reasonable expenses of arbitration as may be specified in the arbitration agreement if such an award is authorized by law in a civil action involving the same claim or by the agreement of the parties to the arbitration proceeding.

(3) As to all remedies other than those authorized by subsections (1) and (2) of this section, an arbitrator may order such remedies as the arbitrator considers just and appropriate under the circumstances of the arbitration proceeding. The fact that such a remedy could not or would not be granted by the court is not a ground for refusing to confirm an award under section 22 of this 2003 Act or for vacating an award under section 23 of this 2003 Act.

(4) An arbitrator’s expenses and fees, together with other expenses, must be paid as provided in the award.

(5) If an arbitrator awards punitive damages or other exemplary relief under subsection (1) of this section, the arbitrator shall specify in the award the basis in fact justifying and the basis in law authorizing the award and state separately the amount of the punitive damages or other exemplary relief.

SECTION 22. Confirmation of award. (1) After a party to an arbitration proceeding receives notice of an award, the party may make a petition to the court for an order confirming the award. The party filing the petition must serve a copy of the petition on all other parties to the proceedings. The court shall issue a confirming order unless within 20 days after the petition is served on the other parties:

(a) A party requests that the arbitrator modify or correct the award under section 20 of this 2003 Act; or

(b) A party petitions the court to vacate, modify or correct the award under section 23 or 24 of this 2003 Act.

(2) If a party requests that the arbitrator modify or correct the award under section 20 of this 2003 Act, or petitions the court to vacate, modify or correct the award under section 23 or 24 of this 2003 Act, the court may stay entry of an order on a petition filed under this section until a final decision is made on the request or petition.

SECTION 23. Vacating award. (1) Upon petition to the court by a party to an arbitration proceeding, the court shall vacate an award made in the arbitration proceeding if:

(a) The award was procured by corruption, fraud or other undue means;

(b) There was:

(A) Evident partiality by an arbitrator appointed as a neutral arbitrator;

(B) Corruption by an arbitrator; or

(C) Misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;

(c) An arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy or otherwise conducted the hearing contrary to section 15 of this 2003 Act so as to prejudice substantially the rights of a party to the arbitration proceeding;

(d) An arbitrator exceeded the arbitrator’s powers;

(e) There was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising an objection under section 15 (3) of this 2003 Act not later than the beginning of the arbitration hearing; or

(f) The arbitration was conducted without proper notice of the initiation of an arbitration as required in section 9 of this 2003 Act so as to prejudice substantially the rights of a party to the arbitration proceeding.

(2) A petition under this section must be filed within 20 days after the petitioner is served with a petition for confirmation of an award under section 22 of this 2003 Act, unless the petitioner alleges that the award was procured by corruption, fraud or other undue means. If the petitioner alleges that the award was procured by corruption, fraud or other undue means, a petition under this section must be filed within 90 days after the grounds for challenging the award are known or, by the exercise of reasonable care, would have been known by the petitioner. A party filing a petition under this section must serve a copy of the petition on all other parties to the proceedings.

(3) If the court vacates an award on a ground other than that set forth in subsection (1)(e) of this section, it may order a rehearing. If the award is vacated on a ground stated in subsection (1)(a) or (b) of this section, the rehearing must be before a new arbitrator. If the award is vacated on a ground stated in subsection (1)(c), (d) or (f) of this section, the rehearing may be before the arbitrator who made the award or before any successor appointed for that arbitrator. The arbitrator must render the decision in the rehearing within the same time as that provided for an award in section 19 (2) of this 2003 Act.

(4) If the court denies a petition to vacate an award, it shall confirm the award unless a petition to modify or correct the award is pending.

SECTION 24. Modification or correction of award. (1) Upon petition filed within 20 days after the petitioner is served with a petition for confirmation of an award under section 22 of this 2003 Act, the court shall modify or correct the award if:

(a) There was an evident mathematical miscalculation or an evident mistake in the description of a person, thing or property referred to in the award;

(b) The arbitrator has made an award on a claim not submitted to the arbitrator and the award may be corrected without affecting the merits of the decision upon the claims submitted; or

(c) The award is imperfect in a matter of form not affecting the merits of the decision on the claims submitted.

(2) If a petition made under subsection (1) of this section is granted, the court shall modify or correct and confirm the award as modified or corrected. Otherwise, unless a petition to vacate is pending, the court shall confirm the award.

(3) A petition to modify or correct an award pursuant to this section may be joined with a petition to vacate the award.

(4) A party filing a petition under this section must serve a copy of the petition on all other parties to the proceedings.

SECTION 25. Judgment on award; attorney fees and litigation expenses. (1) Upon granting an order confirming, vacating without directing a rehearing, modifying or correcting an award, the court shall enter a judgment in conformity with the order. The judgment may be entered in the register and enforced as any other judgment in a civil action.

(2) A court may allow reasonable costs of the petition and subsequent judicial proceedings.

(3) On application of a prevailing party to a contested judicial proceeding under section 22, 23 or 24 of this 2003 Act, the court may add reasonable attorney fees incurred in a judicial proceeding after the award is made to a judgment confirming, vacating without directing a rehearing, modifying or correcting an award.

SECTION 26. Jurisdiction. (1) A court having jurisdiction over the controversy and the parties may enforce an agreement to arbitrate.

(2) An agreement to arbitrate providing for arbitration in this state confers exclusive jurisdiction on the court to enter judgment on an award under sections 1 to 30 of this 2003 Act.

SECTION 27. Venue. A petition pursuant to section 5 of this 2003 Act must be made in the court for the county in which the agreement to arbitrate specifies the arbitration hearing is to be held or, if the hearing has been held, in the court for the county in which it was held. Otherwise, the petition may be made in the court for any county in which an adverse party resides or has a place of business or, if no adverse party has a residence or place of business in this state, in the court of any county in this state. All subsequent petitions must be made in the court hearing the initial petition unless the court otherwise directs.

SECTION 28. Appeals. (1) An appeal may be taken from:

(a) An order denying a petition to compel arbitration.

(b) An order granting a petition to stay arbitration.

