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Memorandum of Understanding
For Collection Services
County of Fresno and
Agreement No. 18-022
The Superior Court of California, County of Fresno
This memorandum of understanding ("MOU") is dated January 23, 2018, and is
between the County of Fresno, a political subdivision of the State of California
("County"), and the Superior Court of California, County of Fresno, an entity of the
.California Judicial Branch organized under Article VI of the California Constitution
("Court"). The County and Court are each a "Party" to this Agreement and the ~aunty
and Court are collectively "Parties" to this Agreement.
WHEREAS, California Penal Code Section 1463.010 requires the Court and
the County to develop a cooperative plan to implement a collection program for the
collection of fees, fines, forfeitures, penalties, and assessments incurred by a
defendant in a criminal or traffic action or proceeding; and
WHEREAS, Court and County have developed such a collection program
("Program"), and desire to clarify their respective rights and responsibilities regarding
the Program, including enhanced collection services by entering into this MOU.
The Parties therefore agree as follows:
Collections Program
1. The Parties will operate the Program for the collection of all fees, fines,
20 forfeitures, penalties, and assessments arising from criminal or traffic actions or
21 proceedings ("Accounts"). The Parties will also implement and operate the Program as
22 a comprehensive collection program, as that term is defined in Penal Code Section
23 1463.007, for the collection of all delinquent fees, fines, forfeitures, penalties, and
24 assessments arising from criminal or traffic actions or proceedings ("Qualifying
25 Accounts").
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2. Vendors for Collection Services
a. The Court may engage vendor(s), ("Court's Vendor(s)") to perform
collection services under the Program on certain Qualifying Accounts.
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The terms of its engagement will require Court’s Vendor(s) to perform
collection services under the Program on the terms and conditions set
forth in the Master Agreement between the Judicial Council of California
(“JCC”) and Court’s Vendor(s).
b. The County may engage vendor(s), (“County’s Vendor(s)”) to perform
collection services under the Program on certain Qualifying Accounts.
The terms of its engagement will require County’s Vendor(s) to perform
collection services under the Program on the terms and conditions set
forth in the agreement between the County of Fresno and County’s
Vendor(s).
c. “Participants” means the Court, the County, Court’s Vendor(s), and
County’s Vendor(s) collectively.
3. The County has entered into an agreement with the Franchise Tax Board
(“FTB”) to participate in its Court-Ordered Debt Collection program. A copy of that
agreement is attached to this MOU.
4. The Parties will not knowingly accept full or partial payments on any
accounts or Qualifying Accounts of the other Party. If such payments are inadvertently
received, the Party who collected the payment(s) will forward such payments to the
other Party upon discovery.
5. Each Party will provide the other with reports annually or upon request.
The reports shall indicate the amount of money collected under the Program in the
applicable time period, in the format used by the Court to meet its reporting
requirements to the JCC. The County will provide the Court with reports annually or
upon request. The reporting format will be provided by the Court to the County and any
changes requested to the County with a 60-day lead time for implementation. Each
report will include the following: (a) the gross amount of revenue collected; (b) the
amount the County has deducted as its allowable collection costs under Penal Code
Section 1463.007; and (c) the net amount of revenue to be distributed by the County.
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The Court will make the applicable deductions and distribute and deposit the remaining
revenue collected under the Program with the County for distribution, according to
California law and regulations and guidelines of the JCC and State Controller’s Office
(“SCO”). The County will make the applicable deductions and distribute the remaining
revenue according to California law and the regulations and guidelines of the JCC and
SCO.
6. Each Party will provide the other with view-only access to its case
management system on request, and as necessary only for administrative purposes
related to the implementation and continued operation of the Program. Each Party will
bear its own costs for this access. This request will be provided with prior approval from
the JCC Security Committee, and each Party may deduct the costs of this access as
permitted by Penal Code Section 1463.007.
7. The Parties will work cooperatively to maximize revenue collections and
the quality of customer service being provided. The Parties will each designate an
employee to act as the contact person for each Party to facilitate the exchange of
information and resolve any day-to-day issues. Additionally, the Parties will conduct
management-level meetings as needed.
8. Participants will safeguard as confidential all information shared between
them to carry out the purpose of this MOU. Except as necessary with respect to the
duties of Court’s Vendor(s) under its agreement with the Court or County’s Vendor(s)
under its agreement with the County, no Participant will disclose any information shared
between the Participants to a third party without the prior written consent of the other
Party (Court or County, not Vendors), with the exception of the FTB, and audits
performed by the JCC, the SCO, or other legally authorized agency.
9. The Parties will comply with the guidelines and standards approved from
time to time by the JCC in the operation of the Program. The Parties will develop a
cooperative plan and a manual of operational policies and procedures as necessary t o
implement these guidelines and standards. The Parties will cooperate as necessary to
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complete reports to the JCC on their collections program, on the schedule and in the
form required by the JCC.
