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II. Declaration of Condominium of Highland Terrace Condominium

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DECLARATION OF CONDOMINIUM OF HIGHLAND TERRACE CONDOMINIUM

1. Submission of Property.

2. Name and Address of Condominium.

3. Definitions.

4. Description of Improvements and Identification of Units.

    4.1 Description of Improvements.

    4.2 Identification of Units.

    4.3 Dimensions of Units.

    4.4 Items Included in the Private Elements in a Unit.

    4.5 Items Excluded from the Private Elements in a Unit.

5. Common Elements Located Inside of Unit Boundaries.

6. Ownership, Composition and Use of the Common Elements.

    6.1 Items Included "Within Common Elements."

    6.2 Allocation of Percentage Interests.

    6.3 Use of Common Elements.

    6.4 No Revocation, Abandonment or Partition.

    6.5 Suspension and Limitation of Use.

7. Assignment of Par Value and Allocation of Percentage Interest to Each Unit.

8. Unit Owners' Association.

    8.1 Name.

    8.2 Powers and Duties.

    8.3 Members.

    8.4 Bylaws.

    8.5 Agent to Receive Service of Process.

    8.6 Indemnification of Officers and Directors.

9. Operation of the Condominium.

    9.1 Determination of Common Expenses and Assessments Against Unit Owners.

    9.2 Payment of Common Expenses by Declarant.

    9.3 Payment of Common Expenses by Unit Owners.

    9.4 Collection of Assessments.

    9.5 Statement of Unpaid Assessments.

    9.6 Maintenance and Repair.

    9.7 Additions, Alterations or Improvements by the Association.

    9.8 Structural Additions, Alterations or Improvements By Unit Owners.

   9.9 Alterations to Plans by Declarant

    9.10 Restrictions on Use of Units and Condominium.

    9.11 Right of Access.

    9.12 Limitation of Liability.

10. Insurance Provisions.

    10.1 Insurance Trustee; Shares of Proceeds.

    10.2 Distribution of Proceeds.

    10.3 Board of Directors as Agent.

11. Condemnation

    11.1 Entire Property.

    11.2 Partial Taking.

    11.3 Priority.

12. Reconstruction or Repair After Casualty.

    12.1 Vote.

    12.2 Responsibility.

    12.3 Estimates of Costs.

    12.4 Assessments.

    12.5 Construction Funds.

13. Proportionate Changes in Common, Expenses and Common Surplus.

14. Easements for Encroachments.

15. Easement of Support.

16. Easement to Facilitate Sale.

17. Easement to Use Parking Facilities.

18. Ingress and Egress Easement.

19. Utility Easements.

20. Easement as Appurtenances.

21. Amendment

    21.1 Amendments by Declarant.

    21.2 Amendments by Unit Owners.

    21.3 Amendment to be in Conformity With Requirements of Act.

22. Relocation of Mutual Boundaries.

23. Consent of First Mortgagees.

24. Rights of First Mortgagees.

    24.1 Priority of First Mortgagees.

    24.2 Notification to First Mortgagees.

    24.3 Priority.

25. Professional Management.

26. Termination.

27. Rights and Powers of Successor and Assignees.

28. Captions.

29. Gender; Number.

30. Exhibits.

31. Invalidity and Severability.

32. Noncompliance.

33. Signatures

34. Par Values
 
 
 
 

Original Document: stated;
 
 

This instrument prepared by:

Maurice L. Shevin

Sirote, Permutt, Friend, Friedman,

Held & Apolinsky, P.A.

2222 Arlington Avenue South

Birmingham, Alabama 35255
 
 
 
 

DECLARATION OF CONDOMINIUM OF HIGHLAND TERRACE CONDOMINIUM
 

THIS DECLARATION, made the 29th, day of August, 1980 by THE LYON REALTY COMPANY, a California corporation (hereinafter "Declarant"), for itself, respective successors, grantees, and assigns, pursuant to the Condominium Act of Alabama, Code of Alabama, 1975, §35-8-1, et seg., for the purpose of creating a condominium and establishing certain easements, covenants and restrictions to run with the land.

1. Submission of Property.
The Declarant hereby submits the Land known as Lot A, being a Resurvey of Lots 7, 8, 9, 10, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 of Highland Terrace, as recorded in Map Book 107, Page 60 and located in Jefferson County, Alabama, and more particularly described in Exhibit "A" to this Declaration, together with the Building and improvements thereon, and owned by the Declarant in fee simple absolute (hereinafter called the "Property"), to the provision of the Condominium Act of Alabama, to create a plan of condominium ownership of the Property.

The Property is shown on the Condominium Plat and Plans which identify the Common Elements and the Private Elements. The Plat and Plans, dated March, 1980, consisting of 11 sheets, have been drawn by John C. Gustin, III, and bear his certification that said Plat and Plans accurately depict the improvements as built. The Condominium Plat and Plans are an integral part of this Declaration and are filed as a part of this Declaration in the Office of the Judge of Probate of Jefferson County, Alabama.

2. Name and Address of Condominium.
The name of this Condominium is: The Highland Terrace Condominium. The post office address of the Condominium is: 3350 Altamont Road, Birmingham, Alabama 35205.

3. Definitions.
The following terms used in this Declaration and in the other documents constituting the Condominium Instruments are intended to be consonant with the meanings ascribed to them by the Condominium Act and are defined as follows:

3.1 "Act" or "Condominium Act" means the Condominium Act of Alabama, Code of Alabama, 1975, §35-8-1, et seg.

3.2 "Architect's Plans" means those architectural renderings prepared by Kidd & Wheeler, Architects, dated February 10, 1975, Commission No. 7414, consisting of 20 sheets.

3.3 "Articles of Incorporation" means Articles of Incorporation of the Highland Terrace Condominium Association, Inc., recorded in the Office of the Judge of Probate, Jefferson County, Alabama.

3.4 "Assessment" means a proportionate share of the funds required for the payment of the Common Expenses which from time to time may be levied against each Unit Owner by the Board of Directors of the Association.

3.5 "Association" or "Unit Owners Association" means all of the Unit Owners acting as a group in accordance with Section 8, the Articles of Incorporation and the Bylaws.

3.6 "Building" means any of the buildings of the Condominium.

3.7 "Bylaws" means the set of by?laws recorded simultaneously with this Declaration, providing for the self?government of the Condominium by the association in accordance with §35?8?10 of the Condominium Act, and such amendments thereto as may be recorded from time to time pursuant to the provisions of the Condominium Act.

3.8 "Common Elements" means the parts of the Condominium Property in which all of the Unit Owners have an undivided interest as set forth and defined in Section 6 of this Declaration and the Plans.

3.9 "Common Expenses" includes those as defined by the Act, and include all lawful expenditures made or incurred by or on behalf of the Association, together with all lawful assessments for the creation and maintenance of reserves made pursuant to the provisions of the Condominium Instruments.

3.10 "Common Surplus" means all income collected or accrued by or on behalf of the Association.

3.11 "Condominium" means the Property and all incidents thereto or interests therein which is more particularly described in Section 1 and which is being submitted to the provisions of the Condominium Act by the recording of this Declaration and the other Condominium Instruments.

3.12 "Condominium Instruments" means this Declaration, the Articles of Incorporation, the Bylaws, the Condominium Plat and the Condominium Plans, and any and all exhibits, schedules or certificates thereto, and all amendments thereto which are recorded pursuant to the provisions of the Condominium Act.

3.13 "Condominium Plans" or "Plans" means the plans of the Building showing each Unit, and any amendments thereto.

3.14 "Condominium Plat" or "Plat" means one or more plats of survey of the Condominium, and any amendments thereto.

3.15 "Condominium Property" or "Property" means all property covered by the Declaration, and includes the Land and all improvements now existing or hereafter placed thereon, all easements, rights, interests and appurtenances thereto, and all personal property now or hereafter used in connection therewith.

3.16 "Declarant" means The Lyon Realty Company, a California corporation.

3.17 "Declaration" means this instrument and such amendments thereto as may be recorded from time to time.

3.18 "First Mortgagee" means the holder of any first mortgage or the beneficiary under any first deed of trust encumbering a Unit. The term "mortgage" is deemed to include the terra "deed of trust".

3.19 "Identifying Number" means one or more letters or numbers or both, that identifies only one Unit in the Condominium.

3.20 "Land" means the real property described in Exhibit A to this Declaration, exclusive of the Building, but including all easements and rights appurtenant thereto.

3.21 "Managing Agent" means the agent identified in Section 4.2 of the Bylaws.

3.22 "Member" means a member of the Association, membership in which is confined to persons holding fee ownership in a Unit.