(c) A judgment entered pursuant to sections 1 to 30 of this 2003 Act, including but not limited to a judgment:

(A) Confirming or denying confirmation of an award.

(B) Modifying or correcting an award.

(C) Vacating an award without directing a rehearing.

(2) An appeal under this section must be taken as provided in ORS chapter 19.

SECTION 29. Uniformity of application and construction. In applying and construing sections 1 to 30 of this 2003 Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

SECTION 30. Relationship to electronic signatures in Global and National Commerce Act. The provisions of sections 1 to 30 of this 2003 Act governing the legal effect, validity and enforceability of electronic records or electronic signatures, and of contracts performed with the use of such records or signatures, conform to the requirements of Section 102 of the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 and 7002, as in effect on the effective date of this 2003 Act.

SECTION 31. Savings clause. Sections 1 to 30 of this 2003 Act do not affect an action or proceeding commenced or right accrued before the effective date of this 2003 Act. Subject to section 3 of this 2003 Act, an arbitration agreement made before the effective date of this 2003 Act continues to be governed by ORS 36.300 to 36.365 as though those sections were not repealed by section 55 of this 2003 Act.

SECTION 32. ORS 30.330 is amended to read:

30.330. The provisions of ORS 30.310 and 30.320 [shall] do not apply to contracts made by the Department of Transportation that provide for arbitration under the provisions of [ORS 36.300 to 36.365] sections 1 to 30 of this 2003 Act.

SECTION 33. ORS 35.346 is amended to read:

35.346. (1) At least 20 days prior to the filing of any action for condemnation of property or any interest therein, the condemner shall make a written offer to the owner or party having an interest to purchase the property or interest, and to pay just compensation therefor and for any compensable damages to remaining property.

(2) The offer shall be accompanied by any written appraisal upon which the condemner relied in establishing the amount of compensation offered. If the condemner determines that the amount of just compensation due is less than $20,000, the condemner, in lieu of a written appraisal, may provide to the owner or other person having an interest in the property a written explanation of the bases and method by which the condemner arrived at the specific valuation of the property. The amount of just compensation offered shall not be reduced by amendment or otherwise before or during trial except on order of the court entered not less than 60 days prior to trial. An order for reduction of just compensation offered, pleaded by the condemner in the complaint or deposited with the court for the use and benefit of the owner pending outcome of the condemnation action, may be entered only upon motion of the condemner and a finding by clear and convincing evidence that the appraisal upon which the original offer is based was the result of a mistake of material fact that was not known and could not reasonably have been known at the time of the original appraisal or was based on a mistake of law.

(3) Unless otherwise agreed to by the condemner and the owner, prior to appraising the property the condemner shall provide not less than 15 days’ written notice to the owner of the planned appraisal inspection. The property owner and designated representative, if any, shall be invited to accompany the condemner’s appraiser on any inspection of the property for appraisal purposes.

(4) The owner shall have not less than 40 days from the date of receipt of the initial written offer and the accompanying appraisal from the condemner to accept or reject the offer. If the owner rejects the condemner’s offer and obtains a separate appraisal, the owner shall provide the condemner with a copy of the owner’s appraisal not less than 60 days prior to trial or arbitration.

(5)(a) Failure to provide the opposing party with a copy of the appropriate appraisal as provided in subsections (2) and (4) of this section shall prohibit the use of the appraisal in arbitration or at trial.

(b) In the event the owner and condemner are unable to reach agreement and proceed to trial or arbitration as provided in subsection (6) of this section, each party to the proceeding shall provide to every other party a copy of every appraisal obtained by the party as part of the condemnation action.

(6)(a) If an action based on the condemnation is filed, the owner may elect to have compensation determined by binding arbitration if the total amount of compensation claimed by any party does not exceed $20,000. Notice of an election of binding arbitration must be given to the condemner at least 90 days prior to the date on which an arbitration hearing is scheduled under ORS 36.420.

(b) Notwithstanding the amounts established under ORS 36.400, if the owner elects to proceed with binding arbitration, the arbitration shall be conducted according to the mandatory arbitration program established under ORS 36.400 to 36.425. Notwithstanding ORS 36.425, no party may request a trial de novo after the filing of the decision and award of the arbitrator. Within 20 days after the filing of the decision and award of the arbitrator under ORS 36.425, any party may file [exceptions to the award] a motion with the court for the vacation, modification or correction of the award. [Exceptions to the award may only be for one or more of the reasons specified in ORS 36.355. The court shall rule on the exceptions as provided in ORS 36.360 and any appeal from the court’s judgment on the exceptions shall be as provided in ORS 36.365.] The court may vacate an award only if there is a basis to vacate the award described in section 23 (1)(a) to (d) of this 2003 Act. The court may modify or correct an award only for the grounds given in section 24 of this 2003 Act. Except as provided in this subsection, no party may appeal from the decision and award of an arbitrator if the owner elects binding arbitration in lieu of trial.

(c) If the total amount of compensation claimed exceeds $20,000 but is less than $50,000, the owner may elect to have compensation determined by nonbinding arbitration under the applicable provisions of ORS 36.400 to 36.425.

(7) If a trial is held or arbitration conducted for the fixing of the amount of compensation to be awarded to the defendant owner or party having an interest in the property being condemned, the court or arbitrator shall award said defendant costs and disbursements including reasonable attorney fees and reasonable expenses as defined in ORS 35.335 (2) in the following cases, and no other:

(a) If the amount of just compensation assessed by the verdict in the trial exceeds the highest written offer in settlement submitted by condemner to those defendants appearing in the action at least 30 days prior to commencement of said trial; or

(b) If the court finds that the first written offer made by condemner to defendant in settlement prior to filing of the action did not constitute a good faith offer of an amount reasonably believed by condemner to be just compensation.

(8) Costs and disbursements other than reasonable attorney fees and expenses as defined in ORS 35.335 (2) shall be awarded to condemner in all cases other than those in which defendant is entitled to costs and disbursements under subsection (7) of this section.

