HomeMy WebLinkAboutBerganKDV Audit Engagement Letter - 8.5.24 (2)♦ ® berganKDv
AUDIT &ATTEST
Engagement Agreement
GOVERNMENTAL AUDIT WITH FEDERAL SINGLE AUDIT
Sent via electronic mail.
This letter is to confirm and summarize our understanding of the terms and objectives of our
engagement and the nature and limitations of the services we will provide.
Name
Address
City Waterloo
City of Waterloo City Council
Contact Email
Bridgett. Wood®Waterloo- IA. org
715 Mulberry St
Waterloo, IA 50703
November 5, 2024
SUMMARY OF ENGAGEMENT TERMS
Level of Service
Audit in accordance with Governmental Auditing Standards (Governmental Yellow Book) and Federal
Single Audit
Financial Statements
Governmental activities, business -type activities, the aggregate discretely presented component
units, each major fund, and the aggregate remaining fund information
Financial Reporting Framework
Accounting principles generally accepted in the United States of America
Reporting Period
As of and for the year ended June 30, 2024
Required Supplementary Information
Management's Discussion and Analysis (MD&A), Schedules related to Other Post Employement
Benefits, Schedules related to Pension plans.
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AUDIT &ATTEST
Supplementary Information
Combining and Individual Fund Financial
Statements, Supplemental Schedules and
Other Schedules
Opinion in relation to the financial statements as
a whole
Introductory Section and Statistical Section of
the Annual Comprehensive Financial Report
Nancy M. Schulzetenberg
Introductory Section and Statistical Section of the
Annual Comprehensive Financial Report - No
opinion or assurance
Fees
Our fees for services will be $ 78,650 for the audit of the City and related expenses and $ 3,000 to $
5,000 per program for the single audit as applicable.
Nonattest Services Performed by BerganKDV
Preparation of the ACFR as applicable
Nonattest Services Performed by Creative Planning*
None
* Creative Planning, LLC and its affiliates (Creative Planning) and BerganKDV practice under an
alternative practice structure in accordance with the AICPA Code of Professional Conduct and other
applicable laws, regulations, and professional standards. BerganKDV is an independent, separately
governed and licensed CPA firm that provides audit and attest services to its clients. Creative
Planning provides wealth management, tax, business consulting, financial, and other professional
services to its clients. Creative Planning is not a licensed CPA firm. See alternative practice structure
below for additional details.
AUDIT SCOPE AND OBJECTIVES
We will audit the financial statements as identified in the summary of engagement terms, including
the related notes to the financial statements, which collectively comprise the basic financial
statements of the governmental entity. Accounting standards generally accepted in the United
States of America (GAAP) provide for certain required supplementary information (RSI), such as
managements discussion and analysis (MD£tA), to supplement the governmental entity's basic
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financial statements. Such information, although not a part of the basic financial statements, is
required by the Governmental Accounting Standards Board who considers it to be an essential part
of financial reporting for placing the basic financial statements in an appropriate operational,
economic, or historical context. As part of our engagement, we will apply certain limited procedures
to the governmental entity's RSI in accordance with auditing standards generally accepted in the
United States of America (GAAS). These limited procedures will consist of inquiries of management
regarding the methods of preparing the information and comparing the information for consistency
with management's responses to our inquiries, the basic financial statements, and other knowledge
we obtained during our audit of the basic financial statements. We will not express an opinion or
provide any assurance on the information because the limited procedures do not provide us with
sufficient appropriate evidence to express an opinion or provide any assurance. The RSI as identified
in the summary of engagement terms is required by GAAP and will be subjected to certain limited
procedures but will not be audited.
We may also be engaged to report on supplementary information other than RSI, including the
schedule of expenditures of federal awards, that accompanies the governmental entity's financial
statements. If we opine on the supplementary information, accompanying the financial statements
as identified in the summary of engagement terms, we will subject the supplementary information
to the auditing procedures applied in our audit of the financial statements and certain additional
procedures, including comparing and reconciling such information directly to the underlying
accounting and other records used to prepare the financial statements or to the financial statements
themselves, and other additional procedures in accordance with GAAS, and we will provide an
opinion on it in relation to the financial statements as a whole.
If we do not provide an opinion or any assurance on the supplementary information other than RSI
as identified in the summary of engagement terms, the other information accompanying the
financial statements will not be subjected to the auditing procedures applied in our audit of the
financial statements and our auditor's report will not provide an opinion or any assurance on that
other information. We will read the other supplementary information and consider whether a
material inconsistency exists between the other information and the basic financial statements, or
the other supplementary information otherwise appears to be materially misstated. If, based on the
work performed, we conclude that an uncorrected material misstatement of the other information
exists, we are required to describe it in our report.
The objectives of our audit are to obtain reasonable assurance about whether the financial
statements as a whole are free from material misstatement, whether due to fraud or error, and
issue an auditor's report that includes our opinions about whether your financial statements are
fairly presented, in all material respects, in conformity with the financial reporting framework
identified in the summary of engagement terms and report on the fairness of the supplementary
information for which we opine on as identified in the summary of engagement terms when
considered in relation to the financial statements as a whole. Reasonable assurance is a high level
of assurance but is not absolute assurance and therefore is not a guarantee that an audit conducted
in accordance with GAAS and Government Auditing Standards will always detect a material
misstatement when it exists. Misstatements, including omissions, can arise from fraud or error and
are considered material if there is a substantial likelihood that, individually or in the aggregate,
they would influence the judgment of a reasonable user made based on the financial statements.
The objectives also include reporting on:
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Internal control over financial reporting and compliance with provisions of laws, regulations,
contracts, and award agreements, noncompliance with which could have a material effect on
the financial statements in accordance with Government Auditing Standards.
Internal control over compliance related to major programs and an opinion (or disclaimer of
opinion) on compliance with federal statutes, regulations, and the terms and conditions of
federal awards that could have a direct and material effect on each major program in
accordance with the Single Audit Act Amendments of 1996 and Title 2 U.S. Code of Federal
Regulations (CFR) Part 200, Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards (Uniform Guidance).
AUDITOR'S RESPONSIBILITIES FOR THE AUDIT OF THE FINANCIAL
STATEMENTS AND SINGLE AUDIT
We will conduct our audit in accordance with GAAS; the standards for financial audits contained in
Government Auditing Standards, issued by the Comptroller General of the United States; the Single
Audit Act Amendments of 1996; and the provisions of the Uniform Guidance, and will include tests
of accounting records, a determination of major program(s) in accordance with Uniform Guidance,
and other procedures we consider necessary to enable us to express such opinions. As part of an
audit in accordance with GAAS and Government Auditing Standards, we exercise professional
judgment and maintain professional skepticism throughout the audit.
We will evaluate the appropriateness of accounting policies used and the reasonableness of
significant accounting estimates made by management. We will also evaluate the overall
presentation of the financial statements, including the disclosures, and determine whether the
financial statements represent the underlying transactions and events in a manner that achieves
fair presentation. We will plan and perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement, whether from (1) errors, (2) fraudulent
financial reporting, (3) misappropriation of assets, or (4) violations of laws or governmental
regulations that are attributable to the government or to acts by management or employees acting
on behalf of the government. Because the determination of waste and abuse is subjective,
Government Auditing Standards do not expect auditors to perform specific procedures to detect
waste or abuse in financial audits nor do they expect auditors to provide reasonable assurance of
detecting waste or abuse.
