Resolution of 26 October 2020 by the Presidency of the National Markets and Competition Commission publishing the Agreement with the National Securities Market Commission regarding the use of the fourth floor of a building in Barcelona

III. OTHER PROVISIONS
NATIONAL MARKETS AND COMPETENCY COMMISSION
14092 Resolution of 26 October 2020, by the Presidency of the National Markets and Competition Commission, publishing the Agreement with the National Securities Market Commission, to determine the conditions of use by the National Securities Market Commission of the fourth floor of a building in Barcelona.

The President of the National Markets and Competition Commission (CNMC) and the President of the Securities Market Commission (CNMV) have signed, on 15 October 2020, an Agreement to determine the conditions of use by the CNMV of the fourth floor of the CNMC building in Barcelona.

For general knowledge, and in compliance with what is established in Article 48.8 of Law 40/2015, of 1 October, on the Legal Regime of the Public Sector, the publication of the aforementioned Agreement in the "Official State Gazette" (Boletín Oficial del Estado), as an annex to this Resolution, is ordered.

Madrid, 26 October 2020.–The President of the National Markets and Competition Commission, Cani Fernández Vicién.

ANNEX
Agreement between the CNMC and the CNMV to determine the conditions of use of the fourth floor of the CNMC building in Barcelona (file CNMC 200162)

MEETING
On the one hand, Ms. Cani Fernández Vicién, legal representative of the National Markets and Competition Commission (hereinafter, CNMC), with Tax ID Number Q2802141H, and social address in Madrid, Calle Alcalá 47, acting in its name and representation by virtue of appointment made by Royal Decree 580/2020, of 16 June, and by the powers granted to her by Article 19 of Law 3/2013, of 4 June, creating the CNMC and Article 15.2 letters a) and i) of Royal Decree 657/2013, of 30 August, approving the Organic Statute of the CNMC.

On the other hand, Mr. Sebastián Abella Amigo, legal representative of the National Securities Market Commission (hereinafter, CNMV), with Tax ID Number Q-2891005-G and address for these purposes at Calle Edison, 4, 28006, Madrid, in his capacity as President of the aforementioned body according to the appointment made by Royal Decree 567/2016, of 25 November (BOE No. 286 of 26 November 2016). He holds his representation in accordance with what is provided in paragraphs 1.a) and e) of Article 25 of the consolidated text of the Securities Market Law approved by Royal Legislative Decree 4/2015, of 23 October, and Article 12.1 of the Internal Regime Regulation of the CNMV.

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Both act in the exercise of the powers conferred upon them by their respective positions in accordance with current regulations and mutually recognize each other's capacity to sign this Agreement and, to this effect,

STATE
First.
The CNMC is the owner of a property located at Calle Bolivia, numbers 56-58, in Barcelona, which constitutes the Commission's headquarters in Barcelona. This property consists of a 10-story office building and an annex warehouse called Can Tiana, with an auditorium and a multi-purpose room.

In accordance with Article 5.3 of Law 33/2003, of 3 November, on the Property of Public Administrations (LPAP), in relation to Article 155.1.a) of the same Law, the building has the status of public domain property.

Second.
The CNMV has expressed its interest in using the fourth floor of the building, currently occupied by CNMC services, to establish its delegation in Barcelona, which is currently located at Paseo de Gracia, number 19, in that city.

Third.
Both entities have the status of Independent Administrative Authority, in accordance with Article 109 of Law 40/2015, of 1 October, on the Legal Regime of the Public Sector, and their respective creation laws.

Fourth.
By Order of the Minister of Finance dated 27 July 2020, the mutation of destination of the aforementioned fourth floor was agreed upon to allow its occupation by the CNMV.

The Order refers, in accordance with Article 129.2 of the LPAP, to the Agreement between both bodies.

Fifth.
Article 183 of the LPAP provides that Public Administrations shall adjust their reciprocal relations in matters of property to the principle of institutional loyalty and shall observe obligations of mutual information, cooperation, assistance, and respect for respective competencies.