SECTION 34. ORS 105.180 is amended to read:

105.180. (1) If any holder of an interest in an easement fails to maintain the easement contrary to an agreement or contrary to the maintenance provisions of a recorded instrument creating the easement or, in the absence of an agreement or recorded instrument imposing maintenance obligations, fails after demand in writing to pay the holder’s proportion of the cost as indicated in ORS 105.175 (3) and (4), a civil action for money damages or specific performance or contribution may be brought against that person in a court of competent jurisdiction by one or more of the other holders of an interest in the easement, either jointly or severally. In any such civil action, the court may order such equitable relief as may be just in the circumstances. Nothing in ORS 105.170 to 105.185 shall impose a maintenance obligation on the holder of an interest in an easement based on the maintenance provisions in an instrument creating the easement if such holder is not a party to such instrument, whether the instrument is recorded or not, after such holder ceases to use the easement.

(2) The prevailing party shall recover all court costs, arbitration fees and attorney fees.

(3) Any holder of an interest in the easement may apply to the court of competent jurisdiction where the easement is located and that has jurisdiction over the amount in controversy for the appointment of an impartial arbitrator to apportion the cost, and the matter may be arbitrated in accordance with [ORS 36.300 to 36.365] sections 1 to 30 of this 2003 Act. The application may be made before, during or after performance of the maintenance work.

SECTION 35. ORS 190.790 is amended to read:

190.790. (1) The arbitrator may grant any relief deemed appropriate.

(2) The arbitrator may order submission of written briefs within 30 days after the close of hearings. In addition to a brief, each party may summarize the evidence and propose an award.

(3) The arbitrator shall issue a written opinion and award within 30 days after the close of the hearing or the receipt of briefs, if ordered.

(4) Damages or other remedies shall be without limitation as to nature or amount unless otherwise provided by law.

(5) [The award shall be filed with a clerk as provided by ORS 36.350.] A party may file a petition with a court for confirmation of the award as provided in section 22 of this 2003 Act. If the dispute involves real property, the award [shall] must be filed in the county or counties in which the property is located.

SECTION 36. ORS 190.800 is amended to read:

190.800. [Exceptions to the award and appeal from a judgment on the award shall be taken as provided by ORS 36.355 to 36.365.] A party may petition a court for vacation, modification or correction of an arbitration award under ORS 190.790 in the manner provided by sections 23 and 24 of this 2003 Act. The court may vacate an award only if there is a basis to vacate the award described in section 23 (1)(a) to (d) of this 2003 Act. The court may modify or correct an award only for the grounds given in section 24 of this 2003 Act.

SECTION 37. ORS 197.375 is amended to read:

197.375. (1) An appeal of a decision made under ORS 197.360 and 197.365 shall be made as follows:

(a) An appeal must be filed with the local government within 14 days of mailing of the notice of the decision under ORS 197.365 (4), and shall be accompanied by a $300 deposit for costs.

(b) A decision may be appealed by:

(A) The applicant; or

(B) Any person or organization who files written comments in the time period established under ORS 197.365.

(A) Of violation of the substantive provisions of the applicable land use regulations;

(B) Of unconstitutionality of the decision;

(C) That the application is not eligible for review under ORS 197.360 to 197.380 and should be reviewed as a land use decision or limited land use decision; or

(D) That the parties’ substantive rights have been substantially prejudiced by an error in procedure by the local government.

(2) The local government shall appoint a referee to decide the appeal of a decision made under ORS 197.360 and 197.365. The referee shall not be an employee or official of the local government. However, a local government that has designated a hearings officer under ORS 215.406 or 227.165 may designate the hearings officer as the referee for appeals of a decision made under ORS 197.360 and 197.365.

(3) Within seven days of being appointed to decide the appeal, the referee shall notify the applicant, the local government, the appellant if other than the applicant, any person or organization entitled to notice under ORS 197.365 (2) that provided written comments to the local government and all providers of public facilities and services entitled to notice under ORS 197.365 (2) and advise them of the manner in which they may participate in the appeal. A person or organization that provided written comments to the local government but did not file an appeal under subsection (1) of this section may participate only with respect to the issues raised in the written comments submitted by that person or organization. The referee may use any procedure for decision-making consistent with the interests of the parties to ensure a fair opportunity to present information and argument. The referee shall provide the local government an opportunity to explain its decision, but is not limited to reviewing the local government decision and may consider information not presented to the local government.

(4)(a) The referee shall apply the substantive requirements of the local government’s land use regulations and ORS 197.360. If the referee determines that the application does not qualify as an expedited land division as described in ORS 197.360, the referee shall remand the application for consideration as a land use decision or limited land use decision. In all other cases, the referee shall seek to identify means by which the application can satisfy the applicable requirements.

(b) The referee may not reduce the density of the land division application. The referee shall make a written decision approving or denying the application or approving it with conditions designed to ensure that the application satisfies the land use regulations, within 42 days of the filing of an appeal. The referee may not remand the application to the local government for any reason other than as set forth in this subsection.

(5) Unless the governing body of the local government finds exigent circumstances, a referee who fails to issue a written decision within 42 days of the filing of an appeal shall receive no compensation for service as referee in the appeal.

(6) Notwithstanding any other provision of law, the referee shall order the local government to refund the deposit for costs to an appellant who materially improves his or her position from the decision of the local government. The referee shall assess the cost of the appeal in excess of the deposit for costs, up to a maximum of $500, including the deposit paid under subsection (1) of this section, against an appellant who does not materially improve his or her position from the decision of the local government. The local government shall pay the portion of the costs of the appeal not assessed against the appellant. The costs of the appeal include the compensation paid the referee and costs incurred by the local government, but not the costs of other parties.

(7) The Land Use Board of Appeals does not have jurisdiction to consider any decisions, aspects of decisions or actions made under ORS 197.360 to 197.380.