3.23 "Par Value" means the number of points assigned to each Unit by this Declaration, as set forth in Exhibit B to this Declaration.

3.24 "Percentage Interest" means the undivided interest (stated as a percentage) of each Unit in the Common Elements, as set forth in Exhibit B to this Declaration.

3.25 "Person" means a natural person, corporation, partnership, association, trust or other entity capable of holding title to real property, or any combination of any of the foregoing.

3.26 "Private Elements" means a part or parts of the Condominium Property intended for the exclusive ownership and possession by a Unit Owner.

3.27 "Rules and Regulations" means those rules and regulations adopted from time to time by the Board of Directors that are deemed necessary for the enjoyment of the Condominium, provided they are not in conflict with the Condominium Act or the Condominium Instruments.

3.28 "Unit" means the Private Elements of the Condominium Property together with the undivided interest in the Common Elements and Limited Common Elements if any, which are assigned thereto in this Declaration, together with the interests, easements and other rights appurtenant to a Unit as provided for under Section 35?8?5 of the Act.

3.29 "Unit Owner" or "Owner" means the owner of record title to a fee interest in a Unit, and shall include the Declarant so long as Declarant is the Owner of any Unit unless otherwise herein specified.

3.30 "Utility Services" as described in the Declaration and Bylaws, shall include, but not be limited to electric power, gas, hot and cold water, heating, refrigeration, air conditioning, garbage and sewage disposal.

4. Description of Improvements and Identification of Units.
4.1 Description of Improvements.
The Declarant has submitted to the Condominium form of ownership seven (7) buildings all constructed primarily of wood framing and plywood siding, on reinforced concrete footings with asphalt shingle roofing, with one hundred five (105) parking spaces, all as more particularly described in the Architect's Plans and attached Condominium Plans and Plat.

4.2 Identification of Units.
Each Unit is assigned a number or letter or a combination thereof which is indicated on the Plans and Exhibit "B" hereto so that no Unit bears the same designation as any other Unit, and is described as to number, building location, dimensions and other data necessary for its proper identification on the Plans. The Plans have been prepared in such a manner as to also permit the identification of the Par Value and Percentage Interest of each Unit, as well as the identification and location of the Common Elements and the Private Elements.

4.3 Dimensions of Units.
Each Unit shall include as Private Elements the part of the Building containing the Unit consisting of the volumes or cubicles of space which lie within the lower, upper and lateral or perimetrical boundaries described as follows:

Horizontal Boundaries: The upper and lower boundaries of each Unit shall be the following boundaries extended to an intersection with the perimetrical boundaries:

(a) The upper boundaries shall be the lower unfinished surface of the ceiling.

(b) The lower boundaries shall be the plane of the upper surface of the structural slab, concrete deck or other sub?flooring material which serves as the Unit's floor, excluding any floor covering such as carpeting or vinyl, asbestos or ceramic tile.

Lateral or Perimetrical Boundaries: the parametrical boundary of each Unit shall be the vertical planes of the exterior surfaces of exterior windows, glass doors and entry doors, and the unfinished interior surface of the exterior walls, extended to their planar intersections with each other and with the upper and lower horizontal boundaries.

4.4 Items Included in the Private Elements in a Unit.
Each Unit contains (i) all non?structural interior partition walls located within the boundaries of the Unit excepting such part as may comprise part of the Common Elements; (ii) the decorated surfaces of all boundary walls, ceilings and floors, including wallpaper, paint, interior brick surface, lath, wallboard, plaster, carpeting, floor and other finishing materials; (iii) all immediately visible fixtures, appliances, mechanical ,and electrical systems and equipment, the heating and air conditioning system including the individual compressor located about the building and serving only the unit, kitchen cabinets, and water and sewage pipes located within the boundaries of the Unit and serving only the Unit; and (iv) the interior space of an appurtenant patio, excluding the screen wall, if any, as identified in Plans.

4.5 Items Excluded from the Private Elements in a Unit.
A Unit shall be deemed not to include: pipes (except water and sewage pipes located within the boundaries of a Unit and serving only that Unit), wires, conduits and other public utility lines, ventilation or other ducts, bearing walls and structural portions of the Building running through a Unit which are utilized for or serve more than one Unit, and all other property and fixtures of any kind within any unit which is not removable without jeopardizing the soundness, safety or usefulness of the remainder of the Condominium.  The foregoing list shall not be deemed to be all inclusive.

5. Common Elements Located Inside of Unit Boundaries.
Each Unit Owner shall have an easement in common with the Owners of all other Units to use all pipes, wires, ducts, cables, conduits; public utility lines and other Common Elements located in any of the other Units and serving his Unit. Each Unit shall be subject to an easement in favor of the Unit Owners of all other Units to use the pipes, ducts, cables, wires, conduits, public utility lines and Common Elements serving such other Units and located in such Unit. The Board of Directors and its designees shall have a right of access to each Unit to inspect the same, to remove violations there from and to maintain, repair or replace the Common Elements contained therein or elsewhere in the Building.

6. Ownership, Composition and Use of the Common Elements.
6.1 Items Included "Within Common Elements.
The Common Elements shall include the common areas and facilities located substantially as shown on the Plans. Such common areas and facilities will include the following, unless specifically included within a Unit:

(a) The Land described in Exhibit "A".

(b) The foundations and footings, exterior walls, screen walls, roofs, girders, beams, supports, stairs and stairways, porches, or landings, entry walks and entry porches of any Building.

(c) The pool, yard, streets, walkways, parking areas, recreational areas and landscaping.

(d) The mechanical systems and installations providing service to any Building, or to any Unit, such as electrical power, gas, lights, hot and cold water, heating and air conditioning, sanitary and storm sewer facilities, and including all lines, pipes, ducts, flues, chutes, conduits, cables, wires and other apparatus and installations in connection therewith.

(e) All maintenance, laundry and storage facilities, water storage tanks, pumps, outdoor lighting and the like.

(f) All easements, rights or appurtenances affecting or relating to the use of the Condominium Property unless specifically included in any Unit.

(g) All attics.

6.2 Allocation of Percentage Interests.
Each Unit is allocated a Percentage Interest in the Common Elements equal to the Par Value assigned to that Unit in Section 7 and set forth in Exhibit B to this Declaration. The Percentage Interest in the Common Elements shall not be separated from the Unit and shall be deemed to be conveyed or encumbered with the Unit even though such undivided interest is not expressly mentioned or described in the document of conveyance or encumbrance.

6.3 Use of Common Elements.
The use of the Common Elements shall be limited to the Unit Owners in residence, to their tenants in residence and to their guests, invitees and licensees and shall be governed by the Condominium Instruments and the Rules and Regulations.

6.4 No Revocation, Abandonment or Partition.
            The Common Elements shall remain undivided and shall not be abandoned by act or omission and no Unit Owner or other person may bring any action for partition or division of the Common Elements unless the condominium regime is terminated pursuant to the procedures set forth in the Condominium Act.

6.5 Suspension and Limitation of Use.
The Board of Directors may suspend or limit the right of any Unit Owner or other person to use any part of the Common Elements upon failure of such Unit Owner or other person to observe the provisions of the Condominium Instruments and the Rules and Regulations governing the use of the Common Elements.

7. Assignment of Par Value and Allocation of Percentage Interest to Each Unit.
        Each Condominium Unit is identified in Exhibit B to this Declaration by a separate Identifying Number. Each Unit is assigned the Par Value and is allocated the Percentage Interest set forth opposite the Identifying Number of that Condominium Unit in Exhibit B to this Declaration. The Par Value of each Unit is based on the approximate relative square footage of that Unit. The Par Value of a Unit shall not be deemed to reflect or control the sales price or fair market value of any Unit, and no opinion, appraisal or fair market transaction shall affect Par Value of any Unit or any Percentage Interest, liability for Common Expenses or rights to Common Surplus assigned or allocated on the basis of Par Value.

8. Unit Owners' Association.
Operation and administration of the Condominium shall be performed by an Association, pursuant to the provisions of the Act, which shall be incorporated as a not-for-profit corporation, and shall be organized and shall fulfill its functions pursuant to the following provisions:

8.1 Name.
The name of the Association shall be "Highland Terrace Condominium Association, Inc."

8.2 Powers and Duties.
The powers and duties of the Association shall include those set forth in the Act, this Declaration and the Bylaws, and it shall have the power to purchase one or more units of the Condominium.