Because of the inherent limitations of an audit, combined with the inherent limitations of internal
control, and because we will not perform a detailed examination of all transactions, there is an
unavoidable risk that some material misstatements or noncompliance may not be detected by us,
even though the audit is properly planned and performed in accordance with GAAS and Government
Auditing Standards. In addition, an audit is not designed to detect immaterial misstatements or
violations of laws or governmental regulations that do not have a direct and material effect on the
financial statements or on major programs. However, we will inform the appropriate level of
management of any material errors, any fraudulent financial reporting, or misappropriation of
assets that come to our attention. We will also inform the appropriate level of management of any
violations of laws or governmental regulations that come to our attention, unless clearly
inconsequential. We will include such matters in the reports required for a single audit. Our
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responsibility as auditors is limited to the period covered by our audit and does not extend to any
later periods for which we are not engaged as auditors.
We will also conclude, based on the audit evidence obtained, whether there are conditions or
events, considered in the aggregate, that raise substantial doubt about the government's ability to
continue as a going concern for a reasonable period of time.
Our procedures will include tests of documentary evidence supporting the transactions recorded in
the accounts and may include tests of the physical existence of inventories, and direct confirmation
of receivables and certain assets and liabilities by correspondence with selected individuals, funding
sources, creditors, and financial institutions. We may also request written representations from your
attorneys as part of the engagement.
We will identify significant risks of material misstatement as part of our audit planning. Audit
planning and plan modifications continue throughout the course of the audit, as such, identified
risks will include those identified and communicated to you previously, including during the prior
year, modified for additional significant risks identified and prior risks no longer considered
significant. These significant risks and modifications will be communicated to you throughout the
audit process. A complete summary of significant risks identified will be included in our
communications letter, required communications to those charged with governance.
Our audit of the financial statements does not relieve you of your responsibilities.
AUDIT PROCEDURES - INTERNAL CONTROL
We will obtain an understanding of the government and its environment, including the system of
internal control, sufficient to identify and assess the risks of material misstatement of the financial
statements, whether due to error or fraud, and to design and perform audit procedures responsive
to those risks and obtain evidence that is sufficient and appropriate to provide a basis for our
opinions. The risk of not detecting a material misstatement resulting from fraud is higher than for
one resulting from error, as fraud may involve collusion, forgery, intentional omissions,
misrepresentation, or the override of internal control. Tests of controls may be performed to test
the effectiveness of certain controls that we consider relevant to preventing and detecting errors
and fraud that are material to the financial statements and to preventing and detecting
misstatements resulting from illegal acts and other noncompliance matters that have a direct and
material effect on the financial statements. Our tests, if performed, will be less in scope than would
be necessary to render an opinion on internal control and, accordingly, no opinion will be expressed
in our report on internal control issued pursuant to Government Auditing Standards.
As required by the Uniform Guidance, we will perform tests of controls over compliance to evaluate
the effectiveness of the design and operation of controls that we consider relevant to preventing or
detecting material noncompliance with compliance requirements applicable to each major federal
award program. However, our tests will be less in scope than would be necessary to render an
opinion on those controls and, accordingly, no opinion will be expressed in our report on internal
control issued pursuant to the Uniform Guidance.
An audit is not designed to provide assurance on internal control or to identify significant
deficiencies or material weaknesses. Accordingly, we will express no such opinion. However, during
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the audit, we will communicate to management and those charged with governance internal control
related matters that are required to be communicated under AICPA professional standards,
Government Auditing Standards, and the Uniform Guidance.
AUDIT PROCEDURES - COMPLIANCE
As part of obtaining reasonable assurance about whether the financial statements are free of
material misstatement, we will perform tests of the governmental entity's compliance with
provisions of applicable laws, regulations, contracts, and agreements, including grant agreements.
However, the objective of those procedures will not be to provide an opinion on overall compliance,
and we will not express such an opinion in our report on compliance issued pursuant to Government
Auditing Standards.
The Uniform Guidance requires that we also plan and perform the audit to obtain reasonable
assurance about whether the auditee has complied with federal statutes, regulations, and the terms
and conditions of federal awards applicable to major programs. Our procedures will consist of tests
of transactions and other applicable procedures described in the OMB Compliance Supplement for
the types of compliance requirements that could have a direct and material effect on each of the
governmental entity's major programs. For federal programs that are included in the Compliance
Supplement, our compliance and internal control procedures will relate to the compliance
requirements that the Compliance Supplement identifies as being subject to audit. The purpose of
these procedures will be to express an opinion on the governmental entity's compliance with
requirements applicable to each of its major programs in our report on compliance issued pursuant
to the Uniform Guidance.
RESPONSIBILITIES OF MANAGEMENT FOR THE FINANCIAL STATEMENTS AND
SINGLE AUDIT
Our audit will be conducted on the basis that you acknowledge and understand your responsibility
for (1) designing, implementing, establishing, and maintaining effective internal controls relevant
to the preparation and fair presentation of financial statements that are free from material
misstatement, whether due to fraud or error, including internal controls over federal awards, and
for evaluating and monitoring ongoing activities, to help ensure that appropriate goals and
objectives are met; (2) following laws and regulations; (3) ensuring that there is reasonable
assurance that government programs are administered in compliance with compliance
requirements; and (4) ensuring that management and financial information is reliable and properly
reported. Management is also responsible for implementing systems designed to achieve compliance
with applicable laws, regulations, contracts, and grant agreements. You are also responsible for the
selection and application of accounting principles; for the preparation and fair presentation of the
financial statements, schedule of expenditures of federal awards, and all accompanying information
in conformity with the financial reporting framework identified in the summary of engagement
terms and for compliance with applicable laws and regulations (including federal statutes), rules,
and the provisions of contracts and grant agreements (including award agreements). Your
responsibilities also include identifying significant contractor relationships in which the contractor
has responsibility for program compliance and for the accuracy and completeness of that
information.
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You are also responsible for making drafts of financial statements, schedule of expenditures of
federal awards, all financial records and related information available to us; for the accuracy and
completeness of that information (including information from outside of the general and subsidiary
ledgers); and for the evaluation of whether there are any conditions or events, considered in the
aggregate, that raise substantial doubt about the government's ability to continue as a going
concern for the 12 months after the financial statements date or shortly thereafter (for example,
within an additional three months if currently known). You are also responsible for providing us with
(1) access to all information of which you are aware that is relevant to the preparation and fair
presentation of the financial statements, such as records, documentation, identification of all
related parties and all related -party relationships and transactions, and other matters; (2) access
to personnel, accounts, books, records, supporting documentation, and other information as needed
to perform an audit under the Uniform Guidance; (3) additional information that we may request
for the purpose of the audit; and (4) unrestricted access to persons within the government from
whom we determine it necessary to obtain audit evidence. At the conclusion of our audit, we will
require certain written representations from you about the financial statements; schedule of
expenditures of federal awards; federal award programs; compliance with laws, regulations,
contracts, and grant agreements; and related matters.
Your responsibilities include adjusting the financial statements to correct material misstatements
and confirming to us in the management representation letter that the effects of any uncorrected
misstatements aggregated by us during the current engagement and pertaining to the latest period
presented are immaterial, both individually and in the aggregate, to the financial statements of
each opinion unit taken as a whole.