(8) Any party to a proceeding before a referee under this section may seek judicial review of the referee’s decision in the manner provided for review of final orders of the Land Use Board of Appeals under ORS 197.850 and 197.855. The Court of Appeals shall review decisions of the referee in the same manner as provided for review of final orders of the Land Use Board of Appeals in those statutes. However, notwithstanding ORS 197.850 (9) or any other provision of law, the court shall reverse or remand the decision only if [it] the court finds:

(a) That the decision does not concern an expedited land division as described in ORS 197.360 and the appellant raised this issue in proceedings before the referee;

(b) That there is a basis to [reverse or remand] vacate the decision as described [in ORS 36.355 (1)] in section 23 (1)(a) to (d) of this 2003 Act, or a basis for modification or correction of an award as described in section 24 of this 2003 Act; or

SECTION 38. ORS 222.530 is amended to read:

222.530. (1) Within 90 days from the date of such withdrawal of part of a rural fire protection district, a highway lighting district, a special road district or a park and recreation district, the governing bodies of the city and the district shall agree upon an equitable division and disposal of the assets of the district. The plan of division of assets shall be arrived at after giving consideration to the assessed valuation of the whole district and the part of it withdrawn, the types of assets, and their location and intended use. However, the plan for division of assets of a rural fire protection district may in no case divide the assets so that the remaining part of the district would have a less favorable fire insurance grade classification, according to filings made pursuant to ORS 737.205, than that which the district had at the time of the withdrawal.

(2) The remainder of such district shall continue in existence as a district, but may dissolve in the manner provided in the applicable district statutes. After withdrawal, the services for the remaining part may be performed by the remainder of the district acting independently as such; or, such services may be performed by contract with the city, or by agreement of the city directly with the property owners of the remainder if the district determines upon dissolution. If dissolution is determined upon, and the city agrees to furnish service to the remainder of the district, all assets of the district shall become the property of the city.

(3) If an agreement pursuant to subsection (1) of this section cannot be arrived at within 90 days from the date of withdrawal, upon the request of any party in interest, the county court or board of county commissioners of the county in which the property is situated shall submit the matter to arbitration under [ORS 36.300 to 36.365] sections 1 to 30 of this 2003 Act.

(4) [Service] Notice under [ORS 36.350] section 19 of this 2003 Act need be made only upon parties in interest who have participated in the arbitration proceedings. An appeal from the award may be taken only to the circuit court for the county in which the property withdrawn is located, subject to further appeal [under ORS 36.365] as provided in ORS chapter 19. The functions of the district for the entire preexisting area thereof shall be continued by the district until the final determination of such agreement or arbitration.

(5) The governing bodies of the city and a rural fire protection district, a special road district or a park and recreation district, as the case may be, may enter into a binding agreement for the joint operation of the fire protection or park and recreation facilities of each that will be beneficial to and equitable for the inhabitants and property owners of each after the withdrawal of part of such districts.

SECTION 39. ORS 330.123 is amended to read:

330.123. (1) When changes in school district boundaries are made by the detachment of territory or annexation of less than an entire school district to another, the district school boards of the districts affected by each change shall immediately after the change make an equitable division of the then existing assets and liabilities between the districts affected by such change and provide the manner of consummating the division.

(2) In case of failure to agree within 20 days from the time the district boundary board issues its order, the matter shall be decided by a board of arbitrators. The board of arbitrators shall consist of one member appointed by each of the boards of the school districts affected and an additional member appointed by the other appointees.

(3) In the event any such district school board fails to appoint an arbitrator within 30 days, the Superintendent of Public Instruction shall appoint such arbitrator. In the event the arbitrators selected fail to appoint the additional arbitrator within 30 days after the appointment of the arbitrator last appointed, the Superintendent of Public Instruction shall notify the judge of the circuit court senior in service of the county in which the administrative office of the most populous school district is located. Within 10 days after receiving such notice, the judge shall appoint the additional arbitrator.

(4) Each member of the board of arbitrators shall be entitled to the sum of $20 per day for each day’s service, and necessary traveling expenses, while sitting in the official capacity of the member. Expenses thus incurred shall be equally apportioned among the districts concerned.

[(5) The decision of the arbitrators is final and may be reviewed in the manner provided in ORS 36.355 to 36.365.]

(5) A party to an arbitration under this section may seek confirmation, vacation, modification or correction of the arbitrator’s decision as provided in sections 22, 23 and 24 of this 2003 Act. A court may vacate an award only if there is a basis to vacate the award described in section 23 (1)(a) to (d) of this 2003 Act. The court may modify or correct an award only for the grounds given in section 24 of this 2003 Act.

(6) Assets include all school property and moneys belonging to the district at the time of the division. Liabilities include all debts for which the respective districts in their corporate capacities are liable at the time of division. In determining the assets, school property shall be estimated at its real market value. The assets and liabilities shall be divided between the districts in proportion to the last assessed value of the real and personal property. The district retaining the real property shall pay the other districts concerned such sums as are determined in accordance with the provisions of this section. All funds to be apportioned during the current school year, after such division, shall be made in proportion to the resident average daily membership of the districts divided, as shown by the report of such districts for the period ending the preceding June 30 as certified by the districts to the administrative office of the county.

SECTION 40. ORS 341.573 is amended to read:

341.573. (1) When changes in district boundaries are made by the detachment of territory or an annexation of territory and another community college district is affected, the boards of the districts shall make an equitable division of the then existing assets and liabilities between the districts affected by such change and provide the manner of consummating the division.

(2) In case of failure to agree within 20 days from the time of such change, the matter shall be decided by a board of arbitrators. The board of arbitrators shall consist of one member appointed by each of the boards of the affected districts and an additional member appointed by the other appointees.

(3) In the event any such board fails to appoint an arbitrator within 30 days, the State Board of Education shall appoint such arbitrator. In the event the arbitrators selected fail to appoint the additional arbitrator within 30 days after the appointment of the arbitrator last appointed, the State Board of Education shall notify the judge senior in service of the circuit court of the principal county. Within 10 days after receiving such notice, the judge shall appoint one additional arbitrator.

(4) Each member of the board of arbitrators shall be entitled to the sum of $100 per day for each day’s service, and necessary expenses, while serving in the official capacity of the member. Expenses thus incurred shall be equally apportioned among the districts concerned.

[(5) The decision of the arbitrators is final and may be reviewed in the manner provided in ORS 36.355 to 36.365.]

