About this agreement

The ACE Sub-Consultancy Agreement is intended for use when the Consultant is appointed on the terms of the ACE Agreements A(1), A(2), B ( l ) and B(2). This agreement should be used in conjunction with the guidance document issued with this publication.

The Association of Consulting Engineers (ACE) is the UK's leading trade association for engineering, technical and management consultancies. Over 650 firms are members ACE. This collective strength ensures that the voice o f t members is heard by Government, clients and all m supply chain in the UK, Europe and internationally. ACE lobbies the UK Parliaments an European Parliament and maintains expertise of its members. ACE is ac organisations and is also the British FIDIC, the International Federation ACE member firms cover environmental and infras profile projects in the

eers, Alliance House,

bsite: www.acenet.co.uk

with this Agreement and its use is strongly recommended. The Association of Consulting Engineers can accept no liability in respect of any use to which the Agreement may be put.
8

Association of Consulting Engineers No part of this Agreement may be copied or stored electronically without the e x p r e : s permission in writing of the Association of Consulting Engineers.

ACE Sub-Consultancy Agreement 2002

ASSOCIATION OF CONSULTING ENGINEERS

SUB-CONSULTANCY AGREEMENT 2002 for use with ACE Agreements B(1) and B(2)
CONTENTS
A
8

The Agreement, the Parties and Appointment of the Sub-Consultant for the Sub-Consultancy Services Obligations of the Consultant to the Client

Commencement and Termination

F
G

Liability and Insurance Disputes and Differences General Notices

H
I

Attestation Provisions Schedule

15
16 17 18 19

ACE Sub-Consultancy Agreement 2002

ACE Sub-Consultancy Agreement 2002

A THE AGREEMENT, THE PARTIES AND APPOINTMENT OF THE SUB-CONSULTANT FOR THE SUB-CONSULTANCY SERVICES

A1 "the Sub-Consultant") whose details are set out in section 1 of the Sche

A2

The Consultant has entered into the ACE Agreement in the f Schedule save for the provisions concerning the Consultant's ("the Main Agreement") with the client ("the Client") whose det Consultancy Services").

A3

The Consultant appoints the Sub-Consultant to provid Schedule ("the Sub-Consultancy Service,s"). This Agreement comprises these terms and t

ibed in section 3 of the

A4

B Bl

OBLIGATIONS OF THE CON

The Sub-Consultant shall exercise reas Sub-Consultancy Services. iligence in the performance of the

B2
Main Agreement so far as the provisions were sever Agreement otherwise and any further serv constitute or contrib

with the obligations and provisions of the Sub-Consultancy Services as if all such f this ent and save where the provisions o all so carry out the Sub-Consultancy Services no act or omission of his in relation thereto shall

C
c1

NT TO THE SUB-CONSULTANT..
for the performance of the Sub-Consultancy Services
...

fashion without charge all necessary or any of the Consultant's agents or

has to carry out additional work and/or suffers delay or disruption in the Services for reasons beyond the Sub-Consultant's reasonable the Consultant when the Sub-Consultant becomes aware of such circumstances and the Consultant shall make an additional payment to the Sub-Consultant in respect of the additional work carried out and the additional resources employed and/or the delay or

ACE Sub-Consultancy Agreement 2002

disruption suffered. The additional payment shall be calculated on the basis set out in section 4 of the Schedule. The Sub-Consultant shall where practicable and if so requested by the Consultant give an initial estimate of the additional payment likely to be incurred. The Sub-Consultant shall in sufficient time afford the Consultant all information and assistance that may be requisite to enable the Consultant to seek reimbursementof such additional payment from the Client. c4 Payment due to the Sub-Consultant under this Agreement shall become d submission of the Sub-Consultants invoice therefor and the final date for thereafter. Interest shall be added to all amount accordance with the Late Payment of Commercial Debts (Interest) Act 1 reference rate plus the statutory rate of interest. The Consultant shall not later than five days after the date on whi notice specifying the amount (if any) of the payme on which that amount was calculated. The Consultant may not withhold any payment after the f this Agreement unless the Consultant gives not later tha specifying the amount proposed to be withheld an ributa e to it. is more than one ground each ground and the am U

c 5

C6

such final date a notice ing payment or if there

c7
CS

A n \

All sums due under this Agreemen paid by the Consultant to the Sub-

W t h e amount of which shall be he manner prescribed by law.

