21-283 Crowe - Cupertino Storm Drain AUP EL 2021Crowe LLP
Independent Member Crowe Global
650 Town Center Drive, Suite 740
Costa Mesa, CA 92626-7192
Tel 714-668-1234
Fax 714-668-1235
www.crowe.com
April 22, 2021
To the Honorable Mayor and City Council
City of Cupertino
10300 Torre Avenue
Cupertino, California 95014-3202
Dear Ladies and Gentlemen:
This letter confirms the arrangements for Crowe LLP (“Crowe” or “us” or “we” or “our”) to provide the
professional services discussed in this letter to City of Cupertino (“you”, “your” or “Client”). The agreement
for auditing services dated April 12, 2021 between the Client and Crowe (“the Agreement”) is an integral
part of this letter, and such terms are incorporated herein.
Crowe will apply agreed upon procedures, as discussed in Attachment A, solely to assist you with the
respect to the 2019 Clean Water and Storm Protection Fee of Client from information you provide.
PROFESSIONAL SERVICES
Our Responsibilities
The agreed‑upon procedures will be performed in accordance with attestation standards established by
the American Institute of Certified Public Accountants.
We have no obligation to perform any procedures beyond those agreed to by you and have been
acknowledged to be appropriate for your purposes. If we were to perform additional procedures, other
matters might come to our attention that would be reported to you. It is understood that we will prepare a
report reflecting our findings of the procedures for use by you. We make no representations as to the
adequacy of these procedures for your purpose.
If you decide that additional procedures are needed, we will discuss those with you. It is customary for us
to document such revisions by an addendum to this letter. If you wish to add specified users of the report,
we will require that you provide, at the conclusion of the engagement, written representation that you
have obtained the specified users’ agreement to the procedures and acknowledgement that the
procedures performed are appropriate for their purposes.
The agreed‑upon procedures do not contemplate obtaining the understanding of internal control or
assessing control risk, tests of accounting records and responses to inquiries by obtaining corroborating
evidential matter, and certain other procedures ordinarily performed during an examination. Thus, this
engagement does not provide assurance that we will become aware of significant matters that would be
disclosed in an examination. Client agrees not to rely on our engagement to disclose errors, fraud or
illegal acts that may exist. However, we will inform you of any significant errors that may come to our
attention. Our engagement will not enable us to address legal or regulatory matters or abuses of
management discretion, which matters should be discussed by you with your legal counsel. You are also
responsible for the accuracy and completeness of the information provided to Crowe for purposes of this
engagement and for timely updating such information. Because of the importance of such information to
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City of Cupertino 2 April 22, 2021
our engagement, you agree to waive any claim against Crowe and its personnel for any liability and costs
relating to or arising from any inaccuracy or incompleteness of information provided to us for purposes of
this engagement.
Our procedures and work product are intended for the benefit and use of you. This engagement will not
be planned or conducted in contemplation of reliance by any other party or with respect to any specific
transaction and is not intended to benefit or influence any other party. Therefore, items of possible
interest to a third party may not be specifically addressed or matters may exist that could be assessed
differently by a third party. The working papers for this engagement are the property of Crowe and
constitute confidential information.
If, for any reason, we are unable to complete the agreed-upon procedures, we will not issue a report as a
result of this engagement.
Client’s Responsibilities
The agreed upon procedures are listed in Attachment A. You agree to the procedures included in
Attachment A and acknowledge that the procedures are appropriate for the intended purpose of the
engagement.
You agree to provide a written representation letter at the conclusion of the engagement. Because of the
importance of the written representations to this engagement, you agree to release Crowe and its
personnel from any liability and costs relating to our services under this letter attributable to any
misrepresentations by you, the engaging party.
The Client is responsible for providing to us, on a timely basis, all information of which you are aware that
is relevant to this agreed-upon procedures engagement. The Client is also responsible for providing such
other additional information we may request for the purpose of this engagement, and unrestricted access
to persons within the Client from whom we determine it necessary to perform the agreed-upon
procedures.
Other Matters
Our report is expected to be a general-use report.
Although the actual language of our report may change as a result of our procedures, we presently
expect our independent accountant’s report on the agreed-upon procedures to read as follows:
We have performed the procedures enumerated below, which were agreed to by the Honorable
Mayor and the City Council of the City of Cupertino, California (the “City”), on the 2019 Clean
Water and Storm Protection Fee of the City. The City’s management is solely responsible for the
2019 Clean Water and Storm Protection Fee. The sufficiency of these procedures is solely the
responsibility of those parties specified in this report. Consequently, we make no representation
regarding the sufficiency of the procedures enumerated below either for the purpose for which
this report has been requested or for any other purpose.