8.3 Members.
(a) Qualification. The Members of the Association shall consist of all record owners of Units.

(b) Change of Membership. Change of Membership in the association shall be established by recording in the public records of Jefferson County, Alabama, of the deed or other instrument establishing a record title to a Unit of the Condominium, and the delivery to the Association of a certified copy of such instrument, the owner designated by such instrument thereby becoming a Member of the Association. Membership of the prior owner shall be thereby terminated. All present and future owners, tenants and occupants of the Unit shall be subject to, and shall comply with the provisions of this Declaration, the Bylaws and all Rules and Regulations, as may be amended from time to time.

(c) Voting Rights. The vote for a Unit shall be cast by the Unit Owner thereof or the duly authorized proxy of the Unit Owner or the Unit Owner's certified voting representative in the manner provided by the Bylaws. Each Unit Owner is entitled to vote the Par Value of each Unit owned by him.

8.4 By-laws.
The Bylaws of the Association shall be in the form attached hereto as Exhibit C.

8.5 Agent to Receive Service of Process.
The following corporation, whose place of business is in Montgomery County, Alabama,is designated as an agent to receive service of process upon the Association: The Corporation Company, One Court Square, Montgomery, Alabama 36103.

8.6 Indemnification of Officers and Directors.
Every Director and every Officer of the Association shall be indemnified by the Association against expenses and liabilities, in the manner provided for in the Bylaws.

9. Operation of the Condominium.
9.1 Determination of Common Expenses and Assessments Against Unit Owners.
(a) Fiscal Year. The fiscal year of the Condominium is the calendar year; provided that the fiscal year may be changed by the Board of Directors at its discretion.

(b) Annual Budget. On or before a date which is not less than 15 days prior to the end of each fiscal year, the Board of Directors shall adopt an annual budget for the Condominium for the succeeding fiscal year (hereinafter called the "annual Budget"). The Annual Budget shall contain an estimate of the amount necessary to pay the Common Expenses for the applicable fiscal year in a reasonably itemized form and a statement of the amount of the Common Expenses payable by each Unit Owner. Common Expenses shall include the amounts necessary to create and maintain the reasonable reserves authorized by Section 9.1(d). The Board of Directors shall send to each Unit Owner at least 10 days prior to the commencement of each fiscal year a copy of the Annual Budget for the fiscal year.

(c) Assessment and Payment To Common Expenses. The total amount of the estimated funds required to pay the Common Expenses of  the Condominium set forth in the Annual Budget adopted by the Board of Directors for the fiscal year shall be assessed against each Unit in proportion to the Par Value of the Unit Assessment for the Common Expenses shall be a lien against such Unit as of the first day of the fiscal year to which such Annual Budget applies. A Unit Owner shall be personally liable for all lawful assessments, or installments thereof, levied against his Condominium Unit which become due while he is the owner of a Unit; and this liability of the Unit Owner is in addition to the lien for assessments in favor of the Association on the Condominium Unit created by the Act. On or before the first day of each fiscal year, and on the first day of each of the succeeding 11 months in such fiscal year, each Unit Owner shall be obligated to pay to the Board of Directors or the Managing Agent (as determined by the Board of Directors), or, in appropriate cases, the First Mortgagee, one?twelfth of the assessment for such fiscal year. Within 60 days after the end of each fiscal year, the Board of Directors shall send to each Unit Owner an itemized accounting of the Common Expenses actually incurred for such fiscal year, together with an itemized statement of the amounts collected pursuant to the assessment adopted by the Board of Directors for such fiscal year, any delinquencies in payment of assessments, the amount of any surplus or deficit and the amount of the reserves. Common Surplus in excess of Common Expenses (including reserves) as of the end of a fiscal?year shall be returned to the Unit Owners or credited to the assessments due under the Manual Budget for the next succeeding fiscal year, as may be determined by the Board of Directors, in proportion to the Par Value of their respective Units.

(d) Reserve Fund for Capital Improvements, Replacements and Major Repairs. The Board of Directors shall establish and maintain a reasonable fund for capital improvements, replacement and major repairs by providing for a reserve fund in the Annual Budget, segregating such reserve fund on the books of the Condominium, and allocating and paying monthly to such reserve fund for the current fiscal year. The portion of the Unit?Owners' assessments paid into such reserve fund shall be conclusively deemed to be contributions to the capital of the Condominium by the Unit Owners. Such reserve fund may be expended for the purposes of capital improvements, replacements and major repairs as determined by the Board. If for any reason, including nonpayment of any Unit Owner's assessment, such reserve fund is inadequate to defray the cost of a required capital improvement, replacement or major repair, the Board of Directors may at any time levy an additional assessment against the Unit Owners in proportion to the respective Par Value of their Units, payable into such reserve fund in a lump sum or in installments as the Board of Directors may determine. The Board of Directors shall give notice of any such further assessment on the Unit Owners by a statement in writing giving the amount and reasons therefore, and such additional assessments shall become due and payable, unless otherwise specified in the notice, with the next monthly assessment payment which is due more than 10 days after the delivery or mailing of such notice of additional assessment. All Unit Owners shall be obligated to pay the adjusted monthly amount or, if the additional assessment is not payable in installments, the amount of such assessment. The proportionate interest of any Unit Owner in any reserve fund shall be considered an appurtenance of his Unit and shall not be separately withdrawn, assigned or transferred or otherwise separated from the Unit to which it is appurtenant, and shall be deemed to be transferred with such Unit.

(e) Special Assessments. In addition to the assessments authorized above, the Board of Directors may levy a special assessment for the purpose of defraying the cost of any unexpected repair or other nonrecurring contingency, or to meet any deficiencies occurring from time to time. The fund resulting from such special assessment shall be segregated on the books of the Condominium and expended solely for the purposes for which it was assessed. Any such special assessments shall be assessed in the manner set forth in Paragraph (d) of this Section 9.1 with respect to additional assessments payable to the reserve fund for capital improvements, replacements and major repairs. Notwithstanding the foregoing, the Board of Directors may not levy a special assessment for any purpose other than to defray the cost of unexpected repairs, without first receiving the approval of the owners of eighty percent (80%) of the Par Value of the Units.

(f) Initial Budget. When the first Board of Directors takes office, it shall determine the Annual Budget, as defined in this section, for the period commencing upon the sale of the first Unit by the Declarant and ending on the last day of the fiscal year in which their election occurs. Assessments shall be levied against the Unit Owners during such period in accordance with Paragraph (c) of this Section.

(g) Effect of Failure to Prepare or Adopt Annual Budget. The failure or delay of the Board of Directors to adopt the annual Budget for any fiscal year shall not constitute a waiver or release in any manner of a Unit Owner's obligation to pay his allocable share of the Common Expenses as herein provided, whenever the same shall be determined, and in the absence of an Annual Budget or adjusted Annual Budget, each Unit Owner shall continue to pay a monthly assessment at the rate established for the preceding fiscal year until a monthly assessment is adopted under such new Annual Budget or adjusted Annual Budget and notice thereof has been sent to the Unit Owners.

(h) Liability of Unit Owners. It is intended that the liability of any Unit Owner arising out of any contract made by the Board of Directors or arising out of the indemnification of the Board of Directors shall be limited to such proportion of the total liability thereunder as the Par Value of his Unit bears to the aggregate Par Values of all Units. Every agreement made by the Board of Directors or by the Managing Agent on behalf of the Unit Owners shall provide, to the extent possible, that the members of the Board of Directors or the Managing Agent, as the case may be, are acting only as agents for the Unit Owners; and that the Unit Owner's personal liability thereunder shall be limited as described in this paragraph.

(i) Accounts. All amounts collected by the Board of Directors with respect to assessments against the Unit Owners may be commingled in a single fund, but shall be held for each Unit Owner in accordance with the Par Value of his Unit.

9.2 Payment of Common Expenses by Declarant.
 Notwithstanding any language to the contrary in the Condominium Instruments, the Declarant shall not be liable for and shall be excused from the payment of any assessments for Common Expenses assessed against any Unit owned by the Declarant during the period beginning with the closing of the purchase of any Unit in the Condominium, and terminating not later than one (1) calendar year thereafter. During this period, the Declarant guarantees that the assessment for Common Expenses of the Condominium imposed on the Unit Owners other than the Declarant shall not increase over the dollar amount stated in the contract of sale signed by Unit Owner and the Declarant shall pay any amount of Common Expenses incurred during the period and not produced by the assessments at the guaranteed level receivable from other Unit Owners. The Declarant reserves the right to terminate this guarantee at any time. Upon termination, the Declarant shall pay assessments for Common Expenses for Units owned by Declarant, provided that, at do time, shall the Declarant be liable under the guarantee set forth above if Declarant is also liable for assessments for Common Expenses.