Agreement and the Consultan

113(2), (31, (4) or (5) of the Ho

ake the payments due under this ligations to make any further payments insolvent within the meaning of Section truction and Regeneration Act 1996.

D
D1

COMMENCEMENT AND TE
Notwithstanding the the date when th effective date of the appointment nt was executed by the parties or t shall have first commenced performance of the minated, the appointment of the n the Sub-Consultant has performed the Sub-Consultancy

D2

e the appointment of the Sub-Consultant if the Main Agreement is if the Consultants employment under the Main Agreement is a breach of this Agreement by the Sub-Consultant or in the event of sultant by two weeks notice in respect of all of the Sub-Consultancy

ant may terminate the appointment of the Sub-Consultant in the event of a breach ent by the Consultant or in the event of the insolvency of the Consultant by two

04

In 03 of this Agreement insolvency shall mean either party becoming bankrupt going into

...

ACE Sub-Consultancy Agreement 2002

...................
.............................
. . . ..

...

liquidation (either voluntary or compulsory except as part of a bona fide scheme of reconstruction or amalgamation) being dissolved compounding with its creditors or having a receiver administrative receiver or administrator appointed of the whole or part of its assets.

05

If circumstances arise for which the Sub-Consultant is not responsible and which the Sub-Consultant considers make it irresponsiblefor the Sub-Consultantto the Sub-Consultancy Services the Sub-Consultant shall be entitled to by two weeks' notice.
In the event of any termination the Consultant shall pay the amount of the fees due under C1 commensurate with the the date of such termination and any outstanding expenses. Termination of the Sub-Consultant's appointment under the accrued rights or claims of either party.

D6

07

E
El

COPYRIGHT LICENCE

PUBLICITY AND C

U I ~

The copyright in all drawings and other document to the Consultant by the Sub-Consultant shall Consultant shall have a licence (an to copy and use such drawings provided. In the event of the Cons due under this Agreement, the S seven days' notice. The Sub-Consultan drawings or other documents fo the Sub-Consultant.

tronic form) provided b-Consultant but the he Client and others) rposes for which they were of any fees or other amounts in granted on giving the use by any person of any such hat for which the same were provided by

E2

Neither party shall disclose to the business of the other party

rmation concerning

F
F1 Notwithstanding an Sub-Consultant un he liability of the tract or in tort, in personal injury or section 5 of the Schedule. anything to the contrary contained in this Agreement for any claim or claims shall be further limited to such sum as it Sub-Consultant to pay having regard to the extent of the

loss or damage suffered as a result of the occurrence or loss and damage") and on the assumptions that:
and all sub-contractors appointed in connection contractual undertakings on terms no less carrying out of their obligations; (ii) there are no exclusions of or limitations of liability nor joint insurance or co-insurance provisions between the Client and any other party referred to in this clause and any such
.............

0.

.-

_ _. - ..

__

-.

._ . .

- . . . . . . __ ....- __ .
. . . . .

AC.E Sub-Consultancy Agreement 2002

.............................................
-,

..............

. . .

- ...........

-. - ._

__ - _.- - - . . . .

other party who is responsible to any extent for the loss and damage is contractually liable to the Client for the loss and damage; and (iii) all such other consultants and all such contractors and sub-contractors have paid such proportion of the loss and damage which it would be just and equitable' for them to pay having regard to the extent of their responsibility for the loss and dama

(and not to any individual) for redress if the Consultant considers that th of this Agreement. The Consultant agrees not to pursue any claims in connection with this Agreement at any time whether named expr

F4

In this Agreement "individual" shall mean any employee or memb any officer or director o f a company or a member of a limited lia

F5

No action or proceedings under or in respect of this Ag negligence or for breach of statutory duty or othe Sub-Consultantafter the expiry of the period state as may be prescribed by law.
The Sub-Consultant shall maintain stated in section 5 of the Schedul this Agreement and for the perio pollution and contamination sha Schedule, and provided always available on the terms required absence of such insur

ct or in tort or in mmenced against the ule or such earlier date

F6

an amount not less than that of occurrences arising out of chedule, provided that within that ount stated therefor in section 5 of the ilable at commercially reasonable rates. Consultant if such insurance ceases to be ly reasonable rates in order that the Consultant