(6) Assets include all property and moneys belonging to the district at the time of division. Liabilities include all debts for which the respective districts in their corporate capacities are liable at the time of division. In determining the assets, property shall be estimated at its fair value. The assets and liabilities shall be divided between the districts in proportion to the last assessed value of the real and personal property. The district retaining the real property shall pay the other districts concerned such sums as are determined in accordance with the provisions of this section. All funds to be apportioned during the current fiscal year, after such division, shall be made in proportion to the number of persons in each district according to the latest federal census.

SECTION 41. ORS 376.345 is amended to read:

376.345. Every contract entered into pursuant to ORS 376.305 to 376.390 shall:

(1) Describe the road and the termini thereof.

(2) Specify the width of the roadbed and contain reasonably complete specifications, prepared by the county roadmaster or other competent person, of the improvement and maintenance work to be done.

(3) Specify the time within which the improvement work other than maintenance shall be completed.

(4) Contain such provisions pertaining to maintenance as may be agreed upon by the parties.

(5) Obligate the forest road contractor to furnish all labor and materials required for the work the contractor has contracted to do.

(6) Provide that the same rights and privileges on the contract forest road as are available to the forest road contractor are available to any other logging operator:

(a) Upon approval by the county court;

(b) Upon the logging operator furnishing insurance as provided in ORS 376.340;

(c) Upon the logging operator reimbursing the forest road contractor for an equitable portion of the construction costs, if any, borne by the forest road contractor; and

(d) Upon the equitable sharing of the logging operator with the forest road contractor in the costs of maintaining the road, provision being made for either the specific rates therefor per 1,000 feet board measure of timber or equivalent of forest products transported over the road or, in the alternative, a formula for determining such rates with a provision for arbitration[, in accordance with ORS 36.300 to 36.365] under sections 1 to 30 of this 2003 Act, in the event of disagreement between the forest road contractor and another logging operator respecting the application of the formula.

SECTION 42. ORS 390.240 is amended to read:

390.240. (1) The following disputes shall be submitted to mediation and if mediation is not successful to arbitration as described in this section:

(a) A dispute with regard to the issuance of an archaeological permit under ORS 390.235; or

(b) A dispute over the disposition of human skeletal remains or burial goods under ORS 97.750.

(2) The State Parks and Recreation Commission in consultation with the Dispute Resolution Commission and the governing bodies of the Oregon Indian tribes shall adopt rules to establish mediation and arbitration procedures. [Such rules shall provide for appeal as described in ORS 36.365.]

(3) Until rules are adopted and procedures implemented under subsection (2) of this section, the State Parks and Recreation Commission shall adopt interim rules that provide for resolution of disputes. The arbitration panel under such a program shall consist of:

(a) The State Historic Preservation Officer or the officer’s designee;

(b) A representative of the Commission on Indian Services;

(d) A representative of a governing body of a federally recognized Oregon Indian tribe; and

(e) A representative of the public, selected by the Dispute Resolution Commission.

SECTION 43. ORS 401.785 is amended to read:

401.785. (1) All disputes between a governing body, 9-1-1 jurisdiction and public or private safety agency regarding a 9-1-1 system, not otherwise resolved in accordance with a written agreement shall be mediated. When a governing body or 9-1-1 jurisdiction obtains knowledge that a dispute exists and cannot be resolved by the agencies, it shall notify the Office of Emergency Management of the dispute in writing. Within 30 days of this notification, the disputing agencies shall mutually select a mediator and notify the office in writing of this selection. If a mediator is not mutually selected by the agencies within this period, the director of the office shall select a mediator from the list of mediators established under subsection (3) of this section. Once selected, the mediator shall establish a schedule for the mediation process. The disputing agencies shall have 60 days from the date the mediator is agreed upon or selected to mediate the dispute unless the agencies mutually agree in writing to an extension of this deadline. A copy of all extensions shall be submitted to the office.

(2) When the mediation process in subsection (1) of this section ends, the mediator shall notify the office in writing of the outcome of the mediation. If the agencies are not able to resolve their dispute through mediation, the 9-1-1 jurisdiction or governing body and public or private safety agency or agencies shall submit the dispute to arbitration. The agencies shall have 30 days from the end of the mediation to select an arbitrator. If the disputing agencies are unable to mutually select an arbitrator within this period, the director of the office shall request the presiding judge for the judicial district in which the 9-1-1 system is located to select an arbitrator. The arbitrator shall have 30 days from selection to hear and decide the dispute unless the agencies mutually agree in writing to an extension of this deadline. [Except as provided for in ORS 36.350 to 36.365, the decision of the arbitrator shall be final.] A party to an arbitration under this subsection may seek confirmation, vacation, modification or correction of the arbitrator’s decision as provided in sections 22, 23 and 24 of this 2003 Act. A court may vacate a decision only if there is a basis to vacate the decision as described in section 23 (1)(a) to (d) of this 2003 Act. The court may modify or correct a decision only for the grounds given in section 24 of this 2003 Act.

(3) The office shall establish a roster of mediators qualified to mediate disputes under subsection (1) of this section. This list may be used by the disputing agencies when selecting a mediator.

(4) Unless otherwise agreed upon, the costs of the mediation or arbitration, including the mediator’s or arbitrator’s fees, shall be divided equally among the disputing agencies.

SECTION 44. ORS 421.628 is amended to read:

421.628. (1) Notwithstanding ORS 169.690, 195.025, 197.180, 215.130 (4) and 227.286 or any other provision of law, including but not limited to statutes, ordinances, regulations and charter provisions, the decisions of the Corrections Facilities Siting Authority, if approved by the Governor, shall bind the state and all counties, cities and political subdivisions in this state as to the approval of the sites and the construction and operation of the proposed corrections facilities. Affected state agencies, counties, cities and political subdivisions shall issue the appropriate permits, licenses and certificates and enter into any intergovernmental agreements as necessary for construction and operation of the facilities, subject only to the conditions of the siting decisions.

(2) Each state or local governmental agency that issues a permit, license or certificate shall continue to exercise enforcement authority over the permit, license or certificate.