You are responsible for the design and implementation of programs and controls to prevent and
detect fraud, and for informing us about all known or suspected fraud affecting the government
involving (1) management, (2) employees who have significant roles in internal control, and (3)
others where the fraud could have a material effect on the financial statements. Your
responsibilities include informing us of your knowledge of any allegations of fraud or suspected fraud
affecting the government received in communications from employees, former employees, grantors,
regulators, or others. In addition, you are responsible for identifying and ensuring that the
government complies with applicable laws, regulations, contracts, agreements, and grants. You are
also responsible for taking timely and appropriate steps to remedy fraud and noncompliance with
provisions of laws, regulations, contracts, and grant agreements, that we report. Additionally, as
required by the Uniform Guidance, it is managements responsibility to evaluate and monitor
noncompliance with federal statutes, regulations, and the terms and conditions of federal awards;
take prompt action when instances of noncompliance are identified including noncompliance
identified in audit findings; promptly follow up and take corrective action on reported audit
findings; and prepare a summary schedule of prior audit findings and a separate corrective action
plan. The summary schedule of prior audit findings should be available for our review during our
fieldwork.
You are responsible for identifying all federal awards received and understanding and complying
with the compliance requirements and for the preparation of the schedule of expenditures of federal
awards (including notes and noncash assistance received, and COVID-19-related concepts, such as
lost revenues, if applicable) in conformity with the Uniform Guidance. You agree to include our
report on the schedule of expenditures of federal awards in anv document that contains and
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indicates that we have reported on the schedule of expenditures of federal awards. You also agree
to include the audited financial statements with any presentation of the schedule of expenditures
of federal awards that includes our report thereon or make the audited financial statements readily
available to intended users of the schedule of expenditures of federal awards no later than the date
the schedule of expenditures of federal awards is issued with our report thereon. Your
responsibilities include acknowledging to us in the written representation letter that (1) you are
responsible for presentation of the schedule of expenditures of federal awards in accordance with
the Uniform Guidance; (2) you believe the schedule of expenditures of federal awards, including its
form and content, is stated fairly in accordance with the Uniform Guidance; (3) the methods of
measurement or presentation have not changed from those used in the prior period (or, if they have
changed, the reasons for such changes); and (4) you have disclosed to us any significant assumptions
or interpretations underlying the measurement or presentation of the schedule of expenditures of
federal awards.
You are also responsible for the preparation of the other supplementary information, which we have
been engaged to report on, in conformity with the financial reporting framework identified in the
summary of engagement terms. You agree to include our report on the supplementary information
in any document that contains, and indicates that we have reported on, the supplementary
information. You also agree to include the audited financial statements with any presentation of
the supplementary information that includes our report thereon or make the audited financial
statements readily available to users of the supplementary information no later than the date the
supplementary information is issued with our report thereon. Your responsibilities include
acknowledging to us in the written representation letter that (1) you are responsible for
presentation of the supplementary information in accordance with the financial reporting
framework identified in the summary of engagement terms; (2) you believe the supplementary
information, including its form and content, is fairly presented in accordance with the financial
reporting framework identified in the summary of engagement terms; (3) the methods of
measurement or presentation have not changed from those used in the prior period (or, if they have
changed, the reasons for such changes); and (4) you have disclosed to us any significant assumptions
or interpretations underlying the measurement or presentation of the supplementary information.
Management is responsible for establishing and maintaining a process for tracking the status of audit
findings and recommendations. Management is also responsible for identifying and providing report
copies of previous financial audits, attestation engagements, performance audits, or other studies
related to the objectives discussed in the Audit Scope and Objectives section of this agreement.
This responsibility includes relaying to us corrective actions taken to address significant findings and
recommendations resulting from those audits, attestation engagements, performance audits, or
studies. You are also responsible for providing management's views on our current findings,
conclusions, and recommendations, as well as your planned corrective actions, for the report, and
for the timing and format for providing that information.
OTHER MANAGEMENT RESPONSIBILITIES
We understand that your employees will prepare all cash, accounts receivable, and other
confirmations we request and will locate any documents selected by us for testing.
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During the course of our engagement, we may accumulate records containing data which should be
reflected in your books and records. You will determine that all such data will be so reflected.
Accordingly, you understand that our firm does not accept responsibility for hosting client
information; therefore, you have the sole responsibility for ensuring you retain and maintain in your
possession all your financial and non -financial information, data and records.
Our role is strictly limited to the engagement described in this agreement and summary of
engagement terms, and we offer no assurance as to the results or ultimate outcomes of this
engagement or of any decisions that you may make based upon our communications with, or our
reports to you. Your entity will be solely responsible for making all decisions concerning the contents
of our communications and reports, for the adoption of any plans and for implementing any plans
you may develop, including any that we may discuss with you.
ALTERNATIVE PRACTICE STRUCTURE
Creative Planning, LLC and its affiliates (Creative Planning) and BerganKDV operate under an
alternative practice structure in accordance with the AICPA Code of Professional Conduct and other
applicable laws, regulations, and professional standards. BerganKDV provides audit and attest
services and is closely aligned with Creative Planning that provides other professional (nonattest)
services. Pursuant to a services agreement with Creative Planning, BerganKDV leases professional
and administrative staff, both of which are employed by Creative Planning, to support BerganKDV's
performance of audit and attest engagements. The professional and administrative staff leased
under the services agreement will be under the direct control and supervision of BerganKDV, which
is solely responsible for the professional performance of audit and attest engagements.
As identified in the summary of engagement terms, Creative Planning, which is not a licensed CPA
firm, may provide permitted nonattest services, which are not covered under this agreement.
BerganKDV, Creative Planning, and its affiliates will share confidential client information with each
other to assist in the performance of those services. Your acceptance and signing of this agreement
are also your consent for BerganKDV, Creative Planning, and its affiliates to share your information
to provide you those services.
OTHER SERVICES
We will assist in preparing the financial statements, schedule of expenditures of federal awards,
and related notes of the governmental entity in conformity with the financial reporting framework
identified in the summary of engagement terms and the Uniform Guidance based on information
provided by you. These nonattest services do not constitute an audit under Government Auditing
Standards and such services will not be conducted in accordance with Government Auditing
Standards.
BerganKDV and/or Creative Planning may provide other nonattest services, as identified in the
summary of engagement terms. These services may not be fully covered under this agreement and
may be billed separately under other agreements with you.
You may request that BerganKDV and Creative Planning perform additional services not
contemplated by this agreement. If this occurs, we will communicate with you regarding the scope
of the additional services and the estimated fee. BerganKDV or Creative Planning also may issue a
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separate agreement covering the additional services. In the absence of any other written
communication from us documenting such additional services, our services will continue to be
governed by the terms of this agreement.
We will perform the services in accordance with applicable professional standards. We, in our sole
professional judgment, reserve the right to refuse to perform any procedure or take any action that
could potentially impair our independence.
INDEPENDENCE
Professional and certain regulatory standards require us to be independent in the performance of
our services in both fact and appearance. As such, BerganKDV and Creative Planning will not perform
any management functions, make any management decisions, or perform any services or activities,
without the appropriate safeguards, that would impair our independence.
