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Agenda 10/28/2008 Item #16K 1 Agenda Item No. 16K 1 October 28,2008 Page 1 of 19 EXECUTIVE SUMMARY Recommendation that the Board of County Commissioners approve a Retention Agreement for legal services on an "as needed" basis with the law firm of Young van Assenderp, P .A., to meet County Purchasing Policy contract update requirements. OBJECTIVE: That the Board approve a Retention Agreement with Young van Assenderp, P.A., for outside legal services on an "as needed" basis. CONSIDERATIONS: Attached for the Board's review and approval is a Retention Agreement with the law firm of Young van Assenderp, P.A. ("Young van Assenderp"), which is a law firm used by the County on an as-needed basis to provide specialized legal services. The contract does not address any specific project or assignment, but rather sets forth the criteria under which payment will be made when services are requested. Although this firm has a wide array of legal expertise, the County generally requests services on an as-needed basis in the area of local government law, environmental law and permitting of solid waste facilities and related issues. "","'- The rates charged by this firm varies, as with any law firm, depending upon the attorney working on the matter and the other resources that are necessary to provide the County with the services it requests. After negotiations, Young van Assenderp' s rates have increased slightly over those previously charged in the plior contract. The proposed agreement also continues to provide for reimbursement of actual out-of-pocket expenses to make clear that lodging and traveling expenses are to be paid in accordance with Section 112.061, Florida Statutes. In an attempt to make the outside counsel retention agreements more uniform, the proposed Retention Agreement is substantially identical to one recently approved by the Board of County Commissioners. FISCAL IMP ACT: The approval and execution of the proposed Retention Agreement has no fiscal impact in and of itself, but there will be a fiscal impact in accordance with the terms and conditions of such contracts, upon the County's request for legal services. GROWTH MANAGEMENT IMPACT: None RECOMMENDA TION: That the Board approve and authorize the Chairman to execute the attached Retention Agreement with the law firm of Young van Assenderp, P.A., for specialized legal services requested on an as-needed basis. Prepared by: Jeffrey A. Klatzkow, County Attorney 04-COA-01158/2797 ~..-."". Page I of 1 Agenda Item No. 16K1 October 28, 2008 Page 2 of 19 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 16K1 Recommendation that the Board of County Commissioners approve a Retention Agreement for legal services on an as needed basis with the law firm of Young van Assenderp, PA, to meet County Purchasing Policy contract update reqUirements Meeting Date: 10/28/2008 9:0000 AM Prepared By Jeff Klatzkow Assistant County Attorney Date County Attorney County Attorney Office 10/6/20083:23:41 PM Approved By Jeff Klatzkow Assistant County Attorney Date County Attorney County Attorney Office 10/8/20088:35 AM Approved By OMS Coordinator Applications Analyst Date Administrative Services Information Technology 10/14/20088:37 AM Approved By John A. Yonkosky Director of the Office of Management Date County Manager's Office Office of Management & Budget 10/14/2008 12:14 PM Approved By James V. Mudd Board of County Commissioners County Manager Date County Manager's Office 10/21/200810:16 AM - file://C:\AgendaTest\Export\ 115-0ctober%2028,%202008\ 16.%20CONSENT%20AGEN... 10/22/2008 Agenda Item No. 16K1 October 28,2008 Page 3 of 19 RETENTION AGREEMENT WITH YOUNG V AN ASSENDERP. P.A. This Retention Agreement is made by and between the Board of County Commissioners of Collier County, Florida (the "County"), and the law firm of Young van Assenderp, P .A., of Tallahassee, Florida ("Young van Assenderplt). Whereas, Young van Assenderp has special expertise and resources in a wide range of legal matters, with particular expertise in local government law, environmental law and permitting of solid waste facilities and related issues; and Whereas, the County from time to time has a requirement and need for legal services which are particularly within the expertise of Young van Assenderp. Now, therefore, in consideration of the premises contained herein, the County hereby hires and retains Young van Assenderp and Young van Assenderp hereby agrees to provide legal services to County. ARTICLE 1 COMPENSATION: METHOD OF PAYMENT 1.1 Compensation shall be paid to Young van Assenderp in accordance with the terms set forth in Exhibit A, attached hereto and made a part hereof. Requirements for reimbursable expenses are set forth in Exhibit B, attached hereto and made a part hereof. Expenses other than automobile expenses must be documented by copies of paid receipts or other evidence of payment. The Certificate contained in Exhibit C must be included with every invoice submitted for payment. 