In accordance with Article 186 of the LPAP, the General State Administration and public bodies linked to or dependent on it may enter into agreements with other Public Administrations or with legal persons of public or private law belonging to the public sector, in order to regulate property and urban planning relations between them in a specific area or to carry out actions included in this law regarding the assets and rights of their respective properties.

In view of Article 187 of the LPAP, such agreements may contain whatever stipulations are deemed necessary or convenient for the regulation of property and urban planning relations between the participating parties, provided they are not contrary to the public interest, the legal order, or the principles of good administration.

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Sixth.
Chapter VI of the Preliminary Title of Law 40/2015, of 1 October, on the Legal Regime of the Public Sector, regulates administrative agreements, which it defines in Article 47 as agreements with legal effects adopted by Public Administrations, public bodies and entities of public law linked or dependent, or public Universities among themselves or with subjects of private law for a common purpose.

Article 48 of the aforementioned Law provides that, within the scope of the General State Administration and its public bodies and entities of public law linked or dependent, agreements may be entered into by the heads of Ministerial Departments and the Presidents or Directors of said entities and public bodies.

For all these reasons, both parties sign this Agreement, which shall be governed by the following

CLAUSES
First. Regime of use of the property.
1.1 The fourth floor of the CNMC office building in Barcelona, to which this Agreement and the aforementioned Ministerial Order refer, which agreed on the mutation of destination of the said floor of the CNMC building in Barcelona, may only be destined for the exercise of the CNMV's own activity, and may not be subject to assignment or lease to third parties.

The conditions of use of the floor are those reflected in this Agreement, without prejudice to modifications that may be agreed upon by the corresponding bodies.

The occupation of this fourth floor includes the possibility of using 10 parking spaces in the same building, for which the CNMC will receive compensation covering the costs thereof.

1.2 The CNMV may request the CNMC to use the spaces of the Can Tiana Warehouse, which are excluded from the demesne mutation, for temporary use for the organization of conferences, seminars, presentations, or events, in accordance with the regime established by CNMC resolution of 8 May 2019 for the use of these spaces and always subject to prior express request and authorization by the CNMC.

1.3 The use of the fourth floor by the CNMV entails access to the supplies and services specified in this Agreement, so an economic regime must be established that allows the CNMV to assume the proportional costs corresponding to it for said occupation.

Second. Economic regime of the use of the property.
2.1 The CNMV shall bear all expenses that may arise to adapt the fourth floor to its new use and purpose.

2.2 Any work on the said floor will require a project(s) of work, which must include all actions necessary to implement its own communication links, and if the CNMV so considers, it may include remodeling of the internal space of the floor by dismantling and assembling partitions, and any other action to make possible the use and occupation of the public domain asset.

2.3 The CNMV, prior to the tendering of the remodeling work of the fourth floor, must request the CNMC's approval of the project, presenting it and, if applicable, taking into account any observations made.

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2.4 Likewise, all other general expenses incurred by the CNMV for the effective occupation of the fourth floor of the building shall be at the CNMV's expense, and in particular:

a) Insurance expenses and, if applicable, taxes, contributions, levies, rights, fees, any other charges or encumbrances that fall on the CNMV's activity.

b) Any other expense that may be generated by the occupation and use of the fourth floor of the building at Calle Bolivia, 56-58.

2.5 The CNMV shall pay the CNMC compensation comprising expenses of various nature, all calculated proportionally to the square meters occupied of the total building:

a) The costs of the supplies to which it automatically has access having the fourth floor affected, since there are no individualized meters in the building that allow separate billing.

b) The costs of the services provided by the CNMC, which are security and surveillance, cleaning, service auxiliaries, and integral maintenance of the building.

c) Those inherent to having the fourth floor of the CNMC office building in Barcelona affected for its own purposes, that is, the proportional part corresponding to the square meters occupied of the building's amortization, the proportional part of the property tax (IBI) of the property, and the proportional part of the building's insurance.

d) The proportional part of the costs for the use of common spaces on the ground floor and first floor.

e) The costs for the use of 10 parking spaces.