You agree to assume all management responsibilities for the nonattest services, as identified in the
summary of engagement terms, financial statements, schedule of expenditures of federal awards,
and related notes, and any other nonattest services provided by BerganKDV and Creative Planning.
You will be required to acknowledge in the management representation letter our assistance with
preparation of the financial statements, the schedule of expenditures of federal awards, and related
notes and that you have evaluated the adequacy of our services and have reviewed and approved
the results of the services, the financial statements, the schedule of expenditures of federal awards,
and related notes prior to their issuance and have accepted responsibility for them. Further, you
agree to oversee the nonattest services by designating an individual, preferably from senior
management, with suitable skill, knowledge, or experience; evaluate the adequacy and results of
those services; and accept responsibility for them.
To ensure our independence is not impaired under professional and regulatory standards, you agree
to inform the engagement partner before entering into any substantive employment discussions with
any BerganKDV and Creative Planning personnel.
REPORTING
We will issue written reports upon completion of our Single Audit. Circumstances may arise in which
our report may differ from its expected form and content based on the results of our audit.
Depending on the nature of these circumstances, it may be necessary for us to modify our opinions,
add a separate section, or add an emphasis -of -matter or other -matter paragraph to our auditor's
report, or if necessary, withdraw from this engagement. If our opinions are other than unmodified,
we will discuss the reasons with you in advance. If, for any reason, we are unable to complete the
audit or are unable to form or have not formed opinions, we may decline to express opinions or
issue reports, or we may withdraw from this engagement.
The Government Auditing Standards report on internal control over financial reporting and on
compliance and other matters will state that (1) the purpose of the report is solely to describe the
scope of testing of internal control and compliance and the results of that testing, and not to provide
an opinion on the effectiveness of the entity's internal control or on compliance, and (2) the report
is an integral part of an audit performed in accordance with Government Auditing Standards in
considering the entity's internal control and compliance. The Uniform Guidance report on internal
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control over compliance will state that the purpose of the report on internal control over compliance
is solely to describe the scope of testing of internal control over compliance and the results of that
testing based on the requirements of the Uniform Guidance. Both reports will state that the report
is not suitable for any other purpose.
At the conclusion of the engagement, we will complete the appropriate sections of the Data
Collection Form that summarizes our audit findings. It is management's responsibility to
electronically submit the reporting package (including financial statements, schedule of
expenditures of federal awards, summary schedule of prior audit findings, auditors' reports, and
corrective action plan) along with the Data Collection Form to the federal audit clearinghouse. We
will coordinate with you the electronic submission and certification. The Data Collection Form and
the reporting package must be submitted within the earlier of 30 calendar days after receipt of the
auditors' reports or nine months after the end of the audit period.
We will provide copies of our reports to the governmental entity; however, management is
responsible for distribution of the reports and the financial statements. Unless restricted by law or
regulation, or containing privileged and confidential information, copies of our reports are to be
made available for public inspection.
The engagement partner, as identified in the summary of engagement terms, is responsible for
supervising the engagement and signing the reports or authorizing another individual to sign them.
FEES
Our fees for these services are detailed in the summary of engagement terms. The fee estimate is
based on anticipated cooperation from your personnel, the assumption that all requested
information will be provided timely and accurately, and we will not encounter any significant or
unusual circumstances which will affect the scope of our engagement, including unforeseen changes
in operations or disruptions in providing our services. If significant additional time is necessary, our
fees will be adjusted accordingly. Additional time incurred for assistance with implementation of
new accounting or other regulatory standards, significant audit adjustments, internal control
deficiencies or compliance findings, inaccurate accounting records, significant events or
transactions resulting in expanded scope of work, unanticipated significant audit risks, staff
turnover, or instances of fraud will be billed separately and will be based in part upon the amount
of time required at our standard billing rates, plus out-of-pocket expenses.
We commit staff and resources to your engagement at the time scheduled with you and your team.
Failure to provide the required documentation and engagement support by the agreed upon due
dates may result in an inconvenience fee of 25% of the base fee noted in the summary of engagement
terms.
AUDIT DOCUMENTATION
The audit documentation for this engagement is the property of BerganKDV and constitutes
confidential information. However, subject to applicable laws and regulations, audit documentation
and appropriate individuals will be made available upon request and in a timely manner to oversight,
regulatory, state agencies or their designees pursuant to authority given to them by law or
regulation, a federal agency providing direct or indirect funding, or the U.S. Government
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Accountability Office for purposes of a quality review of the audit, to resolve audit findings, or to
carry out oversight responsibilities. We will notify you of any such request. If requested, access to
such audit documentation will be provided under the supervision of BerganKDV personnel.
Furthermore, upon request, we may provide copies of selected audit documentation to the
aforementioned parties. These parties may intend, or decide, to distribute the copies or information
contained therein to others, including other governmental agencies.
The audit documentation for this engagement will be retained for a minimum of five years after the
report release date or for any additional period requested by the oversight, regulatory or state
agencies. If we are aware that a federal awarding agency, pass -through entity, or auditee is
contesting an audit finding, we will contact the parties contesting the audit finding for guidance
prior to destroying the audit documentation.
MANAGEMENT WRITTEN REPRESENTATIONS
During the course of our engagement, we will request information and explanations from
management regarding the entity's operations, internal controls, future plans, specific transactions,
and accounting systems and procedures. At the conclusion of our engagement, we will require, as a
precondition to the issuance of our report, that management provide certain representations in a
written representation letter. The procedures we will perform in our engagement and the
conclusions we reach as a basis for our report will be heavily influenced by the written and oral
representations that we receive from management. Accordingly, false representations could cause
us to expend unnecessary efforts or could cause a material error or a fraud to go undetected by our
procedures. In view of the foregoing, you agree that we shall not be responsible for any
misstatements in the entity's financial statements that we may fail to detect as a result of false or
misleading representations that are made to us by management.
PEER REVIEW REPORT
Government Auditing Standards require that we provide you with a copy of our most recent external
peer review report and any letter of comment, and any subsequent peer review reports and letters
of comment received during the period of contract. Our peer review report can be downloaded from
our website at www.creativeplanning.com/client-login/ or will be provided in alternate formats
upon request.
PROFESSIONAL SERVICES TERMS AND CONDITIONS
The parties agree that this Engagement Letter/Agreement incorporates the Professional Services
Terms and Conditions (the "Terms") (collectively, the "Agreement"), all of which shall remain
confidential between Client and BerganKDV. By signing this Engagement Letter/Agreement, Client
acknowledges and agrees that Client has had an ample opportunity to review the terms contained
in the Agreement. Client further agrees that Client has had the opportunity to obtain legal counsel
and through Client's own determination, with or without counsel, accepts this Agreement.
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berganKDv®
UDIT &ATTEST
The undersigned represent and warrant they are authorized signers for their respective
organizations.