9.3 Payment of Common Expenses by Unit Owners.
All Unit Owners (other than Declarant) shall be obligated to pay the assessment for the Common Expenses adopted by the Board of Directors pursuant to Section 9.1. Declarant shall have such rights as are stated in the preceding paragraph. No Unit Owner may exempt himself from liability for his contribution toward Common Expenses by waiver of the use or enjoyment of any of the Common Elements or by abandonment of his Unit.  No Unit Owner shall be liable for the payment of any part of the Common Expenses assessed against his Unit subsequent to a sale or other conveyance by him of such Unit. The purchaser of a Unit shall be jointly and severally liable with the selling Unit Owner for all unpaid assessments against the latter for his proportionate share of the Common Expenses up to the time of the conveyance without prejudice to the purchaser's right to recover from the selling Unit Owner the amounts paid by the purchaser therefore; provided, however, that any such purchaser shall be entitled to a statement from the Board of Directors or the Managing Agent, setting forth the amount of the unpaid assessments against the selling Unit Owner and such purchaser shall not be liable for, nor shall the Unit conveyed be subject to a lien for, any unpaid assessments in excess of the amount therein set forth; and provided, further, that if the First Mortgagee of record or other purchaser of a Unit obtains title to the Unit as a result of foreclosure or deed (or assignment) in lieu of foreclosure of a first mortgage, such purchaser, its successors and assigns shall not be liable for, and such Unit shall not be subject to, a lien for the payment of Common Expenses assessed prior to the acquisition of title to such Unit by such purchaser pursuant to a foreclosure sale, conveyance or assignment. Such unpaid share of Common Expenses assessed prior to the acquisition of title to such Unit by such purchaser pursuant to the foreclosure sale, conveyance or assignment shall be collectible from all Unit Owners, including the purchaser, in proportion to the Par Value of their respective Units. No amendment to this Section shall affect the rights of any First Mortgagee which has recorded its mortgage prior to recordation of such amendment unless the First Mortgagee joins in the execution of such amendment.

9.4 Collection of Assessments.
The Board of Directors shall take prompt action to collect any assessments for Common Expenses due from any Unit Owner which remain unpaid for more than 30 days after the due date for the payment thereof, and may impose penalties for late payment. The Association shall have a lien against the Unit, and all personal property located within such Unit, of each Unit Owner failing to pay any assessment, except that such liens shall be subordinate to prior bona fide liens of record. Reasonable attorney's fees incurred by the Association incident to the collection of such Assessments or the enforcement of such liens shall also be payable by the Unit Owner and secured by such lien. The Association may take such action as it deems necessary to collect Assessments either by personal action against the Owner of the Unit against which such Assessment has been made, or by enforcing and foreclosing said lien or by exercising both of such remedies. The Association may settle and compromise any assessment if it is deemed to be in its best interest to do so. The lien of an Assessment shall be effective as and in the manner provided for by the Act, and shall have the priorities established by said Act. The Association shall be entitled to bid at any sale held in connection with the foreclosure of an Assessment lien, and may apply as a cash credit against its bid all sums secured by the lien enforced.

9.5 Statement of Unpaid Assessments.
(a) Upon written request to the Board of Directors by a Unit Owner or purchaser of a Unit, the Board of Directors, or a duly designated agent thereof, or the Managing Agent, shall furnish (within the time period prescribed by the Act) a recordable statement setting forth the amount of unpaid assessments levied against such Unit.

(b) The Board of Directors may impose a reasonable fee not to exceed $30 for each such statement requested and payment thereof shall be a prerequisite to the issuance of a statement.

9.6 Maintenance and Repair.
(a) By the Association. The Association, acting through the Board of Directors, shall be responsible for the maintenance, repair and replacement of the following, the cost of which shall be charged to all Unit Owners as a Common Expense:

    (1) The Common Elements, whether located inside or outside of the Units, including without limitation, all portions of the Units which contribute to the support of the Building, excluding, however, the surfaces of all walls, floors, ceilings, entrance doors and windows of a Unit.

    (2) Incidental damage caused to a Unit by such work done by the association.

This Section 9.6(a) shall not relieve a Unit Owner of liability for damage to the Common Elements caused by the Unit Owner.

(b) By the Unit Owner. Except for the portions of the Common Elements required to be maintained, repaired or replaced by the Association, each Unit Owner's responsibility shall include but not be limited to the maintenance, repair and replacement, at his own expense, of the following: any interior walls; interior surface of ceilings, walls and floor; door locks and hardware; entrance doors; windows; lighting fixtures; appliances and equipment; kitchen and bathroom fixtures; and water and sewage pipes located within the boundaries of the Unit and serving only that Unit. Each Unit Owner shall keep the interior of his Unit and its equipment and appurtenances in good order, condition and repair and in a clean and sanitary condition, and shall do all redecorating, painting and varnishing which may at any time be necessary to maintain the good appearance and condition of the Unit. In addition, each Unit Owner shall be responsible for all damage to any and all other Units or to the Common Elements resulting from his making or failure to make any of the repairs required to be made by him by this Section. Each Unit Owner shall perform his responsibility in such manner as shall not unreasonably disturb or interfere with the other Unit Owners. Each Unit Owner shall promptly report to the Board of Directors or the Managing Agent any defects or need for repairs for which the Board of Directors is responsible.

(c) Manner of Repair and Replacement. All repairs and replacements shall be of first class quality and as nearly is practicable similar to the character of the construction or installation that existed immediately prior to the occasion that necessitated the repairs or replacements. Repairs and replacements may be done with contemporary building materials and equipment.

(d) Public Areas. Anything contained in this Section to the contrary notwithstanding, the public areas of the Condominium and those areas exposed to public view (including portions of Units) shall be kept in good appearance by the Association or Unit Owners who are required to maintain same, as the case may be, and shall be maintained in a first?class condition, in conformity with the dignity and character of the Condominium, in manner which does not adversely alter the value of the Condominium, and in conformity with the Rules and Regulations concerning the maintenance of Public Areas, and as determined by the Board of Directors.

9.7 Additions, Alterations or Improvements by the Association.
Whenever in the judgment of the Board of Directors the Common Elements shall require additions or improvements costing in excess of $4,000 during any period of 12 consecutive months, and the

making of such additions, alterations or improvements shall have been approved by a majority of the votes in the Association, the Board of Directors shall proceed with such additions, alterations or improvements and shall assess all Unit Owners for the cost thereof as a Common

Expense. Any additions, alterations or improvements costing less than $4,000 during any period of 12 consecutive months may be made by the Board of Directors without approval of the Unit Owners and the cost thereof shall constitute part of the Common Expenses. Notwithstanding

the foregoing, if, in the opinion of not less than 80% of the members of the Board of Directors, such additions, alterations or improvements are exclusively or substantially exclusively for the benefit of the Unit Owner or Unit Owners requesting the same, such requesting Unit Owner or Unit Owners shall be assessed therefore, in such proportion as they jointly approve, if more than one Unit Owner, or, if they are unable to agree thereon, in such proportions as determined by the Board of Directors.

9.8 Structural Additions, Alterations or Improvements By Unit Owners.
(a) No Unit Owner shall make any structural addition, alteration or improvements in or to his Unit without the prior written consent of the Board of Directors. No Unit Owner shall paint or alter the exterior of the Building, including the doors and windows or the exterior of the Unit's entry doors without the prior written consent of the Board of Directors. The Board of Directors shall be obligated to answer any written request by a Unit Owner for approval of a proposed structural addition, alteration or improvement (by painting or otherwise) in such Unit Owner's Unit within 45 days after such request, and its failure to do so within the stipulated time shall constitute a consent of the Board of Directors to the proposed addition, alteration or improvement. Any application to any governmental authority for a permit to make an addition, alteration or improvement in or to any Unit shall be executed by the Board of Directors only, without, however, incurring any liability on the part of the Board of Directors or any of them or the Association to any contractor, subcontractor or material man on account of such addition, alteration or improvement, or to any person having any claim or injury to a person or damage to property arising there from. The provisions of this Section 9.8 shall not apply to Units owned by the Declarant or its designee until a deed for such Unit has been delivered to a purchaser thereof.

(b) Notwithstanding any language to the contrary in this Section, a Unit Owner who owns adjoining Units may alter said Units and the common elements separating said Units in order to provide access from one adjoining Unit to the other. Any such alterations shall be subject to reasonable rules and regulations as the Association may adopt with respect thereto, and said Unit Owner shall be responsible for obtaining such building permits and municipal approval as is required by law prior to beginning said alterations. Said Unit Owner shall also bear at his expense the cost of preparing and recording any amendment as may be necessary to the Condominium Instruments to reflect said alteration, which amendment shall be prepared and executed as required by the Act.

(c) In the event that a Unit Owner of adjoining Units provides access from one Unit to the other, the Unit Owner must, at his expense, take such measures as are necessary and required by law to eliminate said access prior to the sale of one or both of the adjoining Units. (The Board of Directors may waive this requirement if the Unit Owner sells said adjoining Units to the same purchaser and prior thereto furnishes the Board of Directors with such evidence as it requires that the First Mortgagee and municipal authorities do not require that the access be eliminated.) The Unit Owner shall obtain, at his expense, such building permits or other municipal approval as is required by law prior to performing such work as is necessary to eliminate said access. The Unit Owner shall also be responsible at his cost for preparing any amendment to the Condominium Instruments as may be necessary to reflect the elimination of such access, and the Unit Owner shall, at his cost, record the aforesaid amendment, which shall be prepared and executed as required by the Act. Any work and labor as may be necessary to eliminate said access shall be subject to reasonable rules and regulations as the Association may adopt with respect thereto.

(d) Prior to creating or eliminating access between adjoining Units, said Unit Owner must receive the express written approval from any First Mortgagee holding a security interest in either of the adjoining Units. Said written approval by First Mortgagee shall be delivered by the Unit Owner to the Board of Directors of the association.

(e) The creation or elimination of access between said Units and such amendment as required to the Condominium Instruments to reflect the same shall not change the Percentage Interest, the liability for Common Expenses, the right to Common Surplus, or the votes is the association pertaining to either of said adjoining Units. Nothing contained herein shall prohibit a Unit Owner, or his lessee, from occupying both adjoining Units for residential purposes. Prior to creating or eliminating access between adjoining Units, said Unit Owner must also receive approval from the Board of Directors, which approval may be withheld if it is determined any work, labor or construction to be performed impairs the structural integrity of the Condominium or further unreasonably impairs the use or enjoyment of another Owner's Unit.

(f) The costs of all additions, alterations or improvements made pursuant to this paragraph, and any other costs attendant thereto, shall be borne solely by the Unit Owner.

9.9 Alteration of Plans by Declarant.
Declarant reserves the right to change the interior design and arrangements of all Units and to alter the boundaries between the Units as long as Declarant owns the Unit so altered. No change shall increase the number of Units nor alter the boundaries of the Common Elements without amendment of this Declaration by approval of the Association, Unit Owners and First Mortgagees in a manner elsewhere provided. If Declarant shall make any change in Units so authorized, such change shall be reflected by the filing in the Office of the Judge of Probate of Jefferson County, an amendment of this Declaration. If more than one Unit is concerned, the Declarant shall apportion between the Units, the shares and Common Elements appurtenant to the Units concerned.

9.10 Restrictions on Use of Units and Condominium.
(a) The Board of Directors is authorized to promulgate, amend and enforce Rules and Regulations concerning the operation and use of the Condominium; provided, that such Rules and Regulations are not contrary to or inconsistent with the Act, the Declaration or Bylaws. A copy of the Rules and Regulations shall be furnished by the Board of Directors to each Unit Owner prior to the time they become effective.

(b) All present and future Unit Owners, tenants and occupants of Units and any person who uses any part of the Condominium in any manner, are subject to, and shall comply with, the provisions of the Condominium Instruments and the Rules and Regulations. The acquisition, rental or occupancy of a Unit or the use of any part of the Condominium by any person shall constitute his agreement to be subject to and bound by the provisions of the Condominium Instruments and the Rules and Regulations, and such provisions shall be deemed to be enforceable equitable servitudes and covenants running with the land and shall bind any person having at any time any interest or estate in such Unit, as though such provisions were recited and stipulated in full in each and every deed of conveyance or lease thereof. Failure to comply with any of such provisions shall be grounds for legal and equitable relief, maintainable by the Board of Directors on behalf of the Association or, in a proper case, by an aggrieved Unit Owner. In any such action at law or in equity which is successfully brought by or on behalf of the Association, the Association shall be entitled to recover all reasonable costs and expenses of any such action, including reasonable attorney's fees.

(c) The use of the Condominium is subject to the following restrictions:

(1) No Unit Owner or other resident of the Condominium shall post any advertisements or posters of any kind is or on the Condominium except as authorized by the Board. This restriction shall not apply to advertisements, signs or posters utilized by the Declarant, or its agents, in selling the Units.

(2) All Units shall be used only for private residential purposes, except that a Unit may be used as a professional office if such use is consistent and in compliance with all valid laws, zoning ordinances and regulations of all governmental agencies having jurisdiction. This provision shall not be construed to prevent the Declarant from using any Unit for a model, sales office or display purposes nor to prohibit the leasing of the Units owned by the Declarant, subject to the provisions of the Condominium Instruments. The Declarant in adopting the Condominium Instruments specifically reserves an easement and express right and power to so utilize these Units. No activity shall be conducted or maintained in any Unit or upon any of the Common Elements which is not in conformity with the zoning regulations or other ordinances of the City of Birmingham, Alabama.

(3) No clothing, laundry, rugs or wash shall be hung from or spread upon or from any window or exterior portion of a Unit or in or upon any Common Element. All refuse and trash shall be deposited in bias or chutes designated for such purposes and in manner prescribed by Board of Directors or Managing Agent.

(4) The maintenance, keeping, breeding, boarding and/or raising of animals, of any kind, shall be regulated by the Rules and Regulations of the Association. Any Unit Owner who keeps or maintains any pet within his/her Unit shall be deemed to have indemnified and agreed to hold the Association, each of its members and the Declarant and Management agent, free and harmless from any loss, claim or liability of any kind or character whatever arising by reason of keeping or maintaining such pet within the Condominium. All pets shall be innoculated as required by law. The Board of Directors shall have the right to order any person whose pet is a nuisance, to remove such pet from the premises and the Board of Directors, after affording the right to a hearing to the Unit Owner affected, shall have the exclusive authority to declare any pet a nuisance, and to limit the number of pets per Unit.

(5) Unit Owners, residents and lessees shall exercise extreme care to avoid unnecessary noise or the use of musical instruments, radios, televisions and amplifiers that may disturb other Unit Owners. All walking areas and 85% of all wood floor areas in each Unit must be covered by carpet or rugs.

(6) No nuisances shall be allowed in the Condominium nor shall any use or practice be allowed which is a source of annoyance to its residents or which interferes with the peaceful possession or proper use of the Condominium by its residents.

(7) No Unit Owner, resident or lessee shall install wiring for electrical or telephone installation, television antennae or other equipment, which protrudes through the walls or the roof of the Building except as authorized by the Board of Directors.

(8) No Unit or Common Elements of the Condominium may be used for any unlawful, immoral or improper purpose.

(9) A Unit Owner shall not place or cause to be placed in the public hallways, walkways, alleyways or other Common Elements any furniture, packages or objects of any kind. The public hallways, walkways and alleyways shall be used for no purpose other than for normal transit through them. Bicycles shall be placed only in designated areas.

(10) No Unit Owner, resident or lessee shall direct or engage any employee of the Condominium on any private business of such Unit Owner, resident or lessee, nor shall he direct, supervise or in any manner attempt to assert control over any such employee or over any contractor acting under a contract or agreement with the Association.

(11) No activity shall be done or maintained in any Unit or upon any Common Elements which will increase the rate of insurance on any Unit or the Common Elements or result in the cancellation of insurance thereon, unless such activity is first approved in writing by the Board of Directors.

(12) In the use of the Units and the Common Elements of the Condominium, Unit Owners shall obey and abide by all valid laws, ordinances and zoning and other governmental regulations affecting the same and all applicable Rules and Regulations adopted by the Board of Directors.

(13) The Common Elements shall be used only for the furnishing of the services and facilities for which they are reasonably suited and which are incident to the use and occupancy of the Units.

(14) Any lease shall be consistent with the provisions of the Condominium Instruments, as the same may be amended from time to time, and with the Rules and Regulations of the Condominium; and the Board of Directors has the power but not the obligation to terminate such lease or to bring legal proceedings to evict the tenant and enforce the lease in the name of the lessor thereunder add at lessor's expense, in the event of a default by the tenant in the performance of such lease. The restrictions of this paragraph shall not apply to the Declarant or any mortgagee who comes into possession of a Unit pursuant to a foreclosure sale, judicial sale or transfer or conveyance in lieu of foreclosure.