2.6 The amount of the compensation shall be 264,657.86 euros annually and has been calculated taking into account the costs and expenses of the 2019 fiscal year. This amount shall be updated annually from the second year, and shall include all expenses described in point 2.5 above and any other that may arise in the future from a new supply or service used by the CNMV. Prior to the signing of this Agreement, the CNMV has given its consent to the economic compensation established, which has been calculated taking into account the expenses corresponding to the 2019 fiscal year and will apply in the 2020 and 2021 fiscal years.

During the second half of 2021, the compensation to be paid by the CNMV in the 2022 fiscal year will be calculated, which will be calculated based on the profit and loss account of the 2020 fiscal year.

This latter operation will be carried out each subsequent year, communicating to the CNMV during the month of September of each fiscal year the economic compensation to be paid to the CNMC in the following fiscal year.

2.7 The compensation shall be paid in twelve monthly installments, by transfer to the bank account provided by the CNMC to the CNMV.

Third. Constitution of guarantee.
The CNMC will not require the constitution of guarantees to respond for the amounts that may be due under this agreement or any others resulting from the assignment in favor of the CNMV of the fourth floor of the building.

Fourth. Conservation and maintenance expenses.
The costs of repairing its own furniture, as well as the fixed partitions installed on the fourth floor, shall be at the CNMV's expense. The CNMV undertakes, by virtue of this Agreement, to exercise the care and diligence necessary to keep the installations in the best possible condition and to bear the cost of replacements or repairs of all damage caused by negligence or misuse of the property or its installations.

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Fifth. Obtaining necessary licenses and permits.
Prior to the start of the occupation of the fourth floor, the CNMV must fulfill the commitment to obtain, at its own cost, if applicable, all licenses and permits required for the adaptation, use of the property, or activity to be carried out therein.

Sixth. Obligations of the CNMV.
In addition to the general obligations derived from the legal regime applicable to the mutation of destination of the demesne, the CNMV shall comply with the following obligations:

a) To make proper use of the occupied space, including installations, equipment, and furniture.

b) To deliver, upon termination of the duration period of the mutation of destination, all goods, installations, and equipment owned by the CNMC in good condition of conservation and use.

c) To comply with occupational risk prevention regulations and have an Emergency and Evacuation Plan, which must be coordinated with the one in force in the building owned by the CNMC.

d) To contract and maintain in force throughout the duration of the mutation of destination the civil liability insurance referred to in Clause Eighth.

Seventh. Rights of the CNMV.
By virtue of the mutation of destination of the demesne specified in this Agreement, the CNMV shall have the following rights:

a) To occupy the space corresponding to the fourth floor of the office building owned by the CNMC, with a usable area of 856 square meters.

b) To use 10 parking spaces under the terms established by the CNMC.

c) To access supplies of water, electricity, and climate control, and to services of maintenance, security, cleaning, and service auxiliaries.

d) To use the common spaces of the CNMC building, parking, ground floor, and first floor, observing the rules for their use established by the CNMC or those it may establish in the future.

e) To request temporary use of the Auditorium and the Can Tiana room for the organization of seminars, events, conferences, and colloquiums, with sufficient advance notice and observing the rules of use established by the CNMC or those it may establish in the future.

f) To have the logos, signs, and other distinctive signs of the CNMV on the exterior of the building and in the reception area of equivalent characteristics to those of the CNMC.

Eighth. Liability derived from occupation.
The CNMV assumes the liability derived from the use of the fourth floor.
To this effect, prior to the start of its activity in the CNMC building in Barcelona, the CNMV must subscribe, at its own expense, a civil liability insurance policy covering possible liabilities it might incur as a consequence of the use that is the object of this Agreement, under the established conditions.

This policy must include general civil liability for damages caused to third parties, including the CNMC. The minimum insured capital shall be 600,000 euros.

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The policy must remain in force throughout the duration of the mutation of destination and the corresponding assignment in favor of the CNMV.
The CNMV must deposit a copy of the policy conditions and the receipt accrediting the payment of the corresponding premium in the General Secretariat of the CNMC.