10. The Parties will monitor and implement any changes or modifications to
state laws and/or regulations affecting the Program and notify the other of such change.
11. Each Party will develop their own policy for discharging accounts deemed
uncollectible.
12. When necessary the County may request clarification of a Court Minute
Order. All County requests for clarification of Minute Orders will be sent to a staff
member appointed by the Court. The court will make reasonable efforts to provide
clarification to the County within 10 court days.
13. The parties will allow the other access to Social Security Numbers (SSN)
related solely to Court ordered fines, fees and penalties in an effort to qualify as much
delinquent debt as possible for both the Court Ordered Debt (COD) and FTB programs.
The Parties will not use SSN obtained in this manner for any other purpose.
Allowable Deductions
14. Each Party may deduct from the revenue collected under the Program its
allowable costs as provided in Penal Code Section 1463.007 prior to its distribution.
15. If the revenue collected under the Program during any month is
insufficient to allow a Party to deduct all of its costs for that month, and subject to the
regulations and guidelines promulgated by the JCC and the SCO, that Party may
rollover such shortfall to the subsequent month(s) for deduction.
Term and Termination
16. The term of this MOU is for three years, beginning on December 14, 2014
(“Effective Date”). Beginning on December 14, 2017, this MOU will automatically renew
for another year on the anniversary of the Effective Date, unless terminated by either
Party as provided below.
17. Either Party may terminate this MOU by giving at least 90 calendar days’
written notice to the other Party; provided, however, such termination will not be
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effective, and this MOU will remain in full force and effect, unless and until the Parties
execute a new memorandum of understanding or other document setting forth their
agreement on the operation of a subsequent collections program as required by Penal
Code Section 1463.010.
Dispute Resolution
18. If, after 30 calendar days of negotiations, the Court and the County
cannot resolve a dispute regarding the interpretation or performance of this MOU or
cannot agree on a new collections program, either Party may request a meeting
between the Court Executive Officer and the County Auditor-Controller/Treasurer-Tax
Collector for the purposes of resolving the dispute. The request must be in writing. If
such meeting is requested, the meeting will be held within 10 days of the receipt of
such request. If the meeting fails to occur or fails to resolve the dispute, the dispute will
be submitted for non-binding mediation by a third party mutually agreed upon by the
Court Executive Officer and the County Board of Supervisors. If the mediation fails to
resolve the dispute, and if both Parties agree at that time, both Parties may agree to
binding arbitration by a third party mutually agreed upon by the Court Executive Officer
and the County Board of Supervisors. Until the dispute is resolved, the Parties will
continue to operate the Program as set forth in this MOU and perform and observe their
respective responsibilities and rights hereunder.
Compliance with Audits and Records Retention Requirements
19. The Parties will receive, reply to, and/or comply with any audit by an
appropriate state audit agency that directly relates to this MOU or to funds to be
handled or disbursed hereunder. The Parties will each maintain an accounting system
and supporting fiscal records to comply with the state audit requirements related to this
MOU.
20. The Parties will maintain and preserve all records and documentation
related to this MOU, including records related to billings and other financial records, in
an accessible location and condition for a period of not less than ten years after an
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account has been completely paid or until after an audit involving an account has been
resolved, whichever is later. Each Party will adequately protect all records against fire
or other damage.
General Provisions
21. Entire Agreement. This MOU constitutes the entire agreement between
the Parties with respect to the subject matter hereof and supersedes all previous
modifications, agreements, proposals, negotiations, representations, and commitments,
both oral and written, between the Parties to this MOU.
22. Modification. Any of the terms of conditions of this MOU may be
modified from time to time, prior to termination of this MOU, by written mutual consent
of the Parties. Any written change to this Agreement shall be in the form of a written
Amendment which shall be attached to the original Agreement to maintain continuity.
No addition to or alteration of the terms of this MOU will be valid unless made in the
form of a written amendment. Each Party will provide the other with at least 30 calendar
days prior written notice of any vendor change along with the new vendor’s contact
information.
23. Further Assurances. Each Party agrees to cooperate with the other, and
to execute and deliver, or cause to be executed and delivered, all such other
instruments and documents, and to take all such other actions as may be reasonably
requested of it from time to time, in order to effectuate the provisions and purposes of
this MOU.
24. Waiver. Any waiver by either Party of the terms of this MOU must be in
writing and executed by an authorized representative of the waiving Party and will not
be construed as a waiver of any succeeding breach of the same or other term of this
MOU.
25. Non-Assignment. Neither Party shall assign, transfer nor subcontract
this MOU nor its rights or duties under this MOU, except as expressly provided for
above, without written consent of the other.
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26. Severability. The provisions of this MOU are separate and severable. If
any provision of this MOU is found by a court of competent jurisdiction to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not be affected or impaired thereby. Any such provision will be
enforced to the maximum extent possible so as to affect the reasonable intent of the
Parties and will be reformed without further action by the Parties to the extent
necessary to make such provision valid and enforceable.
27. Waiver of Default. Waiver of any default by either Party to this MOU shall
not be deemed to be a waiver of any subsequent default. Waiver of breach of any
provision of this MOU shall not be deemed to be waiver of any other or subsequent
breach, and shall not be construed to be a modification of the terms of this MOU unless
this MOU is modified as provided above.
28. Independent Contractor. Each Party will be, and is, an independent
contractor, and is not an employee or agent of the other Party, and neither Party nor
any person engaged by a Party to perform the services described herein is covered by
any employee benefit plans provided to the employee of the other Party. Each Party is
liable for the acts and omissions of itself, its employees, its subcontractors and its
agents. Nothing in this MOU will be construed as creating an employment or agency
relationship between the Court and the County. Each Party will determine the method,
details and means of performing its obligations under this MOU, including, without
limitation, exercising full control over the employment, direction, compensation and
discharge of all persons assisting the respective Party. Each Party will be solely
responsible for all matters relating to the payment of its employees, including
compliance with social security, withholding any and all employee benefits, and all
regulations governing such matters.
29. Risk Allocation. It is the intention of both Parties that neither will be
responsible for the negligent and/or intentional acts and/or omissions of the other, or its
judges, subordinate judicial officers, directors, officers, agents and employees. The
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Parties therefore disclaim in its entirety the prorate risk allocation that could otherwise
apply to this MOU pursuant to Government Code 895.6. Instead, pursuant to
Government Code Section 895.4, the Parties agree to use principles of comparative
fault when apportioning any and all losses that may arise out of the performance of this
MOU.
30. Counterparts. This MOU may be executed in counterparts, each of
which is considered an original but all of which together shall constitute one instrument.
31. Choice of Law. Venue for any action arising out of or relating to this
MOU shall be in Fresno County, California. The rights and obligations of the Parties
and all interpretation and performance of this Agreement shall be governed in all
respects by the laws of the State of California.
32. Insurance. Without limiting the indemnification of each Party, it is
understood and agreed that the Parties shall each maintain, at their sole expense,
insurance policies or self-insurance programs including, but not limited to, an insurance
pooling arrangement and/or Joint Powers Agreement to fund their respective liability
throughout the term of this agreement. Coverage shall be provided for comprehensive
general liability, automobile liability, professional liability, and worker’s compensation
exposure. Evidence of insurance, certificates of insurance, or other similar
documentation shall not be required of either Party under this MOU.
Notices
33. The persons and their addresses having authority to give and receive
notice under this Agreement include the following:
Court County
Sheran L. Morton Oscar J. Garcia, CPA
Court Executive Officer Auditor-Controller/Treasurer-Tax Collector
Superior Court of California County of Fresno
1100 Van Ness 2281 Tulare Street, Room 105
Fresno, CA 93724-0002 Fresno, CA 93721
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All notices between the County and the Court provided for or permitted under
this Agreement must be in writing and delivered either by personal service, by first-
class United States mail, by an overnight commercial courier service, or by telephonic
facsimile transmission. A notice delivered by personal service is effective upon service
to the recipient. A notice delivered by first-class United States mail is effective three
Court business days after deposit in the United States mail, postage prepaid,
addressed to the recipient. A notice delivered by an overnight commercial courier
service is effective one Court business day after deposit with the overnight commercial
courier service, delivery fees prepaid, with delivery instructions given for next day
delivery, addressed to the recipient. A notice delivered by telephonic facsimile is
effective when transmission to the recipient is completed (but, if such transmission is
completed outside of Court business hours, then such delivery shall be deemed to be
effective at the next beginning of a Court business day), provided that the sender
maintains a machine record of the completed transmission. For all claims arising out of
or related to this Agreement, nothing in this section establishes, waives, or modifies any
claims presentation requirements or procedures provided by law, including but not
limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code,
beginning with section 810).
[SIGNATURE PAGE FOLLOWS]
1 The Parties are executing this MOU on the date first stated above , to be
2 effective as of the Effective Date.
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SUPERIOR COURT OF CALIFORNIA
COUNTY OF FRESNO
s~
Court Executive Officer
1100 Van Ness Avenue
Fresno , CA 93724-0002
Mailing Address
10
COUNTY OF FRESNO
s
s
ATTEST :
Bernice E . Seidel
Clerk to the Board of Supervisors
County of Fresno, State of California
By: SuSD.Ao ~~ C7f>
Deputy