(3) Except as provided in subsections (4) to (16) of this section, nothing in ORS 421.611 to 421.630 expands or alters the obligations of cities, counties and political subdivisions to pay for infrastructure improvements for the proposed corrections facilities.

(4) The Department of Corrections shall seek to obtain public services necessary for the construction and operation of corrections facilities from a public body providing such services. The department shall not acquire or develop and furnish its own public services under this section that could be provided by a public body unless the department concludes that the state can achieve significant cost savings by doing so.

(5) Upon request of the Department of Corrections, a public body furnishing public services shall make public services available to the department that are either necessary for the construction and operation of a corrections facility or required by additions to or remodeling of a corrections facility sited or constructed under ORS 421.611 to 421.630 or any other law. All rates, terms and conditions of furnishing public services shall be just, fair and reasonable. A just, fair and reasonable rate shall assure the public body the recovery of the additional costs of providing and maintaining the requested service to the corrections facility, including, but not limited to, feasibility and design engineering costs, and reasonable capacity replacement, but shall not exceed the public body’s actual capital and operating expenses, including reasonable reserves charged to all ratepayers, for such service. The public body’s rates, terms and conditions shall be conclusively deemed to be just, fair and reasonable if the department and public body so agree in writing.

(6) If the Department of Corrections and the public body cannot agree on the rates, terms and conditions of furnishing necessary public services to a corrections facility, either the department or the public body may deliver to the other a notice of request to mediate any disputed issues, including, but not limited to, whether the department can achieve significant cost savings to the state by acquiring or developing and furnishing its own public services. If either the department or the public body requests mediation, the other shall participate in good faith in such mediation. Unless otherwise agreed by the department and the public body, the mediation shall be concluded within 30 days of delivery of the notice of request to mediate.

(7) If the mediation fails to resolve the issues in dispute, or if mediation is not requested by either the Department of Corrections or the public body, the department and the public body may agree to submit any disputed matters to arbitration. The arbitration may be either binding or nonbinding. If the department and the public body cannot agree on the selection of the arbitrator and the arbitration rules and procedure, upon motion directed to the Court of Appeals, the Chief Judge of the Court of Appeals shall select the arbitrator and decide the rules and procedure. The arbitrator’s decision and award shall be guided by the standards set forth in this section. The decision and award of the arbitrator shall be final and binding on the department and the public body only if they agree to enter into binding arbitration prior to the initiation of the arbitration. If the department and public body have agreed to binding arbitration of disputed issues, either the department or the public body, if dissatisfied with the arbitrator’s decision and award, may file exceptions in the Court of Appeals within 21 days of the issuance of the decision and award. Exceptions shall be limited to the causes set forth in [ORS 36.355 (1)] section 23 (1)(a) to (d) of this 2003 Act, and to the grounds for modification or correction of an award under section 24 of this 2003 Act. If any of the exceptions requires consideration of facts that do not appear on the face of the arbitrator’s decision and award or is not stipulated to by the parties, the court may appoint a master to take evidence and make the necessary factual findings. The Court of Appeals’ decision shall be final and not subject to further review.

(8) If the Department of Corrections and the public body have submitted disputed matters to nonbinding arbitration or if the department and public body have chosen not to submit disputed matters to arbitration, the department shall issue a preliminary order to the public body that either concludes that the state can achieve significant costs savings by acquiring or developing and furnishing its own public services, or establishes the rates, terms and conditions upon which the public body shall make necessary public services available to the department for the corrections facility. The public body, no later than 15 days following the department’s issuance of its preliminary order, may contest the preliminary order by filing a written notice to that effect with the department. The preliminary order shall become final, binding and conclusive if the public body fails to request a hearing within the time permitted in this section.

(9) If a hearing is requested, the department shall provide the public body with an opportunity to be heard and shall issue its final order upon conclusion of the hearing. The department shall establish procedures to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to afford the public body a reasonable opportunity for a fair hearing. The procedures shall ensure that the public body has a reasonable opportunity to place in the record the information upon which the public body relies as a basis for its position. The department’s order shall be guided by the standards set forth in this section.

(10) Proceedings for review of the department’s final order shall be instituted when the affected public body files a petition with the Court of Appeals that meets the following requirements:

(a) The petition shall be filed within 21 days of issuance of the final order on which the petition is based.

(b) The petitioner shall serve a copy of the petition by registered or certified mail upon the Department of Corrections and the Attorney General.

(11) Within 30 days after service of the petition, the department shall transmit to the Court of Appeals the original or a certified copy of the entire record and any findings that may have been made.

(12) The Court of Appeals shall review the final order of the Department of Corrections de novo on the record created before the department. The Court of Appeals’ decision shall be final and not subject to further review.

(13) Proceedings for review in the Court of Appeals under this section shall be given priority over all other matters before the Court of Appeals.

(14) The Department of Corrections or other state agency shall not be required to make payments to the public body for necessary public services to a corrections facility in excess of funds that are legally available for such purposes.

(15) Nothing in this section shall require a public body to furnish public services to the Department of Corrections for a corrections facility in the event that the Legislative Assembly fails to make funds available in an amount sufficient to pay the state’s share of costs of such services as determined under this section.

(16) As used in this section, “public services” means off-site infrastructure, including, but not limited to, sewer and water systems and service, and road improvements.

SECTION 45. ORS 421.628, as amended by section 9, chapter 516, Oregon Laws 2001, is amended to read:

421.628. (1) Notwithstanding ORS 169.690, 195.025, 197.180, 215.130 (4) and 227.286 or any other provision of law, including but not limited to statutes, ordinances, regulations and charter provisions, and except for permit decisions delegated by the federal government to the Division of State Lands, the decisions of the Corrections Facilities Siting Authority, if approved by the Governor, shall bind the state and all counties, cities and political subdivisions in this state as to the approval of the sites and the construction and operation of the proposed corrections facilities. Except for those statutes and rules for which permit decisions have been delegated by the federal government to the Division of State Lands, all affected state agencies, counties, cities and political subdivisions shall issue the appropriate permits, licenses and certificates and enter into any intergovernmental agreements as necessary for construction and operation of the facilities, subject only to the conditions of the siting decisions.