F7

The Sub-Consultant

blic liability insurance covering the Sub-Consultant, his acts of sub-consultants from the effective date of this surance is available at commercially reasonable rates.
. -

F8

As and

ested to do so by the Consultant the.Sub-Consultant shall produce ates to show that the insurance cover required under F6 and F7 is

Sub-Consultant have so agreed before the commencement of the nt shall enter into and provide collateral warranties for the benefit of ion of the provision of such warranties that they shall give no greater o whom they are issued in quantum, duration or otherwise than is given to the this Agreement. Should the Consultant request alterations to the previously agreed terms or the execution of warranties in addition to those previously agreed, and the Sub-Consultant consents to such a request, these may be entered into and provided by the Sub-Consultant for such additional fee or other consideration as the parties may agree.

0-

ACE Sub-Consultancy Agreement 2002

G
G1

DISPUTES AND DIFFERENCES

The parties shall attempt in good faith to settle any dispute by mediation. Where this Agreement is a construction contract within the meaning of the Housing Grants, Construction and Agreement to adjudication in accordance with the Construction lndu Adjudication Procedure.

G2

H
H1

GENERAL
Neither party may assign or transfer any benefit or obligation under written consent of the other party such consent not to be unreas Save in respect of the benefits or rights conferred on individu Agreement confers or purports term of this Agreement under the Contracts (Rights of

H2

I
I1

NOTICES
Any notice under this Agreeme class letter to the Consultant or Schedule. Notices shall take e Sub-Consultant as the case m the same by fax or first

d by the Consultant or the

EMENT UNDER HAND

c-J

ACE Sub-Consultancy Agreement 2002

FOR EXECUTION OF THE AGREEMENT AS A DEED

In Witness whereof the Parties have executed this Agreement as a Deed the day and year first before written.
For use when the Consultant is a company

EXECUTED as a Deed by the Consultant

by

(Director)'

and

(Director/Secretary)'

DirectodSecreta

The Company Seal need not be affixed.

A
For use when the Consultant is a limi

and

(Membed3

ACE Sub-Consultancy Agreement 2002

Or, for use when the Consultant is a sole practitioner or partnership

SIGNED as a Deed by the Consultant:

by

(partner or sole practitioner)

f

partner or sole practitioner?

F

in the presence of3

by

(partner)

by

(partner)
/ \ -

partner2

I f witness4

,,

.-

Insert name of signatory.

2

Signature of partner or sole practitioner. Name and address of witness. Signature of witness.

ACE Sub-Consultancy Agreement 2002

, -

For use when the Sub=Consultant is a company

Executed as a Deed by the Sub-Consultant by (Director)' Director2

and

(DirectorlSecretary)'

Director/Secretary2

The Company Seal need not be affixed.

For use when the Sub-Consultant is a limited 15

Executed as a Deed by the Sub-Cons by (Membed3

and

(Membed3

Insert name and indicate offices of signatoiles. Signatures of Director and Director or Company Secretary Insert name of member of limited liability partnership Signature of member of limited liability partnership

ACE Sub-Consultancy Agreement 2002

.Or, for use when the Sub-Consultant is a sole practitioner or partnership

SIGNED as a Deed by the Sub-Consultant:
by (partner or sole practitioner)' partner or sole practitioner*

in the presence of3

witness4

3 1 czIIxI3 1
by
(partner)'

Insert name of signatory. Signature o f partner or sole practitioner. Name and address of witness. Signature of witness.

ACE Sub-Consultancy Agreement 2002

FOR USE WHERE THE APPLICABLE LAW IS THAT OF SCOTLAND

In witness whereof these presents together with the Schedule and'

executed as follows: They are executed for and on behalf of the Consultant by being subscribed for an Consultant by2 who is a director/secretary/person/partner/rnember authorised to sign the the Client, before this witness3

ument including the ames of the Consultant

A witness must know the person whose signature they are witnessing but preferably should have no interest in the document e.g. one signatory should not witness the signature of another signatory. If the usual signature of the witness is not hislher full name (eg if James Donald Smith's signature is Jirn Smith) then the witness should state this (eg James Donald Smith [subscribing "Jim Smith"]).

