Conservation Easement Deed 2003-0742049
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. DOC t 2003=0742049
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\. ~ RECORDING REQUESTED BY' JUN 24, 2003 9:06 AM
.~ CITY OF POWAY
OFFICIAL RroJRDS
WHEN RECORDED MAIL TO: SAN.DIEGO ClIlJNTVRECORDER'S OFFICE
IdfJ CITY CLERK GREIlORV J. SMITH. coutrrv RECORDER
- CITY OF POWAY FEES: 0.00
PO BOX 789 DC: NA
OflV POWA Y CA 92074-0789 ( iiiiililiiiliiiiliiliiililiill[liiiiliiilllli~illllll[111111111111111 i
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APN 277 -080-12 ' I !'f,;)J~'JL:Ld2iC1Q~~:~42049 T 'L. ~~~'~: :~_;
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CONSERVATION EASEMENT DEED
THIS CONSER VA nON EASEMENT DEED is made this z~+l day of !IN,t L , 200 3 ,by Kennedy
Family Trust dated August 20, 1999 ("Grantors"), in favor of City of Poway ("Grantee"), acting by and
through its Development Services Department, with reference to the fOllowing facts.
RECITALS
A. Grantor is the sole owner in fee simple of certain real property in the City of Poway,
County of San Diego, State of California, more particularly described in Exhibit "A" and Exhibit "B"
attached hereto and incorporated by this reference (the "Property:').
B. The Property possesses wildlife and habitat values (collectively, "conservation values") of
great importance to the Grantee, the people of the City of Poway, the people of the State of California,
and the people of the United States.
C The Property provides high quality coastal sage scrub/chaparral. Coastal sage scrub is
the habitat of the California Gnatcatcher, which is listed as a threatened species on the Federal
Endangered Species list. Two southern California rufous-crowned sparrow, a sensitive species, were
observed on the site. Conservation of this property therefore will preserve habitat of a protected species.
D The City of Poway is authorized to hold conservalion. easements for the preservation of
land in its natural, scenic, agricultural, historical, forested, or open space condition. The City of Poway
has authority to hold easements for these purposes pursuant to California Civic Code Section 815.3(b).
E. The State of California, by and through its Department of Fish and Game (CDFG), has
jurisdiction, pursuant to the Fish and Game Code Section 1802, over the conservation, protection, and
management of fish, wildlife, native plants and the habitat necessary for biologically sustainabie
populations of those species.
F The United States Fish and Wildlife Services (USFWS) has jurisdiction over the
conservation, protection, restoration, enhancement and management of fish, wildlife and native plants
and the habitats on which they depend under the Endangered Species Act, 16 U S.C section 1531 et
seq. (ESA), the Fish and Wildlife Coordination Act, 16 U:S.C section 661-666c and other applicable laws.
G This Conservation Easement provides protection for 2 acres of land that contains coastal
sage scrub/chaparral habitat. located within the City of Poway's Subarea Habitat Conservation
Plan/NCCP Focused Planning Area.
H. Grantor intends to convey to Grantee the right to preserve and protect the conservation
values of the Property in perpetuity in accordance with Covenants, Terms, Conditions and Restrictions
contained herein in exchange for Grantee permitting Grantor's rernoval of 1 acre of coastal sage
scrub/chaparral in connection with developing a single-family home (MDRA 98-71). This is a mitigation
measure for such removal of 1 acre of coastal sage scrub/chaparral.
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Conservation Easement 01 f3901 .
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I. Grantee agrees by accepting this grant'to honor the intentions of Grantor stated herein
and to preserve and to protect in perpetuity the con.servation values of the property in accordance with
the terms ofthis Conservation Easement for the benefit of this generation and the generations to come.
COVENANTS, TERMS, CONDITIONSANDHESTRICTIONS
In consideration of the above recitals and the mutual covenants, terms, conditions, and
restrictions contained herein, and pursuant to California law, including Civil Code Section 815, et seq.,
Grantor hereby voluntarily deeds and conveys to Grantee conservation easement in perpetuity over the
Property of the nature and character and to the extent hereinafter set forth ("Easement").
1 Purpose. The purpose of this Conservation Easement is to ensure the Property will be
preserved in a natural condition in perpetuity and to prevent any use of the Property that will materially
impair or'interfere'with the conservation values of the Property Grantor intends that this Conservation
Easement will confine the use ot the Property to such activities, . Including without limitation, those
involving the preservation and enhancement of native species and their habitat in a manner consistent
with the habitat conservation purposes of this Conservation Easement.