(2) Each state or local governmental agency that issues a permit, license or certificate shall continue to exercise enforcement authority over the permit, license or certificate.

(4) The Department of Corrections shall seek to obtain public services necessary for the construction and operation of corrections facilities from a public body providing such services. The department may not acquire or develop and furnish its own public services under this section that could be provided by a public body unless the department concludes that the state can achieve significant cost savings by doing so.

(5) Upon request of the Department of Corrections, a public body furnishing public services shall make public services available to the department that are either necessary for the construction and operation of a corrections facility or required by additions to or remodeling of a corrections facility sited or constructed under ORS 421.611 to 421.630 or any other law. All rates, terms and conditions of furnishing public services shall be just, fair and reasonable. A just, fair and reasonable rate shall assure the public body the recovery of the additional costs of providing and maintaining the requested service to the corrections facility, including, but not limited to, feasibility and design engineering costs, and reasonable capacity replacement, but may not exceed the public body’s actual capital and operating expenses, including reasonable reserves charged to all ratepayers, for such service. The public body’s rates, terms and conditions shall be conclusively deemed to be just, fair and reasonable if the department and public body so agree in writing.

(10) Proceedings for review of the department’s final order shall be instituted when the affected public body files a petition with the Court of Appeals that meets the following requirements:

(a) The petition shall be filed within 21 days of issuance of the final order on which the petition is based.

(b) The petitioner shall serve a copy of the petition by registered or certified mail upon the Department of Corrections and the Attorney General.

(13) Proceedings for review in the Court of Appeals under this section shall be given priority over all other matters before the Court of Appeals.

(14) The Department of Corrections or other state agency is not required to make payments to the public body for necessary public services to a corrections facility in excess of funds that are legally available for such purposes.

(15) This section does not require a public body to furnish public services to the Department of Corrections for a corrections facility in the event that the Legislative Assembly fails to make funds available in an amount sufficient to pay the state’s share of costs of such services as determined under this section.

(16) As used in this section, “public services” means off-site infrastructure, including, but not limited to, sewer and water systems and service, and road improvements.

SECTION 46. ORS 549.645 is amended to read:

549.645. Except upon contracts providing for arbitration under the provisions of [ORS 36.300 to 36.365] sections 1 to 30 of this 2003 Act, a suit or action may be maintained against the State of Oregon through and in the name of the Water Resources Commission for an injury to the rights of the plaintiff arising from some act or omission attributable to the Water Resources Commission acting as authorized by ORS 549.605 to 549.645.

SECTION 47. ORS 646.451 is amended to read:

646.451. (1) Any party to a retailer agreement aggrieved by the conduct of the other party to the agreement with respect to the provisions of ORS 646.447 or 646.449 may seek arbitration of the issues involved in the decision of the other party pursuant to the provisions of [ORS 36.300 to 36.365] sections 1 to 30 of this 2003 Act. The arbitration shall also be pursuant to the commercial arbitration rules of the American Arbitration Association. The findings and conclusions of the arbitrator or panel of arbitrators shall be binding upon both parties. Upon demand for arbitration by one party, it shall be presumed for purposes of the provisions of [ORS 36.300 to 36.365] sections 1 to 30 of this 2003 Act that the parties have consented to arbitration, that the costs of witness fees and other fees in the case, together with reasonable attorney fees, shall be paid by the losing party.

(2) Notwithstanding subsection (1) of this section, any retailer has a cause of action against a supplier for damages sustained by the retailer as a consequence of the supplier’s violation of any provisions of ORS 646.447 or 646.449, together with the actual costs of such action, including reasonable attorney fees.

(3) The retailer may also be granted injunctive relief against unlawful termination, cancellation, nonrenewal or change in competitive circumstances as determined under subsection (1) of this section or by a court.

(4) The remedies set forth in this subsection shall not be considered exclusive and shall be in addition to any other remedies permitted by law, unless the parties have chosen binding arbitration under subsection (1) of this section.

SECTION 47a. If House Bill 2694 becomes law, section 47 of this 2003 Act (amending ORS 646.451) is repealed and ORS 646.451, as amended by section 6, chapter 466, Oregon Laws 2003 (Enrolled House Bill 2694), is amended to read:

646.451. (1)(a) Any party to a retailer agreement aggrieved by the conduct of the other party to the agreement under ORS 646.447 or 646.449 or section 8, 9, 10 or 11, chapter 466, Oregon Laws 2003 (Enrolled House Bill 2694), [of this 2003 Act] may seek arbitration of the issues under [ORS 36.300 to 36.365] sections 1 to 30 of this 2003 Act. Unless the parties agree to different arbitration rules, the arbitration shall be conducted pursuant to the commercial arbitration rules of the American Arbitration Association. If the parties agree, the arbitration shall be the parties’ only remedy and the findings and conclusions of the arbitrator or panel of arbitrators shall be binding upon both parties.

(b) The arbitrator or arbitrators may award the prevailing party:

(A) The costs of witness fees and other fees in the case;

(B) Reasonable attorney fees; and

(2) Notwithstanding subsection (1) of this section, any retailer has a civil cause of action in circuit court against a supplier for damages sustained by the retailer as a consequence of the supplier’s violation of ORS 646.447 or 646.449 or section 8, 9, 10 or 11, chapter 466, Oregon Laws 2003 (Enrolled House Bill 2694) [of this 2003 Act], together with:

(a) The actual costs of the action;

(b) Reasonable attorney fees; and

(3) A supplier bears the burden of proving that a retailer’s area of responsibility or trade area does not afford sufficient sales potential to reasonably support the retailer. The supplier’s proof must be in writing.

(4) The remedies set forth in this section are not exclusive and are in addition to any other remedies permitted by law, unless the parties have chosen binding arbitration under subsection (1) of this section.

SECTION 48. ORS 671.703 is amended to read:

671.703. (1) If a person has a claim against a licensed landscaping business for negligent or improper work performed by the landscaping business, or for alleged breach of contract by the landscaping business, the person may file the claim with the State Landscape Contractors Board.

