As the city of Fairfield examines possible water sources, a charitable water well donation could become a liability for city council members.

Fairfield's F.E. Hill Co., L.L.P. has offered to "donate" a 625-feet polyvinyl chloride well located on the company's property in Thousand Oaks to the city of Fairfield for municipal use.

Unfortunately, the contract submitted for council's approval contains conditions which the city cannot legally agree to meet, attorney Mike Dixon of Waco says.

If signed, the contract entitles the company and its successors to take water for ranching, agricultural or residential use at no cost, from any metered water source that is owned and operated by the city of Fairfield.

Based upon the well's annual production and the proposed agreement, that amount should not exceed 20 percent.

According to state law, a city's governing body cannot contractually bind future councils to surren- der or restrict the city's ability to exercise its governmental functions or powers because this would interfere with the city's ability to adapt to future circumstances.

Signing the agreement could violate an issue settled under state law and could result in voidance of the contract.

While council members have the ability to make decisions based upon current information and circumstances, they cannot weaken future councils by impairing their ability to adapt to changing conditions.

In 2008 the city of Fairfield used 226 million gallons of water.

If the F.E. Hill Co. well were to supply 50 percent of the city's annual water use, it would total 113 million gallons. The company would be entitled to 2.26 million gallons of that amount, free of charge, from any water meter operated by the city of Fairfield.

The contract allows water to be taken from any city operated meter, but it is not specific as to who can draw water.

Listed as eligible to draw water is the F.E. Hill Co., its successors and assigns.

Rich Hill of F.E. Hill Co. L.L.P., presented the contract to council members last week during a city workshop.

Hill reports that his family has incurred $250,000 to $300,000 in expenses related to the installation and inspection of the well.

According to city administrator Mike Gokey, the city has spent approximately $1,300 in examining the legality of the agreement.

After reviewing the contract, Mike Dixon questioned the legality of the contract in a written response.

Dixon was hired by the city to give his opinion on the agreement.

"Based on my limited research, I would have serious doubts about the legality of such an arrangement. A governmental entity cannot enter into a contract which would control or impair its governmental functions, or cede discretion over such functions to another."

Dixon cites several cases to support his argument including Fidelity Land & Trust Co. of Texas v. City of West University Place, 1973.

In 1942, the city of West University was granted a sewer line easement by Fidelity Land & Trust Co. of Texas with the stipulation that the landowners "successors and assigns" be allowed to connect without charge to the city's sewer system.

When a connection request was denied in 1968, a suit was filed against the city for breach of contract.

The court ruled that the agreement was invalid as it hindered the city and the municipality's discretionary control over a governmental function, a sewer system.

Dixon also noted the logistical difficulties in allowing an entity access to water at multiple meters.

"The concept of the grantor taking water from any meter water source is concerning. First, there is a lack of specifics as to where, when and by whom the water should be taken. Second, this cedes some level of control over the city's water system to a private entity. Third, tracking and accounting for such would be an administrative problem."

Mayor Roy Hill recused himself from the discussions due to his familial ties with the donating entity, but not before registering his opinion with council members regarding the legality of the document.

Hill, who also is an attorney, told council members that he supports the contract noting that entering the agreement with the knowledge that the city would receive only 80 percent of the wells production was different than expecting 100 percent.