1.2 The rates set forth in Exhibit A shall remain in effect without change for a minimum of three (3 years) from the effective date of this Agreement. In the fourth and fifth years of Page 1 of 17 Agenda Item No. 16K1 October 28, 2008 Page 4 of 19 the Agreement, upon the request ofY oung van Assenderp, the County Attorney is authorized to negotiate to increase the hourly rate up to a maximum of ten (10) per cent without approval by the Board of County Commissioners. In the negotiation process, Young van Assenderp must substantiate the reason the request is being made (i.e. market conditions, increase in CPl, etc.) 1.3 Multiple Attorney Assignments. The County acknowledges that, from time to time, it may be advisable for Young van Assenderp to assign more than one attorney to a project or case. Nevertheless, in order to ensure that such multiple attorney assignments are efficient and cost-effective for the County, Young van Assenderp agrees to the following procedures and billing limitations for multiple attorney assignments. 1.3.1 A primary attorney will be identified for such projects or cases and that attorney will be the sole contact attorney for the County, except in the case of an emergency or the County's written pre-approval. In practice, this means that generally only the primary attorney will meet or communicate directly with County personnel or attend meetings, court, arbitrations, mediations or other proceedings on behalf of the County. 1.3.2 Attorneys assigned to a project or case other than the primary attorney will be less senior attorneys with lower billing rates unless the additional attorney(s) haslhave a demonstrated expertise that will demonstrably enhance the value and efficiency of the legal services being provided to the County. 1.3.3 Young van Assenderp agrees that internal or in-house conferences among multiple attorneys assigned to a project or case shall be kept to the absolute Page 2 of 17 Agenda Item No. 16K1 October 28,2008 Page 5 of 19 minimum necessary for the provision of the legal services in question. To the extent internal or in-house conferences among multiple attorneys assigned to a project or case are necessary, each such attorney may bill at his or her customary rate for up to thirty (30) minutes for any such conference. To the extent such a conference exceeds thirty (30) minutes in length, Young van Assenderp agrees that it will discount the total billings for all attorneys involved in the conference by forty-five (45) percent. 1.4 Young van Assenderp may submit invoices for hourly work assignments pursuant to Exhibit A only after the services for which the invoices are submitted have been completed or expenses incurred. An original invoice plus one copy is due within fifteen (15) days of the end of the month, except the final invoice which must be received no later than sixty (60) days after the work is completed or the expiration of this Agreement. 1.5 To be deemed proper, all invoices must comply with the requirements set forth in this Agreement and must be submitted on the form and pursuant to the instruction prescribed by County. Payment may be withheld for failure of Young van Assenderp to comply with a term, condition, or requirement of this Agreement. 1.6 Payment shall be made to Young van Assenderp at: David S. Dee Young van Assenderp, P .A. Gallie's Hall 225 South Adams Street, Suite 200 Post Office Box 1833 (32302-1833) Tallahassee, Florida 32301 Facsimile: (850)561-6834 ddee@vvlaw.net Page 3 of 17 Agenda Item No. 16K1 October 28,2008 Page 6 of 19 ARTICLE 2 INSURANCE 2.1 Young van Assenderp shall as a minimum, provide, pay for, and maintain in force at all times during the tenn of this Agreement, professional liability insurance in an amount not less than One Million Dollars ($1,000,000.00) Per Occurrence, Combined Single Limits. If any liability insurance obtained by Young van Assenderp to comply with the insurance requirements contained herein is issued on a "claims made" fonn as opposed to an "occurrence" fonn, the retroactive date for coverage shall be no later than the commencement date of the assigned work to which this Agreement applies, and such insurance shall provide, in the event of cancellation or non-renewal, that the discovery period for insurance claims (tail coverage) shall not be less than three years following the completion of the assigned work and acceptance by the County. 