ACE Sub-Consultancy Agreement 2002

They are executed for and on behalf of the Sub-Consultant by being subscribed for and on behalf of the Sub-Consultant by

'

who is director/secretary/person/partner/member authorised to sign these presents for and on behalf of the Sub-Consultant, before this witness:-

I>(

Full name of Witness

n or authorised signatotylpartner of Sub-Consultantlmember of limited

rably should have no interest in

oty should not witness the sjgnature of another signatory. witness is not hislher full na'me (eg if James Donald Smith's signature is Jim Smith)

this leg James Donald Smith [subscribing "Jim Smith"]).

ACE Sub-Consultancy Agreement 2002

SCHEDULE
Section 1 Details of the Parties and date of this Agreement

The Consultant is
Of

The Sub-Consultant is

of

ACE Sub-Consultancy Agreement 2002

ACE Sub-Consultancy Agreement 2002

-Section
1

- The Sub-Consultancy Services

The Sub-Consultancy Services to be performed under this Agreement are:

0
U

0
U

0 0 0

U
0
U

0 0
U

U
site staff nor attend site unless this is specifically stated in this section.

ACE Sub-Consultancy Agreement 2002

/.

Section 4
1

- Payment of fees and expenses

Payment of fees and expenses for the Sub-Consultancy Services shall be as follows:

1.1

1.2

The fees and expenses payable

ch persons in performing the Sub-Consultancy Services tion with such Sub-Consultancy Services. rchase of documents maps records and photographs ses and subsistence shall be paid at cost.

ACE Sub-Consultancy Agreement 2002

The basis of payment for the calculation of additional payment under C3 shall be

Section 5 Limitation of liability and

Either The liability of the Sub-Consultant for any claim or series of 1 occurrence or series of occurrences shall not exceed the sum of E that and without prejudice to the generality of the foregoi
(a)

@ n

same provided

the total liability of the Sub-Consultant in re with this Agreement arising out of or i not exceed in aggregate the sum of

under or in connection d contamination shall

under (a) shall be further li thereof or (ii) the amount, if indemnity insurance poli Or 1 The liability of the Sub-Consul

ggregate or balance thereof t costs reasonably incurred by se may be or any part Consultant under any professional

r claims arising out of or in connection with of the Sub-Consultant for any claim or series s of occurrences shall not exceed the sum of

The period of the Su after the date of subs

is from the effective date hereof to letion2 of the project.

years

nsultant for any one

onal indemnity insurance is to be maintained is from the effective date r the date of substantial/practicaI2completion of the project. contamination claims is not excluded under paragraph 1 within that nity insurance, the annual aggregate limit of cover in respect of amination is E

( )

lity insurance to be carried by the Sub-Consultant is

.7

Warranties for the benefit of third parties are/are not2 to be provided.

Delete one of these paragraphs. Delete as applicable

For further information contact

Association of Consulting Engineers Alliance House

12 Caxton Street
London SW 1H OQL Tel: 020 7222 6557

Fax: 020 7222 0750

Ernail: consult@acenet.co.uk Website: www.acenet.co.uk

ACE Sub-

ancy

-1

P
P)

About this agreement

The ACE Sub-Consultancy Agreement is intended for use when the Consultant is appointed on the terms of the ACE Agreements A(1), A(2), B(1) and B(2). This guidance document should be used in conjunction with the ACE Sub-Consultancy Agreement issued with this publication.

About the Association of Consulting Engineers

The Association of Consulting Engineers leading trade association for engineering, technical and management consultancies. Over 650 firms are ACE. This collective strength ensures that the members is heard by Government, clients and all supply chain in the UK, Europe and in ACE lobbies the UK Parliaments and European Parliament and and officials in order to inf expertise of its members. ACE is organisations and is also the Britis Federation of Engineering FIDIC, the International Fe ACE member firms cove(th@/d environmental and infras for some of the UK and internat of construction, and are responsible profile projects in the

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Q The Association of Consulting Engineers. No part of this agreement may be copied or stored electronically without the expressed permission in writing of the Association of Consulting Engineers. The Association of Consulting Engineer can accept no liability in respect of any use to which the Agreement may be put.

'-....