2. Riohts' of Grantee. To accomplish the purposes of this. Conservation Easement, Grantor
hereby grants and conveys the following rights to Grantee and the State of California Department of Fish
and Game as a Ihird party beneficiary of this easement by this Conservation Easement Deed:
(a) To preserve and protect in perpetuity the conservation values of the Property in
accordance with this easement;
(b) To enter upon the property at reasonable times in order to monitor Grantor's
compliance with, and to otherwise enforce the terms of, this Conservation Easement, including Grantor's
obligation to manage the property consistent with Grantor's duties as set forth in section 4, and for
scientific research and interpretive. purposes by Grantee or its designees; and CDFG and its designees.
(c) To prevent any activity on or use of the Property that is inconsistent with the
purposes of Ihis Conservation Easement and to require the restoration. of such areas or features of the
Property that may be damaged by any act, failure to act, or any use that is inconsistent with the purposes
of this Conservation Easement;
(d) All mineral, air and water rights necessary to protect and sustain the biological
resources of the Property; and
(d) To enforce by means including, injunctive. relief, the terms and conditions of the
Easement.
3. Prohibited Uses. Any activity on or use of the Property inconsistent with the, habitat
conservation purposes ofthis Conservation Easement and not specifically reserved as a right of Grantor
is prohibited. WithouI limiting the generality of the .foregoing, the following uses by Grantor, Grantor's
agents, and third parties, are .expressly prohibited unless specifically provided for through the Poway
Subarea Habitat Conservation .Plan/NCCP
(a) Unseasonable watering, use of herbicides, rodenticides, or weed abatement
activities, incompatible fire protection activities and any and all other uses which may adverseiy affect the
purposes'of this Conservation Easement;
(b) Use of off-road vehicles; except vehicles used for property maintenance required
by the City of Poway, and then only over existing roads.
(c) Grazing or surface entry for exploration or extraction of minerals;
(d) Erection of any building, billboard, sign;
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Conse(Vaiion Easement DJt 13902 .
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(e) Excavating, dredging or removing of loam, gravel, soil, rock, sand or other
material:
(f) Otherwise altering the general topography of the Property, including building of
roads orchanging the grade of the Property;
(g) Removing, destroying, or cutting of trees: s.hrubs, or other vegetation, except as
required by law for (1) firebreaks, (2) maintenance of existing foot trails or roads, or (3)'prevention or
treatment of disease.
(h) Planting of trees or other vegetation except by written permission from the City of
Poway
4 Grantor's Duties. Grantor shall undertake all reasonable actions to prevent the unlawfu[
entry and trespass by persons whose activities may degrade or harm the conservation values of the
Property In addition, Grantor shall undertake all necessary actions to protect Grantee's rights under
Section 2. of this Conservation Easement. Grantor further covenants that maintenance of the Property, to
wit: clean up of all trash and debris, shall be the Grantor's responsibility
5. Reserved Riohts. Grantor reserves to itself, and to its personal representatives, heirs,
successors, and assigns, all rights accruing from its ownership of the Property, including Ihe right to
engage in or to permit or invite others to engage in all uses of the Property that are consistent with the
purposes of this Conservation Easement.
6 Grantee's Remedies. If Grantee determines that Grantor is in violation of the terms of
this Conservation Easement or that a violation is threatened, Grantee'shall give written notice to Grantor
of such violation and demand in writing .corrective action sufficient to cure the violation. Grantee shall
also notify the Ca[ifornla Department of Fish and Game. If Grantorfai[s to cure the violation within thirty
(30) days after receipt of said written notice and demand from Grantee, or if the cure reasonably requires
more than thirty (30) days to complete and Grantor fails to begin the cure within the thirty (30) day period
or fails .to continue di[igently to complete the cure, Grantee may bring an action at law or in equity in a
court of competent jurisdiction to enforce the terms of this Conservation Easement, to recover any
damages to which Grantee may be entitled for violation by Grantor of the terms ot'this Conservation
Easement, to enjoin the violation, ex parte as necessary, by temporary or permanent injunction without
the necessity of proving either actual damages or the inadequacy of'otherwise available legal remedies,
or for other equitable relief, including, but not limited to, the restoration of the Property to the condition in
which it existed prior to any such violation or injury Without limiting Grantor's liability therefore, Grantee
may apply any damages recovered to the cost of undertaking any corrective action on the Property
If Grantee, in its sole discretion, determines that circumstances require immediate action
to prevent or mitigate significant. damage tothe'conservation values of the Property, Grantee may pursue
its remedies under this paragraph without prior notice to Grantor or without waiting for the period provided
for cure to expire. Grantee's rights under this paragraph apply equally to actual or threatened violations
of the terms of this Conservation Easement. Grantor and Grantee agree that Grantee's remedies for any
violation of tt',eterms of this Conservation Easement is the injunctive relief described in this section, both
prohibitive and mandatory, in addition to such other relief to which Grantee may be entitled, including
specific performance of the terms of this Conservation Easement in each case, without the necessity of
proving either actual damages or the inadequacy of otherwise available legal remedies. Grantee's
remedies described in this section shall be cumulative and shall be in addition to all remedies now or
hereafter existing at law or in equity, including but not limited to, the remedies set forth in Civil Code
Section 815, ef seq., inclusive.
[f at any time in the future Grantor or any subsequent transferee uses or threatens to use
such lands for purposes inconsistent with this Conser~ation Easement, notwithstanding Civil Code
Section 815.7, the California Attorney Genera[ or third-party entitles organized for conservation purposes
have standing as interested parties in any proceeding affecting this Conservation Easement as against
Grantor
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Conseryation Easement Deea .
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The California Department of Fish and Game (C.DFG)a.s a third party beneficiary of this
easement shall.,have the same rights as Grantee under this sec!ion to enforce the terms of the easement.
6.1 Costs of Enforcement. Any costs incurred by Grantee or CDFG in enforcing the
terms of this Conservation Easement ,against Grantor, including; but not iimited to, costs of suit and
attorneys'\fees, and any costs of restoration necessitated by Grantor's violation or negligence under the
terms of this Conse'rvation Easement shall be borne by Grantor
6.2. Grantee's Discretion. Enforcement of the terms of this Conservation Easement
by Grantee or CDFG,shali be at.theidiscretion of Granteeand,CDFG, and any forbearance.,by Grantee or
CDFG to exercise its rights under this Conservation Easement by Grantor shall not be deemed or
construed to be 'a waiver by Grantee'of such term or of any.subsequentbreach of the same or any other
term. of this Conservation Easement or of any of the Grantee's rights under this Conservation Easement.
No delay or omission by Grantee or CDFG in the exercise of .any'right or remedy upon any breach by
Grantor shali impair such right or remedy or be construed as a waiver
6,3. Acts Bevond Grantor's Control. Nothing contained in this Conservation
Easement by Grantee shall be al'the discretion of Grantee.and CDFG to bring any action against Grantor
for any injury to change in the Property resulting from causes beyond Grantor's control, including, fire,
flood, storm, and, earth movement, or any prudent action taken'by'Grantor under emergency conditions to
prevent, abate, or mitigate significan't injury to the Property resulting from such causes.
64 Department of Fish and Game Richt of Enforcement. All rights and remedies
conveyed to Grantee under this' Conservation Easement Deed shall extend to and are enforceable by the
Department of Fish and Game or USFWS.
7 Propertv Manacement and Maintenance. Grantor and its successors shall maintain the
Property in accordance with the 'terms and conditions as set forth herein.
8. Access. This Conservation Easement does not'convey a generai right of access to the
public; however, after receiving approval from Grantor, not to be. unreasonably withheld, access for
scientific research and interpretive 'purposes, shall be reserved to the Grantee and CDFG or to the
respective designees of Grantee and CDFG.
9. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and
liabilities of any kind including transfer costs, costs of title and documentation review, and costs related, to
the,ownership, operation, upkeep, and'inaintenance of the Property
9 1 Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and
charges of whatever description levied on or assessed 'against the Property by competent authority
(collectively "taxes"), including any taxes imposed upon, or i~curred as a result of, this Conservation
Easement, and shall furnish Granlee and CDFG with satisfactory evidence of payment upon request.
9.2. Hold Harmless. Grantor shall hold harmless, indemnify, and defend Grantee and
CDFG and jls members, directors, officers, employees, agents, contractors, and their heirs, and
representatives, successors and assigns (collectively "lndemnified.Parties") from and against all liabilities,
penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including
without limitation, reasonable attorneys' fees, arising from or in any way connected with: (1) injury to or
the deathofiany person, or physical damages to any property resulting from any act, omission, condition,
or other matter related to or occurring on or about the Property, regardless of cause; (2) the obligations
specified in Sections 4, 9, and 9 1, and (3) the existence or administration of this Conservation Easement.
9.3. .Condemnation. The purposes' of the Conservalion Easement are presumed to
be the best and most necessary public use as defined.. at Cog.8 'of Civil Procedure Section 1240 680
notwithstanding Code of Civil Procedure Sections 1240:690 and 1240.700.
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Sonservation Easement 01 13904 .
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10 Assiqnment. This Conservation EasemenI may not be transferred, assigned, or
extinguished without. the prior written approval of CDFG. Grantee may assign its rights and obligations
under this Conservation Easement only to an entity or organization authorized to acquire and hold
conservation .easements pursuant to Civil Code Section 815.3 Grantee shall require the assignee to
re'cordthe assignment in the county where the Property is located.
11 Subsequent Transfers, Grantor agrees to incorporate the terms of this Conservation
Easement.in any deed or other legal instrument by which Grantor divests itself of any interest in all or a
portion of the 'Property, including, without limitation, a leasehold Interest. Grantor further agrees to give
written notice to Grantee or the CDFG of the intent to transfer any interest at least forty-five (45) days
prior'to..the date of such transfer Grantee shall have the right to prevent subsequent transfers in which
prospective subsequent claimants or transferees are not given notice of the covenants, terms, conditions
and restrictions of this ConserVation Easement. The failure of Grantor or Grantee to perform any act
provided in this section shall not impair the validity of this Conservation Easement or limit its enforceability
in anyway Grantor shall not grant. additional easements or other interests in the property without the
prior written authorization of Grantee and CDFG.
12. Notices. All notices, demands, requests, consents, approvals, or communications from
one party to another shall be personally delivered or sent by' facsimile to the persons set forth below or
shall be.deemed given five (5) days after deposit in the United States.mail, certified and postage prepaid,
return receipt requested and addressed as follows, or at such other address as any party may from time
to time specify to the other parties in writing:
To Grantor' Kenndy Family Trust dated August 20, 1999
POBox 28459
San Diego, CA 92198
To Grantee: City of Poway
POBox 789
Poway CA 92074
With a copy to: Department of Fish and Game
Natural Community Conservation Planning
4949 Viewridge Avenue
San Diego, CA 92123
The parties agree .to accept facsimile signed documents and agree to rely upon .such
documents as if they bore original signatures. Each party agrees to provide to the other parties, within
seventy-two (72) hours after transmission of a facsimile, documents that bear the original signatures.
13. Amendment. This Conservation Easement may be amended by Grantor and Grantee
only by mutual written agreement approved in writing by CDFG. Any such amendment shall be
consistent with the purposes of this Conservation Easement and, shall not affect its perpetual duration.
Any such amendment shall be recorded In the official records of San Diego County, State of California.
14 Recordation. Grantor shall promptly record this instrument in the official records of San
Diego County, California and immediately notify the Grantee and CDFG through the mailing of a
confirmed copy of the recorded easement.
15. General Provisions.
(a) Controllinq Law The interpretation and performance of this Conservation
Easement shall be governed by the laws of the State of California.
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13905
Conservation Easement DI .
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(b) Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Conservation Easement shall'beliberally.construed in favor of the deed to effect the
purposes 01 this Conservation Easement and the policy and purpose of'Civll Code Section 815, et seq. If
any'provision in this instrument is found to be ambiguous, an interpretation consistent with the purposes
of 'this Conservation Easement that would render the provision valid shall be favored over any
interpretation that would render it invalid.
(c) Severabilitv If a court of competent jurisdiction voids or invalidates on its face
any provision of this Conservation Easement Deed, such action shall not affect the remainder of this
Conservation Easement Deed. If a court of competent jurisdiction voids or invalidates the application of
any provision of this Conservation Easement Deed to a person or circumstance, such action shall not
affect the application of the provision to other persons or circumstances.
(d) Entire Aareement. This instrument selsforth the entire agreement of the parties
with respect to the Conservation EasemenI and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Conservation Easement, all of which are merged herein.
No alteration or variation of this instrument shall be valid or binding unless contained in an amendment in
accordance with Section 13
(e) No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
(f) Successors. The covenants, terms, conditions, and restrictions of this
Conservation Easement Deed shall be binding upon, and inure to the benefit of, the parties hereto and
their respective personal representatives, heirs, successors, and assigns and shall continue as a
servitude running in perpetuity with the Property These covenants hereunder benefiting Grantee shall
also benefit CDFG.
(g) Termination.of Riahts and Obliaations. A party's rights and obligations under this
Conservation Easement shall terminate only upon transfer of the party's interest in the Conservation
Easement or Property, except that liability for acts or omissions occurring prior to transfer shall survive
transfer
(h) Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon its
construction or interpretation.
(i) Counterparts. The parties may execute this instrument in two or more
counterparts, which shall, in the aggregate, be signed by Grantor ahd Grantee: each counterpart shall be
deemed an original instrument as against any party who has signed it. In the event of any disparity
between.the.counterparts produced, the recorded counterpart shall be conlrolling.
U) Modification. This Easement is'not subject to modification or amendment except
in writing and signed by Grantor, Grantee and CDFG or their permitted successors or assigns.
(k) Exhibits. All Exhibits referred to In this Easement are attached and incorporated
herein by reference.
(I) Appropriations, The duty of the City of Poway and CDFG to carry out their
respective obligations under this Easement shall be subject to the availability of appropriate funds.
(m) Effective Date. This Easement shall be effective upon recording with the San
Diego County Recorder's Office.
IN WITNESS THEREOF, Grantor and Grantee have entered .into this Conservation Easement the
day and year first above written.
GRANTOR:
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Conservation Easement D. 1:3906
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Page 7
Kennedy Family Trust dated August 20, 1999, Property Owners
By' ~~
,/'i! . Ken~edY, o' rustee
Approved as to Form:
ANN S. MALCOLM, Deputy General Counsel
CA DEPARTMENT OF FISH AND GAME
By' Nor Mf1uuM~
Approved as to Form:
Office of the City Attorney
Stephen . Eckis 'ty Attorney
By' ,t~
7
. :1. 3 !) G 7 .
STATE OF CALIFORNIA )
)
COUNTY OF SAN DIEGO)
On April24, 2003, before me, CHARLOTTE K. SELTZER, a Notary Public, personally
appeared JAMES L. KENNEDY, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
.~......~..r
~ CH"""" <SElTZER, Notary Public in and for said County
o ". COMM. # 1233589
~ _ : NOTARY PUBLIC-CALlFORNIAg
::! SAN DIEGO COUNTY
CQMM. EXP SEPT 2~
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Conservation Easement 01 139' 08 .
Page 8
CERTIFICATE'OF ACCEPTANCE
This is to Certify that the interest in real property conveyed by the Conservation Easement by
Kennedy Family Trust dated August 20, 1999, dated Apri 1 24, 2003 to the City of
Poway, Grantee, and to the California Department of Fish and Game, as a thira party beneficiary, a
governrnental agency (under Government Code Section 27281), is hereby accepted by the undersigned
officer on behalf of the City of Poway, pursuant to authority conferred by Resolution No 34 of the City of
Poway on January 20, 1981
GRANTEE. City of Poway
,gfrl. ~{) "fQ-",-
Title: Lo I Anne Peoples. City Clerk
Authorized Representative
Date: June 20. 2003
C'IDATAIOdaIMDRAIMDRA 98-71 kennedy bio con ease.doc
8
. 13909 .
EXHIBIT"A" BIOLOGICAL CONSERVATION'EA%5EMENT
THAT PORTION OF PARCEL 1 OF PARCEL MAP NO 1648, IN THE CITY OF
POWAY, COUNTY OF SAN DIEGO, STATE OFG:ALlFORNIA, FILED IN THE OFFICE
OF TI'lE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 20, 1973 AND
PARTICULARLY DESCRIBED AS FOLLOWS
BEGINNING AT A POINT BEING THE SOUTHEASTERLY CORNER OF SAID
PARCEL 1, SAID POINT ALSO BEING THE TRUE POINT OF BEGINNING, THENCE
ALONG THE SOUTHERLY LINE OF SAID PARCEL 1, SOUTH 89027' 52" WEST
(SOUTH 89040' 19" WEST PER PARCEL MAP NO 1649) A DISTANCE OF 29516
FEET, THENCE LEAVING SAID SOUTHERLY LINE, NORTH 03000' 13" EAST A
DISTANCE OF 295 72 FEET; THENCE NORTH 890 27"52" EAST A DISTANCE OF
29516 FEET TO A POINT ON THE EASTERLY L1NE'OF SAID PARCEL I, THENCE
ALONG SAID EASTERLY LINE, SOUTH 03' 00' 13"WEST (SOUTH 03012' 13"
WEST PER PARCEL MAP NO 1649) A DISTANCEOF295 72 FEET TO THE TRUE
POINT OF BEGINNING
THE DESCRIBED AREA CONTAINS 2.00 ACRES OR 87120.28 SQUARE FEET
MORE OR LESS
P VISION OF
. . DATE ':; /VO!V]
KA RC 23080'EXPIRES 12/31/05
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EXIPI~ES 12/31/05
DRAWN BY: L1PSKA -. -----
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DATE. 5-28-03 KENNEDY BIOLOGICAL EXHIBIT "B" 1
DWG. NO.: CONSERv,~nON EASEMENT PLAT TO ACCOMPANY A of
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