2.2 Such policy or policies shall be issued by United States Treasury approved companies authorized to do business in the State of Florida, and having agents upon whom service of process may be made in Collier County, Florida. 2.3 Young van Assenderp shall furnish to the Risk Management Director Certificates of Insurance or endorsements evidencing the insurance coverages specified by this Article prior to beginning performance of work under this Agreement. ARTICLE 3 TERM AND TIME OF PERFORMANCE 3.1 The term of this Agreement shall be for a period of three years to begin October 28, 2008 and to end on October 27, 2011, unless tenninated earlier in accordance with the provisions of this Agreement. Absent notice of intent to tenninate, the Agreement may Page 4 of 17 Agenda Item No. 16K1 October 28,2008 Page 7 of 19 be renewed upon mutual consent of the parties for two (2) additional terms of one (1) year each. (In the event the term of this Agreement extends beyond a single fiscal year of County, the continuation of this Agreement beyond the end of any fiscal year shall be subject to the availability of funds from County in accordance with Chapter 129, Florida Statutes.) 3.2 Time shall be deemed to be of the essence in performing the duties, obligations and responsibilities by this Agreement. 3.3 Any amendments, alterations, variations, modifications or waivers of provisions of this Agreement shall only be valid when they have been reduced to writing, duly signed by both parties hereto, and attached to the original of this Agreement. ARTICLE 4 TERMINATION 4.1 This Agreement may be terminated by either party for cause upon ten (10) days' notice or by the County for convenience upon no less than thirty (30) days' advance written notice in accordance with the "NOTICES" section of this Agreement. 4.2 Termination of this Agreement for cause shall include, but not be limited to, failure to suitably perform the work, failure to continuously perform the work in a manner calculated to meet or accomplish the objectives of County as set forth in this Agreement, or multiple breach of the provisions of this Agreement notwithstanding whether any such breach was previously waived or cured. 4.3 In the event this Agreement is terminated for convenience, Young van Assenderp shall be paid for any services performed to the date the Agreement is terminated; however, upon being notified of County's election to terminate, Young van Assenderp shall refrain from Page 5 of 17 Agenda Item No. 16K 1 October 28.2008 Page 8 of 19 performing further services or incurring additional expenses under the term of this Agreement. Young van Assenderp acknowledges and agrees that Ten Dollars ($10) of the compensation to be paid by County, the adequacy of which is hereby acknowledged by Young van Assenderp, is given as specific consideration to Young van Assenderp for County's right to terminate this Agreement for convenience. Young van Assenderp' s obligations to the County as provided for hereunder shall cease upon termination, except for participating in an orderly and professional transfer of such responsibilities and files or copies of files to the County or its designee. ARTICLE 5 RECORD AUDIT AND INSPECTION 5.1 County shall have the right to audit the books and records ofY oung van Assenderp pertinent to the funding under this Agreement. Young van Assenderp shall preserve and make available, at reasonable times for examination and audit by County, all financial records, supporting docwnents, and other documents pertinent to this Agreement for a period oftbree (3) years after termination of this Agreement or, if any audit has been initiated and audit findings have not been resolved at the end of the three years, the books and records shall be retained until resolution of the audit findings. 5.2 If the Florida Public Records Act (Chapter 119, Fla. Stat.) is determined by County to be applicable to Young van Assenderp' s records, Young van Assenderp shall comply with all requirements thereof; however, no confidentiality or non-disclosure requirement of either federal or state law shall be violated by Young van Assenderp. Page 6 of 17 Agenda Item No. 16K1 October 28, 2008 Page 9 of 19 ARTICLE 6 CONFLICT OF INTEREST 6.1 Young van Assenderp states that it is familiar with and will comply with the tenns and conditions of Chapter 112, Part ill, .Florida Statutes (Code of Ethics). 6.2 It is important that Young van Assenderp be independent and impartial in order to properly conduct its services to the County. Young van Assenderp shall not act as counsel in any lawsuit or other adversary proceeding in which County is named as an adversary party or in which Young van Assenderp takes an adverse position to the County. 6.3 N either Young van Assenderp nor its employees shall have or hold any continuing or frequently recurring employment or contractual relationship that is substantially antagonistic or incompatible with Young van Assenderp's loyal and conscientious exercise of judgment related to its performance under this Agreement. 6.4 In the event Young van Assenderp is permitted to utilize subcontractors, herein, to perform any services required by this Agreement, Young van Assenderp agrees to prohibit such subcontractors, by written contract, from having any conflicts as within the meaning of this section. 6.5 If at any time Young van Assenderp represents a client in matters pending before the Collier County government, be it before the Board of County Commissioners or any other agency or division of Collier County government, Young van Assenderp will contact the County Attorney's Office before undertaking such representation so that it can be determined whether a conflict of interest exists. Page 7 ofl7 Agenda Item No. 16K1 October 28, 2008 Page 10 of 19 ARTICLE 7 OWNERSmp OF DOCUMENTS 7.1 Any and all reports, photographs, surveys, and other data and documents provided or created in connection with this Agreement are and shall remain the property of County. In the event oftennination of this Agreement, any reports, photographs, surveys, and other data and documents prepared by Young van Assendezp, whether finished or unfinished, shall become the property of County and shall be delivered by Young van Assenderp to the County within seven (7) days of termination of this Agreement by either party. Any compensation due to Young van Assenderp shall be withheld until all documents are received as provided herein. ARTICLE 8 INDEPENDENT CONTRACTOR 8.1 Young van Assendezp is an independent contractor under this Agreement. Services provided by Young van Assenderp shall be subject to the supervision of Young van Assenderp, and such services shall not be provided by Young van Assenderp as officers, employees, or agents of the County. The parties expressly acknowledge that it is not their intent to create any rights or obligations in any third person or entity under this Agreement. ARTICLE 9 NONDISCRIMINATION, EQUAL OPPORTUNITY AND AMERICANS WITH DISABILITIES ACT 9 .1 Young van Assenderp shall not unlawfully discriminate against any person in its operations and activities in its use or expenditure of the funds or any portion of the funds provided by this Agreement and shall affirmatively comply with all applicable provisions Page 8 of 17 Agenda Item No. 16K1 October 28, 2008 Page 11 of 19 of the Americans with Disabilities Act (ADA) in the course of providing any services funded in whole or in part by County, including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. 9.2 Young van Assenderp' s decisions regarding the deli very of services under this Agreement shall be made without regard to or consideration of race, age, religion, color, gender, sexual orientation national origin, martial status, physical or mental disability, political affiliation, or any other factor which cannot be lawfully or appropriately used as a basis for service delivery. 9.3 Young van Assenderp shall comply with Title I of the Americans with Disabilities Act regarding nondiscrimination on the basis of disability in employment and further shall not discriminate against any employee or applicant for employment because of race, age, religion, color, gender, sexual orientation, national origin, marital status, political affiliation, or physical or mental disability. In addition, Young van Assenderp shall take affirmative steps to ensure nondiscrimination in employment against disabled persons. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, tennination, rates of pay, other forms of compensation, terms and conditions of employment, training (including apprenticeship), and accessibility. 9.4 Young van Assenderp shall take affirmative action to ensure that applicants are employed and employees are treated without regard to race, age, religion, color, gender, sexual orientation, national origin, marital status, political affiliation, or physical or mental disability during employment. Such actions shall include, but not be limited to, the Page 9 of 17 Agenda Item No. 16K1 October 28, 2008 Page 12 of 19 following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates of pay, other forms of compensation, terms and conditions of employment, training (including apprenticeship), and accessibility. 9.5 Young van Assenderp shall not engage in or commit any discriminatory practice in performing the scope of services or any part of scope of services of this Agreement. ARTICLE 10 NOTICES 10.1 Whenever either party desires to give notice to the other, such notice must be in writing, sent by registered or certified United States Mail, postage prepaid, return receipt requested, or by hand-delivery, addressed to the party for whom it is intended at the place last specified. The place for giving notice shall remain the same as set forth herein until changed in writing in the manner provided in this section. For the present, the parties designate the following: FOR COLLIER COUNTY: Jeffrey A. Klatzkow, County Attorney Government Center 3301 Tamiami Trail East Naples, Florida 34112 FOR YOUNG VAN ASSENDERP: David S. Dee Young van Assenderp, P.A. Gallie's Hall 225 South Adams Street, Suite 200 Post Office Box 1833 (32302-1833) Tallahassee, Florida 32301 Facsimile: (850) 561-6834 Page 10 of 17 Agenda Item No. 16K1 October 28,2008 Page 13 of 19 ARTICLE 11 MISCELLANEOUS 11.1 WAIVER OF BREACH AND MATERIALITY Failure by County to enforce any provision of this Agreement shall not be deemed a waiver of the provision or modification of this Agreement. A waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Agreement. 11.2 COMPLIANCE WITH LAWS Young van Assenderp shall comply with all federal, state, and local laws, codes, ordinances, rules, and regulations in performing its duties, responsibilities, and obligations related to this Agreement. 11.3 SEVERANCE In the event a portion of this Agreement is found by a court of competent jurisdiction to be invalid, the remaining provisions shall continue to be effective unless County and Young van Assenderp elect to terminate this Agreement. The election to terminate this Agreement based upon this provision shall be made within seven (7) days after the finding by the court becomes final. 11.4 APPLICABLE LAW AND VENUE This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. Venue for litigation concerning this Agreement shall be in Collier County, Florida. Page 11 of17 Agenda Item No. 16K1 October 28,2008 Page 14 of 19 11.5 PRIOR AGREEMENTS This document supercedes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained herein and the parties agree that there are no commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document in accordance with Article 3 above. 11.6 INCORPORATION BY REFERENCE The truth and accuracy of each "Whereas" clause set forth above is acknowledged by the parties. The attached Exhibits A, B, and C are incorporated into and made a part of this Agreement. DATE: BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA ATTEST: DWIGHT E. BROCK., CLERK By: TOM HENNING, CHAIRMAN J effr Coun Page 12 of 17 Agenda Item No. 16K1 October 28.2008 Page 15 of 19 YOUNG VAN ASSENDERP, P.A. DATE: By:" f ........-, /~ ///~0 :...- . Its: Pre sid en t STATE OF FLORIDA COUNTY OF Leon The foregoing Retention Agreement was acknowledged before me this ...1.0...t..l9ay of Sppt. ,2008,by Roy C. Young as Pre sid en t of Young van Assenderp, P .A., a Florida Professional Association, on behalf of the professional association. He/she is personally known to me or produced N/A as identification. ~/.".,L. ~ IV. ~ Signature of Notary Public Sunda W. Parrett Name of Notary Public typed, printed or My Commission Expires: 04-COA-Ol158/2745 'i)'" li .'t~ Sund~ W. Parrett ~ J.; ~11S1on , DD351834 ~'~'-".ll .' Explfe~ October 29 2008 'If". Ianlltf TOW)' F.... --. Ine. __7018 Page 13 of17 Agenda Item No. 16K1 October 28, 2008 Page16of19 EXHIBIT A F or professional services rendered, Young van Assenderp' s fee shall be based on the hourly rate as follows: $200.00 per hour for services provided by principals; $175.00 per hour for services provided by associates; $ 70.00 per hour for services provided by law clerks & paralegals. Young van Assenderp's fee shall not exceed $100,000.00 without the approval of the Board of County Commissioners. Any expenditure beyond the initial $100,000.00 approval by the Board of County Commissioners must have Board approval prior to work being performed. (Where appropriate a "not to exceed" sum shall be agreed to when each assignment is made to Young van Assenderp.) In the event that Young van Assenderp is required or requested to perform any additional or extraordinary services not herein contemplated, Young van Assenderp shall be entitled to apply for additional compensation, the amount of which shall be subject to the approval of County and no such additional compensation in excess of the amount herein stated shall be paid unless specifically authorized in advance by County in its sole discretion. Young van Assenderp shall provide, at no cost to County, the annual response to County's auditors regarding pending or threatened litigation. The auditors typically request information regarding all litigation, claims and assessments considered to be material. The response should include the nature of the litigation, the progress of the case to date, an estimate of the amount or range of potential loss, and any other information considered necessary to explain the case. Young van Assenderp shall provide said response within 30 days of receipt of the request. NOTES: . Divisions, or departments within such divisions, shall be responsible and pay for legal counsel services relating to litigation and outside counsel specifically for cases, matters or issues relating to such division or department, as determined by the County Attorney in coordination with the County Manager. Page 14 of 1 7 Agenda Item No. 16K1 October 28, 2008 Page 17 of 19 EXHIBIT B 1. In addition to the charges for professional fees set forth in Exhibit A and the Schedules attached hereto, County shall reimburse Young van Assenderp for out-of- pocket expenses reasonably incurred in the course of rendering such legal services, including costs oflong distance calls, printing, costs of reproduction, and necessary travel expenses incurred in accordance with the requirements of Chapter 112, F.S. Young van Assenderp shall not charge for travel of attorneys between its offices so that it can provide the best available and most appropriate lawyer in any of its office locations for the issues involved. 2. Young van Assenderp shall submit invoices on a monthly basis for the payment of out-of-pocket expenses. Each invoice shall include a signed certificate listing all costs, expenses, vouchers, invoices and other documentary evidence that will describe in reasonable detail the basis for expenditures for which reimbursement is sought as set forth below. 3. REQUIREMENTS The following represents Collier County's payment requirements for legal costs ~ Your federal employee identification number must be on all invoices submitted. ~ The applicable Purchase Order number must be on all invoices submitted. ~ No service, interest, or other charge oflike nature is to be imposed with regard to any item, invoice, or request, unless the County fails to comply with the Florida Prompt Payment Act. All firms doing business with Collier County must have a current W -9 "Request for Taxpayer Identification Number and Certification" on file. ~ Services rendered must be specifically and concisely identified, as well as -the bond issue or financing transaction for which the services were rendered. ~ Names of persons performing services, hourly rates, and dates must be listed. The County agrees to reimburse Young van Assenderp for retention and utilization of sub-consultants. ~ Reimbursable expense must be verified by attached receipts or copies thereof. ~ Claims for mileage and meals cannot exceed statutory allowance as provided for under Chapter 112, F.S. Meals and mileage cannot be charged unless the professional has traveled outside the county of the principal business location. Page 15 of 17 Agenda Item No. 16K1 October 28,2008 Page 18 of 19 ~ Claims for lodging at single rate (actual cost) must be substantiated by paid bill or charge, with a cap of no more than $150.00 per night. ~ Car rentals required for travel should include compact or standard-size vehicles only. ~ Common carrier travel shall be reimbursable at tourist or coach class fares only. ~ Accounting Division requires original receipts, or copies of receipts which have been individually certified to be true copies of the originals. In addition the Certificate contained in Exhibit C must accompany each invoice. The certifying person must sign the Certification form and a description provided of the items, which are certified. ~ Faxes shall not be reimbursed ~ Legal Research costs (Lexis-Nexis, Westlaw, etc.) shall not be reimbursed. Page 16 oft 7 Agenda Item No. 16K1 October 28, 2008 Page 19 of 19 EXHIBIT C CERTIFICATE IT IS HEREBY CERTIFIED that: 1. has been duly designated as special counsel to render legal services or provider of services for or on behalf of Collier County; 2. Each of the documents hereinafter identified and attached is a true and correct copy of the original record; 3. Expenditure(s) enumerated represent costs necessarily incurred during the course of official business for which payment has not been received and for which documentation is not available or reasonably retrievable; 4. Claims are in compliance with the applicable statutes and administrative orders, and with the express provision that all other parties are barred from entitlement to any part of these costs. RE: Invoice No. , Dated Period Covered: , Amount IN-HOUSE CHARGES: Photocopies: copies @ $O.l5/each $ Mileage: miles @ -"mile $ OTHER (Copies of invoices required); Long Distance Calls $ Other: $ TOTAL: $ FOR THE FIRM Signed: Print Name: Title: Date: Page 1 7 ofl 7