ACE Sub-Consultancy Agreement 2002

General The Sub-ConsultancyAgreement is for use with the ACE Agreements A(l), A(2), S(1) and B(2). It 1
is not suitable for use with any other ACE Agreements nor with any other forms

similar amendments should be made to the Sub-Consultancy Agre

The Parties and date The details of the Consultant and Sub-Consultant n 5
together with the date the Sub-Consultancy Agree Agreement should not be signed until the Main Ag

n 1 of the Schedule

The Main Agreement

7 8

Details of the Client need to be s The services the Sub-Consultant far as possible in identic are provided for in the S to be set out in section 3 of the Schedule, as Agreement. No additional services as such

The Sub-Consultancy Services

The back-to-backclau
does not refer to negligent act or omission because the cy Agreement is back-to-backare those under the ACE skill care and diligence. If the Consultant agrees to wider or omission. The liability implications of this would need to be t and the Sub-Consultant.
.

described below. Details of the fee basis are to go in paragraph 1 and details about the instalment intervals and how sums due at those intervals are to be calculated are to go in paragraph 2 of section 4. Payment by instalments for any fee basis is required by the Act for any commission over 45 days. Some commissions under the Sub-Consultancy Agreement may not be construction contracts for the purposes of the Act, but the payment provisions of the Act will apply because they are specifically incorporatedinto the Sub-Consultancy Agreement.

ACE Sub-Consultancy Agreement 2002

12 13

These details are essential if the payment provisions of the Scheme for construction contracts, which are unsuitable for consultants, are not to apply.

The Act also provides that contracts must provide a date when payments become "due" and a final date for payment. C4 provides that payment becomes "due" on the submission of the SubConsultant's invoice and that the final date for payment is 28 days thereafter. The provisions required by the Act in relation to notices of payment are in C5 and for where any payment is going to be withheld in C6. The period for the giving of the notice of withholding is three days before the final date for payment.
Payment for Sub-Consultancy Services may be as time-based fees or lump s basis is to be set out in paragraph 1 of section 4 (see below). It is essential that paragraph 5 of section 4 is fully completed payment under C3. If time-basedfees are to be the basis this rates set out unless time-basedfees are also the basis for the case reference can be made to paragraph 1 of section 4. If any basis other than those described in this Guidance is chosen, basis linked to Project Cost or Works Cost, the Consulta with the Act and as to the alterations required to the Sub Guidance to ACE Agreements A(1), A(2), B(1) and B(2).

14 15

16

Time-based fees If the fee is to be on a time basis, paragraph 1.1 of 17

1.

Payment of fees and expenses for as follows:

Payment of fees shall be on

Services shall be

1.1

or grades of staff. If so, a suitable

1.2

The rates for time-based Rate per hour

The Sub-Consultant s 19

r the staff to be used. ally, there should be added to paragraph 1.2 of section 4 set out above shall remain fixed for one year from the effective date they shall be revised to reflect the annual increase in salary for the

If time-base

the Sub-Consultant submits his invoice - for example to enable the Consultant to - arrangements for these to be provided should be added to section 4. The intervals should be given as monthly/quarterly (or as appropriate) from a specified date.
to the Client

ACE Sub-Consultancy Agreement 2002

Lump sum fees

21

The fee for the Sub-Consultancy Services may be agreed as a single lump sum which should be set out in paragraph 1 .I. of sechon 4. A suitable form of words is:
1.

Payment of fees and expenses for the Sub-Consultancy Services shall be as follows:
Payment of fees shall be a lump sum of

1.1

22

Alternatively, the fee for the Sub-ConsultancyServices may be agreed various stages. This should be set out in paragraph 1.1 of section 4. A
1.

Payment of fees and expenses for the Sub-Consultancy as follows:

Payment of fees shall be the total of the following lump su
; E

1.1

. on completion of the I
on completion of the

I stage

(Note: the description of the stages needs to be consi ered as th e is no de in the Sub-Consultancy Agreement.)

8x2
I
'

U A
it' n of "stages"

23

Instalments: the intervals for they start (or interval dates) should b order to comply with the Act. Again s intervals - see paragraph 20 capable of calculation and, Where the lump sum fee is a single

2 of section 4 in

24

In equal monthlylquarter~in~alments $om\ra specified date].

flN
m, p agraph

of s ction 4 could be completed as follows:

of lump sums for the various stages, the amount and the of each stage should be stated: for example paragraph ompletion of the I

'

I stage.

aid during a stage, this will need.to be stated: for e completed as follows:
to be invoiced in equal monthly/quarterly instalments from the

I stage to completion of the I

I stage.