Executed by BerganKDV:
Acknowledged and Accepted by:
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‘luefraf hart'
Title:
Title:
Shareholder
Mayor
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PROFESSIONAL SERVICES TERMS AND CONDITIONS
These Professional Services Terms and Conditions (the "Professional Services Terms and Conditions" or "T&C") are
made part of the Engagement Letter (the "Engagement Letter") entered into by the individual or entity client
identified therein (hereinafter "Client") and the BerganKDV identified therein (hereinafter "Service Provider")
(collectively, the Professional Services Terms and Conditions and the Engagement Letter, the "Agreement"). In the
event of a conflict between these Terms and Conditions and the Engagement Letter, these Terms and Conditions shall
control, unless the Engagement Letter makes specific reference to the section of this Professional Services Agreement
that it intends to supersede. All capitalized terms not defined herein shall have the meaning as defined in the
Engagement Letter.
1. Definitions. In addition to the terms defined elsewhere in this Professional Services Agreement, the following
terms shall have the meanings set forth below when used in the Agreement:
"Affiliate" or "Affiliates" means any company, corporation, or limited liability company that directly or indirectly
controls, is controlled by, or is under common control with a party to this Agreement.
"Client Materials" means any and all physical or electronic materials, information, data, dates, formulas, financial
statements, records, Client's Confidential Information, and any other information related to Client that Client provides
to, or otherwise makes available to, Service Provider in the course of providing the Services to Client hereunder this
Agreement.
"Confidential Information" shall collectively refer to: (1) all information or materials concerning any aspect of the
business or affairs of the disclosing party that in any form, which is confidential, proprietary, or otherwise not generally
available to the public, including without limitation the disclosing Party's business or financial information and plans,
documents, works in progress, work processes, trade secrets, customer information, and all other secret or
confidential matter related to the disclosing Party's business or projects and/or their Affiliates; and (2) any other
information that disclosing Party designates as confidential, or which, under the circumstances of disclosure, the
receiving Party reasonably knows should be treated as confidential.
"Force Majeure Event" means any event or circumstance beyond the control of a Party, including: (1) acts of God; (2)
fire, flood, or explosion; (3) war, invasion, acts of terrorism, or other civil disorder; (4) national or regional emergency;
(5) epidemics, outbreaks, pandemics (including, without limitation COVID-19); or (6) the operation of the Internet,
interruption or failure of telecommunication or digital transmission links, and Internet slow -downs or failures.
"Intellectual Property Rights" means copyrights, trade and service marks, trade names, rights in logos and get-up,
inventions, confidential information, trade secrets, registered designs, design rights, patents, all rights of whatsoever
nature in computer software and data, database rights, all rights of privacy and all intangible rights and privileges of a
nature similar to any of the foregoing, in every case in any part of the world and whether or not registered, and
including all granted registrations and all applications for registration in respect of any of the same.
"Party" and "Parties" means either or both of the Service Provider and the Client.
"Report" means any physical or electronic document or output that Service Provider creates in providing the Services
to Client, including but not limited to, reports, related work product, materials, presentations, and related
communications (written or otherwise).
"Representatives" means a Party's officers, directors, agents, advisors, employees and contractors.
"Services" means the work product and services to be provided by Service Provider pursuant to this Agreement and
the Engagement Letter.
"Service Provider Materials" means: (1) any of Service Provider including, without limitation, computer hardware or
software programs, products, materials or methodologies and reports, studies, data, diagrams, charts, specifications,
gateways, bridges and integrations with third -party code; (2) any modifications to Service Provider's pre-existing
software produced on behalf of Client; (3) works or materials created and developed by Service Provider prior to or
independently of the Services; and (4) residual knowledge and know-how of general applicability resulting from
performance of the Services.
"Third -Party Software Provider" means any third party that provides software, software as a service, or other platform
or software related products and services that Service Provider engages to assist with the performance of the Services.
2. Services.
2.1. Services and Additional Services. The Services to be performed by Service Provider for Client are set forth in
the Engagement Letter. If any time Client requests that Service Provider perform additional services outside the scope
of the Services ("Additional Services") and Service Provider agrees to perform the work but Service Provider and Client
do not enter into a separate Engagement Letter setting forth the Additional Services, then Client agrees to pay Service
Provider additional fees based in part upon the amount of time required at our standard billing rates, plus out-of-
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PROFESSIONAL SERVICES TERMS AND CONDITIONS
pocket expenses, the Additional Services will be subject to the terms and conditions of this Professional Services
Agreement, and all references to the term "Services" in this Professional Services Agreement shall be construed to
mean the Services and the Additional Services. Service Provider, in its sole professional judgment, reserves the right
to refuse to perform any Services or take any action that could be construed as assuming Client's responsibilities as
set forth herein.
2.2. Third -Party Software Providers. Client acknowledges and agrees that such Services may be performed by
Service Provider, or any of its Affiliates, or Third -Party Software Providers. Client acknowledges and agrees that Service
Provider may enter into contracts or licenses with such Third -Party Software Provider and Service Provider shall have
the right to enter into, amend, terminate, or modify any such contract or license with any Third -Party Software
Provider at any time in its sole discretion and without the consent of or notification to Client. If applicable to Client's
Services, Client may need to agree to Third -Party Software Providers' terms and conditions or other contractual
agreements in order to use Third -Party Software Providers' services.
2.3. Quality Inputs. Notwithstanding anything herein to the contrary, Client agrees and acknowledges that the
quality of the Services and any Reports is reliant on the accuracy, reliability, availability, and validity of the Client
Materials provided by Client to Service Provider and Service Provider makes no representation or warranty with
respect to issues with the Services that result from or are based on issues with accuracy, reliability, availability or
validity of the Client Materials. Client hereby agrees that it will immediately notify Service Provider when it becomes
aware of issues with the accuracy, reliability, availability, and validity of the Client Materials provided to Service
Provider and Client assumes all risk, loss, and damages that arise therefrom, including, but not limited to any costs
associated with redoing the Services and any Reports.
3. Payment for Services.
3.1. Service Fees and Payment Terms. Client agrees to pay the fees for the Services as set forth in the Engagement
Letter and in these Professional Services Terms & Conditions. Any amounts owed by Client hereunder will be invoiced
monthly and all payments shall be due within thirty (30) days of Client's receipt of the applicable invoice, unless stated
to the contrary in the Engagement Letter. Client may not offset, defer or deduct any invoiced amounts. If Client objects
to any invoiced amount, Client must promptly notify Service Provider in writing (but in no event more than thirty (30)
days of the invoice date) and provide a detailed summary of all objections. Client hereby waives any objections to any
invoice if timely objections are not made. If Client objects to any invoice, Client shall promptly pay all undisputed
amounts and work with Service Provider in good faith to attempt to resolve any disputes.
3.2. Prepayments. Service Provider shall have the right to require Client to prepay up to fifty percent (50%) of the
anticipated fees for the Services prior to any Services being provided to Client. If Service Provider determines in its
sole discretion that the total cost for providing the Services cannot be reasonably determined at the outset, then
Service Provider shall have the right to require Client pay a prepayment to Service Provider in an amount reasonably
determined by Service Provider prior to Service Provider providing the Services.
3.3. Interest on Past Due Amounts. If any invoice is not paid by its due date, Service Provider will charge Client
and Client will pay an interest charge of one percent (1%) per month on the unpaid balance of such invoice. For any
amounts that are disputed in good faith, Client may still be liable for the interest if such amounts are later found to
be rightfully due and owing. Alternatively, for any disputed amounts that are made in good faith, Client can pay such
amounts into a mutually agreeable interest -bearing escrow account, in which case Client will not be obligated to pay
such interest provided it cooperates in good faith with Service Provider to promptly resolve the dispute.
3.4. Certain Remedies for Nonpayment. If an undisputed invoice is not paid when due, Client shall pay Service
Provider a service charge accruing from the due date in the amount of one and half percent (1.5%) per month or the
highest lawful rate, whichever is less, on the unpaid balance of such invoice. If Client fails to pay to Service Provider,
within ten (10) days after Service Provider makes written demand for any past -due amount payable under the
Agreement (including interest thereon), then, in addition to all other rights and remedies which Service Provider may
have at law or in equity, Service Provider may seek collection from Client of unpaid amounts due and shall be entitled
to all of its attorneys' fees, costs of court and other costs of collection regardless if formal litigation is commenced.
Service Provider is also entitled to accelerate and demand full payment of any future amounts due under the
Engagement Letter. Service Provider may, in its sole discretion, decide to suspend Client's access to the Services,
including any Services provided by a Third -Party Software Provider, until all past due amounts are paid in full. Any
withholding of Services or support due to a failure by Client to pay amounts due does not relieve Client from its
contractual obligation to pay for the Services during the time the Services and/or support are withheld. If Client makes
full payment and restores its account to good standing and the Agreement has not otherwise been terminated, then
Service Provider may resume Services. Notwithstanding any term to the contrary herein, Client acknowledges and
agrees that Services Provider shall not be liable for any damages that Client incurs resulting from Service Provider's
suspension of Services until all amounts due are paid in full to Service Provider.
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PROFESSIONAL SERVICES TERMS AND CONDITIONS
3.5. Taxes. All of Service Provider's invoiced amounts are exclusive of any taxes. Client is responsible for and shall
pay all sales, use, excise, personal property or other taxes, whether federal, state or local, however designated, levied
or imposed on any Services or invoiced amounts. Income, franchise or similar taxes related to Service Provider's
earnings or business entity are Service Provider's responsibility.
4. Term of Agreement.
4.1. Term and Termination. The term of this Agreement shall commence on the Effective Date of the Engagement
Letter and shall continue until terminated as provided herein. This Agreement may be terminated pursuant to the
following: (1) either Party may terminate the Agreement for convenience by giving the other Party ninety (90) days'
prior written notice; or (2) either party may terminate this Agreement "for cause" if the other party is in breach of any
material term of this Agreement and does not cure the breach within thirty (30) days after receipt of the written
notice of the alleged breach. Should such termination occur while Client still has Services remaining on any applicable
agreement, except in situations where Client has terminated this Agreement for cause, then all of those amounts due
presently and during the remainder of the Services term shall be immediately due and payable upon the effective
termination of this Agreement.
4.2. Enforceability Post -Termination; Survival. Upon the termination of this Agreement, Service Provider has no
further responsibility to provide Services. Client's obligation to pay Service Provider shall survive termination until all
amounts due and owing to Service Provider are fully paid and Client shall be obligated to pay Service Provider for any
fees or expense on a proportional basis for Services performed up to and including the Effective Date. Any provisions
of this Agreement that by their terms require performance or have application to events following termination shall
survive and remain in full force and effect.
4.3. Procedures Upon Termination. Upon the end of the Term, Service Provider shall prepare final invoices for
Services and provide them to Client, and Client shall pay the same pursuant to the invoice terms. Both parties shall
return any and all Confidential Information, reports, materials, or other service -related items as required by this
Agreement in a timely manner. Both Parties are not obligated to delete data that is solely on their backup systems,
provided that should the backup system's data that includes Confidential Information be restored to the primary
system where the data is more readily accessible, then the Parties will at that time have the obligation to delete the
Confidential Information.
5. Confidentiality, Certain Restrictive Covenants, and Intellectual Property.
5.1. Confidentiality Obligations. The receiving Party shall maintain the confidentiality of the disclosing Party's
Confidential Information and protect such Confidential Information with the same degree of care that it applies to the
receiving Party's own similar Confidential Information, but in no event less than a reasonable degree of care, given
the nature of the information disclosed. The disclosing Party's Confidential Information shall be used by the receiving
Party solely for the purpose of rendering or obtaining Services (as applicable) pursuant to this Agreement and, except
as permitted herein, shall not be disclosed to any third party without the prior consent of the disclosing Party.
Notwithstanding the foregoing, Client acknowledges that Service Provider may share Client's Confidential Information
with those of its Representatives, Affiliates and any Third -Party Software Providers that have a need to know in order
to assist with the performance of the Services and who agree to maintain the Client's Confidential Information on the
same or similar terms as set forth herein. Client acknowledges that it may be asked by certain Third -Party Software
Providers to consent to the sharing of Client's Confidential Information in connection with the Services, and Client
agrees to consent to such requests from Third -Party Software Providers. This Agreement shall be deemed Confidential
Information.
5.2. Exceptions. The restrictions on Confidential Information in this Section 5 shall not apply to information: (1)
generally available to the public through no act or omission of the receiving Party, its Representatives, or its Affiliates;
(2) independently developed or acquired by the receiving Party without use or reference to the disclosing Party's
Confidential Information; (3) approved for release in writing by the disclosing Party; (4) that is received without
restriction from another person or organizations lawfully in possession of such information and entitled to provide
such information to the receiving Party; or (5) information that was rightfully in the possession of the receiving Party
on a non -confidential basis prior to its disclosure by the disclosing Party. Additionally, either Party may use or disclose
the other Party's Confidential Information if required by any request or order of any applicable government or
regulatory authority, or otherwise as required by applicable law. Before disclosing the disclosing Party's Confidential
Information for such purpose, the receiving Party must provide prompt written notice to the disclosing Party of the
circumstances requiring disclosure of such Confidential Information, and the Parties shall cooperate with each other,
at the disclosing Party's expense, to obtain protection for the confidentiality thereof to the extent available, to contest
and avoid such disclosure, to obtain any other appropriate remedy, or to waive compliance with the provisions of this
Agreement. In the event that such protective order or other remedy is not obtained, or that the disclosing Party waives
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PROFESSIONAL SERVICES TERMS AND CONDITIONS
compliance with the provisions of this Agreement, the receiving Party will furnish only that portion of Confidential
Information which is legally required.
5.3. HIPAA. If applicable, notwithstanding anything herein to the contrary, to the extent the Health Insurance
Portability and Accountability Act of 1996 ("HIPAA") applies to Client, Client acknowledges and agrees that: (1) Client
retains all responsibility for being compliant with the applicable provisions of HIPAA that may apply to the Client
Materials provided by Client pursuant to the Services; and (2) Service Provider makes no representation or warranty
herein regarding its compliance with any applicable HIPAA laws and regulations in connection with the Services.
6. Warranties.
6.1. Representations and Warranties. Each Party represents, warrants and covenants to the other that: (1) it has
full right, power and authority to enter into and fully perform its obligations under this Agreement; (2) the execution,
delivery and performance of this Agreement by that Party does not conflict with any other agreement to which it is a
party or by which it is bound; and (3) it shall comply with all material laws, rules and regulations applicable to its
activities in connection with this Agreement. Client further represents, warrants, and covenants that: (1) the Client
Materials are original to Client or Client has obtained the necessary rights to provide the Client Materials to Service
Provider and use the Client Materials in connection with the Services; and (2) the Client Materials as provided to
Service Provider are accurate, reliability, availability, and valid for the performance of the Services.
6.2. All Obligations Set Forth in This Agreement; Limitation. SERVICE PROVIDER SHALL NOT BE RESPONSIBLE FOR
ANY DELAYS AND/OR SERVICE UNAVAILABILITY OF ANY KIND, REGARDLESS OF CAUSE, EXCEPT AS PROVIDED IN THIS
AGREEMENT. CLIENT EXPRESSLY WAIVES ANY CLAIMS AGAINST SERVICE PROVIDER FOR LOSS, INJURY, OR DAMAGE
OF ANY KIND, DIRECTLY OR INDIRECTLY, RESULTING FROM AVAILABILITY OF THE SERVICES, USE OF THE SERVICES OR
FROM ANY LOSS OR CORRUPTION OF CLIENT MATERIALS SOFTWARE, OR HARDWARE, EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN THIS AGREEMENT.
6.3. OTHER WARRANTY DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT,
SERVICE PROVIDER DISCLAIMS ALL OTHER WARRANTIES ON THE SERVICES FURNISHED UNDER THIS AGREEMENT
INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON -INFRINGEMENT, MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, OR OF ANY RESULTS TO BE ACHIEVED.
UNLESS NOTED EXPLICITLY OTHERWISE HEREIN, ALL SERVICES ARE PROVIDED AS -IS. NOTWITHSTANDING ANYTHING
TO THE CONTRARY HERE, ANY SERVICES THAT ARE CONTINGENT ON OR PROVIDED BY A THIRD -PARTY SOFTWARE
PROVIDER CARRY NO WARRANTY OF ANY KIND BY SERVICE PROVIDER. CLIENT AGREES TO LOOK EXCLUSIVELY TO
SUCH THIRD -PARTY SOFTWARE PROVIDER FOR ANY AND ALL LIABILITY. THE EXPRESS WARRANTIES STATED IN THIS
SECTION 6 ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF SERVICE PROVIDER ARISING OUT OF OR
IN CONNECTION WITH THE PERFORMANCE OF SERVICE PROVIDER UNDER THIS AGREEMENT.
7. Limitation of Liability and Indemnification.
7.1. LIMITATION ON DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, CLIENT
ACKNOWLEDGES AND AGREES THAT THE MAXIMUM AGGREGATE AMOUNT THAT CLIENT CAN COLLECT FROM
SERVICE PROVIDER OR ITS AFFILIATES FOR ANY CLAIM RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER
PURSUANT TO THIS AGREEMENT OR OTHERWISE UNDER THE LAW, SHALL BE LIMITED TO AN AMOUNT EQUAL TO
THE AVERAGE MONTHLY AMOUNT ACTUALLY PAID FOR THE SPECIFIC SERVICE AT ISSUE BY CLIENT TO SERVICE
PROVIDER UNDER THIS AGREEMENT OVER THE PASTTWELVE (12) MONTHS PRIOR TO WHEN THE CLAIM FIRST AROSE.
7.2. WAIVER OF CERTAIN DAMAGES. UNLESS SPECIFIED EXPLICITLY HEREIN, NEITHER PARTY SHALL BE LIABLE FOR
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF USE OF DATA OR
INTERRUPTION OF BUSINESS, WHETHER ARISING IN TORT, CONTRACT, OR INDEMNITY, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED THAT NOTHING IN THIS PARAGRAPH IS ENTITLED
TO LIMIT OR WAIVE THE AMOUNTS DUE FROM CLIENT TO SERVICE PROVIDER.
7.3. MUTUAL INDEMNIFICATION. Each Party ("Indemnifying Party") will defend, indemnify, and hold harmless
the other Party and its Affiliates, and any of their Representatives ("Indemnified Party"), from and against any and all
losses, claims, actions, proceedings, and suits, and all related liabilities, damages, judgements, settlements, penalties,
fines, costs or expenses (including reasonable attorneys' fees and other actual litigation related expenses) (collectively
"Losses") incurred by the Indemnified Party, arising out of or relating to: (1) any breach or alleged breach of the
Indemnifying Party's representations and warranties; (2) any damage or loss caused by negligence, fraud, dishonesty,
or willful misconduct by the Indemnifying Party or any of its Representatives; (3) unauthorized disclosure of
confidential information by the Indemnifying Party; (4) claims against the indemnified party by a third party for
infringement upon Intellectual Property Rights; and (5) any other violation of this Agreement by the Indemnifying
Party. Notwithstanding anything to the contrary contained in this Agreement, in no event will the Indemnifying Party
be liable for any amount attributable to the Indemnified Party's gross negligence, willful misconduct, or breach of this
Agreement.
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PROFESSIONAL SERVICES TERMS AND CONDITIONS
8. Miscellaneous.
8.1. Non -solicitation of Employees. During the term of this Agreement and for a period of one (1) year after
termination of this Agreement for any reason, Client shall not, directly or indirectly, hire, offer to hire, entice away,
solicit, or in any other way persuade or attempt to persuade any Representative to discontinue their relationship with
Service Provider. If Client violates this provision, Client shall pay Service Provider an amount equal to the
Representatives total annualized compensation, including wages, bonuses and the cost of all benefits, if any, that
Service Provider paid or was payable to the Representative during the one (1) year period prior to Client soliciting the
Representative as well as the forecasted or actual total annualized compensation that Client will pay or did pay to
Representative after the solicitation occurred.
8.2. Notification. All notices, requests, demands and other communications which are required or may be given
under the Agreement will be in writing and will be deemed to have been duly given, or otherwise properly received:
(1) when actually received if personally delivered; (2) when transmitted by confirmed facsimile, electronic or digital
transmission method; (3) the day after it is sent, if sent for next day delivery to a domestic United States address by
recognized overnight delivery service (e.g., Federal Express); and (4) upon receipt, if sent by certified or registered
mail, return receipt requested. In each case, notice will be sent pursuant to the addresses and notice information for
each Party set forth in the Engagement Letter, provided, however, that any Party may change such Party's notice
information by written notice to the other Party in the manner set forth above.
8.3. Force Majeure. Except for any payment obligations, which shall remain due and payable in accordance with
the provisions of this Agreement, either Party shall be excused from delays in performing, or from its failure to
perform, its obligations pursuant to this Agreement if such delays or failures result from a Force Majeure Event. In
order to be excused from delay or failure to perform due to a Force Majeure Event, a Party must provide prompt
written notice to the other Party reasonably identifying the Force Majeure Event and use commercially reasonable
efforts to resume performance to the extent possible. If the period of non-performance exceeds thirty (30) days from
the receipt of notice of the Force Majeure Event, either party may terminate this Agreement. Notwithstanding any
term to the contrary herein this Agreement, Client's sole and exclusive remedy for any such termination shall be a
refund of the pro-rata portion of any pre -paid Service fees.
8.4. No Agency. Service Provider is acting solely as an independent contractor in rendering Services under this
Agreement. In no way is Service Provider to be construed as the agent or acting as the agent of Client in any respect.
Service Provider is neither the employer nor an employee of Client.
8.5. Assignment. This Agreement may not be assigned by either Party without the express written consent of the
other Party, which shall not be unreasonably withheld, conditioned or delayed. Subject to the foregoing, any assignee
under this Agreement shall be subject to all of the terms, conditions and provisions of this Agreement.
8.6. Waiver. No waiver or breach of any provision of this Agreement shall be effective unless made in writing nor
shall such waiver or breach operate as, or be construed to be, a continuing waiver of such provision or breach.
8.7. Governing Law; Venue; Waiver of Jury Trial. This Agreement shall be governed by the laws of the State of
Kansas, without regard to its conflict of law provisions. Subject to the alternative dispute resolution process described
in section 8.8, any disputes between the Parties in connection with this Agreement shall be exclusively brought only
in a court of competent jurisdiction located in either: (1) the county in which the Service Provider's office sits that is
providing the majority of the Services to the Client under this Agreement; or (2) if subsection (1) is inapplicable for
any reason, then in Johnson County, in the State of Kansas. THE PARTIES EXPRESSLY AND IRREVOCABLY WAIVE TRIAL
BY JURY IN THE EVENT OF ANY DISPUTE UNDER THIS AGREEMENT.
8.8. Alternative Dispute Resolution — Mediation & Arbitration. If a dispute arises from or relates to this Agreement
or the breach thereof, and if the dispute cannot be settled through direct discussions, the Parties agree to first attempt
to settle the dispute by mediation that will be administered by a neutral party, using mediation procedures, both of
which have been agreed upon by both Parties before resorting to arbitration. Where mediation fails to produce a
binding resolution between the Parties, any continued dispute, claim or controversy arising out of or relating to this
Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination
of the scope or applicability of this agreement to arbitrate, shall be determined by individual final and binding
arbitration in the proper location determined by section 8.7 of these Terms. Except as otherwise provided in this
section or mutually agreed upon by the Parties, the arbitration shall be administered by JAMS pursuant to its
Comprehensive Arbitration Rules and Procedures. All aspects of the mediation and arbitration, including any final and
binding award issued by the arbitrator, shall be strictly confidential. Judgment on the final and binding award issued
by the arbitrator may be entered in a court described in section 8.7. This clause shall not preclude the Parties from
seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
8.9. Time Period for Claims. The Parties acknowledge that the nature of the Services makes it inherently difficult,
with the passage of time, to present evidence in an arbitration that fully and fairly establishes the facts underlying any
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dispute that may arise between us. The Parties agree that notwithstanding any applicable statute of limitation that
might otherwise apply to a claim or dispute between the Parties, including one arising out of this Agreement or the
Services, any arbitration permitted under the Agreement (except related to the collection of sums due from Client)
must be commenced within twelve (12) months after the date of delivery of any Report arising from the Services or
if no Reports are delivered in connection with the Services, within twelve (12) months after the date of delivery of the
Services. This twelve (12) month period applies and begins to run on the date of each report delivered by Service
Provider, even if Service Provider continues to perform Services after such date, and even if neither Party has become
aware of the existence of a claim or the basis for a possible claim. In the event a dispute within the last sixty (60) days
of the twelve (12) month period, the period of limitation to commence a lawsuit shall be extended by up to sixty (60)
days, to allow the Parties to conduct nonbinding mediation pursuant to Section 8.8.
8.10. Attorneys' Fees. The Party who substantially prevails in enforcing this Agreement shall be entitled to all of its
reasonable attorneys' fees, expert witness fees, investigation costs, and court and appeal costs regardless of if a
formal lawsuit is commenced. This provision shall remain in force for costs associated with section 8.8 unless the
parties agree to allocate costs subject to a separate agreement.
8.11. Fees for Client Disputes with Third Parties. Except for disputes arising between the Parties, in the event
Service Provider or any of its Affiliates are called as a witness or requested to provide any information (whether oral,
written, or electronic) in any judicial, quasi-judicial, or administrative hearing, investigation, trial, appeal, or
proceeding regarding information or communications that Client has provided to Service Provider, any documents
and materials prepared by Service Provider in accordance with the terms of this Agreement, or any knowledge the
Service Provider has related to Client, Client shall pay any and all expenses, including fees and costs for Service
Provider's time, at Service Provider's rates then in effect, as well as any legal or other fees that Service Provider incurs
as a result of such appearance or production of documents.
8.12. Subpoenas and Legal Proceedings. If Service Provider receives a subpoena related to Client, the Services
Service Provider performed for Client, or if Service Provider otherwise must engage in any legal proceeding relating
to Client or its acts or omissions, Client agrees to reimburse Service Provider for its costs associated with the same
(including reasonable attorneys' fees), along with the value of the time its staff incurs in responding to the subpoena
and participating in the legal proceeding calculated at the respective staff members' standard billable rate. Client shall
pay all such amounts within ten (10) days of written demand.
8.13. Reproductions of Materials. Any publication or other reproduction of any Report prepared by Service
Provider as part of the Services shall reference Service Provider's name and logo as original prepared and provided to
Client. Client agrees to provide Service Provider with printers' proofs or master of such publication or reproduction of
a Report for Service Provider's review and approval before it is printed and before it is distributed.
8.14. Electronic Signatures; Electronic Disclosures. The Parties agree that this Agreement and any other
documents delivered in connection herewith may be electronically signed, and that any electronic signatures
appearing on this Agreement or such other documents shall have the same legal validity and enforceability as
handwritten signatures to the fullest extent permitted by applicable law. Client hereby authorizes Service Provider
and Third -Party Software Providers to deliver to Client electronically formatted data and information, including
financial statements, drafts of financial statements, financially sensitive information, spreadsheets, trial balances, or
other financial data from Service Providers files.
8.15. Counterparts. This Agreement may be executed and delivered by original signature, facsimile, or other image
capturing technology, and in one or more counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.
8.16. Entire Agreement. This Agreement constitutes the entire agreement between the Parties in relation to the
Services provided hereunder and supersedes all prior written or oral communications and representations only with
respect to the Services provided hereunder in this Agreement.
8.17. Severability. If any portion of this Agreement is held to be void, invalid, or otherwise unenforceable in whole
or in part, for any reason whatsoever, such portion of this Agreement shall be amended to the minimum extent
required to make the provision enforceable and the remaining portions of this Agreement shall remain in full force
and effect.
8.18. Equitable Relief. Each Party acknowledges that its breach of Section 5 (Confidentiality, Certain Restrictive
Covenants, and Intellectual Property) or Section 8.1 (Non -solicitation of Employees) will cause irreparable injury to
the other Party for which monetary damages are not an adequate remedy. Accordingly, in addition to any other rights
and remedies available to such Party, a Party shall be entitled to seek injunctive relief and other equitable remedies
in the event of a breach of the terms of Section 5 or Section 8.1 by the other Party.
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Engagement Agreement - Creative Planning Business Services
Final Audit Report
November 06, 2024
Created: November 05, 2024
By: eSignRequest@creativeplanning.com(eSignRequest@creativeplanning.com)
Status: ESigned
Transaction ID: P4X5MATLM964EFNOOND7LRFHZM
Documents: ELGSA - BKDV A&A Engagement Letter -Governmental Single Audit.pdf
"Engagement Agreement - Creative Planning Business Services" Histor
O Document emailed to (Bridgett.Wood@Waterloo-IA.org) for signature
11/5/2024 14:00:34 PM Central Standard Time
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