STIPULATION OF CROSS-COMPLAINANT CITY OF DAVIS AND CROSS-DEFENDANT MARTIN FRANCHISES INC. TO STAY PROCEEDINGS BETWEEN THEM PENDING SETTLEMENT; [PROPOSED ORDER]

WILLIAM B. SHUBB, District Judge.

WHEREAS, on October 3, 2012, this Court issued an order granting the motion for summary judgment of MARTIN FRANCHISES, INC. (hereinafter, "MARTIN") as to the claims of the CITY OF DAVIS ("CITY") against it for negligence, strict product liability, negligence per se, and under chapter 33.00 of the Davis Municipal Code [Docket No. 428];

WHEREAS, on October 3, 2012, this Court issued an order denying the CITY's motion for leave to amend its cross-claims against MARTIN [Docket No. 429];

WHEREAS, on October 3, 2012, this Court issued an order allowing the CITY ten days to submit a declaration or affidavit under Federal Rule of Civil Procedure 56(d) seeking time to obtain affidavits or declarations or to take discovery to support its opposition to MARTIN's summary judgment motion as to its CERCLA and nuisance claims against MARTIN [Docket No. 430];

WHEREAS, on October 3, 2012, this Court issued an order allowing MARTIN to file an opposition to said F.R.C.P. 56(d) submission within ten days of the filing of the CITY's submission [Docket No. 431];

WHEREAS, on October 3, 2012, this Court postponed its ruling on MARTIN's summary judgment motion on the CITY's CERCLA and nuisance claims until the Court could consider the F.R.C.P. 56(d) request by the CITY [Docket No.430];

WHEREAS, following the above-cited orders of the Court, the CITY and MARTIN began a dialogue on the potential settlement of the CITY's remaining claims against MARTIN;

WHEREAS, on October 10, 2012, the CITY and MARTIN reached an agreement on the settlement of the CITY's remaining claims against MARTIN, which is expressly contingent on approval of the settlement terms by the City Council and the City's insurance carriers;

WHEREAS, pending the finalization of said settlement, the CITY and MARTIN hereby stipulate to stay the current proceedings between them, including, the CITY's Rule 56(d) submission, MARTIN's opposition thereto, and any rulings by this Court on the CITY's Rule 56(d) submission and MARTIN's summary judgment motion as to the CITY's CERCLA and nuisance claims;

WHEREAS, the CITY and MARTIN hereby stipulate that if the settlement cannot be finalized within forty-five (45) days of October 10, 2012, that is, by November 23, 2012, the stay of the current proceedings between the CITY and MARTIN shall terminate and the proceedings, including the CITY's Rule 56(d) submission, MARTIN's opposition thereto, and any rulings by the Court on the Rule 56(d) submission and MARTIN's summary judgment motion as to the CITY's CERCLA and nuisance claims, shall recommence and proceed in due course. The CITY and MARTIN further stipulate that, should the stay of the current proceedings between them terminate, the CITY shall have ten (10) days from such termination to file its Rule 56(d) submission and MARTIN shall have ten (10) days from the CITY'S submission to file its opposition thereto.

IT IS SO STIPULATED.

IT IS SO ORDERED.