Ninth. Duration and termination.
In accordance with the Ministerial Order of 27 July 2020, the assignment of the fourth floor to the National Securities Market Commission is temporary, limited to a period of eight years from the signing of the assignment record, although its extension may be agreed upon by Order of the Minister of Finance if that Body so requests and the National Markets and Competition Commission gives its consent.

After the indicated period has passed without the extension being agreed upon in the manner mentioned, the assignment to the National Securities Market Commission shall cease to have effect, and this Body must proceed to deliver to the National Markets and Competition Commission the occupied surfaces without the need for the Ministry of Finance to agree on their de-assignment, signing the corresponding record with this Independent Authority and with the intervention of a representative of the General Directorate of State Property.

The assignment to the National Securities Market Commission shall also cease to have effect if, after four years have passed since the occupation of the fourth floor by the National Securities Market Commission, the National Markets and Competition Commission needs total availability of the property for its own purposes, and the occupation of said floor is essential for these purposes. The National Securities Market Commission must proceed to deliver that surface to the National Markets and Competition Commission, without the need for its de-assignment to be expressly agreed upon by the Ministry of Finance, within eight months following the request for this purpose. A representative of the General Directorate of State Property must intervene in the delivery record signed.

The National Markets and Competition Commission may also request de-assignment in the event of serious breach by the National Securities Market Commission of the obligations assumed in the aforementioned agreement.

Tenth. Resolution.
This Agreement shall be resolved for the following causes:

a) Extinction of the mutation of destination under the terms provided in Clause Ninth.

b) Deprivation of effect of the Order of the Minister of Finance of 27 July 2020 by which the mutation of destination of the property is agreed, for any additional cause other than that provided in the previous letter.

c) Mutual agreement of the parties.

d) At the instance of the CNMC, as a result of non-payment of the economic compensation provided in Clause Second, as well as any other serious breach of the conditions of use of the fourth floor stipulated in this Agreement.

Eleventh. Inspection of the property.
The CNMC reserves the right to inspect the property subject to this Agreement at any time to guarantee that it is used in accordance with the terms thereof.

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Twelfth. Entry into force.
This Agreement shall be perfected from the date of its signature and, in accordance with what is provided in paragraph 8 of Article 48 of Law 40/2015, of 1 October, on the Legal Regime of the Public Sector, it shall be registered in the State Register of Bodies and Instruments of Cooperation of the Public Sector and shall be published in the "Official State Gazette".

This Agreement shall take effect from the date of making the property available by the CNMC to the CNMV, which shall be determined in the Mutation of Demesne Record, and shall extend throughout the period established in Clause Ninth.

Thirteenth. Monitoring Commission.
In order to ensure compliance with this Agreement, a mixed monitoring Commission is created, composed of the persons designated by the President of the CNMC and the President of the CNMV.

This Commission shall be responsible for ensuring compliance with the Agreement, resolving doubts related to it, and coordinating all actions carried out in connection with its development.

The Commission itself, once constituted, shall decide its internal rules of operation, meeting regime, and valid adoption of agreements.

Fourteenth. Legal regime.
This Agreement has an administrative nature and shall be governed by what is established in it, by the LPAP, and by Law 40/2015, of 1 October, insofar as applicable.

Fifteenth. Dispute resolution.
The parties commit to amicably resolve any possible controversies that may arise in the application of this Agreement, and failing that, they shall resort to the Courts and Tribunals of the Administrative Order, in accordance with Law 29/1998, of 13 July, regulating the Administrative Jurisdiction.

And being in conformity, the parties sign this Agreement in duplicate.–In Madrid, on 15 October 2020.–For the CNMC, the President, Cani Fernández Vicién.–For the CNMV, the President, Sebastián Albella Amigo.

OFFICIAL STATE GAZETTE
No. 298 Thursday 12 November 2020 Sec. III. Page 99225 cve: BOE-A-2020-14092 Verifiable at https://www.boe.es https://www.boe.es OFFICIAL STATE GAZETTE D. L.: M-1/1958 - ISSN: 0212-033X