(2) Upon receipt of a claim that qualifies under subsection (1) of this section, the board shall initiate an investigation. Upon completion of the investigation, if the board determines that facts exist supporting an order for payment, the board may order the landscaping business to pay the claim. A party to the claim may request a hearing on the order issued by the board.

(3) Subject to subsection (6) of this section, if the resolution of a claim under this section requires a hearing, the board may require that the hearing be conducted as a binding arbitration under rules adopted by the board under subsection (5) of this section.

(4) The board may use arbitration to resolve a landscaping dispute between any parties who agree to follow the rules of the board, including parties to a dispute not described under subsection (1) of this section.

[(5) Rules adopted by the board to regulate arbitration under subsections (3) and (4) of this section must substantially conform with the provisions of ORS 36.300 to 36.365. The rules may include, but are not limited to, requirements that:]

[(a) The arbitrator send copies of an arbitration award to the parties and the board and allow the parties an opportunity to request reconsideration of the award;]

[(b) The arbitrator address in writing any issue raised in a request for reconsideration of the award;]

[(c) The arbitrator delay submitting to the clerk of the circuit court an arbitration award that is or may become subject to a request for reconsideration; and]

[(d) The request for reconsideration and the arbitrator’s response to the request, including any matter the arbitrator is required to address, be included with the award of the arbitrator and the written agreement to submit that is sent to the clerk of the circuit court under ORS 36.350.]

(5) Except as provided in this subsection, rules adopted by the board to regulate arbitration under subsections (3) and (4) of this section must substantially conform with the provisions of sections 1, 4 to 8, 9 (2), 10, 11 (2), 12 to 18, 19 (1) and 20 to 30 of this 2003 Act. The rules may:

(a) Require that a hearing under ORS 183.413 to 183.470 be conducted for issues for which a petition could be filed under sections 5, 6, 7 and 10 of this 2003 Act;

(b) Limit orders and awards made by the arbitrator as necessary to comply with ORS 671.510 to 671.710;

(c) Require that a request that an arbitrator modify or correct an award under section 20 of this 2003 Act be submitted in a form specified by the rule;

(d) Require that a petition under section 23 (2) or 24 (1) of this 2003 Act be filed in a shorter period of time than provided by sections 23 and 24 of this 2003 Act; and

(e) Include any other provision necessary to conform the arbitration to ORS 671.510 to 671.710.

(6) A party to a claim that is subject to a board order of binding arbitration under subsection (3) of this section may avoid the arbitration if the party requests to have the claim resolved through a contested case hearing or files a complaint in a court. A party making a request or filing a complaint under this subsection is subject to the following provisions:

(a) If the party requests to have a claim resolved through a contested case hearing, the party must, within the time specified in paragraph (c) of this subsection, deliver the request in writing to the board and to all parties entitled by board rule to receive a copy of the request.

(b) If the party files a complaint in a court, the party must, within the time specified in paragraph (c) of this subsection, deliver a copy of the complaint to the board and to all parties entitled by the board rule to receive a copy of the complaint. If the party filing the complaint is the claimant, the claimant must allege all elements of the claim in the complaint. If the complaint is filed by the licensed landscaping business against whom a claim is alleged, the complaint may be a complaint for damages, a complaint for declaratory judgment or other complaint that allows the claimant to file a response alleging the elements of the claim. The claimant has the burden of proving the elements of the claim in any complaint described in this paragraph.

(c) A party that is subject to paragraph (a) or (b) of this subsection must deliver a request or complaint to the board as described in paragraphs (a) and (b) of this subsection no later than the 30th day after the board sends notice that an arbitration hearing has been scheduled. Failure to timely deliver a request or complaint under this paragraph constitutes consent to the binding arbitration.

(d) If a party makes a timely request under paragraph (a) of this subsection for a contested case hearing and another party timely files a complaint in compliance with paragraph (b) of this subsection, the filing of the complaint supersedes the request for a contested case hearing.

(e) A party may not withdraw a request made in compliance with paragraph (a) of this subsection unless all parties agree to the withdrawal.

(f) The provisions of paragraph (b) of this subsection are in addition to any other requirements imposed by law regarding the filing of a complaint.

(7) An arbitration conducted under subsection (3) or (4) of this section must be held before a hearing officer acting as arbitrator. The hearing officer assigned to act as arbitrator of the case on behalf of the board must be from the Hearing Officer Panel established under section 3, chapter 849, Oregon Laws 1999. The assignment of a hearing officer to act as arbitrator is subject to a request for a different arbitrator under section 11, chapter 849, Oregon Laws 1999, or a rule adopted pursuant to section 11, chapter 849, Oregon Laws 1999.

(8) If a party to a claim under subsection (1) of this section requests a contested case hearing, the board shall schedule the hearing. If a party requests that the claim be resolved by a court, the board shall suspend further processing of the claim until the claim is resolved by an appropriate court.

(9) If the claim is submitted for determination by a court, the board may require that the claimant provide status reports on the pending action. The board may dismiss or close a claim filed under subsection (1) of this section as established by rule of the board if the claimant fails to submit status reports on a pending action.

(10) The board shall issue a final order or arbitration award in a form that indicates the maximum amount payable from the deposit, bond or letter of credit. If the landscaping business does not pay the claim on or before the 30th day after receiving the board order or award, the board shall order the claim paid out of the deposit, bond or letter of credit filed under ORS 671.690.

(11) The board may dismiss or close a claim as established by rule of the board if:

(a) The claimant does not permit the person against whom the claim is filed to be present at any inspection made by the board; or

(b) The board determines that the person against whom the claim is filed is capable of complying with recommendations made by the board relative to the claim, but the claimant does not permit the person to comply with the recommendations. The board may dismiss or close a claim under this paragraph only if the person was licensed at the time the work was first performed and is licensed at the time the board makes its recommendations.

(12) The board may suspend processing a claim if the board determines that the nature or complexity of the claim is such that a court is the appropriate forum for the adjudication of the claim.

SECTION 49. ORS 671.703, as amended by section 4, chapter 198, Oregon Laws 2001, is amended to read: