This agreement is entered into effective December 18, 2002 between Wing and a Prayer, Inc., a California corporation ("Wing and a Prayer"), and the City of San Jose, a municipal corporation and charter city of the State of California ("City") (collectively "the parties"). The purpose of this agreement is to settle and resolve litigation pending between the parties in the United States District Court for the Northern District of California, specifically, Wing and a Prayer, Inc. v. City of San Jose, No. Cal. Case No. C-00-20018 JF ("the pending action").
1.0 Recitals, Representations and Warranties
1.1. Wing and a Prayer represents and warrants that it is a corporation duly organized and presently in good standing under the laws of the State of California and that it has taken duly authorized action to authorize the acceptance and execution of this agreement.
1.2. The City represents and warrants that it is authorized to accept and execute this agreement under the laws of the State of California and the laws, rules and procedures of the City of San Jose.
1.3. The parties agree that the pending action has not resulted in any final adjudication, orders or judgments of the court, and that it is their mutual desire to dismiss the pending action without further proceedings before the court.
2.0 Terms of Settlement
2.1 Concurrently with the execution of this document, the parties shall execute a stipulation for dismissal with prejudice of all claims and counterclaims by all parties in the pending action in the form of Attachment A to this Agreement, and Wing and a Prayer shall promptly submit the executed stipulation and proposed order to the United States District Court for its acceptance and approval. After approval by the District Court. Wing and a Prayer shall promptly provide the City with a fully signed and conformed copy of the dismissal stipulation and confirming order of the court.
2.2 Each party acknowledges that it is settling the pending action solely for the purpose of resolving the dispute between them without further litigation, and that neither party is admitting any fault, wrongdoing or unlawful action by the party, its agents, employees, officers or other representatives.
2.3 Each party shall bear its own costs of litigating the pending action, including all attorneys, experts and professional fees and any and all other costs associated with the prosecution or defense of the pending action.