Refer to Attachment A.
We were engaged by the City to perform this agreed-upon procedures engagement and
conducted our engagement in accordance with attestation standards established by the American
Institute of Certified Public Accountants. We were not engaged to and did not conduct an
examination or review engagement, the objective of which would be the expression of an opinion
or conclusion, respectively, on the 2019 Clean Water and Storm Protection Fee. Accordingly, we
do not express such an opinion or conclusion. Had we performed additional procedures, other
matters might have come to our attention that would have been reported to you.
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City of Cupertino 3 April 22, 2021
This report is intended solely for the information and use of [identify the engaging party and other
specified parties as applicable] and is not intended to be, and should not be, used by anyone
other than these specified parties.
FEES
Fees for this engagement will not exceed $10,500 and related terms are included in the Agreement.
MISCELLANEOUS
For purposes of this Miscellaneous section, the Acceptance section below, and all of the Crowe
Engagement Terms, “Client” will mean the entity(ies) defined in the first paragraph of this letter and will
also include all related parents, subsidiaries, and affiliates of Client who may receive or claim reliance
upon any Crowe deliverable.
Crowe will provide the services to Client under this Agreement as an independent contractor and not as
Client’s partner, agent, employee, or joint venturer under this Agreement. Neither Crowe nor Client will
have any right, power or authority to bind the other party.
This engagement letter agreement (the “Agreement”) reflects the entire agreement between the parties
relating to the services (or any reports, deliverables or other work product) covered by this Agreement.
The engagement letter and any attachments (including without limitation the attached Crowe Engagement
Terms) are to be construed as a single document, with the provisions of each section applicable
throughout. This Agreement may not be amended or varied except by a written document signed by each
party. It replaces and supersedes any other proposals, correspondence, agreements and understandings,
whether written or oral, relating to the services covered by this letter, and each party agrees that in
entering this Agreement, it has not relied on any oral or written representations, statements or other
information not contained in or incorporated into this Agreement. Any non-disclosure or other
confidentiality agreement is replaced and superseded by this Agreement. Each party shall remain
obligated to the other party under all provisions of this Agreement that expressly or by their nature extend
beyond and survive the expiration or termination of this Agreement. If any provision (in whole or in part) of
this Agreement is found unenforceable or invalid, this will not affect the remainder of the provision or any
other provisions in this Agreement, all of which will continue in effect as if the stricken portion had not
been included. This Agreement may be executed in two or more actual, scanned, emailed, or
electronically copied counterparts, each and all of which together are one and the same instrument.
Accurate transmitted copies (transmitted copies are reproduced documents that are sent via mail,
delivery, scanning, email, photocopy, facsimile or other process) of the executed Agreement or signature
pages only (whether handwritten or electronic signature), will be considered and accepted by each party
as documents equivalent to original documents and will be deemed valid, binding and enforceable by and
against all parties. This Agreement must be construed, governed, and interpreted under the laws of the
State of Illinois, without regard for choice of law principles.
* * * * *
We are pleased to have this opportunity to serve you, and we look forward to a continuing relationship. If
the terms of this letter and the attached Crowe Engagement Terms are acceptable to you, please sign
below and return one copy of this letter at your earliest convenience. Please contact us with any
questions or concerns.
(Signature Page follows)
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ACCEPTANCE
I have reviewed the arrangements outlined above and in the attached “Crowe Engagement Terms,” and I
accept on behalf of the Client the terms and conditions as stated. By signing below, I represent and
warrant that I am authorized by Client to accept the terms and conditions as stated.
IN WITNESS WHEREOF, Client and Crowe have duly executed this engagement letter effective the date
first written above.
Crowe LLP and the Engagement Authorized Signer below are licensed or otherwise
authorized by the California Board of Accountancy.
City of Cupertino Crowe LLP
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CITY COUNCIL APPROVAL:
The City Council has reviewed the services and Crowe Engagement Terms described in this letter and
evaluated the services pursuant to the Client’s policies. After considering all relevant factors, the City
Council hereby approves hiring Crowe to provide the services described above.
Authorized Representative of the City Council:
ICLM_ExtSignature:2
Signature
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Partner
Katherine V. Lai
May 26, 2021May 27, 2021
Director of Administrative Services
Kristina Alfaro
Deborah Feng
June 10, 2021
City Manager
City of Cupertino 5 April 22, 2021
Crowe Engagement Terms
Crowe wants Client to understand the terms under which Crowe provides its services to Client and the
basis under which Crowe determines its fees. These terms are part of the Agreement and apply to all
services described in the Agreement as well as all other services provided to Client (collectively, the
“Services”), unless and until a separate written agreement is executed by the parties for separate
services. Any advice provided by Crowe is not intended to be, and is not, investment advice.
CLIENT’S ASSISTANCE – For Crowe to provide Services effectively and efficiently, Client agrees to
provide Crowe timely with information requested and to make available to Crowe any personnel, systems,
premises, records, or other information as reasonably requested by Crowe to perform the Services.
Access to such personnel and information are key elements for Crowe’s successful completion of
Services and determination of fees. If for any reason this does not occur, a revised fee to reflect
additional time or resources required by Crowe will be mutually agreed. Client agrees Crowe will have no
responsibility for any delays related to a delay in providing such information to Crowe. Such information
will be accurate and complete, and Client will inform Crowe of all significant tax, accounting and financial
reporting matters of which Client is aware.
PROFESSIONAL STANDARDS – As a regulated professional services firm, Crowe must follow
professional standards when applicable, including the Code of Professional Conduct of the American
Institute of Certified Public Accountants (“AICPA”). Thus, if circumstances arise that, in Crowe’s
professional judgment, prevent it from completing the engagement, Crowe retains the right to take any
course of action permitted by professional standards, including declining to express an opinion or issue
other work product or terminating the engagement.
REPORTS – Any information, advice, recommendations or other content of any memoranda, reports,
deliverables, work product, presentations, or other communications Crowe provides under this Agreement
(“Reports”), other than Client’s original information, are for Client’s internal use only, consistent with the
purpose of the Services. Client will not rely on any draft Report. Unless required by an audit or other
attestation professional standard, Crowe will not be required to update any final Report for circumstances
of which we become aware or events occurring after delivery.
CONFIDENTIALITY – Except as otherwise permitted by this Agreement or as agreed in writing, neither
Crowe nor Client may disclose to third parties the contents of this Agreement or any information provided
by or on behalf of the other that ought reasonably to be treated as confidential and/or proprietary. Client
use of any Crowe work product will be limited to its stated purpose and to Client business use only.
However, Client and Crowe each agree that either party may disclose such information to the extent that
it: (i) is or becomes public other than through a breach of this Agreement, (ii) is subsequently received by
the recipient from a third party who, to the recipient's knowledge, owes no obligation of confidentiality to
the disclosing party with respect to that information, (iii) was known to the recipient at the time of
disclosure or is thereafter created independently, (iv) is disclosed as necessary to enforce the recipient's
rights under this Agreement, or (v) must be disclosed under applicable law, regulations, legal process or
professional standards.
THIRD PARTY PROVIDER – Crowe may use third-party providers or engage subcontractors in providing
Services to Client or for internal, administrative, or regulatory compliance purposes. Third-party providers
or subcontractors may include Crowe LLP subsidiaries, Crowe Global member firms, or other third-party
providers or subcontractors, in each case within or outside of the United States (each, a “Crowe
Subcontractor”). Client agrees Crowe may share Client confidential information with Crowe
Subcontractors. If Crowe uses a Crowe Subcontractor, Crowe will be solely responsible for the provision
of Services (including those provided by Crowe Subcontractors) and for the protection of Client’s
confidential information. The limitations on Client’s remedies vis-à-vis Crowe, in this Agreement will also
apply to any Crowe Subcontractors. Client will bring any claim for a violation of the obligations in this
Agreement only against Crowe, and Crowe Subcontractors will have no liability or obligations to Client
arising out of this Agreement.
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CLIENT-REQUIRED CLOUD USAGE – If Client requests that Crowe access files, documents or other
information in a cloud-based or web-accessed hosting service or other third-party system accessed via the
internet, including, without limitation iCloud, Dropbox, Google Docs, Google Drive, a data room hosted by
a third party, or a similar service or website (collectively, “Cloud Storage”), Client will confirm with any third
parties assisting with or hosting the Cloud Storage that either such third party or Client (and not Crowe) is
responsible for complying with all applicable laws relating to the Cloud Storage and any information
contained in the Cloud Storage, providing Crowe access to the information in the Cloud Storage, and
protecting the information in the Cloud Storage from any unauthorized access, including without limitation
unauthorized access to the information when in transit to or from the Cloud Storage. Client represents that
it has authority to provide Crowe access to information in the Cloud Storage and that providing Crowe with
such access complies with all applicable laws, regulations, and duties owed to third parties.
DATA PROTECTION – If Crowe holds or uses Client information that can be linked to specific individuals
who are Client’s customers ("Personal Data"), Crowe will treat it as confidential and comply with
applicable US state and federal law and professional regulations (including, for financial institution clients,
the objectives of the Interagency Guidelines Establishing Information Security Standards) in disclosing or
using such information to carry out the Services. The parties acknowledge and understand that while
Crowe is a service provider as defined by the California Consumer Privacy Act of 2018 and processes
Client information pursuant to this Agreement, Crowe retains its independence as required by applicable
law and professional standards for purposes of providing attest services and other services. Crowe will
not (1) sell Personal Data to a third party, or (2) retain, use or disclose Personal Data for any purpose
other than for (a) performing the Services and its obligations on this Agreement, (b) as otherwise set forth
in this Agreement, (c) to detect security incidents and protect against fraud or illegal activity, (d) to
enhance and develop our products and services, including through machine learning and other similar
methods and (e) as necessary to comply with applicable law or professional standards. Crowe has
implemented and will maintain physical, electronic and procedural safeguards reasonably designed to (i)
protect the security, confidentiality and integrity of the Personal Data, (ii) prevent unauthorized access to
or use of the Personal Data, and (iii) provide proper disposal of the Personal Data (collectively, the
“Safeguards”). Client represents (i) that it has the authority to provide the Personal Data to Crowe in
connection with the Services, (ii) that Client has processed and provided the Personal Data to Crowe in
accordance with applicable law, and (iii) will limit the Personal Data provided to Crowe to Personal Data
necessary to perform the Services. To provide the Services, Client may also need to provide Crowe with
access to Personal Data consisting of protected health information, financial account numbers, Social
Security or other government-issued identification numbers, or other data that, if disclosed without
authorization, would trigger notification requirements under applicable law ("Restricted Personal Data"). In
the event Client provides Crowe access to Restricted Personal Data, Client will consult with Crowe on
appropriate measures (consistent with legal requirements and professional standards applicable to
Crowe) to protect the Restricted Personal Data, such as: deleting or masking unnecessary information
before making it available to Crowe, using encryption when transferring it to Crowe, or providing it to
Crowe only during on-site review on Client’s site. Client will provide Crowe with Restricted Personal Data
only in accordance with mutually agreed protective measures. Otherwise, Client and Crowe agree each
may use unencrypted electronic media to correspond or transmit information and such use will not in itself
constitute a breach of any confidentiality obligations under this Agreement. Crowe will reasonably
cooperate with Client in responding to or addressing any request from a consumer or data subject, a data
privacy authority with jurisdiction, or the Client, as necessary to enable Client to comply with its
obligations under applicable data protection laws and to the extent related to Personal Data. Client will
reimburse Crowe for any out-of-pocket expenses and professional time (at Crowe’s then-current hourly
rates) incurred in connection with providing such cooperation. Client will provide prompt written notice to
Crowe (with sufficient detailed instructions) of any request or other act that is required to be performed by
Crowe. As appropriate, Crowe will promptly delete or procure the deletion of the Personal Data, after the
cessation of any Services involving the processing of Client’s Personal Data, or otherwise aggregate or
de-identify the Personal Data in such a way as to reasonably prevent reidentification. Notwithstanding the
forgoing, Crowe may retain a copy of the Personal Data as permitted by applicable law or professional
standards, provided that such Personal Data remain subject to the terms of this Agreement. If Crowe
uses a third-party provider, Crowe will include terms substantially similar to those set forth in this Data
Protection Paragraph in an agreement with such provider.
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GENERAL DATA PROTECTION REGULATION COMPLIANCE – If and to the extent that Client provides
personal data to Crowe subject to the European Union General Data Protection Regulation (“GDPR”),
then in addition to the requirements of the above Data Protection section, this section will apply to such
personal data (“EU Personal Data”). The parties agree that for purposes of processing the EU Personal
Data, (a) Client will be the “Data Controller” as defined by the GDPR, meaning the organization that
determines the purposes and means of processing the EU Personal Data; (b) Crowe will be the “Data
Processor” as defined by GDPR, meaning the organization that processes the EU Personal Data on
behalf of and under the instructions of the Data Controller; or (c) the parties will be classified as otherwise
designated by a supervisory authority with jurisdiction. Client and Crowe each agree to comply with the
GDPR requirements applicable to its respective role. Crowe has implemented and will maintain technical
and organizational security safeguards reasonably designed to protect the security, confidentiality and
integrity of the EU Personal Data. Client represents it has secured all required rights and authority,
including consents and notices, to provide such EU Personal Data to Crowe, including without limitation
authority to transfer such EU Personal Data to the U.S. or other applicable Country or otherwise make the
EU Personal Data available to Crowe, for the duration of and purpose of Crowe providing the Services.
The types of EU Personal Data to be processed include name, contact information, title, and other EU
Personal Data that is transferred to Crowe in connection with the Services. The EU Personal Data relates
to the data subject categories of individuals connected to Client, Client customers, Client vendors, and
Client affiliates or subsidiaries (“Data Subjects”). Crowe will process the EU Personal Data for the
following purpose: (x) to provide the Services in accordance with this Agreement, (y) to comply with other
documented reasonable instructions provided by Client, and (z) to comply with applicable law. In the
event of a Crowe breach incident in connection with EU Personal Data in the custody or control of Crowe,
Crowe will promptly notify Client upon knowledge that a breach incident has occurred. Client has
instructed Crowe not to contact any Data Subjects directly, unless required by applicable law. In the event
that a supervisory authority with jurisdiction makes the determination that Crowe is a data controller,
Client will reasonably cooperate with Crowe to enable Crowe to comply with its obligations under GDPR.
INTELLECTUAL PROPERTY - Any Deliverables, Works, Inventions, working papers, or other work
product conceived, made or created by Crowe in rendering the Services under this Agreement (“Work
Product”), and all intellectual property rights in such Work Product will be owned exclusively by Crowe.
Further, Crowe will retain exclusive ownership or control of all intellectual property rights in any ideas,
concepts, methodologies, data, software, designs, utilities, tools, models, techniques, systems, Reports,
or other know-how that it develops, owns or licenses in connection with this Agreement ("Materials"). The
foregoing ownership will be without any duty of accounting.
DATA USAGE AND AGGREGATIONS - Client hereby acknowledges and agrees that Crowe may, in its
discretion, use any Client information or data provided to Crowe to improve Crowe services and Materials,
including without limitation developing new Crowe services and software or other products. Client also
agrees that Crowe may, in its discretion, aggregate Client content and data with content and data from
other clients, other sources, or third parties (“Data Aggregations”) for purposes including, without
limitation, product and service development, commercialization, industry benchmarking, or quality
improvement initiatives. Prior to, and as a precondition for, disclosing Data Aggregations to other Crowe
customers or prospects, Crowe will anonymize any Client data or information in a manner sufficient to
prevent such other customer or prospect from identifying Client or individuals who are Client
customers. All Data Aggregations will be the sole and exclusive property of Crowe.
LEGAL AND REGULATORY CHANGE – Crowe may periodically communicate to Client changes in laws,
rules or regulations. However, Client has not engaged Crowe, and Crowe does not undertake an
obligation, to advise Client of changes in (a) laws, rules, regulations, industry or market conditions, or (b)
Client’s own business practices or other circumstances (except to the extent required by professional
standards). The scope of Services and the fees for Services are based on current laws and regulations. If
changes in laws or regulations change Client’s requirements or the scope of the Services, Crowe’s fees
will be modified to a mutually agreed amount to reflect the changed level of Crowe’s effort.
PUBLICATION – Client agrees to obtain Crowe’s specific permission before using any Report or Crowe
work product or Crowe’s firm’s name in a published document, and Client agrees to submit to Crowe
copies of such documents to obtain Crowe’s permission before they are filed or published.
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CLIENT REFERENCE – From time to time Crowe is requested by prospective clients to provide
references for Crowe service offerings. Client agrees that Crowe may use Client’s name and generally
describe the nature of Crowe’s engagement(s) with Client in marketing to prospects, and Crowe may also
provide prospects with contact information for Client personnel familiar with Crowe’s Services.
NO PUNITIVE OR CONSEQUENTIAL DAMAGES – Any liability of Crowe will not include any
consequential, special, incidental, indirect, punitive, or exemplary damages or loss, nor any lost profits,
goodwill, savings, or business opportunity, even if Crowe had reason to know of the possibility of such
damages.
LIMIT OF LIABILITY – Except where it is judicially determined that Crowe performed its Services with
recklessness or willful misconduct, Crowe’s liability will not exceed fees paid by Client to Crowe for the
portion of the work giving rise to liability. A claim for a return of fees paid is the exclusive remedy for any
damages. This limit of liability will apply to the full extent allowed by law, regardless of the grounds or
nature of any claim asserted, including, without limitation, to claims based on principles of contract,
negligence or other tort, fiduciary duty, warranty, indemnity, statute or common law. This limit of liability
will also apply after this Agreement.
INDEMNIFICATION FOR THIRD‑PARTY CLAIMS – In the event of a legal proceeding or other claim
brought against Crowe by a third party, except where it is judicially determined that Crowe performed
Services with recklessness or willful misconduct, Client agrees to indemnify and hold harmless Crowe
and its personnel against all costs, fees, expenses, damages and liabilities, including attorney fees and
any other fees or defense costs, associated with such third‑party claim, relating to or arising from any
Services performed or work product provided by Crowe that Client uses or discloses to others or this
engagement generally. This indemnification is intended to apply to the full extent allowed by law,
regardless of the grounds or nature of any claim, liability, or damages asserted, including, without
limitation, to claims, liability or damages based on principles of contract, negligence or other tort, fiduciary
duty, warranty, indemnity, statute or common law. This indemnification will also apply after termination of
this Agreement.
NO TRANSFER OR ASSIGNMENT OF CLAIMS – No claim against Crowe, or any recovery from or
against Crowe, may be sold, assigned or otherwise transferred, in whole or in part.
TIME LIMIT ON CLAIMS – In no event will any action against Crowe, arising from or relating to this
engagement letter or the Services provided by Crowe relating to this engagement, be brought after the
earlier of 1) two (2) years after the date on which occurred the act or omission alleged to have been the
cause of the injury alleged; or 2) the expiration of the applicable statute of limitations or repose.
RESPONSE TO LEGAL PROCESS – If Crowe is requested by subpoena, request for information, or
through some other legal process to produce documents or testimony pertaining to Client or Crowe’s
Services, and Crowe is not named as a party in the applicable proceeding, then Client will reimburse
Crowe for its professional time, plus out-of-pocket expenses, as well as reasonable attorney fees, Crowe
incurs in responding to such request.
MEDIATION – If a dispute arises, in whole or in part, out of or related to this engagement, or after the
date of this agreement, between Client or any of Client’s affiliates or principals and Crowe, and if the
dispute cannot be settled through negotiation, Client and Crowe agree first to try, in good faith, to settle
the dispute by mediation administered by the American Arbitration Association, under its mediation rules
for professional accounting and related services disputes, before resorting to litigation or any other
dispute-resolution procedure. The results of mediation will be binding only upon agreement of each party
to be bound. Costs of any mediation will be shared equally by both parties. Any mediation will be held in
Chicago, Illinois.
JURY TRIAL WAIVER – FOR ALL DISPUTES RELATING TO OR ARISING BETWEEN THE PARTIES,
THE PARTIES AGREE TO WAIVE A TRIAL BY JURY TO FACILITATE JUDICIAL RESOLUTION AND
TO SAVE TIME AND EXPENSE. EACH PARTY AGREES IT HAS HAD THE OPPORTUNITY TO HAVE
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ITS LEGAL COUNSEL REVIEW THIS WAIVER. THIS WAIVER IS IRREVOCABLE, MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND APPLIES TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS WRITTEN CONSENT TO A BENCH TRIAL WITHOUT A JURY.
HOWEVER, AND NOTWITHSTANDING THE FOREGOING, IF ANY COURT RULES OR FINDS THIS
JURY TRIAL WAIVER TO BE UNENFORCEABLE AND INEFFECTIVE IN WAIVING A JURY, THEN
ANY DISPUTE RELATING TO OR ARISING FROM THIS ENGAGEMENT OR THE PARTIES’
RELATIONSHIP GENERALLY WILL BE RESOLVED BY ARBITRATION AS SET FORTH IN THE
PARAGRAPH BELOW REGARDING “ARBITRATION.”
ARBITRATION – If any court rules or finds that the JURY TRIAL WAIVER section is not enforceable, then
any dispute between the parties relating to or arising from this Agreement or the parties’ relationship
generally will be settled by binding arbitration in Chicago, Illinois (or a location agreed in writing by the
parties). Any issues concerning the extent to which any dispute is subject to arbitration, or concerning the
applicability, interpretation, or enforceability of any of this Section, will be governed by the Federal
Arbitration Act and resolved by the arbitrator(s). The arbitration will be governed by the Federal Arbitration
Act and resolved by the arbitrator(s). Regardless of the amount in controversy, the arbitration will be
administered by JAMS, Inc. (“JAMS”), pursuant to its Streamlined Arbitration Rules & Procedures or such
other rules or procedures as the parties may agree in writing. In the event of a conflict between those
rules and this Agreement, this Agreement will control. The parties may alter each of these rules by written
agreement. If a party has a basis for injunctive relief, this paragraph will not preclude a party seeking and
obtaining injunctive relief in a court of proper jurisdiction. The parties will agree within a reasonable period
of time after notice is made of initiating the arbitration process whether to use one or three arbitrators, and
if the parties cannot agree within fifteen (15) business days, the parties will use a single arbitrator. In any
event the arbitrator(s) must be retired federal judges or attorneys with at least 15 years commercial law
experience and no arbitrator may be appointed unless he or she has agreed to these procedures. If the
parties cannot agree upon arbitrator(s) within an additional fifteen (15) business days, the arbitrator(s) will
be selected by JAMS. Discovery will be permitted only as authorized by the arbitrator(s), and as a rule,
the arbitrator(s) will not permit discovery except upon a showing of substantial need by a party. To the
extent the arbitrator(s) permit discovery as to liability, the arbitrator(s) will also permit discovery as to
causation, reliance, and damages. The arbitrator(s) will not permit a party to take more than six
depositions, and no depositions may exceed five hours. The arbitrator(s) will have no power to make an
award inconsistent with this Agreement. The arbitrator(s) will rule on a summary basis where possible,
including without limitation on a motion to dismiss basis or on a summary judgment basis. The
arbitrator(s) may enter such prehearing orders as may be appropriate to ensure a fair hearing. The
hearing will be held within one year of the initiation of arbitration, or less, and the hearing must be held on
continuous business days until concluded. The hearing must be concluded within ten (10) business days
absent written agreement by the parties to the contrary. The time limits in this section are not
jurisdictional. The arbitrator(s) will apply substantive law and may award injunctive relief or any other
remedy available from a judge. The arbitrator(s) may award attorney fees and costs to the prevailing
party, and in the event of a split or partial award, the arbitrator(s) may award costs or attorney fees in an
equitable manner. Any award by the arbitrator(s) will be accompanied by a reasoned opinion describing
the basis of the award. Any prior agreement regarding arbitration entered by the parties is replaced and
superseded by this agreement. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C.
§§ 1 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered by any court
having jurisdiction thereof. All aspects of the arbitration will be treated by the parties and the arbitrator(s)
as confidential.
NOTIFICATION OF NON-LICENSEE OWNERSHIP (For California Engagements) – Crowe (“the Firm”)
and certain owners of the Firm are licensed by the California State Board of Accountancy. However, the
Firm has owners not licensed by the California State Board of Accountancy who may provide Services
under this agreement. If Client has any questions regarding licensure of the personnel performing
Services under this engagement, please do not hesitate to contact Crowe.
NON‑SOLICITATION – Each party acknowledges that it has invested substantially in recruiting, training
and developing the personnel who render services with respect to the material aspects of the
engagement (“Key Personnel”). The parties acknowledge that Key Personnel have knowledge of trade
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City of Cupertino 10 April 22, 2021
secrets or confidential information of their employers that may be of substantial benefit to the other party.
The parties acknowledge that each business would be materially harmed if the other party was able to
directly employ Key Personnel. Therefore, the parties agree that during the period of this Agreement and
for one (1) year after its expiration or termination, neither party will solicit Key Personnel of the other party
for employment or hire the Key Personnel of the other party without that party’s written consent unless
hiring or engaging party pays to the other party a fee equal to the hired or engaged Key Personnel’s
compensation for the prior twelve-month period with the other party.
CROWE AND EQUAL OPPORTUNITY – Crowe abides by the principles of equal employment
opportunity, including without limitation the requirements of 41 CFR 60-741.5(a) and 41 CFR 60-300.5(a).
These regulations prohibit discrimination against qualified individuals based on their status as protected
veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their
race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime
contractors and subcontractors take affirmative action to employ and advance in employment individuals
without regard to race, color, religion, sex, national origin, protected veteran status or disability. Crowe
also abides by 29 CFR Part 471, Appendix A to Subpart A. The parties agree that the notice in this
paragraph does not create any enforceable rights for any firm, organization, or individual.
CROWE GLOBAL NETWORK – Crowe LLP and its subsidiaries are independent members of Crowe
Global, a Swiss organization. “Crowe” is the brand used by the Crowe Global network and its member
firms, but it is not a worldwide partnership. Crowe Global and each of its members are separate and
independent legal entities and do not obligate each other. Crowe LLP and its subsidiaries are not
responsible or liable for any acts or omissions of Crowe Global or any other Crowe Global members, and
Crowe LLP and its subsidiaries specifically disclaim any and all responsibility or liability for acts or
omissions of Crowe Global or any other Crowe Global member. Crowe Global does not render any
professional services and does not have an ownership or partnership interest in Crowe LLP or any other
member. Crowe Global and its other members are not responsible or liable for any acts or omissions of
Crowe LLP and its subsidiaries and specifically disclaim any and all responsibility or liability for acts or
omissions of Crowe LLP and its subsidiaries. Visit www.crowe.com/disclosure for more information about
Crowe LLP, its subsidiaries, and Crowe Global.
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City of Cupertino 11 April 22, 2021
Attachment A
Date Range: January 1, 2020 – December 31, 2020
Procedures to Perform:
1.Select 100% of the revenue transactions recorded in the Environmental Management/Clean Creeks
Special Revenue Fund (Fund 230) for the period January 1, 2020 thru December 31, 2020 and
perform the following procedures:
a.Observe the Clean Water and Storm Protection fees have been deposited and recorded in
Fund 230 per Section 3.38.160A of the Cupertino Municipal Code.
b.Obtain the County tax remittance statement for each specific receipt (as provided by the
County) and observe the cash collected in total on the statement agrees to the amount
deposited in Fund 230 in accordance with Section 3.38.070 of the Cupertino Municipal Code,
which specifies that the City elects to have fees collection on the tax roll in the same manner
as property taxes.
c.Obtain the City support <e.g. schedule of fees billed to property owners in situation where
the fee was not included in the annual tax assessment> and observe the cash collected in
total per the Schedule agrees to the amount deposited in Fund 230 in accordance with
Section 3.38.090 of the Cupertino Municipal Code, which specifies that the City Finance
Department bills out fees to property owners in situations where the fee was not included in
the annual tax assessment.
2.Select 60% of the non-payroll expenditure transactions recorded in Fund 230 for the period January
1, 2020 thru December 31, 2020 and perform the following procedures:
a.Obtain the City invoices and purchase orders for the expenditures selected, and observe the
description of expenditures on the invoice and purchase order, as well as the assigned object
code on the purchase order from the City were for allowed purposes per Section 3.38.010B of
the Cupertino Municipal Code, which specifies allowable activities are defined as acquisition,
construction, reconstruction, maintenance, and operation of the storm drainage system of
the City or related green infrastructure or other activities required by the City’s NPDES
permits, to repay principal and interest on any bonds which may hereafter be issued for said
purposes, to repay loans or advances which may hereafter be made for said purposes.
b.Obtain the City invoices and purchase orders for the nonpayroll expenditures selected and
observe the description of expenditures on the invoice and purchase order were for allowed
purposes per Section 3.38.0160A and 3.38.0160B of the Cupertino Municipal Code.
Section 3.38.160A of the Cupertino Municipal Code specifies allowable from the overall
perspective as direct costs and administrative costs, while 3.38.160B of the Cupertino
Municipal Code specifically defines direct costs as wages and salaries and costs of employee
fringe benefits and mileage reimbursement attributable to said collection activities, with
administrative costs as all costs for computer service, materials, postage supplies and
equipment.
c.Obtain the City documentation for all refunds issued and observe the Finance Director
authorized the refund through written approval in accordance with Section 3.38.170 of the
Cupertino Municipal Code.
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City of Cupertino 12 April 22, 2021
3.Sample one pay period (selected on a haphazard basis) between January 1, 2020 and December 31,
2020 to recompute employee allocation in the general ledger for activity recorded in Fund 230 and
compare to the City’s calculations as follows:
a.Sample of at least 10% of the time cards of applicable employees charged in Fund 230 to the
selected payroll period (selected on a haphazard basis) and observe written approval by
supervisors.
b. Obtain documentation of the general ledger distribution for the payroll period selected and
recalculate the distribution and agree the results to the budgeted allocation and the
functional allocation matrix established by management. The budgeted allocation shall be
specified by City-established allocation worksheets used to estimate the amount of actual
time spent on the acquisition, construction, reconstruction, maintenance, and operation of
the storm drainage system of the City or related green infrastructure or other activities
required by the City’s NPDES permits.
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