9.11 Right of Access.
Each Unit Owner grants a right of access to his Unit to the Board of Directors, the Managing Agent and to any other person authorized by the Board of Directors for the purpose of making inspections and for the purpose of correcting any condition originating in his Unit and threatening other Units or Common Elements, or for the purpose of performing installations, alterations or repairs to the mechanical or electrical services or other Common Elements in his Unit or elsewhere in the Building, or to correct any condition which violates the provisions of any mortgage covering another Unit, or to enforce any provision of the Condominium Documents, provided that requests for entry are made in advance and that any such entry is at a time reasonably convenient to the Unit Owner. In case of an emergency, such right of entry shall be immediate whether the Unit Owner is present at the time or not. Each Unit Owner further grants a right of access to his Unit to Declarant or his agent for the purpose of making all repairs required by the Declarant's warranty delivered to the Unit Owner at the closing of his Unit. To the extent that damage is inflicted on the Common Elements or any Unit through which access is taken, the Unit Owner or the Unit Owners Association, if it caused the same, shall be liable for the prompt repair thereof.

9.12 Limitation of Liability.
The Association shall not be liable for any failure of water supply or other services to be obtained by the Association or paid for out of the Common Expense funds, or for injury or damage to person or property caused by the elements or resulting from electricity, water, snow or ice which may leak or flow from any portion of the Common Elements or from any wire, pipe, drain, conduit, appliance or equipment. The Association shall not be liable to the Owner of any Condominium Unit for loss or damage, by theft or otherwise, of articles which may be stored upon any of the Common Elements. No diminution or abatement of Common Expense assessments, as herein elsewhere provided, shall be claimed or allowed for inconvenience or discomfort arising from the making of repairs or improvements to the Common Elements, or to any Condominium Unit, or from any action taken by the Association to comply with any law or ordinance or with the order or directive of any municipal or other governmental authority or for the dispossession of the Unit Owner by reason of fire or other casualty, except to the extent covered by insurance.

10. Insurance Provisions.
Insurance which shall be carried on the Condominium Property shall be governed by the provisions of this Section 10 and the Bylaws.

10.1 Insurance Trustee; Shares of Proceeds.
All insurance policies purchased by the Association shall be for the benefit of the association and the Unit Owners and their mortgagees as their interests may appear, and shall provide that all proceeds covering casualty losses shall be paid to the Board of Directors, as Trustee for each of the Unit Owners and their mortgagees, which said Board, for the purpose of these provisions, is herein referred to as the Insurance Trustee. The duty of the Insurance Trustee shall be to receive such proceeds as the same are paid and hold the same in trust for the purposes stated in the Bylaws and elsewhere herein for the benefit of the Unit Owners and their mortgagees, as follows:

(a) Common Elements. Proceeds on account of damage to the Common Elements shall be held as an undivided share for each Unit Owner, such share being the same as his Percentage Interest.

(b) Units. Proceeds on account of Units shall be held for the Owners of damaged Units in proportion to the cost of repairing the damage suffered by each Unit Owner, which cost shall be determined by the Association.

(c) Mortgages. In the event a mortgagee endorsement has been issued as to a Unit, the share of the Unit Owner shall be held in trust for the mortgagee and the Unit Owner as their interests may appear.

10.2 Distribution of Proceeds.
The proceeds of insurance for losses to any of the Condominium Property shall be applied for the repair, reconstruction and replacement of the Condominium Property in the manner provided for in the Bylaws. Any proceeds remaining after defraying such costs shall be distributed to the beneficial owner, remittances to Unit Owners and their mortgagees being payable jointly to them. No Unit Owner or other party shall have a priority over any First Mortgagee in connection with the distribution of insurance proceeds. This is a covenant for the benefit of any mortgagee of a Unit and may be enforced by such mortgagee.

10.3 Board of Directors as Agent.
The Board is hereby irrevocably appointed agent for each Unit Owner to adjust all claims arising under insurance policies purchased by the Association, and to execute and deliver releases upon the payment of claims.

11. Condemnation
In the event of condemnation of all or a portion of the Condominium Property, the disposition of proceeds of the award shall be governed by the following provisions:

11.1 Entire Property.
In the event of condemnation of the entire Condominium Property, the Association shall be entitled to receive the proceeds of the award which shall be distributed by the Association to the Unit Owners and their mortgagees, as their interests may appear, in proportion to their Percentage Interests.

11.2 Partial Taking.
In the event of condemnation of a portion of the Condominium Property, the Association shall be entitled to receive the proceeds of the award which shall be distributed in accordance with the findings of a panel of three (3) arbitrators to be selected by the Board which shall proceed in accordance with the then existing rules of the American Arbitration Association to determine the portion of the award due to be distributed to each of the several Unit Owners and their mortgagees, as their interests may appear, by virtue of the Unit Owner's interest in the Units or portions thereof taken and the portion of the award allocable to the Common Elements taken by condemnation. The portion of the award allocable to the Common Elements shall be retained by the Association which shall treat the same as insurance proceeds and proceed under Section 10 hereof to reconstruct and restore the affected portion of the Condominium Property to a complete architectural unit if the Board determines that such is feasible. The panel of arbitrators shall also determine the percentage of undivided interest of the remaining Unit Owners in the Common Elements following the condemnation and each Unit Owner shall be deemed to have consented to the amendment of this Declaration in accordance with such findings and the continuation of the Condominium regime with respect to the Condominium Property remaining following condemnation. If it is determined not to be feasible to restore the Condominium Property to a complete architectural unit, the portion of the award allocable to the Common Elements shall be distributed to the Unit Owners and their mortgagees, as their interest may appear, in proportion to their Percentage Interests. The expense of the arbitration shall be paid by the Association, and shall constitute a Common Expense.

11.3 Priority.
No Unit Owner or other party shall have a priority over any First Mortgagee in connection with the distribution of any condemnation proceeds. This is a covenant for the benefit of any mortgagee of a Unit and may be enforced by such mortgagee.

12. Reconstruction or Repair After Casualty.
12.1 Vote.
In the event of the damage or destruction of all or any part of the Condominium Property, then, unless it be determined by the vote of the owners of eighty percent (80%) of the Par Value of the Units not to repair or reconstruct such damaged or destroyed property, the same shall be repaired, reconstructed or replaced. Any such repair, reconstruction or replacement must be substantially in accordance with the Plans and specifications for the original Building, or as the Building was last constructed, or according to plans approved by the Board, the Unit Owners and the holders of all first mortgage liens on the Units in the Building.

12.2 Responsibility.
If the damage is only to those parts of a Unit for which the responsibility of maintenance and repair is that of the Unit Owner, then the Unit Owner shall be responsible for reconstruction and repair after casualty. In all other instances the responsibility of reconstruction and repair after casualty shall be that of the Association.

12.3 Estimates of Costs.
Immediately after a casualty causing damage to Property for which the Association has the responsibility of maintenance and repair, the Association shall obtain reliable and detailed estimates of the cost to rebuild or repair so as to place the damaged property in condition as good as that before the casualty.

12.4 Assessments.
If the proceeds of insurance are not sufficient to defray the estimated costs of reconstruction, repair or replacement by the Association, Assessments shall be made against the Unit Owners who own the damaged property, and against all Unit Owners in the case of damage to Common Elements, in sufficient amounts to provide funds to pay the estimated costs. If at any time during reconstruction, repair or replacement, or upon completion of reconstruction and repair or replacement, the funds for the payment of the costs thereof are insufficient, Assessments shall be made against the Unit Owners who own the damaged property, and against all Unit Owners in the case of damage to Common Elements, in sufficient amounts to provide funds for the payment of such costs. Such Assessments against Unit Owners shall be in proportion to the cost of reconstruction and repair of their respective Units. Such assessments for reconstruction or repair of damage to Common Elements shall be in proportion to the Unit Owners' Percentage Interests.

12.5 Construction Funds.
The funds for payment of costs of reconstruction, repair and replacement after casualty for which the association is responsible, which shall consist of proceeds of insurance held by the Insurance Trustee and funds collected by the Association from Assessments against Unit Owners, shall be disbursed in payment of such costs in the following manner: The proceeds of insurance collected on account of a casualty, and the sums deposited with the association from collections of Assessments against the Unit Owners on account of such casualty, shall constitute a construction fund which shall be disbursed in payment of the costs of reconstruction and repair in the following manner:

(i) Unit Owner. The portion of insurance proceeds representing damage for which the responsibility of reconstruction and repair lies with the Unit Owner shall be paid by the Insurance Trustee to the Unit Owner, or if there is a mortgagee endorsement, then to the Unit Owner and the mortgagee jointly, such funds to be used as required hereunder or by the mortgage.

(ii) Association -- Lesser Damage. If the amount of the estimated costs of reconstruction and repair which is the responsibility of the Association is less than the total of the annual Assessments for recurring expense to be made during the year in which the casualty occurs, then the construction fund shall be disbursed in payment of such costs upon the order of the Association; provided, however, that upon request to the Insurance Trustee by a mortgagee which is a beneficiary of an insurance policy the proceeds of which are included in the construction fund, such fund shall be disbursed in the manner hereafter provided for the reconstruction and repair of major damage.

(iii) Association -- Major Damage. If the amount of estimated costs of reconstruction and repair which is the responsibility of the Association is more than the total of the annual assessments for recurring expense to be made during the year in which the casualty occurs, then the construction fund shall be disbursed in payment of such costs in the manner required by the Board of Directors of the Association and upon approval of an architect qualified to practice in Alabama and employed by the Association to supervise the work.

(iv) Surplus. It shall be presumed that the first moneys disbursed in payment of costs of reconstruction and repair shall be from insurance proceeds; and if there is a balance in a construction fund after payment of all costs of the reconstruction and repair for which the fund is established, such balance shall be distributed to the beneficial owners of the fund as their interests may appear.

13. Proportionate Changes in Common, Expenses and Common Surplus.
In the event any one or more of the Units are not rebuilt by reason of loss as a result of destruction, and therefore the number of Units is reduced, then the proportionate share of the Common Expenses and of the Common Surplus of each Unit shall be increased by adding to each remaining Unit their proportionate percentages of ownership out of the percentages of ownership of the Units so reduced.

14. Easements for Encroachments.
To the extent that any Unit or Common Element encroaches on any other Unit or Common Element, whether by reason of any deviation from the Condominium Plat and Condominium Plans in the construction, repair, renovation, restoration or replacement of any improvement, or by reason of the settling or shifting of any land or improvement, a valid easement shall exist for the encroachment and for the maintenance of the same, so long as the encroaching Unit or Common Elements stand. A valid easement shall not relieve a Unit Owner of liability for his or his agent's negligence or intentional acts in cases of willful and intentional misconduct by him or his agents or employees. In the event any Unit, any adjoining Unit, or any adjoining Common Elements shall be partially or totally destroyed as a result of fire or other casualty or as a result of condemnation or eminent domain proceedings, and then constructed, reconstructed or repaired, encroachment of parts of the Common Elements upon any Unit or of any Unit upon any other Unit or Common Elements resulting from such reconstruction, construction or repair shall be permitted, and valid easements for such encroachment and the maintenance thereof shall exist so long as the encroaching improvements shall stand.

15. Easement of Support.
Each Unit and the Common Elements shall have an easement of support from every other Unit and the Common Elements.

16. Easement to Facilitate Sale.
The Declarant and the Declarant’s authorized agents, representatives and employees shall have an easement to use any Units owned by the Declarant as sales offices, management offices and model Units in the Condominium, and Declarant shall have the right to relocate to any other Units; but this easement shall cease upon Declarant’s ceasing to be a Unit Owner.  Declarant is irrevocably empowered to sell and/or lease Units to any person or persons without restriction.  Declarant shall have the right to transact on the Condominium Property any business necessary to consummate the sale of Units, including, but not limited to, the right to maintain models, have signs, maintain an office, and use the Common Elements and to show Units to prospective purchasers and lessees.  The sales office, signs and other items used in connection with the sale or leasing of Units shall not be considered a part of the Common Elements and shall remain the property of the Declarant.

17. Easement to Use Parking Facilities.
Unit Owners shall have the common use of the automobile parking spaces.  The Declarant shall have the right to assign to each Unit a parking space identified by number, but such assignment shall not be irrevocable. The Board of Directors may make such rules and regulations to control the assignment of parking spaces; provided, however, that at least one automobile parking space shall be available to each Unit.  Maintenance of the parking spaces shall be a Common Expense of the Association.

18. Ingress and Egress Easement.
Each Unit Owner of the Condominium shall have a non?exclusive easement for ingress and egress between said Units and the public roads and streets serving the Condominium over the halls, corridors, stairs, walks, driveways, roads, parking areas, exterior access and other portions of the Common Elements.

19. Utility Easements.
Easements are reserved through the Property as may be required for utility services to serve the Condominium adequately.

20. Easement as Appurtenances.
The easements and other rights created herein for the Unit Owner shall be appurtenant to the Unit of that Owner and all conveyances of title to the Unit shall include a conveyance of the easements and rights as are herein provided even though no specific reference to such easements and rights appear in such instrument.

21. Amendment
21.1 Amendments by Declarant.
Without limiting the rights of the Declarant to alter the Plans, as described hereinabove, the Declarant further reserves the right to amend any Condominium Instrument as long as there is no Unit Owner other than the Declarant.

21.2 Amendments by Unit Owners.
At such time as there is a Unit Owner other than the Declarant, this Declaration may be amended by agreement of Owners of seventy-five percent (75%) of the Par Value of Units, provided, however, that any such amendment shall have been approved in writing by the First Mortgagees holding mortgages encumbering seventy-five percent (75%) or more of the Units encumbered. No such amendment shall become effective until it is recorded. At such time as there is a Unit Owner other than the Declarant, no amendment to the Condominium Instruments shall change the Percentage Interests, the liability for Common Expenses, the rights to Common Surplus or the votes in the Association appertaining to any Unit, except to the extent expressly permitted or expressly required by the Condominium Act. Notwithstanding the foregoing, as long as Declarant is Owner of one or more Units, no amendment to the Declaration, Bylaws, Rules or Regulations may be adopted which could interfere with the display, sale, lease or other disposition of such Unit or Units. Moreover, all sections of this Declaration, including, but not limited to, Section 9.11, insofar as such sections relate to Declarant's right of access, may not be amended without the consent in writing of the Declarant, so long as Declarant shall be a Unit Owner.

21.3 Amendment to be in Conformity With Requirements of Act.
Any amendment to the Declaration must be recorded in the manner prescribed by law before it shall become effective. In no case shall any amendment change a Unit unless the Owner and the holders of record any liens thereon shall have agreed to such amendment either at the time of such amendment or in advance of such amendment.

22. Relocation of Mutual Boundaries.
The Unit Owners of adjoining Units may relocate the mutual boundaries between such Units in accordance with and subject to the provisions of the Condominium Act and the Condominium Instruments, as amended from time to time, and with the approval of the Board.

23. Consent of First Mortgagees.
Notwithstanding any other provision of this Declaration, the Bylaws or the Rules and Regulations, unless at least seventy?five percent (75%) of the First Mortgagees (based upon one vote for each mortgage owned) and Unit Owners holding seventy?five percent (75%) of the Par Values (other than the Declarant) have given their prior written approval, the Association and Board of Directors shall not be entitled to: (a) by act or omission, seek to abandon or terminate the condominium regime; (b) change the pro rata interest or obligations of any Unit for purposes of (i) levying assessments or charges or allocating distributions of hazard insurance proceeds or condemnation awards, or (ii) determining the pro rata share of each Unit Owner's ownership in the Common Elements; (c) partition or subdivide any Unit; (d) by act or omission, seek to abandon, partition, subdivide, encumber, sell or transfer the Common Elements (the granting of easements for public utilities or for other public purposes consistent with the intended use of the Common Elements by the Condominium shall not be deemed a transfer within the meaning of this clause); or (e) use hazard insurance proceeds for losses to the Property (whether to Units or Common Elements) for other than the repair, replacement or reconstruction of such improvements.

24. Rights of First Mortgagees.
24.1 Priority of First Mortgagees.
No provision of this Declaration, the Bylaws or the Rules and Regulations shall be construed to grant to any Unit Owner, or to any other party, any priority over any rights of First Mortgagees of the Condominium Units pursuant to their first mortgages; in the case of the distribution to Unit Owners of the insurance proceeds or condemnation awards for losses to or a taking of Units or the Common Elements or any portions thereof.

24.2 Notification to First Mortgagees.
A First Mortgagee of a Unit, at its request, is entitled to written notification from the Association of any default by the mortgagor of such Unit in the performance of such mortgagor's obligations under the Declaration, Bylaws, or any of the Condominium Documents, which is not cured within sixty (60) days.

24.3 Priority.
As provided in the Act, all assessments, property taxes and other charges imposed by any taxing authority which may become liens prior to the first mortgage, shall be separately assessed against and collected on each Unit as a single parcel, and not on the Condominium Property as a whole.

25. Professional Management.
Any agreement for professional management of the Condominium Project, whether it be the Declarant, its successors and assigns, or any­ other person or entity, may not exceed three (3) years. Any such agreement must further provide for the termination by either party without cause and without payment of a termination fee on ninety (90) days or less written notice.

26. Termination.
Notwithstanding any language to the contrary in the Declaration or the Bylaws, this Condominium may be terminated in a manner provided by the Act.

27. Rights and Powers of Successor and Assignees.
The rights and powers reserved to or exercisable by the Declarant under the Condominium Instruments or the Condominium Act may be exercised by any successor or assignee of the Declarant (i) who acquires title from Declarant by foreclosure or other judicial sale or deed in lieu of foreclosure or (ii) to whom the Declarant specifically assigns such rights and powers.

28. Captions.
The captions (paragraph headings) are used solely as a matter of convenience and shall not define, limit or expand any term or provisions of this Declaration.

29. Gender; Number.
Whenever the context so permits, the use of the plural shall include the singular, the singular shall include the plural, and any gender shall be deemed to include all genders.

30. Exhibits.
Exhibits A, B and C attached to this Declaration are an integral part of this Declaration.

31. Invalidity and Severability.
It is the intention of the Declarant that the provisions of this Declaration are severable so that if any provision is invalid or void under any applicable Federal, state, or local law or ordinance, decree, order, judgment or otherwise, the remainder shall be unaffected thereby.
32. Noncompliance.
The failure of Declarant, Unit Owners, and any other party to comply with the terms and provisions of this Declaration shall not be deemed to be a waiver of any provision of this Declaration, nor shall such noncompliance obviate the necessity of future compliance.

33. Signatures
 

IN WITNESS WHEREOF, the Declarant has hereunto set its signature and seal by Richard S. Robinson, its Vice President, who is duly authorized on the day and year first above written.
 
 

WITNESS                                           THE LYON REALTY COMPANY
 
 
 
 

_______________________              BY: _______________________________

                                                            Richard S. Robinson

                                                            Its Vice President
 
 

STATE OF ALABAMA )
 
 

JEFFERSON COUNTY          )
 
 

Before me, the undersigned authority, in and for said County and said State, personally appeared Richard S. Robinson, to me well known to be the person described in and who executed the foregoing Declaration of Condominium as Vice President of The Lyon Realty Company, a California corporation. He acknowledges before me that he executed such Declaration of Condominium as Officer of said Corporation, and that said instrument is the free act and deed of said Corporation.
 
 

Witness my hand and official seal the 29th day of August, 1980.
 
 
 
 
 
 

                                                                                    _________________________

                                                                                    Notary Public
 
 

                                                                        My Commissions Expires: 1-25-81.

MS/re/jb
 
 

The undersigned, the Mortgagees under Mortgages encumbering the Property as identified in the foregoing ,Declaration of Condominium of Highland Terrace Condominium, join in the execution of the fore­going Declaration, for the sole purpose of establishing the validity of the Declaration of Condominium of Highland Terrace Condominium, as required by Section 35?8?7 of the Alabama Code, 1975. The Under­signed are not the Declarant, and neither assume any obligation, whatsoever under the terms, covenants and conditions of the foregoing Declaration of Condominium, and the execution hereof does not is any way subordinate or make the said respective mortgages inferior or subject to the said Declaration of Condominium.
 
 

FIRST NATIONAL BANK OF BIRMINGHAM
 
 

By:  ________________________________
 
 

Its:  ________________________________
 
 

HUBERT W. GOINGS, JR., CUSTODIAN
 
 

___________________________________

STATE OF ALABAMA )

JEFFERSON COUNTY          )

I, the undersigned, a Notary Public in and for the said County, in said State, hereby certify that William E. Coleman whose name as Vice President of First National Bank of Birmingham, a national banking association, is signed to the foregoing Declara­tion, and who is known to me, acknowledged before me on this day that, being informed of the contents of the Declaration, he, as such officer and with full authority, executed the same voluntarily for as the act of said First National Bank of Birmingham.
 
 

Given under my hand and official seal, this the 29th day August, 1980.
 
 
 
 

Notary Public.
 
 
 
 

(STATE OF ALABAMA)

(JEFFERSON COUNTY)
 
 

I, the undersigned, a Notary Public in and for said County, in said State, hereby certify that Hubert W. Goings, Jr., whose name is signed to the foregoing Declaration, and who is known to me, acknowledged before me on this day that, being informed of the con­tents of the Declaration, he executed the same voluntarily.
 
 

Given under my hand and official seal, this the 29th day of August 1980.
 
 
 
 

Notary Public.
 
 

34. Par Values
 

EXHIBIT “A”
 
 

Lot “A” being a Resurvey of Lots 7, 8, 9, 10, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 of Highland Terrace, as Recorded in Map Book 107, Page 60 in the Probate Office of Jefferson County, Alabama located in the NW ¼ of the NW ¼ Section 5, Township 185, Range 2W, Jefferson County, Alabama.
 
 

Subject to the rights of way, easements, liens and restrictions of record.
 
 

EXHIBIT B TO DECLARATION
 
 

HIGHLAND TERRACE CONDOMINIUM

3350 Altamont Road

Birmingham, Alabama 35205
 
 
 
 

Identifying Number

(Unit Number)
 Par Value

(Points)
 Percentage Interest in

the Common Elements
 
 
 
 

A-2

A-4

A-6

A-8

A-10

A-12

A-14

A-16

A-18
 
 
 

1.175

1.492

.904

1.175

1.492

.904

1.175

1.492

.904
 
 
 

1.175%

1.492%

.904%

1.175%

1.492%

.904%

1.175%

1.492%

.904%
 
 
 
 
 
 

B-1

B-3

B-5

B-7

B-9

B-11

B-13

B-15

B-17
 
 
 

1.175

1.492

.904

1.175

1.492

.904

1.175

1.492

.904
 
 
 

1.175%

1.492%

.904%

1.175%

1.492%

.904%

1.175%

1.492%

.904%
 
 
 
 
 
 

B-2

B-4

B-6

B-8

B-10

B-12
 
 
 

1.175

1.492

.904

1.175

1.492

.904
 
 
 

1.175%

1.492%

.904%

1.175%

1.492%

.904%
 
 
 
 
 

C-1

C-3

C-5

C-7

C-9

C-11
 
 
 

1.175

1.492

.904

1.175

1.492

.904
 
 
 

1.175%

1.492%

.904%

1.175%

1.492%

.904%
 
 
 
 
 
 

C-2

C-4

C-6

C-8

C-10

C-12
 
 
 

1.175

1.492

.904

1.175

1.492

.904
 
 
 

1.175%

1.492%

.904%

1.175%

1.492%

.904%
 
 
 
 

C-14

C-16

C-18

C-20

C-22

C-24
 
 
 

1.175

1.492

.904

1.175

1.492

.904
 
 
 

1.175%

1.492%

.904%

1.175%

1.492%

.904%
 
 
 
 

D-1

D-3

D-5

D-7

D-9

D-11
 
 
 

1.175

1.492

.904

1.175

1.492

.904
 
 
 

1.175%

1.492%

.904%

1.175%

1.492%

.904%
 
 
 
 

D-2

D-4

D-6

D-8

D-10

D-12
 
 
 

1.175

1.492

.904

1.175

1.492

.904
 
 
 

1.175%

1.492%

.904%

1.175%

1.492%

.904%
 
 
 
 

D-13

D-15

D-17

D-19

D-21

D-23
 
 
 

1.175

1.492

.904

1.175

1.492

.904
 
 
 

1.175%

1.492%

.904%

1.175%

1.492%

.904%
 
 
 
 

D-14

D-16

D-18

D-20

D-22

D-24
 
 
 

1.175

1.492

.904

1.175

1.492

.904
 
 
 

1.175%

1.492%

.904%

1.175%

1.492%

.904%
 
 
 
 
 

E-3

E-5

E-7

E-9

E-11
 
 
 

1.175

1.492

.904

1.175

1.492

.904
 
 
 

1.175%

1.492%

.904%

1.175%

1.492%

.904%
 
 
 
 

E-2

E-4

E-6
 
 
 

1.175

1.492

.904
 
 
 

1.175%

1.492%

.904%
 
 
 
 

E-13

E-15

E-17

E-19

E-21

E-23
 
 
 

1.175

1.492

.904

1.175

1.492

.904
 
 
 

1.175%

1.492%

.904%

1.175%

1.492%

.904%
 
 
 
 

F-1

F-3

F-5
 
 
 

1.175

1.492

.904
 
 
 

1.175%

1.492%

.904%