(Note: the description of the stages needs to be considered as there is no definition of "stages" in the Sub-Consultancy Agreement.)

ACE Sub-Consultancy Agreement 2002

Expenses
27
The arrangement ,for payment of expenses should be specified in paragraph 4 of section 4. Paragraph 4 of section 4 provides that the expenses set out there are to be'paid at cost. Space is provided for further expenses to be added. Paragraph 4 of section 4 should set out in addition how they are to be recovered, for example by instalments due at monthly or quarterly intervals. See also paragraph 20 of this Guidance. If at cost is not the correct basis for expenses, paragraph 4 of section 4 should be amended, If expenses are included in the fee paragraph 4 of section 4 should be deleted. Interest on late payment has been provided in C4. It is to be calculated in Payment of Commercial Debts (Interest) Act 1998. This provides a "refere month period in which the debt becomes late to which is added the statui (currently 8%). Although "pay when paid" has been prohibited by the Act, the pay obligation to pay if the person upon whom he is relying to make th becomes insolvent. This provision has been included in C8. The provisions in 0 2 and D3 are not the same as thos terminate the Sub-ConsultancyAgr and there is no right to suspend th Sub-Consultant if the services und Consultant would need to conside These provisions are in a simpler for The liability and insurance provisions mirro Limits and duration of liabilit aggregate limit will apply in between the Consultant an

Interest
28

Client insolvency
29

Termination
30

Copyright/licence
31 32 33

liability and insurance

PLI cover and whether any annual ion cover should be discussed g section 5 of the Schedule.
agreed with the Sub-Consultant and two 5, one of which must be deleted.

34
35

F1 is drafted on the options have been p

The monetary amount

36

nable" if it isto be effective and the options are have professional indemnity insurance on an each e arising out of pollution and contamination risks, its on claims for these risks, although sometimes ts and Sub-Consultantsneed to be aware of this agree and record in writing prior to any commission how pollution
s a monetary limit per claim and an aggregate limit of an agreed tamination claims. That aggregate limit (or any balance left of limited to the lesser of (i) the direct costs of clean up; or (ii) the Consultant's professional indemnity insurance. If so agreed tion restricting the amount to the direct costs of clean up can be the words "the lesser o f (i) the direct costs reasonably incurred by the Client in of the Project or the Works as the case may be or any part thereof or (ii)".

38

u e r i n g the amount to be agreed per claim, this should be appropriate for the project and risks in question and not necessarily be the amount of the Sub-Consultant's professional indemnity insurance cover. It may be appropriate for the aggregate limit for pollution and contamination claims to be less than the amount offered per claim to allow for the possibility that other clients of the Sub-Consultant may have pollution and contamination claims,which have already reduced the aggregate amount available. The restriction in this option, that the maximum

ACE Sub-Consultancy Agreement 2002

payable in any event is the amount (if any) recoverable under the professional indemnity insurance policy, restricts liability to the amount left at the time in question under the aggregate policy and this could be nothing (hence it is sometimes known as an "evaporation clause").

39

Option 2 in section 5 excludes all liability for pollution and contamination claims but liability is otherwise limited to an amount to be agreed per claim. Such a clause is only appropriate where it has been agreed that the Sub-Consultant has no responsibility to advise on pollution and contamination matters. This is necessary in order to explain why liability for pollution and contamination is being excluded and to demonstrate the "reasonableness" F2 differs from the traditional joint and several formula and provides for the Consultant will be liable for only his fair share of the loss, taking responsibility. This clause has been revised to reflect the House of operative Retail Services case. (For further details concerning this legal section.)

40

n\>

of breach, while for contracts signed under seal o limits for claims is five years and t can be brought is also subject to example, can be brought later tha
which the Sub-Consultant is oblige prudent to continue to maintain pro engineering projects) are th Agreements A(1) and B(1) and B(2) are the Main Agre

latent defects, for tion somewhere section 5, ie the period for insurance. (Obviously it is d that period, for example, practical completion" where ements. Where Agreements A(2) be referred to.

Collateral warranties

sed as a basis with appropriate amendments. The Construction

will normally be provided only on payment of additional additional costs and liabilities (F9). he Sub-ConsultancyAgreement either under hand or as a Deed are set out at e Sub-Consultancy Agreement. If the Main Agreement is signed as a deed the to both Agreements.